GAVIOLA v. CITY OF NEW YORK (2025)

Order, Supreme Court, New York County (Judy H. Kim, J.), entered on or about October 24, 2023, which, to the extent appealed from as limited by the briefs, upon reargument, adhered to a prior order denying plaintiff's motion for default judgment against defendant Mildred Antoine, unanimously affirmed, without costs.

We affirm the denial of plaintiff's motion for a default judgment.  Plaintiff submitted proof that Antoine was personally served the summons with notice and submitted an attorney affirmation attesting to Antoine's default (see CPLR 3215[f]).  However, plaintiff failed to submit an “affidavit made by” her containing “proof of the facts constituting the claim” (CPLR 3215[f]).  Plaintiff relied on the allegations in her verified complaint, which was filed with the clerk of the court but not served on Antoine.  Because CPLR 3215(f) permits reliance on a verified complaint as an affidavit of facts supporting default judgment only “[w]here a verified complaint has been served,” plaintiff's motion for a default judgment was properly denied (see Mullins v. DiLorenzo, 199 A.D.2d 218, 219–220, 606 N.Y.S.2d 161 [1st Dept. 1993]).