Opinion
Index No. 805333/2022 Motion Seq. No. 001
05-05-2023
JOHN BOLLINGER, Plaintiff, v. MARC MORDECAI LIECHTUNG, DMD, P.C., Individually and doing business as MANHATTAN DENTAL ARTS, MARC MORDECAI LIECHTUNG, DMD, Individually and doing business as MANHATTAN DENTAL ARTS, NICOLE FARBER, DDS, and DANIEL MOEZINIA, DDS, Defendants.
Unpublished Opinion
MOTION DATE 02/10/2023
AMENDED DECISION + ORDER ON MOTION
JOHN J. KELLEY JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15 were read on this motion to/for JUDGMENT - DEFAULT .
The court's prior decision and order, dated May 2, 2023, is recalled and vacated, upon the court's own motion, to reflect that the plaintiff did not seek relief against the defendant Nicole Farber, DDS, and the following order is substituted therefor:
In this action to recover damages for dental malpractice, the plaintiff moves pursuant to CPLR 3215 for leave to enter a default judgment against the defendants Marc Mordecai Liechtung, DMD, P.C., individually and doing business as Manhattan Dental Arts (the PC), Marc Mordecai Liechtung, DMD, individually and doing business as Manhattan Dental Arts (Liechtung), and Daniel Moezinia, DDS. He has withdrawn the motion as to Moezinia. The PC and Liechtung do not oppose the motion. The motion nonetheless is denied, albeit without prejudice to renewal upon proper papers in connection with the branch of the motion seeking leave to enter a default judgment against the PC and Liechtung.
Where a plaintiff moves for leave to enter a default judgment, he or she must submit proof of service of the summons and complaint upon the defaulting defendant, proof of the defendant's default, and proof of the facts constituting the claim (see CPLR 3215[f]; Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 70-71 [2003]; Gray v Doyle, 170 A.D.3d 969, 971 [2d Dept 2019]; Rivera v Correction Officer L. Banks, 135 A.D.3d 621 [1st Dept 2016]; Atlantic Cas. Ins. Co. v RJNJ Services, Inc. 89 A.D.3d 649 [2d Dept 2011]; Allstate Ins. Co. v Austin, 48 A.D.3d 720, 720 [2d Dept 2008]; see also Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 N.Y.3d 200, 202 [2013]).
The affidavits of service here established that, on October 25, 2022, the plaintiff served process upon the PC pursuant to CPLR 311(a)(1), and upon Liechtung pursuant to both CPLR 308(1) and 308(2), at those defendants' offices, located at 1995 Broadway, Suite 200, New York, New York 10023. The plaintiff's process server checked off pre-printed boxes on the applicable affidavit of service indicating that service was effectuated upon Liechtung "[b]y personally delivering to and leaving [the summons and complaint] with said individual, and that he knew the person so served to be the person mentioned and described in said writ (sic)." The court notes that, nonetheless, in the same affidavit, as well as in a separate affidavit, the process server also checked off the box indicating that Liechtung was served "[b]y delivering a true copy thereof to and leaving with a person of suitable age and discretion, the said premises being the defendants/respondents (place of business) within the State of New York," while failing to check off the box indicating that the process server "completed said service . . . by mailing a copy of the above named process by First Class Mail addressed to the defendant/ witness to the above address of service" With respect to the PC, the process server checked off the box indicating that he served process upon that corporation "[b]y delivering to and leaving with John Doe, refuse to give name, and that he knew the person so served to be the Managing Agent of the corporation, and authorized to accept service," although, in the very same line, he indicated that the managing agent was "Daujia Souvenir-Office Manager."
Inasmuch as a process server's affidavit of service is prima facie evidence of proper service (see Johnson v Deas, 32 A.D.3d 253, 254 [1st Dept 2006]), the court concludes that the PC was properly served with process pursuant to CPLR 311(a)(1), that Liechtung was properly served with process pursuant to CPLR 308(1) but not 308(2), and that each had 20 days after October 25, 2022, or until November 14, 2022, within which to answer or move with respect to the complaint or otherwise appear in the action. The affirmation of the plaintiff's attorney established that neither the PC nor Liechtung answered, moved, or appeared in a timely manner on or before November 14, 2022, and that they thus both were in default as of November 15, 2022.
With respect to the proof of the facts constituting the claim,
"CPLR 3215 does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action (see, 4 Weinstein-Korn-Miller, NY Civ Prac paras. 3215.22-3215.27). The standard of proof is not stringent, amounting only to some firsthand confirmation of the facts"(Joosten v Gale, 129 A.D.2d 531, 535 [1st Dept 1987]; see Martinez v Reiner, 104 A.D.3d 477, 478 [1st Dept 2013]; Beltre v Babu, 32 A.D.3d 722, 723 [1st Dept 2006]). Stated another way, while the "quantum of proof necessary to support an application for a default judgment is not exacting . . . some firsthand confirmation of the facts forming the basis of the claim must be proffered" (Guzetti v City of New York, 32 A.D.3d 234, 236 [1st Dept 2006]). In other words, the proof submitted must establish a prima facie case (see id.; Silberstein v Presbyterian Hosp., 95 A.D.2d 773 [2d Dept 1983]). "Where a valid cause of action is not stated, the party moving for judgment is not entitled to the requested relief, even on default" (Green v Dolphy Constr. Co., 187 A.D.2d 635, 636 [2d Dept 1992]; see Walley v Leatherstocking Healthcare, LLC, 79 A.D.3d 1236, 1238 [3d Dept 2010]). In moving for leave to enter a default judgment, the plaintiff must "state a viable cause of action" (Fappiano v City of New York, 5 A.D.3d 627, 628 [2d Dept 2004]). In evaluating whether the plaintiff has fulfilled this obligation, the defendant, as the defaulting party, is "deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them" (Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 71 [2003]). The court, however, must still reach the legal conclusion that those factual allegations establish a prima facie case (see Matter of Dyno v Rose, 260 A.D.2d 694, 698 [3d Dept 1999]).
