Index No. 153513/2022 Motion Seq. No. 002
03-26-2024
CAANAN JAMES, Plaintiff, v. FORDHAM VALENTINE ASSOCIATES LLC, RACKSON RESTAURANTS, LLC, D/B/A BURGER KING, PAV-LAK CONTRACTING, INC, CARUSO CONTRACTING, LLC, Defendants. FORDHAM VALENTINE ASSOCIATES LLC Third-Party Plaintiff, v. RACKSGN RESTAURANTS, LLC D/B/A BURGER KING Third-Party Defendants RACKSON RESTAURANTS, LLC, D/B/A BURGER KING Second Third-Party Plaintiffs, v. VALMAR ELECTRIC CORP., NORDEST SERVICES LLC Second Third-Party Defendants.
HON. MARY V. ROSA DO, J.S.C.
Unpublished Opinion
MOTION DATE 10/12/2023.
PRESENT: HON. MARYV. ROSADO, Justice.
DECISION + ORDER ON MOTION
HON. MARY V. ROSA DO, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 51. 52. 53, 54, 55 were read on this motion to/for JUDGMENT - DEFAULT.
Upon the foregoing documents, there being no opposition and good cause having been shown. Plaintiff James Caanan's ("Plaintiff1) motion for default judgment against Defendant Caruso Conlraeling LLC ("Carusov) and in favor of Plaintiff, is granted.
An applicant for default judgment against a defendant must submit: (i) proof of service of the summons and complaint, (ii) proof" of the facts constituting the claim, and (iii) proof of the defaulting defendant's failure to answer or appear (PV Holding Corp v All Quality Health Supply Corp, 189 A.D.3d 645 [1st Dept 2020]). Affidavits submitted in support of a motion for default judgment only need to allege enough facts to allow a court lo assess where a viable cause of action exists (Woodson v Mendon Leasing Corp., 100 KY2d 62, 71 [2003]). In undertaking this review, the Court is mindful that "defaulters arc deemed to have admitted all factual allegations in the complaint and all reasonable inferences (hat flow from them (Al Fayed v Barak. 39 A.D.3d 371, 372 [1st Dept 2007J).
The Court finds that Plaintiff has satisfied proof of service by providing Affidavits of Service evidencing service of the Supplemental Summons and Amended Verified Complaint upon Defendant Caruso via the Secretary of State on July 31, 2023, and personally through a person authorized to accept service on August 8, 2023 (NYSCEF Doc. 54). Plaintiff has also satisfied his minimal burden of proving the facts constituting his claim by submitting an Affidavit of Merit sworn to October 6, 2023 (NYSCEF Doc. 53). Further, Defendant Caruso has failed to file an answer or otherwise appear in this matter despite its time for doing so having expired. Therefore, entry of default judgment as to liability against Defendant Caruso and in favor of Plaintiff on Plaintiffs First Cause of Action for negligence, Second Cause of Action for violation of Labor Paw 200. Third Cause of Action for violation of Labor Law 240(1), and Fourth Cause of Action for violation of Labor Law 241(6), is appropriate.
Accordingly, it is hereby,
ORDERED that Plaintiff James Caanan's motion for default judgment against Defendant Caruso Contracting LLC is granted as to liability on Plaintiffs first through fourth causes of action; and il is further
ORDERED that an inquest on damages against Defendant Caruso Contracting LLC on Plaintiff James Caanan's first through fourth causes of action is directed at the time of trial; and it is further
ORDERED that a copy of this Order with notice of entry be served by counsel for Plaintiff James Caanan upon the Clerk of the General Clerk's Office (60 Centre Street. Room 119), who is directed, upon the filing of a note of issue and a certificate of readiness and the payment of proper fees, if any, to place this action on the appropriate calendar for the inquest herein above directed; and it is further
ORDERED that such service shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for 1 electronically filed Cases (accessible at die "E-filing” page of the court's website at the address www.nycourts.gov/supetmanh); and it is further
ORDERED that the active parties in this ease are directed to submit a proposed Status Conference Order to the Court on or before April 30, 2024 via e-mail to SFC-Part33-Clerk@nycourts.gov. If the parties are unable to agree to a proposed Status Conference Order, the parties arc directed to appear for an in-person Status Conference with the Court on May 1, 2024 at 9:30 a.m. in 60 Centre Street, Room 442, New York, New York; and it is further
ORDERED that within 30 days of entry, counsel for Plaintiff James Caanan shall serve a copy of this Decision and Order, with notice of entry, via first-class mail, on all parties to this case at their last known business or residential address; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.
