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THE ALLEGATIONS IN THE VERIFIED COMPLAINT IN THIS SLIP AND FALL CASE WERE SUFFICIENT TO SUPPORT PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT; THE DEFENDANT’S FAILURE TO ANSWER IS DEEMED TO BE AN ADMISSION TO THE ALLEGATIONS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for a default judgment based upon the allegations in the verified complaint should have been granted:

A party seeking a default judgment must submit proof of service of the summons and the complaint and “proof of the facts constituting the claim, the default and the amount due” (CPLR 3215[f] …). 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” … . The movant may do so either by submission of an affidavit of merit or by verified complaint, if one has been properly served … .

Here, contrary to the court’s conclusion, plaintiffs established the facts constituting their claim. Their verified complaint alleges that plaintiff Maria Bigio was walking in front of defendant’s property when she tripped and fell on a defective sidewalk condition, sustaining injuries, and plaintiff stated in her verification that these allegations were true to her own personal knowledge. Because defendant, by defaulting, is deemed to have admitted “all traversable allegations in the complaint, including the basic allegation[] of liability,” the allegations were sufficient to enable the court to determine that a viable negligence cause of action existed … . Bigio v Gooding, 2023 NY Slip Op 00806, First Dept 2-14-23

Practice Point: Here in this slip and fall case the allegations in the verified complaint were sufficient to grant plaintiff’s motion for a default judgment. The failure to answer is deemed an admission to the allegations in the complaint.

 

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