### Board of Mgrs. of the Hampton House Condominium v IPark U, Inc. 2024 NY Slip Op 31187(U) April 8, 2024 Supreme Court, New York County Docket Number: Index No. 158771/2021 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.NYSCEF DOC. NO. 43 INDEX NO. 158771/2021 RECEIVED NYSCEF: 04/08/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO Justice ·------------X BOARD OF MANAGERS OF THE HAMPTON HOUSE CONDOMINIUM

-vlPARK U, INC., Plaintiff,

Defendant. ----------------------------------------------------------------------X PART 33M
INDEX NO. 158771/2021 MOTION DATE 12/19/2023 MOTION SEQ. NO. 002 DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 002) 24, 25, 27, 30, 32, 33, 34, 35, 36, 37 were read on this motion to/for STRIKE PLEADINGS Upon the foregoing documents, there being no opposition and good cause having been shown, Plaintiff Board of Managers of the Hampton House Condominium's ("Plaintiff') December 19, 2023 motion for an Order striking Defendant !Park U, Inc's ("Defendant") December 13, 2021 Answer (NSYCEF Doc. 35) and granting defaultjudgmentagainst Defendant and in favor ofPlaintifffor the reliefsought in Plaintiff's Verified Complaint (NYSCEF Doc. 34) is granted. 

### I. Background Pursuantto the May 13, 2023 Preliminary Conference OrderPlaintiffand Defendantwere directed to serve any demands for discovery and inspection on or before July 15, 2023, and to serveresponsesto those demands "asperCPLR" (NYSCEF Doc. 24). Subsequently, Plaintifffiled
aNotice ofDemand for Discovery and Inspection onJuly 24, 2023 (NYSCEF Doc. 36). Pursuant to CPLR 3120(2), Defendant's response to Plaintiff's Discovery and InspectionNotice was to be served along with any responsive documents onorbefore August 14, 2023. AfterDefendantfailed

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to respond to Plaintiffs Discovery and Inspection Notice by August 14, 2023, Defendant sent Plaintiffgood faith emails on August 15, 2023 and August 16, 2023 seeking a response to the Discovery and Inspection Notice (NYSCEF Doc. 33 at 3). Plaintiffdid not respond to either of Defendant's August emails (NSYCEF Doc. 33 at 3). Subsequently, a Compliance Conference Order dated September 20, 2023 ordered Defendant, inter alia, to respond to Plaintiffs July 24, 2023 Discovery and Inspection Notice by October 20, 2023 (NYSCEF Doc. 27). Despite this Order, Defendant did not serve any response to the Discovery and InspectionNotice on orbefore October 20, 2023 (NYSCEF Doc. 33 at ,i 9). On October24, 2023 Plaintiffscounsel sent anotheremailto Defendant'scounsel seeking
a response to Plaintiffs Discovery and InspectionNotice, and ifa response was not received that Plaintiffwould seek to schedule apre-motion discovery conference (NYSCEF Doc. 33 at ,i 9). On November 1, 2023, Plaintifffiled a request for leave to file a discovery motion in this action (NYSCEF Docs. 28-29). On November 3, 2023, the Court issued a Decision and Order conditionally grantingPlaintiffleave to make adiscovery motioninthe eventthatDefendant "fails to file a response to Plaintiffs First Notice ofDemand for Discovery and Inspection, dated July 24, 2023 ...by December 1, 2023" (NYSCEF Doc. 30). To date, Defendant has failed to provide any response to Plaintiffs Discovery and Inspection Notice. Accordingly, Plaintiffcommenced the instant motion on December 19, 2023 seeking an Order striking Defendant's December 13, 2021 Answer (NSYCEF Doc. 35) and granting default judgment against Defendant and in favor of Plaintiff for the relief sought in Plaintiffs Verified Complaint (NYSCEF Doc. 34). Defendant has not filed any opposition to Plaintiffs motion. [The remainder of thispage is intentionally left blank]

