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

2024 NY Slip Op 34344(U)

Opinion

Garcia-Guzman v 200 E. 16th St. Hous. Corp. 2024 NY Slip Op 34344(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. 101 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. _ _ _00_2_ __ Plaintiff,

- V-

200 EAST 16TH STREET HOUSING CORPORATION, DECISION+ ORDER ON CUPSOUL, LLC, ORSID 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 KATSONOPOLOS

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

PHO IN HV AC, INC.

Third Third-Party Defendant. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 0, 71, 72, 73, 74, 75, 76, 77, 78, 79 were read on this motion to/for JUDGMENT- DEFAULT

157512/2022 GARCIA-GUZMAN, HUGO vs. 200 EAST 16TH STREET HOUSING CORPORATION Page 1 of4 ETAL Motion No. 002

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

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

Second Third-Party Defendant ROLANDO MECHANICAL OF NY CORP ("ROLANDO

MECHANICAL") 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 alleges to have fallen from a ladder, sustaining various

personal injuries. (NYSCEF Doc. 1, 71 ).

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

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

ROLANDO MECHANICAL (NYSCEF Doc. 74).

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. 71 ), an affirmation of merit by Maria

Psoni, a member of CUPSOUL (NYSCEF Doc. 78), pleadings (NYSCEF Doc. 73-74), the

affidavit of service (NYSCEF Doc. 75) and a copy of the default letter sent to ROLANDO

MECHANICAL (NYSCEF Doc. 76). Upon review, CUPSOUL has not established entitlement to

default judgment against ROLANDO MECHANICAL at this time.

CUPSOUL has shown that ROLANDO MECHANICAL was served with the second third

party complaint on March 16, 2024 (NYSCEF Doc. 75) and that a June 20, 2024 notice of default

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was sent to ROLANDO MECHANICAL via certified mail along with another copy of the second

third-party complaint (NYSCEF Doc. 76).

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

ROLANDO MECHANICAL as per CPLR §3215(±). 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 [l st Dept 2022]).

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

that CUPSOUL and ROLANDO MECHANICAL 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. 3 I 7 E. 34th St., LLC, 89 A.D.3d 593,

594 [1st Dept 2011], 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, defaultjudgment 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 ROLANDO MECHANICAL

DESIGN LLC is denied without prejudice.

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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 via CPLR service requirements and electronically

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-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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