        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

402
CA 14-01496
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ.


JEFFREY P. CARY, INDIVIDUALLY AND AS FATHER OF
JOAN CARY, AN INFANT, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MICHAEL A. CIMINO AND DOMINICK F. CIMINO,
DEFENDANTS-APPELLANTS.


MCCABE, COLLINS, MCGEOUGH & FOWLER, LLP, CARLE PLACE (TAMARA M.
HARBOLD OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

SCHIANO LAW OFFICE, P.C., ROCHESTER (CHARLES A. SCHIANO, JR., OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered May 5, 2014. The order, inter alia,
granted the motion of plaintiff for a default judgment and denied the
motion of defendants to compel plaintiff to accept service of their
answer.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, plaintiff’s motion is
denied, defendants’ motion to compel plaintiff to accept service of
the answer is granted, and plaintiff is directed to accept service of
the answer dated January 17, 2014.

     Memorandum: Plaintiff, individually and on behalf of his
daughter, commenced this action seeking damages for injuries his
daughter sustained in an incident involving a vehicle operated by
Michael A. Cimino (defendant) and owned by defendant Dominick F.
Cimino. Plaintiff’s daughter was standing on the sidewalk selling
either cigarettes or marihuana to defendant in the vehicle, and was
dragged alongside the vehicle when defendant drove forward during the
transaction. Defendant pleaded guilty to reckless assault in the
second degree in connection with the incident. As relevant to this
appeal, plaintiff moved for a default judgment upon defendants’
failure to serve a timely answer, and defendants moved to compel
plaintiff to accept service of their answer. We conclude that Supreme
Court abused its discretion in granting plaintiff’s motion and denying
defendants’ motion, and we therefore reverse.

     We agree with defendants that plaintiff failed to establish his
entitlement to a default judgment. Plaintiff’s submissions in support
of his motion included, inter alia, his own affidavit and the
                                 -2-                           402
                                                         CA 14-01496

complaint, but his affidavit did not demonstrate personal knowledge of
the incident, and the complaint was not verified. We therefore
conclude that plaintiff failed to submit adequate “proof of the facts
constituting the claim” (CPLR 3215 [f]; see Williams v North Shore LIJ
Health Sys., 119 AD3d 937, 938; Atlantic Cas. Ins. Co. v RJNJ Servs.,
Inc., 89 AD3d 649, 651; see generally Woodson v Mendon Leasing Corp.,
100 NY2d 62, 70-71). We note that the affidavit of plaintiff’s
daughter, which was submitted with reply papers that also opposed a
cross motion by defendants, could not be properly used to remedy the
deficiencies in plaintiff’s initial submissions (see Pittsford Plaza
Co. LP v TLC W., LLC, 45 AD3d 1272, 1274; see also Givan v Makin, 115
AD3d 1224, 1224; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d
353, 355).

     Moreover, even assuming, arguendo, that plaintiff made a prima
facie showing of entitlement to a default judgment, we agree with
defendants that the court abused its discretion in granting
plaintiff’s motion and denying their motion. Defendants established a
reasonable excuse for their default, which resulted from “the
inadvertence of [their] liability insurer” (Accetta v Simmons, 108
AD3d 1096, 1097; see Hayes v Maher & Son, 303 AD2d 1018, 1018;
Abramovich v Harris, 227 AD2d 1000, 1000), and further established the
existence of a meritorious comparative negligence defense (see Steve
Marchionda & Assoc. v Maximum Express Delivery, 213 AD2d 1071, 1071-
1072; see also Strychalski v Dailey, 65 AD3d 546, 547; Captain v
Hamilton, 178 AD2d 938, 939). “[G]iven the brief overall delay, the
promptness with which defendant[s] [responded to plaintiff’s motion],
the lack of any intention on defendant[s’] part to abandon the action,
plaintiff[’s] failure to demonstrate any prejudice attributable to the
delay, and the preference for resolving disputes on the merits”
(Davidson v Straight Line Contrs., Inc., 75 AD3d 1143, 1144-1145), we
conclude that defendants have established entitlement to their
requested relief.




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
