Preview
FILED: NEW YORK COUNTY CLERK 06/22/2018 03:36 PM INDEX NO. 151104/2017
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/22/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK - COMMERCIAL DIVISION Index No.: 151104/2017
------------------------------------------------------X X
9™
COLT 93 NORTH 9 STREET LLC,
Plaintiffs,
-against- AFFIRMATION IN SUPPORT OF
MOTION FOR DEFAULT
93-97 WYTHE AVENUE LP, THE HOXTON JUDGMENT
(WILLIAMSBURG) LLC f/k/a 93-97 WYTHE AVENUE
LLC, and MAGNETIC BUILDERS GROUP LLC,
Defendants.
--------------------------------------------------X
93-97 WYTHE AVENUE LP, THE HOXTON
(WILLIAMSBURG) LLC f/k/a 93-97 WYTHE AVENUE
LLC, and MAGNETIC BUILDERS GROUP, LLC,
Third-Party Plaintiffs, Third-Party Index No.: 595386/2017
-against-
EXPEDITION CONTRACTING CORP. and ANCHOR IT
INC.,
Third-Party Defendants.
--------------------------------------------------------X
KRISTIN A. KEEHAN, an attorney duly admitted to practice before the Courts of the State
of New York, hereby affirms the following to be true,under penalty of perjury, pursuant to CPLR
§ 2106:
O'
1. I am an associate with Cozen O'Connor, attorneys for the Defendants/Third-Party
Plaintiffs 93-97 WYTHE AVENUE LP, THE HOXTON (WILLIAMSBURG) LLC f/k/a 93-97
WYTHE AVENUE LLC, and MAGNETIC BUILDERS GROUP, LLC (hereinafter
Plaintiffs"
"Defendants/Third-Party Plaintiffs") in this matter. I am fully familiar with the facts and
circumstances surrounding this motion for a default judgment
judgment made pursuant to CPLR $ 3215.
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2. This Affirmation is respectfully submitted in support of Defendants/Third-Party
Plaintiffs' favor
motion for an Order pursuant to CPLR § 3215, granting judgment on default in of
Defendants/Third-Party Plaintiffs, and against Third-Party Defendant Expedition Contracting
Defendant"
Corp. (hereinafter "Third-Party Defendant"), and granting such other and further relief as this
Court deems just and proper.
3. As more fully set forth below, the Third-Party Defendant has not Answered or
otherwise appeared in this matter, and the time for same has expired. As such, the entry of a default
judgment in favor of Defendants/Third-Party Plaintiffs and against Third-Party Defendant is
Plaintiffs'
warranted, and Defendants/Third-Party motion should be granted in itsentirety.
PROCEDURAL BACKGROUND
4. By Summons and Complaint, dated February 2, 2017, and filed in the Supreme
- 9th
Court, New York County Commercial Division, plaintiff Colt 93 North street, LLC
commenced an action against Defendants/Third-Party Plaintiffs (bearing Index No. 151104/2017)
seeking damages for property damage and lost profits related to a certain construction project
Premises"
located at 93-97 Wythe Avenue, Brooklyn, NY ("the Premises"). Plaintiff alleges damages related
9th
to its property located at 93 North Street, Brooklyn, New York. A copy of the Complaint,
together with plaintiff's Amended Complaint dated March 13, 2017, is annexed hereto as Exhibit
"A."
C4+
5. On or about May 9, 2017, Defendants/Third-Party Plaintiffs initiated a third-party
action against Third-Party Defendants, alleging that Defendants/Third-Party Plaintiffs are entitled
to full indemnification and/or contribution from Third-Party Defendant for all or part of any sum
that be recovered plaintiff against Plaintiffs. A of the Third-
may by Defendants/Third-Party copy
"B."
Party Complaint is annexed hereto as Exhibit
4
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6. The Third-Party Complaint was served on Third-Party Defendant, pursuant to
BCL § 306, by service on of the aforesaid papers at the office of the New York State Secretary of
6d'
State located at 99 Washington Avenue, Fl., Albany, New York on May 23, 2017. The affidavit
"C."
of service is annexed hereto as Exhibit
7. At the latest, Third-Party Defendant was required to respond to the Third-Party
Complaint or otherwise move by June 22, 2017. To date, Third-Party Defendants have not
answered or otherwise appeared.
