EEMA Indus. Inc. v Clarity Light. Tech.

Annotate this Case

Download PDF

EEMA Indus. Inc. v Clarity Light. Tech. 2018 NY Slip Op 31986(U) August 15, 2018 Supreme Court, New York County Docket Number: 150775/2017 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. [*FILED: 1] NEW YORK COUNTY CLERK 08/17/2018 10:13 AM NYSCEF DOC. NO. 22 INDEX NO. 150775/2017 RECEIVED NYSCEF: 08/17/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHRYNE. FREED PART IAS MOTION 2 INDEX NO. 150775/2017 Justice ---------------------------------------------------~---------------------X EEMA INDUSTRIES INC., Plaintiff, MOTION SEQ. NO. 001 -vCLARITY LIGHTING TECHNOLOGIES and EZRA SIMON, DECISION AND ORDER Defendants. . ----------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 were read on this motion to/for DEFAULT JUDGMENT Upon the foregoing documents, it is ordered that the motion is granted in part. In this breach of contract action, plaintiff EEMA Industries Inc. moves: I) pursuant to CPLR 3025, to amend the caption; 2) pursuant to CPLR 3215, for a default judgment against defendant Ezra Simon; and 3) for such other and further relief as this Court deems just and proper. The motion is unopposed. After a review of the motion papers, as well as the relevant statutes and case law, the motion is granted to the extent indicated below. FACTUAL AND PROCEDURAL BACKGROUND: This case arises from a contractual dispute between defendant Clarity Lighting Technologies ("CL T") and plaintiff EEMA Industries Inc. ("EEMA"), a California corporation which was a member of EEMA Lighting Group and which did business as Liton and Liton 150775/2017 EEMA INDUSTRIES INC. vs. CLARITY LIGHTING TECHNOLOGIES Motion No. 001 1 of 9 Page 1of9 [*FILED: 2] NEW YORK COUNTY CLERK 08/17/2018 10:13 AM NYSCEF DOC. NO. 22 INDEX NO. 150775/2017 RECEIVED NYSCEF: 08/17/2018 Lighting. Doc. I 0, Doc. 11. 1 On or about December 29, 2015, CL T, the full name of which was Clarity Lighting Technofogies LLC ("CL TLLC"), and which operated under the name "Clarity Lights", submitted a $56,244 purchase order to Liton on behalf of EEMA. Doc. 9, at pars. 3, 4; Doc. 11; Doc. 12. Pursuant to the agreement, Li ton was to purchase certain electronic manufacturing components, including indoor and outdoor lighting equipment. Doc. I, at par. 6. On or about December 30, 2015, CLTLLC subtpitted a credit application to EEMA (Doc. 9, at par. 5; Doc. 12). The application contained an Agreement for Extension of Credit ("the credit agreement") signed on behalf of CLTLLC by its owner, Ezra Simon, as well as a personal guaranty ofCLTLLC's debts to EEMA executed by Simon in his personal capacity. Doc. 9, at par. 5; Doc. 12. The credit agreement provided, inter alia, that CLTLLC was to "make payment in full to EEMA Lighting Group (Liton Lighting, Lumenton Lighting, or Dalumne) for all purchases in accordance with EEMA invoice(s)", along with additional finance charges and late charges "on any amounts in default at the rate of 1.5% per month [ 18% per annum], but not to exceed the maximum rate permitted by law." Doc. 9, at par. 5; Doc. 12, at p. 3. Page 4 of the application, initialed by Simon, set forth a list of "Liton Terms and Conditions" which related to transactions between EEMA and its customers. Doc. 9, at par. 6; Doc. 12, at p. 4. The Liton Terms and Conditions provided, inter alia, that payment was due 30 days from the date of the invoice, that "[a]ny balance unpaid [on the due date] will bear interest at a rate of 1.5% per month with any annual percentage rate of 18%'', and that EEMA agreed to pay any costs incurred by Liton to enforce the agreement. Doc. 12, p. 4, at par. 4. On or about December 31, 2015, CL TLLC provided Li ton with a deposit check in the amount of $28, 122 to cover half the price of its order. 1 Doc. 13. In addition to its initial order, Unless otherwise noted, all references are to the documents filed with NYSCEF in this matter. 