Opinion
Index Nos. 157409/2020 596019/2020 MOTION SEQ. No. 005
01-05-2024
STEVEN BORDONARO, Plaintiff, v. E.C. PROVINI CO., INC., BATH & BODY WORKS, LLC, L BRANDS. INC, 441 LEXINGTON AVENUE CO. LIMITED PARTNERSHIP, L BRANDS STORE DESIGN & CONSTRUCTION. INC., ELITE DELIVERY SYSTEMS, LLC, Defendants E.C. PROVINI CO., INC. Third-Party Plaintiff, v. CBI DRYWALL, CORP., ELITE DELIVERY SYSTEMS Third-Party Defendants
Unpublished Opinion
MOTION DATE 03/23/2023
PRESENT: HON. MARY V. ROSADO Justice
DECISION + ORDER ON MOTION
Mary V. Rosado, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 005) 117, 118, 119, 120, 121, 122, 123 were read on this motion to/for RENEWAL.
Upon the foregoing documents, there being no opposition and good cause having been shown. Defendant/Third-Party Plaintiff E.C. Provini Co. Inc.'s ("Provini") motion for leave to renew is granted, and upon reconsideration, Provini's motion for an Order granting default judgement against Defendant/Third-Party Defendant Elite Delivery Systems ("EDS") on liability is granted.
[The remainder of this page is intentionally left blank]
I. Background and Procedural History
For the sake of brevity, see the Court's prior Decision and Order dated January 18, 2023 (NYSCEF Doc. 122). However, the Court adds the following pertinent background summarizing its prior January' 18, 2023 Decision and Order.
On May 9, 2022, Third-Party Defendant CBI Drywall, Inc. ("CBI") filed a motion (Motion Sequence 4) for an Order, inter alia, holding Chris Olivera ("Mr. Olivera"), Principal of Defendant/Third-Party Defendant Elite Delivery' Systems ("EDS"), in contempt for failure to comply with the subpoena duces tecum So-Ordered on December 16, 2021, and ordering Mr. Olivera to produce the requested discovery in compliance with the subpoena (NYSCEF Doc. 83). Provini filed a cross-motion on June 1, 2022 for an Order directing that default judgment be entered against Elite Delivery' Systems on Provini's Third Party Complaint (NYSCEF Doc. 12) for failure to appear (NYSCEF Doc. 121).
On January 18. 2023, this Court issued a Decision and Order on Motion Sequence 4 granting CRT's motion to hold Mr. Olivera in contempt (NYSCEF Doc. 122). The Court's January 18, 2023 Decision and Order denied Provini's cross-motion seeking default judgment against EDS without prejudice, with leave to renew, on the ground that the Third-Party Complaint was not verified by anyone from Provini and failed to include an affidavit from an individual at Provini who has personal knowledge of the merits of Provini s claims (NYSCEF Doc. 122).
In accordance with the Court's January' 18, 2023 Decision and Order, on March 23, 2023 Provini brought the instant motion for leave to renew, and upon renewal, for an Order directing default judgment against EDS on Provini's Third-Party Complaint (NYSCEF Doc. 117).
II. Discussion
A. Provini's Motion for Leave to Renew
Pursuant to CPLR § 2221(d)(2), leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination". Whether to grant leave to renew is in the discretion of the Court (Bank of America, N.A. v. Filho, 203 A.D.3d 594 ; Fulton Market Retail Fish Inc. v. Todtman, Fachamie, Spizz &Johns, PC., 158 A.D.3d 502 11st Dept 2018]).
In accordance with this Court's January 18, 2023 Decision and Order (NYSCEF Doc. 122), and upon receipt of the March 14. 2023 Verification from Provini's President, Joseph Lembo (NYSCEF Doc. 19 at p. 20), Provini's motion for leave to renew is granted.
B. Provini's Renewed Motion for Default Judgment against EDS
An applicant for default judgment against a defendant must submit: (i) proof of service of the summons and complaint, (ii) proof of the facts constituting the claim, and (iii) proof of the defaulting defendant's failure to answer or appear (PF Holding Corp v. AB Quality Health Supply Corp, 189 A.D.3d 645 [1st Dept 2020J). Affidavits submitted in support of default judgment only need to allege enough facts to allow a court to assess where a viable cause of action exists (Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 71 (20031). The Court is mindful that "defaulters are deemed to have admitted all factual allegations in the complaint and all reasonable inferences that How from them (Al Fayed v. Barak, 39 A.D.3d 371, 372 [1st Dept 2007]).
The Court finds that Provini has satisfied proof of service of the Third-Party Summons and Complaint upon EDS by submitting an affidavit of service evidencing service upon EDS through an authorized employee on December 9, 2020 (NYSCEF Doc. 16). Provini has also satisfied its minimal burden of proving the facts constituting its claim by submitting a sworn statement from its President, Joseph Lembo (NYSCEF Doc. 119). Finally, EDS has failed to appear despite its time for doing so having expired. Therefore, entry of default judgment as to liability is appropriate.
Accordingly, it is hereby, ORDERED that Defendant/Third-Party Plaintiff E.C. Provini Co. Inc.'s motion for renewal is granted; and it is further
ORDERED that Defend ant/Third-Party Plaintiff E.C. Provini Co. Inc.'s motion for a default judgment against Defendant/Third-Party Defendant Elite Delivery Systems is granted as to liability; and it is further
ORDERED that an inquest on damages against Defendant/Third-Party Defendant Elite Delivery Systems on Defendant/Third-Party Plaintiff E.C. Provini Co. Inc.'s first cause of action for vicarious liability, second cause of action for contractual indemnification, third cause of action for breach of contract, fourth cause of action for common-law indemnification, and fifth cause of action for contribution is directed; and it is further
ORDERED that a copy of this order with notice of entry be served by the movant upon the Clerk of the General Clerk's Office (60 Centre Street. Room 119), who is directed, upon the filing of a note of issue and a certificate of readiness and the payment of proper fees, if any, to place this action on the appropriate trial calendar for the inquest hereinabove directed; and it is further
ORDERED that within 30 days of entry, counsel for Defendant/Third-Party Plaintiff E.C. Provini Co. Inc. shall serve a copy of this Decision and Order upon Defendant/Third-Party Defendant Elite Delivery' Systems via first-class mail at their last known business address, with notice of entry; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.