Preview
FILED: SCHOHARIE COUNTY CLERK 11/22/2023 02:36 PM INDEX NO. 2023-362
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023
STATE OF NEW YORK
SUPREME COURT COUNTY OF SCHOHARIE
VINCENT ARBUCCI,
Plaintiff, DECISION AND ORDER
Index No.: 2023-362
v. (Hon. Lynch, J.)
IDEAL CONSTRUCTION &
RENOVATIONS, LLC,
Defendants.
INTRODUCTION
This is a breach of contract action for money damages.1 Plaintiff filed an ex parte motion
for a default judgment against defendant.2
STATEMENT OF FACTS
Plaintiff hired defendant to construct a new deck on his home, in consideration of the
payment of $16,223.34 for Defendant’s labor; Plaintiff paid Defendant in full. Distinct from the
labor payment made to Defendant, Plaintiff paid $20,850.12 to a supplier for all the materials to
be used on the project, and the supplier delivered all materials to the site. Defendant constructed
the deck. Plaintiff alleges, however, that Defendant’s work was defective, causing the deck to be
unsafe and unusable. Plaintiff alleged the deck needs to be replaced and repaired at an estimated
cost of $17,500.00. The facts of this claim are fully set forth in the verified complaint (part of
NYSCEF Doc. No. 1).
1
NYSCEF Doc. No. 1 – Verified Complaint
2
NYSCEF Doc. No. 4.
1
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FILED: SCHOHARIE COUNTY CLERK 11/22/2023 02:36 PM INDEX NO. 2023-362
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023
SERVICE/ANSWER/RESPONSIVE PLEADINGS
Plaintiff served the Summons and Verified Complaint on defendant by personal service
in accord with CPLR §311-a (1) on October 6, 2023.3 Defendant’s answer, or responsive
pleading was due on or before October 26, 2023, in accord with CPLR R 320 (a). To date, said
Defendant has failed to submit any response to the Complaint, and is in default.
EX PARTE MOTION FOR A DEFAULT JUDGMENT
On November 1, 2023, Plaintiff filed an ex parte a motion for a default judgment.4
Where, as here, the case is not one in which the clerk can enter judgment, Plaintiff must apply to
the court in accord with CPLR§ 3215 (a). An ex parte default application is appropriate where, as
here, the defendant failed to appear (CPLR 3215 (g) (1); Stoltz v. Playquest Theater Co., 257
A.D.2d 758 3d Dept. 1999]).
CPLR§ 3215 (f) provides, inter alia:
“Proof. On any application for judgment by default, the applicant
shall file proof of service of the summons and the complaint, or
a summons and notice served pursuant to subdivision (b) of
rule 305 or subdivision (a) of rule 316 of this chapter, and
proof of the facts constituting the claim, the default and the
amount due, including, if applicable, a statement that the interest
rate for consumer debt pursuant to section five thousand four of
this chapter applies, by affidavit made by the party, or where the
state of New York is the plaintiff, by affidavit made by an attorney
from the office of the attorney general who has or obtains
knowledge of such facts through review of state records or
otherwise. Where 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.” (Emphasis added)
3
NYSCEF Doc. No. 2.
4
NYSCEF Doc. No. 4.
2
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023
Here, Plaintiff filed proof of service of the summons and verified complaint, proof of facts
constituting the claim, and proof of default.
Upon defendant’s default, said defendant is deemed to have admitted all the allegations in
the verified complaint (see Cartessa Aesthetics, LLC v. Demko, 217 A.D. 3d 821, 822 [2d Dept.
2023]). The admitted facts evidence a prima facie breach of contract claim (See Lapenna Contr.,
Ltd. v Mullen, 187 A.D.3d 1451, 1453 [3d Dept. 2020], the Court held,
"To recover for a breach of contract, a party must establish the
existence of a contract, the party's own performance under the
contract, the other party's breach of its contractual obligations,
and damages resulting from the breach").
CPLR§ 3215 (b) provides, inter alia:
(b) Procedure before court. The court, with or without a jury,
may make an assessment or take an account or proof, or may
direct a reference. The party entitled to judgment may be
permitted to submit, in addition to the proof required by
subdivision (f) of this section, properly executed affidavits or
affirmations as proof of damages, provided that if the defaulting
party gives reasonable notice that it will appear at the inquest,
the party seeking damages may submit any such proof by oral
testimony of the witnesses in open court or, after giving
reasonable notice that it will do so, by written sworn
statements of the witnesses, but shall make all such witnesses
available for cross-examination. When a reference is directed,
the court may direct that the report be returned to it for further
action or, except where otherwise prescribed by law, that judgment
be entered by the clerk in accordance with the report without any
further application.”
