SCHIANO BROS INC., Plaintiff, v. Nicholas ARVANITAKIS, Defendant.
The following papers were read on Plaintiff's motion to enter judgment against Defendant:
Defendant's Notice of Motion and Affirmation in Support dated June 24, 2020 (“Motion”).1
In a summons and complaint dated May 3, 2017 and filed with the court on May 10, 2017, Plaintiff sued Defendants to recover $3,000.00 for breach of contract, plus statutory interest. Plaintiff moved for a default judgment against Defendant (CPLR 3215[a]). Defendant did not oppose the motion.
In an order entered February 15, 2018 (“Order to Strike”), the court granted on default Plaintiff's motion to strike and ordered Defendant to “serve responses to Plaintiff's demand for discovery and inspection within forty five (45) days of service of a copy of this Order [to Strike] with Notice of Entry upon counsel for Defendant” (Motion, Aff. of Pragna Parikh Ex. D). The Order to Strike further provided that if Defendant failed to serve the responses, “Defendant's answer shall be deemed stricken and Plaintiff shall be granted leave to submit default judgment with the court upon submission of proof of compliance of this order” (Id.)
Plaintiff may seek a default judgment against Defendant after the court strikes Defendant's answer (CPLR 3126; 3215[a]; JNG Constr., Ltd. v Roussopoulos, 170 AD3d 1136, 1139 [2d Dept 2019]; HSBC Bank USA, N.A. v Simms, 163 AD3d 930, 932-33 [2d Dept 2018]; Pisciotta v Lifestyle Designs, Inc., 62 AD3d 850, 852 [2d Dept 2009]; Litvinskiy v May Entertainment Group, Inc., 44 AD3d 627, 627 [2d Dept 2007]; Fappiano v City of New York, 5 AD3d 627, 628 [2d Dept 2004], see Carabello v Luna, 49 AD3d 679, 680 [2d Dept 2008]). Plaintiff demonstrated that Defendant's answer should be stricken pursuant to the Order to Strike. Defendant's obligation to respond to Plaintiff's demand was due within forty-five (45) days of service of the order with notice of entry. Plaintiff served the Order to Strike with notice of its entry on April 5, 2018, which gave Defendant until May 20, 2018 to comply (see, Motion, Parikh Aff. Ex. E). Plaintiff's affirmation dated May 29, 2018 established that Defendant did not respond to Plaintiff's demand (see, id.). Here, while Plaintiff presented evidence demonstrating that Defendant's answer is stricken based on noncompliance with the Order to Strike, Plaintiff failed to present evidence of its claim against Defendant to warrant granting a default judgment against Defendant. To evaluate the viability of Plaintiff's claims against Defendant, “the [c]ourt may consider the complaint, affidavits, and affirmations submitted by plaintiff” (Litvinskiy v May Entertainment Group, Inc., 44 AD3d at 628; Fappiano v City of New York, 5 AD3d at 629, see HSBC Bank USA, N.A. v Simms, 163 AD3d at 933). In our instant case, since Plaintiff submitted only the unverified complaint and no affidavits of the facts constituting the claim, Plaintiff failed to establish its prima facie case to warrant its entitlement to a default judgment.
Accordingly, it is
ORDERED that Plaintiff's motion for default judgment is denied.
This constitutes the DECISION and ORDER of the Court.
Wendy Changyong Li, J.
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