De Lage Landen Fin. Servs., Inc. v Kozupsky & Lebowitz, LLP

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De Lage Landen Fin. Servs., Inc. v Kozupsky & Lebowitz, LLP 2012 NY Slip Op 30325(U) February 6, 2012 Supreme Court, New York County Docket Number: 112166/10 Judge: Judith J. Gische 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. lNED ON 21912012 [* 1] -I.' I' Index Number : 11216812010 DE LAGE IANDEN FINANCIAL vs. KOZUPSKYL LEBOWITZ LLP SEQUENCE NUMBER : M n " " . . I 1 [* 2] 8UPRsME COURT OF THE STATI OF NEW YORK COUNlT Or NEW YORKI P R 10 A T ---X I - DECIWONIORDER Index No.: Seq No.: DEh Q E LANDEN FINANCIAL SERVICES, INC., 112186llQ 002 Plaintiff, PRESENT: -against- Hon, Jm Gischa J. J.S.C. KOZUPW & LEBOWIV, LLP fnda Kozupsm &ASSOCIATES, LLP. Defendant. Recitation, as mquimd by CPLR 2219 [a], of fhe papers considered In the revlew of this (&me) motion(s): Papers - Numbered PWs n/m w/ JET afflrm, exhs . . . . . . . . . . . . . . . . . . .F ¬B.Qs?II!Z.. . . . . . . . . . . 1 AOS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I C-UNN CLERK'S OFFICE Upon the ibmgoing papers, the Declslon and Oraler of the coutt i as ,fOlbws: s This is an action to enforce a money judgment entered against Defendant, Kotupsky d Lebowb, LLP f#al Kozupsky & Associates, LLP ("Defendant").Presently before the court I s 8 motion by PlaintHT, De Lag& Landen Financial Services, he. ("PfaintiW")for entry of a default judgment against Defendant pursuant to CPLR § 3215. A prior motion for the same relief was denied by the court, without prejudice, to renew upon proper service whhln 90 d a p from date of entry. Said motlan order wa8 decided In the court's decision dated April 15, 2011, and entered on April 19, 2011 ("prior order"). The motion at bar has been submitted to this court unopposed, and consequently, R will be decided on defauk Page 1 of 7 - [* 3] In the court s prlor order, Plairttii 88 granted pentlbion to re w its motion within 90 days from the date of entry of the prlor order. Plalnttffa time to properly wrve the defendant was afso extended, Thus, to comply with the prior order, PlainM should have re-served the defendant and filed its motion to renew on o before July 18, 201I. r Plaintiff, however, filed the current motion with the court on October 28,2011, which is approximately three (3) months after the deadline imposed by the court. Plaintiff asserts that b failure to timely re-move fs attributabk to law ofRa failure and should be emrid. Under &In dreumatancea, law offlce failure provide8 B reasonable excuse for why a party failed to comply wlth an order. aW d m a n v. COWr, 10 AD.3d 288, 291 [ist Dept 20041). It is within the sound discretion of the court, however, to determine whether the submlttad excuse Is sufficient (see J& law firm employee s [a misconduct was reasonable excuse for plaintiffa default]; Navam v. A T r w m Estate. Inc.I 279 A.D.2d 257, 258 [M b p t 20011; Travelers ProDertV CaaugQ Companv of&erfca v. C n o, as- 2008 NY Sllp Op 33458U [N.Y. Sup. Ct. 20081 [unsuccessfully attempting to properly serve an armation fn opwition was a reasonable excuse for defautt]). In her affirmation, Piaintfff s attorney, Jaclyn Thomas, states that PlalnmPs prior motion for defautt judgment pursuant to CPLR Q 3215(a) against Defendant was p~vlousty denied for inauMcient servlca. Attorney Thomaa states, however, that service upon a limited llabilrty parhemhip ( LLP ) l governed by CPLR Q 310-a (CPLR 5 31O-a; a h k k , 12 M~ . 36 1157A [MY. Supp. Ct,20061). Whlle personal service k by delivery to any managing or general agent of the LLP in the state IS good 8enn ~e, Page2of 7 [* 4] CPLR 5 310-a(c) also allows for senrlce of papers on the Secretary of S a e pursuant to tt LLP 6 121-1505. LLP Q 121-1505 authorizes servlce an the Secretary of State as an agent for a registered LLP, or any person authorized by the Secretary of S a e by personally tt, delivering two coples of documents and a statutory fee of $40. Attorney Thomas highllghts that the affidavlt of service previously provided to the court shows senrice under LLP 5 121-1505, which appeara to have been overlooked by the court. Thus, Attorney Thomas contends the Plalntlff property sewed the Defandant pursuant to CPLR 5 310-a (c) In the first place. Attorney Thomas contends that she, nevertheless, W to re-setve Defendant through a managing or general agent in the intervenlng time but was unsuccessful. She contends th& accounts for the delay in brlnglng thb motion again. Plaintiff has established that it personally delivered two copies of documents to the Secretary of State paid the statutory feet. Plaintiff has also established that its fallurn to timely renew was unintentional and that it was trying to comply with the court's order by menring the defendant, even though the original aenrlce was property done. Sfncs Plaintiff has served this motton on Defsndant and Defendant has not opposed it or asserted any daim of prejudice, th8 court flnds that Plaintiff has set forth B reasonable excum for .its delay in re-movlng. The mutt will excuse the delay in making fhis motlan and proceed to decide tt on the merlts. Though proof of service of the camplalnt end this motion has been filed, Defendant has fallad to answer PlalntlfPs complaint or respond to any motion subrnlthd by PlalntifF thereafter. Pursuant to CPLR 9 3215(a), when a defendant has failed to Page 3 of 7 [* 5] appear or plead, the plaintiff