1530 LLC v. Regina Farrell, Defendant. (2025)

Upon the foregoing papers, plaintiff moves for an order directing the clerk to enter default judgment in its favor against defendant. Defendant has not answered or opposed the instant motion.

"On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default" (Pantanilla v Yuson, 237 AD3d 1213, 1214 [2d Dept 2025], quoting Nationstar Mtge., LLC v Gross, 201 AD2d 942, 944 [2d Dept 2022] [internal quotation marks omitted). "To demonstrate the facts constituting the cause of action, the plaintiff need only submit sufficient proof to enable a court to determine if the cause of action is viable" (L & Z Masonry Corp. v Mose, 167 AD3d 728, 729 [2d Dept 2018]). Those in default "are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]).

In support of the motion, plaintiff submitted an affidavit of the Chief Financial Officer of plaintiff with respect to the facts and an attorney affirmation regarding the attorney fees incurred, a copy of the lease agreement, and a rent ledger reflecting amount owed by defendant for rent, interest, and legal fees totaling $6,802.74 (exhibit B & C).

Plaintiff also submits proof of service of process; proof of defendant's default; compliance with CPLR 3215 (g) (3) (i) (exhibit E); a non-military affidavit (exhibit F); and proof of Non-Expiration of the Statute of Limitations for this cause of action (exhibit G). The Court finds that although the motion was not timely under CPLR 3215 (c), the delay is excusable here as plaintiff began steps to move for judgment within one year of defendant's default by serving the CPLR 3215 (g) (3) notice, and explained that the service and filing of the motion was due to the Covid-19 pandemic and related delays within the law firm and the court system.

The Court finds that plaintiff is entitled to judgment on its first cause of action for breach of contract. To sustain a claim for breach of contract, plaintiff must show "the existence of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, and resulting damages" (Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010]).

Based upon plaintiffs' submission, respondent vacated the unit on January 5, 2017, with the lease set to expire on its own terms on March 31, 2017. The rent ledger (exhibit B) demonstrates a base rent arrears balance of $2,828.68 as of January 31, 2017. Excluding legal fees, the balance comes to $2,489.00. The monthly rent as of the defendant's vacancy on January 5, 2017, is $1,089.05 (exhibit A). As the renewal leasing agreement terminated on March 31, 2017, (exhibit A) the sum awarded is composed of the base rent arrears balance as of January 31, 2017, and two subsequent months of rent, in the amount of $1,089.05 for nonpayment of rent for February and March 2017 for a total of $4,676.10.¹

New York Courts have consistently held that the party seeking an award of attorneys' fees has the burden of proof in demonstrating the applicable provision, statute or clause for such an award (Orlowski v Koroleski, 234 AD2d 436, 437 [2d Dept 1996] ["attorney's fees are incidents of litigation and the prevailing party may not collect them from the losing party unless an award is authorized by express agreement between the parties, by statute, or by court rule"]). Here, the Court finds the plaintiff's claim for attorney fees is denied as neither the attorney affidavit (exhibit C) nor the lease agreement (exhibit A) as submitted demonstrate any applicable attorney fee provision.

Accordingly, it is hereby ORDERED that the motion is granted without opposition in part with respect to the first cause of action and otherwise denied; and the Clerk of the Court is directed to enter judgment in favor of plaintiff 1530 PLIMPCO, LLC, against defendant REGINA FERRELL in the sum of $4,676.10, with interest at the rate of 2% from March 1, 2017 and together with costs and disbursements as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further

ORDERED that counsel for plaintiff serve copy of this order with notice of entry upon defendant within 30 days of entry.

This constitutes the decision and order of the Court.

DATED: October 3, 2025

Brooklyn, New York

ENTER:

RENA MALIK

Judge of the Civil Court

FOOTNOTES

1.   The Court applied the law in effect in 2017 prior to the adoption of Real Property Law 227-E, which now requires landlord to mitigate its damages when a residential apartment is vacated prior to the end of term.

Rena Malik, J.