Perez v. Batiz

2024 NY Slip Op 31062(U)

• Court: New York Supreme Court, New York County
• Decided: March 29, 2024
• Status: Unpublished

Opinion

Perez v Batiz 2024 NY Slip Op 31062(U) March 29, 2024 Supreme Court, New York County Docket Number: Index No. 651888/2018 Judge: Debra A. James 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. 651888/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/29/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 651888/2018 ANGEL PEREZ and B & A RESTORATION CONTRACTORS INC., MOTION DATE 04/21/2023

Plaintiffs, MOTION SEQ. NO. 004 005

- V - DECISION + ORDER ON EDWIN BATIZ, BAR 13, INC., and ZOE REALTY CORP., MOTION Defendants. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 004) 49, 50, 51, 52, 53, 54,55,56,57,58,59, 60, 61, 62, 63, 64, 65, 66, 68, 69, 94, 97, 99,100,101 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.

The following e-filed documents, listed by NYSCEF document number (Motion 005) 86, 87, 88, 89, 90, 91, 92, 93, 95, 96, 98, 102, 103, 104, 105, 106, 107, 108 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.

ORDER

Upon the foregoing documents, it is

ORDERED that the motion of defendant Bar 13, Inc., pursuant

to CPLR §§ 5015(a) and 317, to vacate the default judgment

against it (motion sequence number 004) is DENIED; and it is

further

ORDERED that the motion of defendant Zoe Realty Corp

pursuant to CPLR § 5015 to vacate the default judgment against

it is GRANTED, and the judgment filed on January 25, 2022, as

against defendant Zoe Realty Corp. only is hereby vacated; and

it is further

651888/2018 PEREZ, ANGEL vs. BATIZ, EDWIN Page 1 of4 Motion No. 004 005

[* 1] 1 of 4 INDEX NO. 651888/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/29/2024

ORDERED that, within twenty (20) days of the date hereof,

plaintiffs shall file an amended judgment removing defendant Zoe

Realty Corp, nunc pro tune, in accordance with the foregoing;

and it is further

ORDERED that the action against defendant Zoe Realty Corp

is severed, restored to the calendar, and shall continue; and it

is further

ORDERED that, within thirty (30) days of the date hereof,

defendant Zoe Realty Corp shall serve and file an answer to the

complaint or otherwise move; and it is further;

ORDERED that counsel for plaintiffs and for defendant Zoe

Realty Corp are directed to post on NYSCEF a proposed

preliminary discovery conference order or competing proposed

preliminary discovery conference order(s) at least two days

before May 2, 2024, on which date counsel shall appear via

Microsoft Teams, unless such appearance be waived by the court.

DECISION

Affiant Thomas Sullivan alleges that he is the "sole

proprietor of [defendant} Bar 13 Inc", but such characterization

of his ownership is incorrect, as a matter of law, given that

Bar 13, Inc. is a corporate entity and not a sole

proprietorship. In addition, neither he nor defendant Batiz

deny that at all pertinent times, defendant Batiz was a

principal (specifically, president) of corporate defendant Bar

651888/2018 PEREZ, ANGEL vs. BATIZ, EDWIN Page 2 of 4 Motion No. 004 005

[* 2] 2 of 4 INDEX NO. 651888/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/29/2024

!3, Inc. Sullivan does not contest the affidavit, wherein under

oath on August 16, 2019, defendant Batiz stated that he is the

president of defendant Bar 13 Inc, which affidavit was submitted

in support of a motion to stay issuance of a warrant in a

landlord and tenant non-payment summary proceeding, entitled Zoe

Realty Corp v Bar 13 Inc, NYC Civil Court Index No 078035/2018

(NYSCEF Document Number 101).

Furthermore, defendant Batiz does not deny that, in the

herein action, he retained counsel, who appeared at the remote

oral argument and challenged the motion of plaintiffs for a

default judgment against him on September 24, 2019. As such

principal's knowledge of the judgment is imputed to defendant

Bar 13, Inc., such defendant corporation is unable to

demonstrate that it did not have knowledge of entry of the

judgment on September 24, 2019. Therefore, defendant Bar 13,

Inc is not entitled to relief from such judgment pursuant to

CPLR § 317. This court likewise agrees with plaintiffs that

defendant Bar 13 Inc has, thereby, failed to assert a reasonable

excuse for its default or a meritorious defense, and therefore

relief pursuant to CPLR 5015 (a) (3) is also unwarranted.

However, defendant Zoe Realty Corp. has established

entitlement to relief from the default judgment against it

pursuant to CPLR § 317. See Eugene Di Lorenzo, Inc v AC Dutton

Co Inc, 67 NY2d 138 (1986). Corporate defendant Zoe Realty Corp

651888/2018 PEREZ, ANGEL vs. BATIZ, EDWIN Page 3 of 4 Motion No. 004 005

[* 3] 3 of 4 INDEX NO. 651888/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/29/2024

was served via the Secretary of State and not personally. As

its principal Hyam Tsadok states under oath that he received no

copy of the complaint and attached to plaintiff's opposition is

no receipt showing that the Secretary of State served process by

certified mail, return receipt requested, upon defendant Zoe

Realty Corp pursuant to CPLR § 306(a), affiant Tsadok's

assertion that he did not obtain knowledge of entry of the

default in time to defend same establishes that defendant Zoe

Realty Corp had no such knowledge. Defendant Zoe Realty Corp,

also by the affidavit of its principal Tsadok, states a

meritorious defense to the complaint against it, in which he

alleges that plaintiff defendant Perez has an ownership interest

in Bar 13 Inc and as such, defendant Perez has no right to file

a mechanic's lien for any "investment" he made in the real

property against Zoe Realty Co., landlord of the property. See

Pallette Stone Corp v Bokus, 208 AD2d 1138 (3rd Dept 1994)

P-~ . A - } ~ 20240329123643DJAME5463DF93D1F5245EF88D222A792A8D7C6

3/29/2024 DATE DEBRA A. JAMES, J.S.C.

~ 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

651888/2018 PEREZ, ANGEL vs. BATIZ, EDWIN Page4 of 4 Motion No. 004 005

[* 4] 4 of 4