BEATON v. Dolores Curry, appellant, et al., defendant. (2005)

In an action to recover damages for personal injuries, the defendant Dolores Curry appeals from an order of the Supreme Court, Kings County (Johnson, J.), dated April 22, 2004, which granted the separate motions of the plaintiff and the defendants Transit Facility Corporation and Jean W. Jean-Paul for leave to enter a judgment against her upon her failure to appear and answer and for an assessment of damages.

ORDERED that the order is reversed, on the law, with costs, and the motions are denied.

 A party's right to recover upon a defendant's failure to appear or answer is governed by CPLR 3215 (see Reynolds Sec. v. Underwriters Bank & Trust Co., 44 N.Y.2d 568, 572, 406 N.Y.S.2d 743, 378 N.E.2d 106), which requires that the plaintiff state a viable cause of action (see CPLR 3215[f];  Fappiano v. City of New York, 5 A.D.3d 627, 774 N.Y.S.2d 773, lv. denied 4 N.Y.3d 702, 790 N.Y.S.2d 648, 824 N.E.2d 49 [2004];  Green v. Dolphy Constr. Co., 187 A.D.2d 635, 636, 590 N.Y.S.2d 238).   In determining whether a party has a viable cause of action, the court may consider the pleadings in the action, and any other proof submitted by the plaintiff (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 71, 760 N.Y.S.2d 727, 790 N.E.2d 1156;  Feffer v. Malpeso, 210 A.D.2d 60, 619 N.Y.S.2d 46).   The plaintiff's complaint, verified by her attorney, and her affidavit of merit, which incorporated conclusory statements alleging negligence based on information provided by her attorney and which failed to set forth the facts constituting the alleged negligence, were insufficient to support a default judgment pursuant to CPLR 3215(f) (see Henriquez v. Purins, 245 A.D.2d 337, 666 N.Y.S.2d 190;  Zelnik v. Bidermann Indus. USA, 242 A.D.2d 227, 662 N.Y.S.2d 19;  Feffer v. Malpeso, supra ).   Moreover, in view of the fact that the appellant's car was stolen on the day of the accident, the other evidentiary proof submitted by the plaintiff failed to satisfy her burden of establishing the existence of a viable cause of action against the appellant (see Fappiano v. City of New York, supra;  Luna v. Luna, 263 A.D.2d 470, 691 N.Y.S.2d 913;  Green v. Dolphy Constr. Co., supra;  Silberstein v. Presbyterian Hosp. in City of N.Y., 96 A.D.2d 1096, 95 A.D.2d 773, 463 N.Y.S.2d 254).   Accordingly, the plaintiff's motion for leave to enter a judgment against the appellant upon her failure to appear or answer and for an assessment of damages should have been denied.   For the same reasons, the motion of the defendants Transit Facility Corporation and Jean W. Jean-Paul, which relied exclusively upon “the reasons advanced by the plaintiff,” should have been denied.