Opinion
Index Nos. 156762/2021 596107/2021 Motion Seq. No. 003
07-26-2023
LUIS PABON and NATALIE IRIZARRY, Plaintiffs, v. NEW YORK CITY HOUSING AUTHORITY and WILLIE MANNING, . Defendants. NEW YORK CITY HOUSING AUTHORITY Third-Party Plaintiff, v. WILLIE MANNING Third-Party Defendant.
Unpublished Opinion
MOTION DATE 04/06/2023
DECISION+ ORDER ON MOTION
HON. LESLIE A. STROTH, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 003) 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73 were read on this motion to/for JUDGMENT - DEFAULT.
Defendant/third-party plaintiff New York City Housing Authority (NYCHA) moves and plaintiffs Luis Pabon and Natalie Irizarry (together, plaintiffs) cross-move, pursuant to CPLR 3215, for a default judgment against defendant/third-party defendant Willie Manning (Manning).
I. Background
This personal injury action arises out of a fire started by Manning in an apartment building owned by NYCHA at 2199 Fifth Avenue, New York, New York and where plaintiffs reside (NY St Cts Elec Filing [NYSCEF] Doc No. 50, Michael G. Dempsey [Dempsey] affirmation, exhibit B, ¶ 13; NYSCEF Doc No. 51, Dempsey affirmation, exhibit C, ¶ 5; NYSCEF Doc No. 55, De
NYCHA and plaintiffs now move for a default judgment against Manning. Manning, who has been served by mail with both motions (NYSCEF Doc Nos. 60, Dempsey affirmation, exhibit L; NYSCEF Doc No. 73), has submitted no opposition. Dempsey affirmation, exhibit G, ¶ 5). Manning was indicted after the fire (NYSCEF Doc No. 54, Dempsey affirmation, exhibit F) and later pled guilty to arson in the second degree under Penal Law § 150.15 (NYSCEF Doc No. 56, Dempsey affirmation, exhibit H). In May 2022, Manning was sentenced to eight years imprisonment (id.).
Plaintiffs commenced this action sounding in negligence against NYCHA on July 20, 2021 (NYSCEF Doc No. 50). On December 14, 2021, NYCHA commenced a third-party action against Manning by filing a third-party summons and complaint (NYSCEF Doc No. 55). NYCHA personally served the third-party summons and complaint upon Manning at Attica Correctional Facility, 639 Exchange Street, Attica, New York 14011 on August 17, 2022 (NYSCEF Doc No. 58, Dempsey affirmation, exhibit J).
Meanwhile, on February 17, 2022, plaintiffs filed a supplemental summons and amended complaint to assert direct claims against Manning, who by that time had been named as a third-party defendant (NYSCEF Doc Nos. 67, Gene L. Chertock [Chertock] affirmation, exhibit A). Plaintiffs served Manning with process on March 22, 2022 by delivering the supplemental summons and amended complaint to "CO (John) Cometto" as a person of suitable age and discretion at Anna M. Kross Correctional Facility, 7520 East Elmhurst, New York 11370 (NYSCEF Doc No. 68, Chertock affirmation, exhibit B). Plaintiffs served Manning with process a second time by personally delivering the amended summons and complaint to him at Attica Correctional Facility, P.O. Box 149, 639 Exchange Street, Attica, New York 14011 on November 4, 2022 (NYSCEF Doc No. 69).
NY CHA and plaintiffs,now move for a default judgment against Manning. Manning, who has been served by mail with both motions (NYSCEF Doc Nos. 60, Dempsey affirmation, exhibit L; NYSCEF Doc No. 73), has submitted no opposition.
II. Discussion
A motion for a default judgment must be supported with "proof of service of the summons and complaint[,] ... proof of the facts constituting the claim, [and] the default." CPLR 3215 (f). The plaintiff must offer "some proof of liability ... to satisfy the court as to the prima facie validity of the uncontested cause of action." Feffer v Malpeso, 210 A.D.2d 60, 61 (1st Dept 1994). "The standard of proof is not stringent, amounting only to some firsthand confirmation of the facts" Id. "[A] complaint verified by someone or an affidavit executed by a party with personal knowledge of the merits of the claim" is sufficient. Beltre v Babu, 32 A.D.3d 722, 723 (1st Dept 2006). A party in default "admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiffs conclusion as to damages." Rokina Opt. Co. v Camera King, 63 N.Y.2d 728, 730 (1984).
