C McCormack Inc. v 6 St. Nicholas LLC

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C McCormack Inc. v 6 St. Nicholas LLC 2011 NY Slip Op 33369(U) December 7, 2011 Supreme Court, Nassau County Docket Number: 011841-10 Judge: Timothy S. Driscoll Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT- STATE OF NEW YORK SHORT FORM ORDER Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court -------------------------------------------------------------------J( C McCORMACK INC., TRIAL/IAS PART: 20 NASSAU COUNTY IndeJ( No: 011841- Plaintiff Motion Seq. No: 3 -against- Submission Date: 10/17/11 6 ST NICHOLAS LLC, Defendant. -------------------------------------------------------------------J( Papers Read on this Motion: Order to Show Cause, Affirmation in Support and EJ(hibits.................. Affirmation in Opposition , Affidavit in Opposition and Exhibits............. This matter is before the cour September 7 , on the Order to Show Cause by Defendant fied 2011 and submitted October 17 2011. For the reasons set fort below, the Cour denies Defendant's motion. BACKGROUND A. Relief Sought Defendant 6 St Nicholas Terrace , LLC moves for an Order vacating the default judgment entered against Defendant. Plaintiff opposes Defendant's motion. B. The Paries ' History By decision dated June 1 2011 (" Prior Decision ), a copy of which is anexed to Defendant's Order to Show Cause , the Cour granted Plaintiffs motion for a default judgment Prior Motion ), awarded Plaintiff judgment against Defendant for the relief demanded in the Verified Complaint , and referred the matter to an inquest for the determination of damages. The Prior Decision is incorporated herein by reference. [* 2] As noted in the Prior Decision , the Complaint alleges that in or about August of 2004 Plaintiff entered into an agreement with Defendant to fuish all labor and materials necessar to convert and rehabilitate an existing eleven unt residential walk-up aparent building located at 6 St. Nicholas Terrace , New York , New York (" Premises ) to fifteen unts , for the estimated sum of $1 , 000 000. 00. Defendant performed certain tasks , including roof and boiler installations , that were originally contemplated to be performed by Plaintiff. Accordingly, the paries agreed to reduce the contract price to $900 000. 00. Plaintiff satisfied its obligations under the agreement by performing the necessar constrction work at the Premises , which led to the issuance of a certificate of occupancy allowing the occupancy of fifteen residential units at the Premises. Defendant acknowledged Plaintiff s performance on the work under the agreement by makng payments to Plaintiff during the constrction process. Defendant has made payments to Plaintiff in the sum of$721 341. 00 and , therefore , owes Plaintiff an additional $178 659. 00. In the Prior Decision , the Cour held that Plaintiff had demonstrated its right to judgment against Defendant by presenting proof of service of the sumons and complaint , and presenting an affidavit which set forth the facts constituting the claim and Defendant's default. The Cour concluded that Plaintiff had made out a prima facie Defendant by providing proof of the paries ' showing of a cause of action against agreement , Plaintiffs performance , and Defendant's breach of the agreement. The Cour awarded Plaintiff judgment against Defendant and referred the matter to an inquest for the determination of damages. The Cour also directed Plaintiff to serve Defendant with a copy of the Prior Decision , with Notice of Entr and a Notice oflnquest or a Note oflssue. In support of the instat motion , Maurce Enbar ("Enbar ), managing member of Defendant , affirms that on or about August of 2004 , Plaintiff entered into an agreement with Flatiron Real Estate for work at the Premises , not with Defendant as alleged in the Complaint. Enbar affrms fuher that this agreement was never executed by Plaintiff and Flatiron. Enbar also affirms inter alia that 1) Defendant did not receive Plaintiff s notice of motion dated in March of 2011; 2) Defendant was never served with the Notice of Inquest as directed in the Prior Decision; 3) even if Plaintiff did serve Defendant , Defendant would not have received the documents served because the entity " St Nicholas LLC" is a " non-existent entity" (Enbar Aff. in Supp. at 9) and 4) Defendant has a meritorious defense. In opposition , Joseph McCormack (" McCormack" ), the President of Plaintiff [* 3] Corporation , submits that Enbar is attempting to avoid Defendant's liability for work contracted by Defendant to be performed , and in fact performed by Plaintiff, at the Premises. McCormack affirms that 6 St. Nicholas Terrace is located on St. Nicholas Terrace at 127th Street in the County of New York. McCormack provides a copy of a deed (Ex. E to McCormack Aff. in Opp. ) which confirms that Defendant is the owner of the Premises. McCormack reaffrms his affrmations in support of the Prior Motion regarding the paries ' agreement and provides copies of the Work Permits and Renewals (McCormack Aff. in Opp. at Ex. F) issued to Plaintiff in connection with work it performed at the Premises. McCormack notes that Enbar has not denied that Plaintiff performed the work at issue but rather has " trie(d) to insinuate that work was performed at 127 St. Nicholas Terrace (id. at ~ 7). McCormack provides documentation from the New York City Deparment of Buildings website which confrms that 127 St. Nicholas Terrace does not exist as a valid address. McCormack provides a copy of a Construction Loan Gap Mortgage and Security Agreement for the Premises taen out by 6 St. Nicholas Terrace , LLC in March of 2004 (Ex. H to McCormack Aff. in Opp. ). The first page of that document lists Enbar as a Guarantor. The mortgage was given by Hudson Valley Ban (" Ban") which required an inspection