Opinion
Index No. 154867/2022
12-22-2022
Elizabeth HAZAN, Byblos Hospitality Holdings, LLC, Plaintiff, v. Roland BIAMONTE, Gianmarco Di Michele, Otmaro Fabio Portulano, Zeppola Grand Canal Shops Venetian, LLC (De LLC), Zeppola Cafe Grand Canal Shoppes at the Venetian Resort Las Vegas (NV LLC), Zeppola Fashion Show Mall Las Vegas LLC (De LLC), Zeppola Fashion Show Mall Las Vegas LLC (NV LLC), Ambrosia Fashion Show Mall LLC, Defendant.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75 were read on this motion for JUDGMENT - DEFAULT.
In this action, plaintiffs assert thirteen causes of action and seek declaratory, equitable, and monetary relief. By notice of motion, plaintiffs move for a default judgment order on liability and for an inquest on damages against all defendants. Plaintiff Elizabeth Hazan, the managing member of Byblos Hospitality Holdings, LLC, verified the complaint filed on June 9, 2022, thus attesting to the truth of the matters asserted therein (NYSCEF Doc. No. 64).
By letter, plaintiffs’ counsel requests a money judgment instead of an inquest (NYSCEF Doc. No. 75). However, this is insufficient to alter the prayer for relief in the notice of motion. Instead, plaintiffs would have had to amend the notice of motion. In any event, the court would have denied the request to grant plaintiffs a judgment of "at least" $20 million without a hearing to determine the damages that plaintiffs sustained.
On an application for a default judgment, pursuant to CPLR 3215, a plaintiff must submit "proof of service of the summons and the complaint[,] ... proof of the facts constituting the claim, [and] the default" ( CPLR 3215[f] ). By submission of affidavits of service, plaintiffs have shown that they properly served the individual defendant Roland Biamonte, d/b/a La Meridiana I a/k/a La Meridiana Corp. d/b/a Numero 28 ("Biamonte") at his address through substituted service, and that they properly served the individual defendants Gianmarco Di Michele d/b/a 499 7th Ave Corp. d/b/a Zeppola Bakery ("Michele") and Omaro Fabio Portulano d/b/a 499 7th Ave Corp. d/b/a Zeppola Bakery ("Portulano") by substituted service on an employee (NYSCEF doc. nos. 65-67). Plaintiffs have met their burden as against the individually named defendants.
However, the court does not find that plaintiffs have met their burden with respect to the defendant business entities. Plaintiffs submitted affidavits of service that indicate defendants Zeppola Grand Canal Shops Venetian, LLC and Zeppola Café Grand Canal Shoppes at the Venetian Resort Las Vegas LLC (collectively, "Zeppola Grand Canal") have an address of 3377 Las Vegas Blvd S, Suite 2390 M, Las Vegas, NV 89109 (NYSCEF Doc. No. 64 [Complaint], 7). Defendants Zeppola Fashion Show Mall Las Vegas LLC, Zeppola Fashion Show Mall Las Vegas LLC, and Ambrosia Fashion (collectively, "Zeppola Fashion") share the address, 3200 Las Vegas Blvd S, Suite 1540, Las Vegas, NV 89109 (id. , 8).
Plaintiffs purportedly served the Zeppola Grand Canal and Zeppola Fashion defendants at the Biamonte address (NYSCEF Doc. Nos. 68-72). Plaintiffs also mailed the notice of this motion and all supporting papers to the Las Vegas addresses for Zeppola Grand Canal and Zeppola Fashion (NYSCEF Doc. No. 74). There is no explanation as to why service at the Biamonte or Zeppola address was proper.
To obtain a default judgment, the plaintiff must provide "proof of the facts constituting the claim" ( CPLR § 3215 [f] ). If a party with personal knowledge verifies the complaint, the plaintiff has satisfied this requirement (id. ). The allegations in the complaint are sufficient to set forth a prima facie case on its first cause of action, for breach of contract as against Biamonte, Michele, and Portulano, the defaulting defendants.
Upon default, "a defendant admits all traversable allegations contained in the complaint, and thus concedes liability, although not damages" ( HF Mgt. Servs. LLC v Dependable Care, LLC , 198 AD3d 457, 458 [1st Dept 2021] [internal quotation marks and citation omitted]; Petty v Law Off. of Robert P. Santoriella, P.C. , 200 AD3d 621, 621 [1st Dept 2021] [while plaintiff must submit proof of prima facie viability of its claims, "the standard of proof is minimal"] [internal quotation marks and citation omitted]). Accordingly, the court grants the prong of the motion that seeks an inquest on damages. The inquest relates to the first cause of action only, and only as to defendants Biamonte, Michele, and Portulano.
Several of the other causes of action are duplicative. The unjust enrichment claim (second cause of action) is duplicative of the breach of contract claim (see Panwest NCA2 Holdings LLC v Rockland NCA2 Holdings, LLC , 205 AD3d 551, 552 [1st Dept 2022] ). The breach of fiduciary duty claim (sixth cause of action) is duplicative of the breach of contract claim (see I.M.P. Plumbing & Heating Corp. v Munzer & Saunders, LLP , 199 AD3d 569, 571 [1st Dept 2021] ). For the same reason, the cause of action for breach of the covenant of good faith and fair dealing (seventh cause of action) is duplicative (see 320 W. 115 Realty LLC v All Bldg. Constr. Corp. , 194 AD3d 511, 512 [1st Dept 2021] ). Similarly, the embezzlement and fraud claims (fifth and eleventh causes of action) are encompassed by the breach of contract claim (see Stern v H. Dimarzo, Inc. , 19 Misc 3d 1144 [A], 2008 NY Slip Op 51163 [U], *11 [Sup Ct, Westchester County 2008]). As the shareholder's derivative claim (twelfth cause of action) is based on the same allegations as the claim for breach of contract, this claim also should be dismissed. The complaint also contains several claims that, in full or in part, ask for equitable relief. It includes a claim of minority shareholder oppression (third cause of action), which seeks monetary relief but is an appropriate basis for plaintiffs’ demands for declaratory relief (twelfth cause of action, in part; second thirteenth cause of action) and for an accounting (eighth cause of action). Related to this is plaintiffs’ ninth cause of action, which seeks the imposition of a constructive trust, and plaintiff's first thirteenth cause of action, which seeks a recall of defendants’ shares. However, plaintiffs already request this relief in their first and second motions (NYSCEF Doc. Nos. 2, 37), which ask for the appointment of a receiver and injunctive relief.
Plaintiffs also seek attorney's fees. The agreement between plaintiff Byblos and La Meridiana does not provide a right to attorney's fees (see NYSCEF Doc. No. 6). Further, the complaint does not explain why such fees should be awarded. Therefore, the request for attorney's fees is denied.
Accordingly, it is hereby
ORDERED that plaintiffs’ motion for default granted only as to defendants Biamonte, Michele, and Portulano, to the extent of granting default judgment on the first cause of action; and it is further
ORDERED that the issue of damages as to defendants Biamonte, Michele, and Portulano, as stated in the first cause of action, is referred to the Referee's Part to assign a referee to hear and report on the amount due to plaintiffs, and it is further
ORDERED that the motion is denied as to the Zeppola Fashion and Zeppola Grand Central defendants; and it is further
ORDERED that plaintiffs shall serve a copy of this order with notice of entry on all defendants.