150775/2017 EEMA INDUSTRIES INC. vs. CLARITY LIGHTING TECHNOLOGIES Motion No. 001 2 of 9 Page 2 of 9 [*FILED: 3] NEW YORK COUNTY CLERK 08/17/2018 10:13 AM NYSCEF DOC. NO. 22 INDEX NO. 150775/2017 RECEIVED NYSCEF: 08/17/2018 CLTLLC submitted three subsequent purchase orders, totaling $8, 111.40, to EEMA on February 5 and 17, 2016 and March 10, 2016. Doc. 14. EEMA began to deliver the goods ordered by CLTLLC and applied CLTLLC's deposit to its first invoices. However, CLTLLC did not make any additional payments to EEMA after the initial deposit was applied. Doc. 9, at par. 9. From on or about January 11 through March 16, 2016, EEMA sent invoices to CL TLLC totaling $37,577 ..67 but CLTLLC neither paid nor objected to the same. Doc. 9, at par. 11; Doc. 15. Additionally, between March and September, 2016, EEMA sent a monthly statement of account to CLTLLC listing the unpaid invoices totaling $37,577.67. Doc. 9, at par. 12; Doc. 16. As a result of the foregoing, CL TLLC and Simon became indebted to EEMA in the amount of $37,577.67. Doc. 9, at par. 15. On January 27, 2017, EEMA commenced the captioned action by filing a summons and complaint against CLT and Simon. 2 As a first cause of action, EEMA claimed that CLTLLC and Simon breached the credit agreement and owed it $37,577.67. Doc. 1, at par. 10. As a second cause of action, EEMA claimed that it was owed $37,577.67 based on an acc01.;1nt stated. Doc. 1, at par. 15. As a third cause of action, EEMA claimed that CLTLLC and Simon owed it $37,577.67 because they had failed to pay EEMA for goods worth that amount which they had retained without payment therefor. Doc. 1, at pars. 17-19. In the complaint, EEMA thus demanded the amount of $37,577.67, plus pre-judgment interest at the rate of 18%, together with collection costs and attorneys' fees. Doc. 1, at par. 16. The summons and complaint were served on Simon by substituted service pursuant to CPLR 308(2) on February 14, 2017. Doc. 2. Additional copies of the summons and complaint were mailed to Simon pursuant to CPLR 3215(g) on February 21, 2017. Doc. 5. 2 Although the summons named as a defendant "Clarity Lighting Technologies", the complaint referred to that defendant as "Clarity Lighting Technologies, LLC." Doc. I. 150775/2017 EEMA INDUSTRIES INC. vs. CLARITY LIGHTING TECHNOLOGIES Motion No. 001 3 of 9 Page 3 of 9 [*FILED: 4] NEW YORK COUNTY CLERK 08/17/2018 10:13 AM NYSCEF DOC. NO. 22 INDEX NO. 150775/2017 RECEIVED NYSCEF: 08/17/2018 On April 6, 2017, EEMA attempted to have the Clerk enter a default judgment against defendants. Doc. 3. The proposed judgment was marked "Return For Correction" and the Clerk's minutes reflect that: Clerk cannot enter judgment because action was commenced between Eema Industries [Inc.] and Clarity Lighting Technologies and Ezra Simon, and contract was signed between Eema Lighting Group and Clarity Lighting Technologies LLC. Judgment cannot be entered as to individual for the same reason. The guaranty signed by Ezra Simon is as to Eema Lighting Group, which is not named as a plaintiff in the case. Corrected affidavit of service is needed. The iast [name] of co-tenant has to be provided. Please file motion to the court for default judgment. Doc. 3. On February 14, 2018, EEMA filed the instant motion, pursuant to CPLR 3215, for a default judgment against Simon; to amend the caption of this action pursuant to CPLR 3025; and for such other and further relief as this Court deems just and proper. In support of the motion, EEMA submits the summons and complaint, affidavit of service; proof of addi_tional service of the summons and complaint; attorney affirmation of Stuart L. Sanders, Esq.; the affidavit of Rouhollah Esmailzadeh, president of EEMA attesting, inter alia, to the fact that CL TLLC did business as "Clarity Lights"; a fictitious name statement signed by Esmailzadeh reflecting that EEMA did business as Liton and Lighton Lighting; purchase orders; the credit application; cancelled checks; invoices; a non-military affidavit; and a statement of account. Jn support of its motion, EEMA represents that, if the instant motion is granted, it is willing to waive interest above the statutory rate of 9% (CPLR 5004), and will not pursue attorneys' fees against Simon. Doc. 8, at par. 17. 