Eighteen Harrison Mgt. LLC v. Gruppo 5 Subpartners Inc.

2024 NY Slip Op 31869(U)

• Court: New York Supreme Court, New York County
• Decided: May 16, 2024
• Status: Unpublished

Opinion

Eighteen Harrison Mgt. LLC v Gruppo 5 Subpartners Inc. 2024 NY Slip Op 31869(U) May 16, 2024 Supreme Court, New York County Docket Number: Index No. 656790/2022 Judge: Emily Morales-Minerva 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. 656790/2022 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 05/22/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice -------------------X INDEX NO. 656790/2022 EIGHTEEN HARRISON MANAGEMENT LLC MOTION DATE 04/09/2024 Plaintiff, MOTION SEQ. NO. 006 -v- GRUPPO 5 SUBPARTNERS INC., DECISION + ORDER ON MOTION Defendant.

-------------------X The following e-filed documents, listed by NYSCEF document number (Motion 006) 76, 77, 78, 79, 80, 81, 82,83, 84, 85,86, 87, 88,89, 90,91,92, 93, 94,95 were read on this motion to/for JUDGMENT- DEFAULT

APPEARANCES:

Reinhardt Savic Foley LLP, New York, New York (Stefan Savic, Esq., of counsel) for plaintiff.

HON. EMILY MORALES-MINERVA:

In this action for, among other things, breach of contract,

EIGHTEEN HARRISON MANAGEMENT LLC ("plaintiff") moves, by notice

of motion dated April 9, 2024, for leave to enter a default

judgment against GRUPPO 5 SUBPARTNERS INC., ("defendant") in the

amount of $724,634.94, together with costs and interest.

Defendant submits no opposition to this motion.

For the reasons set forth below the court grants the

motion.

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BACKGROUND

Plaintiff EIGHTEEN HARRISON MANAGEMENT LLC entered into AIA

Standard Form Agreement ("contract") with defendant GRUPPO 5

SUBPARTNERS INC., to complete a residential construction project

("Project") on or about August 7, 2019. On June 14, 2022,

Plaintiff filed a compliant alleging, breach of contract, unjust

enrichment, common law indemnification, contractual

indemnification, negligence, and breach of fiduciary duty, all

in connection with the Project.

On July 18, 2022, defendant appeared in this action,

through counsel, and filed an answer to plaintiff's complaint.

Since then, the Court (Hon. N. Bannon J.S.C.) has scheduled two

status conferences whereby the defendant failed to appear

NY St Cts Elec Filing (NYSCEF] Doc No. 45, Status Conference

Order, and NY St Cts Elec Filing (NYSCEF] Doc No. 47, Status

Conference Order). As a result of defendant's failure to appear

at the second status conference, the court "ORDERED that

defendant Gruppo 5 Subpartners Inc., is held in default and its

answer is stricken pursuant to 22 NYCRR 202.27" see NY St Cts

Elec Filing [NYSCEF] Doc No. 47, Status Conference Order).

By notice of motion (sequence number 005), dated February

15, 2024, plainti moved, pursuant to CPLR 3215, for an order

granting it a default judgment against defendant. The Court

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denied said motion without prejudice to renewal within 30 days.

The Court reasoned that plaintiff failed to satisfy the

additional service requirements on a defendant corporation

pursuant to CPLR 3215(g) (4) (ii) see Decision and Order, dated

March 12, 2024 [E. Morales-Minerva J.S.C]).

Within 30 days of the denial of plaintiff's motion

(sequence number 005), plainti filed the instant motion

(sequence number 006), seeking an order granting them a default

judgment. No defendants have appeared or submitted any

opposition to the subject application.

ANALYSIS

A proponent for a default judgment must provide proof of

service of the summons and complaint, proof of the facts

con~tituting th~ claim, and proof of the default (CPLR 3215 [f];

see also Gordon Law Firm, P.C. v Premier DNA Corp., 205 AD3d

416, 416 [1st Dept 2022]). Moreover, to plead breach of

contract, the proponent must allege: (1) the existence of a

contract, (2) the plaintiffs' performance under the contract,

(3) the defendants' breach of that contract, and (4) resulting

damages (see Second Source Funding, LLC v Yellowstone Capital,

LLC, 144 AD3d 445 [1st Dept. 2016]).

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Plaintiff has satisfied each of these elements to establish

entitlement to a default judgment.

First, Plaintiff has provided sufficient evidence to

confirm defendant was properly served, and that the service

defects in Motion Sequence 005 have been rectified in compliance

CPLR 3215(g) and Business Corporation Law 303(b) (see NY St Cts

Elec filing [NYSCEF] Doc No. 93, Affidavit of Brian L.

Grossman) .

Second, Plainti offers an affidavit from Plaintiff's sole

manager, Ethem Gungor, in which he established the facts

constituting the claim and damages incurred by plaintiff (see NY

St Cts Elec filing [NYSCEFJ Doc No. 77, Affidavit of Ethem

Gungor). Specifically, Gungor states that the contract provided

for $400.00 in liquidated damages per day if the project was not

substantially completed by October 8, 2020, leading to

$490,000.00 in liquidated damages as of the filing of this

motion. Further, Gungor states, with exhibits attached thereto,

that $16,500.00 was paid to Plaintiff's neighbors to settle

claims of damages caused by Defendant, $49,574.54 was paid by

Plaintiff to subcontractors for work done that was originally

contracted to be paid by Defendant, and $168,560.40 was paid by

Plaintiff to Defendant for work that was never completed,

demonstrated through Plainti 's business records (see NY St Cts

Elec filing [NYSCEF] Doc No. 77, Affidavit of Ethem Gungor).

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It is well settled that a default judgment may be

determinative of liability but not the amount of damages to be

awarded, unless there can be no dispute as to the amount due, in

other words, the amount sought being a "sum certain" see Arent

Fox Kintner Plotkin & Kahn, PLLC v Lurzer GmbH, 297 A.D.2d 590,

590 (1st Dept 2002); Reynolds Secs. v. Underwriters Bank & Trust

Co., 44 N.Y.2d 568 (1978); see also CPLR 3215[a]). Further, a

defendant whose answer is stricken, pursuant to 22 NYCRR 202.27,

"admits all traversable allegations in the complaint, including

the basic allegation of liability, but does not admit the

plaintiff's conclusion as to damages" (see Rokina Opt. Co., Inc.

v Camera King, Inc., 63 NY2d 728 [1984]). Where, however, the

damages are for a sum certain, or a sum which can be made

certain by computation, there is no need to conduct an inquest

to assess the appropriate amount of damages see Curiale v Ardra

Ins. Co., Ltd., 88 NY2d 268, 271 [1996]; see Transit Graphics v.

Arco Distrib., 202 AD2d 241, 241 (1st Dept 1994). The affidavit

of Ethem Gungor sufficiently sets forth the "sum certain"

defendant owes as a result of the alleged breach; thus no

inquest is necessary here.

Accordingly, it is

ORDERED that Plaintiff EIGHTEEN HARRISON MANAGEMENT LLC'S

unopposed motion to enter default judgment against defendant

GRUPPO 5 SUBPARTNERS INC., is granted; it further

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ORDERED that the Clerk of the Court is directed to enter

judgment against defendant GRUPPO 5 SUBPARTNERS INC., in the sum

of $724,634.94, together with costs and disbursements; and it is

further

ORDERED that plaintiff shall serve a copy of this Decision

and Order with notice of entry upon defendant within 30 days

after entry.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

5/16/2024 DATE CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

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

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

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