GEICO Indem. Co. v Bayside Constr. Co.

[*1] GEICO Indem. Co. v Bayside Constr. Co. 2020 NY Slip Op 50795(U) Decided on May 8, 2020 Civil Court Of The City Of New York, Queens County Li, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 8, 2020
Civil Court of the City of New York, Queens County

GEICO Indemnity Company As Subrogee of Jean D., Plaintiff(s),

against

Bayside Construction Co., and "John Doe", Being a fictitious name, Defendant(s).



015992-19



Plaintiff Counsel:

Law Office of Ricky J. Lucyk

2 Huntington Quadrangle, Suite 2N01

Melville, NY 11747

Pro Se Defendant
Wendy Changyong Li, J.

I.

The following papers filed with the court on February 10, 2020 were read on this motion by Plaintiff for a default judgment against Defendants pursuant to CPLR §3215:

Papers Numbered

Notice of Motion for Default Judgement dated January 22, 2020 1

Affirmation in Support of Motion for Default Judgement dated January 22, 2020 2

Affidavit of Mailing dated January 27, 2020 3

Exhibit A - Affidavit of Service dated May 13, 2019 with Summons and Complaint 4

Exhibit B - Affidavit of appraiser with all supporting documents 5

Exhibit C - Affidavit of plaintiff subrogor Jean Delacruzsena 6

Exhibit D - Affidavit of Mailing dated November 18, 2019 with supporting documents 7

II.

Upon the foregoing papers, it is ordered that this motion is decided as follows:

Plaintiff's motion for a default judgment pursuant to CPLR §3215 is denied without [*2]prejudice, as Plaintiff failed to demonstrate Defendants' liability for the accident (Beaton v. Transit Facility Corp., 14 AD3d 637 [2nd Dept. 2005]).

Plaintiff's affidavit of merit from subrogor Jean D. stated that her vehicle was parked on July 26, 2018 and when she "returned [she] noticed the back windshield was shattered. An employee of defendant Bayside Construction Co. informed [her] that he had attempted to clear [her] vehicle of debris with a power washer causing the windshield to shatter." Here, Plaintiff failed to establish that subrogor Jean D. personally observed the incident; instead, Plaintiff submitted an affidavit of merit containing a hearsay statement to prove the truth/facts of the matter before this Court. It is well established that a "proponent of hearsay evidence must establish the applicability of a hearsay-rule exception" in the State of New York (Tyrrell v Wal-Mart Stores, 97 NY2d 650, 652 [2001]). Here, however, Plaintiff failed to "establish [such] applicability of a hearsay-rule exception" in its motion papers (id.).

III.

Accordingly, plaintiff's motion for a default judgment pursuant to CPLR §3215 is denied without prejudice with leave to renew in order to "establish the applicability of a hearsay-rule exception" (id.).

This constitutes the DECISION and ORDER of the Court.

Dated: May 8, 2020[FN1]

_____________________________________

Honorable "Wendy" Changyong Li, J.C.C. Footnotes

Footnote 1: This decision is dated as of May 8, 2020, however, entered at a later time due to coronavirus pandemic.