Opinion
524476/18
09-26-2019
ANES, INC., Plaintiff, v. BK COOPER INDUSTRIES INC., 2413 Ocean Realty LLC., and 2409 Ocean Avenue Condominium, Inc., Defendants.
Attorney for Plaintiff: Steven Yuniver, Esq., Steven Yuniver, P.C., 710 Avenue U, Brooklyn, NY 11223 Non appearing defendant: BK Cooper Industries, Inc., 1326 McDonald Avenue, Brooklyn, NY 11230
Attorney for Plaintiff: Steven Yuniver, Esq., Steven Yuniver, P.C., 710 Avenue U, Brooklyn, NY 11223
Non appearing defendant: BK Cooper Industries, Inc., 1326 McDonald Avenue, Brooklyn, NY 11230
Francois A. Rivera, J.
By notice of motion, filed on April 25, 2019, under motion sequence one, plaintiff Anes, Inc. (hereinafter Anes), seeks an order pursuant CPLR 3215 (a), granting a default judgment against defendant BK Cooper Industries, Inc. (hereinafter BK Cooper) and setting the matter down for an inquest on the issue of damages. The motion is unopposed.
Notice of Motion
Affirmation in Support
Affidavit of Merit in Support
Exhibit A-B
BACKGROUND
On December 5, 2018, Anes commenced the instant action for, among other things, breach of contract by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerks Office (KCCO). BK Cooper has not answered the complaint or appeared in the action.
Anes' verified complaint contains forty-six allegations of fact in support of six causes of action including (1) breach of contract as asserted against BK Cooper, (2) unjust enrichment as asserted against 2413 Ocean Realty LLC and 2409 Ocean Avenue Condominium Inc., (3) breach of implied covenant of good faith and fair dealing, (4) violation of General Business Law § 349, (5) quantum meruit, and (6) attorney's fees. Plaintiff's verified complaint alleges the following salient facts. In May 2015, Anes and BK Cooper entered into an agreement wherein BK Cooper would compensate Anes in exchange for Anes' services. Anes alleges that it performed its obligations under the agreement but it has not been compensated by BK Cooper despite its numerous demands for compensation. Anes alleges damages in excess of $75,000.00.
MOTION PAPERS
The plaintiff's motion papers consist of a notice of motion, an affirmation of counsel, an affidavit of merit by Antoni Szymanski (hereinafter Szymankski), President of Anes, Inc. and two annexed exhibits labeled A to B. Exhibit A is a copy of the plaintiff's summons and verified complaint. Exhibit B includes copies of affidavits of service of the commencement papers upon 2413 Ocean Realty LLC, BK Cooper and 2409 Ocean Avenue Condominium, Inc.
LAW AND APPLICATION
Default Judgment
In the instant motion, Anes seeks leave to enter a default judgment against BK Cooper pursuant to CPLR 3215 (a). CPLR 3215 (a) permits a plaintiff to seek a default judgment against a defendant who fails to appear or answer (see CPLR 3215 ; Power Up Lending Group, Ltd. v. Cardinal Resources, Inc. , 160 AD3d 674, 675 [2nd Dept 2018] ). A plaintiff seeking leave to enter a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defaulting defendant's failure to answer or appear (see CPLR 3215 [f] ; Michael v. Atlas Restoration Corp., 159 AD3d 980, 981 [2nd Dept 2018] ). " CPLR 3215 (f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an affidavit made by the party" ( HSBC Bank USA, N.A. v. Betts , 67 AD3d 735, 736 [2nd Dept 2009] ).
Here in support of the instant motion, Anes' affidavit of service demonstrates that service was effectuated upon BK Cooper, on December 13, 2018 at 12:10 p.m., by personally delivering and leaving two copies of commencement papers with an authorized agent of the New York Secretary of State, pursuant to Business Corporation Law § 306 (b) (1). Service of process on a corporation is deemed to be complete upon service to the Secretary of State (see Business Corporation Law § 306 ). Accordingly, Anes has demonstrated proper service upon BK Cooper triggering their obligation to respond to the verified complaint. The affirmation of Anes' counsel demonstrates that BK Cooper has not interposed an answer to the verified complaint.
Anes has also submitted the affidavit of Szymanski, its president, to set forth the facts constituting its claims against BK Cooper. Szymanski avers that he entered into an agreement with BK Cooper on or about May 1, 2015, to improve a property located at 2409 Ocean Avenue, Brooklyn, New York for $371,682.00. Pursuant to the agreement, Szymanski was required to provide labor and materials including measuring concrete and building block concrete, among other things. Although, Szymanski received some payments during the course of his work, upon completing the work on or about July 1, 2018 a balance in excess of $75,000.00 remained. Szymanski alleges that despite his efforts he has been unable to obtain the amount he is owed.
Through the affirmation of its counsel and the affidavits of service of the commencement papers, Anes has demonstrated proper service of the commencement papers on BK Cooper in accordance with CPLR 3215 (f) ( Atlantic Cas. Ins. Co. v. RJNJ Services, Inc. , 89 AD3d 649, 651 [2nd Dept 2011] ). Anes has also established that BK Cooper has not interposed an answer to the verified complaint. Through the affidavit of Szymanski, Anes has provided proof of facts sufficient to establish a viable claim. Anes through its submissions has satisfied the requirements of CPLR 3215 (f) thereby demonstrating entitlement to a default judgment against BK Cooper (see Power Up Lending Group, Ltd. , 160 AD3d at 674 citing Oak Hollow Nursing Ctr. v. Stumbo , 117 AD3d 698, 698-699 [2nd Dept 2014] ).
Inquest
The plaintiff also seeks for the matter to be set down for an inquest on the damages sustained by the plaintiff. There are two remaining defendants that are not in default. An inquest is to be held at the time of trial.
CONCLUSION
Anes Inc.'s motion for an order pursuant CPLR 3215 (a) granting a default judgment against defendant BK Cooper Industries, Inc. is granted and an inquest on damages will be held at the time of trial.
The foregoing constitutes the decision and order of this Court.