of the Premises before it would release fuds to Defendant. McCormack provides copies of field reports (id. at Exs. I , J , K and L) issued by the Ban' s inspector and forwarded to the Ban well as the paries. Those field reports confrmed the work completed at the Premises and authorized distribution of fuds. McCormack directs the Cour' s attention to Exhibits J and K which contain McCormack' s signature on a Waiver of Lien required by the Ban before the Ban would make payments to Plaintiff for work performed at the Premises. McCormack affirms that the payments authorized in the field reports are reflected in Exhibit M to his affidavit , which is a sumar of all payments for which Defendant was given credit. Plaintiff provided the sumar to Defendant at a meeting, prior to the filing of this action , in an effort to resolve the parties ' dispute short of litigation. The summar was introduced at the damages inquest (" Inquest" ) ordered by the Cour in the Prior Decision. Plaintiff also introduced checks at the Inquest (Ex. N to McCormack Aff. in Opp. ), several of which were written on the account of" 6 St. Nicholas Terrace , LLC. " Those checks are signed by Enbar and relate to the work that is the subject of this litigation. McCormack submits that Defendant " is attempting to throw up a smokescreen (McCormack Aff. in Opp. at ~ 13) to avoid making payments for work performed by Plaintiff at [* 4] Defendant' s request. McCormack contends , fuer, that Defendant has failed to provide an excuse for its default or meritorious defense , and failed to rebut Plaintiff s claim of damages as presented at the Inquest. Counsel for Plaintiff affrms that the Sumons and Complaint were served on Defendant pursuat to Limited Liability Company Law 303 , by delivery of duplicate copies to the Secreta State along with payment of the appropriate fiing service in support (Graber Aff. in Opp. at Ex. B). his afdavit in support , fee , and provides an affdavit of Plaintiffs counsel notes that Defendant, in does not deny receiving the Sumons and Complaint. Moreover Defendant does not contend that the address on fie with the Secretar of State is incorrect. In addition, Defendant does not provide an explanation for its failure to file a timely answer to the Complaint , and does not establish a meritorious defense. Finally, Plaintiff s counsel notes that Defendant makes no mention of the fact that Defendant appeared at the Inquest and defended the damages portion of Plaintiffs C. The Paries ' claim before the Special Referee. Positions Defendant submits that the Cour should vacate the Prior Decision, which awarded Plaintiff a default judgment against Defendant , on the grounds inter alia that 1) Defendant did not receive the Prior Motion;2) Defendant was not served with the Notice oflnquest; 3) the entity named as Defendant does not exist; and 4) Defendant has a meritorious defense. Plaintiff opposes Defendant' s motion , submitting that Plaintiff has demonstrated its right to judgment , and Defendant has failed to provide an excuse for its default or a meritorious defense. RULING OF THE COURT Vacatu of Default Judgment par seeking to vacate an order entered upon his default is required to demonstrate through the submission of supporting facts in evidentiar form , both a reasonable excuse for the default and the existence of a meritorious cause of action or defense. White v. Incorp. Vilage of Hempstead 41 AD. 3d 709 , 710 (2d Dept. 2007). B. Service of Process In Trini Realty Corp. v. Fulton Center LLC 53 AD.3d 479 (2d Dept. 2008), which involved plaintiffs motion for a default judgment pursuant to CPLR 3215 , the Second Deparment held that plaintiff s presentation of a process server s affidavit was suffcient to create a presumption that service on the defendant was effected by delivery of the summons and [* 5] complaint to the Secretar of State. Engel Law ~ 303(a); Fund v. v. Id. citing, Lichterman 62 N. Y.2d inter alia CPLR ~ 311-a(a); Limited Liability 943 , 944- 945 (1984); Ins. Commissioners of State Nobre, Inc. 29 AD. 3d 511 (2d Dept. 2006). The defendant opposed plaintiffs motion contending that it did not receive notice of the sumons in time to defend , and that it had a meritorious defense. The Second Deparment affirmed the trial cour' s Order granting Id. plaintiffs motion , noting that the defendant did not contend that the address on file with the Secretar of State was incorrect , and reaffirming the principle that mere denial of receipt of the sumons and complaint was insufficient to rebut the presumption of proper service created by the affdavit of service. C. Id. at 479- 480. Application of these Principles to the Instat Action The Cour denies Defendant' s motion , based on the Cour' s conclusion that Defendant has not provided a reasonable excuse for its default or a meritorious defense. In the Prior Decision , the Cour held that Plaintiff had demonstrated its right to judgment against Defendant by presenting proof of service of the sumons and complaint , and presenting the McCormack affidavit which set fort the facts constituting the claim and Defendant's default. Defendant has provided no explanation for its failure to answer the Complaint or respond to the Prior Motion. Moreover, Defendant's conclusory assertion that it has a meritorious defense is insufficient to warant a vacatur of the Prior Decision. In light of the foregoing, the Cour denies Defendant's motion and grants Plaintiff s application to submit to the Special Referee a proposed judgment on notice , as directed by the Special Referee. All matters not decided herein are hereby denied. This constitutes the decision and order of the Cour. ENTER DATED: Mineola, NY December 7 2011 HON. TIMOTHY RISCOLI/ J.S. ENTERED DEC 13 2011 NASSAU COUNTY C8V CLIRK' OFFtCE

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