Yawand-Wossen v. M Sq. Bldrs. LLC
Opinion
Yawand-Wossen v M Sq. Bldrs. LLC 2024 NY Slip Op 32424(U)
July 11, 2024
Supreme Court, New York County Docket Number: Index No. 154127/2020 Judge: Moyne. Nicholas W
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.
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 07/12/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. NICHOLAS W. MOYNE PART 41M Justice
- - - -----------------------------------------X INDEX NO. 154127/2020 YADEY YAWAND-WOSSEN
MOTION DATE 05/08/2023 Plaintiff,
MOTION SEQ. NO. 004 - V -
M SQUARE BUILDERS LLC, DECISION + ORDER ON MOTION
Defendant.
-------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 57, 58, 59, 60, 61, 62,63,64,65,66,67,68,69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83 were read on this motion to/for JUDGMENT - DEFAULT
Upon the foregoing documents, it is Plaintiff, Yadey Yawand-Wossen ("plaintiff'), commenced the underlying action against defendant, M Square Builders LLC ("defendant"), to recover damages allegedly sustained on or about May 6, 2019, and asserting claims of breach of contract and fraud. In Motion Sequence 001, dated August 31, 2020, defendant filed a pre-answer motion to dismiss causes of action in the verified complaint; specifically, the plaintiffs second cause of action for fraud and plaintiffs demand for punitive damages (NYSCEF Doc. No. 6). Plaintiff then filed an amended complaint on October 8, 2020, to which defendant then withdrew their motion (NYSCEF Doc. No. 12; 13). In Motion Sequence 002, dated November 16, 2020, defendant again filed a pre-answer to dismiss causes of action in the amended verified complaint; specifically, the second and third causes of action for fraud and the demand for punitive damages (NYSCEF Doc. No. 15). In a Decision and Order, issued by the Hon. Lucy Billings and dated December 23, 2021, this court granted the defendant's pre-answer motion to dismiss, leaving only the plaintiffs first cause of
action for breach of contract, and directed defendant to file an answer to the amended complaint 154127/2020 YAWAND-WOSSEN, YADEY vs. M SQUARE BUILDERS LLC Page 1 of 5 Motion No. 004
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within 20 days of the date the Decision and Order was filed: January 3, 2022 (NYSCEF Doc. No. 43).
On January 7, 2022, in a so-ordered stipulation, it was stipulated that the defendant was to file an answer to the verified amended complaint by February 14, 2022 (NYSCEF Doc. No. 46). Prior to February 14, in Motion Sequence 003, the attorney for defendant filed an order to show cause seeking to withdraw as counsel for the defendant (NYSCEF Doc. No. 48). In a Decision and Order, again issued by the Hon. Lucy Billings and dated April 4, 2022, the court granted the motion, and the action was stayed for 30 days following service of the Order for defendant to find new counsel (NYSCEF Doc. No. 55). Counsel served the Decision and Order on defendant via email on April 6, 2022, and personal delivery on April 9, 2022 (NYSCEF Doc. No. 56). Now, in Motion Sequence 004, Yadey Yawand-Wossen moves for an order, pursuant to CPLR § 3215, directing entry of a default judgment against M Square Builders LLC, in the amount of $229,101.99, plus costs and interest, the damages allegedly caused as a result of the defendant's breach of contract.
On June 18 and June 25, 2020, plaintiff, in accordance with the method of service proscribed by LLC § 303, properly served the defendant with the original summons and complaint for this action (NYSCEF Doc. No. 2-4). Plaintiffs amended complaint was then filed on October 8, 2020, becoming the operative pleading for this action. Subsequently, defendant's time to answer was extended multiple times. Service of a notice of motion to dismiss, pursuant to § 3211 (a), extends a defendant's time to answer the complaint (Deutsche Bank Natl. Tr. Co. v Hall, 185 AD3d 1006, 1008 [2d Dept 2020]). First, defendant, through their now-relieved counsel, originally appeared and the time to answer was extended by making a CPLR § 3211 motion to dismiss. Defendant was then first directed to file an answer to the amended complaint
154127/2020 YAWAND-WOSSEN, YADEY vs. M SQUARE BUILDERS LLC Page 2 of 5 Motion No. 004
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within 20 days of the filing of the Decision and Order, January 3, 2022. The time was then extended pursuant to the so-ordered stipulation, made in accordance with CPLR § 2104 and signed and dated January 7, 2022, where defendant was directed to file an answer to the amended complaint on or before February 14, 2022 (NYSCEF Doc. No. 43; 46). Additionally, the motion to be relieved as counsel, pursuant to CPLR § 321 (b ), was granted on April 4, 2022, with an automatic stay, pursuant to CPLR § 321 (c), staying the action for 30 days following service of the order, which was completed by April 9, 2022 (see Soldovieri v Flack, 106 AD3d 717,719 [2d Dept 2013]; NYSCEF Doc. No. 55). Additionally, the Decision and Order granting withdrawal demonstrated that the defendant, a limited liability company, must appear by attorney as required by CPLR § 321 (a) (see Mail Boxes Etc. USA, Inc. v Higgins, 281 AD2d 176 [1st Dept 2001 ]).
Accordingly, the applicable time period in which new counsel for defendant ought to have appeared in some manner or sought an extension, and/or defendant ought to have answered the amended complaint has passed, and defendant has failed to do so (see CPLR §§ 3215 [a], 3012[d); see also Bank of New York Mellon v Jinks, 127 AD3d 1367, 1368, [3rd Dept 2015] [Pursuant to CPLR 3012[d), the court possesses the discretion to extend a party's time to serve an answer upon a showing of reasonable excuse for delay or default, including a change of counsel]). On May 8, 2023, within the statutory one-year period following defendant's failure to respond to the amended complaint as directed by the Decision and Order in this action, dated April 4, 2022, plaintiff filed its application seeking entry of a default judgment (see NYSCEF Doc. No. 55; 57).
Additionally, as required by CPLR § 3215 (f), plaintiff has provided proof of service of the summons and complaint, the facts supporting its breach of contract claim, the default, and the
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amount due, through the verified amended complaint and affidavit and supporting exhibits of Yadey Yawand-Wossen, a party with personal knowledge (see NYSCEF Doc. No. 58-76; see Bigio v Gooding, 213 AD3d 480, 481 [l st Dept 2023] ["To demonstrate facts constituting the claim, the movant need only proffer proof sufficient to enable a court to determine that a viable cause of action exists"]). As plaintiff has demonstrated compliance with the statutory requirements ofCPLR § 3215 et. seq., the motion for entry of a default judgment is granted.
Accordingly, it is hereby ORDERED that the motion by plaintiff, Yadey Yawand-Wossen, is GRANTED; and it is further
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