ZINO v. JOAB TAXI INC (2005)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Covello, J.), dated August 5, 2004, which denied his motion for leave to enter a judgment on the issue of liability against the defendant Joab Taxi, Inc., upon its failure to appear or answer and for an inquest on the issue of damages, and deemed the answer of the defendant Joab Taxi, Inc., timely served nunc pro tunc.

ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for an inquest on the issue of damages.

 To avoid the entry of judgment upon its failure to appear or answer, the defendant Joab Taxi, Inc. (hereinafter the defendant) was required to demonstrate a justifiable excuse for the default and a meritorious defense (see Juseinoski v. Board of Educ. of the City of N.Y., 15 A.D.3d 353, 790 N.Y.S.2d 162;  Ennis v. Lema, 305 A.D.2d 632, 633, 760 N.Y.S.2d 197).   The defendant failed to do either.   Accordingly, its default should not have been excused (see Ennis v. Lema, supra ).   Furthermore, the Supreme Court erred in deeming the answer timely served nunc pro tunc in the absence of a motion for such relief (CPLR 2215;  Blam v. Netcher, 17 A.D.3d 495, 793 N.Y.S.2d 464;  Pampalone v. Giant Bldg. Maintenance, Inc., 17 A.D.3d 556, 793 N.Y.S.2d 462).

 The plaintiff submitted proof of service of the summons and the complaint (see CPLR 311[a][1] ), and a factually-detailed complaint, which he verified (see CPLR 105[u];  Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70-71, 760 N.Y.S.2d 727, 790 N.E.2d 1156).   Therefore, the plaintiff's motion for leave to enter judgment on the issue of liability against the defendant upon its default should have been granted, and the matter should have been allowed to proceed to inquest (see Andrade v. Ranginwala, 297 A.D.2d 691, 747 N.Y.S.2d 385).