Pastrano v Castro

[*1] Pastrano v Castro 2009 NY Slip Op 51587(U) [24 Misc 3d 138(A)] Decided on July 14, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 14, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1749 Q C.

Jorge P. Pastrano, Appellant,

against

Celso Castro and JOSE M. ACOSTA, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered October 24, 2005. The order denied plaintiff's motion for leave to enter a default judgment against defendants.

Order reversed without costs, plaintiff's motion for leave to enter a default judgment against defendants granted, and matter remitted to the Civil Court for an assessment of damages.

Plaintiff commenced this action to recover for serious injuries he allegedly sustained as a result of a motor vehicle accident wherein the car he was driving was hit by a car operated by defendant Jose M. Acosta and owned by defendant Celso Castro. Defendants failed to appear or answer, and plaintiff moved for leave to enter a default judgment. The Civil Court denied the motion, with leave to renew upon proper papers, noting that "[p]laintiff has failed to include an affidavit from one with personal knowledge who can attest to the causation of the underlying accident as required pursuant to CPLR 3215 (f)." The instant appeal by plaintiff ensued.

As plaintiff correctly maintains, the papers submitted in support of his motion for entry of a default judgment included his affidavit, which contained his averments regarding the circumstances of the accident. Accordingly, the order is reversed, plaintiff's motion for leave to enter a default judgment against defendants is granted, and the matter is remitted to the Civil Court for an assessment of damages.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009