A.F. Supply Corp. v 169 CH9 Owner, LLC

Annotate this Case

Download PDF

A.F. Supply Corp. v 169 CH9 Owner, LLC 2021 NY Slip Op 32521(U) November 30, 2021 Supreme Court, New York County Docket Number: Index No. 651727/2020 Judge: Frank P. Nervo 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. 651727/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/30/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. FRANK NERVO Justice ---------------------------------------------------------------------------------X A.F. SUPPLY CORP., INDEX NO. 04 651727/2020 MOTION DATE Plaintiff, MOTION SEQ. NO. 12/18/2020 001 -v169 CH9 OWNER, LLC,169 CH9 HOLDINGS, LLC,169 CH9 DEVELOPER, LLC,TO TRAP A BUTTERFLY, LLC,DDG DEVELOPMENT, LLC,DDG PARTNERS, LLC,DDG DESIGN, LLC,DDG PROPERTY MANAGEMENT, LLC,DONALD LAUDAU, WESTBROOK REAL ESTATE FUND IX, L.P., WESTBROOK REALTY MANAGEMENT IX, L.P., WRM IX GP, L.L.C., BROOKHOUSE USA, LLC,D/B/A WESTBROOK PROPERTIES, SUNBROOK PARTNERS, INC.,D/B/A WESTBROOK PROPERTIES, SUNBROOK PARTNERS, LLC,D/B/A WESTBROOK PROPERTIES, WESTCHESTER FIRE INSURANCE COMPANY DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 were read on this motion to/for JUDGMENT - DEFAULT . This matter was recently transferred to Part IV. Plaintiff moves for default judgment against defendants DDG Development, DDG Partners, DDG Design, and DDG Property Management (hereinafter “DDG”). The motion is unopposed. CPLR § 3215(a) provides that a plaintiff may obtain a default judgment when a defendant has failed to appear or plead. The plaintiff must provide 651727/2020 A.F. SUPPLY CORP. vs. 169 CH9 OWNER, LLC Motion No. 001 1 of 4 Page 1 of 4 [* 2] INDEX NO. 651727/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/30/2021 proof of service of the summons and complaint, proof of the underlying facts constituting the claim, and proof of default (CPLR § 3215(f); see also SRMOF II 2012-I Trust v. Tella, 139 AD3d 599 [1st Dept 2016]; Green Tree Servicing, LLC v. Cary, 106 AD3d 691, 692 [2d Dept 2013]). Where a default judgment is sought against a corporation, the plaintiff must also demonstrate service on the corporate-defendant via mail at its last known address (CPLR § 3215[g][4]). Plaintiff seeks a default judgment in the amount of $63,990.18 with interest from August 5, 2019, related to construction goods delivered by plaintiff to DDG, which remain unpaid. Plaintiff has provided proof of the underlying claim (NYSCEF Doc. No. 30) and proof of the requisite service (NYSCEF Doc. Nos. 12–16 & 32). To the extent that plaintiff seeks attorney’s fees in a set amount of 20 percent of the sum collected in this action, the Court will not so award. The award of attorney’s fees must be reasonable and, as such, and the creditor cannot recover from the debtor on such a contractual provision until the creditor has incurred the attorney’s fee; the award remains subject to review of the Court (see e.g. Mead v. First Trust & Deposit Co., 60 AD2d 71 [4th Dept 1977]). 651727/2020 A.F. SUPPLY CORP. vs. 169 CH9 OWNER, LLC Motion No. 001 2 of 4 Page 2 of 4 [* 3] INDEX NO. 651727/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/30/2021 Accordingly, it is ORDERED that plaintiff shall have default judgment in the amount of $63,990.18 as against DDG Development, DDG Partners, DDG Design, and DDG Property Management, plus interest at the statutory rate as calculated by the Clerk of the Court from August 5, 2019; and it is further ORDERED that the portion of the motion seeking attorney’s fees is severed and shall proceed to inquest before this Court on March 17, 2022 at 3:00pm via Microsoft Teams; and it is further ORDERED that plaintiff shall provide a courtesy copy of all exhibits intended to be introduced at the inquest, including a detailed recitation of the hours expended and fees earned in connection with this application, to SFCPart4-Clerk@nycourts.gov by March 11, 2022; and it is further ORDERED that should the parties reach agreement regarding plaintiff’s attorney’s fees and costs, they shall file a stipulation of same via NYSCEF on or before March 11, 2022.; and it is further 651727/2020 A.F. SUPPLY CORP. vs. 169 CH9 OWNER, LLC Motion No. 001 3 of 4 Page 3 of 4 [* 4] INDEX NO. 651727/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/30/2021 ORDERED that the above inquest will not be adjourned after March 11, 2022, absent further order of the Court; and it is further ORDERED that any requested relief not addressed herein has nevertheless been considered and is hereby denied. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. 11/30/2021 DATE CHECK ONE: $SIG$ FRANK NERVO, J.S.C. CASE DISPOSED GRANTED DENIED X NON-FINAL DISPOSITION X GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 651727/2020 A.F. SUPPLY CORP. vs. 169 CH9 OWNER, LLC Motion No. 001 4 of 4 OTHER REFERENCE Page 4 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.