Opinion
Index No. 160106/2022 Motion Seq. No. 001
05-24-2023
MARGARITA PASCUAL, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, CITY OF NEW YORK, 145 VERMIL YEA ASSOCIATES, LLC, 145 VERMILYEA, L.P., 145 VERMILYEA CORP., SDG MANGAEMENT CORP., SERVICIOS EXPRESS LA NACIONAL, LTD., "XYZ CORP." d/b/a "LA NACIONAL", Conducting business at 571 West 207th Street, NY, NY and 207 OPTICA INTERNATIONAL, INC., Defendants.
Unpublished Opinion
PRESENT: HON. DENISE M. DOMINGUEZ, JUSTICE
DECISION + ORDER ON MOTION
DENISE M. DOMINGUEZ, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 40, 41, 42, 43, 44, 45, 46, 47 were read on this motion to/for JUDGMENT-DEFAULT :.
Upon the foregoing documents, it is
Upon reading the above listed documents, Plaintiff s motion for default judgment pursuant to CPLR §3215, against Defendants 145 VERMIL YEA CORP., SERVICIOS EXPRESS LA NACIONAL, LTD., and 207 OPTICA INTERNATIONAL, INC., ("non-appearing Defendants") is denied without prejudice.
This personal injury matter arises out of a December 7, 2021 trip and fall incident along . the sidewalk abutting 571-573 West 20th Street in Manhattan.
To establish entitlement to a default judgment against a non-appearing defendant pursuant to CPLR §3215, a plaintiff must show proof of service of the summons and complaint and proof of the facts constituting the claim, the default and the amount due. (see CLPR 3215(f); Gantt v. N. Shore-LIJ Health Sys., 140 A.D.3d 418, 418, 31 N.Y.S.3d 864 [1st Dept 2016]).
In support of the motion, Plaintiff submits an affirmation in support, the affidavits of service on the non-appearing Defendants and the Plaintiffs affidavit of merit (NYSCEF Doc. #41, 43, 44, 45, 46, 47). No opposition has been submitted.
On November 28, 2022, Plaintiff commenced this negligence action against the Defendants (NYSCEF Doc. #1). Defendant "XYZ" CORP, d/b/a "LA NACIONAL" joined issue by filing an answer on January 17, 2023 (NYSCEF Doc. #13). Defendant NEW YORK CITY TRANSIT AUTHORITY joined issue by the filing of an answer on January 19, 2023 (NYSCEF Doc. #15). Defendant SDG MANAGEMENT CORP, joined issue by the filing of an answer on February 2, 2023 (NYSCEF Doc. #20). An amended answer was filed on behalf of SDG MANAGEMENT CORP, and 145 VERMIL YEA ASSOCIATES, L.P. i/s/h/a 145 VERMILYEA, L.P. on February 21, 2023 (NYSCEF Doc. #23). Defendant THE CITY OF NEW YORK joined issue by the filing of an answer on March 29, 2023 (NYSCEF Doc. #33). Neither Defendants 145 VERMILYEA CORP, SERVICIOS EXPRESS LA NACIONAL, LTD, nor 207 OPTICA INTERNATIONAL, INC. have appeared in the action to date.
Plaintiff now moves pursuant to CPLR §3215 for a default judgment against Defendants 145 VERMILYEA CORP, SERVICIOS EXPRESS LA NACIONAL, LTD., and 207 OPTICA INTERNATIONAL, INC, only, due to their respective failure to appear in this matter.
Plaintiff s motion shows that Defendant 145 VERMILYEA CORP, was served via the New York Secretary of State on December 9, 2022 pursuant to CPLR §311 and New York Business Corporation Law ("N.Y. Bus. Corp. Law") §306 (NYSCEF Doc. #5, 47). Plaintiff also shows that Defendant SERVICIOS EXPRESS LA NACIONAL, LTD. was served via the New York Secretary of State on December 9, 2022 pursuant to CPLR §311 and N.Y. Bus. Corp. Law §306 (NYSCEF Doc. #6, 47) and that Defendant 207 OPTICA INTERNATIONAL, INC. was served via the New York Secretary of State on December 9, 2022 pursuant to CPLR §311 and N.Y. Bus. Corp. Law §306 (NYSCEF Doc. #7, 47).
