Greenberg v Cipriani 42nd St., LLC

Annotate this Case

Download PDF

Greenberg v Cipriani 42nd St., LLC 2018 NY Slip Op 31996(U) August 16, 2018 Supreme Court, New York County Docket Number: 158838/2017 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 09:37 AM NYSCEF DOC. NO. 21 INDEX NO. 158838/2017 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. 158838/2017 Justice ----------------------------------------------------------------------------X JEROME GREENBERG, MOTION SEQ. NO. Plaintiff, 001 -vCIPRIANI 42ND STREET, LLC, GC ALPHA, LLC 0/8/A CIPRIANI DOLCI, SIMONE TERRIM, ZSOLT DUCASI, MIGUEL REYES, ERKLIANT SULA, and JONATHAN MILLER, DECISION AND ORDER Defendants. -----------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion to/for DEFAULT JUDGMENT Upon the foregoing documents, it is ordered that the motion is denied. In this personal injury action, plaintiff Jerome Greenberg moves, pursuant to CPLR 3215, for a default judgment against defendants Erkliant Sula.and Jonathan Miller. After a review of the motion papers, as well as a review of the relevant statutes and case law, the motion, which is unopposed, is denied. FACTUAL BACKGROUND: This case arises from an incident on November 23, 2016, in which plaintiff Jerome Greenberg was allegedly injured when a fight broke out between defendants Erkliant Sula ("Sula") and Jonathan Miller ("Miller") at Cipriani Dolce on 42nd Street in Manhattan, which premises were owned by GC Alpha, LLC d/b/a Cipriani Dolci and rented to Cipriani 42nd Street, 158838/2017 GREENBERG, JEROME vs. CIPRIANI 42ND STREET, LLC Motion No. 001 1 of 4 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 08/17/2018 09:37 AM NYSCEF DOC. NO. 21 INDEX NO. 158838/2017 RECEIVED NYSCEF: 08/17/2018 LLC. (Docs. 11 at 2, 12 at 7, 13 at 5-6.) According to plaintiff, Sula and Miller were visibly intoxicated at the time of the altercation. (Doc. 12 at 7.) On October 3, 2017, plaintiff commenced this personal injury action against defendants by filing a summons and verified complaint alleging negligence, negligent hiring and supervision, and breach of New York's Dram Shop Act. (Doc. 12.) Process was properly served on defendant Sula on December 7, 2017, and on January 12, 2018. (Doc. 15.) Process was also properly served on defendant Miller on October 9 and 11, 2017. (Doc. 14.) Plaintiff now moves, pursuant to CPLR 3215, for a default judgment against Sula and Miller. (Docs. I 0-11.) The motion is unopposed. LEGAL CONCLUSIONS: CPLR 3215( 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 RJN.J Servs: Inc., 89 AD3d 649, 651 [2d Dept 2011].) In order to set forth the facts constituting the claim in a motion for default.judgment pursuant to CPLR 3215, a party must submit either a complaint verified by a party with personal knowledge of the facts of the case, or an affidavit by such an individual. (See Mullins v Dilorenzo, 199 AD2d 218, 219-20 [!st Dept 1993] (defaultjudgment improper in the absence of a verified complaint or an affidavit by plaintiff).) An attorney affirmation will not suffice for this purpose. (See Mattera v Capric, 54 AD3d 827, 828 [2d Dept 20081 (attorney affirmation 158838/2017 GREENBERG, JEROME vs. CIPRIANI 42ND STREET, LLC Motion No. 001 2 of 4 Page 2 of4 [*FILED: 3] NEW YORK COUNTY CLERK 08/17/2018 09:37 AM NYSCEF DOC. NO. 21 INDEX NO. 158838/2017 RECEIVED NYSCEF: 08/17/2018 which is not based on personal knowledge is insufficient proof for default judgment).) It is well settled "that a complaint verified by counsel amounts to no more than an attorney's ~ftldavit an~ is insufficient to support entry of judgment pursuant to CPLR 3215." (Fe_ffer v Ma/peso, 210 AD2d 60, 61 [1st Dept 1994].) Here, although plaintiff has submitted proof of service of the summons and complaint (Docs. 14, 15), as well as proof that defendants Sula and Miller defaulted in answering (Doc. 11 at 2-3), plaintiffs motion must be denied because he has not properly submitted facts constituting the claim. Other than the allegations contained in the complaint verified.by plaintiffs counsel and in the attorney affirmation in support for a default judgment, there are no facts constituting the claim given by plaintiff himself or by someone else with personal knowledge of the same. Therefore, defa~ltjudgment must be denied. Therefore, in accordance with the foregoing, it is hereby: ORDERED that plaintiff Jerome Greenberg's motion for a default judgment against defendants Erkliant Sula and Jonathan Miller is denied, with leave to renew upon proper papers; and it is further 158838/2017 GREENBERG, JEROME vs. CIPRIANI 42ND STREET, LLC Motion No. 001 3 of 4 Page 3 of4 [*FILED: 4] NEW YORK COUNTY CLERK 08/17/2018 09:37 AM NYSCEF DOC. NO. 21 INDEX NO. 158838/2017 RECEIVED NYSCEF: 08/17/2018 ORDERED that plaintiff is to serve a copy.of this order, with notice of entry, on all parties within twenty days hereof; and it is further ORDERED that this constitutes the decision and order of this Court. 8/16/2018 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: _,.,K ~ . CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 158838/2017 GREENBERG, JEROME vs. CIPRIANI 42ND STREET, LLC Motion No. 001 4 of 4 D D OTHER REFERENCE Page4 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.