Carpio v. 700 Third Ave. Assoc., LLC

2024 NY Slip Op 31971(U)

• Court: New York Supreme Court, New York County
• Decided: June 6, 2024
• Status: Unpublished

Opinion

Carpio v 700 Third Ave. Assoc., LLC 2024 NY Slip Op 31971(U) June 6, 2024 Supreme Court, New York County Docket Number: Index No, 161070/2022 Judge: Judy H. Kim Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 161070/2022 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/06/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 161070/2022 RICARDO CARPIO, MOTION DATE 05/30/2023 Plaintiff, MOTION SEQ. NO. 001 - V -

700 THIRD AVENUE ASSOCIATES, LLC, KASSIS DECISION + ORDER ON MANAGEMENT INC., ARNOLD SHOE REPAIR, INC., MOTION Defendants. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19,20, 31, 32, 33, 34, 35, 36, 37, 38, 39 were read on this motion to/for JUDGMENT - DEFAULT

Upon the foregoing documents, plaintiffs motion for a default judgment as against

defendants 700 Third A venue Associates, LLC and Kassis Management Inc. (collectively, the

"Moving Defendants") is denied and the Moving Defendants' cross-motion to compel plaintiff to

accept their late Answer is granted.

FACTUAL BACKGROUND

Plaintiff commenced this action on December 27, 2022, alleging that, while repairing

telephone lines in the basement of 168 East 44th Street, he slipped and fell due to an accumulation

of water from leaking pipes and sustained injuries (NYSCEF Doc. No. 1 [Complaint at ,J9]). Kassis

Management Inc. was served on January 9, 2023, by service on the New York State Secretary of

State (NYSCEF Doc. No. 5). 700 Third Avenue Associates, LLC was served in the same manner

on February 22, 2023 (NYSCEF Doc. No. 6).

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Plaintiff filed the instant motion on May 30, 2023. In support of the motion, he submits an

affidavit of merit in attesting that:

On July 23, 2021, I sustained serious personal injuries while lawfully in the basement of the premises known as 168 East 44th Street, New York, New York 10017 to repair telephone wires and I was caused to slip mad fall due to an accumulation of water from leaking from the pipes.

Based upon the personal injuries and economic loss that I have sustained as a result of the negligence of the defendants herein, I believe that 1 have a meritorious cause of action against the defendants, 700 Third A venue Associates, LLC and Kassis Management Inc.

(NYSCEF Doc. No. 13 [Aff. of Merit at ,J,J2-3]).

On January 19, 2024, the Moving Defendants filed their opposition to plaintiffs motion,

and cross-moved to compel plaintiff to accept their untimely Answer, also filed on that date. In

their opposition, the Moving Defendants explain that their delay in answering was because they

did not receive the summons and complaint until January 18, 2024, as the Moving Defendants'

corporate addresses listed with the New York State Secretary of State were out-of-date at the time

of plaintiffs service (NYSCEF Doc. No. 31 [Fippinger Affirm. in Opp. at,J,Jl2-13]).

DISCUSSION

In order to establish his entitlement to a default judgment pursuant to CPLR §3215, plaintiff

must submit proof of: (1) service of the summons and complaint; (2) the facts constituting the

claim; and (3) defendants' default in answering or appearing (See Gordon Law Firm, P.C. v

Premier DNA Corp., 205 AD3d 416,416 [1st Dept 2022]).

"CPLR §3215 does not contemplate that default judgments are to be rubberstamped once

jurisdiction and a failure to appear has been shown. Some proof of liability is also required to

satisfy the court as to the prima facie validity of the uncontested cause of action" (Peffer v Mal peso,

210 AD2d 60, [1st Dept 1994 ]). "The standard of proof is not stringent, amounting only to some

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firsthand confirmation of the facts" (Id.). An affidavit of merit setting forth only vague and

conclusory assertions is insufficient to satisfy this standard (See Peacock v Kalikow, 239 AD2d

188, 190 [1st Dept 1997]).

In this case, plaintiff has not established proof of the facts constituting his claim, as his

affidavit of merit fails to set forth, with specificity, the manner in which each of the Moving

Defendants' was negligent and how such negligence caused plaintiffs injuries (See Martinez v

Reiner, 104 AD3d 477 [1st Dept 2013]; see also Onewest Bank, FSB v Deutsche Bank, 2013 NY

Slip Op 34237[U] [Sup Ct, Bronx County 2013] [an affidavit of merit "cannot be premised on a

surmise or on speculation, even if a reasonable probability supports such assertion"]). Accordingly,

plaintiffs motion is denied.

The Moving Defendants' cross-motion is granted. CPLR §3012(d) permits a court to

extend any party's time to plead or compel acceptance of an untimely pleading after considering

"the length of the [movant's] delay, the excuse offered, the extent to which the delay was willful,

the possibility of prejudice to adverse parties, and the potential merits of any defense" (Emigrant

Bank v Rosabianca, 156 AD3d 468, 472 [1st Dept 2017]). In this case, while the Moving

Defendants' delay in answering was significant and their excuse for this delay-an outdated

address on file with the Secretary of State-is less than compelling (See Crespo v A.D.A. Mgt.,

292 AD2d 5 [1st Dept 2002]), the foregoing is outweighed by plaintiffs failure to establish any

prejudice by the delay (and plaintiffs months-long delay in moving for a default judgment) and

defendants' potentially meritorious defenses, in light of the State's strong preference for resolving

cases on the merits (See Harrison v 345 Lenox, LLC, 2022 NY Slip Op 34160[U] [Sup Ct, NY

County 2022]; see also Sanchez v Frederic Fekkai (Mark NY) LLC, 2022 NY Slip Op 32774[U]

[Sup Ct, NY County 2022]).

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Accordingly, it is

ORDERED that plaintiffs motion for a default judgment is denied; and it is further

ORDERED that 700 Third Avenue Associates, LLC and Kassis Management Inc.' s cross-

motion is granted and their Answer dated January 18, 2024 (NYSCEF Doc. No. 27) is deemed

timely filed and served nunc pro tune; and it is further

ORDERED that counsel for 700 Third Avenue Associates, LLC and Kassis Management

Inc. shall serve a copy of this decision and order, with notice of entry, upon plaintiff as well as the

Clerk of the Court and the Clerk of the General Clerk's Office within ten days of the date of this

decision and order; and it is further

ORDERED that the parties are to appear in Part 4 (80 Centre Street, room 308) for a

preliminary conference on August 16, 2024 at 10:00 am.

This constitutes the decision and order of the Court.

6/6/2024

8 DATE HON. JUDY H. KIM, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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