Euzebe-Job v Abdelhamid

[*1] Euzebe-Job v Abdelhamid 2017 NY Slip Op 50526(U) Decided on March 24, 2017 Supreme Court, Kings County Rivera, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 24, 2017
Supreme Court, Kings County

Gina Euzebe-Job and NELA DESIR, Plaintiffs,

against

Qasad A. Abdelhamid and HSSAIN S. SHUAB, Defendants.



13494/2015



Attorney for Plaintiffs

Harmon, Lindor & Rogowsky

3 Park Avenue

Suite 2300

New York, New York 10016

Attorneys for Defendant

James G. Bilello & Associates

100 Duffy Avenue

Suite 500

Hicksville, New York 11801

516-861-1775

Eric Gonzalez

Acting District Attorney

Kings County

Renaissance Plaza

350 Jay Street

Brooklyn, New York 11201-2908
Francois A. Rivera, J.

By notice of motion filed on October 11, 2016, under motion sequence one, [*2]defendants/counterclaim plaintiffs Qasad A. Abdelhamid and Hssain S. Shuab (hereinafter the movants) have jointly moved pursuant to CPLR 3215, for an order granting a default judgment against plaintiff/counterclaim defendant Gina Euzebe-Job (hereinafter Euzebe-Job) on their claim against her for contribution and indemnification. There is no opposition to the motion.

BACKGROUND

On November 13, 2015, Gina Euzebe-Job and Nela Desir commenced the instant action for damages for personal injuries by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's Office. On or about January 18, 2016, the movants interposed an answer containing one counterclaim against Euzebe-Job for contribution and indemnification.

The complaint alleges the following salient facts. On October 16, 2014 at approximately 12:30 p.m., Euzebe-Job was operating a motor vehicle when she was involved in a collision at or near the intersection of Ocean Avenue and Avenue M in the county of Kings with a vehicle operated by Hssain S. Shuaib. Nela Desir was a passenger in Euzebe-Job's vehicle and sustained personal injuries.

LAW AND APPLICATION

CPLR 3011 pertains to types of pleadings and provides as follows:

There shall be a complaint and an answer. An answer may include a counterclaim against a plaintiff and a cross-claim against a defendant. A defendant's pleading against another claimant is an interpleader complaint, or against any other person not already a party is a third-party complaint. There shall be a reply to a counterclaim denominated as such, an answer to an interpleader complaint or third-party complaint, and an answer to a cross-claim that contains a demand for an answer. If no demand is made, the cross-claim shall be deemed denied or avoided. There shall be no other pleading unless the court orders otherwise.

The main purpose of CPLR 3011 is to state the instances in which a responsive pleading is required (Siegel, New York Practice § 229, 4th Ed). It specifically provides, in pertinent part, that a counterclaim requires a reply. In the instant matter the movants are seeking a default judgment on their counterclaim asserted against Euzebe-Job.

CPLR 3215 provides in pertinent part as follows:

(a) Default and entry. When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him...(f) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint ... and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party ... Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney.

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party's default in answering or appearing (see CPLR 3215 [*3](f); Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2nd Dept 2011]). CPLR 3215 (f) states specifically, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim are to be set forth in an affidavit made by the party (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2nd Dept 2009]).

While counterclaims are not specifically mentioned anywhere in CPLR 3215, the statute's legislative history reveals that it was intended to apply to claims asserted as counterclaims, cross claims, and third-party claims, in addition to those set forth in complaints (Giglio v NTIMP, Inc., 86 AD3d 301, 307 (2nd Dept 2011) citing 5 NY Adv. Comm. Rep. 476 [Advance Draft 1961]; 7 Weinstein Korn Miller, Civ. Prac. § 3215.08; CPLR 3215 [c]).

The movants have annexed a copy of an admission of service of their verified answer with counterclaims by Euzebe-Job's counsel on January 18, 2016. In accordance with CPLR 3011, Euzebe-Job was required to interpose a reply to the counterclaim. The movants have established that she did not do so. The movants' burden is to set forth sworn allegations of fact demonstrating that they have a viable claim.

The answer with counterclaim is verified by the movants' attorney pursuant to CPLR 3020 (d). However, the pleading does not demonstrate that the attorney has personal knowledge of the underlying facts supporting the claim. Therefore, the verified answer with counterclaim may not be used in lieu of an affidavit by the movants pursuant to CPLR 105 (u) (see King v King, 99 AD3d 672 [2nd Dept 2012]). There is no affidavit by a party attesting to a viable claim against Euzebe-Job. Therefore, the motion is denied without prejudice (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2nd Dept 2009]).

CONCLUSION

Qasad A. Abdelhamid and Hssain S. Shuab motion for an order pursuant to CPLR 3215 granting a default judgment against Gina Euzebe-Job on their counterclaim for contribution and indemnification is denied.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.