Opinion
Index Nos. 151901/2022 595027/2023 Motion Seq. No. 001
01-08-2024
OLEG ZIBOROV, Plaintiff, v. 427 E 90 OWNER LLC., 427 EAST 90TH OWNER LLC. B O.S.S. ASSOCIATES, INC..STARLITE PLMG &HTG CORP., Defendant. STARLITE PLMG & HTG CORP. Plaintiff v. ALTAIR PLUMBING AND HEATING CORP., Defendant.
Unpublished Opinion
MOTION DATE 05/10/2023
DECISION+ ORDER ON MOTION
HON. MARY V. ROSADO, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 001} 26. 27. 28. 29, 30, 31,32,33,34,35,36,38,39 were read on this motion to/for JUDGMENT - DEFAULT.
Upon the foregoing documents, there being no opposition, and good cause having been shown. Defendant/Third-Party Plaintiff Starlight Plumbing &Heating Corp.'s ("Starlight") May 10, 2023 motion directing entry of default judgment in favor of Starlight and against Third-Party Defendant Altair Plumbing &Heating Corp. ("Altair"), is granted.
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 (PC Holding Corp v. AP 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 [2003J). In undertaking this review, the Court is mindful that "defaulters are deemed to have admitted all factual 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 Starlight has satisfied proof of service by providing an Affidavit of Service evidencing service of the Third-Party Summons and Verified Third-Party Complaint upon Altair through a person authorized to receive such service at the Department of State on January 1 7, 2022, and upon Altair through their agent on January 27. 2023 (NYSCEF Doc. 34). Starlight has also satisfied its minimal burden of proving the facts constituting its claim by submitting an Affidavit of Merit on May 4, 2023 (NYSCEF Doc. 28). Further, Altair has failed to file an Answer to Starlight's Third-Party Complaint or otherwise appear despite its time for doing so having expired. Therefore, entry- of default judgment as to liability against Altair and in favor of Starlight on the first and second causes of action asserted in Starlight's Verified Third-Party Complaint, is appropriate.
Accordingly, it is hereby, ORDERED that Defendant/Third-Party Plaintiff Starlight Plumbing &Heating Corp.'s motion for default judgment against Third-Party Defendant Altair Plumbing &Heating Corp, is granted as to liability on the first and second causes of action asserted in Starlight's Verified Third-Party Complaint; and it is further
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ORDERED that at the time of trial, an inquest on damages against Third-Party Defendant Altair Plumbing &Heating Corp, on the first and second causes of action asserted in Defendant/Third-Party Plaintiff Starlight Plumbing &Heating Corp.'s Verified Third-Party Complaint, is directed; and it is further
ORDERED that a copy of this Order with notice of'entry be served by the movant upon the Clerk of the General Clerk's Office (60 Centre Street, Room 119), 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 calendar for the inquest herein above directed; and it is further
ORDERED that such service shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-filing" page of the court's website at the address www,nycourts. gov/supctmanh); and it is further
ORDERED that the active parties in this case arc directed to submit a proposed Status Conference Order to the Court on or before February 6, 2024 via e-mail to SFC-Part33-Clerk@nvcourts.gov. If the parties arc unable to agree to a proposed Status Conference Order, the parties arc directed to appear for an in-person status conference with the Court on February 7. 2024 at 9:30 a.m, in 60 Centre Street, Room 442, New York, New York; and it is further
ORDERED that within 30 days of entry, Defendant/Third-Party Plaintiff Starlight Plumbing &Heating Corp shall serve a copy of this Decision and Order, with notice of entry, via first-class mail, on all parties to this case at their last known business or residential address; and it is further
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ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.