Opinion
No. 0402690/2005.
September 23, 2008.
Decision/Order
Recitation, as required by CPLR 2219 [a], of the papers considered in the review of the (these) motion(s): Papers Numbered
NYCHA motion [d j/mt] w/WPP affirm in support, WPP good faith affirm, exhs ......1 Upon the foregoing papers, the decision and order of the court is as follows:This action was brought by plaintiffs to recover based upon alleged personal injuries caused by lead poisoning. Defendant/third-party plaintiff New York City Housing Authority ("NYCHA") now moves for entry of a default judgment against third-party defendants Vanderveer Estates Holding ("Vanderveer"), VE Apartments LLC ("VE") and Pristina Realty Corp ("Pristina"). CPLR § 3215. None of the other appearing parties have taken any position with respect to the motion, although NYCHA has provided proof of service. Therefore, the motion will be considered on default.
NYCHA has demonstrated that service of the third-party complaint was made on Vanderveer, VE and Pristina by service of two copies of the same on the Office of the Secretary of State of New York. CPLR §§ 311 (a) (1); 311-a (a). Nonetheless, these defendants have have not answered the third-party complaint nor otherwise appeared in this action within the time provided under the CPLR.
In the main action, plaintiffs commenced a personal injury action alleging that on or about June 25, 2002, and for a period of time prior thereto, infant-plaintiffs Enrique Dominguez, Gary Dominguez and Karen Dominguez were caused to suffer serious injuries and lead poisoning while residing at 936 Reverend James Polite Boulevard, Bronx, New York (the "Bronx Location") and 1295 Amsterdam Avenue, New York, New York (the "Manhattan Location"). The Bronx location is owned by defendant Gil Small Realty Corp. and the Manhattan Location is owned by NYCHA.
NYCHA commenced a third-party action against Vanderveer, VE and Pristina seeking common law indemnification and contribution. NYCHA alleges that the infant plaintiffs were residing at 1412 New York Avenue, Brooklyn, New York ("1412 New York Ave"), 1417 New York Avenue, Brooklyn New York ("1417 New York Ave.") and 2334 Hughes Avenue, Bronx, New York ("2334 Hughes Ave.") at or about the time that the infant-plaitniffs were allegedly exposed to lead. NYCHA alleges that at the time the infant-plaintiffs resided at the aforementioned addresses, Vanderveer and VE owned 1412 New York Ave and 1417 New York Ave and Pristina owned 2334 Hughes Ave. NYCHA maintains that Vanderveer and VE received a violation from the New York City Housing Preservation Department concerning lead violations found at 1412 New York Ave and 1417 New York Ave. NYCHA also claims that Pristina received a violation from the New York City Department of Health to Abate Nuisance concerning lead paint at 2334 Hughes Ave. NYCHA has not provided any proof of the aforementioned violations.
While a default in answering the complaint constitutes an admission of the factual allegations therein, and the reasonable inferences which may be made therefrom (Rokina Optical Co., Inc. v. Camera King, Inc., 63 NY2d 728 [1984]), 301 West is only entitled to a default judgment in its favor, provided it otherwise demonstrates that it has a prima facie cause of action (Gagen v. Kipany Productions Ltd., 289 AD2d 844 [3d Dept 2001]).
On this motion, NYCHA has not met its burden of demonstrating prima facie causes of action for common law indemnification and contribution against Vanderveer, VE and Pristina. NYCHA has failed to demonstrate that lead was present at 1412 New York Ave, 1417 New York Ave and 2334 Hughes Ave in an amount sufficient to cause the infant-plaintiffs' injuries, in whole or in part, or that the infant-plaintiffs were even exposed to lead at these locations. Therefore, the motion is granted only to the extent that Vanderveer, VE and Pristina's default in appearing in this action is hereby noted. All issues of liability and damages shall be decided at inquest at the time of trial in the main action.
Conclusion
In accordance with this decision, it is hereby:
ORDERED that the motion by defendant/third-party plaintiff NYCHA for entry of a default judgment against third-party defendants Vanderveer, VE and Pristina is hereby granted to the extent that that Vanderveer, VE and Pristina's default in appearing in this action is hereby noted; and it is further
ORDERED that all issues of Vanderveer, Ve and Pristina's liability and NYCHA's damages shall be decided at inquest at the time of trial in the main action.
Any requested relief not expressly addressed herein has nonetheless been considered by the court and is denied.
This shall constitute the decision and order of the court.