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### II. Discussion INDEX NO. 158771/2021 RECEIVED NYSCEF: 04/08/2024

A. Plaintiffs Motion to Strike Defendant'sAnswer and Enter DefaultJudgment against Defendant, is Granted CPLR 3126(3) authorizes a court to strike pleadings where a party "refused to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed." The First Department has held that the repeated violation ofdiscovery orders constitutes a pattern ofnoncompliance giving rise "to an inference ofwillful and contumacious conduct" warranting the imposition ofsanctions pursuant to CPLR 3126 (Cooper v Metropolitan Transp. Auth., 186 AD3d 1150 [1st Dept 2020]). Here, Defendant has failed to provide the discovery ordered by the May 13, 2023 Preliminary Conference Order (NYSCEF Doc. 24), the September 20, 2023 Compliance Conference Order (NYSCEF Doc. 27) and the Decision and Order dated November 3, 2023 (NYSCEF Doc. 30), and failed to respondto no lessthanthree goodfaith letters sentby Plaintiffs counsel. In light ofthe foregoing, Defendant is held in default, and its answer is stricken. B. Entry of Default Judgment against Defendant for the Relief Requested m Plaintiffs Complaintis Proper It is well settled that "[w]hen an answer is stricken and a default entered, the defendant 'admits all traversable allegations in the complaint, including the basic allegation ofliability, but does not admitthe plaintiffsconclusion as to damages'
...unless the damages are for a sum which
canbe made certainby computation" (Curiale vAdraIns. Co., 88 NY2d 268,279 [1996] quoting Rokina Optical Co. v Camera King, Inc., 63 NY2d 728, 730 [1984]). The Court ofAppeals has held that the term "sum certain" "contemplates a situation in which, once liability has been established, there can be no dispute as to the amount due, as in actions on moneyjudgments and

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negotiable instruments" (Reynolds Secur., Inc. v Underwriters Bank & Trust Co. 44 NY2d 568, 572 [1978]). Here, the Courtfinds thatPlaintiffsComplaint seeks amonetaryjudgmentof$200,000.00 with prejudgment interest (NYSCEF Doc. 34 at ,i 13). In accordance with the above outlined criteria,the $200,000.00 sum soughtby Plaintiffconstitutes a sum certain. Accordingly, aninquest is not needed, and Plaintiffs motion for ajudgment on default in the sum of$200,000.00, with prejudgment interest, is granted againstDefendant. Accordingly, it is hereby, ORDERED that Plaintiff Board of Manager of the Hampton House Condominium's December 19, 2023 motion for an Order striking Defendant !Park U, Inc.'s December 13, 2021 Answer and granting a defaultjudgment against Defendant and in favor ofPlaintifffor the relief sought in PlaintiffsVerified Complaint, is granted; and it is further ORDERED that Plaintiff Board of Manager of the Hampton House Condominium's motion for amoneyjudgmenton default against Defendant !ParkU, Inc. is granted in the amount of $200,000.00, plus statutory interest from September 24, 2021 (the commencement of this action) through entry of judgment, as calculated by the Clerk ofthe Court, togetherwith costs and disbursements as taxed by the Clerk ofthe Court upon submission ofan appropriate bill ofcosts; and it is further ORDERED that within ten (10) days ofentry, counsel for PlaintiffBoard ofManager of the Hampton House Condominium shall serve a copy ofthis Decision and Order, with notice of entry, upon Defendant !ParkU, Inc.; and it is further [The remainder of thispage is intentionallyleftblank]

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ORDERED thatthe Clerk ofthe Court is directed to enterjudgment accordingly. This constitutes the Decision and Order ofthe Court.

4/8/2024

DATE HON. MARYV. ROSADO, J.S.C. CHECK ONE:

APPLICATION: CHECK IF APPROPRIATE: x CASE DISPOSED
x GRANTED

### □ DENIED SETTLE ORDER INCLUDES TRANSl'ER/REASSIGN NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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