Opinion
Index No. E2022-1586
08-25-2023
Black Lake Estates Homeowners Association, Inc., Plaintiff, v. Dr. Lawrence Shumel, Renate Shumel and Kondaur Capital Corporation, Defendant.
Brian T. Edwards, Esq. For Plaintiff
Unpublished Opinion
Brian T. Edwards, Esq.
For Plaintiff
Hon. Meagan K. Galligan, JSC
By summons and complaint filed August 15, 2022, plaintiff sought to foreclose upon a lien on real property as a result of the Shumel defendants' failure to pay dues, maintenance fees and late fees owing to plaintiff in the amount of $22,144.89. After commencement of this action, by summons and complaint filed November 30, 2022, a superior lienholder filed a foreclosure action against the same property. See U.S. Bank Trust National Association, Trustee v Shumel, et al, Index No. E2022-2465 [Sup Ct Sullivan Co 2022]. By the instant motion, plaintiff seeks removal of the superior lienholder as a party defendant and a monetary judgment against the remaining defendants in the amount of $22,149.89. Plaintiff brings this motion within a year of its filing of the summons and complaint.
Plaintiff served the summons and complaint upon the Shumel defendants by affixing the same to the door following four attempts to serve them personally, and thereafter mailed the same to the residence in a manner permitted by Section 308(4) of the Civil Practice Law and Rules ("CPLR"). The Shumel defendants have defaulted.
CPLR Section 3017(a) provides a court discretion to "grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just;" however, in the context of a default judgment, this court's discretion is more narrowly circumscribed, and relief granted must be specifically stated within a complaint. See Lape v Lape, 23 A.D.2d 529 [1st Dept 1965]; 96 Pierrepont, LLC v Mauro, 19 A.D.3d 667 [2d Dept 2005]; P & K Marble, Inc. v Pearce, 168 A.D.2d 439 [2d Dept 1990].
While plaintiff candidly acknowledges that the complaint did not contain a specific prayer for relief for a monetary judgment and premises its motion for the same upon its prayer for such other and further relief as the court deems proper, the court observes that Paragraph 14 of plaintiff's complaint states: "Plaintiff seeks a judgment in the amount of $22,144.89 as per the April 29, 2022, Notice of Lien previously filed herein."
The Shumel defendants were properly noticed of the relief now sought by plaintiff upon their default, to wit: judgment against them in the amount of $22,149.89. Cf. Stanford v Van Skiver, 64 A.D.2d 868 [4th Dept 1978] (where plaintiff failed to allege anywhere in the complaint entitlement to counsel fees). Because the instant complaint specifically sought the very judgment for which plaintiff now moves upon the default of the Shumel defendants, plaintiff is entitled to such relief. There is no rule limiting the relief to which plaintiff is entitled to that demanded by the "wherefore" clause of a complaint. The Shumel defendants were amply noticed by plaintiff's complaint that a monetary judgment against them could be the result of this action. Where specific relief sought appears within the four corners of a complaint, a court may properly award the same in entering a default judgment.
Accordingly, it is hereby
ORDERED that defendant Kondaur Capital Corporation is removed as a party defendant and the action is dismissed insofar as it is pending against defendant Kondaur Capital Corporation; and it is further
ORDERED that plaintiff is awarded a monetary judgment in the amount of $22,149.89 against defendants Dr. Lawrence Shumel and Renate Shumel; and it is further
ORDERED that plaintiff submit a judgment to the Clerk consistent herewith.
The foregoing constitutes the Decision and Order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR § 2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.