Opinion
Index No. 159096/2021 Motion Seq. No. 001
02-27-2023
CHEVON SHERROD, Plaintiff, v. FAIRFIELD INDUSTRIES, INC, THE NEW YORK CITY HOUSING AUTHORITY, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC, THE CITY OF NEW YORK, Defendants.
Unpublished Opinion
MOTION DATE 01/09/2023
DECISION + ORDER ON MOTION
JUDY H. KIM, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 25, 26, 27, 28, 29, 30, 31, 32 were read on this motion for JUDGMENT - DEFAULT.
Upon the foregoing documents, plaintiff s motion for a default judgment against defendant Fairfield Industries, Inc. ("Fairfield") is granted on default and for the reasons set forth below.
To establish her entitlement to a default judgment pursuant to CPLR §3215, plaintiff is required to submit proof of: (i) service of the summons and complaint; (ii) the facts constituting the claim; and (iii) defendant's default in answering or appearing (See Gordon Law Finn, P.C. v Premier DNA Corp,, 165 N.Y.S.3d 691 [1st Dept 2022]). Where, as here, service was initially effected pursuant to BCL §306, plaintiff is also required to additional service of the summons by first class mail to defendant's last known address, per CPLR §3215(g)(4) (See e.g., Sterk-Kirch v Uptown Communications & Elec., Inc., 124 A.D.3d 413, 414 [1st Dept 2015]). Plaintiffs undisputed submissions satisfy these requirements.
Plaintiff s verified complaint states that on July 4, 2020, she tripped and fell in front of 405 East 92nd Street, in New York County, due to an open manhole and/or pothole, sustaining severe injuries (NYSCEF Doc. No. 27 [Compl. at ¶61). The complaint further alleges that the sidewalk and manhole at that location were owned and controlled by Fairfield, which failed to properly maintain them, thereby creating the condition which led plaintiff to trip and fall (Id. at ¶¶36-44, 61]).
In support of her motion, plaintiff also submits an affidavit of merit alleging that:
On July 4, 2020,1 was present on the sidewalk which is located in front of 405 East 92[nd] Street between 1st and York Avenue, in the County, City and State of New York.
At approximately 11:30 p.m., as I was stepping into the sidewalk my left foot went into an open and broken manhole and I suffered multiple injuries to my left ankle, both wrists, neck and back with surgeries.
[M]y injuries, and the incident, were caused by [Fairfield's] failure to cover and secure the open manhole. [Fairfield] caused the dangerous condition to occur. I injured my back and had surgery.(NYSCEF Doc. No. 30 [Sherrod Aff. of Merit at ¶¶2-4]).
The verified complaint and affidavit of merit are sufficient to establish proof of the facts constituting plaintiffs claim (See Bigio v Gooding, __ N.Y.S.3d __, 2023 NY Slip Op 00806 [1st Dept 2023]). Plaintiff has satisfied the remaining requirements of CPLR §3215 through: (i) proof of service of the Supplemental Summons and Amended Verified Complaint upon Fairfield pursuant to BCL §306 (NYSCEF Doc. No. 28); (ii) proof of Fairfield's default (NYSCEF Doc. No. 26 [Goldstein Affirm, at ¶5]); and (iii) proof of the additional mailing required by CPLR §3215(g)(4) through service of the instant motion, with accompanying exhibits (NYSCEF Doc. No. 31 [Affidavit of Service]) (See Group Inc, v Led Residence Inc., 2013 NY Slip Op 31056[U] [Sup Ct, NY County 2013]).
In light of the foregoing, it is
ORDERED that the plaintiffs motion for leave to enter a default judgment as against Fairfield Industries, Inc. is granted, without opposition, to the extent that the plaintiff may enter a default judgment as against defendant Fairfield Industries, Inc. on the issue of liability; and it is further
ORDERED that the issues of apportionment and damages shall be determined at the trial of this matter; and it is further
ORDERED that said trial shall be held following the completion of discovery and plaintiffs filing of a Note of Issue and Certificate of Readiness; and it is further
ORDERED that plaintiff shall serve a copy of this decision and order upon Fairfield Industries, Inc. by first class mail, and certified mail, within ten days of the date of this decision and order; and it is further
ORDERED that plaintiff shall serve a copy of this decision and order upon all other defendants, with notice of entry, within fifteen days of the date of this decision and order; and it is further
ORDERED that plaintiff shall serve a copy of this decision and order, with notice of entry, upon the Clerk of the Court (60 Centre Street, Room 14 IB) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to enter judgment accordingly; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office 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 "efiling" page on this court's website at the address www.nycourts.gov/supctmanh).
This constitutes the decision and order of the Court.