Town of Babylon v Tursellino
Decided on January 8, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ
2007-1919 S C.
Town of Babylon, Appellant,
Jeffrey Tursellino, Respondent.
Appeal from an order of the District Court of Suffolk County, Second District (Patrick J.
Barton, J.), dated October 3, 2007. The order denied plaintiff's motion for the entry of a default
Order modified by providing that plaintiff's motion for the entry of a default judgment is denied without prejudice to renewal upon proper papers; as so modified, affirmed without costs.
In support of its motion for entry of a default judgment upon defendant's failure to answer, plaintiff proffered neither an affidavit of facts nor a verified complaint based on personal knowledge of the facts (CPLR 3215 [f]). While a properly served complaint verified by the Deputy Town Attorney, an officer of a municipal corporation which was a party to the action (CPLR 3020 [d] ; Town Law § 2; Primeau v Town of Amherst, 303 AD2d 1035 ; Magliano v Merckling, 99 AD2d 825, 826 ), might have sufficed to commence the action, the facts essential to the verified complaint were based on information and belief, which is "insufficient to support the entry of a default judgment" (Henriquez v Purins, 245 AD2d 337, 338 ; see Blam v Netcher, 17 AD3d 495, 496 ; Goodman v New York City Health & Hosps. Corp., 2 AD3d 581 ; Joosten v Gale, 129 AD2d 531, 535 ; Town of Babylon v Kotsonis, 21 Misc 3d 138[A], 2008 NY Slip Op 52302[U] [App Term 9th & 10th Jud Dists 2008]). Under the circumstances, the court below properly denied the motion. However, defendant should not be excused from the consequences of his default, and thus, plaintiff is granted leave to renew its application for leave to enter a default judgment on proper papers (Blam, 17 AD3d at 496; Grainger v Wright, 274 AD2d 549, 550 ; A.B. Med. Servs. v CNA Ins. Co., 2 Misc 3d 138[A], 2004 NY Slip Op 50265[U] [App Term, 2d & 11th Jud Dists 2004]).
Rudolph, P.J., Molia and Scheinkman, JJ., concur.
Decision Date: January 08, 2009