ma) seek a default Judgmentagainst H. Defendant ha8 not appeared In this actlon or answami the complaint. Ite tfma to do 80 has expired and not been extended by the court. Therefore, Plalntm is entitled to default judgment, provided it otherwise demonstrates that (Gagen v. Ylpanv Prod udions It has a pdma facia muse of actlon. . , 280 A.D.2d 844 13d Dept 20011). A default in answering Plalnmfs wmplaint constitutes an admimion of the factual allegations therein and the reasonable inferences which may be made therefrom. Pokina 0~t;imCo.. inc. v. Camera Kina incL, 63 N.Y.2d 728 [Ist Dept 19841). I Defendant also admits all reasonable inferences that flow from tho- wdsan v, Mendon Leasing allegations. w,100 N.Y.2d 62, 71 [2003]). An appllcation for a default judgment must be supported by either an affidavit of facts made by one with personal knowledge of the fads surrounding! the daim Fefnick v. Bkleman Indu&les U.SA. IrlG. ,242 A.D.2d 227 (1st Dept lQ97);and CPLR 9 3215(1)] or a complalnt verified by a personal wlth actual knowledge of the facts surrounding the claim v. Winter, 234 A.D.2d 422 (2d Dept 1996); and CPLR §105(U)l. Here, PlalntifF provldcs the afftdavlt of Jaclyn E. Thomas, Plalntlffs attorney. PlalntM asserts two causes of action against Defendant: the first muse of action based on breach of the lease agrement between Plaintiff and Defendant ( COA1 ). The second muse of actlan aeeks to enfixcement of the Pennsylvania judgment Plaintfff obtained on June 21,2010 (uCOA23. EDforment of the Penngvlvau JudomRM Piainmf alleges that the Pennsylvania Judgment was entered against Page4of 7 [* 6] I June 21, 2010 for failure to appear or answer. Plaintiff seeks $30,990.46 plus inter@ including reaaonable attornay's fees. The underlying basis for the relief requeatad is a final judgment entered in favor of Plaintiff agalnat Defendant in the court of Common Pleaa, Chester Court, Pennsylvania. A judgment from a alstsr state qualifies as an Instrument for the payment of money only. (Flom v. Qakwgpd PI- ShrrPeins Center, 78 N.Y.2d 572 (1991). "So long as jurisdiction has been obtalned, a defendant's default In the rendering [jurisdlctlon] will not nullify the res judicata effect of the judgment and the full faith and credit doctrine still applies." (In re Rehabllltatlon of F r o m ins. Co, 27 AD.3d 274 [lst Dept 20081) The judgment was entered in Pennsylvania on June 21, 2010. It haa not been appealed and It has not been satisfied, despite due demand therefore. Amrdlngly, Plaintiffs secand cause of action is granted. Breach of Contra Alternatively, Platntm claims it i entitled to a default judgment on ita fimt cause s of action, seeking judgment upon the equlpment lease agreement (the "Agreement"). Plaintiff alfeegea that Defendant breached a written equipment lease agmomtnt executed In 2007. Pursuant to the terms of the Agreement, Defendant contracted to le- equipment from Plaintiff for a perlod o sixty (60) months at $520.00 pet month, f plus applicable tax. Although Defendant agreed to pay all lease payments reflected In the Agreement, Defendant failed to make monthly payment8. Consequently, Defendant went Into defauk Upon default, the total amount due under the Agreement has been I accelerated, in which Plalntm ki owed $30,990.46 plus Interest. COAl Is duptleatlve o f the Pennsylvania Judgment and seeks the same rellef 88 C O N . Page 5 of 7 [* 7] Based on the foregoing, and for the reasons artkulated, Plaintiff Da Lage Landen Flnandal Services, Inc.'s motion for defautt judgment pursuant to CPLR 5 3215 Is granted as to the second cauw of action. Plaintiff I entitled to money judgment s against Defendant in the prindpal amount of Thirty Thousand, Nine Hundred and Ninety dollars, and Forty-sbt cents ($30,990.46) together wlth Interest from June 21, 2010, plus costs and disbursements, as taxed by the Clerk of the Court The Breach of Contract mu88 of action is hereby severed and dismissed, for It is duplicative of Plaintiffs action to enforce the Pennsylvania Judgment. Conclumlofi I accordance hemewith, if iS hereby : n ORDERED that Plaintm De Lage Landen Flnancial Services, Inds motion pursuant to CPLR 3 3215 for defautt judgment on I8 38COnd cause of action bawd on t the Pennsylvania Judgment agalnst Defendant Kozupsky 8 L e b o W , LLP fMa Kozupsky & Associates, L.P. Is grantd; and it is further ORDERED that the Clerk shall enter a money judgment in favor of Pfalntiff De Lage Landen Finandal Senrlces, Inc., egalnat Defendant Kozupsky & Lebowttz, LLP fMa Korupsky & Associatea, L.P. , in the principal amount of Thirty Thousand, Nine Hundred end Ninety dollars, and Fofty-six cents ($SO,QSO.M) together with interest thereon from June 21,2010, plus costs and dlsbursernents of this action, 88 taxed by the Clerk of the Court and Plaintiff shall have execution thereof; and it Is further ORDERED that Plaintiff De L a w Landen Financial Services, Inc.'s flmt c8um of adon, for breach ofcontract, Is savered and dlsmlssed as duplicative and redundant of the second cause of action; and it is further Page 6 of 7 [* 8] 9 . ORDERED that any requested relief not expressly addressed herein has nonetheless been consIdared and is hereby denled; and it is further ORDERED that this shall canstituta the decleion and order of the Court. Dated: so Ordered: New York, New York February 6,2012 FILED m 08 m NEW YORK COUNTY CLERK'S OFFICE Page7of 7

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