Where, as here, the damages claimed are not a sum certain, a damage inquest must be held (see
Reynolds Secur., Inc. v. Underwriters Bank & Trust Co., 44 N.Y.2d 568, 572-573 [1978], where
the Court held,
3
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023
“The term "sum certain" in this context contemplates a situation
in which, once liability has been established, there can be no
dispute as to the amount due, as in actions on money judgments
and negotiable instruments… In the present case, however, the
damages sought cannot be determined without extrinsic
proof…It follows that the entry by the clerk was unauthorized, and
an inquest should therefore have been ordered…” (emphasis
added)
; see also, Castaldini v Walsh, 186 A.D.3d 1193 [2d Dept. 2020], where the Court held,
“A defaulting defendant "admits all traversable allegations in
the complaint, including the basic allegation of liability, but
does not admit the plaintiff's conclusion as to damages". "The
sole issue to be determined at an inquest is the extent of
damages sustained by the plaintiff," and the inquest court should
not consider the question of whether the defendant caused the
damages sustained by the plaintiff” (internal citations omitted;
emphasis added)
Plaintiff has not yet filed a jury trial note of issue in accord with CPLR § 4102 (a). Accordingly,
the Court will conduct a damage inquest.
CONCLUSION
For the reasons more fully stated above, Plaintiff’s ex parte motion for a default judgment
against defendant Ideal Constructions and Renovations, LLC on the issue of liability is Granted,
and the Court will conduct an in-person damage inquest at 10:00 a.m. on December 19, 2023.
Plaintiff is directed to serve a copy of this Decision and Order on Defendant via certified
mail on or before the 28th day of November 2023.
This memorandum constitutes both the decision and order of the Court.5
Dated: Albany, New York
November 21, 2023
_________________________________
PETER A. LYNCH, J.S.C.
5
Plaintiff is required to comply with the provisions of CPLR 2220.
4
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FILED: SCHOHARIE COUNTY CLERK 11/22/2023 02:36 PM INDEX NO. 2023-362
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023
PAPERS CONSIDERED:
All e-filed pleadings, with exhibits.
To: Evan Lane, Esq.
Attorney at Law, PLLC
Attorney for Plaintiff
551 East Main Street, Ste. I
Cobleskill, New York 12043
Ideal Constructions and Renovations, LLC
Attn: Michael Winnie
Defendant
P.O. Box 47
Sharon Springs, New York 1345
5
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Preview
FILED: SCHOHARIE COUNTY CLERK 11/22/2023 02:36 PM INDEX NO. 2023-362 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF SCHOHARIE VINCENT ARBUCCI, Plaintiff, DECISION AND ORDER Index No.: 2023-362 v. (Hon. Lynch, J.) IDEAL CONSTRUCTION & RENOVATIONS, LLC, Defendants. INTRODUCTION This is a breach of contract action for money damages.1 Plaintiff filed an ex parte motion for a default judgment against defendant.2 STATEMENT OF FACTS Plaintiff hired defendant to construct a new deck on his home, in consideration of the payment of $16,223.34 for Defendant’s labor; Plaintiff paid Defendant in full. Distinct from the labor payment made to Defendant, Plaintiff paid $20,850.12 to a supplier for all the materials to be used on the project, and the supplier delivered all materials to the site. Defendant constructed the deck. Plaintiff alleges, however, that Defendant’s work was defective, causing the deck to be unsafe and unusable. Plaintiff alleged the deck needs to be replaced and repaired at an estimated cost of $17,500.00. The facts of this claim are fully set forth in the verified complaint (part of NYSCEF Doc. No. 1). 1 NYSCEF Doc. No. 1 – Verified Complaint 2 NYSCEF Doc. No. 4. 1 1 of 5 FILED: SCHOHARIE COUNTY CLERK 11/22/2023 02:36 PM INDEX NO. 2023-362 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023 SERVICE/ANSWER/RESPONSIVE PLEADINGS Plaintiff served the Summons and Verified Complaint on defendant by personal service in accord with CPLR §311-a (1) on October 6, 2023.3 Defendant’s answer, or responsive pleading was due on or before October 26, 2023, in accord with CPLR R 320 (a). To date, said Defendant has failed to submit any response to the Complaint, and is in default. EX PARTE MOTION FOR A DEFAULT JUDGMENT On November 1, 2023, Plaintiff filed an ex parte a motion for a default judgment.4 Where, as here, the case is not one in which the clerk can enter judgment, Plaintiff must apply to the court in accord with CPLR§ 3215 (a). An ex parte default application is appropriate where, as here, the defendant failed to appear (CPLR 3215 (g) (1); Stoltz v. Playquest Theater Co., 257 A.D.2d 758 3d Dept. 1999]). CPLR§ 3215 (f) provides, inter alia: “Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316 of this chapter, and proof of the facts constituting the claim, the default and the amount due, including, if applicable, a statement that the interest rate for consumer debt pursuant to section five thousand four of this chapter applies, by affidavit made by the party, or where the state of New York is the plaintiff, by affidavit made by an attorney from the office of the attorney general who has or obtains knowledge of such facts through review of state records or otherwise. Where 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.” (Emphasis added) 3 NYSCEF Doc. No. 2. 