Addressing NYCHA's motion first, NYCHA has not tendered sufficient proof of service of the third-party summons and complaint. CPLR 306-b provides, in relevant part, that service of a third-party summons and complaint shall be made within 120 days after the commencement of the action. As noted above, NYCHA commenced the third-party action on December 14, 2021, but it did not serve the third-party summons and complaint upon Manning until August 17, 2022, more than eight months later. NYCHA has not proffered any excuse for the delay. Accordingly, NYCHA's motion is denied for its failure to comply with CPLR 306-b. See Commissiong v Mark Greenberg Real Estate Co. LLC, 203 A.D.3d 657, 657 (1st Dept 2022) (denying a motion for a default judgment where service of process was not completed within 120 days). The court also observes that the affidavit of service does not reflect service of a mandatory notice of e-filing as required by Uniform Rules for Trial Courts. See22 NYCRR) § 202.5-bb (b) (3); see also Pollack, Pollack Isaac &De Cicco LLP v Brach, 2022 NY Slip Op. 30755 [U], *3 (Sup Ct, NY County 2022); Maynard v Quick Stop Grocery, 2019 NY Mise LEXIS 24802, *2 (Sup Ct, Queens County 2019).
Turning to the cross-motion, plaintiffs served Manning with a supplemental summons and amended complaint on March 22, 2022 by way of substituted service. The affidavit of service, though, does not reflect additional service of the papers by mail, as required by CPLR 308 (2). See Commissiong, 203 A.D.3d at 657 (deeming service under CPLR 308 [2] incomplete absent proof j of mailing).
Plaintiffs also personally served Manning with the amended summons and complaint on November 4, 2022. CPLR 1009 allows a plaintiff to amend its complaint as of right "[w]ithin twenty days after service of the answer to the third-party complaint upon plaintiffs attorney ... to assert against the third-party defendant any claim plaintiff has against the third-party defendant." Thus, it appears that the time from which to measure whether a plaintiff may assert a direct claim against a third-party defendant without leave of court begins to run when the third-party defendant answers a third-party complaint. Manning, though, did not serve an answer to NYCHA's third- party complaint, and, therefore, it appears that plaintiffs were not permitted to amend their complaint as of right under CPLR 1009 to assert a direct claim against him.
Plaintiffs did not seek leave of court under CPLR 3025 to amend their pleading (see Khedouri v Equinox, 13 A.D.3d 532, 533 [1st Dept 2010] [stating that a supplemental summons and amended complaint served without leave of court is a nullity]), nor did they serve the supplemental summons and amended complaint within 120 days of its filing under CPLR 306-b (see Commissiong, 203 A.D.3d at 657). Moreover, the affidavit of service fails to reflect whether service of the supplemental summons and amended complaint was accompanied by a mandatory notice of e-filing as required by Uniform Rules for Trial Courts (22 NYCRR) § 202.5-bb (b) (3). The court also observes that plaintiffs also rely on the same affidavit of merit (NYSCEF Doc No. 39, Chertock affirmation, exhibit D, Pabon aff; NYSCEF Doc No. 70, Chertock affirmation, exhibit D, Pabon aff) that was previously deemed by the court (Jaffe, J.) as lacking in probative value (NYSCEF Doc No. 40).
Last, neither application is supported by an affidavit attesting to Manning's military status, even though it appears that he has been incarcerated since May 2022.
Accordingly, it is
ORDERED that the motion brought by defendant/third-party plaintiff New York City Housing Authority for a default judgment against defendant/third-party defendant Willie Manning (motion sequence no. 003) is denied; and it is further
ORDERED that the cross-motion brought by plaintiffs Luis Pabon and Natalie Irizarry for a default judgment against defendant/third-party defendant Willie Manning is denied.
The foregoing constitutes the decision and order of the Court.