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Perez v. Batiz
Perez v Batiz 2024 NY Slip Op 31062(U) March 29, 2024 Supreme Court, New York County Docket Number: Index No. 651888/2018 Judge: Debra A. James 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.
INDEX NO. 651888/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/29/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 651888/2018 ANGEL PEREZ and B & A RESTORATION CONTRACTORS INC., MOTION DATE 04/21/2023
Plaintiffs, MOTION SEQ. NO. 004 005
- V - DECISION + ORDER ON EDWIN BATIZ, BAR 13, INC., and ZOE REALTY CORP., MOTION Defendants. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 49, 50, 51, 52, 53, 54,55,56,57,58,59, 60, 61, 62, 63, 64, 65, 66, 68, 69, 94, 97, 99,100,101 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 86, 87, 88, 89, 90, 91, 92, 93, 95, 96, 98, 102, 103, 104, 105, 106, 107, 108 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.
ORDER
Upon the foregoing documents, it is
ORDERED that the motion of defendant Bar 13, Inc., pursuant
to CPLR §§ 5015(a) and 317, to vacate the default judgment
against it (motion sequence number 004) is DENIED; and it is
further
ORDERED that the motion of defendant Zoe Realty Corp
pursuant to CPLR § 5015 to vacate the default judgment against
it is GRANTED, and the judgment filed on January 25, 2022, as
against defendant Zoe Realty Corp. only is hereby vacated; and
it is further
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INDEX NO. 651888/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/29/2024
ORDERED that, within twenty (20) days of the date hereof,
plaintiffs shall file an amended judgment removing defendant Zoe
Realty Corp, nunc pro tune, in accordance with the foregoing;
and it is further
ORDERED that the action against defendant Zoe Realty Corp
is severed, restored to the calendar, and shall continue; and it
is further
ORDERED that, within thirty (30) days of the date hereof,
defendant Zoe Realty Corp shall serve and file an answer to the
complaint or otherwise move; and it is further;
ORDERED that counsel for plaintiffs and for defendant Zoe
Realty Corp are directed to post on NYSCEF a proposed
preliminary discovery conference order or competing proposed
preliminary discovery conference order(s) at least two days
before May 2, 2024, on which date counsel shall appear via
Microsoft Teams, unless such appearance be waived by the court.
DECISION
Affiant Thomas Sullivan alleges that he is the "sole
proprietor of [defendant} Bar 13 Inc", but such characterization
of his ownership is incorrect, as a matter of law, given that
Bar 13, Inc. is a corporate entity and not a sole
proprietorship. In addition, neither he nor defendant Batiz
deny that at all pertinent times, defendant Batiz was a
principal (specifically, president) of corporate defendant Bar
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!3, Inc. Sullivan does not contest the affidavit, wherein under
oath on August 16, 2019, defendant Batiz stated that he is the
president of defendant Bar 13 Inc, which affidavit was submitted
in support of a motion to stay issuance of a warrant in a
landlord and tenant non-payment summary proceeding, entitled Zoe
Realty Corp v Bar 13 Inc, NYC Civil Court Index No 078035/2018
(NYSCEF Document Number 101).
Furthermore, defendant Batiz does not deny that, in the
herein action, he retained counsel, who appeared at the remote
oral argument and challenged the motion of plaintiffs for a
default judgment against him on September 24, 2019. As such
principal's knowledge of the judgment is imputed to defendant
Bar 13, Inc., such defendant corporation is unable to
demonstrate that it did not have knowledge of entry of the
judgment on September 24, 2019. Therefore, defendant Bar 13,
Inc is not entitled to relief from such judgment pursuant to
CPLR § 317. This court likewise agrees with plaintiffs that
defendant Bar 13 Inc has, thereby, failed to assert a reasonable
excuse for its default or a meritorious defense, and therefore
relief pursuant to CPLR 5015 (a) (3) is also unwarranted.
However, defendant Zoe Realty Corp. has established
entitlement to relief from the default judgment against it
pursuant to CPLR § 317. See Eugene Di Lorenzo, Inc v AC Dutton
Co Inc, 67 NY2d 138 (1986). Corporate defendant Zoe Realty Corp
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was served via the Secretary of State and not personally. As
its principal Hyam Tsadok states under oath that he received no
copy of the complaint and attached to plaintiff's opposition is
no receipt showing that the Secretary of State served process by
certified mail, return receipt requested, upon defendant Zoe
Realty Corp pursuant to CPLR § 306(a), affiant Tsadok's
assertion that he did not obtain knowledge of entry of the
default in time to defend same establishes that defendant Zoe
Realty Corp had no such knowledge. Defendant Zoe Realty Corp,
also by the affidavit of its principal Tsadok, states a
meritorious defense to the complaint against it, in which he
alleges that plaintiff defendant Perez has an ownership interest
in Bar 13 Inc and as such, defendant Perez has no right to file
a mechanic's lien for any "investment" he made in the real
property against Zoe Realty Co., landlord of the property. See
Pallette Stone Corp v Bokus, 208 AD2d 1138 (3rd Dept 1994)
P-~ . A - } ~ 20240329123643DJAME5463DF93D1F5245EF88D222A792A8D7C6
3/29/2024 DATE DEBRA A. JAMES, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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