Balta v Graner 2024 NY Slip Op 51273(U) Decided on August 28, 2024
Supreme Court, Kings County Rivera, J.
An attorney is hired to litigate a fire case. He files a Summons with Notice and then fails to serve a complaint when it is demanded. A motion to dismiss is granted on default. Opposition to the motion is late and several motions to vacate are denied.
A legal malpractice case is started. The Defendant appears pro-se. Is there insurance?
“Here, the defendant filed a notice of appearance on October 31, 2023 and on November 1, 2023. The defendant, however, neither interposed an answer to the complaint nor made a motion to dismiss the complaint. Consequently, the defendant waived any claim to lack of [*4]personal jurisdiction and the plaintiff is not required to prove service of the commencement papers upon the defendant.
To obtain a default judgment under these circumstances, the plaintiff must still file proof of the facts constituting the claim, the default, and the amount due by an affidavit made by the plaintiff. To demonstrate facts constituting the claim, the movant need only proffer proof sufficient to enable a court to determine that a viable cause of action exists (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]). The movant may do so either by submission of an affidavit of merit or by verified complaint, if one has been properly served (see id. at 70; see CPLR 3215 [f]).
Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due (see CPLR 105 [u]). The complaint in the instant action was not verified and therefore may not serve as an affidavit of the facts constituting the claim.
On April 11, 2024, plaintiff Yusuf Balta filed an affirmation setting forth the merits of plaintiffs’ claim. The affirmation of merit set forth a viable claim against the defendant for legal malpractice. Moreover, “[a] defaulting defendant ‘admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages’” (Commonwealth Land Title Ins. Co. v Islam, 220 AD3d 739, 741 [2d Dept 2023], quoting Castaldini v Walsh, 186 AD3d 1193, 1194 [2d Dept 2020], quoting Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]). Plaintiffs’ motion papers established their entitlement to a default judgment against the defendant on the issue of liability on their claim for legal malpractice.
“Once the plaintiff has made such a showing, the defendant, in order to avoid entry of a default judgment, must show either that there was no default, or that [the defendant] has a reasonable excuse for its delay and a potentially meritorious defense” (Hersko v Hersko, 224 AD3d 810, 812 [2d Dept 2024], quoting Pemberton v Montoya, 216 AD3d 988, 989 [2d Dept 2023]). “The determination as to whether an excuse is reasonable is committed to the sound discretion of the motion court” (Hersko, 224 AD3d at 812, quoting Deutsche Bank Natl. Trust Co. v Allenstein, 201 AD3d 783, 786 [2d Dept 2022].”
“The defendant’s opposition papers did not provide an excuse or an explanation for not interposing an answer to the complaint. Defendant has argued that plaintiffs improperly served the commencement papers and therefore defendant is not in default. That argument was rendered meritless by the defendant’s filing of a notice of appearance (Ming Xue Xir v 422 Sunshine Ct., LLC, 227 AD3d 980, 982 [2d Dept 2024]). The defendant also made a vague and unsubstantiated claim of illness. However, the defendant’s claim of illness was not offered as an explanation for not answering the complaint. Thus, it is unnecessary to consider whether the defendant sufficiently demonstrated the existence of a potentially meritorious defense to the action (HSBC Bank USA, N.A. v. Daniels, 163 AD3d 639, 640-641 [2d Dept 2018]). The plaintiffs’ motion is granted, and the plaintiffs may continue to prosecute their claim on the issue of damages.”