Opinion
6027N Index 25894/14E
03-15-2018
Lampros Nikolas ANTIOHOS BY Estelle E. REYNOLDS, as Guardian of the Person and Property of Lampros Nikolas Antiohos, Plaintiff–Appellant, v. Arthur MORRISON, Defendant–Respondent, The Law Firm of Daniel M. O'Hara, PLLC, et al., Defendants.
Law Offices of Ira M. Perlman, P.C., Great Neck (Robert D. Rosen of counsel), for appellant. Arthur Morrison, New York, for respondent.
Law Offices of Ira M. Perlman, P.C., Great Neck (Robert D. Rosen of counsel), for appellant.
Arthur Morrison, New York, for respondent.
Manzanet–Daniels, J.P., Tom, Mazzarelli, Webber, Kern, JJ.
Order, Supreme Court, Bronx County (Donna M. Mills, J.), entered November 23, 2016, which denied plaintiff's motion for leave to renew his motion for a default judgment against defendant Morrison, unanimously reversed, on the facts, without costs, and, upon renewal, the motion for a default judgment granted. The Clerk is directed to enter judgment accordingly.
Plaintiff's original motion for a default judgment was denied not because plaintiff failed to show defendant Morrison's default but because he failed to submit an affidavit detailing the underlying personal injury action by "a party with personal knowledge of the merits of the claim" ( Beltre v. Babu, 32 A.D.3d 722, 723, 821 N.Y.S.2d 69 [1st Dept. 2006] ). In support of his renewal motion, plaintiff submitted his own affidavit as well as a reasonable justification for his failure to submit one with the original motion papers, namely, his cognitive deficits and his inability to read (see CPLR 2221[e] ; see generally Brown v. Rosedale Nurseries, 259 A.D.2d 256, 257, 686 N.Y.S.2d 22 [1st Dept. 1999] [granting leave to renew motion for a default judgment "upon proper papers"]; Joosten v. Gale, 129 A.D.2d 531, 531, 514 N.Y.S.2d 729 [1st Dept. 1987] [same]; see also generally Wattson v. TMC Holdings Corp., 135 A.D.2d 375, 376–377, 521 N.Y.S.2d 434 [1st Dept. 1987] [motion to renew motion for leave to amend granted where submission of affidavits by parties with personal knowledge cured procedural deficiency] ). As this Court observed in Wattson, "[C]ases should be decided on the merits, wherever possible, and not on the basis of technical procedural requirements" ( 135 A.D.2d at 378, 521 N.Y.S.2d 434 ).