Brian QUINN, Onorevole Consulting Group, Inc., Plaintiff, v. GCB CAPITAL, LLC, Medipure Holding, Inc., Chris Condon, Defendant.
Index No. 652260/2022
Decided: January 06, 2023
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 3, 4, 5, 6, 7, 8 were read on this motion for JUDGMENT - DEFAULT.
In the action at hand, plaintiffs seek to enforce a July 31, 2018 settlement agreement, under which plaintiffs allege they were to receive 9% of the common stock of defendant Medipure Holding, Inc. (MHI) (NYSCEF doc. no. 1 [Complaint]). The first cause of action seeks a declaratory judgment that plaintiffs own 9% of defendant Medipure Holding, Inc. (MHI)’s common shares (5.4 million shares). The second cause of action seeks $27 million in compensatory damages due to MHI's alleged breach of contract. The complaint also seeks compensatory damages, attorney's fees and costs, and pre-judgment interest. Defendants GCB Capital, LLC (GCB) and Chris Condon (Condon) are parties to the settlement agreement (NYSCEF doc. no. 6).
The complaint was filed on May 12, 2022, and plaintiffs served defendant MHI at its office in Vancouver, British Columbia, on May 19, 2022. In motion sequence number 001, plaintiffs move for a default judgment against defendant MHI. No opposition to the motion was filed.
Upon review of the documents submitted in support of plaintiffs’ application, the court declines plaintiffs request for a default judgment against MHI. First, no evidence was submitted establishing MHI was served with this motion. Second, the complaint is not verified. In circumstances where a complaint is not verified, a default judgment is only appropriate when accompanied by an affidavit from a party with knowledge, that includes proof of the facts, the default, and a statement as to any amounts owed (see HSBC Bank USA, N.A. v Cooper, 157 AD3d 775, 776 [1st Dept 2018]). The affidavit of Brian Quinn filed in support of the motion was not notarized or signed (see NYSCEF Doc. No. 5). Further, the motion papers do not clearly state a contractual basis for an award of $27 million in compensatory damages. This lack of clarity with respect to the relief requested, and the insufficiency of the affidavit submitted in support, warrants denial of the motion.
Accordingly, it is hereby
ORDERED that plaintiffs’ motion for default judgment against defendant the motion is denied.
Robert R. Reed, J.
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