Opinion
INDEX NO. 653711/2018
03-14-2019
PARK SIDE CONSTRUCTION BUILDERS CORP, Plaintiff, v. PACO LAFAYETTE, LLC,LVC 298, LLC,LDP OWNER, LLC,MARCH ASSOCIATES CONSTRUCTION, INC.,DEUTSCHE BANK AG, NY, CRANES EXPRESS INC.,UNITED CONCRETE MIX OF BROOKLYN, TITAN FORMWORK SYSTEMS, LLC,ENGINEERED DEVICES CORP, PHOENIX BUILDING SUPPLY, INC. D/B/A FOREST BUILDING SUPPLY, STRUCTURAL TECHNOLOGIES, LLC,ATLANTIC SPECIALTY INSURANCE COMPANY Defendant.
NYSCEF DOC. NO. 64 PRESENT: HON. ANDREA MASLEY Justice MOTION DATE 12/19/2018 MOTION SEQ. NO. 001
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 001) 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63 were read on this motion to/for JUDGMENT - DEFAULT.
Upon the foregoing documents, it is ordered that defendants Paco Lafayette, LLC, LVC 298, LLC, LDP Owner, LLC, March Associates Construction, Inc., Deutsche Bank AG New York Branch an Atlantic Specialty Insurance Company's (collectively, Moving Defendants) motion for a default judgment is granted in part.
This motion seeks a default judgment against plaintiff for failing to respond to the Moving Defendants' counterclaims. To date, plaintiff has not replied to the counterclaims and has not opposed this motion.
On July 25, 2018, plaintiff commenced this action "to recover money damages arising from defendants LDP Owner LLC's and March Associates Construction, Inc.'s failure to pay [plaintiff] for work performed in accordance with the terms of a written construction contract and to foreclose a mechanic's lien filed against the real property located at 300 Lafayette Street, New York, New York, Block 510, Lot 38" (NYSCEF Doc. No. 2, complaint, ¶ 1). On September 28, 2018, the Moving Defendants filed their answer with counterclaims and cross claims, asserting counterclaims for breach of contract, breach of the covenant of good faith and fair dealing, willful lien exaggeration, negligence, contractual indemnification, and common law indemnification (NYSCEF Doc. No. 30, answer with counterclaims, ¶¶ 64-93). On October 19, 2018, plaintiff's counsel requested an extension to respond to the counterclaims by November 15, 2018 to which the Moving Defendants consented (NYSCEF Doc. No. 56, aff of Alana T. Sliwinski, exhibit 5). Although plaintiff failed to file by November 15th, the Moving Defendants offered to extend the time to file to November 27, 2018 (NYSCEF Doc. No. 57, Sliwinski aff, exhibit 6). To date, plaintiff has failed to respond to the counterclaims.
"When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him" (CPLR 3215[a]). While CPLR 3215 does not specifically mention counterclaims, "the statute's legislative history reveals that it was intended to apply to claims asserted as counterclaims, cross claims, and third-party claims, in addition to those set forth in complaints" (Giglio v NTIMP, Inc., 86 AD3d 301, 307 [2d Dept 2011] [citations omitted]).
On a motion for a default judgment, the movant must submit proof of service of the pleadings, proof of the facts constituting the claim, proof of the default, and amount due by affidavit made by the party (CPLR 3215 [f]). "CPLR 3215 (f) requires that an applicant for a default judgment file proof by affidavit made by the party of the facts constituting the claim" (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 70 [2003]).
The Moving Defendant provide proof that plaintiff was served with a copy of the answer with counterclaims. They also provide adequate proof of their claims arising out of plaintiff's failure to perform its duties under the parties' agreement. In addition to their answer with counterclaims, which adequately states counterclaims for breach of contract, breach of the covenant of good faith and fair dealing, willful lien exaggeration, negligence, contractual indemnification, and common law indemnification, the Moving Defendants submit the affidavit of Avi Kollenscher, vice president of defendant LDP Owner, LLC, attaching exhibits evidencing plaintiff's delay and failure to pay subcontractors, as well as defendants' notice of default and termination. Finally, the Moving Defendants provide their attorney's affirmation, affirming that plaintiff has not replied to the counterclaims or requested another extension of time. Thus, the motion for a default judgment on the Moving Defendants' counterclaims is granted, and the court will hold a hearing on the issue of damages as to these claims.
Accordingly, it is
ORDERED that defendants Paco Lafayette, LLC, LVC 298, LLC, LDP Owner, LLC, March Associates Construction, Inc., Deutsche Bank AG New York Branch an Atlantic Specialty Insurance Company's motion for a default judgment against plaintiff is granted; and it is further
ORDERED that this matter shall be set down for an inquest on damages; and it is further
ORDERED that defendants Paco Lafayette, LLC, LVC 298, LLC, LDP Owner, LLC, March Associates Construction, Inc., Deutsche Bank AG New York Branch an Atlantic Specialty Insurance Company are directed to file a note of issue within 30 days of this order. A failure to file the note of issue will result in dismissal of their counterclaims; and it is further
ORDERED that defendants Paco Lafayette, LLC, LVC 298, LLC, LDP Owner, LLC, March Associates Construction, Inc., Deutsche Bank AG New York Branch an Atlantic Specialty Insurance Company are directed to contact the Part 48 Part Clerk (bhanson@nycourts.gov or 646-386-3265) within 5 days of filing the note of issue to schedule a hearing date; and it is further
ORDERED that defendants Paco Lafayette, LLC, LVC 298, LLC, LDP Owner, LLC, March Associates Construction, Inc., Deutsche Bank AG New York Branch an Atlantic Specialty Insurance Company are directed to serve a copy of this order with notice of entry on plaintiff pursuant to the CPLR, as well as e-file on NYSCEF with an affirmation of service. 3/14/19
DATE
/s/ _________
ANDREA MASLEY, J.S.C.