Opinion
Appeal No. 15023 Index No. 25544/17E Case No. 2020-04912 2021-01565
01-11-2022
The Board of Managers of Baychester Villas Condominiums I & II, et al., Plaintiffs-Respondents, v. Gerald Caliendo Architects and Planners et al., Defendants, Ely Development, LLC, et al., Defendants-Appellants. [And a Third-Party Action.] Appeal No. 15023 Case Nos. 2020-04912, 2021-01565
London Fischer LLP, New York (Brian A. Kalman of counsel), for appellants. Bronx Legal Services, Bronx (Michael Corcoran of counsel), for respondents.
London Fischer LLP, New York (Brian A. Kalman of counsel), for appellants.
Bronx Legal Services, Bronx (Michael Corcoran of counsel), for respondents.
Before: Renwick, J.P., Kapnick, Moulton, Kennedy, Scarpulla, JJ.
Amended order, Supreme Court, Bronx County (Wilma Guzman, J.), entered April 8, 2021, which, to the extent appealed from as limited by the briefs, denied the motion of defendants Ely Development, LLC, Stellar Development, LLC, Binesh Shavolian, also known as Joe Shavolian, Behrooz Shavolian, also known as Ben Shavolian, and Nejat Shavolian (collectively, the nonappearing defendants) to dismiss the complaint as against them, unanimously affirmed, with costs.
The motion court properly denied the nonappearing defendants' motion to dismiss the complaint as against them as abandoned based on plaintiffs' failure to seek a default judgment within one year of the nonappearing defendants' default (CPLR 3215[c]). The record demonstrates that in fact, plaintiffs never intended to abandon their action against the nonappearing defendants; on the contrary, plaintiffs granted the nonappearing defendants multiple extensions to serve an answer so that they could work to resolve issues related to their insurance coverage (see Street Snacks, LLC v Bridge Assoc. of Soho, Inc., 156 A.D.3d 556, 557 [1st Dept 2017]; Corbin v Wood Pro Installers, Inc., 184 A.D.2d 234, 234 [1st Dept 1992]). Similarly, plaintiffs indicated their intent to pursue the action against the nonappearing defendants by conducting discovery with the two appearing defendants - one of which, Shelter Rock Builders, LLC, was affiliated with the nonappearing defendants - and maintaining communications with both Shelter Rock's counsel and nonappearing defendants' counsel (see U.S. Bank N.A. v Nunez, 190 A.D.3d 660, 661 [1st Dept 2021]; Brooks v Somerset Surgical Assocs., 106 A.D.3d 624, 625 [1st Dept 2013]).
The allegations in the verified complaint and the submission of photographs showing the alleged construction defects sufficiently demonstrate that plaintiffs' claims have merit (see Smith v Arce, 78 A.D.3d 612, 612 [1st Dept 2010]; Hinds v 2461 Realty Corp., 169 A.D.2d 629, 632 [1st Dept 1991]). Further, the nonappearing defendants fail to demonstrate how they have been prejudiced by plaintiffs' delay in moving for a default judgment (id. at 632).
Defendants' arguments regarding the timeliness of the General Business Law claims and the specificity of Supreme Court's ruling regarding cross claims should be made by way of a motion before Supreme Court.
We have considered the parties' remaining arguments and find them unavailing.