15077512017 EEMA INDUSTRIES INC. vs. CLARITY LIGHTING TECHNOLOGIES Motion No. 001 4 of 9 Page 4 of 9 [*FILED: 5] NEW YORK COUNTY CLERK 08/17/2018 10:13 AM NYSCEF DOC. NO. 22 INDEX NO. 150775/2017 RECEIVED NYSCEF: 08/17/2018 PLAINTIFF'S CONTENTIONS: EEMA asserts that the caption should be amended to reflect that plaintiff is EEMA Industries Inc. d/b/a Li ton and d/b/a Liton Lighting, a member of EEMA Lighting Group, and that the defendan.ts are Clarity Lighting Technologies LLC d/b/a Clarity Lights and Ezra Simon. It further argues that it is entitled to a default judgment against Simon pursuant to the terms of the guaranty. 3 LEGAL CONCLUSIONS: Motion to Amend Caption A party may amend a pleading, or supplement it at any time by leave of court and such leave shall be freely given upon such te1ms as may be just. CPLR 3025(b). Pursuant to CPLR 305(c), "fa]t any time, in its discretion ahd upon such terms as it deems just the court may allow any summons to be amended, if a substantial right of a pai1y against whom the summons is issued is not prejudiced." The amendment of a summons is justified "where there is some apparent misdescription or misnomer on the process actually served which would justify the conclusions that the plaintiff issued the process against the co1Tect party, but under a misnomer, and that the process fairly apprised the entity that pl~intiff intended to seek a judgment against it." Medina v. City r~f New York, 167 A.D.2d 268, 269-70 (1st Dept. 1990). A motion to amend the caption to reflect the true name of the defendant should be granted where the designated entity was the intended subject of the lawsuit, knew or should have known of the existence of the litigation against it and will not be prejudiced thereby. See, Rodriguez v. Dixie N. YC., Inc., 26 A.D.3d 199 'EEMA concedes that CL TLLC "has not been served because its business address turned out to be a mailbox rather than an actual office, and because it is not a known entity to the New York Department of State." Doc. 9, at par. 16. 150775/2017 EEMA INDUSTRIES INC. vs. CLARITY LIGHTING TECHNOLOGIES Motion No. 001 5 of 9 Page 5 of 9 [*FILED: 6] NEW YORK COUNTY CLERK 08/17/2018 10:13 AM NYSCEF DOC. NO. 22 INDEX NO. 150775/2017 RECEIVED NYSCEF: 08/17/2018 (1st Dept. 2006); National Re.fimd and Utility Services. Inc. v. Plummer Realt_v Corp., 22 A.D.3d 430 (I st Dept. 2005). Here, plaintiff seeks to amend the caption to reflect that it is known as EEMA Industries Inc. d/b/a Liton and d/b/a Liton Lighting, a member ofEEMA Lighting Group, and that defendants are Clarity Lighting Technologies LLC d/b/a Clarity Lights and Ezra Simon. EEMA ·s amendment of the caption to name the proper plaintiffs is not prejudicial, since Simon executed the guaranty requiring him to pay EEMA Lighting Group and/or Liton Lighting in full and, thus, Simon knew that he could be sued by any of those entities. See Hung v Harlingron Realty Co. LLC, 2016 NY Misc LEXIS 2508 (Sup Ct New York County 2016). Plaintiff may not, however, amend the caption to name as a defendant Clarity Lighting Technologies LLC d/b/a Clarity Lights since, as noted above, CLTLLC has not been served with process. Seen. 3, supra. The amendment of a summons and complaint to reflect the proper name of a defendant is not permitted where, as here, said defendant was not properly served. See Achtziger v Fuji Copian Corp., 299 AD2d 946 (4 1h Dept 2002). 