MEDICAL SERVICES PLLC v. TRAVELERS PROPERTY CASUALTY CORPORATION (2004)

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (M. Solomon, J.), entered August 20, 2003, as denied their motion to enter a default judgment, and granted defendant's cross motion to vacate its default and to deem its answer served.

Order insofar as appealed from unanimously modified by providing that the denial of plaintiffs' motion for leave to enter a default judgment is without prejudice to plaintiffs renewing their motion upon proper papers within 30 days of the date of the order entered hereon and by denying defendant's cross motion in its entirety;  as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, following defendant's default in answering the complaint, plaintiffs moved for leave to enter a default judgment.   In support of its cross motion to open the default, defendant offered, as its excuse, the inadvertent failure to alert its counsel as to the action's pendency.   On the facts herein, including defendant's admitted 3 months' failure to process the complaint, defendant's intervening neglect of plaintiffs' notice of their intent to seek leave to enter a default judgment, and defendant's unexplained several months' delay in moving to vacate the default and to compel acceptance of the answer, we find the excuse insufficient.   The Appellate Division, Second Department, has generally disapproved of insurance office failure as an excuse to vacate defaults (see e.g. Kaplinsky v. Mazor, 307 A.D.2d 916, 762 N.Y.S.2d 902 [2003];  Meggett v. Gibson, 302 A.D.2d 372, 373, 754 N.Y.S.2d 556 [2003];  Kachar v. Berlin, 296 A.D.2d 479, 745 N.Y.S.2d 471 [2002];  Miles v. Blue Label Trucking, 232 A.D.2d 382, 383, 648 N.Y.S.2d 138 [1996];  cf. Hayes v. R.S. Maher & Son, 303 A.D.2d 1018, 756 N.Y.S.2d 811 [2003];  Barajas v. Toll Bros., 247 A.D.2d 242, 669 N.Y.S.2d 35 [1998] ).

However, the court properly denied plaintiffs' motion for leave to enter a default judgment.   The motion required, in addition to the supplied proof of the default, “proof by affidavit made by the party of the facts constituting the claim ․ and the amount due” (CPLR 3215[f];  Drake v. Drake, 296 A.D.2d 566, 745 N.Y.S.2d 712 [2002];  Goodyear v. Weinstein, 224 A.D.2d 387, 638 N.Y.S.2d 108 [1996] ).   While an attorney-verified complaint may suffice, the instant complaint verified by “plaintiff's” counsel, did not set forth the basis of counsel's personal knowledge of the facts asserted therein (Joosten v. Gale, 129 A.D.2d 531, 534, 514 N.Y.S.2d 729 [1987];  A.B. Med. Servs. v. CNA Ins. Co., 2 Misc.3d 138(A), 2004 N.Y. Slip Op. 50265[U], 2004 WL 829398 [App. Term, 2d & 11th Jud. Dists.] ), absent which the complaint was “insufficient to support entry of judgment pursuant to CPLR 3215” (Hazim v. Winter, 234 A.D.2d 422, 651 N.Y.S.2d 149 [1996];  Mullins v. DiLorenzo, 199 A.D.2d 218, 219, 606 N.Y.S.2d 161 [1993] ).   Plaintiffs' sole affidavit in support of the motion, by a person identified only as an “officer of plaintiff,” did not establish the basis of the affiant's knowledge of the facts as to either of the named plaintiffs which, according to the claim forms, have different business addresses and operate under different ownerships.

We note that plaintiffs, should they be so advised, may renew their motion for leave to enter a default judgment upon proper papers within 30 days of the date of the order entered hereon (see Henriquez v. Purins, 245 A.D.2d 337, 338, 666 N.Y.S.2d 190 [1997];  Hazim v. Winter, 234 A.D.2d 422, 651 N.Y.S.2d 149, supra ).