Opinion
Index No. 152401/2021
01-12-2024
DOROTHY ROSS, Plaintiff, v. TD INVST CORP, JOELANTER BOBB. TERRANCE BOBB-JONES, BRANDON BOBB-JONES Defendant.
Unpublished Opinion
MOTION DATE 03/17/2023
PRESENT' HON. MARY V. ROSADOPART Justice
DECISION + ORDER ON MOTION
MARY V. ROSADO, J.S.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 41, 42, 43, 44, 45, 46. 47, 48, 49, 50. 51, 52, 53, 54, 55, 56, 57, 58, 59 were read on this motion to/for _JUDGMENT - DEFAULT.
Upon the foregoing documents, Plaintiff Dorothy Ross' ("Plaintiff:) motion for an Order directing entry of a default judgment and a declaratory judgment against Defendants Joelanter Bobb ("Joelamer"). Torrance Bobb-Jones ("Ten-ancc") and Brandon Bobb-Jones ("Brandon") (together, the "Defaulting Defendants"), is granted in part and denied in part.
I. Background
On March 9, 2021 Plaintiff commenced this action against Defendants TD Invest Corp ("TD''), Joelanter as executor of the Estate of Barbara Bobb (the h!Estateh!), and individually as heir, and Tcrrance and Brandon as heirs/distributes of the Estate, concerning 544 West 150th St. New York, New York (the "Subject Property") (NYSCEF Doc 43 at p. 2). Plaintiffs Complaint alleges that Joelanter, as executor of the Estate, did, with knowledge of Plaintiff s right to purchase all remaining interest in the subject property upon the death of Barbara Bobb, attempt to convey an interest to third party TD by deed (Id.), Plaintiffs Complaint asserts a First Cause of Action for breach of contract against the Estate and Defendant Joelanter, a Second Cause of Action for specific performance of the Partnership Agreement dated May 4, 1983 (NYSCEF Doc. 51) compelling the Estate and Defendant Joelanter to transfer title of the Subject Property to Plaintiff, and a Third Cause of Action for a declaratory judgment against all Defendants stating that Defendants have an obligation to accept Plaintiffs purchase offer, that Defendants are obligated to transfer title of the Subject Premises, that Plaintiff is entitled to an Order vacating/annulling the Deed referenced on the NYC Register bearing Document ID No. 2016081100182001, CRFN: 2016000311041, and that such Order so vacating/annulling be recorded against the Subject Property (NYSCBF Doc. 2), On March 17, 2023, Plaintiff brought the instant motion for an Order, inter alia, (a) directing that a default judgment be entered against Defendants Joelanter, Terrance, and Brandon (together, the "Defaulting Defendants”) pursuant to CPLR 3215; (b) declaring, pursuant to CPLK. 3001, as against the Defaulting Defendants, that the Agreement dated May 4, 1983 (KYSCEF Doc. 51), entered between Barbara Bobb, now deceased, and Plaintiff concerning the Subject Premises, is binding and enforceable against Barbara Bobb and her heirs, agents, and assigns' (c) that said Agreement created in Plaintiff the right of first refusal; (d) that Plaintiff properly exercised that right; and (c) declaring that Plaintiff is entitled to specific performance of the Agreement (NYSCEF Doc. 41).
While Plaintiffs motion is not opposed by the Defaulting Defendants, Defendant TD filed an Affirmation on June 6, 2023, opposing Plaintiffs motion solely on the ground that the declaratory relief sought by Plaintiff would be adverse to and affect TD's rights and interests in the Subject Property (NYSCEF Doc. 55).
II. Discussion
a. Plaintiffs Motion for a Default Judgment Against the Defaulting Defendants
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 (PV Holding Corp v AB 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 flow from them (Al Fayed v Barak. 39 A.D.3d 371, 372 [1st Dept 2007]).
The Court finds that Plaintiff has satisfied proof of service by providing Affidavits of Service evidencing service effectuated upon Defendant Joelanter on May 24, 2021 (NYSCEF Doc. 45), upon Defendant Brandon on May 24, 2021 (NYSCEF Doc. 46), and upon Defendant Terrence on May 24, 2021 (NYSCEF Doc. 47). Plaintiff has also satisfied his minimal burden of proving the facts constituting her claim by submitting an Affidavit of Merit dated March 17. 2023 (NYSCEF Doc. 42). Further, the Defaulting Defendants have failed to file Answers or otherwise appear despite their time for doing so having expired.
In light of the foregoing, entry of Default Judgment in favor of Plaintiff and against the Defaulting Defendants is warranted as to liability on Plaintiffs First Cause of Action for Breach of Contract.
b. Plaintiffs Request for Declaratory Judgment is Denied
A court "ordinarily must, refuse to render a declaratory judgment in the absence of one or more persons who are interested in or might be affected by the enforcement of the rights and legal relations concerning which a declaration is sought and who might question in a court the existence and scope of such rights (Nat 7 Sur. Corp. v Peccichio, 48 Misc.2d 77, 77- 78, 264 N.Y.S.2d 177, 178 (Sup. Ct. 1965); Citing (Wood v. City of Salamanca, 289 N.Y. 279, 282-283 [19421). Further, it is well established that "the decision to grant a declaratory judgment on default is a discretionary one and the court should deny it where the declaratory relief requested clearly affects the rights of other parties not alleged to be in default" (Unitrin Advantage Insurance Co. v. Carothsrs, 17 Misc.3d 1121 [A], 851 N.Y.S.2d 74 : 2007 NY Slip Op 52100[U] [Sup. Ct. 2007])
Here, Defendant TD is not alleged to be in default. Therefore, the declaratory relief sought by Plaintiff must be denied, as the granting of such relief would have an adverse impact on TD's rights and interests in the Subject Property.
Accordingly, it is hereby, ORDL'RED that Plaintiff Dorothy Ross' motion for default judgment in favor of Plaintiff and against Defendants Joelanter Bobb, Terrancc Bobb-Jones and Brandon Bobb-Jones, is granted as to liability on Plaintiffs First Cause of Action for breach of contract; and it is further
ORDERED that Plaintiff Dorothy Ross: motion for a declaratory judgment is denied in its entirety; and it is further
ORDERED that at the time of trial, an inquest on damages against Defendants Joelanter Bobb. Terrancc Bobb-Jones and Brandon Bobb-Jones on Plaintiffs first Cause of Action for breach of contract is directed; and it is further
ORDERP.D 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 hereinabove directed; and it is further
ORDERED that such service shall he 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.nvcourts.pov/supcImanh); and it is further
ORDERED that the active parties in (his ease arc directed to submit a proposed Compliance Conference Order to the Court on or before March 5, 2024 via e-mail to SFC-Part33-Clerk@.nycourts.gov. If the parties are unable to agree to a proposed Compliance Conference Order, the parties are directed to appear for an in-person compliance conference with the Court on March 6, 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, counsel for Plaintiff 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
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.