Cordova v 27E79 Prop. LLC

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Cordova v 27E79 Prop. LLC 2018 NY Slip Op 33005(U) November 27, 2018 Supreme Court, New York County Docket Number: 160748/2017 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. ,,J [*FILED: 1] • NEW YORK COUNTY CLERK 11/29/2018 09:20 AM INDEX NO. 160748/2017 .~ NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 11/29/2018 •) '•' SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHRYNE. FREED PART IAS MOTION 2 INDEX NO. 160748/2017 Justice ----------------------------------------------------------------------------X EFRAIN CORDOVA, Plaintiff, MOTION SEQ. NO. 001 - v27E79 PROPERTY LLC, ALBA SERVICES INC., DECISION AND ORDER Defendants. -----------------------------------------------------------------------------X 27E79 PROPERTY LLC, ALBA SERVICES INC., DefendantsfThird-Party Plaintiffs' -vDN CALLAHAN, INC:, Third- Party Defendant. -------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19 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. In this personal injury action commenced by plaintiff Efrain Cordova, defendants/thirdparty plaintiffs 27E79 Property, LLC and Alba Services, Inc. move, pursuant to CPLR 3215, for a default judgment against third-party defendant ON Callahan, Inc. After a review of the motion papers, as well as the relevant statutes and case law, the motion, which is unopposed, is denied with leave to renew upon proper papers. 160748/2017 CORDOVA, EFRAIN vs. 27E79 PROPERTY LLC Motion No. 001 1 of 4 Page 1 of4 [*FILED: 2] NEW YORK COUNTY CLERK 11/29/2018 09:20 AM NYSCEF DOC. NO. 20 INDEX NO. 160748/2017 RECEIVED NYSCEF: 11/29/2018 Plaintiff commenced the captioned action on December 5, 2017 by filing a summons and complaint, verified by his attorney, in which he alleged that he was injured on November 16, 2017 while doing construction work due to the negligence, recklessness or carelessness of defendants or their agents or employees on the premises located at 27 East 79th Street in New York County. Doc. 1. Defendants joined issue by their answers filed April 12, 2018. Doc.7. 1 On or about April 17, 2018, defendants commenced a third-party action against third-party defendant ON Callahan by filing a third-party summons and complaint. Doc. 10. In their thirdparty complaint, verified by their attorney, defendants set forth claims against ON Callahan for contribution, common-law and contractual indemnification, and breach of contract to procure insurance. Doc. 10. Defendants served the third-party summons and complaint on DN Callahan via the Secretary of State on May 18, 2018 (Doc. 13) and their attorney states in an affirmation that ON Callahan has failed to answer or otherwise appear in the third-party action. Doc. 16, at par. 7. Defendants/third-party plaintiffs 27E79 Property, LLC and Alba Services, Inc. now move, pursuant to CPLR 3215, for a defaultjudgment against ON Callahan. Doc. 15. 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 a party moving for a default judgment pursuant to CPLR 3215 must establish proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the default 1 All references are to the documents filed with NYSCEF in connection with this action. 160748/2017 CORDOVA, EFRAIN vs. 27E79 PROPERTY LLC Motion No. 001 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 11/29/2018 09:20 AM NYSCEF DOC. NO. 20 INDEX NO. 160748/2017 RECEIVED NYSCEF: 11/29/2018 in answering or appearing. See Gantt v North Shore-LJJ Health Sys., 140 AD3d 418 ( 151 Dept 2016). 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 (1st Dept 1993 ). An attorney affirmation will not suffice for this purpose. See Mattera v Capric, 54 AD3d 827, 828 (2d Dept 2008). It is well settled "that a complaint verified by counsel amounts to no more than an attorney's affidavit and 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 defendant/third-party plaintiffs submit proof of service of the third-party summons and complaint on ON Callahan, as well as proof that ON Callahan failed to respond to the third-party complaint, a default judgment cannot be entered on the papers submitted because defendant/third-party plaintiffs have not properly submitted facts constituting the claim. Other than the allegations contained in the complaint and third-party complaint verified by plaintiffs counsel, as well as in the attorney affirmation in support of the instant motion, there are no facts constituting the claim given by plaintiff himself or by defendant/third-party plaintiffs or by someone else with personal knowledge of the same. Additionally, defendant/third-party plaintiffs failed to comply with CPLR 32 l 5(g)(4 ). 160748/2017 CORDOVA, EFRAIN vs. 27E79 PROPERTY LLC Motion No. 001 3 of 4 Page 3 of4 [*FILED: 4] NEW YORK COUNTY CLERK 11/29/2018 09:20 AM NYSCEF DOC. NO. 20 INDEX NO. 160748/2017 RECEIVED NYSCEF: 11/29/2018 In light of the foregoing, it is hereby: ORDERED that the motion is denied with leave to renew upon proper papers within 30 days of the entry of this order, upon penalty of dismissal, and it is further ORDERED that this constitutes the decision and order of the court. 11/27/2018 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 160748/2017 CORDOVA, EFRAIN vs. 27E79 PROPERTY LLC Motion No. 001 4 of 4 D D OTHER REFERENCE Page 4 of4