PENTAGRAM DESIGN INC v. CHANGE OF HEART CLOTHING CORP (2024)

Order (Carol R. Feinman, J.), entered December 6, 2023, reversed, without costs, the motion for a default judgment granted.

Upon reargument, Civil Court should have granted plaintiff's motion for a default judgment (see CPLR 3215). A party seeking a default judgment must submit proof of service of the summons and complaint and “proof of the facts constituting the claim, the default and the amount due” (CPLR 3215 [f]; see Gantt v North Shore-LIJ Health Sys., 140 AD3d 418 [2016]). 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” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]), which may be accomplished either by submission of an affidavit of merit or by verified complaint (see CPLR 3215 [f]; Woodson, 100 NY2d at 70; Bigio v Gooding, 213 AD3d 480, 481 [2023]).

Here, plaintiff's proof, which included a sworn affidavit of merit, a copy of the service contract executed by the parties and a statement from plaintiff's online bank account reflecting a partial payment from defendant to plaintiff, was sufficient to establish a viable cause of action against defendant to recover damages for breach of contract. Because defendant, by defaulting, is deemed to admit “all traversable allegations in the complaint, including the basic allegation [ ] of liability,” the allegations were sufficient for the court to determine that a viable cause of action existed (Al Fayed v Barak, 39 AD3d 371, 372 [2007][internal quotation marks omitted]; see also Licurgo-Villar v Samouha, 227 AD3d 619, 620 [2024]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

AlI concur