Astoria 20-05 30TH LLC v. Ssa Constr. Servs., Inc., Index No. 159565/2015

Citation2016 NY Slip Op 31653 (U)
Decision Date12 April 2016
Docket NumberIndex No. 159565/2015
PartiesASTORIA 20-05 30TH LLC, ASTORIA 23-15 30TH LLC, ASTORIA 21-80 30TH LLC, ASTORIA 21-81 38TH LLC, Plaintiffs v. SSA CONSTRUCTION SERVICES, INC. d/b/a SSA CONSTRUCTION GROUP d/b/a LTSD/SSA CONSTRUCTION GROUP, Defendant
CourtUnited States State Supreme Court (New York)

2016 NY Slip Op 31653(U)

ASTORIA 20-05 30TH LLC, ASTORIA 23-15 30TH LLC,
ASTORIA 21-80 30TH LLC,
ASTORIA 21-81 38TH LLC, Plaintiffs
v.
SSA CONSTRUCTION SERVICES, INC.
d/b/a SSA CONSTRUCTION GROUP
d/b/a LTSD/SSA CONSTRUCTION GROUP, Defendant

Index No. 159565/2015

SUPREME. COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

April 12, 2016


DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

I. PLAINTIFFS' MOTION FOR A DEFAULT JUDGMENT

Plaintiffs move for a default judgment against defendant, declaring that defendant is not entitled to any damages from plaintiffs and, instead, they are entitled to damages from defendant, due to its breach of an agreement between plaintiffs and defendant and its negligent construction work for plaintiffs. C.P.L.R. §§ 3001, 3215. The only evidence supporting plaintiffs' motion is their complaint incorporated in an affidavit from the sole member of each of plaintiff limited liability companies.

Plaintiff's witness Laurent Morali refers to "a written agreement," Aff. of Laurent Morali Ex. A (Compl.) ¶ 11, but fails to present it. Williams v. Esor Realty Co., 117 A.D.3d 480, 480-81 (1st Dep't 2014); US Bank N.A. v. Lieberman, 98 A.D.3d 422, 423 (1st Dep't 2012). His recitation of the document's contents is rank hearsay and "not an acceptable substitute" for the

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document itself, People v. Joseph, 86 N.Y.2d 565, 570 (1995), particularly when he does not indicate it is currently inaccessible. Cole v. Homes for the Homeless Inst., Inc., 93 A.D.3d 593, 594 (1st Dep't 2012); Mastroddi v. WDG Dutchess Assoc. Ltd. Partnership, 52 A.D.3d 341, 342 (1st Dep't 2008); Lapin v. Atlantic Realty Apts. Co., LLC, 48 A.D.3d 337, 338 (1st Dep't 2008); Chubb Natl. Ins. Co. v. Platinum Customcraft Corp., 38 A.D.3d 244, 245 (1st Dep't 2007). This inadmissible hearsay is thus insufficient to support a default judgment on defendant's liability for breach of the agreement. C.P.L.R. § 3215(f); Manhattan Telecom Corp. v. H & A Locksmith, Inc., 21 N.Y.3d 200, 202-203 (2013); Martinez v. Reiner, 104 A.D.3d 477, 478 (1st Dep't 2013); Utak v. Commerce Bank, 88 A.D.3d 522, 523 (1st Dep't 2011); Mejia-Ortiz v. Inoa, 71 A.D.3d 517, 517 (1st Dep't 2010).

The complaint alleges defendant's negligent construction work, in that defendant "incorrectly installed appliances," Morali Aff. Ex. A ¶ 31; "caused damage to the roof" of at least two of plaintiffs' buildings, id. ¶ 32; and performed work "in a shoddy manner." Id. ¶ 33. The complaint further alleges how defendant's negligence damaged plaintiffs. It required them "to hire additional contractors and expend additional money to correct defendant's negligent work." Id. ¶ 61. Defendant's negligent work prevented plaintiffs' tenants, who already had entered leases, from moving into the buildings' units, causing a loss of rental income to plaintiffs, and prevented them from leasing further units during the summer when the leasing business

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is typically at its peak. Thus the complaint sufficiently supports a default judgment on defendant's liability for damages due to its negligence. C.P.L.R. § 3215(f).

II. DEFENDANT'S LATE ANSWER

Defendant, on the other hand, served an answer only 14 days late. Its delay was due to its attorney's inadvertence while the parties sought to resolve their dispute via mediation. Immediately upon realizing he had overlooked the deadline for answering, defendant's attorney rectified his error.

Defendant's Senior Partner Saul Sutton attests to the merits of its defenses and counterclaims. Plaintiffs breached the parties' agreement, which defendant presents and Sutton authenticates, by terminating it without written notice seven days in advance as the agreement required. People v. Frye, 94 A.D.3d 589, 589 (1st Dep't 2012); People v. Pierre, 41 A.D.3d 289, 291 (1st Dep't 2007); Singer Asset Fin. Co., LLC v. Melvin, 33 A.D.3d 355, 357-58 (1st Dep't 2006); Acevedo v. Audubon Mgt., 280 A.D.2d 91, 95 (1st Dep't 2001). Contrary to the complaint, Sutton attests that defendant provided the necessary materials,...

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