K's Intl. Polybags Mfg. Ltd. v M.T. Packaging Inc.

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K's Intl. Polybags Mfg. Ltd. v M.T. Packaging Inc. 2019 NY Slip Op 30333(U) February 8, 2019 Supreme Court, New York County Docket Number: 154420/2012 Judge: Andrea Masley 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 02/15/2019 09:32 AM NYSCEF DOC. NO. 118 INDEX NO. 154420/2012 RECEIVED NYSCEF: 02/15/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ANDREA MASLEY IAS MOTION 48EFM Justice ---------------------~--------------------------------------------------X 154420/2012 INDEX NO. K'S INTERNATIONAL POLYBAGS MFG. LTD. MOTION DATE Plaintiff, MOTION SEQ. NO. 005 -vM.T. PACKAGING INC., DECISION AND ORDER · Defendant. -----------------------------:-------------------------------~------.: __ _: __x The following e-filed documents, listed by NYSCEF document number (Motjon 005) 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117 JUDGMENT - DEFAULT were read on this motion to/for Upon the foregoing documents, it is it is order that this motioµ is granted in part. This motion seeks a default judgment against plaintiff for failing to appear at multiple court appearances. Plaintiff has not opposed this motion. On July 13, 2018, this court granted Jeffrey Maidenbaum's motion to be relieved as plaintiffs counsel and directed the parties to appear for a conference on September 12, 2018. If plaintiff, a corporation, failed to appear by counsel, as required by CPLR 321, the court stated that the case would be dismissed (NYSCEF Doc. No. 95). On September 12, 2018, plaintiff failed to appear, and the complaint was dismissed (NYSCEF Doc. No. 101 ). Defendant was given 30 days to prosecute its counterclaims (id.). On November 13, 2018, defendant's counsel appeared at the sch~duled status conference to address the counterclaims; plaintiff did not appear. On November 23, 2018, defendant filed this motion for a default judgment (NYSCEF ' Doc. No. 107). Defendant's counsel provided notice of this motion to plaintiff via email and Fed 154420/2012 K'S INTERNATIONAL POLYBAGS vs. M.T. PACKAGING INC. Motion No. 005 1 of 4 Page 1of4 "\ ----- [*FILED: 2] NEW YORK COUNTY CLERK 02/15/2019 09:32 AM NYSCEF DOC. NO. 118 INDEX NO. 154420/2012 RECEIVED NYSCEF: 02/15/2019 Ex mailing (NYSCEF Doc. Nos. 109, 116, & 117). To date, plaintiff has not opposed this motion or otherwise appeared in this action since its counsel withdrew. "When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him" (CPLR 3215 [a]). While CPLR 3215 does not specifically mention counterclaims, "the statute's legislative history reveals that it was intended to apply to claims asserted as counterclaims, cross claims, and third-party claims, in addition to those set forth in complaints" (Giglio v NTIMP, Inc., 86 AD3d 301, 307 [2d Dept 2011] [citations omitted]). On a motion for a default judgment, the movant must submit proof of service of the pleadings, proof of the facts constituting the claim, proof of the default, and amount due by affidavit made by the party (CPLR 3215 [f]). "CPLR 3215 (f) requires that an applicant for a default judgment file proof by affidavit made by the party of the facts constituting the claim" (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 70 [2003]). However, a verified pleading "may be submitted instead of the affidavit when it has been properly served" (id.). Defendant has provided proof that plaintiff was not only served with a copy of defendant's verified answer with counterclaims, but also, served with the September 12, 2018 order dismissing the complaint and a copy of this motion. In its answer, defendant asserts counterclaims for (1) defective goods under UCC § 2714; (2) failure to remove defective goods under UCC § 2-715; (3) breach of contract; (4) negligent misrepresentation; (5) damage to business reputation; (6) breach of express warranty; (7) breach of implied warranty of fitness for a particular purpose; (8) breach of implied warranty • 154420/2012 K'S INTERNATIONAL POLYBAGS vs. M.T. PACKAGING INC. Motion No. 005 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 02/15/2019 09:32 AM NYSCEF DOC. NO. 118 INDEX NO. 154420/2012 RECEIVED NYSCEF: 02/15/2019 of merchantability under UCC § 2-314; (9) breach of warranty of good faith; and ( 10) a declaratory judgment declaring that defendant does owe anything to plaintiff. Defendant provides adequate proof of its claims arising out the defective goods that plaintiff delivered. In addition to its answer with counterclaims, verified by Jack Elefant, an employee of defendant, defendant attaches exhibits to its answer, showing that the goods, which were plastic bags, tested for high levels of lead, cadmium, chromium, and mercury despite plaintiffs certification that the bags contained levels of those toxins not exceeding a certain amount. Defendant also submits evidence that it informed plaintiff of the issue and demanded to stop production. Further, defendant's verified answer adequately states counterclaims for defective goods under UCC § 2-714; failure to remove defective goods under UCC § 2-715; breach of contract; negligent misrepresentation; damage to business reputation; breach of express warranty; breach of implied warranty of fitness for a particular purpose; breach of implied warranty of merchantability under UCC § 2-314; and breach of warranty of good faith. Finally, defendant provides its attorney's affirmation, affirming that plaintiff has not appeared in this action since its counsel withdrew and plaintiff has not responded to defense counsel's communications. Thus, the motion for a default judgment on defendant's counterclaims seeking monetary damages is granted, and the court will hold a hearing on the issue of damages as to these claims. In addition to its claims seeking monetary relief, defendant also seeks a declaratory judgment. However, New York courts rarely grant declaratory judgments on default "with no inquiry as to the merits" (Tanenbaum v Allstate Ins. Co., 66 AD2d 683, 684 [I st Dept 1978]). " Declaratory judgments require that a "[party] establish a right to a declaration against [its adversary] and will not be granted on the default and pleadings alone" (Levy v Blue Cross and 154420/2012 K'S INTERNATIONAL POLYBAGS vs. M.T. PACKAGING INC. Motion No. 005 3 of 4 Page 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 02/15/2019 09:32 AM NYSCEF DOC. NO. 118 INDEX NO. 154420/2012 RECEIVED NYSCEF: 02/15/2019 Blue Shield of Greater New York, 124 AD2d 900, 902 [3d Dept 1986]). Therefore, a hearing is necessary on this claim. Accordingly, it is ORDERED that defendant's motion for a default judgment against plaintiff is granted as to their first, second, third, fourth, fifth, sixth, seventh, eighth, and ninth ~auses of action and denied as to their tenth cause of action for a declaratory judgment; and it is further ORDERED that this matter shall be set down for an inquest on damages on defendant's first, second, third, fourth, fifth, sixth, seventh, ei.ghth, and ninth causes of action and a hearing on defendant's claim for a declaratory judgment; and it is further ORDERED that defendant is directed to file a note of issue within 30 days of this order. A failure to file the note of issue will result in dismissal of the counterclaims; and it is further ORDERED that defendant is directed to contact the Part 48 Part Clerk (bhanson@nycourts.gov or 646-386-3265) within 5 days of filing the note of issue to schedule a hearing date; and it is further ORDERED that defendant is directed to serve a copy of this order with notice of entry on plaintiff pursuant to the CPLR, as well as e-file on NYSC with an affirmation of service. 2/8/2019 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 154420/2012 K'S INTERNATIONAL POLYBAGS vs. M.T. PACKAGING INC. Motion No. 005 4 of 4 D D OTHER REFERENCE Page4 of 4

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