Opinion
No. 57319/2013.
06-13-2014
Joseph BOTTINO, Plaintiff, v. Joseph MANGI, Defendant.
Susan M. KartenSusan M. Karten Associates New York, for Plaintiff. Joseph Mangi, Mt. Kisco, pro se.
Susan M. KartenSusan M. Karten Associates New York, for Plaintiff.
Joseph Mangi, Mt. Kisco, pro se.
Opinion
WILLIAM J. GIACOMO, J.
The following papers numbered 1 to 6 were considered on plaintiff's motion for a default judgment against defendant.
| PAPERS | NUMBERED |
|---|---|
| Notice of Motion/Affidavit/Exhibits | 1–3 |
| Affidavit in Opposition/Exhibits4–5Reply Affirmation | 6 |
Factual and Procedural Background
Plaintiff commenced this action via a motion for summary judgment in lieu of a complaint on May 8, 2013. Plaintiff claims that defendant owes him $130,000. Plaintiff claims he loaned defendant $151,600 and defendant repaid $40,800 leaving a balance owing of $110,800. He also claims defendant owes him $7,200 in late fees and $7,000 in attorney's fees for a total due of $130,000.
On July 25, 2013, this Court denied plaintiff's motion on the ground that the amount sought was not a sum certain. Plaintiff then submitted a hand written promissory note in the amount of $81,600, a sum certain, yet he sought the sum of $130,000. The Court directed the parties to appear in the Preliminary Conference Part.
On November 13, 2013, plaintiff served defendant with a summons and complaint asserting a cause of action for breach of contract, fraudulent misrepresentation and fraudulent inducement. Plaintiff filed the affidavit of service of the summons and complaint on February 20, 2014. Defendant has neither appeared in the action nor answered.
Plaintiff now moves for a default judgment against defendant.
Defendant opposes the motion on the ground that service was not complete until February 20, 2014 when the affidavit of service was filed. Defendant notes that this default motion was filed before the affidavit of service was filed. Therefore, he argues this motion is not proper. Further, defendant argues that plaintiff failed to comply with CPLR 3215(g)(3)(i) by not sending him the additional notice required regarding the beach of contract claim after his initial default.
In reply, plaintiff argues that defendant's opposition is untimely and should not be considered since the defendant has not appeared in this action and is not seeking to vacate his default in answering.
Discussion
The Court notes that whether or not defendant's opposition is proper, plaintiff fails to establish entitlement to a default judgment on any of his claims.
Plaintiffs' Breach of Contract Cause of Action
With respect to plaintiff's breach of contract action, this application for a default judgment is DENIED.
CPLR 3215(g) (3(I) provides:
When a default judgment based upon nonappearance is sought against a natural person in an action based upon nonpayment of a contractual obligation an affidavit shall be submitted that additional notice has been given by or on behalf of the plaintiff at least twenty days before the entry of such judgment, by mailing a copy of the summons by first-class mail to the defendant at his place of residence in an envelope bearing the legend “personal and confidential” and not indicating on the outside of the envelope that the communication is from an attorney or concerns an alleged debt. In the event such mailing is returned as undeliverable by the post office before the entry of a default judgment, or if the place of residence of the defendant is unknown, a copy of the summons shall then be mailed in the same manner to the defendant at the defendant's place of employment if known; if neither the place of residence nor the place of employment of the defendant is known, then the mailing shall be to the defendant at his last known residence.
Plaintiff does not submit evidence that he complied with this additional notice provision of the CPLR. Accordingly, a default judgment on the breach of contract claim cannot be granted (see Aydin v. New Super Gujrat Auto Repair, Inc., 34 Misc.3d 1221(A), 950 N.Y.S.2d 607 (Table) [NY Sup Ct 2012] ; Bloomingdale Road Judgement Recovery v. Wise, 29 Misc.3d 1078, 912 N.Y.S.2d 385 [NY Sup Ct 2010] ).
Plaintiff's Fraud Claims
On a motion for a default judgment, the movant must submit “proof by affidavit made by the party of the facts constituting the claim” (CPLR § 3215[f] ). Here, while an affidavit of the plaintiff is submitted, the Court holds that it does not establish facts sufficient to warrant the relief plaintiff seeks. (See Matter of Dyno v. Rose, 260 A.D.2d 694, 698, 687 N.Y.S.2d 497 [3rd Dept 1999], appeal dismissed 93 N.Y.2d 998 [1999],lv. den. 94 N.Y.2d 753 [1999] [“If the trial court determines that the allegations in a complaint or affidavit of facts fail to establish a prima facie case, the applicant is not entitled' to the requested relief, even on default”.] ).
To state a cause of action for fraudulent misrepresentation and fraudulent inducement, a plaintiff must allege a misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury (see Gomez–Jimenez v. New York Law School, 103 A.D.3d 13, 956 N.Y.S.2d 54 [1st Dept 2012] ).
In support of his claims, plaintiff submits a hand written note signed by plaintiff and defendant in which plaintiff agreed to lend defendant $81,600. The note states that “collateral for the loan is the personal residence 52 Birch Dr. Katonah, N.Y. 10536 and FAB Restaurant(Bistro 222 Corp.) Main Street, Mt Kisco, N.Y. 10549 ...” Although plaintiff claims the residence and business were collateral for the loan, plaintiff did not place a lien on either the residence or the business.
In his affidavit in support of this application plaintiff claims that defendant “misrepresented his ownership interest” in his personal residence and his restaurant business. Plaintiff does not, however, expressly state the false representations upon which he detrimentally relied. Plaintiff claims that he later learned defendant's house was in foreclosure and that the restaurant had been sold without notice to him as a creditor. However, without detailing the express statements made by defendant upon which plaintiff relied, it is not clear how the fact that defendant's house was subsequently foreclosed or that the business was subsequently sold is relevant to the alleged representations made by defendant. This is especially true since plaintiff claims that these assets were collateral, yet plaintiff did not put a lien on either asset. Here, plaintiff fails to establish all the elements of his fraud cause of actions. See CPLR § 3016(b)
Accordingly, plaintiff's motion for a default judgment on his fraud causes of actions is DENIED. The parties are directed to appear in the Compliance Part on July 10, 2014 as previously scheduled for further proceedings.