Handsome Acquisitions, Inc. v. Ialenti

2025 NY Slip Op 32658(U)

• Court: New York County Court, Suffolk County
• Decided: July 24, 2025
• Docket: Index No. 607201/2025
• Status: Unpublished

Opinion

Handsome Acquisitions, Inc. v Ialenti 2025 NY Slip Op 32658(U) July 24, 2025 County Court, Suffolk County Docket Number: Index No. 607201/2025 Judge: Evan M. Zuckerman 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. SHORT FORM ORDER INDEX NO. 607201/2025

COUNTY COURT - STATE OF NEW YORK I.A.S. T :RM. PART 68 - SUFFOLK COUNTY PRESENT: HON. EVAN M. ZUCKERMAN Acting Judg ~ County Court ORIG. RETURN DATE: MAY 26, 2025 FINAL SUBMISSION DATE: JUNE 5, 2025 HANDSOME ACQUISITli )NS INC., MTN. SEQ. #: 001 MOTION: MG CASE OISP 'laintiff, ORIG. RTN DATE: JUNE 5, 2025 FINAL SUBMISSION DATE: JUNE 5, 2025 -agains1 MTN. SEQ. #: 002 CROSS-MOTION: XMD MARC J. IALENTI, MARC J. IALENTI ATTORNEY AT LAW P.C., and ORIG. RTN DATE: JUNE 5, 2025 FINAL SUBMISSION DATE: JUNE 5, 2025 RICHARD FARRUGIA, MTN. SEQ.#: 003 CROSS- MOTION: XMD )efendants. PLAINTIFF'S ATTORNEYS: JUSTIN F . PANE, P.C. 80 ORVILLE DRIVE, SUITE 100 BOHEMIA. NEW YORK 11716 (631) 244-1433

SELF-REPRESENTED DEFENDANTS: MARC J . IALENTI, ESQ. 377 OAK STREET, SUITE 104 GARDEN CITY, NY 11530 (516) 248-2400

SELF-REPRESENTED DEFENDANT: RICHARD FARRUGIA 423 SW 53rd TERRACE CAPE CORAL, FL 33914

Upon the following papers r umbered 1 to _.1L read on plaintiffs motion FOR DEFAULT AND DECL ~RATORY JUDGMENT AGAINST DEFENDANT FARRUGIA and SUMMARY AND DECLARATORY JUDGMENT AGAINST THE ESCROWEE DEFENDANTS and defendants' cro~s-moti :>ns DISMISSING PLAINTIFF' > MOTION AND COMPLAINT AND OTHER RELIEF (ESCROWEE DEFENDAN S) and ALLOWING FARRUGIA TO FILE AN ANSWER AND COUNTERCLAIM AND OT1ER RELIEF

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ORDERED that this otion by plaintiff HANDSOME ACQUISITIONS, INC. for an Order granting: (1) summa judgment and a declaratory judgment against defendants MARC J. IALENTI and MA CJ . IALENTI ATTORNEY AT LAW P.C. ("Escrowee Defendants"); and (2) a de ult and declaratory judgment against defendant RICHARD FARRUGIA, is hereby GR NTED to the extent set forth herein. Defendants' cross- motions are hereby DENIE

This action was com enced by plaintiff on March 18, 2025, seeking a return of its downpayment in the am unt of $15,000.00, which was placed in escrow with the Escrowee Defendants, in c nnection with a contract, dated October 22, 2024 ("Contract"), for the sale an purchase of real property known as 175 S. Dunton Avenue, Patchogue, New ork.

Plaintiff has moved f r a default judgment in favor of plaintiff and against defendant RICHARD FAR UGIA based upon that defendant's non-appearance herein. Plaintiff seeks summary jud ment in its favor against the Escrowee Defendants and dismissal of their countercl ims, and for a declaratory judgment against all defendants concerning the valid termin tion of the contract and directing the return of the downpayment. Defendant ICHARD FARRUGIA cross-moves for an Order permitting him to file an answer and c unterclaim and granting him summary judgment in his favor and for legal fees and sane ions. The Escrowee Defendants cross-move for an Order dismissing the complaint a ainst them, giving them the right to pay the down payment into Court, and for legal fee and sanctions for bringing this allegedly frivolous action against them, among other elief.

