Gil v City of New York

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Gil v City of New York 2018 NY Slip Op 30671(U) April 12, 2018 Supreme Court, New York County Docket Number: 158267/2015 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 158267/2015 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 04/16/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. KATHRYNE. FREED 2 Justice ------------------------------------------------------------------------------X CLARITZA GIL, INDEX NO. 158267/2015 Plaintiff, -vTHE CITY OF NEW YORK, 700 WEST 180TH STREET ASSOCIATES, INC .. LIBBY MANAGEMENT SERVICES CORP D/B/A STELLAR MANAGEMENT, FRESH EXPRESS DELI, MOTION SEQ. NO. 004 DECISION AND ORDER Defendant. ------------------------------------------------------·--------------------------X 700 WEST 1801h STREET ASSOCIATES, INC. and LIBBY MANAGEMENT SERVICES CORP. d/b/a STELLAR MANAGEMENT, Third-Party Plaintiffs, -v- ADNAN ISMAIL, ALI SAIED, ADNAN ISMAIL and ALI SAIED d/b/a CEDAR JUICE BAR and BROADWAY SALAD AND JUICE CENTER, INC., Third-Party Defendants. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 53, 54, 55, 56, 57, 58, 59, 60, 61 . were read on this motion to/for JUDGMENT - DEFAULT Upon the foregoing documents, it is ordered that the motion is denied with leave to renew upon proper papers. Third-Party Plaintiffs, 700 West 1801h Street Associates, Inc. and Libby Management Services Corp. d/b/a Stellar Management, (hereinafter collectively "700 Assocs.") move, pursuant to CPLR 3215, for an Order granting them a default judgmei:-it against Third-Party Defendants Adnan Ismail, Ali Saied, Adnan 158267/2015 GIL, CLARITZA vs. CITY OF NEW YORK Motion No. 004 Page 1of5 1 of 5 [* 2] INDEX NO. 158267/2015 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 04/16/2018 Ismail and Ali Saied d/b/a Cedar Juice Bar and Broadway Salad and Juice Center, Inc. ("Juice Bar Defendants"). The motion is unopposed. The underlying First-Party action was commenced on or about August l 0, 2015 by service of a Summons and Complaint (Docs. No. I and 55) 1 by First-Party Plaintiff Claritza Gil ("Gil"), for personal injuries allegedly she allegedly incurred on the sidewalk at or near the front of the easterly boundary of a building located at and known as 700 West l 80 1h Street in Manhattan. The incident occurred in front of a store known at that location known as Fresh Express, the address of which was 4233 Broadway, New York, New York. Gil alleges she was injured due to the negligence of First-Party Defendants 700 West 1801h Street Associates, Inc. and Libby Management Services Corp. d/b/a Stellar Management. 2 Issue was joined by First-Party Defendants 700 Assocs., on or about March 8, 2016. Docs. No. 3 and 56. On or about April 12, 2017, 700 Assocs. filed a Third-Party Complaint against Third Party Juice Bar Defendants. Doc. 58. In the Third-Party Action, 700 Assocs. sued the Juice Bar defendants alleging that the parties had entered into a 1 2 All references are to the documents filed with NYSCEF in connection with this matter. The City of New York was dismissed as a party to this action by Order of J. Perry, dated June 22, 2017. · Page 2 of 5 158267/2015 GIL, CLARITZA vs. CITY OF NEW YORK Motion No. 004 2 of 5 [* 3] INDEX NO. 158267/2015 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 04/16/2018 lease agreement pursuant to which the Juice Bar defendants agreed to defend, indemnify and hold 700 Assocs. harmless from any and all claims or suits for damages for personal injuries, property damage and/or wrongful death arising out of the leased premises and areas adjacent thereto. They further allege that the agreement was in full force and effect on the date of Gil's alleged accident and that, therefore, the Third-Party Defendants will be liable to 700 Assocs., for any portion of the damages, if any, which for which the Third-Party Plaintiffs will be responsible, including costs disbursements and attorneys' fees. Third-Party Plaintiffs 700 Assocs. now move, pursuant to CPLR 3215, for an order granting them a default judgment against the Third-Party Juice Bar Defendants. 700 Assocs., through their attorney, Annie Cha, Esq., a member of the law firm of Braff, Harris, Sukoneck & Maloof, affirms that the Third-Party Summons and Complaint were properly served on the Third-Party Juice Bar Defendants. (Doc. No 59) and that the time for the Juice Bar defendants to answer has expired without them answering or otherwise moving in any manner with respect to said complaint. Cha further avers that, pursuant to CPLR 3215 (g) (4) (i), a letter was sent to all Juice Bar Defendants informing them of the Motion for a Default, along with a copies of the Default Motion and an additional copies of the complaint, which were duly mailed to the individual defendants' last known Page 3 of 5 158267/2015 GIL, CLARITZA vs. CITY OF NEW YORK Motion No. 004 3 of 5 [* 4] INDEX NO. 158267/2015 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 04/16/2018 addresses and served on Broadway Salad and Juice Center, Inc. at hs place of business at 4233 Broadway, New York, New York. Docs. No 60 and 61. The Third-Party Complaint was verified by a principal of the 700 West 1801h Street Associates, Larry Gluck, who averred that the material allegations set forth in the Complaint were "true to my own knowledge." Docs. No. 41 and 58. 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 Jn 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 201 I). This Court notes that, although the motion contains a verified complaint, sworn to by Gluck, this, alone, is insufficient to establish the Third-Party Plaintiffs' entitlement to a default judgment against the Third-Party Defendants insofar as they have failed to append to their motion a copy of the lease agreement which they allege the parties have entered into. Thus, plaintiff has failed to submit 158267/2015 GIL, CLARITZA vs. CITY OF NEW YORK Motion No. 004 Page 4 of 5 4 of 5 [* 5] INDEX NO. 158267/2015 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 04/16/2018 sufficient "proof of the facts constituting the claim." CPLR 32 l 5(f); see Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21NY3d200, 202 (2013). In light of the foregoing, it is hereby: ORDERED that plaintiffs motion is denied, with leave to renew upon proper papers; and it is further, ORDERED that this constitutes the decision and order of the court. 4/12/2018 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED 1 GRANTED · 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER DO NOT POST FIDUCIARY APPOINTMENT 158267/2015 GIL, CLARITZA vs. CITY OF NEW YORK Motion No. 004 D D OTHER REFERENCE Page 5 of 5 5 of 5

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