Proof that the plaintiff has submitted "enough facts to enable [the] court to determine that a viable" cause of action exists (Woodson v Mendon Leasing Corp., 100 N.Y.2d at 71; see Gray v Doyle, 170 A.D.3d at 971) may be established by an affidavit of a party or someone with knowledge, authenticated documentary proof, or by a complaint verified by the plaintiff that sufficiently detailed the facts and the basis for the defendant's liability (see CPLR 105[u]; Woodson v Mendon Leasing Corp., 100 N.Y.2d at 71; Gray v Doyle, 170 A.D.3d at 971; Voelker v Bodum USA, Inc., 149 A.D.3d 587, 587 [1st Dept 2017]; Al Fayed v Barak, 39 A.D.3d 371, 371 [1st Dept 2007]; see also Michael v Atlas Restoration Corp., 159 A.D.3d 980, 982 [2d Dept 2018]; Zino v Joab Taxi, Inc., 20 A.D.3d 521, 522 [2d Dept 2005]; see generally Mitrani Plasterers Co., Inc. v SCG Contr. Corp., 97 A.D.3d 552, 553 [2d Dept 2012]). For purposes of CPLR 3215, a complaint verified by a party may be employed as proof of the facts constituting the claim (see CPLR 105[u]), but only where it sets forth sufficient, detailed evidentiary facts, rather than mere conclusions (see Celnick v Freitag, 242 A.D.2d 436, 437 [1st Dept 1997]). A verified complaint that is conclusory in nature and devoid of factual allegations constituting the claim is insufficient to demonstrate the requisite proof (see Cohen v Schupler, 51 A.D.3d 706, 707 [2d Dept 2008]; Luna v Luna, 263 A.D.2d 470 [2d Dept 1999]). In other words, the verified complaint must "set forth the facts constituting the alleged negligence" (Beaton v Transit Facility Corp., 14 A.D.3d 637, 637 [2d Dept 2005]).
With respect to the proof of the facts underlying the his claims, the plaintiff relied only upon his attorney's affirmation and his complaint, which was verified only by his attorney "'[A] pleading verified by an attorney pursuant to CPLR 3020(d)(3), [and not by someone with personal knowledge of the facts,] is insufficient to establish its merits'" (DLJ Mtge. Capital, Inc. v United Gen. Tit. Ins. Co., 128 A.D.3d 760, 762 [2d Dept 2015], quoting Triangle Props. #2, LLC v Narang, 73 A.D.3d 1030, 1032 [2d Dept 2010]; see First Franklin Fin. Corp. v Alfau, 157 A.D.3d 863, 865 [2d Dept 2018]). Moreover, the affirmation of an attorney who clams no personal knowledge of the underlying facts is "utterly devoid of evidentiary value, and thus insufficient to support entry of a judgment pursuant to CPLR 3215" (Beltre v Babu, 32 A.D.3d at 723). Hence, the plaintiff's submissions are insufficient to support his motion as against any of the defendants, as they did not constitute proof of the facts underlying his claims against them.
In any event, in the context of a medical or dental malpractice action, generally an affidavit or affirmation of merit from an expert is required unless the matters alleged are within the ordinary experience and knowledge of a lay person (see Fiore v Galang, 64 N.Y.2d 999, 1000-1001 [1985]; Checo v Mwando, 2022 NY Slip Op 31223[U], 2022 NY Misc. LEXIS 1865 [Sup Ct, N.Y. County, Apr. 7, 2022] [Kelley, J.]; Charles v Wolfson, 2019 NY Slip Op 50251[U], 62 Misc.3d 1224[A] [Sup Ct, Bronx County, Mar 6, 2019]). The complaint here alleged malpractice in very general, conclusory, and boilerplate language, alleging only that, from August 28, 2021 through July 12, 2022, all of the defendants departed from good dental care. The complaint provided no specifics or particulars as to how any of the defendants departed from good and accepted practice. Hence, even if properly verified by the plaintiff himself, the complaint was insufficient to support his request for leave to enter a default judgment against any defendant (see LoGiudice v Zavarella, 2019 NY Misc. LEXIS 16235 [Sup Ct, Suffolk County, Nov. 27, 2019]; Charles v Wolfson, 2019 NY Slip Op 50251[U], 62 Misc.3d 1224[A]).
Accordingly, it is
ORDERED that the motion is denied as withdrawn with respect to the plaintiff's request for relief against the defendant Daniel Moezinia, DDS, and denied without prejudice to renewal upon proper papers with respect to the plaintiff's request for relief against the defendants Marc Mordecai Liechtung, DMD, P.C., individually and doing business as Manhattan Dental Arts, and Marc Mordecai Liechtung, DMD, individually and doing business as Manhattan Dental Arts.
This constitutes the Amended Decision and Order of the court.