Garcia-Guzman v. 200 E. 16th St. Hous. Corp.

2024 NY Slip Op 34345(U)

• Court: New York Supreme Court, New York County
• Decided: December 11, 2024
• Docket: Index No. 157512/2022
• Status: Unpublished

Opinion

Garcia-Guzman v 200 E. 16th St. Hous. Corp. 2024 NY Slip Op 34345(U) December 11, 2024 Supreme Court, New York County Docket Number: Index No. 157512/2022 Judge: Denise M. Dominguez 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. !FILED: NEW YORK COUNTY CLERK 12/13/2024 01: 01 PM] INDEX NO. 157512/2022 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/13/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART 35M Justice ---------------------------------------------------------------------------------X INDEX NO. 157512/2022 HUGO GARCIA-GUZMAN, MOTION SEQ. NO. _ _ _O_O_l_ __ Plaintiff,

- V -

200 EAST 16TH STREET HOUSING CORPORATION, DECISION+ ORDER ON CUPSOUL, LLC, ORS ID REAL TY CORP, BRUNI ELECTRIC, INC, PURE GENERAL CONTRACTING, LLC, MOTION

Defendants. -------------------------------------------------------------------------------X CUPSOUL, LLC Third-Party Third-Party Plaintiff, Index No. 595292/2023

-against-

PURE GENERAL CONTRACTING, LLC

Third-Party Defendant. --------------------------------------------------------------------------------X CUPSOUL, LLC Second Third-Party Second Third-Party Plaintiff, Index No. 595266/2024

COLOSSAL DESIGN LLC, ROLANDO MECHANICAL CORP, ROLANDO MECHANICAL OF NY CORP., SPIROS KA TSONOPOLOS

Second Third-Party Defendants. --------------------------------------------------------------------------------X CUPSOUL, LLC Third Third-Party Third Third-Party Plaintiff, Index No. 595406/2024

PHD IN HY AC, INC.

Third Third-Party Defendant. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 60, 61, 62, 63, 64, 65, 66, 67, 68,69 were read on this motion to/for JUDGMENT - DEFAULT

157512/2022 GARCIA-GUZMAN, HUGO vs. 200 EAST 16TH STREET HOUSING CORPORATION Page 1 of 4 ET AL Motion No. 001

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Upon reading the above listed documents, Defendant/Second Third-Party Plaintiff

CUPSOUL, LLC's ("CUPSOUL") motion for default judgment pursuant to CPLR §3215, against

Second Third-Party Defendant COLOSSAL DESIGN LLC ("COLOSSAL") is denied.

This matter arises out of a June 6, 2022 incident that occurred at a work site located at 165

3rd Avenue in Manhattan when the Plaintiff, an employee of COLOSSAL, alleges to have fallen

from a ladder, sustaining various personal injuries. (NYSCEF Doc. 1, 61, 67).

Plaintiff commenced this action on September 2, 2022 (NYSCEF Doc. 1) and CUP SOUL

answered on October 25, 2022 (NYSCEF Doc. 11). CUPSOUL then commenced multiple third

party actions. The second Third-Party action was commenced on March 14, 2024 against

COLOSSAL (NYSCEF Doc. 37).

To establish entitlement to a default judgment against a non-appearing party pursuant to

CPLR §3215, the movant must show proof of service of the summons and complaint and proof of

the facts constituting the claim, the default and the amount due. (see CLPR §3215(f); Gantt v. N.

Shore-LIJ Health Sys., 140 A.D.3d 418 [1st Dept 2016]). In support of the within motion,

CUPSOUL submits an attorney affirmation (NYSCEF Doc. 61 ), an affirmation of merit by Maria

Psoni, a member of CUPSOUL (NYSCEF Doc. 68), pleadings (NYSCEF Doc. 63-64), the

purported affidavit of service on COLOSSAL (NYSCEF Doc. 65) and a copy of the returned

default letter sent to COLOSSAL (NYSCEF Doc. 66). Upon review, CUPSOUL has not

established entitlement to default judgment against COLOSSAL at this time.

CUPSOUL has not shown that COLOSSAL was properly served with the second third

party complaint. The affidavit of service as to COLOSSAL asserts that on March 16, 2024 an

individual identified as "J.B." was served at 3080 30 th Street in Astoria, Queens, New York. The

affidavit of service asserts that service was made on a "corporation" and that the process server

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knew the individual served to be an Authorized Agent. However, COLOSSAL appears to be a

limited liability company, not a corporation. Thus, service would be controlled by CPLR §311-a.

No evidence has been submitted that "J.B.", was a member or manager of COLOSSAL, nor is

there evidence that they were an agent authorized by appointment or designated to receive process.

(See CPLR §311-a).

Additionally, it does not appear that COLOSSAL was duly served with the within motion.

CUPSOUL's June 20, 2024 certified mailing (sent to 3080 30 th Street in Astoria) notifying

COLOSSAL of the default was returned as undeliverable (NYSCEF Doc. 66). However, despite

this returned default notice, the motion for default was apparently served at the same, undeliverable

address in Astoria (NYSCEF Doc. 69).

Finally, CUPSOUL has not established the facts constituting its claims against

COLOSSAL as per CPLR §3215(f). Although a party in default is "deemed to have admitted all

factual allegations contained in the complaint and all reasonable inferences that flow from them"

(Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70-71 [2003]), the movant must still set forth

the facts constituting a viable cause of action against the defaulting party (see State Farm Mut.

Auto. Ins. Co. v. AK Glob. Supply Corp., 203 A.D.3d 556 [1 st Dept 2022]).

With respect to the breach of contract cause of action, the Psoni affirmation does not assert

that CUPSOUL and COLOSSAL entered into any contract or other agreement, nor is a copy of

any contract or agreement between these parties submitted. (see Giordano v. Berisha, 45 A.D.3d

416 [1st Dept 2007]). Thus, there is insufficient evidence showing a viable breach of contract

claim. With respect the causes of action for contribution or common law indemnification, it has

generally been held that default is not warranted until liability is established in the main action.

(see IMP Plumbing & Heating Corp. v. 317 E. 34th St., LLC, 89 A.D.3d 593, 594 [1st Dept 2011],

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citing Multari v. Glalin Arms Corp., 28 A.D.2d 122 [2d Dept 1967], appeal dismissed23 N.Y.2d

740 [1968]). Thus, based upon the evidence submitted, default judgment as to contribution and

common law indemnification is not warranted at this time.

Accordingly, it is hereby

ORDERED that Defendant/Second Third-Party Plaintiff CUPSOUL, LLC's motion for

default judgment pursuant against Second Third-Party Defendant COLOSSAL DESIGN LLC is

denied; and it is further

ORDERED that, within 20 days from the entry of this order, movant shall serve a copy of

this order with notice of entry on all parties by proper CPLR rules and via NYSCEF and upon the

Clerk of the General Clerk's Office, who is hereby directed to make all required notations thereof

in the records of the court.

This constitutes the decision and order of the court.

12/11/2024

DATE

~ CHECK ONE: CASE DISPOSED NON-FI.NAL 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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