GEICO INDEMNITY COMPANY As Subrogee of Jean D., Plaintiff(s), v. BAYSIDE CONSTRUCTION CO., and “John Doe”, Being a fictitious name, Defendant(s).
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 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 1
FOOTNOTES
1. This decision is dated as of May 8, 2020, however, entered at a later time due to coronavirus pandemic.
Wendy Changyong Li, J.
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