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

2024 NY Slip Op 34342(U)

Opinion

Garcia-Guzman v 200 E. 16th St. Hous. Corp. 2024 NY Slip Op 34342(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. 103 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. 004 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

KA TSONOPOLOS IN HY AC, INC.

Third Third-Party Defendant. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 90, 91, 92, 93, 94, 95, 96, 97, 98,99 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 ETAL Motion No. 004

1 of 4 [* 1] !FILED: NEW YORK COUNTY CLERK 12/13/2024 01:01 PM! INDEX NO. 157512/2022 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 12/13/2024

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 SPIROS KATSONOPOLOS. ("KATSONOPOLOS") 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, 91).

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 April 17, 2024 against

KATSONOPOLOS (NYSCEF Doc. 94).

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

CUPSOUL submits an attorney affirmation (NYSCEF Doc. 91), an affirmation of merit by Maria

Psoni, a member of CUPSOUL (NYSCEF Doc. 98), pleadings (NYSCEF Doc. 93-94), the

purported affidavit of service on KATSONOPOLOS (NYSCEF Doc. 95) and a copy of the default

letter sent to KATSONOPOLOS (NYSCEF Doc. 96). Upon review, CUPSOUL has not

established entitlement to default judgment against KATSONOPOLOS at this time.

It is unclear from the within motion whether KA TSONOPOLOS is an individual or

company. KATSONOPOLOS is described in the complaint, as a resident of New York; however,

KATSONOPOLOS, is also described as the general contractor or subcontractor for the work at

157512/2022 GARCIA-GUZMAN, HUGO vs. 200 EAST 16TH STREET HOUSING CORPORATION Page 2 of 4 ETAL Motion No. 004

2 of 4 [* 2] !FILED: NEW YORK COUNTY CLERK 12/13/2024 01: 01 PMI INDEX NO. 157512/2022 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 12/13/2024

the subject premises. Thus, at this time, it is unclear whether substituted service upon

KATSONOPOLOS was proper (NYSCEF Doc. 95).

However, even if KATSONOPOLOS was properly served, CUP SOUL has not established

the facts constituting its claims against KATSONOPOLOS as per CPLR §3215(-t). 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 KA TSONOPOLOS 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. 34thSt., 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 dismissed 23

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 SPIROS KA TSONOPOLOS is

denied without prejudice.

157512/2022 GARCIA-GUZMAN, HUGO vs. 200 EAST 16TH STREET HOUSING CORPORATION Page 3 of 4 ETAL Motion No. 004

3 of 4 [* 3] !FILED: NEW YORK COUNTY CLERK 12/13/2024 01: 01 PM] INDEX NO. 157512/2022 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 12/13/2024

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

this order with notice of entry on all parties and upon the Clerk of the General Clerk's Office.

This constitutes the decision and order of the court.

12/11/2024

DATE DENISE M DOMINGUEZ, f-S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION \

~ DENIED □ 0TH

□ GRANTED GRANTED IN PART

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIOUC,.RYAeeOINTMENT REF~

157512/2022 GARCIA-GUZMAN, HUGO vs. 200 EAST 16TH STREET HOUSING CORPORATION Page 4 of 4 ET AL Motion No. 004

4 of 4 [* 4]