De Oca v Cerina Gen. Contr., Inc.
Annotate this CaseDecided on January 25, 2012
Supreme Court, Kings County
Carmen Montes De Oca, Plaintiffs,
against
Cerina General Contracting, Inc., BERGEN HEIGHTS LLC, CEPRINE CONSTRUCTION, INC., and KAM CHEUNG CONSTRUCTION, INC., Defendants.
5810/10
Counsel for Plaintiff
Jordan Rutsky, Esq.
Trief & Olk
150 East 58th Street
34th floor
New York, New York 10155
212-486-6060
Counsel for defendant Kam Cheung Construction, Inc.
Rubin, Fiorella & Friedman LLP
292 Madison Avenue 11th Floor
New York, New York 10017
212-953-2381
Bergen Heights LLC has not appeared in the action
Francois A. Rivera, J.
By notice of motion filed on September 30, 2011 plaintiff has moved under motion sequence number six for leave to enter a default judgment against defendant Bergen Heights LLC pursuant to CPLR 3215. No defendant has opposed the motion.
BACKGROUND
On March 9, 2010, plaintiff commenced the instant action by filing a summons and complaint with the Kings County Clerk's office. On June 6, 2011, the plaintiff filed a summons and amended verified complaint. On June 9, 2011, plaintiff served the summons and amended verified complaint on Bergen Heights LLC.
The amended verified complaint alleges the following salient facts in support of four causes of action for violations of Labor Law §§§ 200, 240(1), 241(6) and common law negligence. On December 18, 2008, plaintiff was injured while performing construction [*2]work at 659 Bergen Street, Brooklyn, New York when he fell through an unsupported piece of plywood placed over an open stairwell. At the time of the accident, Cerina General Contracting, Inc., Ceprine Construction, Inc., and Kam Cheung Construction, Inc. were working at the job site as general contractors.
Defendant Bergen Heights LLC, is mentioned only once in paragraph three of the amended complaint. Paragraph three states "Defendant Bergen Heights LLC is a corporation organized under the laws of New York State with its principal place of business in the County of Brooklyn, New York".
MOTION PAPERS
Plaintiff's motion papers consist of a notice of motion, an attorney's affirmation and five exhibits labeled A through E. Exhibit A consists of ten pages of the unsigned and uncertified deposition transcripts of Carmen Montes de Oca. The testimony begins on the third page of the exhibit, numbered page sixteen and ends with the tenth page of the exhibit numbered as page eighty-five of the transcript.Exhibit B consists of a deed and various recording instruments evidencing Bergen Heights LLC's purchase in 2006 of the real property located at 659 Bergen Street, Brooklyn, New York. Exhibit C consists of the summons and amended verified complaint. Exhibit D consists of affidavits of service and certified mail receipts evidencing plaintiff's service of the pleadings upon Bergen Heights LLC. Exhibit E is a copy of the New York State Department of State filing which shows that Bergen Heights LLC is a domestic limited liability company.
LAW AND APPLICATION
Limited Liability Law § 303 governs service of process on limited liability companies, and directs as follows:
(a) Service of process on the secretary of state as agent of a domestic limited liability company or authorized foreign limited liability company shall be made by personally delivering to and leaving with the secretary of state or his or her deputy, or with any person authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany, duplicate copies of such process together with the statutory fee, which fee shall be a taxable disbursement. Service of process on such limited liability company shall be complete when the secretary of state is so served. The secretary of state shall promptly send one of such copies by certified mail, return receipt requested, to such limited liability company at the post office address on file in the department of state specified for that purpose. (b) Nothing in this section shall limit or affect the right to serve any process required or permitted by law to be served upon a limited liability company in any other manner now or hereafter permitted by law or applicable rules of procedure.
CPLR 3215 provides in pertinent part as follows: (a) Default and entry. When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him.
[*3]...
(f) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint ... and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party ... Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney.
On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party's default in answering or appearing ( see CPLR 3215(f); Atlantic Cas. Ins. Co. v. RJNJ Services, Inc., 89 AD3d 649, 651 [2d 2011]). CPLR 3215(f) states specifically, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim are to be set forth in an affidavit made by the party (HSBC Bank USA, N.A. v. Betts, 67 AD3d 735, 736 [2d 2009]).
Plaintiff's annexed affidavit of service evidences proper service of the pleadings upon Bergen Heights LLC pursuant to Limited Liability Law § 303.
The amended complaint is verified by plaintiff's attorney pursuant to CPLR 3020(d). However, the complaint does not demonstrate the attorney's personal knowledge of the underlying facts supporting the claim. The complaint may not be used pursuant to
CPLR 105(u) in lieu of an affidavit of the plaintiff to prove the facts of plaintiff's underlying personal injury claim. The attorney's affirmation in support of the motion does not demonstrate personal knowledge of the underlying facts of the complaint. However, it does show the attorney's personal knowledge of the service of pleadings and of Bergen Heights LLC's default in appearing or answering the amended complaint.
It is noted that the amended verified complaint makes but a single allegation against Bergen Heights LLC, namely, that it is a corporation duly organized under the laws of the State of New York, having a principal place of business in the county of Brooklyn.
The plaintiff annexed excerpts of her deposition transcript. However, the exhibit is neither signed by the plaintiff nor certified as accurate by the reporter. They are, therefore, not in admissible form and will not be considered as evidence in support of motion (see, Matter of Delgatto, 82 AD3d 1230, 1231 [2d 2011] citing Martinez v. 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902, [2d 2008]). Plaintiff has not provided affidavits or other admissible evidence attesting to the facts of her claim (cf. Maida v. Lessing's Restaurant Services, Inc., 80 AD3d 732, 733 [2d 2011]).
Accordingly, plaintiff's motion for leave to enter a default judgment against Bergen Heights LLC pursuant to CPLR 3215 is denied.
The foregoing constitutes the decision and order of this court.
[*4]Enter:________________________
J.S.C.
Enter Forthwith:_________________________
J.S.C.
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