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Okeke v. Ewool

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


October 27, 2009

EMMANUEL OKEKE, APPELLANT,
v.
WALDRINE EWOOL, ET AL., DEFENDANTS.

In an action, inter alia, to recover damages for unlawful eviction, conversion, and intentional infliction of emotional distress, the plaintiff appeals from an order of the Supreme Court, Richmond County (McMahon, J.), dated September 23, 2008, which denied his unopposed motion pursuant to CPLR 3215 for leave to enter judgment against the defendants on the issue of liability upon their defaults in appearing or answering the complaint and to set the matter down for an inquest on the issue of damages.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., HOWARD MILLER, RUTH C. BALKIN, JOHN M. LEVENTHAL and L. PRISCILLA HALL, JJ.

(Index No. 103116/07)

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs payable by the defendants, and the plaintiff's motion for leave to enter judgment against the defendants on the issue of liability upon their defaults in appearing or answering the complaint and to set the matter down for an inquest on the issue of damages is granted.

In support of his unopposed motion pursuant to CPLR 3215, the plaintiff submitted proof of service of copies of the summons and the complaint upon the defendants, of the facts constituting the claim, and of the defendants' defaults in appearing or answering the complaint (see CPLR 3215[f]; Levine v Forgotson's Cent. Auto & Elec., Inc., 41 AD3d 552, 553; 599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726; Lipp v Port Auth. of N.Y. & N.J., 34 AD3d 649). There is no evidence in the record that the defendants made timely appearances or answered the complaint. Accordingly, the plaintiff's unopposed motion for leave to enter judgment against the defendants on the issue of liability upon their defaults in appearing or answering the complaint and to set the matter down for an inquest on the issue of damages should have been granted.

RIVERA, J.P., MILLER, BALKIN, LEVENTHAL and HALL, JJ., concur.

20091027

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