Opinion
No. 570245/24
10-10-2024
Pentagram Design, Inc., Plaintiff-Appellant, v. Change of Heart Clothing Corp., Defendant-Respondent.
Unpublished Opinion
PRESENT: TISCH, J.P., JAMES, PEREZ, JJ.
PER CURIAM
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Carol R. Feinman, J.), entered December 6, 2023, which granted its motion for leave to reargue an order (same court and Judge), dated August 10, 2023, denying its motion for a default judgment, and, upon reargument, adhered to its prior determination.
Order (Carol R. Feinman, J.), entered December 6, 2023, reversed, without costs, the motion for a default judgment granted.
Upon reargument, Civil Court should have granted plaintiff's motion for a default judgment (see CPLR 3215). A party seeking a default judgment must submit proof of service of the summons and complaint and "proof of the facts constituting the claim, the default and the amount due" (CPLR 3215 [f]; see Gantt v North Shore-LIJ Health Sys., 140 A.D.3d 418 [2016]). To demonstrate "facts constituting the claim," the movant need only proffer proof sufficient "to enable a court to determine that a viable cause of action exists" (Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 71 [2003]), which may be accomplished either by submission of an affidavit of merit or by verified complaint (see CPLR 3215 [f]; Woodson, 100 N.Y.2d at 70; Bigio v Gooding, 213 A.D.3d 480, 481 [2023]).
Here, plaintiff's proof, which included a sworn affidavit of merit, a copy of the service contract executed by the parties and a statement from plaintiff's online bank account reflecting a partial payment from defendant to plaintiff, was sufficient to establish a viable cause of action against defendant to recover damages for breach of contract. Because defendant, by defaulting, is deemed to admit "all traversable allegations in the complaint, including the basic allegation [] of liability," the allegations were sufficient for the court to determine that a viable cause of action existed (Al Fayed v Barak, 39 A.D.3d 371, 372 [2007][internal quotation marks omitted]; see also Licurgo-Villar v Samouha, 227 A.D.3d 619, 620 [2024]).