Opinion
Index No. 158376/2022 Motion Seq. No. 004
01-08-2024
ANDRII KOZHUKHAR, Plaintiff, v. GRAMERCY PARK RESIDENCE CORP., J & C LAMB MANAGEMENT CORP., TROJAN INTERIORS INC., LCP MANAGEMENT CORP., WORLD CLASS DEMOLITION CORPORATION WCD SERVICES CORP., WORLD CLASS CONTRACTING GROUP INC., LOWER MANHATTAN GASTROENTEROLOGY GROUP, P.C., LAWRENCE OTTAVIANO Defendant.
Unpublished Opinion
MOTION DATE 06/06/2023
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 004) 68, 69, 70, 71. 72, 73, 74 were read on this motion to/for JUDGMENT - DEFAULT.
Upon the foregoing documents, there being no opposition, and good cause having been shown. Plaintiff Andrii Kozhukhar's ("Plaintiff") June 5, 2023 motion for default judgment in favor of Plaintiff and against Defendants LCP Management Corp. ("LCP"), World Class Demolition Corporation ("WCDC"), and Dr. Lawrence Ottaviano ("Ottaviano") (collectively, the "Defaulting Defendants"), is granted in part and denied in part.
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 (PV Holding Corp v AB Quality Health Supply Corp., 189 A.D.3d 645 [1st Dept 2020]). Affidavits submitted in support of a motion for 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 [2003]). In undertaking this review, the Court is mindful that "defaulters are deemed to have admitted all tactual 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 Plaintiff has satisfied proof ot service by attaching affidavits of service showing service made upon Defendant WCDC through the Secretary of State on October 28, 2022, and upon Defendant I.CP through the Secretary of State on November 2, 2022 (NYSCEF Doc. 72). Plaintiff has satisfied his minimal burden of proving the facts constituting his claim by submitting an Affidavit in Support ("NYSCEF Doc. 69). Further, the Defaulting Defendants have failed to appear despite their time for lime for doing so having expired.
However, Plaintiff has failed to submit an affidavit to comply with 50 App USC § 521 concerning Defendant Ottaviano's military' status (see Palisades Acquisition, LLC v Ibrahim, 12 Mise, 3d 340, 342 [Civ Ct, New York County 2006]; 363 Assoc. v Sharhan, 2 Mise 3d 928, 929-30 [Civ Ct NY County' 2003]). This procedural infirmity prevents the Court from granting default judgment against Ottaviano. As this infirmity may be cured, the motion for default judgment as to Ottaviano is denied without prejudice.
Therefore, PlainlifThas established his entitlement to default judgment on the issue of liability in favor of Plaintiff and against the Defaulting Defendants, except as to Defendant Ottaviano, for whom no affidavit of non-military service appears in the record.
Accordingly, it is hereby, ORDERED that Plaintiff And rii Kozhukhar's motion for default judgment against Defendant Dr. Lawrence Ottaviano is denied, without prejudice; and it is further
ORDERED that Plaintiff Andrii Kozhukhar's motion for default judgment against Defendants LCP Management Corp, and World Class Demolition Corporation is granted; and it is further
ORDERED that at the time of trial, an inquest on damages against Defendants LCP Management Corp, and World Class Demolition Corporation on Plaintiff s First and Second causes of action shall be held: and it is further
ORDERED that a copy of this order with notice of entry be served by Plaintiff upon the Clerk of the General Clerk's Office (60 Centre Street, Room 11 9), 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, Plaintiff shall serve a copy of this Order, with notice of entry, upon all parties to this case via first-class mail at their last known business or residential address; and it is further
ORDERED that on or before April 30, 2024, the active parties in the case shall submit a proposed Status Conference Order via e-mail to SFC-Part33-Clerk@nycourts.gov. If the parties are unable to agree to a proposed Status Conference Order, the parties are directed to appear for an in-person status conference on May 1, 2024 at 9:30 a.m. in Room 442, 60 Centre Street, New York, New York; 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.