Goldman v All Counties Snow Removal Corp.

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Goldman v All Counties Snow Removal Corp. 2017 NY Slip Op 31859(U) August 17, 2017 Supreme Court, New York County Docket Number: 155108/2016 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 09/05/2017 12:16 PM 1] NYSCEF DOC. NO. 21 INDEX NO. 155108/2016 RECEIVED NYSCEF: 09/05/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. KATHRYN E. FREED, J.S.C. Justice 2 --- ------------------------------------------------------------------------X MICHAEL GOLDMAN and SJOERD DOTING, INDEX NO. 155108/2016 Plaintiff, MOTION DATE MOTION SEQ. NO. 001 -vALL COUNTIES SNOW REMOVAL CORP.,, DECISION AND ORDER Defendant. ALL COUNTIES SNOW REMOVAL CORP, Third-Party Plaintiff -v - UNITED RECONSTRUCTION SERVICES, Third-Party Defendant. --------------------------------------------~---------------------------------X The following e-filed documents, listed by NYSCEF document number 8, 9, 10, 11, 12, 13, 14, 15, 16, 19,20 Default Judgment were read on this application to/for ~--------------------~ Upon the foregoing documents, it is ordered that the motion is denied with leave to renew upon service of proper papers. 155108/2016 GOLDMAN, MICHAEL vs. ALL COUNTIES SNOW REMOVAL Motion No. 001 1 of 4 Page 1 of4 [*FILED: NEW YORK COUNTY CLERK 09/05/2017 12:16 PM 2] NYSCEF DOC. NO. 21 INDEX NO. 155108/2016 RECEIVED NYSCEF: 09/05/2017 In this personal injury action, third-party plaintiff All Counties Snow Removal Corp. ("ACSR") moves, pursuant to CPLR 3215, for a default judgment against third-party defendant United Reconstruction Services, Inc. ("URS"). URS does not oppose the motion. After a review of the motion papers, as well as the relevant statutes and case law, the motion is denied with leave to renew upon service of proper papers. FACTUAL AND PROCEDURAL BACKGROUND This action arises from an incident on January 22, 2014 in which plaintiff Michael Goldman was allegedly injured when he slipped and fell on premises allegedly owned· and/or operated by defendant/third-party .plaintiff All Counties Snow Removal Corp. ("ACSR"). NYSCEF Doc. 1. 1 · Plaintiff Sjoerd Doting, Goldman's wife, asserts a claim for loss of consortium. ACSR joined issue by service of its answer, filed on August 15, 2016. Doc. 3. On March 10, 2017, ACSR filed a third-party complaint with this Court asserting claims against URS for contribution, contractual and common-law indemnification, and breach of contract to procure insurance. Doc. 4. Although 1 Unless otherwise noted, all references are to documents filed with NYSCEF in connection with this matter. 2 of 4 155108/2016 GOLDMAN, MICHAEL vs. ALL COUNTIES SNOW REMOVAL Page 2 of 4 [*FILED: NEW YORK COUNTY CLERK 09/05/2017 12:16 PM 3] NYSCEF DOC. NO. 21 INDEX NO. 155108/2016 RECEIVED NYSCEF: 09/05/2017 URS was properly served with the third-party summons and complaint via the Secretary of State (Doc. 7), it has failed to answer. See Yoon Aff. In Supp., at par. 14. ., LEGAL CONCLUSIONS CPLR 32 l 5(a) provides, in pertinent part, that"[ w]hen a defendant has failed to appear, plead or proceed to trial..., the plaintiff may seek a default judgment against him." It is well settled that "[ o]n 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 the claim, and proof of the defaulting party's default in answering or appearing." Atlantic Cas. Ins. Co. v RJNJ Servs. Inc., 89 AD3d 649, 651 (2d Dept 2011). This Court denies the motion because plaintiff failed to submit sufficient "proof of the facts constituting the claim." CPLR 3215 (f); see Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 202 (2013 ). It is error to issue a default judgment "without a complaint verified by someone or an affidavit executed. by a party with personal knowledge of the merits of the claim." Beltre v Babu, 32 AD3d 722, 723 (1st Dept 2006); see Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d at 202; Mejia-Ortiz v Inoa, 71 AD3d 517 (1st Dept 2010). Here, 155108/2016 GOLDMAN, MICHAEL vs. ALL COUNTIES SNOW REMOVAL Motion No. 001 3 of 4 Page 3 of 4 [*FILED: NEW YORK COUNTY CLERK 09/05/2017 12:16 PM 4] NYSCEF DOC. NO. 21 INDEX NO. 155108/2016 RECEIVED NYSCEF: 09/05/2017 since the third-party complaint is not verified and ACSR failed to submit an affidavit of an individual with knowledge of the facts giving rise to the third-party claim, there is simply no evidentiary basis on which to permit this Court to issue a default judgment. See Mejia-Ortiz v Inoa, 71AD3d at 517; Beltre v Babu, 32 AD3d at 723. Therefore, in accordance with the foregoing, it is hereby: ORDERED that the motion by third-party plaintiff All Counties Snow Removal Corp. is denied with leave to renew upon the submission of proper papers; and it is further, ORDERED that this constitutes the decision and order of this Court. 8/17/2017 DATE CHECK ONE: CASE DISPOSED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: DO NOT POST GRANTED 0 § NON-FINAL DISPOSITION DENIED GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 155108/2016 GOLDMAN, MICHAEL vs. ALL COUNTIES SNOW REMOVAL Motion No. 001 4 of 4 D D OTHER REFERENCE Page 4 of 4

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