Opinion
INDEX NO. 652382/2020
12-02-2020
215 WEST 28TH STREET PROPERTY OWNER LLC,225 WEST 28TH STREET PROPERTY OWNER LLC,HAP CONSTRUCTION LLC,AND, 213-227 WEST 28TH STREET LLC, Plaintiff, v. SIBK CONSTRUCTION GROUP LLC,VLAD LYUBARSKY, PATRICK SINCHAK, DIMITRI SHUTOV, YEVGEN DOLOTOV, ALEXANDER TUKMANIAN, EASTERN HOISTING AND CRANE SERVICE INC.,UNITED RENTALS INC.,FERRARA LUMBER, CORP., US CONCRETE INC.,PCI CONTRACTING INC.,REINFORCING SUPPLY LLC,NEW YORK CONCRETE CORP., HOWARD I. SHAPIRO ASSOCIATES CONSULTING ENGINEERS P.C.,BARKER STEEL LLC,GREG'S IRON WORK INC.,TITAN FORMWORK SYSTEMS LLC,COLONY HARDWARE CORPORATION, SUPERSTRUCTURE SAFETY NETTING INC.,DNV EQUIPMENT CORP., FELDMAN LUMBER US LBM LLC,HD SUPPLY CONSTRUCTION & INDUSTRIAL WHITE CAP, BOWNE TECH CONSTRUCTION CORP., NEW YORK CONCRETE WASHOUT SYSTEMS, INC.,SUNBELT RENTALS, INC.,JOHN DOE 1 THROUGH JOHN DOE 10, Defendant. SIBK CONSTRUCTION GROUP LLC Plaintiff, v. DAIWA HOUSE TEXAS, INC., 215-219 WEST 28TH STREET MAZAL OWNER LLC Defendant.
NYSCEF DOC. NO. 261 MOTION DATE 10/26/2020, 10/26/2020, 10/26/2020, 10/26/2020, 10/26/2020, 10/26/2020 MOTION SEQ. NO. 005 007 008 009 010 011
DECISION + ORDER ON MOTION
HON. ANDREA MASLEY: The following e-filed documents, listed by NYSCEF document number (Motion 005) 140, 141, 142, 143, 144 were read on this motion to/for JUDGMENT - DEFAULT. The following e-filed documents, listed by NYSCEF document number (Motion 007) 150, 151, 152, 153, 154 were read on this motion to/for JUDGMENT - DEFAULT. The following e-filed documents, listed by NYSCEF document number (Motion 008) 155, 156, 157, 158, 159 were read on this motion to/for JUDGMENT - DEFAULT. The following e-filed documents, listed by NYSCEF document number (Motion 009) 160, 161, 162, 163, 164 were read on this motion to/for JUDGMENT - DEFAULT. The following e-filed documents, listed by NYSCEF document number (Motion 010) 165, 166, 167, 168, 169 were read on this motion to/for JUDGMENT - DEFAULT. The following e-filed documents, listed by NYSCEF document number (Motion 011) 170, 171, 172, 173, 174 were read on this motion to/for JUDGMENT - DEFAULT.
In motion sequence number 005, plaintiffs move, pursuant to CPLR 3215, for a default judgment against defendant Bowne Tech Construction Corp. for its failure to answer or appear in this action. In motion sequence number 007, plaintiffs move, pursuant to CPLR 3215, for a default judgment against defendant Ferrara Lumber Corp. for its failure to answer or appear in this action. In motion sequence number 008, plaintiffs move, pursuant to CPLR 3215, for a default judgment against defendant Greg's Iron Work Inc. for its failure to answer or appear in this action. In motion sequence number 009, plaintiffs move, pursuant to CPLR 3215, for a default judgment against defendant Reinforcing Supply LLC for its failure to answer or appear in this action. In motion sequence number 010, plaintiffs move, pursuant to CPLR 3215, for a default judgment against defendant Sunbelt Rentals, Inc. for its failure to answer or appear in this action. In motion sequence number 011, plaintiffs move, pursuant to CPLR 3215, for a default judgment against defendant Super Structure Safety Netting Inc. for its failure to answer or appear in this action.
"On a motion for a default judgment under CPLR 3215 based upon a failure to answer the complaint, a plaintiff demonstrates entitlement to a default judgment against a defendant by submitting: (1) proof of service of the summons and complaint; (2) proof of the facts constituting its claim; and (3) proof of the defendant's default in answering or appearing" (Medina v Sheng Hui Realty LLC, 2018 WL 2136441, *6-7 [Sup Ct, NY County 2018] [citations omitted]).
"Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action. The standard of proof is not stringent, amounting only to some firsthand confirmation of the facts" (Feffer v Malpeso, 210 AD2d 60, 61 [1st Dept 1994] [citations omitted]). CPLR 3215 (f) requires a plaintiff to submit "proof of the facts constituting the claim, the default and the amount due by affidavit ... . Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney."
Here, plaintiffs have failed to satisfy this minimal standard. The amended complaint is not verified, and plaintiffs have not submitted an affidavit from a person who has knowledge of the facts supporting its claims. This is required in order for the court to deem the factual allegations of the amended complaint admitted and to examine whether the facts give rise to the causes of action alleged (see IMG Intl. Mktg. Group, Inc. v SDS William St., LLC, 32 Misc 3d 1233[A], 2011 NY Slip Op 51561[U], *3 [Sup Ct, NY County 2011]).
Further, the court notes that plaintiffs did not submit memoranda of law in support of their motions. "[A]n affirmation may be filed, under penalties of perjury, not in place of a brief but in place of an affidavit, by an attorney admitted to practice in New York. Affirmations, like affidavits, are reserved for a statement of the relevant facts; a statement of the relevant law and arguments belongs in a brief (i.e., a memorandum of law)" (Tripp & Co., Inc. v Bank of NY (Del), Inc., 2010 NY Slip Op 51274[U], *6 [Sup Ct, NY County 2010] [citation omitted], citing 22 NYCRR § 202.8 [c] [Affidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law]).
Accordingly, it is
ORDERED that motion sequence numbers 005, 007, 008, 009, 010, and 011 are denied without prejudice. Motion Seq. No. 005: 12/2/20
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ANDREA MASLEY, J.S.C. Motion Seq. No. 007: 12/2/20
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ANDREA MASLEY, J.S.C. Motion Seq. No. 008: 12/2/20
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ANDREA MASLEY, J.S.C. Motion Seq. No. 009: 12/2/20
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ANDREA MASLEY, J.S.C. Motion Seq. No. 010: 12/2/20
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ANDREA MASLEY, J.S.C. Motion Seq. No. 011: 12/2/20
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ANDREA MASLEY, J.S.C.