CPLR § 3215 Default judgment

(f) Proof

CPLR R 306 Proof of service

(a) Generally

Jian Zheng v Evans, 2009 NY Slip Op 04863 (App. Div., 2nd, 2009)

In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs produced only an attorney's affirmation offering speculation, unsupported by any evidence, that the defendants acted in bad faith and failed to abide by the terms of the contract of sale (see Cordova v Vinueza, 20 AD3d 445). Moreover, the plaintiffs' contention that the granting of summary judgment was premature is without merit. The plaintiffs failed to "show more than a mere hope that [they] might be able to uncover some evidence during the discovery process," nor did they show that their "ignorance was unavoidable and that reasonable attempts were made to discover the facts which would give rise to a triable issue of fact" (Companion Life Ins. Co. of N.Y. v All State Abstract Corp., 35 AD3d 519, 521). [*2]

The Supreme Court also properly granted that branch of the defendants' motion which was for leave to enter a default judgment on their counterclaim for the return of their down payment upon the plaintiffs' failure to serve a reply to the counterclaim. The defendants submitted proof of service of their verified answer and counterclaim, proof of the facts constituting the counterclaim, and an affirmation from their attorney regarding the plaintiffs' default in serving a reply (see CPLR 3215[f]). In opposition, the plaintiffs failed to demonstrate that they served a reply on the defendants. Although they annexed a reply to their attorney's affirmation, it was not signed and they did not provide sufficient evidence of service (see CPLR 306[a], [d]; Celleri v Pabon, 299 AD2d 385, 385-86; cf. Dixon v Motor Veh Acc. Indem. Corp., 224 AD2d 382, 383-384). Moreover, the plaintiffs did not provide a reasonable excuse for their failure to timely serve a reply, and a potentially meritorious defense (see ACME ANC Corp. v Read, 55 AD3d 854, 855; Twersky v Kasaks, 24 AD3d 657, 658; cf. MMG Design, Inc. v Melnick, 35 AD3d 823).

The bold is mine.