First St. Realty, LLC v. MRG Fitness Inc., 2022-31251

CourtNew York Civil Court
Writing for the CourtHON. MATTHEW P. BLUM, JUDGE
PartiesFIRST STREET REALTY, LLC Petitioner, v. MRG FITNESS, INC. MICHAEL MARCHESS Respondents,
Docket Number2022-31251,Index LT-300905-21/RI
Decision Date04 May 2022

FIRST STREET REALTY, LLC Petitioner,
v.

MRG FITNESS, INC. MICHAEL MARCHESS Respondents,

No. 2022-31251

Index No. LT-300905-21/RI

Civil Court of the City of New York, Richmond County

May 4, 2022


Unpublished Opinion

DECISION AND ORDER

HON. MATTHEW P. BLUM, JUDGE

Papers Numbered

Petitioner's Notice of Motion with Affidavit and Affirmation in Support of Default, Exhibits Annexed ................................ 1

Respondent's Affirmation and Affidavit in Opposition................................2

Petitioner's Affirmation in Reply to Respondent's Opposition.....................3

Upon the foregoing cited papers, the Decision/Order on the motions are as follows:

PROCEDURAL HISTORY

This action was commenced on or about November 23, 2021 by First Street Realty, LLC (hereinafter "Petitioner") with the filing of a Business Notice of Petition Non-Payment, Commercial Non-Payment Petition, and Fourteen Day Rent Demand with the Court, seeking to recover possession of 31 P' Street, Unit A (hereinafter "premises"), $24, 435.23 in unpaid rent,

1

costs, and disbursements with interest from May 1, 2020 from MRG Fitness, Inc. and Michael Marchese (hereinafter "Respondents"). Prior to the commencement of the action, on October 21, 2021, Respondents were served with a Fourteen Day Rent Demand via certified mail to Michael Marchese at 45 86th Street, Brooklyn, New York 11209 and 45 DeNoble Lane, Staten Island, New York 10301 as well as having said Fourteen Day Rent Demand affixed to the premises followed by certified mail that same day, alerting Respondents that at that time, Respondents owed $23, 697.23 in unpaid rent. Petitioner and Respondents had a Lease Agreement for a property described as "31 P' Street, Unit A on the first floor, left side, Staten Island, New York 10306". Service was completed on Respondents on December 1, 2021 as Respondents were served with the Business Notice of Petition Non-Payment and Commercial Non-Payment Petition, by the documents being affixed to the premises and also mailed via certified mail on December 2, 2021. At that time. Respondents allegedly owed S24, 435.23. On January 31, 2022, Petitioner filed a Motion for Default. On March 9, 2022, the Respondents filed an answer. On March 10, 2022, both sides agreed to adjourn the motion to March 31, 2022 or sometime thereafter. Also on March 10, 2022 Petitioner filed a rejection of late answer. On April 14, 2022, Respondents filed an opposition to Petitioner's motion for default. This was followed by Petitioner's reply to Respondents' motion in opposition. Lastly, on April 25, 2022, Petitioner withdrew the claim for a money judgment against Respondent, Michael Marchese.

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Discussion

Petitioner's motion for entry of a Default Judgment and Money Judgment, along with the issuance and execution of a Warrant of Eviction in favor of Petitioner and against Respondents is granted as explained below.

The Respondents Defaulted and Did Not Have a Reasonable Excuse for Failing to Answer

"On a motion for leave to enter a default judgment against a defendant based on the failure to answerer appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default". see CPLR §3215[f]; Nationstar Mtge, LLC v. Gross. 201 A.D.3d 942, 944 (2d, Dep't 2022) quoting HSBC Bank USA. N.A. v Diallo. 190 A.D.3d 959, 960 (2d. Dep't 2021); L&Z Masonry Corp. v Mose. 167 A.D.Bd 728, 729 (2d, Dep't 2018); Liberty County Mut. v Avenue 1 Med., P.C. 129 A, D.3d 783, 784-785 (2d. Dep't 2015). "To defeat a facially sufficient CPLR §3215 motion, a...

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