As Plaintiff has claimed that Defendants 145 VERMILYEA CORP, SERVICIOS EXPRESS LA NACIONAL, LTD, and 207 OPTICA INTERNATIONAL, INC. failed to duly appear in this action, Plaintiff was required to provide these non-appearing Defendants with notice per CPLR §3 215(g) [4]. However, Plaintiff did not submit an affidavit or other proof that additional service of the summons was made on the Defendant at least twenty days before the filing of the initial motion for default as per CPLR §3215(g)[4], nor has such evidence been submitted in support of the within motion. (CPLR §3215(g); see Sterk-Kirch v. Uptown Commc'ns & Elec., Inc., 124 A.D.3d 413, 2 N.Y.S.3d 80 [1st Dept 2015]; Balaguer v. 1854 Monroe Ave. Hous. Dev. Fund Corp., 71 A.D.3d 407, 894 N.Y.S.2d 749 [1st Dept 2010]; see also LAM Grp. v. Anthony T. Rinaldi LLC, 11 Mise. 3d 1217(A), 178 N.Y.S.3d 924 [N.Y. Sup. Ct. 2022, Index No. 650465/2022]). Although Plaintiffs attorney affirmation claims that the Summons and Complaint............. were sent to the non-appearing Defendants, neither the dates of such mailings nor evidence of such mailing has been submitted in support of the motion. Accordingly, as the Plaintiff has not established that a second copy of the Summons and Complaint was sent to any of the nonappearing Defendants in accordance with CPLR §3215(g)[4], the motion for default judgment is denied without prejudice.
Additionally, although a party in default is "deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow form them" (Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70-71, 790 N.E.2d 1156, 1162 [2003], the movant must still set forth the facts constituting a viable cause of action against the defaulting party. (Id; see State Farm Mut. Auto. Ins. Co. v. AK Glob. Supply Corp., 203 A.D.3d 556, 165 N.Y.S.3d 507, 509 [1st Dept 2022]).
Upon review, at this juncture, neither the Plaintiffs affirmation in support of motion, nor affidavit of merit, clearly set for sufficient facts showing a viable cause of action as against the non-appearing Defendants.
Plaintiffs complaint (NYSCEF Doc. #1) and Plaintiffs affidavit of merit (NYSCEF Doc. #44) both identify the location of the subject accident 571-573 West 20th Street in Manhattan. However, no explanation is offered as to whether this is a single property that is owned, occupied and maintained by one or more entities or whether this is two different properties having different owners, tenants and property managers. Thus, it is also unclear to this Court what role the nonappearing Defendants may have in connection to the subject premises. Plaintiff s affirmation in support claims that all of the named Defendants collectively owned and occupied the subject premises. This generalized claim does not make clear what role or connection to the premises the non-appearing Defendants may have had, let alone what duty the respective non-appearing Defendants may have owed the Plaintiff.
Moreover, the nature and location of the defective condition complained of are not clearly identified. Neither the affirmation in support, nor Plaintiffs' affidavit of merit specifically identifies what caused her to trip and fall. The only description offered is "unremediated defects". Nor is the location of the "unremediated defects" further identified in any manner. Although photos of what appear to be sidewalk grates are submitted, as the grates are not referenced in any manner in either the affirmation in support or affidavit of merit, their connection to the subject incident is unclear at this juncture (NYSCEF Doc. #43).
Accordingly, for the above reasons, and in light of New York State's strong policy of litigating matters on the merits, (see Peg Bandwidth, LLC v. Optical Commc'ns, 150 A.D.3d 625, 626, 56 N.Y.S.3d 66 (1st Dept 2017), the Plaintiffs motion is denied without prejudice.
It is hereby
ORDERED that the Plaintiffs motion for default judgment against Defendants 145 VERMIL YEA CORP., SERVICIOS EXPRESS LA NACIONAL, LTD., and 207 OPTICA INTERNATIONAL, INC. is denied without prejudice.