PDM Capital, LLC v. Petal Artist L.L.C.

2024 NY Slip Op 30928(U)

• Court: New York Supreme Court, New York County
• Decided: March 20, 2024
• Status: Unpublished

Opinion

PDM Capital, LLC v Petal Artist L.L.C. 2024 NY Slip Op 30928(U) March 20, 2024 Supreme Court, New York County Docket Number: Index No. 157110/2023 Judge: Louis L. Nock 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. 157110/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/20/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LOUIS L. NOCK PART 38M Justice ---------------------------------------------------------------------------------X INDEX NO. 157110/2023 PDM CAPITAL, LLC, MOTION DATE 11/27/2023 Plaintiff, MOTION SEQ. NO. 001 -v- PETAL ARTIST L.L.C., d/b/a ZUZU’S PETALS AND DECISION + ORDER ON GIFTS/PETAL ARTIST, and CINDY R. STEVENSON, MOTION Defendants. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document numbers (Motion 001) 15, 16, 17, 18, 19, 20, 21, and 22 were read on this motion for DEFAULT JUDGMENT .

LOUIS L. NOCK, J.S.C.

Upon the foregoing documents, plaintiff’s motion seeking entry of a default judgment is

granted in part, on default and without opposition, and for the reasons stated in the motion, as

follows.

Background

In this action, plaintiff PDM Capital, LLC asserts claims for breach of contract and

breach of a personal guarantee against Petal Artist L.L.C., d/b/a Zuzu’s Petals and Gifts/Petal

Artist (referred to collectively as the “Corporate Defendant”), and Cindy R. Stevenson (the

“Guarantor”) (Corporate Defendant and Guarantor, collectively, the “Defendants”) (summons

and complaint, NYSCEF Doc. No. 1, ¶¶ 15-24). On December 13, 2022, plaintiff agreed to

purchase rights to Corporate Defendant’s future receivables pursuant to a “Future Receivable

Sales Agreement” (the “Agreement”), which was guaranteed by Guarantor under a “Security

Agreement & Guaranty” (merchant agreement, NYSCEF Doc. No. 2). As more fully set forth in

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the complaint, which was verified by Abraham Cohen, plaintiff’s authorized representative, after

initially meeting its obligations under the Agreement, Corporate Defendant breached the

Agreement by failing to remit to plaintiff a percentage of Corporate Defendant’s receivables

(NYSCEF Doc. No. 1, ¶¶ 9-14; payment history, NYSCEF Doc. No. 12). A principal balance of

$82,010.00, plus cost and disbursements in the amount of $455.00, remains due and owing to

plaintiff (NYSCEF Doc. No. 1, ¶¶ 20, 24; Bouskila aff., NYSCEF Doc. No. 16, ¶ 16).

Plaintiff commenced this action on July 14, 2023 (NYSCEF Doc. No. 1). Affidavits of

service, regular on their face, attest to service pursuant to Business Corporation Law § 306(b) on

Corporate Defendant by service on the Secretary of State on July 26, 2023 (NYSCEF Doc. No.

4, 5). However, as further discussed below, plaintiff served Guarantor pursuant to CPLR 308(2)

by delivery on March 21, 2023, and by mailing on March 24, 2023, prior to filing the summons

and complaint (NYSCEF Doc. No. 6). Otherwise, an affirmation of additional service filed in

support of the motion attests to the requisite additional mailing on all Defendants pursuant to

CPLR 3215(g)(3)(i) and (4)(i) on November 13, 2023, more than twenty days in advance of

entry of judgment (Bouskila aff. of service, NYSCEF Doc. No. 23). Defendants’ time to respond

to the complaint has expired, and they have neither appeared nor answered the complaint.

Moreover, there is no opposition to the motion.

Standard of Review

A plaintiff that seeks entry of a default judgment for a defendant's failure to answer must

submit proof of service of the summons and complaint upon the defendant, proof of the facts

constituting the claim, and proof of the defendant's default (CPLR 3215[f]). “The standard of

proof is not stringent, amounting only to some firsthand confirmation of the facts” (Feffer v

Malpeso, 210 AD2d 60, 61 [1st Dept 1994]). “[D]efaulters are deemed to have admitted all

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

(Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]). Nevertheless, “CPLR 3215 does

not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure

to appear have been shown. Some proof of liability is also required to satisfy the court as to the

prima facie validity of the uncontested cause of action” (Guzetti v City of New York, 32 AD3d

234, 235 [1st Dept 2006] [internal quotations and citations omitted]).

Discussion

The motion is denied as to defendant Guarantor due to defective service of process.

Pursuant to CPLR 304(a), a civil action is commenced “by filing a summons and complaint or

summons with notice,” and service of such papers must be made “within one hundred twenty

days after the commencement of the action” (CPLR 306-b). Dismissal of the complaint is

appropriate where “service of the summons and complaint . . . [is] not made within 120 days of

the commencement of the action as required by CPLR 306–b” (Qing Dong v. Chen Mao Kao,

115 A.D.3d 839, 840 [2014]). Here, plaintiff prematurely served defendant Guarantor by

delivery on March 21, 2023, and by mailing on March 24, 2023, prior to commencing the action

by filing the summons and complaint on July 14, 2023. Thus, after commencement of the action,

plaintiff failed to serve Guarantor, warranting dismissal of the action against Guarantor for lack

of personal jurisdiction.

As to Corporate Defendant, plaintiff has satisfied its burden on the motion by submission

of the affidavits of service on said defendant (NYSCEF Doc. Nos. 4, 5) and the affirmation of

additional mailing on said defendant (NYSCEF Doc. No. 23), the affirmation of plaintiff’s

counsel Ariel Bouskila, Esq., attesting to said defendant’s default (NYSCEF Doc. No. 8, ¶ 11),

and the verified complaint by Cohen, which attests to the facts alleged therein and the amount of

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plaintiff’s damages (NYSCEF Doc. No. 15). Corporate Defendant has never appeared in the

action, nor did it submit any opposition to the motion. The court concurs with the points raised in

support of the motion and, therefore, grants the motion as to Corporate Defendant.

Accordingly, it is

ORDERED that plaintiff’s motion for a default judgment is denied as against defendant

Cindy R. Stevenson; and it is further

ORDERED that the complaint is dismissed as against defendant Cindy R. Stevenson; and

it is further

ORDERED that plaintiff’s motion for a default judgment is otherwise granted as against

defendant Petal Artist L.L.C., d/b/a Zuzu’s Petals and Gifts/Petal Artist; and, accordingly, it is

further

ORDERED that the Clerk of the Court is directed to enter judgment in favor of plaintiff

PDM Capital, LLC, and against defendant Petal Artist L.L.C., d/b/a Zuzu’s Petals and Gifts/Petal

Artist, in the principal amount of $82,465.00, with interest thereon at the statutory rate from

January 1, 2023, through entry of judgment, as calculated by the Clerk, and continuing to accrue

thereafter through satisfaction of judgment, together with costs and disbursements as taxed by

the Clerk upon submission of an appropriate bill of costs.

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This constitutes the decision and order of the court.

ENTER:

3/20/2024 $SIG$ DATE LOUIS L. NOCK, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

APPLICATION: GRANTED

SETTLE ORDER DENIED X GRANTED IN PART

SUBMIT ORDER □ OTHER

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

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