8. In correspondence sent by federal express and overnight certified mail and dated
June 15, 2018, Defendants/Third-Party Plaintiffs notified Third-Party Defendant that due to their
failure to respond to the Third Party Complaint, Defendants/Third-Party Plaintiffs would be filing
a motion for default judgment on or before June 21, 2018. A copy of the Third-Party Complaint
was annexed to the letter. A copy of this June 15, 2018 correspondence is annexed hereto as
"D."
Exhibit
9. To date, Third-Party Defendant has failed to Answer or otherwise respond to the
Third-Party Complaint.
ARGUMENT
10. Pursuant to CPLR § 320, Third-Party Defendant was required to Answer or
otherwise appear in this action within 30 days of service of the third-party summons and complaint,
where such service was effectuated by service on the Secretary of State.
11. Third-Party Defendant did not Answer or otherwise move on or before June 22,
2017, and, to date, neither Third-Party Defendant has not Answered or otherwise moved in this
matter. Accordingly, Third-Party Defendant has defaulted as a matter of law, and
Plaintiffs are entitled to the of a default judgment against Third-
Defendants/Third-Party entry
Party Defendant. See, e.g. Hermitage Ins. Co. v. Athena Management Corp., 115 A.D.3d 628, 629
5
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(1st Dep't default judgment because defendant was deemed to have admitted all
2014)(granting
traversable allegations in the complaint, including basic allegations of liability, where defendant
failed to answer the allegations); see also Suffolk P.E.T. Management, LLC v. Anand, 136 A.D.3d
417 (1st Dep't 2016)(stating defaulting parties are deemed to have admitted all traversable
allegations in complaint); Al Fayed v. Barak, 39 A.D.3d 371 (1st Dep't 2007) (same).
12. Moreover, Defendants/Third-Party Plaintiffs have alleged a meritorious cause of
action against Third-Party Defendant (see attached Affidavit ofFacts Upon Applicationfor Default
Judgment), and therefore, Third-Party Defendant should be required to fully indemnify
Defendants/Third-Party Plaintiffs in the event there is a verdict and judgment in favor of plaintiff
against Defendants/Third-Party Plaintiffs. See, e.g. Whittemore v. Yeo, 117 A.D.3d 544, 545 (1st
Dep't 2014) (holding a plaintiff establishing a prima facie claim in support of the default judgment
sufficiently supported the default judgment); Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62
(2003) (finding a verified complaint need only allege enough facts to enable a court to determine
a viable cause of action exists in order to support the granting of a default judgment).
Plaintiffs'
13. As such, it is respectfully submitted that Defendants/Third-Party
motion should be granted in itsentirety.
WHEREFORE, itis respectfully requested that Defendant/Third-Party Plaintiff's motion
be granted in its entirety, together with granting such other and further relief as this Court deems
just and proper.
6
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FILED: NEW YORK COUNTY CLERK 06/22/2018 03:36 PM INDEX NO. 151104/2017
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/22/2018
Dated: New York, New York
June 22, 2018
Respectfully submitted,
O'
COZEN O'CONNOR
By: Kristin A. Keehan
Attorneys for Defendants/Third-Party Plaintiffs
93-97 WYTHE AVENUE, LP, THE HOXTON
(WILLIAMSBURG) LLC flea 93-97 WYTHE
AVENUE LLC and MAGNETIC BUILDERS
GROUP LLC
- 16u'
45 Broadway Floor
New York, New York 10006
(212) 509-9400
To:
MATALON SHWEKY ELMAN PLLC
Attorneys for Plaintiff
33rd
450 Seventh Avenue, FlOOr
New York, New York 10123
(212) 244-9000
Via Electronic Filing
EXPEDITION CONTRACTING CORP.
684A Hancock Street
Brooklyn, New York 11233
ANCHOR IT INC.
