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FILED: BRONX COUNTY CLERK 10/18/2022 10:16 AM INDEX NO. 805060/2021E
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/18/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX, I.A-S. PART 2
LENYS CONTRERAS,
Plaintitf, lndex No. 805060-2021E
DECISION'ORDER
-against-
Present:
HON, ELIZABETH A. TAYLOR
ZAM 176T8 STREET CORP,,
D efendant.
The following papers numbered I to_ read on this motion, Seo.#l
PAPERS NUMBERED
No On Calendar of o{ySCElj Conf Noticc ds)
NoticeofMotion-ordertoshowcause-ExhibibandAffidavit5An[oxed--.-.------
Answering Affidavit and Exhibits--..-
Replying Affidavit and ExIibi
fufidavit.--__
Pleadirgs - Exhibit-
Stipulation -Referee's Repon --Minutes
Filedpapen-
ln compl iance with lhis Pan's rules, the above eDumerate.d working
copie. trere submitted di.ectly
to chambers for
review.
the court 's upoD rhe foregoing papers and due delibcration the Decision/order on this motion is as
thercof,,
follows:
Motion pursuant to CPLR 3215 for an order directing entry of a default judgment
against defendant zAM 178th street corp., in favor of plaintiff on the issue of liability, is
denied.
Plaintiff commenced this action for injuries allegedly sustained as a result of a
ceiling collapse at the subject premises, owned, operated and maintained by defendant
ZAM 17Bt,^ Street Corp. ptaintiff a eges that defendant ZAM .,|78.
Street Corp. failed to
answer the summons and verified complaint, or otherwise appear in this matter; and
therefore, plaintiff seeks a default judgment against it.
Generally, to establish entitlement to a default judgment, plaintiff must
demonstrate: 1) proof of service of the summons and complaint; 2) proof of the default;
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FILED: BRONX COUNTY CLERK 10/18/2022 10:16 AM INDEX NO. 805060/2021E
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/18/2022
and 3) proof of the facts constituting the claim (see CpLR 3215$), Ail. Cas. lns. Co. v
RJNJ Servlces, /nc., 89 AD3d 649, 651 [2d Dept 2011]).
To establish proof of the facts, a plaintiff must submit an affidavit or verified
complaint from someone with personal knowledge, setting forth sufficient facts for the
court to determine that a viable cause of action exists (see wynkoop v 622A president
St owners corp.,169 AD3d 1100, 1103[2d Dept2019]; MorgenthauvRodriguez,26l
AD2d 165' 166 [1st Dept 1999]). A praintiFf cannot satisfy this burden with conclusory
evidence (see wine Antiques, rnc. v st. paur Fire & Mar. tns. co.,40 AD2d 657, 657-
658 [1st Dept 1972], affd 34 Ny2dTB1r that ptaintiffs ,,entirety
l1S74l [hotding
conclusory" testimony at the inquest was insufficientl).
Here, plaintiff submits his affldavit, in which he avers that'[t]he incident (ceiling
collapse) occurred on Jury 25, 2ozo at lzioo pM." However, Mr. contreras does not
provide the facts surounding the ceiling collapse and whether, or what part of the
falling, ceiling came in contact with him. Also, there is no admissible evidence in the
record to establish that defendant zAM 'l7gth street corp. owned, managed and/or
operated the subject premises. Therefore, the court cannot determine, based upon the
submisslons, whether a viable cause of action exists. Accordingly, this court finds that
the plaintiff has failed to establish proof of the facts constatutang his claim. As a result,
this court need not address whether the remaining elements that must be established
prior to entry of a default judgment have been satisfied.
It is noted that defendant zAM 17grh street corp. fired an Answer .13,
on May
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FILED: BRONX COUNTY CLERK 10/18/2022 10:16 AM INDEX NO. 805060/2021E
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/18/2022
2022. lt is further noted that in its answer, defendant ZAM 178th Street Corp. admits
that it is the owner of the subject premises. However, the motion was submitted on
default; and therefore, plaintiff has the burden to establish ownership for the court to
determine that he has a viable claim against defendant ZAM jTlth Street Corp.
The foregoing shall constitute the decision and order of this court.
//l
Dated 0c T 14 ?fi?? d/-
J.S.C.
