Grytsanenko v SPA Castle Premier 57, Inc.

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Grytsanenko v SPA Castle Premier 57, Inc. 2020 NY Slip Op 31815(U) June 12, 2020 Supreme Court, New York County Docket Number: 150721/2017 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. [* 1] INDEX NO. 150721/2017 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/12/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. KATHRYN E. FREED IAS MOTION 2EFM Justice ----------------------------------------------------------------- ----------------X INDEX NO. 150721/2017 DARIA GRYTSANENKO, Plaintiff, MOTION SEQ. NO. _ _ _0_0_1_ _ -vSPA CASTLE PREMIER 57, INC. and C CASTLE GROUP, CORP., DECISION + ORDER ON MOTION Defendants. ------------------------------------------------------------------- --------------X SPA CASTLE PREMIER 57, INC. and C CASTLE GROUP, CORP., Third-Party Index No. 595488/2019 Third-Party Plaintiffs, -againstUBM CLEANING SOLUTIONS, INC. Third-Party Defendant. --------------------------------------------------------------------------------x The following e-filed documents, listed by NYSCEF document number (Motion 001) 22, 23, 24, 25, 26, 27,28,29 were read on this motion to/for JUDGMENT - DEFAULT In this personal injury action commenced by plaintiff Daria Grytsanenko, defendants/third-party plaintiffs Spa Castle Premier 57, Inc. ("Spa Castle") and C Castle Group Corp. ("CCG") move, pursuant to CPLR 3215, for a default judgment against third-party defendant UBM Cleaning Solutions, Inc. ("UBM"). After a review of the motion papers and the relevant statutes and case law the motion, which is unopposed, is decided as follows. 150721/2017 GRYTSANENKO, DARIA vs. SPA CASTLE PREMIER 57, INC. Motion No. 001 1 of 4 Page 1 of4 [* 2] INDEX NO. 150721/2017 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/12/2020 Plaintiff was allegedly injured on March 8, 2016 when she slipped and fell on a slippery floor near the pool area of a building owned, operated, and/or managed by Spa Castle and CCG. Doc. 1. Plaintiff commenced the captioned action by filing a summons and complaint on January 23, 2017, alleging that she was injured due to the negligence of Spa Castle and CCG. Doc. 1. Spa Castle and CCG thereafter joined issue by service of their answer filed October 16, 2017. Doc. 2. On June 10, 2019, Spa Castle and CCG impleaded UBM, a cleaning contractor, alleging claims for contribution, common-law and contractual indemnification, and breach of contract for failure to procure insurance. Doc. 26. The third-party complaint was verified by counsel for Spa Castle and CCG. Doc. 26. Although UBM was served with the third-party summons and complaint, it has failed to answer or otherwise appear in this action. Docs. 23, 27. Spa Castle and CCG served UBM with an additional copy of the third-party complaint pursuant to CPLR 3215(g) on November 26, 2016. Doc. 28. Spa Castle and CCG now move, pursuant to CPLR 3215(a), for a default judgment against UBM. 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 150721/2017 GRYTSANENKO, DARIA vs. SPA CASTLE PREMIER 57, INC. Motion No. 001 2 of 4 Page 2 of 4 [* 3] INDEX NO. 150721/2017 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/12/2020 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 in answering or appearing. See Gantt v North Shore-LIJ Health Sys., 140 AD3d 418 (1st Dept 2016). Although Spa Castle and CCG have established service of process, compliance with the additional service requirement set forth in CPLR 3215(g), and UBM's failure to answer, they have failed to submit sufficient "proof of the facts constituting the claim." CPLR 3215 (f); see Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21NY3d200, 202 (2013). The third-party complaint, verified by counsel, is "purely hearsay, devoid of evidentiary value, and thus insufficient to support entry of a judgment pursuant to CPLR 3215." Martinez v Reiner, 103 AD3d 477, 478 (1st Dept 2013) (internal quotation marks and citation omitted). Furthermore, it is error to issue a default judgment "without a complaint verified by someone or an affidavit executed by a party with personal knowledge of the merits of the claim." Beltre v Babu, 32 AD3d 722, 723 (1st Dept 2006); see Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d at 202; Mejia-Ortiz v Inoa, 71AD3d517 (1st Dept 2010). Where, as here, the complaint is verified only by counsel, this Court may not rely on it as proof of any of the facts alleged. See Martinez v Reiner, 103 AD3d at 4 78. Since plaintiffs fail to submit an affidavit by plaintiff setting forth the facts 150721/2017 GRYTSANENKO, DARIA vs. SPA CASTLE PREMIER 57, INC. Motion No. 001 3 of 4 Page 3 of 4 [* 4] INDEX NO. 150721/2017 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/12/2020 constituting the claim, this Court cannot issue a default judgment. See Mejia-Ortiz v Inoa, 71AD3d at 517; Beltre v Babu, 32 AD3d at 723. Although counsel for Spa Castle and CCG represents that an affidavit of a witness with knowledge was annexed to the motion as Exhibit F, no such exhibit was filed with NYSCEF. Therefore, in accordance with the foregoing, it is hereby: ORDERED that the motion by plaintiff is denied with leave to renew upon the submission of proper papers within thirty days after entry of this order, upon penalty of dismissal of the third-party complaint; and it is further, ORDERED that this constitutes the decision and order of this Court. 6/12/2020 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED 0 8 KATHRYNE. FREED, J.S.C. NON-FINAL DISPOSITION DENIED SETTLE ORDER GRANTED IN PART SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 150721/2017 GRYTSANENKO, DARIA vs. SPA CASTLE PREMIER 57, INC. Motion No. 001 4 of 4 D D OTHER REFERENCE Page4 of 4

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