33 Rancho Drive
Cortland Manor, NY 10567
7
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Preview
FILED: NEW YORK COUNTY CLERK 06/22/2018 03:36 PM INDEX NO. 151104/2017 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/22/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - COMMERCIAL DIVISION Index No.: 151104/2017 ------------------------------------------------------X X 9™ COLT 93 NORTH 9 STREET LLC, Plaintiffs, -against- AFFIRMATION IN SUPPORT OF MOTION FOR DEFAULT 93-97 WYTHE AVENUE LP, THE HOXTON JUDGMENT (WILLIAMSBURG) LLC f/k/a 93-97 WYTHE AVENUE LLC, and MAGNETIC BUILDERS GROUP LLC, Defendants. --------------------------------------------------X 93-97 WYTHE AVENUE LP, THE HOXTON (WILLIAMSBURG) LLC f/k/a 93-97 WYTHE AVENUE LLC, and MAGNETIC BUILDERS GROUP, LLC, Third-Party Plaintiffs, Third-Party Index No.: 595386/2017 -against- EXPEDITION CONTRACTING CORP. and ANCHOR IT INC., Third-Party Defendants. --------------------------------------------------------X KRISTIN A. KEEHAN, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following to be true,under penalty of perjury, pursuant to CPLR § 2106: O' 1. I am an associate with Cozen O'Connor, attorneys for the Defendants/Third-Party Plaintiffs 93-97 WYTHE AVENUE LP, THE HOXTON (WILLIAMSBURG) LLC f/k/a 93-97 WYTHE AVENUE LLC, and MAGNETIC BUILDERS GROUP, LLC (hereinafter Plaintiffs" "Defendants/Third-Party Plaintiffs") in this matter. I am fully familiar with the facts and circumstances surrounding this motion for a default judgment judgment made pursuant to CPLR $ 3215. 1 of 5 FILED: NEW YORK COUNTY CLERK 06/22/2018 03:36 PM INDEX NO. 151104/2017 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/22/2018 2. This Affirmation is respectfully submitted in support of Defendants/Third-Party Plaintiffs' favor motion for an Order pursuant to CPLR § 3215, granting judgment on default in of Defendants/Third-Party Plaintiffs, and against Third-Party Defendant Expedition Contracting Defendant" Corp. (hereinafter "Third-Party Defendant"), and granting such other and further relief as this Court deems just and proper. 3. As more fully set forth below, the Third-Party Defendant has not Answered or otherwise appeared in this matter, and the time for same has expired. As such, the entry of a default judgment in favor of Defendants/Third-Party Plaintiffs and against Third-Party Defendant is Plaintiffs' warranted, and Defendants/Third-Party motion should be granted in itsentirety. PROCEDURAL BACKGROUND 4. By Summons and Complaint, dated February 2, 2017, and filed in the Supreme - 9th Court, New York County Commercial Division, plaintiff Colt 93 North street, LLC commenced an action against Defendants/Third-Party Plaintiffs (bearing Index No. 151104/2017) seeking damages for property damage and lost profits related to a certain construction project Premises" located at 93-97 Wythe Avenue, Brooklyn, NY ("the Premises"). Plaintiff alleges damages related 9th to its property located at 93 North Street, Brooklyn, New York. A copy of the Complaint, together with plaintiff's Amended Complaint dated March 13, 2017, is annexed hereto as Exhibit "A." C4+ 5. On or about May 9, 2017, Defendants/Third-Party Plaintiffs initiated a third-party action against Third-Party Defendants, alleging that Defendants/Third-Party Plaintiffs are entitled to full indemnification and/or contribution from Third-Party Defendant for all or part of any sum that be recovered plaintiff against Plaintiffs. A of the Third- may by Defendants/Third-Party copy "B." Party Complaint is annexed hereto as Exhibit 4 2 of 5 FILED: NEW YORK COUNTY CLERK 06/22/2018 03:36 PM INDEX NO. 151104/2017 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/22/2018 6. The Third-Party Complaint was served on Third-Party Defendant, pursuant to BCL § 306, by service on of the aforesaid papers at the office of the New York State Secretary of 6d' State located at 99 Washington Avenue, Fl., Albany, New York on May 23, 2017. The affidavit "C." of service is annexed hereto as Exhibit 7. At the latest, Third-Party Defendant was required to respond to the Third-Party Complaint or otherwise move by June 22, 2017. To date, Third-Party Defendants have not answered or otherwise appeared. 