| Nouveau El. Indus., Inc. v Tracey Towers Hous. Co. |
| 2012 NY Slip Op 03778 [95 AD3d 616] |
| May 15, 2012 |
| Appellate Division, First Department |
| Nouveau Elevator Industries, Inc., Appellant, v TraceyTowers Housing Co., Also Known as Tracy Towers, Co., Inc., et al., Respondents, et al.,Defendants. |
—[*1] Reed Smith LLP, New York (James M. Andriola of counsel), for respondents.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered May 9, 2011, which,insofar as appealed from as limited by the briefs, denied plaintiff's motion for a default judgment,granted defendants-respondents' cross motion to compel plaintiff to accept their answer, andgranted defendants-respondents R.Y. Management Co., Inc. and Leon D. DeMatteis ConstructionCorp.'s motion to dismiss the complaint as against them, unanimously modified, on the law, tothe extent of granting plaintiff's motion for a default judgment in the sum of $2,314,955.43 asagainst defendant-respondent Tracey Towers Housing Co., Inc. on all causes of action, and asagainst defendants-respondents Tracey Towers Associates and Leon D. DeMatteis ConstructionCorp. on the fourth cause of action, denying the cross motion to compel plaintiffs to acceptdefendants-respondents' answer, denying respondents R.Y. Management Co., Inc. and Leon D.DeMatteis Construction Corp.'s motion to dismiss the complaint as against them, and otherwiseaffirmed, without costs. The Clerk is directed to enter judgment accordingly in favor of plaintiffagainst Tracey Towers Housing Co., Inc., Tracey Towers Associates and Leon D. DeMatteisConstruction Corp.
Plaintiff demonstrated entitlement to a default judgment on the first cause of action foraccount stated as against Tracey Towers Housing Co. by submitting proof of service, proof ofdefault, and proof that it presented Tracey Towers Co. with an account balance of $2,314,955.43without objection (see CPLR 306, 3215; Gurney, Becker & Bourne v Benderson Dev.Co., 47 NY2d 995, 996 [1979]; Interman Indus. Prods. v R. S. M. Electron Power,37 NY2d 151, 153-156 [1975]; Public Broadcast Mktg. v Trustees of Univ. of Pa., 216AD2d 103 [1995]). Plaintiff is also entitled to that sum as against Tracey Towers Housing Co. byvirtue of the third cause of action for breach of the parties' December 3, 2008 agreement, andfailure to pay for goods and services rendered thereafter.
Plaintiff also demonstrated a meritorious claim as against Tracey Towers Housing Co. for$2,314,955.43, pursuant to CPLR 3016 (f), by submitting the itemized schedule detailing their[*2]entitlement thereto, along with the verified complaintexplaining the validity thereof and alleging failure to pay for those goods and services (seeMerrill/New York Co. v Celerity Sys., 300 AD2d 206 [2002]; Marinelli v Shifrin,260 AD2d 227 [1999]).
Plaintiff also established its entitlement to foreclosure of the mechanic's liens as againstTracey Towers Co., Tracey Towers Associates, and Leon D. DeMatteis Construction Corp., eachof which is alleged by the verified complaint to have an ownership interest in the subjectproperties. Plaintiff commenced this action within one year of filing the liens, and submitteddocumentary evidence, including the service contract, the invoices, and the settlement letter,showing that it was hired by Tracey Towers Housing Co. to service the properties' elevators, butwas not fully paid for its work (see Lien Law §§ 3, 19 [2]; §§24, 41; First Sealord Sur., Inc. v Vesta24 LLC, 55 AD3d 423 [2008]; 240-35 Assoc. v Major Bldrs. Corp., 234 AD2d234 [1996]).
Supreme Court should have denied respondents' cross motion to compel plaintiff to accepttheir untimely answer because they failed to show a reasonable excuse for defaulting (CPLR3012 [d]). The summons and complaint were served on May 29, 2009, and to avoid defaulting,defendants were required to appear no later than June 29, 2009 (see CPLR 311 [a], 320[a]; General Construction Law § 25-a [1]). Thus, any reasonable excuse for defaultingmust have occurred before June 29, 2009 (see McGuire v Cousar Painting Co., 282AD2d 906 [2001]). The record belies defendants' contentions that any settlement negotiationsoccurred before June 29, 2009, and, thus, defendants failed to offer a reasonable excuse fordefaulting (see Collier, Cohen, Crystal & Bock v Fisher, 206 AD2d 260 [1994]). Thisdefault also warrants denial of defendants R.Y. Management Co., Inc. and Leon D. DeMatteisConstruction Corp.'s untimely motion to dismiss (see CPLR 3211 [e]).Concur—Tom, J.P., Andrias, Renwick, DeGrasse and Abdus-Salaam, JJ.