Opinion
2014-02-19
Terrance KENNEDY, appellant, v. CITY OF NEW YORK, et al., respondents.
Rubert & Gross, P.C., New York, N.Y. (Soledad Rubert of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Mordecai Newman of counsel; Christina Chung on the brief), for respondents.
Rubert & Gross, P.C., New York, N.Y. (Soledad Rubert of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Mordecai Newman of counsel; Christina Chung on the brief), for respondents.
In an action, inter alia, to recover damages for false arrest, the plaintiff appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), entered April 5, 2013, which denied his motion for leave to enter a default judgment against the defendant Anthony Puleo and granted the cross motion of that defendant pursuant to CPLR 3012(d) to extend his time to appear and answer and to compel the plaintiff to accept his answer.
ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion for leave to enter a default judgment against the defendant Anthony Puleo is granted, and the cross motion of that defendant pursuant to CPLR 3012(d) to extend his time to appear and answer, and to compel the plaintiff to accept his answer, is denied.
In support of his cross motion pursuant to CPLR 3012(d), the defendant Anthony Puleo was required to provide a reasonable excuse for his default in answering or otherwise appearing, and a potentially meritorious defense to the action ( see Vigo v. 501 Second St. Holding Corp., 100 A.D.3d 871, 955 N.Y.S.2d 99;Lipp v. Port Auth. of N.Y. & N.J., 34 A.D.3d 649, 824 N.Y.S.2d 671;Juseinoski v. Board of Educ. of City of N.Y., 15 A.D.3d 353, 356, 790 N.Y.S.2d 162). However, he failed to submit an affidavit establishing a reasonable excuse for his default or demonstrating that he had a meritorious defense to the action. The proposed answer was insufficient to constitute an affidavit of merit, as it was verified by an attorney who had no personal knowledge of the facts ( see Karalis v. New Dimensions HR, Inc., 105 A.D.3d 707, 708, 962 N.Y.S.2d 647;Ryan v. Breezy Point Coop., Inc., 76 A.D.3d 523, 904 N.Y.S.2d 910). DILLON, J.P., BALKIN, LEVENTHAL and CHAMBERS, JJ., concur.