Receive, Corp. v. Daily Sale, Inc.

2026 NY Slip Op 30774(U)

• Court: New York Supreme Court, New York County
• Decided: March 3, 2026
• Docket: Index No. 651537/2025
• Status: Unpublished
• Author: Emily Morales-Minerva

Opinion

Receive, Corp. v Daily Sale, Inc. 2026 NY Slip Op 30774(U) March 3, 2026 Supreme Court, New York County Docket Number: Index No. 651537/2025 Judge: Emily Morales-Minerva 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.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.6515372025.NEW_YORK.001.LBLX000_TO.html[03/12/2026 3:45:53 PM] FILED: NEW YORK COUNTY CLERK 03/04/2026 10:17 AM INDEX NO. 651537/2025 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/03/2026

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice ---------X INDEX NO. 651537/2025 RECEIVE, CORP. MOTION DATE 12/03/2025 Plaintiff, MOTION SEQ. NO. 001 - V-

DAILY SALE, INC., DECISION + ORDER ON MOTION Defendant. ------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22, 23 were read on this motion to/for JUDGMENT - DEFAULT

APPEARANCES:

Harnik Law Firm, New York, NY (Stephen Michael Harnik, Esq., of counsel), for plaintiff.

EMILY MORALES-MINERVA, J.S.C.

In this action sounding in breach of contract and unjust

enrichment, plaintiff RECEIVE, CORP. (plaintiff) moves, pursuant

to CPLR § 3215, for an order granting it leave to enter a

default judgment against defendant DAILY SALE, INC. (defendant)

in the sum of $57,130.66, plus statutory interest, costs, and

attorneys' fees.

Defendant does not appear or submit opposition to the

motion (sequence number 01).

When a defendant fails "to appear, plead or proceed to

trial of an action reached and called for trial, or when the

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court orders a dismissal for any other neglect to proceed, the

plaintiff may seek a default judgment against [the defendant]"

(CPLR § 3215 [a]). To establish entitlement to a default

judgment, plaintiff must file (1) proof it served defendant with

the summons and complaint, and (2) "proof of the facts

constituting the claim, the default, and the amount due . by

affidavit made by the party" (see CPLR § 3215 [f]; see also

Woodson v Mendon Leasing Corp., 100 NY2d 62, 70 [2003]

[providing that "an applicant for a default judgment [must] file

'proof by affidavit made by the party of the facts constituting

the claim'"]; 231st Riverdale LLC v 7 Star Home Furniture Inc.,

198 AD3d 524, 525 [1st Dept 2021]; Feffer v Malpeso, 210 AD2d 60

[1st Dept 1994]) .

Here, plaintiff does not demonstrate its entitlement to

entry of a default judgment against defendant on either cause of

action. Plaintiff's proof does not establish a prima facie case

as to its breach of contract cause of action, as the "business

mastercard agreement" is a copy of a generalized agreement not

specific to plaintiff or defendant, and contains no identifying

information therein (see New York State Court Electronic Filing

System [NYSCEF] Doc. No. 03, business mastercard agreement, and

Doc. No. 04, terms of service}. Additionally, the excel sheet

of defendant's alleged transactions is similarly devoid of any

information connecting it to defendant (see NYSCEF Doc. No. 06,

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excel sheet of transactions). The "screenshot" purportedly

reflecting defendant's acceptance of the agreement, and

corresponding "letter" of Ariel Blum, CEO of plaintiff, does not

rectify these defects (see NYSCEF Doc. No. 16).

As to plaintiff's unjust enrichment cause of action,

plaintiff has asserted that it "entered into a cardholder

agreement with defendant, following which plaintiff issued

defendant a receive card" (NYSCEF Doc. No. 02, complaint).

Because plaintiff has asserted a breach of said agreement in

this action, and similarly moves for a default judgment based

upon the same, unjust enrichment cannot form the basis for a

default judgment (see Jsignal LLC v Artisan Const. Partners LLC,

2017 Slip Op 31348 [U] [Sup Ct NY Cnty 2017] , citing Cox v NAP

Const. Co., 10 NY3d 592, 607 [2008]).

Accordingly, it is hereby

ORDERED that plaintiff's motion (seq. no. 001), pursuant to

CPLR § 3215, for a default judgment, is dismissed without

prejudice; it is further

ORDERED that, within fifteen days from the date of this

decision and order, plaintiff shall serve a copy of this order,

with notice of entry, upon defendant; it is further

ORDERED that plaintiff shall bring a renewed default

judgment motion within 90 days from the date of this decision

and order; and it is further

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ORDERED that the Clerk of Court shall mark the file

accordingly.

3/3/2026 DATE

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

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

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