Plummer v. Key Devs. Inc.

Plummer v Key Devs. Inc. 2024 NY Slip Op 34525(U) December 20, 2024 Supreme Court, New York County Docket Number: Index No. 153612/2023 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: NEW YORK COUNTY CLERK 12/26/2024 04:24 PM INDEX NO. 153612/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/26/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -------------------X INDEX NO. 153612/2023 JOHN PLUMMER, MARSHA LUE PLUMMER, MOTION DATE 09/24/2024 Plaintiff, MOTION SEQ. NO. _ __;o;..cco...c...1_ _ -v- KEY DEVELOPERS INC., MARCUS GARVEY APARTMENTS LP., CARTHAGE 124TH LP., CARTHAGE REAL ESTATE ADVISORS LLC, CARTHAGE CONSTRUCTION LLC, CARTHAGE 124TH CLP., DECISION + ORDER ON CARTHAGE 124TH A LP., PROGRESSIVE ENGINEERING PLLC, NY DEVELOPERS & MANAGEMENT LLC, MOTION CARTHAGE LOT 57 HOUSING DEVELOPMENT FUND COMPANY, INC., ' Defendant. -------------------X

KEY DEVELOPERS INC., MARCUS GARVEYAPARTMENTS Third-Party LP., CARTHAGE 124TH LP., CARTHAGE REAL ESTATE Index No. 595536/2024 ADVISORS LLC, CARTHAGE CONSTRUCTION LLC, CARTHAGE 124TH C LP., CARTHAGE 124TH A LP,, CARTHAGE LOT 57 HOUSING DEVELOPMENT FUND COMPANY, INC.,

Plaintiff,

-against-

PIPING & PLUMBING SOLUTIONS NYC INC,

Defendant. -------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 38, 39, 40, 41, 42, 43,44,45,47 were read on this motion to/for JUDGMENT- DEFAULT

Upon the foregoing documents, a final submission date of October 31, 2024, and there

being no opposition, Plaintiffs John Plummer, Jr. and Marsha Lue Plurnrner's ("Plaintiffs") motion

seeking default judgment against Defendant Progressive Engineering PLLC ("Progressive

Engineering") is granted in part and denied in part, and the branch of Plaintiffs' motion seeking

153612/2023 PLUMMER JR., JOHN ET AL vs. KEY DEVELOPERS INC. ET AL Page 1 of4 Motion No. 001

[* 1] 1 of 4

FILED: NEW YORK COUNTY CLERK 12/26/2024 04:24 PM INDEX NO. 153612/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/26/2024

default judgment against Defendant NY Developers & Management LLC is withdrawn pursuant

to the parties' stipulation dated October 30, 2024 (NYSCEF Doc. 47).

An applicant for default judgment against a defendant must submit: (i) proof of service of

the summons and complaint, (ii) proof of the facts constituting the claim, and (iii) proof of the

defaulting defendant's failure to answer or appear (PV Holding Corp v AB Quality Health Supply

Corp, 189 AD3d 645 [1st Dept 2020]). Affidavits submitted in support of a motion for default

judgment only need to allege enough facts to allow a court to assess where a viable cause of action

exists (Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]). In undertaking this review,

the Court is mindful that "defaulters are deemed to have admitted all factual allegations in the

complaint and all reasonable inferences that flow from them" (Al Fayed v Barak, 39 AD3d 371,

372 [1st Dept 2007]).

Here, Plaintiffs have submitted an affidavit of service of summons and complaint on

Progressive Engineering through the NY Secretary of State, as well as the affidavit of merit of

Plaintiff John Plummer, Jr. Plaintiffs also submitted proof of Progressive Engineering's failure to

answer or otherwise appear. Moreover, the Court is satisfied with the proof of additional mailing

to Progressive Engineering pursuant to CPLR 3215(g)(4). Therefore, Plaintiffs' motion seeking

default judgment against Progressive Engineering is granted. Further, the Court, in the exercise of

its discretion, denies Plaintiffs' request for sanctions and attorneys' fees and costs.

Accordingly, it is hereby,

ORDERED that Plaintiffs' motion seeking default judgment against Progressive

Engineering is granted; and it is further

153612/2023 PLUMMER JR., JOHN ET AL vs. KEY DEVELOPERS INC. ET AL Page 2of4 Motion No. 001

[* 2] 2 of 4

FILED: NEW YORK COUNTY CLERK 12/26/2024 04:24 PM INDEX NO. 153612/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/26/2024

ORDERED that the branch of Plaintiffs' motion seeking default judgment against

Defendant NY Developers & Management LLC is withdrawn pursuant to the stipulation dated

October 30, 2024 (NYSCEF Doc. 47); and it is further

ORDERED that the branch of Plaintiffs' motion requesting sanctions and attorneys' fees

and costs is denied; and it is further

ORDERED that at the time of trial, an inquest on damages against Progressive Engineering

and in favor of Plaintiffs on Plaintiffs' first through fifth causes of action is directed; and it is

further

ORDERED that a copy of this Decision and Order, with notice of entry, shall be served by

counsel for Plaintiffs upon the Clerk of the General Clerk's Office (60 Centre Street, Room 119),

who is directed, upon the filing of a note of issue and a certificate of readiness and the payment of

proper fees, if any, to place this action on the appropriate trial calendar for the inquest hereinabove

directed; and it is further

ORDERED that on or before February 17, 2025, the parties shall meet and confer and

submit a proposed preliminary conference order to the Court via e-mail at

bgilmartin@nycourts.gov. In the event the parties are unable to agree to a proposed preliminary

conference order, the parties shall appear for~ in-person preliminary conference on February 19,

2025 at 9:30 a.m. in Room 442, 60 Centre Street, New York, New York; and it is further

[The remainder ofthis page is intentionally left blank.]

153612/2023 PLUMMER JR., JOHN ET AL vs. KEY DEVELOPERS INC. ET AL Page 3 of4 Motion No. 001

[* 3] 3 of 4

FILED: NEW YORK COUNTY CLERK 12/26/2024 04:24 PM INDEX NO. 153612/2023 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 12/26/2024

ORDERED that within 10 days of entry, counsel for Plaintiffs shall serve a copy of this

Decision and Order, with notice of entry, on all active parties to this action via NYSCEF and all

defaulting parties via first-class mail at their last known business and/or residential addresses.

This constitutes the Decision and Order of the Court.

12/20/2024 M '\/ &,J. Jlt DATE tloN. MARY V. ROSADO, J.S.C.

CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION

GRANTED □ DENIED x GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

153612/2023 PLUMMER JR., JOHN ET AL vs. KEY DEVELOPERS INC. ET AL Page4of4 Motion No. 001

[* 4] 4 of 4