Opinion
Index Nos. 161113/2019 595001/2020 595068/2021 Motion Seq. No. 002 NYSCEF Doc. No. 209
07-26-2023
ARTHUR J. STRZYZ and JANA STRZYZ, Plaintiffs, v. A.W. & S. CONSTRUCTION CO. INC., 99 HUDSON STREET ASSOCIATES, LLC, 99 HUDSON STREET OWNERS LLC, OLSHAN PROPERTIES, MALL PROPERTIES, INC., and 99 HUDSON CONDOMINIUMS, Defendants. A.W. & S. CONSTRUCTION CO., INC., Third-Party Plaintiff, v. L & L STONE &TILE, LLC and L & L PAINTING CO., INC Third-Party Defendants. 99 HUDSON STREET ASSOCIATES, LLC, 99 HUDSON STREET OWNERS LLC, OLSHAN PROPERTIES and MALL PROPERTIES, INC., Second Third-Party Plaintiffs, v. L & L STONE & TILE, LLC and L & L PAINTING CO., INC., Second Third-Party Defendants.
Unpublished Opinion
MOTION DATE 03/21/2023
DECISION + ORDER ON MOTION
Leslie A. Stroth, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 105, 106, 107, 108, 109, 110, 111, 112, 113, 114 were read on this motion to/for, JUDGMENT - DEFAULT' Plaintiffs Arthur J. Strzyz (Strzyz) and Jana Strzyz (together, plaintiffs) move for a default judgment against defendant 99 Hudson Condominiums (Condominiums) under CPLR 3215.
I. Background
Plaintiffs commenced this Labor Law action against defendant A.W. &S. Construction Co. Inc. (AWS) and defendants 99 Hudson Street Associates, LLC, 99 Hudson Street Owners LLC, Olshan Properties, and Mall Properties, Inc. (collectively, the Owner Defendants) to recover damages for personal injuries Strzyz sustained on November 1, 2019 when he allegedly fell from a scaffold while working in the lobby of the building located at 99 Hudson Street, New York, New York (the Premises) (NYSCEF Doc No. 107, Glenn P. Dolan [Dolan] affirmation, exhibit A at 21-22). AWS and the Owner Defendants have brought separate third-party actions against third-party/second third-party defendants L & L Stone & Tile, LLC and L &L Painting Co., Inc. (NYSCEF Doc No. 109, Dolan affirmation, exhibit C). Then, on February 17, 2022, plaintiffs filed a supplemental summons and amended verified complaint adding Condominiums as a defendant (NYSCEF Doc No. 110, Dolan affirmation, exhibit D). Condominiums allegedly owns, operates, manages, supervises and controls the Premises (id., ¶¶ 24-29).
It does not appear that AWS or the Owner Defendants have served answers to the amended complaint.
Plaintiff now moves for a default judgment against Condominiums for its failure to answer or otherwise appear in this action.
II. Discussion
An application for a default judgment must be supported with "proof of service of the summons and complaint[,] ... proof of the facts constituting the claim, [and] the default." CPLR 3215 (f). In addition to furnishing proof of service, the plaintiff must offer "some proof of liability ... to satisfy the court as to the prima facie validity of the uncontested cause of action." Feffer v Malpeso, 210 A.D.2d 60, 61 (1st Dept 1994). "The standard of proof is not stringent, amounting only to some firsthand confirmation of the facts." Id. "[A] complaint verified by someone or an affidavit executed by a party with personal knowledge of the merits of the claim" satisfies this statutory requirement. Beltre v Babu, 32 A.D.3d 722, 723 (1st Dept 2006). A party in default "admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiffs conclusion as to damage." Rokina Opt. Co. v Camera King, 63 N.Y.2d 728, 730 (1984).
Plaintiffs submit four affidavits purporting to show service of process upon Condominiums. Two of the affidavits concern attempts at service made under Business Corporation Law § 307, which governs service of process upon unauthorized foreign corporations. Plaintiffs, though, have alleged in the amended complaint that Condominiums is a domestic corporation organized and existing under New York law (NYSCEF Doc No. 110, ¶ 5). Thus, it is unclear why plaintiffs attempted to effectuate service under Business Corporation Law § 307.
In any event, with respect to the two attempts at service effectuated under service under Business Corporation Law § 307, only one affidavit of compliance, with proof of service, has been filed with the clerk of the court. See Business Corporation Law § 307 (c) (2); Flick v. Stewart-Warner Corp., 76 N.Y.2d 50, 55 (1990), rearg denied 76 N.Y.2d 846 (1990) (service deemed complete 10 days after the affidavit of compliance together with proof of service is filed with the clerk). The affidavit of compliance concerns service upon the Secretary of State on February 28, 2022, and the notice sent by registered mail, return receipt requested, on March 1, 2022 (NYSCEF Doc No. 90). It does not appear that plaintiffs filed an affidavit of compliance with respect to the second attempt at service under Business Corporation Law § 307 from March 2022.
CPLR 311 (a) (1) provides that personal service upon a domestic or foreign corporation may be made by delivering the summons "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service." The affidavit of service sworn to on February 23, 2022 shows that the supplemental summons and verified amended complaint were personally delivered to "Larry Smith," as "General Agent," on February 23, 2022 at 99 Hudson Street, New York, New York 10013, and by mailing the papers to that address the same day (NYSCEF Doc No. 111, Dolan affirmation, exhibit E at 2). A second affidavit of service sworn to on March 16, 2022 shows that plaintiffs' process server personally delivered the supplemental summons and verified amended complaint to the "Larry Smith," as "General Agent," at 99 Hudson Street, New York, New York 10013, on March 16, 2022 and mailed the papers to that address the same day (id. at 4).
The affidavits of service, though, fail to state whether a mandatory notice of e-filing, as required under Uniform Rules for Trial Courts (22 NYCRR) § 202.5-bb (b) (3), has been served upon Condominiums. Since plaintiffs have failed to demonstrate that the requisite notice was served, their motion for a default judgment must be denied. See Pollack, Pollack Isaac & De Cicco LLP v Brach, 2022 NY Slip Op 30755[U], *3 (Sup Ct, NY County 2022); Maynard v Quick Stop Grocery, 2019 NY Mise LEXIS 24802, *2 (Sup Ct, Queens County 2019).
The motion also suffers from additional infirmities. In his affidavit of merit, Strzyz avers that "[d]efendant 99 HUDSON CONDOMINIUMS was an owner of the building" (NYSCEF Doc No. 113, Dolan affirmation, exhibit G, Strzyz aff, ¶ 9). Not only is the averment wholly conclusory with respect to ownership, but it is unclear whether Condominiums owned the Premises at the time of the subject accident. In addition, plaintiffs served process upon Condominiums at 99 Hudson Street, New York, New York 10013, but they mailed notice of the motion to Condominiums at P.O. Box 303, Bronxville, New York 10708 (NYSCEF Doc No. 114). Plaintiffs have not explained why the motion was served at a different address or how Condominiums is associated with the Bronxville address. Thus, the court is not satisfied that Condominiums was afforded adequate notice of the motion.
Accordingly, it is
ORDERED that the motion of plaintiffs Arthur J. Strzyz and Jana Strzyz for a default judgment against defendant 99 Hudson Condominiums (motion sequence no. 002) is denied with leave to renew.
The foregoing constitutes the decision and order of the Court.