Opinion
Index Nos. 152519/2018 595519/2020 595855/2020 595398/2022 Motion Seq. No. 004
10-14-2022
SPENCER LEWIN and CALSI VICE, Plaintiffs, v. EQUITY RESIDENTIAL MANAGEMENT, LLC. EQR-EAST 27TH STREET APARTMENTS, LLC. THE ALC GROUP LLC D/B/AALC ENVIRONMENTAL, and NEW YORK INSULATION, INC., Defendants. NEW YORK INSULATION, INC. Third-Party Plaintiff, v. POTOMAC FLOOR COVERING INC. D/B/A MIKE'S FLOORING COMPANIES Third-Party Defendant. NEW YORK INSULATION, INC. Second Third-Party Plaintiff, v. INTERIOR LOGIC GROUP, INC., and INTERIOR LOGIC GROUP, INC. D/B/A MIKE'S FLOORING COMPANIES Second Third-Party Defendants. NEW YORK INSULATION, INC. Third Third-Party Plaintiff, v. CRITERION SUPPLY, INC. Third Third-Party Defendant.
Unpublished Opinion
MOTION DATE 03/07/2022.
PRESENT: HON. DEBRA JAMES, Justice.
DECISION + ORDER ON MOTION
DEBRA A. JAMES, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 115, 116, 117, 118, 119, 128 were read on this motion to/for JUDGMENT - DEFAULT.
ORDER
Upon the foregoing documents, it is
ORDERED that the motion brought by third-party plaintiff New York Insulation, Inc for a default judgment against third-party defendant Potomac Floor Covering, Inc D/B/A Mike's Flooring Companies, (motion sequence no 004) is granted, without opposition; and it is further
ORDERED should third party plaintiff New York Insulation, Inc be found liable and cast in damages upon summary judgment or upon trial of this action, judgment on its third party complaint against Potomac Floor Covering, Inc. shall be entered in favor of third party plaintiff New York Insulation, Inc; and it is further
ORDERED that counsel are directed to post on NYSCEF a proposed status conference order or proposed competing status conference orders at least two days before October 20, 2022, 11 AM, on which date and time counsel shall appear via Microsoft Teams, unless such appearance be waived by the court.
DECISION
In this action for breach of warranty of habitability, third-party plaintiff New York Insulation, Inc., moves for a default judgment pursuant to CPLR 3215, based upon the failure of third-party defendant, Potomac Floor Covering, Inc. D/B/A Mike's Flooring Companies, to answer or appear. Plaintiff's motion is unopposed.
On a motion for a default judgment pursuant to CPLR 3215, the moving party must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defaulting party's failure to appear (see CPLR 3215[f]; Oak Hollow Nursing Ctr. v Stumbo, 117 A.D.3d 698, 698-699 [2d Dept 2014]). The moving party must also seek a default judgment within one year, which is measured from the default in responding to the complaint, (see CPLR 3215[c]; MTGLQ Invs., L.P. v Shay, 190 A.D.3d 527, 528 [1st Dept 2021]).
Third-party plaintiff submits the affidavit of Anthony Cardinale, third party plaintiff's Chief Executive Officer, with accompanying exhibits setting for the underlying facts of its cause of action as required by CPLR 3215[f], (NYSCEF Doc No 101). Third party plaintiff also submits proof of service of the summons and complaint, (NYSCEF Doc No 95), proof of service of this motion upon defendant, (NYSCEF Doc No 118, 119), of this motion upon all appearing parties, an affirmation as to defendant's default pursuant to CPLR 3215[f], (NYSCEF Doc no. 88), and proof of the additional service of the summons upon defendant pursuant to CPLR 3215[g](4), (NYSCEF Doc no. 96). This motion is brought within one year of the default. Additionally, third-party plaintiff filed this motion in accordance with the Decision & Order of this Court, dated, November 9, 2021, (NYSCEF Doc no. 83). Accordingly, third-party plaintiff is entitled to the relief it seeks.