Roberts v. Jacob

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Belen, J.), dated December 15, 1999, which granted the defendants’ motion, in effect, to vacate a judgment of the same court, entered November 19, 1998, upon their failure to appear or answer. Ordered that the order is reversed, on the law, with costs, the motion is denied, and the judgment entered November 19, 1998, is reinstated. The plaintiff’s motion to be granted a judgment upon the defendants’ failure to appear or answer was not supported by an affidavit of the facts or a copy of the complaint verified by the plaintiff. Contrary to the defendants’ contention, the failure to submit such evidence “went, at most, only to a procedural element of [the] plaintiff’s right to enter a default judgment” and, thus, the judgment entered upon the defendants’ default was not a nullity (Freccia v Canillo, 93 AD2d 281, 289; see also, Bass v Wexler, 277 AD2d 266). Furthermore, the defendants failed to offer a reasonable excuse for their default (see, CPLR 5015 [a] [1]; Bass v Wexler, supra). Accordingly, the Supreme Court improperly granted the defendants’ motion, in effect, to vacate the judgment entered upon their failure to appear or answer. O’Brien, J. P., Sullivan, Krausman, Goldstein and Schmidt, JJ., concur.