Plaintiff's Mo ion for a Default Judgment against Ferrugia

According to CPLR 215 (a), "[w]hen a defendant has failed to appear, plead or proceed to trial on an actio reached and called for trial, or when the court orders a dismissal for any other negl ct to proceed, the plaintiff may seek a default judgment against him." On a motion or a default judgment pursuant to CPLR 3215, the movant is required to submit proof f service of the summons and complaint, the facts constituting the claim, and t e defendant's default in answering or appearing (see CPLR 3215 [f]; lnterboro I s. Co. v Johnson, 123 AD3d 667, 1 NYS3d 111 [2d Dept 2014]; Atlantic Cas. Ins. C . v RJNJ Services, Inc., 89 AD3d 649 [2d Dept 2011]; Miterko v Peaslee, 80 AD3 736, 736-737, 915 NYS2d 314 [2d Dept 2011]; Levine v Forgotson's Cent. Auto & Elec., Inc., 41 AD3d 552, 553, 840 NYS2d 598 [2d Dept 2007]; 599 Ralph Ave. De , LLC v 799 Sterling Inc., 34 AD3d 726, 825 NYS2d 129 [2d Dept 2006]). A complai t verified by the plaintiff may be submitted instead of an affidavit when the complain has been properly served (see CPLR 3215 [f]; CPLR 105 [u]; Woodson v Mendon L asing Corp. , 100 NY2d 62, 70, 760 NYS2d 727 [20031).

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Given that in default proce dings the defendant has failed to appear and the plaintiff does not have the benefit f discovery, the affidavit or verified complaint need only allege enough facts to ena le a court to determine that a viable cause of action exists (see Woodson v Mendon Leasing Corp., 100 NY2d at 70-71). Indeed, defaulters are "deemed to have admitted II factual allegations contained in the complaint and all reasonable inferences that flow from them" (Id.). Notwithstanding, the plaintiff must submit proof to establish a prima facie case (see Resnick v Lebovitz, 28 AD3d 533 [2d Dept 20061); Silberstein v Presbyterian Hospital, 95 AD2d 773, 463 NYS2d 254 [2d Dept 19831). Should the m vant seeking a default judgment fail to state a viable cause of action, the movant is no entitled to the requested relief, even on default (see Green v Dolphy Constr. Co., Inc, 187 AD2d 635 , 590 NYS2d 238 [2d Dept 1992]).

Here, in support of is motion, plaintiff provided proof of service of the summons and verified complaint on d fendant Richard Farrugia on March 27, 2025, as well as proof that additional notice was mailed to Richard Farrugia on April 20, 2025, in compliance with CPLR 3215 (g) (3). The verified complaint contains the facts constituting the claim and ets forth a prima facie cause of action for breach of contract against defendant Farrugia Defendant Farrugia does not dispute that he defaulted in answering the verified com laint or that his untimely answer was rejected by the plaintiff. Thus, plaintiff has stablished its entitlement to a default judgment against defendant Farrugia and th t branch of plaintiffs motion is hereby GRANTED.

De endant Farrugia's Cross Motion

In his cross-motion, defendant Farrugia requests an Order allowing him to vacate his default and to fil an answer to the complaint. He also request summary judgment in his favor and d smissal of plaintiffs complaint, as well as legal fees and sanctions against plaintiff.

A defendant seekin to vacate a default in answering a complaint and to compel the plaintiff to accept an un imely answer as timely must show both a reasonable excuse for the default and t e existence of a potentially meritorious defense (see CPLR 3012 [dJ, 5015 [a] [1]; Well Fargo Bank, N.A. v Singh, 153 AD3d 893, 57 NYS3d 903 [2d Dept 2017]; US Bank, .A. v Samuel, 138 AO3d 1105, 30 NYS3d 305 [2d Dept 2016]; HSBC Bank USA, .A. v Rotimi, 121 AD3d 855, 995 NYS2d 81 [2d Dept 2014]).

Defendant Farrugia ubmits a factual alleging that he did not file an answer because he believed that t e matter was settled by "a plaintiff' but that the "attorney refused to drop the lawsuit gainst the escrow agent and wanted to continue all litigation." Settlement nego iations can constitute a reasonable excuse for a failure to

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answer a pleading (see Pe ormance Constr. Corp. v Huntington Bldg., LLC, 68 AD3d 737, 738 [2d Dept 2 09]; Armstrong Trading, Ltd. v MBM Enters., 29 AD3d 835, 836 [2d Dept 2006]). However, the contradictory allegations by Farrugia do not establish that he did not a swer the complaint due to ongoing settlement negotiations, and do not establish a rea enable excuse for his default (see Arnav Indus. Inc. Profit Sharing Plan v 3449-346 Hamilton Ft, LLC, 237 AD3d 786 [2d Dept 2025]). As Farrugia has failed to esta lish a reasonable excuse for his default, it is unnecessary to determine whether he dem nstrated the existence of a potentially meritorious defense to the action (see Wells F, rgo Bank, N.A. v Singh, supra; Deutsche Bank Natl. Trust Co. v Ku/dip, 136 AD3d 9 9, 25 NYS3d 653 [2d Dept 2016]; Emigrant Bank v 0. Carl Wiseman, 127 AD3d 1013, 6 NYS3d 670 [2d Dept 2015)).

