Eighteen Harrison Mgt. LLC v Gruppo 5 Subpartners

Inc.

2024 NY Slip Op 31869(U)

May 16, 2024

Supreme Court, New York County

Docket Number: Index No. 656790/2022

Judge: Emily Morales-Minerva

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.
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PRESENT: 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

HON. EMILY MORALES-MINERVA PART 

Justice 

42M 

-------------------X INDEX NO. 656790/2022 

EIGHTEEN HARRISON MANAGEMENT LLC 

Plaintiff, 

-vGRUPPO 5 SUBPARTNERS INC., 

Defendant. 

-------------------X 

MOTION DATE 04/09/2024 

MOTION SEQ. NO. 006 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 006) 76, 77, 78, 79, 80, 

81, 82,83, 84, 85,86, 87, 88,89, 90,91,92, 93, 94,95 

were read on this motion to/for JUDGMENT- DEFAULT 

APPEARANCES: 

Reinhardt Savic Foley LLP, New York, New York (Stefan 

Savic, Esq., of counsel) for plaintiff. 

HON. EMILY MORALES-MINERVA: 

In this action for, among other things, breach of contract, 

EIGHTEEN HARRISON MANAGEMENT LLC ("plaintiff") moves, by notice 

of motion dated April 9, 2024, for leave to enter a default 

judgment against GRUPPO 5 SUBPARTNERS INC., ("defendant") in the 

amount of $724,634.94, together with costs and interest. 

Defendant submits no opposition to this motion. 

For the reasons set forth below the court grants the 

motion. 

656790/2022 EIGHTEEN HARRISON MANAGEMENT LLC vs. GRUPPO 5 SUBPARTNERS INC. 

Motion No. 006 

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BACKGROUND 

Plaintiff EIGHTEEN HARRISON MANAGEMENT LLC entered into AIA 

Standard Form Agreement ("contract") with defendant GRUPPO 5 

SUBPARTNERS INC., to complete a residential construction project 

("Project") on or about August 7, 2019. On June 14, 2022, 

Plaintiff filed a compliant alleging, breach of contract, unjust 

enrichment, common law indemnification, contractual 

indemnification, negligence, and breach of fiduciary duty, all 

in connection with the Project. 

On July 18, 2022, defendant appeared in this action, 

through counsel, and filed an answer to plaintiff's complaint. 

Since then, the Court (Hon. N. Bannon J.S.C.) has scheduled two 

status conferences whereby the defendant failed to appear 

NY St Cts Elec Filing (NYSCEF] Doc No. 45, Status Conference 

Order, and NY St Cts Elec Filing (NYSCEF] Doc No. 47, Status 

Conference Order). As a result of defendant's failure to appear 

at the second status conference, the court "ORDERED that 

defendant Gruppo 5 Subpartners Inc., is held in default and its 

answer is stricken pursuant to 22 NYCRR 202.27" see NY St Cts 

Elec Filing [NYSCEF] Doc No. 47, Status Conference Order). 

By notice of motion (sequence number 005), dated February 

15, 2024, plainti moved, pursuant to CPLR 3215, for an order 

granting it a default judgment against defendant. The Court 

656790/2022 EIGHTEEN HARRISON MANAGEMENT LLC vs. GRUPPO 5 SUBPARTNERS INC. 

Motion No. 006 

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denied said motion without prejudice to renewal within 30 days. 

The Court reasoned that plaintiff failed to satisfy the 

additional service requirements on a defendant corporation 

pursuant to CPLR 3215(g) (4) (ii) see Decision and Order, dated 

March 12, 2024 [E. Morales-Minerva J.S.C]). 

Within 30 days of the denial of plaintiff's motion 

(sequence number 005), plainti filed the instant motion 

(sequence number 006), seeking an order granting them a default 

judgment. No defendants have appeared or submitted any 

opposition to the subject application. 

ANALYSIS 

A proponent for a default judgment must provide proof of 

service of the summons and complaint, proof of the facts 

con~tituting th~ claim, and proof of the default (CPLR 3215 [f]; 

see also Gordon Law Firm, P.C. v Premier DNA Corp., 205 AD3d 

416, 416 [1st Dept 2022]). Moreover, to plead breach of 

contract, the proponent must allege: (1) the existence of a 

contract, (2) the plaintiffs' performance under the contract, 

(3) the defendants' breach of that contract, and (4) resulting 

damages (see Second Source Funding, LLC v Yellowstone Capital, 

LLC, 144 AD3d 445 [1st Dept. 2016]). 

