Ventura v 560 W. 180th St.

Annotate this Case

Download PDF

Ventura v 560 W. 180th St. 2018 NY Slip Op 31138(U) June 5, 2018 Supreme Court, New York County Docket Number: 156435/15 Judge: Debra A. James 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. [*FILED: NEW YORK COUNTY CLERK 06/07/2018 12:13 PM 1] INDEX NO. 156435/2015 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/07/2018 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART 59 DEBRA A. JAMES Justice Index No.: ANA CAMACHO VENTURA, Plaintiff, -v- 156435/15 Motion Date: 04/19/18 560 West 18QTH ST.' NYC LLC and SOUTH BEACH Motion Seq. No.:_............_ _ 01 RESTAURANT AND LOUNGE, LLC, Motion Cal. No.: _ _ __ Defendants. SOUTH BEACH RESTAURANT AND LOUNGE, LLC, Third Party Plaintiff, -vWAI KEE CONSTRUCTION INC., Third Party Defendant. The following papers, numbered 1 to 1 were read on this motion for a default judgment. PAPERS NUMBERED Notice of Motion/Order to Show Cause -Affidavits -Exhibits 1 Answering Affidavits - Exhibits Replying Affidavits - Exhibits Cross-Motion: D Yes Im No Upon the foregoing papers, In this breach of contract action, defendant/third party plaintiff SOUTH BEACH RESTAURANT AND LOUNGE, LLC moves for a default judgment based upon the failure of third party defendant WAI KEE CONSTRUCTION INC. to answer or appear. Third party plaintiff has submitted proof of service of the summons and complaint and proof of service of this motion upon third party Check One: D FINAL DISPOSITION Check if appropriate: D DONOTPOST 1 of 4 Im NON-FINAL DISPOSITION D REFERENCE [*FILED: NEW YORK COUNTY CLERK 06/07/2018 12:13 PM 2] INDEX NO. 156435/2015 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/07/2018 defendant. Third party plaintiff has also submitted an affirmation as to third party defendant's default pursuant to CPLR 3215 (f). However, the motion must be denied because the third party plaintiff has not submitted an affidavit of facts in support of the motion pursuant to CPLR 3215 (f), but instead has submitted only an affirmation which is insufficient to support the entry of a default judgment. Nor has the plaintiff included in its moving papers a copy of a sufficiently verified complaint that pursuant to CPLR 3215 (f) could act as an affidavit of facts. v DiLorenzo, 199 AD2d 218, 219-220 (1st Dept 1993) See Mullins ("This Court has held that a complaint verified by counsel amounts to no more than an attorney's affidavit and is therefore insufficient to ·support entry of judgment pursuant to CPLR 3215. In the absence of either a verified complaint or an affidavit by the party, the entry of judgment by default is erroneous and deemed a nullity." [citations omitted); Georgia Pacific Corp. v Bailey, 77 AD2d 682 (3d Dept 1980). Moreover, third party plaintiff has not submitted proof of the additional mailing of the third party summons required by CPLR 3215 (g) (4) upon the corporate third party defendant. CPLR 3215 (g) (4) (I) states that "[w]hen a default judgment based upon non-appearance is sought against a domestic or authorized foreign corporation which has been served pursuant to -2- 2 of 4 [*FILED: NEW YORK COUNTY CLERK 06/07/2018 12:13 PM 3] INDEX NO. 156435/2015 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/07/2018 paragraph (b) of section three hundred six of the business corporation law, an affidavit shall be submitted that an additional service of the summons by first class mail has been made upon the defendant corporation at its last known address at least twenty days before the entry of judgment." The rule is that "[a] default judgment may not be granted against a non-appearing corporate defendant without proof of compliance with the additional service requirement set forth in CPLR § 3215(g) (4) (i) ." Carus & Manniello, P.C. v MLG Capital Assets LLC., 2003 NY Slip Op 50598(U), 2003 WL 1093402 (City Ct, White Plains, March 4, 2003) Inc. v Pigand citing Rafa Enterprises, Management Corp., 184 AD2d 329, 330 (1st Dept 1992) ("moving papers were deficient, having failed to set forth an affidavit of service by mail upon the last known address of the corporation, as required pursuant to CPLR 3215 (f) (4) (i)"). See, D Asphalt Construction Corp v Corealty, LLC, 296 AD2d 432 2002). & D (2nd Dept Therefore, third party plaintiff's motion must be denied without prejudice. Accordingly, it is hereby -3- 3 of 4 [*FILED: NEW YORK COUNTY CLERK 06/07/2018 12:13 PM 4] INDEX NO. 156435/2015 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/07/2018 ORDERED that third party plaintiff's motion for a default judgment against third party defendant WAI KEE CONSTRUCTION INC. is DENIED WITHOUT PREJUDICE to move again upon proper proofs in accordance with the foregoing. This is the decision and order of the court. Dated :---iJ-.-UH ......._..,0~5...._.....2...-0~18._____ ENTER: DEBRA A. JAME9.s.c. -4- 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.