User Name: JAMES SHANNON Date and Time: 04/11/2013 4:38 PM EDT Job Number: 2572320

Document(1)
1. Mullins v. DiLorenzo, 199 A.D.2d 218 Client/matter: 99999.03846 4122 Linked from: Zelnik v. Bidermann Indus. U.S.A. , 242 A.D.2d 227

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JAMES SHANNON

Positive As of: April 11, 2013 4:38 PM EDT

Mullins v. DiLorenzo
Supreme Court of New York, Appellate Division, First Department December 30, 1993, Decided ; December 30, 1993, Entered 50545N Reporter: 199 A.D.2d 218; 606 N.Y.S.2d 161; 1993 N.Y. App. Div. LEXIS 12825 to no more than an attorneys affidavit and was therefore insufficient to support entry of judgment pursuant to N.Y. C.P.L.R. 3215. Outcome The court vacated the trial courts entry of a default judgment, on condition that landlords pay to injured individuals the sum of $ 500 costs and answer the complaint within 20 days. LexisNexis Headnotes
Civil Procedure > Judgments > Pretrial Judgments > General Overview Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > General Overview Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > Default Judgments Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > Relief From Default Civil Procedure > Judgments > Relief From Judgments > General Overview Torts > ... > Liabilities of Lessors > Negligence > General Overview

John Mullins and Rose Mullins, Plaintiffs-Respondents, v. Alexander DiLorenzo, III, and Marc DiLorenzo as Trustees under a certain trust created under the Last Will and Testament of Alexander DiLorenzo d/b/a/ 316 Kingsbridge Road Equities, Defendants-Appellants. Sound Town Audio, Inc. and Me and You Jewelry, Inc., Defendants. Core Terms default, default judgment, verified complaint, entry of judgment, amount due, meritorious defense, verified, summons, vacate, insufficient to support, judgment by default, service of summons, reasonable excuse, motion to vacate, filing proof, general rule, indemnify, landlord, inquest, notice, lease Case Summary Procedural Posture Plaintiff injured individuals instituted an action for damages against defendant landlord for injuries suffered when injured individual tripped and fell in front of landlords premises. Landlords challenged the decision of the Supreme Court, Bronx County (New York), which denied landlords motion to vacate the order granting injured individuals a default judgment and setting the matter down for an inquest on damages. Overview Landlords argued that the papers submitted in support of injured individuals application for a default judgment were defective. Landlords concede their inadvertent failure to raise the issue before the trial court, but asserted that the court should reach the merits of their argument and reverse the order in the interest of justice. Landlords based their meritorious argument on the fact that two copies of the summons and complaint were received by their managing agent on two separate occasions and forwarded, respectively, to assignees under the lease, with correspondence noting the obligation of the lessee to defend and indemnify the trust. The court held that injured individuals complaint verified by counsel amounted

HN1 It is the general rule that a party seeking to vacate a default judgment must demonstrate both a meritorious defense and a reasonable excuse for the default.
Civil Procedure > ... > Service of Process > Service of Summons > General Overview Civil Procedure > Judgments > Pretrial Judgments > General Overview Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > General Overview Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > Default Judgments

HN2 On any application for judgment by default, the applicant shall file proof of service of the summons and complaint, or a summons and notice served pursuant to N.Y. C.P.L.R. 305(b) or N.Y. C.P.L.R. 316(a), and proof by affidavit made by the party of the facts constituting the claim, the default and the amount due. Where a verified complaint has been served it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or his attorney.
Civil Procedure > ... > Pretrial Judgments > Default & Default Judg-

JAMES SHANNON

Page 2 of 2 199 A.D.2d 218, *218; 606 N.Y.S.2d 161, **161; 1993 N.Y. App. Div. LEXIS 12825, ***1
ments > Default Judgments