For the foregoing re sons, defendant Farrugia's motion to vacate his default and permit him to file an answe to the complaint is hereby DENIED, as is his cross-motion for summary judgment in h s favor based on an allegedly ineffective cancellation of the Contract and his request f r legal fees and sanctions against plaintiff.

Plaintiff's Motion fi r Summary Judgment against the Escrowee Defendants

Summary judgment s a drastic remedy and should only be granted in the absence of any triable issu s of fact (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223,413 NYS2d 141 [197 J; Andre v Pomeroy, 35 NY2d 361, 362 NYS2d 131 [19741). It is well-settled th t the proponent of a summary judgment motion must make a prima facie showing of e titlement to judgment as a matter of law, tendering sufficient

showing requires a denial f proof to demonstrate the a sence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324, 08 NYS2d 923, 925 [1986]). Failure to make such a the motion, regardless of the sufficiency of the opposing papers (Winegrad v New ork Univ. Med. Ctr., 64 NY2d 851,853,487 NYS2d 316, 318 [19851). Further, the c edibility of the parties is not an appropriate consideration for the Court (S.J. Cape/in As~oc., Inc. v Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478 [19741), and all compe ent evidence must be viewed in a light most favorable to the party opposing summary ju gment (Benincasa v Garrubbo, 141 AD2d 636, 637, 529 NYS2d 797,799 [2d Dept 1 88]). Once a prima facie showing has been made, the burden shifts to the opposi g party to show by tender of sufficient facts in admissible form that triable issues off ct remain which preclude summary judgment in the movant's favor (Altieri v G lub Corporation, 292 AD2d 734, 741 NYS2d 126 [2002]). However, in opposing a su mary judgment motion, mere conclusions, unsubstantiated allegations or assertions ar insufficient to raise triable issues of fact (Zuckerman v New York, 49 NY2d 557, 4 7 NYS2d 595 [1980]).

Paragraph 5 of the ontract permitted plaintiff to cancel the Contract for any

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reason within 15 days of it attorney's receipt of the Contract and to receive a full refund of the downpaymen . Plaintiff has provide evidence that it requested a two-day extension of the15-day per od (from November 6, 2024 to November 8, 2024) by email on November 6, 2024, whi h request was granted by defendants in an email dated November 7, 2024. Plainti also provided proof that, on November 7, 2024, it sent defendants notice that it w s exercising its right to cancel the Contract and sought a return of the down paymen , but that defendants failed to return the downpayment. Based on the foregoing, pl intiff has established a prima facie showing of entitlement to judgment as a matter of la (see e.g. Alvarez v Prospect Hosp. , 68 NY2d 320, 508 NYS2d 923 [1986]; Andre Pomeroy, 35 NY2d 361, supra; Rodriguez v N. Y. City Transit Auth., 286 AD2d 80, 729 NYS2d 909 [2001)).

In opposition, the Elrowee Defendants contend that plaintiff defaulted under the Contract because plair3iff requested the extension and cancelled the Contract by email only, rather than by rtified mail three days prior to termination as required by the Contract and, therefore defendant RICHARD FARRUGIA is entitled to retain the down payment as liquidate damages.

The Court finds that the Escrowee Defendants have not established the existence of any material i ues of fact which require a trial of the action. It is undisputed that plaintiff pro ided notice of the cancellation of the Contract to defendants and defendant did not return the plaintiff's down payment. With respect to defendants' claim that the ancellation was not effective because it was done only by email, strict compliance wit contract notice provisions is not required where there is no claim that the defendant di not receive actual notice of the cancellation, or was prejudiced by the deviation from the contract terms (see Goldin Real Estate, LLC v Shukla, 227 AD3d 674, 67 , 212 NYS3d 117 [2d Dept 2024]; Suarez v Ingalls, 282 AD2d 599, 600, 723 NYS2 380 [2d Dept 2001]). In the case at bar, there are no such claims. Accordingly, plainti s motion seeking summary judgment against the Escrowee Defendants and he dismissal of their defenses and counterclaims is hereby GRANTED.

The Escrowee Defendants' Cross-Motion

The Escrowee defen ants' cross-motion for an Order dismissing plaintiffs motion and complaint agai st them is DENIED because plaintiff has made a prima facie showing of entitlement to ju gment as a matter of law on its claims against the Escrowee Defendants. Be ause the Court finds that the instant action is not frivolous, the Escrowee Defendants' equest for sanctions based on plaintiffs commencement of an allegedly frivolous action is also DENIED.

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Plaintiff's Motion ~ r a Declaratory Judgment Against Defendants

Based on the foreg ing, plaintiff's motion for a declaratory judgment against the defendants is hereby GRA TED and the defendants are hereby directed to return the $15,000.00 downpayment o plaintiff within ten (10) days of service of this Order upon defendants with notice of e try.

The foregoing cons itutes the decision and Order of the Court.

Dated: July 24, 2025

X FINAL DISPOSITI N - - NON~FINAL DISPOSITION

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