Wonder Works Constr. Corp v. 29 John St., Llc.

Full title: WONDER WORKS CONSTRUCTION CORP., Plaintiff, v. 29 JOHN STREET, LLC.…

Court: Supreme Court of the State of New York, New York County

Date published: Jan 13, 2010

2010 N.Y. Slip Op. 30080 (N.Y. Sup. Ct. 2010)

Opinion

603075/09.

January 13, 2010.

Decision/Order

JUDITH J. GISCHE, Judge.

Recitation, as required by CPLR 2219 [a], of the papers considered in the review of this (these) motion(s):

Papers Numbered

Pltf's n/m [§ 3215] w/YT affirm, JK affid, exhibits . . . . . . . . . . . 1 Upon the foregoing papers, the decision and order of the court is as follows:

This is an action for breach of an oral contract. Plaintiff now moves, pursuant to CPLR § 3215, for an order directing the Clerk of Court to enter a default judgment in its favor and against defendant, 29 John Street, LLC. This motion has been submitted to the Court without opposition.

The action was commenced by the filing of the summons with notice, filed with the Clerk of the Court on October 6, 2009, setting forth the nature of the action, the rellef sought, and the sum of money for which judgment may be taken in case of default, pursuant to CPLR § 305(b).

Defendant is a domestic limited liability company. Plaintiff complied with the service requirements of CPLR § 311-a and LLC § 303 by serving the summons with notice on the Secretary of State and serving an additional copy on defendant on October 8, 2009. The further notice requirements of CPLR § 3215 do not apply, although plaintiff seeks a money judgment, because defendant is not a natural person (CPLR § 3215 [g] [4] [I]). The time to answer has expired without defendant interposing an answer or otherwise appearing in this action. Therefore, defendant has defaulted in appearing in this motion.

Discussion

Plaintiff is entitled to a default judgment, provided it otherwise demonstrates that it has a prima facie cause of action.Gagen v. Kipany Productions Ltd., 289 A.D.2d 844 (3^rd dept. 2001). A default in answering the complaint constitutes an admission of the factual allegations therein and the reasonable inferences which may be made therefrom [Rokina Optical Co., Inc. v. Camera King, Inc., 63 N.Y.2d 728 (1984)]. An application for a default judgment must be supported by either an affidavit of facts made by one with personal knowledge of the facts surrounding the claim (Zelnick v. Biderman Industries U.S.A., Inc., 242 AD2d 227 [1st Dept 1997]; and CPLR § 3215 [f]) or a complaint verified by a person with actual knowledge of the facts surrounding the claim (Hazim v. Winter, 234 AD2d 422 [2d Dept 1996]; and CPLR § 105 [u]).

Plaintiff provides the sworn affidavit of Joseph Klaynberg, President of plaintiff, who has personal knowledge of the facts surrounding the claim. The following facts have been established by the plaintiff in the summons with notice and through the sworn affidavit of Joseph Klaynberg:

Plaintiff asserts a cause of action against defendant for breach of an oral contract. Plaintiff claims that at the oral request of defendant, that plaintiff performed labor and furnished materials to repair showers in the residential apartments of a building located at 71-73 Nassau Street a/k/a 25-31 John Street, New York, NY ("building"). Plaintiff alleges that it incurred expenses of $210,498.40 for labor and materials and that although it demanded payment by defendant, defendant failed to reimburse plaintiff for such costs.

In order to state a cause of action for breach of contract, the pleading must allege the existence of a valid and enforceable agreement, due performance by plaintiff, and a failure of performance by defendant, resulting in damages (see Furia v Furia, 116 AD2d 694, 695 [2d Dept 1986]).

Plaintiff provides business records indicating that plaintiff spent $109,694.37 on other vendors; $81,971.43 and $ 10,485.81 on labor costs; and further invoices indicate that plaintiff spent $7,075.59 and $1,271.20 on labor costs. The business records and invoices indicate that plaintiff spent a total sum of $210,498.40.

Accordingly, plaintiff's motion for default judgment is granted against defendant for breach of contract and plaintiff is entitled to a money judgment in the amount set forth in the summons with notice, to wit: $210,498.40, with interest from October 6, 2009, the date this action was commenced.

Conclusion

In accordance herewith, it is hereby:

ORDERED that plaintiff's motion is granted and that plaintiff is entitled to a default judgment against defendant; and it is further

ORDERED that the clerk is hereby directed to enter a money judgment in favor of plaintiff, Wonder Works Construction Corporation, and against defendant, 29 John Street LLC, in the amount demanded in the summons with notice, to wit: two hundred ten thousand four hundred ninety-eight and forty cents ($210,498.40); and it is further

ORDERED that interest shall run from the date this action was commenced, October 6, 2009, at the statutory rate.

Any requested relief not expressly addressed herein has nonetheless been considered by the court and is hereby denied.

This shall constitute the decision and order of the Court.