Drake v. Drake

Jul 29, 2002
Versions:296 A.D.2d 566
745 N.Y.S.2d 712
2002 N.Y. App. Div. LEXIS 7755

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Garry, J.), dated March 5, 2002, which denied her motion for leave to enter a judgment against the defendant upon his failure to appear or answer, and granted the defendant’s cross application to compel her to accept the answer.

Ordered that the order is affirmed, with costs.

In support of her motion for leave to enter a judgment against the defendant upon his failure to appear or answer, the plaintiff failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts (see CPLR 3215 [f]; Parratta v McAllister, 283 AD2d 625; Fiorino v Yung Poon Yung, 281 AD2d 513; Grainger v Wright, 214: AD2d 549; Finnegan v Sheahan, 269 AD2d 491). Accordingly, the motion was properly denied. We have not considered the affidavit which was improperly submitted by the plaintiff in her reply papers on the motion (see Wright v Cetek Tech., 289 AD2d 569; Parratta v McAllister, supra; Medugno v City of Glen Cove, 279 AD2d 510).

Furthermore, the Supreme Court providently exercised its discretion in granting the defendant’s cross application to compel the plaintiff to accept the answer, which was untimely served (see CPLR 2004, 3012 [d]). Considering the absence of prejudice to the plaintiff, the meritorious nature of the defense, and the public policy in favor of resolving cases on the merits, we agree that the delay in serving the answer should be excused (see Calcagno v Magistrelli, 284 AD2d 289; Kaiser v Delaney, 255 AD2d 362; Van Man Adhesives Corp. v City of New York, 236 AD2d 465).

The plaintiff’s remaining contentions are improperly raised for the first time in her reply brief (see Berkey v Emma, 291 AD2d 517; Morgan v New York City Hous. Auth., 255 AD2d 565). Santucci, J.P., Smith, Krausman, H. Miller and Adams, JJ., concur.