3343 Decatur Ave. LLC v Rios
Annotate this CaseDecided on February 26, 2018
Civil Court of the City of New York, Bronx County
3343 Decatur Ave. LLC, Plaintiff,
against
Renya Rios, Defendant.
CV-4953-17/BX
KAVULICH & ASSOICATES, P.C.
Attorneys for Plaintiff
By: Gary Kavulich. Esq.
181 Westchester Avenue, Suite 500C
Port Chester, New York 10573
914.355.2074
RENYA RIOS
Defendant
Sabrina B. Kraus, J.
BACKGROUND
This action was commenced by Plaintiff against Defendant pursuant to a summons and complaint seeking use and occupancy arising out of the Defendant's alleged occupancy of Apt. C at 3343 Decatur Avenue, Bronx, New York 10467 (Subject Premises).
The summons and "endorsed" [FN1] complaint were filed April 18, 2017. Proof of service was filed with the court on May18, 2017.
Defendant failed to appear or answer and on December 15, 2017, Plaintiff moved for a default judgment pursuant to CPLR 3215. On December 15, 2017, the motion was denied by this Court pursuant to a decision and order which provided:
"The complaint is defective on its face. This is the same type of defect from the [*2]same firm addressed in a prior decision issued by this court. Counsel is cautioned to take greater care in the future in reviewing such documents before making such submissions to the court."
On January 26, 2018, Plaintiff again moved for a default judgment. The motion was adjourned to February 26, 2018. Defendant failed to appear and the motion was submitted on default.
The motion is denied for the reasons set forth below, and Plaintiff's counsel, Gary M. Kavulich, Esq. is again cautioned to review pleadings issued and motions filed with greater care before submitting them to this court.
DISCUSSION
Plaintiffs counsel is engaged in a high volume collection practice. It has become apparent to this court over the past year that Plaintiff's counsel uses some type of form to generate the summons and complaints served. However, instead of actually filling the correct information in for each case, Plaintiff's counsel fails to carefully read the complaint and leaves many portions of the form blank or with an "N/A" resulting in complaints that are defective on their face, and leading this court to deny motions for default judgments on the defective complaints.
This failure on the part of Plaintiff's counsel has been repeatedly pointed out by this court.
For example, in Zadrima v Thompson, Index No CV 009362-16 , this court issued a decision, dated September 20, 2017, denying Plaintiff's motion for a default judgment. The decision provided in pertinent part:
The complaint herein is so defective that it is hard to imagine an attorney signed his name to the pleading, and the court can only assume that the attorney who signed the complaint, did so without reading it. Indeed, it easy to imagine that a litigant who received the document would think that it was invalid and required no response.The first cause of action alleges breach of a lease agreement. It asserts:
Plaintiff seeks to recover damages from the Defendant(s), Natalie Flores Thompson, for breach of a lease agreement in the sum of $0.00 for rental arrears for the months of N/A, N/A balance of $0.00; N/A, N/A through and including N/A, N/A at the agreed monthly sum of $0.00 for the premises known as 2524 Barnes Avenue, Apt. 2B, Bronx, NY 10467 together with costs and disbursements of this action and for such other and further relief as the court may deem just.The third cause of action asserts:
Plaintiff seeks to recover damages from defendant in the sum of $0.00 representing damages together with costs and disbursements of this action and for such other and further relief as this court may deem just.The fourth cause of action asserts:
Plaintiff seeks to recover damages from the defendant in the sum of $0.00 representing reasonable attorneys fees together with costs and disbursements of this action and for such other and further relief as the court may deem just.The court's concluded its decision with a caution to counsel holding: Additionally, it appears clear to the court that: Gary Kavulich Esq, signed the endorsed complaint, without ever reading it; that Peter Oliveri, Esq, signed two motions without ever actually reading the complaint, and that the per diem attorney who appeared on the motions in court, never read the pleading. Had any one of the three attorneys actually read the complaint, presumably the appropriate corrective action would have been taken.Counsel is cautioned to exercise greater care in the future before executing such defective pleadings, or filing a motion seeking relief on same, and to take greater care that they are properly certifying documents served and filed as provided for in NYCRR 130-1.1a.[FN2]
Despite this decision, Plaintiff's counsel has repeatedly filed motions on such defective pleadings, including in the case at bar where the prior motion was denied because the first, third, and fourth causes of action all sought judgment in the amount of "0.00".
Instead of taking the time to properly review the pleadings and motion papers issued, Plaintiff's counsel, Gary Kavulich affirms in this second, and again defective motion:
"One prior application for the relief sought herein has been filed with the court but was denied because Plaintiff did not include a copy of the deed; evidence that is has not heretofore (in 20 years) been required to provide in such a motion."
This statement is completely false. The motion as indicated above was denied because of the defective pleadings. The court never reached the issue of a deed, nor was there any reference to a deed in the court's decision.
Rather than take greater care in generating mass defective pleadings and motions, rather than read the decision actually issued by the court, Plaintiff's counsel persists in submitting repeated requests on the defective pleadings.
As this court has repeatedly held in these cases "CPLR 3215 does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action (Feffer v Malpeso 210 AD2d 60,61 (1994)."
Counsel is once again cautioned to review the pleadings served and the motions filed with greater care.
Based on the above, Plaintiff's motion for a default judgment is denied.
This constitutes the decision and order of the Court.
Dated: February 26, 2018
Bronx, New York
___________________
Sabrina B. Kraus, JCC Footnotes
Footnote 1:Although labeled an "Endorsed Complaint" Plaintiff's pleading is not an endorsed complaint as contemplated by §902 of the Civil Court Act, but a separate formal unverified complaint that was served with the summons.
Footnote 2:Other examples of defective pleadings submitted by plaintiff's firm and pointed out by this court include the following cases: CV-8129-17, CV-1978-17, CV-6140-16.
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