LAM PEARL STREET HOTEL LLC v. LLC THE RINALDI GROUP BAYPORT CONSTRUCTION CORP NOBUTAKA ASHIHARA ARCHITECT GENE KAUFMAN ARCHITECT FRANK SETA ASSOCIATES LLC (2022)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 33, 34, 35, 36, 37 were read on this motion for JUDGMENT - DEFAULT.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 38, 39, 40, 41, 42 were read on this motion for JUDGMENT - DEFAULT.

This is an action for breach of contract, negligence and damages resulting from failures relating to the installation of a stucco facade on a commercial building owned by LAM Group and LAM Pearl Street Hotel LLC. In motion sequences 001 and 002, plaintiffs move pursuant to CPLR 3215(a) for entry of a default judgment order against defendants Bayport Construction Group ("Bayport"), and Nobutaka Ashihara Architect PC ("NAA") based upon Bayport and NAA's failure to appear in this action. Plaintiffs also request that this matter to be set down for an inquest and assessment of damages as against those defendants.

Motion sequences 001 and 002 are consolidated herein for disposition.

BACKGROUND

Plaintiffs own a commercial building located at 215 Pearl Street (the "premises"), which was constructed in 2018 and completed in October 2020. Plaintiffs retained Anthony T. Rinaldi LLC ("Rinaldi") as the general contractor for the construction of the premises (the "project"). Bayport was a subcontractor who performed the masonry and stucco work.

Plaintiffs identify Nobutaka Ashihara Architect PC ("NAA") as the initial architect retained for the project, and Gene Kaufman Architect PC ("GKA") as the entity which later replaced NAA as the architect of record.

Plaintiffs allege that on December 25, 2020, pieces of the stucco façade from the exterior of the premises dislodged and landed on the adjacent building, causing damage to that property. The New York City Department of Buildings ("DOB") issued violations to the based on the incident. Plaintiffs retained Cole NYC Inc. ("Cole NYC") to perform emergency stabilization measures and CANY Architecture and Engineering ("CANY") to inspect the façade and perform testing. Based upon CANY's inspections, it was determined that the entire stucco façade required replacement.

Plaintiffs commenced this action against defendants by the filing of a summons and verified complaint asserting seventeen causes of action for breach of contract, negligence, negligent supervision, and breach of both implied and actual warranties.

DISCUSSION

On an application for default judgment, made pursuant to CPLR 3215, the plaintiff must submit "proof of service of the summons and the complaint[,] . . . proof of the facts constituting the claim, [and] the default" (CPLR 3215[f]). Upon default, "a defendant admits all traversable allegations contained in the complaint, and thus concedes liability, although not damages" (HF Mgt. Servs. LLC v Dependable Care, LLC, 198 AD3d 457, 458 [1st Dept 2021] [internal quotation marks and citation omitted]; Petty v Law Off. of Robert P. Santoriella, P.C., 200 AD3d 621, 621 [1st Dept 2021] [while plaintiff must submit proof of prima facie viability of its claims, "the standard of proof is minimal"] [internal quotation marks and citation omitted]). Further, "[w]here a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney" (CPLR 3215 [f]).

CPLR 3215 (g) (4) (i) and (ii) also requires:

"(i) When a default judgment based upon non-appearance is sought against a domestic or authorized foreign corporation which has been served pursuant to paragraph (b) of section three hundred six of the business corporation law, an affidavit shall be submitted that an additional service of the summons by first class mail has been made upon the defendant corporation at its last known address at least twenty days before the entry of judgment.

(ii) The additional service of the summons by mail may be made simultaneously with or after the service of the summons on the defendant corporation pursuant to paragraph (b) of section three hundred six of the business corporation law and shall be accompanied by a notice to the corporation that service is being made or has been made pursuant to that provision. An affidavit of mailing pursuant to this paragraph shall be executed by the person mailing the summons and shall be filed with the judgment. Where there has been compliance with the requirements of this paragraph, failure of the defendant corporation to receive the additional service of summons and notice provided for by this paragraph shall not preclude the entry of default judgment."

Here, plaintiffs failed to demonstrate that they provided Bayport and NAA with additional service of the summons and complaint as required by CPLR 3215 (g) (4) (i). An affidavit of service sworn to on February 10, 2022, shows that Bayport, a domestic corporation with its principal place of business in New York (NYSCEF doc. no. 1, complaint, para. 6, 7), was served with process by service on the Secretary of State at 99 Washington Ave, Albany, New York (NYSCEF doc. no. 12, affidavit of service).

Similarly, an affidavit of service sworn to on February 10, 2022, shows that NAA, a domestic corporation with its principal place of business in New York (NYSCEF doc. no. 1, complaint, para. 8, 9), was served with process by service on the Secretary of State at 99 Washington Ave, Albany, New York (NYSCEF doc. no. 12, affidavit of service).

This court finds that initial service upon Bayport and NAA is in conformity with CPLR 311 (a) (1) and Business Corporation Law § 306 (b). However, plaintiffs did not provide proof of additional service upon Bayport and NAA as required by CPLR 3215 (g) (4) (i) (see Sterk-Kirch v Uptown Communications & Elec., Inc., 124 AD3d 413, 413-414 [1st Dept 2015]). Although plaintiffs attached a certificate of service indicating that a copy of the respective motions for default judgment were mailed to Bayport and NAA via certified mail, plaintiffs' motions for default judgment do not indicate that plaintiffs mailed Bayport and NAA a copy of the summons and verified complaint by first-class mail as required by CPLR 3215 (g) (4) (i).

Accordingly, it is hereby

ORDERED that plaintiffs' motion for a default judgment against Bayport (motion seq. no. 001) is denied without prejudice, with leave to re-submit upon proof of proper service upon Bayport in compliance with CPLR 3215 (g) (4) (i); and it is further

ORDERED that plaintiffs' motion for a default judgment against NAA (motion seq. no. 002) is denied without prejudice, with leave to re-submit upon proof of proper service upon NAA in compliance with CPLR 3215 (g) (4) (i).

12/22/2022

ROBERT R. REED, J.S.C.

Robert R. Reed, J.