CPLR § 3215

CPLR § 3215 Default judgment

Lancer Ins. Co. v Whitfield, 2009 NY Slip Op 02975 (App. Div., 2nd, 2009)

The Whitfield defendants did not interpose an answer in the instant
action, and by order of the Supreme Court, Nassau County (Feinman, J.),
dated November 5, 2007, the court granted that branch of a prior motion
of the plaintiff which was pursuant to CPLR 3215 for a default judgment
against them. By defaulting, the Whitfield defendants admitted the
allegations in the instant complaint and all reasonable inferences
therefrom, to wit, that the driver had borrowed the subject vehicle "to
visit friends in North Babylon, and was on his way home when the
accident occurred" and that at the time of the accident, he "was not
operating the [subject vehicle] in furtherance of the garage business"
(see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; Matter of Gupta, 38 AD3d 445, 446; Lamm v Stevenson, 276 AD2d 531; Fleet Bank v Powerhouse Trading Corp., 267 AD2d 276, 277; see also Hermitage Ins. Co. v Trance Nite Club, Inc., 40 AD3d 1032; Silberstein v Presbyterian Hosp. in City of N.Y., 96
AD2d 1096). Based on the foregoing, the plaintiff established, prima
facie, that the accident was not covered by the subject policy which
requires it to pay damages for bodily injury caused by an accident and
resulting from "garage operations" involving the ownership, maintenance
or use of a covered auto (see Singh v Allcity Ins. Co., 1 AD3d 501; Empire Group Allcity Ins. Co. v Cicciaro, 240 AD2d 362, 363; Dumblewski v ITT Hartford Ins. Group, 213 AD2d 823).

Since the plaintiff, as movant, demonstrated its prima facie
entitlement to summary judgment, the burden shifted to the respondents,
as opponents of the motion, to provide evidence, in proper admissible
form, sufficient to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49
NY2d 557, 562). The respondents failed to meet their burden since their
opposing papers consisted solely of the affirmation of counsel in which
hearsay statements of the Whitfield defendants were proffered to defeat
the motion (see Zuckerman v City of New York, 49 NY2d 557, 562; Collins v Laro Serv. Sys. of N.Y., Inc., 36 AD3d 746, 746-747; Salzano v Korba, 296 AD2d 393, 395; Heifets v Lefkowitz, 271 AD2d 490, 491; cf. Municipal Testing Lab., Inc. v Brom, 38 AD3d 862; Mazzola v City of New York, 32 AD3d 906; Orelli v Showbiz Pizza Time, 302 AD2d 440, 441; Ritts v Teslenko, 276 AD2d 768, 769; Dan's Supreme Supermarkets v Redmont Realty Co., 261 AD2d 353, 354; Lukin v Bruce, 256 AD2d 388, 389; Gomes v Courtesy Bus Co., 251 AD2d 625, 626).

The bold is mine.

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