Efizaboth A. Taylor
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FILED: BRONX COUNTY CLERK 10/18/2022 10:16 AM INDEX NO. 805060/2021E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/18/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX, I.A-S. PART 2 LENYS CONTRERAS, Plaintitf, lndex No. 805060-2021E DECISION'ORDER -against- Present: HON, ELIZABETH A. TAYLOR ZAM 176T8 STREET CORP,, D efendant. The following papers numbered I to_ read on this motion, Seo.#l PAPERS NUMBERED No On Calendar of o{ySCElj Conf Noticc ds) NoticeofMotion-ordertoshowcause-ExhibibandAffidavit5An[oxed--.-.------ Answering Affidavit and Exhibits--..- Replying Affidavit and ExIibi fufidavit.--__ Pleadirgs - Exhibit- Stipulation -Referee's Repon --Minutes Filedpapen- ln compl iance with lhis Pan's rules, the above eDumerate.d working copie. trere submitted di.ectly to chambers for review. the court 's upoD rhe foregoing papers and due delibcration the Decision/order on this motion is as thercof,, follows: Motion pursuant to CPLR 3215 for an order directing entry of a default judgment against defendant zAM 178th street corp., in favor of plaintiff on the issue of liability, is denied. Plaintiff commenced this action for injuries allegedly sustained as a result of a ceiling collapse at the subject premises, owned, operated and maintained by defendant ZAM 17Bt,^ Street Corp. ptaintiff a eges that defendant ZAM .,|78. Street Corp. failed to answer the summons and verified complaint, or otherwise appear in this matter; and therefore, plaintiff seeks a default judgment against it. Generally, to establish entitlement to a default judgment, plaintiff must demonstrate: 1) proof of service of the summons and complaint; 2) proof of the default; Page I of 3 1 of 3 FILED: BRONX COUNTY CLERK 10/18/2022 10:16 AM INDEX NO. 805060/2021E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/18/2022 and 3) proof of the facts constituting the claim (see CpLR 3215$), Ail. Cas. lns. Co. v RJNJ Servlces, /nc., 89 AD3d 649, 651 [2d Dept 2011]). To establish proof of the facts, a plaintiff must submit an affidavit or verified complaint from someone with personal knowledge, setting forth sufficient facts for the court to determine that a viable cause of action exists (see wynkoop v 622A president St owners corp.,169 AD3d 1100, 1103[2d Dept2019]; MorgenthauvRodriguez,26l AD2d 165' 166 [1st Dept 1999]). A praintiFf cannot satisfy this burden with conclusory evidence (see wine Antiques, rnc. v st. paur Fire & Mar. tns. co.,40 AD2d 657, 657- 658 [1st Dept 1972], affd 34 Ny2dTB1r that ptaintiffs ,,entirety l1S74l [hotding conclusory" testimony at the inquest was insufficientl). Here, plaintiff submits his affldavit, in which he avers that'[t]he incident (ceiling collapse) occurred on Jury 25, 2ozo at lzioo pM." However, Mr. contreras does not provide the facts surounding the ceiling collapse and whether, or what part of the falling, ceiling came in contact with him. Also, there is no admissible evidence in the record to establish that defendant zAM 'l7gth street corp. owned, managed and/or operated the subject premises. Therefore, the court cannot determine, based upon the submisslons, whether a viable cause of action exists. Accordingly, this court finds that the plaintiff has failed to establish proof of the facts constatutang his claim. As a result, this court need not address whether the remaining elements that must be established prior to entry of a default judgment have been satisfied. It is noted that defendant zAM 17grh street corp. fired an Answer .13, on May Page 2 of 3 2 of 3 FILED: BRONX COUNTY CLERK 10/18/2022 10:16 AM INDEX NO. 805060/2021E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/18/2022 2022. lt is further noted that in its answer, defendant ZAM 178th Street Corp. admits that it is the owner of the subject premises. However, the motion was submitted on default; and therefore, plaintiff has the burden to establish ownership for the court to determine that he has a viable claim against defendant ZAM jTlth Street Corp. The foregoing shall constitute the decision and order of this court. //l Dated 0c T 14 ?fi?? d/- J.S.C. Efizaboth A. Taylor Page 3 of 3 3 of 3