4 NYSCEF Doc. No. 4. 2 2 of 5 FILED: SCHOHARIE COUNTY CLERK 11/22/2023 02:36 PM INDEX NO. 2023-362 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023 Here, Plaintiff filed proof of service of the summons and verified complaint, proof of facts constituting the claim, and proof of default. Upon defendant’s default, said defendant is deemed to have admitted all the allegations in the verified complaint (see Cartessa Aesthetics, LLC v. Demko, 217 A.D. 3d 821, 822 [2d Dept. 2023]). The admitted facts evidence a prima facie breach of contract claim (See Lapenna Contr., Ltd. v Mullen, 187 A.D.3d 1451, 1453 [3d Dept. 2020], the Court held, "To recover for a breach of contract, a party must establish the existence of a contract, the party's own performance under the contract, the other party's breach of its contractual obligations, and damages resulting from the breach"). CPLR§ 3215 (b) provides, inter alia: (b) Procedure before court. The court, with or without a jury, may make an assessment or take an account or proof, or may direct a reference. The party entitled to judgment may be permitted to submit, in addition to the proof required by subdivision (f) of this section, properly executed affidavits or affirmations as proof of damages, provided that if the defaulting party gives reasonable notice that it will appear at the inquest, the party seeking damages may submit any such proof by oral testimony of the witnesses in open court or, after giving reasonable notice that it will do so, by written sworn statements of the witnesses, but shall make all such witnesses available for cross-examination. When a reference is directed, the court may direct that the report be returned to it for further action or, except where otherwise prescribed by law, that judgment be entered by the clerk in accordance with the report without any further application.” Where, as here, the damages claimed are not a sum certain, a damage inquest must be held (see Reynolds Secur., Inc. v. Underwriters Bank & Trust Co., 44 N.Y.2d 568, 572-573 [1978], where the Court held, 3 3 of 5 FILED: SCHOHARIE COUNTY CLERK 11/22/2023 02:36 PM INDEX NO. 2023-362 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023 “The term "sum certain" in this context contemplates a situation in which, once liability has been established, there can be no dispute as to the amount due, as in actions on money judgments and negotiable instruments… In the present case, however, the damages sought cannot be determined without extrinsic proof…It follows that the entry by the clerk was unauthorized, and an inquest should therefore have been ordered…” (emphasis added) ; see also, Castaldini v Walsh, 186 A.D.3d 1193 [2d Dept. 2020], where the Court held, “A defaulting defendant "admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff's conclusion as to damages". "The sole issue to be determined at an inquest is the extent of damages sustained by the plaintiff," and the inquest court should not consider the question of whether the defendant caused the damages sustained by the plaintiff” (internal citations omitted; emphasis added) Plaintiff has not yet filed a jury trial note of issue in accord with CPLR § 4102 (a). Accordingly, the Court will conduct a damage inquest. CONCLUSION For the reasons more fully stated above, Plaintiff’s ex parte motion for a default judgment against defendant Ideal Constructions and Renovations, LLC on the issue of liability is Granted, and the Court will conduct an in-person damage inquest at 10:00 a.m. on December 19, 2023. Plaintiff is directed to serve a copy of this Decision and Order on Defendant via certified mail on or before the 28th day of November 2023. This memorandum constitutes both the decision and order of the Court.5 Dated: Albany, New York November 21, 2023 _________________________________ PETER A. LYNCH, J.S.C. 5 Plaintiff is required to comply with the provisions of CPLR 2220. 4 4 of 5 FILED: SCHOHARIE COUNTY CLERK 11/22/2023 02:36 PM INDEX NO. 2023-362 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023 PAPERS CONSIDERED: All e-filed pleadings, with exhibits. To: Evan Lane, Esq. Attorney at Law, PLLC Attorney for Plaintiff 551 East Main Street, Ste. I Cobleskill, New York 12043 Ideal Constructions and Renovations, LLC Attn: Michael Winnie Defendant P.O. Box 47 Sharon Springs, New York 1345 5 5 of 5