HN3 A complaint verified by counsel amounts to no more than an attorneys affidavit and is therefore insufficient to support entry of judgment pursuant to N.Y. C.P.L.R. 3215.
Civil Procedure > Judgments > Pretrial Judgments > General Overview Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > General Overview Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > Default Judgments

emphasized that defendants took no action to protect their rights in this litigation. HN1 It is the general rule that a party seeking to vacate a default judgment must demonstrate both a meritorious defense and a reasonable excuse for the default (CPLR 5015; see, Marine Off. of Am. Corp. v Regal Accessories, 162 AD2d 232, 556 N.Y.S.2d 596). Defendants base their claim of a meritorious defense on the grounds that they are landlords out of possession and that the accident occurred on an [***3] abutting sidewalk due to negligence of persons not within their control (citing Conlon v Village of Pleasantville, 146 AD2d 736, 737, 537 N.Y.S.2d 221; Balsam v Delma Engr. Corp., 139 AD2d 292, 296-297, 532 N.Y.S.2d 105, lv dismissed in part denied in part 73 NY2d 783). Plaintiffs opposition to the motion is founded upon defendants failure to proffer any excuse for their default in appearance. For the first time on appeal, defendants argue that the papers submitted in support of plaintiffs application for a default judgment were defective. Defendants concede their inadvertent failure to raise the issue before Supreme Court, but assert that this Court should reach the merits of their argument and reverse the order in the interest of justice. CPLR 3215(e) provides, in pertinent part: HN2 On any application for judgment by default, the applicant shall file proof of service of the summons and complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316, and proof by affidavit made by the party of the facts constituting the claim, the default and the amount due. Where a verified complaint has been served it may be used [***4] as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or his attorney. This Court has held that HN3 a complaint verified by counsel amounts to no more than an attorneys affidavit and is therefore insufficient to support entry of judgment pursuant to CPLR 3215 ( Joosten v Gale, 129 AD2d 531, 534, 514 N.Y.S.2d 729; accord, Levi v Oberlander, 144 AD2d 546, 547, 535 N.Y.S.2d 958; Colonial Country Club v [*220] Village of Ellenville, 89 AD2d 935, 453 N.Y.S.2d 276). HN4 In the absence of either a verified complaint or an affidavit by the party, the entry of judgment by default is erroneous ( Gerhardt v J & R Salacqua Contr. Co., 181 AD2d 719, 581 N.Y.S.2d 227) and deemed a nullity ( Income Prop. Consultants v Lumat Realty Corp., 88 AD2d 582, 449 N.Y.S.2d 799, Georgia Pacific Corp. v Bailey, 77 AD2d 682, 429 N.Y.S.2d 787). Finally, while there is a strong preference in the law that matters be decided on the merits (see, J.R. Stevenson Corp. v Dormitory Auth., 112 AD2d 113, 492 N.Y.S.2d 385), defendants inattention to this matter controverts the statutory intent that litigation [***5] proceed expeditiously. ENTERED: December 30, 1993

HN4 In the absence of either a verified complaint or an affidavit by the party, the entry of judgment by default is erroneous. Judges: [***1] Ellerin, J.P., Kupferman, Rubin, Nardelli, JJ. Opinion [*218] [**161] Order of the Supreme Court, Bronx County (Hansel McGee, J.), entered September 17, 1992, which denied defendants motion to vacate the order of the same court and Justice, dated September 19, 1991, granting plaintiff a default judgment and setting the matter down for an inquest on damages, unanimously reversed, on the law, with costs, the motion granted and judgment vacated, on condition that defendants pay to plaintiffs the sum of $ 500 costs and answer the complaint within 20 days. In the event defendants shall fail to comply with the aforesaid conditions, plaintiff may proceed to inquest forthwith. The complaint is verified by plaintiffs attorney on the ground that plaintiffs resided outside the county of their attorneys practice. It asserts that plaintiff John Mullins tripped and fell on an open cellar gate in front of defendants premises, which constitute part of the res of a trust created under the last will and testament of Alexander DiLorenzo. Defendant trustees rented the property to Blue Apple Associates which, under the terms of the lease, assumed responsibility for the condition, operation and maintenance [***2] of the building, and covenanted to protect and indemnify the landlord from all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses arising out of the tenants omissions or negligence. [*219] [**162] In support of their motion to vacate the default judgment, defendants assert that two copies of the summons and complaint were received by their managing agent on two separate occasions and forwarded, respectively, to Blue Apple Associates and to Chera & Sons, assignees under the lease, with correspondence noting the obligation of the lessee to defend and indemnify the trust. No response was received to either communication. In denying their application, Supreme Court

JAMES SHANNON