4 Thus, the motion to amend the complaint is granted to the extent set forth above. Motion for Default 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 4 Nevertheless, the affidavit of Esmailzadeh establishes that Simon, the sole defendant against whom a default is sought, and who was properly served with process, guaranteed the payments to be made by CL TLLC, which did business as Clarity Lights. Doc. 9; Doc. 12. 150775/2017 EEMA INDUSTRIES INC. vs. CLARITY LIGHTING TECHNOLOGIES Motion No. 001 6 of 9 Page 6 of 9 [*FILED: 7] NEW YORK COUNTY CLERK 08/17/2018 10:13 AM NYSCEF DOC. NO. 22 INDEX NO. 150775/2017 RECEIVED NYSCEF: 08/17/2018 the claim, and proof of the defaulting party's default in answering or appearing." Atlantic Cas. Ins. Co. v RJN.J Servs. Inc., 89 AD3d 649, 651 (2d Dept 2011 ). Moreover, a default in answering the complaint is deemed to be an admission of all factual statements contained in the complaint and all reasonable inferences that flow from them. See Woodson v Mendon Leasing Corp., 100 NY2d 63 (2003). Here, plaintiff has submitted proof of service of the summons and complaint pursuant to CPLR 308(2) (Doc. 2) and the affirmation of plaintiffs attorney establishes that Simon failed to answer or otherwise appear in this action. Doc. 8, at par. 5. 5 Further, the affidavit of Esmailzadeh (Doc. 9) and the documents submitted in support of said affidavit set forth the facts constituting the claim. Therefore, in light of the foregoing, it is hereby: . ORDERED that the branch of the motion by plaintiff EEMA Industries Inc. seeking to amend the caption is granted only to the extent of amending the name of plaintiff from EEMA Industries Inc. to EEMA Industries Inc. d/b/a Li ton and d/b/a Li ton Lighting, a member of EEMA Lighting Group; and it is further ORDERED that the caption of this action will hereinafter read as follows: 5 Contrary to the Clerk's minutes, service on Simon pursuant to CPLR 308(2) was not improper merely because the individual served on his behalf refused to provide his name. 150775/2017 EEMA INDUSTRIES INC. vs. CLARITY LIGHTING TECHNOLOGIES Motion No. 001 7 of 9 Page 7 of 9 [*FILED: 8] NEW YORK COUNTY CLERK 08/17/2018 10:13 AM NYSCEF DOC. NO. 22 INDEX NO. 150775/2017 RECEIVED NYSCEF: 08/17/2018 EEMA INDUSTRIES INC., d/b/a Liton and d/b/a Liton Lighting, a member of EEMA Lighting Group, Plaintiff, Ind. No.150775117 against CLARITY LIGHTING TECHNOLOGIES and EZRA SIMON, Defendants. and it is further ORDERED that the branch of the motion by plaintiff EEMA Industries Inc. d/b/a Liton and d/b/a Liton Lighting, a member ofEEMA Lighting Group seeking an order directing the entry of a default judgment against defendant Ezra Simon is granted; and it is further ORDERED that plaintiff EEMA Industries Inc. d/b/a Liton and d/b/a Liton Lighting, a member of EEMA Lighting Group shall; within 20 days of the entry of this order, serve a copy of this order with notice of entry upon d~fendant Ezra Simon and upon the Clerk, who is directed to enter judgment in favor of plaintiff and against defendant Ezra Simon in the sum of $3 7,577 .67, plus interest at the rate of 9% per annum from March 16, 2016, until the date of the decision on this motion, and thereafter at the statutory rate, as calculated by the Clerk, together with costs and disbursements as taxed by the Clerk upon submission of an appropriate bill of costs; and it is fw1her 150775/2017 EEMA INDUSTRIES INC. vs. CLARITY LIGHTING TECHNOLOGIES Motion No. 001 8 of 9 Page 8 of 9 [*FILED: 9] NEW YORK COUNTY CLERK 08/17/2018 10:13 AM NYSCEF DOC. NO. 22 INDEX NO. 150775/2017 RECEIVED NYSCEF: 08/17/2018 ORDERED that this constitutes the decision and order of the court. 8/15/2018 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED SETTLE ORDER 0 DENIED INCLUDES TRANSFER/REASSIGN ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 150775/2017 EEMA INDUSTRIES INC. vs. CLARITY LIGHTING TECHNOLOGIES Motion No. 001 9 of 9 D D OTHER REFERENCE Page 9 of 9

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.