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AUGUSTO FRANCISCO, Plaintiff-Respondent, v. OSCAR SOTO, ET AL., Defendants-Appellants.

The motion court erred when, without any elaboration, it entered judgment by default against defendants as plaintiff, in support of his motion, failed to submit a verified complaint, or an affidavit executed by a party with personal knowledge of the merits of plaintiff's claims. Accordingly, the judgment is a nullity (CPLR 3215[f]; Wolf v. 3540 Rochambeau Assocs., 234 A.D.2d 6; Feffer v. Malpeso, 210 A.D.2d 60;Income Prop. Consultants v. Lumat Rlty. Corp., 88 A.D.2d 582), and we further find that the foregoing could not be cured by testimony at the inquest on the issue of damages (Wolf v. 3540 Rochambeau Assocs., supra, at 7; Gerhardt v. JR Salacqua Contr. Co., 181 A.D.2d 719, 720).

We impose costs upon defendants, however, as the result of their failure to timely answer the complaint and their delay in moving to vacate the default judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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FRANCISCO v. SOTO
(Sep 6, 2001)