RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED ON THE REVIEW OF THIS ORDER TO SHOW CAUSE TO VACATE THE DEFAULT JUDGMENT. PAPERS NUMBERED ORDER TO SHOW CAUSE AND ANNEXED AFFIDAVITS 1 AFFIRMATION IN OPPOSITION 2 DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER ON THIS MOTION IS AS FOLLOWS: Plaintiff, EZ Triboro Services, Inc., as assignee of Julitza Rivera, commenced this action against Defendant, State Farm Fire & Casualty Company, for breach of contract on October 11, 2018. On January 28, 2019, The Clerk of the Court granted Plaintiff’s ex parte application for a default judgment in the amount of $5,231.12. Pursuant to Civil Practice Law and Rules §5015, on August 6, 2019, Defendant motioned the Court via Order to Show Cause (OSC) to vacate its default in answering the Summons and Complaint, alleging law office failure and an improper grant of the default judgment, inter alia. Plaintiff served the unverified summons and complaint on the New York State Department of Financial Services (NYSDFS) on November 28, 2018, which NYSDFS acknowledged and forwarded to Defendant on or about December 19, 2018. On January 29, 2019, Defendant served its answer on Plaintiff and filed same with the Court on January 31, 2019. Defendant, in support of its OSC, averred by attorney affirmation it improperly calendared the date the answer was due and its delay in answering was de minimis. Defendant also submitted several affidavits supporting Defendant’s attorney’s OSC to vacate the default and affidavits setting forth a meritorious defense in that Plaintiff’s claims for payment were properly denied based upon Plaintiff’s material representation — obtaining the policy under an address listed in Wappinger, New York while maintaining a driver’s license in Bronx, New York as detailed in the accident report. Additionally, Defendant alleged Plaintiff failed to appear at properly noticed and scheduled examinations under oath in breach of a condition precedent to coverage. Pursuant to CPLR 5015, this Court finds Defendant proffered a reasonable excuse for its default and submitted facts supporting a meritorious defense to the action. Additionally, Defendant promptly moved the Court to vacate its default upon Defendant’s knowledge of the default judgment. Thus, Defendant’s failure to answer the complaint within two weeks of its due date was excusable (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; Sound Shore Med. Ctr. v. Lumbermens Mut. Cas Co., 31 AD3d 743 [2d Dept 2006]; Perez v. Travco Ins. Co., 44 AD3d 138 [2d Dept 2007]; Allstate Ins. Co. v. Progressive Cas. Ins. Co., 20 Misc3d 139 [A], 867 NYS2d 372 [Table] [App Term 2d & 11th Jud Dists 2008]). Moreover, Defendant’s moving papers support vacatur of the default judgment based on law office failure as (1) the default was not lengthy, (2) Defendant showed it did not intend to abandon the action, (3) Plaintiff did not suffer prejudice, (4) Defendant’s delay was brief, and (5) the delay was not willful (Henry v. Kuveke, 9 AD3d 476, 479, 781 NYS2d 114 [2d Dept 2004]). Finally, for Plaintiff to a secure binding default judgment it was incumbent upon Plaintiff to comply with New York City Civil Court Act §1402 and CPLR 3215. Plaintiff failed to comply with CPLR 3215 (f) in that Plaintiff did not provide an affidavit of facts from one with personal knowledge to substantiate its monies claimed (Balance Chiropractic, P.C. v. Property & Cas. Ins. Co. of Hartford, 2010 27 Misc 3d 138 [A], 911 NYS2d 691 [Table] [App Term 2d, 11th, & 13th Jud Dists 2010]). Plaintiff submitted an unverified summons and complaint executed by Plaintiff’s attorney without any affirmation of personal knowledge of the alleged facts subscribed to be true under the penalties of perjury, contrary to Plaintiff’s attorney obligations pursuant to CPLR 2106. Thus, Plaintiff’s complaint is improperly verified and does not serve as sufficient proof of the facts to substantiate the amount due for a sum certain required for the Clerk of the Court to grant an ex parte default judgment (Ventrudo v. Geico Ins. Co., 37 Misc3d 137 [A], 964 NYS2d 63 [App Term 2d, 11th, & 13th Jud Dists 2012]). Plaintiff also failed to comply with CPLR 3215 (g) (4) notice provisions. Its papers do not contain any notice proofs it submitted to the Clerk of the Court to secure its entry of the default judgment and notice Defendant of same. Based upon the forgoing and in the best interest of justice it is within this Court’s discretion to grant Defendant’s Order to Show Cause (see Ladd v. Stevenson, 112 NY 325, 332, 19 NE 842 [1889]; Vanderbilt v. Schreyer, 81 NY 646 [1880]; Jenkins v. Putnam, 106 NY 272 [1881]). Accordingly, IT IS ORDERED, Defendant’s Order to Show Cause is granted in its entirety. Dated: February 14, 2020