8. In correspondence sent by federal express and overnight certified mail and dated June 15, 2018, Defendants/Third-Party Plaintiffs notified Third-Party Defendant that due to their failure to respond to the Third Party Complaint, Defendants/Third-Party Plaintiffs would be filing a motion for default judgment on or before June 21, 2018. A copy of the Third-Party Complaint was annexed to the letter. A copy of this June 15, 2018 correspondence is annexed hereto as "D." Exhibit 9. To date, Third-Party Defendant has failed to Answer or otherwise respond to the Third-Party Complaint. ARGUMENT 10. Pursuant to CPLR § 320, Third-Party Defendant was required to Answer or otherwise appear in this action within 30 days of service of the third-party summons and complaint, where such service was effectuated by service on the Secretary of State. 11. Third-Party Defendant did not Answer or otherwise move on or before June 22, 2017, and, to date, neither Third-Party Defendant has not Answered or otherwise moved in this matter. Accordingly, Third-Party Defendant has defaulted as a matter of law, and Plaintiffs are entitled to the of a default judgment against Third- Defendants/Third-Party entry Party Defendant. See, e.g. Hermitage Ins. Co. v. Athena Management Corp., 115 A.D.3d 628, 629 5 3 of 5 FILED: NEW YORK COUNTY CLERK 06/22/2018 03:36 PM INDEX NO. 151104/2017 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/22/2018 (1st Dep't default judgment because defendant was deemed to have admitted all 2014)(granting traversable allegations in the complaint, including basic allegations of liability, where defendant failed to answer the allegations); see also Suffolk P.E.T. Management, LLC v. Anand, 136 A.D.3d 417 (1st Dep't 2016)(stating defaulting parties are deemed to have admitted all traversable allegations in complaint); Al Fayed v. Barak, 39 A.D.3d 371 (1st Dep't 2007) (same). 12. Moreover, Defendants/Third-Party Plaintiffs have alleged a meritorious cause of action against Third-Party Defendant (see attached Affidavit ofFacts Upon Applicationfor Default Judgment), and therefore, Third-Party Defendant should be required to fully indemnify Defendants/Third-Party Plaintiffs in the event there is a verdict and judgment in favor of plaintiff against Defendants/Third-Party Plaintiffs. See, e.g. Whittemore v. Yeo, 117 A.D.3d 544, 545 (1st Dep't 2014) (holding a plaintiff establishing a prima facie claim in support of the default judgment sufficiently supported the default judgment); Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62 (2003) (finding a verified complaint need only allege enough facts to enable a court to determine a viable cause of action exists in order to support the granting of a default judgment). Plaintiffs' 13. As such, it is respectfully submitted that Defendants/Third-Party motion should be granted in itsentirety. WHEREFORE, itis respectfully requested that Defendant/Third-Party Plaintiff's motion be granted in its entirety, together with granting such other and further relief as this Court deems just and proper. 6 4 of 5 FILED: NEW YORK COUNTY CLERK 06/22/2018 03:36 PM INDEX NO. 151104/2017 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 06/22/2018 Dated: New York, New York June 22, 2018 Respectfully submitted, O' COZEN O'CONNOR By: Kristin A. Keehan Attorneys for Defendants/Third-Party Plaintiffs 93-97 WYTHE AVENUE, LP, THE HOXTON (WILLIAMSBURG) LLC flea 93-97 WYTHE AVENUE LLC and MAGNETIC BUILDERS GROUP LLC - 16u' 45 Broadway Floor New York, New York 10006 (212) 509-9400 To: MATALON SHWEKY ELMAN PLLC Attorneys for Plaintiff 33rd 450 Seventh Avenue, FlOOr New York, New York 10123 (212) 244-9000 Via Electronic Filing EXPEDITION CONTRACTING CORP. 684A Hancock Street Brooklyn, New York 11233 ANCHOR IT INC. 33 Rancho Drive Cortland Manor, NY 10567 7 5 of 5