656790/2022 EIGHTEEN HARRISON MANAGEMENT LLC vs. GRUPPO 5 SUBPARTNERS INC. 

Motion No. 006 

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Plaintiff has satisfied each of these elements to establish 

entitlement to a default judgment. 

First, Plaintiff has provided sufficient evidence to 

confirm defendant was properly served, and that the service 

defects in Motion Sequence 005 have been rectified in compliance 

CPLR 3215(g) and Business Corporation Law 303(b) (see NY St Cts 

Elec filing [NYSCEF] Doc No. 93, Affidavit of Brian L. 

Grossman) . 

Second, Plainti offers an affidavit from Plaintiff's sole 

manager, Ethem Gungor, in which he established the facts 

constituting the claim and damages incurred by plaintiff (see NY 

St Cts Elec filing [NYSCEFJ Doc No. 77, Affidavit of Ethem 

Gungor). Specifically, Gungor states that the contract provided 

for $400.00 in liquidated damages per day if the project was not 

substantially completed by October 8, 2020, leading to 

$490,000.00 in liquidated damages as of the filing of this 

motion. Further, Gungor states, with exhibits attached thereto, 

that $16,500.00 was paid to Plaintiff's neighbors to settle 

claims of damages caused by Defendant, $49,574.54 was paid by 

Plaintiff to subcontractors for work done that was originally 

contracted to be paid by Defendant, and $168,560.40 was paid by 

Plaintiff to Defendant for work that was never completed, 

demonstrated through Plainti 's business records (see NY St Cts 

Elec filing [NYSCEF] Doc No. 77, Affidavit of Ethem Gungor). 

656790/2022 EIGHTEEN HARRISON MANAGEMENT LLC vs. GRUPPO 5 SUBPARTNERS INC. 

Motion No. 006 

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It is well settled that a default judgment may be 

determinative of liability but not the amount of damages to be 

awarded, unless there can be no dispute as to the amount due, in 

other words, the amount sought being a "sum certain" see Arent 

Fox Kintner Plotkin & Kahn, PLLC v Lurzer GmbH, 297 A.D.2d 590, 

590 (1st Dept 2002); Reynolds Secs. v. Underwriters Bank & Trust 

Co., 44 N.Y.2d 568 (1978); see also CPLR 3215[a]). Further, a 

defendant whose answer is stricken, pursuant to 22 NYCRR 202.27, 

"admits all traversable allegations in the complaint, including 

the basic allegation of liability, but does not admit the 

plaintiff's conclusion as to damages" (see Rokina Opt. Co., Inc. 

v Camera King, Inc., 63 NY2d 728 [1984]). Where, however, the 

damages are for a sum certain, or a sum which can be made 

certain by computation, there is no need to conduct an inquest 

to assess the appropriate amount of damages see Curiale v Ardra 

Ins. Co., Ltd., 88 NY2d 268, 271 [1996]; see Transit Graphics v. 

Arco Distrib., 202 AD2d 241, 241 (1st Dept 1994). The affidavit 

of Ethem Gungor sufficiently sets forth the "sum certain" 

defendant owes as a result of the alleged breach; thus no 

inquest is necessary here. 

Accordingly, it is 

ORDERED that Plaintiff EIGHTEEN HARRISON MANAGEMENT LLC'S 

unopposed motion to enter default judgment against defendant 

GRUPPO 5 SUBPARTNERS INC., is granted; it further 

656790/2022 EIGHTEEN HARRISON MANAGEMENT LLC vs. GRUPPO 5 SUBPARTNERS INC. 

Motion No. 006 

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ORDERED that the Clerk of the Court is directed to enter 

judgment against defendant GRUPPO 5 SUBPARTNERS INC., in the sum 

of $724,634.94, together with costs and disbursements; and it is 

further 

ORDERED that plaintiff shall serve a copy of this Decision 

and Order with notice of entry upon defendant within 30 days 

after entry. 

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. 

5/16/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

656790/2022 EIGHTEEN HARRISON MANAGEMENT LLC vs. GRUPPO 5 SUBPARTNERS INC. 

Motion No. 006 

□ OTHER 

□ REFERENCE 

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