| Boudine v Goldmaker, Inc. |
| 2015 NY Slip Op 05629 [130 AD3d 553] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| Salem Boudine, Appellant, v Goldmaker, Inc.,Doing Business as Estelle Caffe Lounge, et al., Defendants. |
Edward Vilinsky (Judah Z. Cohen, PLLC, Woodmere, N.Y., of counsel), forappellant.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Walker, J.), dated July 11, 2014, whichdenied his unopposed motion, in effect, pursuant to CPLR 3215 for leave to enter adefault judgment against the defendant Peter Miller.
Ordered that the order is reversed, on the law, without costs or disbursements, andthe plaintiff's motion, in effect, for leave to enter a default judgment against thedefendant Peter Miller is granted.
The plaintiff, while a patron at a bar, allegedly sustained injuries when he wasassaulted by several bar patrons who were underage and intoxicated. The plaintiffcommenced this action against several defendants, all of whom allegedly owned oroperated the subject bar, including Goldmaker, Inc., doing business as Estelle CaffeLounge (hereinafter Goldmaker) and Peter Miller, the principal of Goldmaker. Theplaintiff sought to recover damages, inter alia, for common-law negligence and forviolation of General Obligations Law § 11-101, known as the Dram ShopAct. That statute provides that a party who "unlawfully" sells alcohol to another person isliable for injuries caused by reason of that person's intoxication (see Adamy vZiriakus, 92 NY2d 396, 400 [1998]; Sullivan v Mulinos of Westchester, Inc., 114 AD3d 844,845 [2014]; see also General Obligations Law § 11-100; AlcoholicBeverage Control Law § 65 [1], [2]). The Dram Shop Act is a statutorycause of action, unknown at common law, which creates " 'an expansive cause ofaction' " and imposes strict liability (Bongiorno v D.I.G.I., Inc., 138AD2d 120, 127 [1988], quoting Matalavage v Sadler, 77 AD2d 39, 43 [1980];see Mead v Stratton, 87 NY 493, 496-497 [1882]; Bertholf v O'Reilly, 74NY 509 [1878]).
Goldmaker and Miller failed to answer or appear in the action. The plaintiff moved,in effect, pursuant to CPLR 3215 for leave to enter a default judgment against Miller.The Supreme Court denied the unopposed motion on the ground that the plaintiff failedto supply an "affidavit of facts demonstrating" Miller's liability.
"On a motion for leave to enter a default judgment pursuant to CPLR 3215, themovant is required to submit proof of service of the summons and complaint, proof ofthe facts constituting [his or her] claim, and proof of the defaulting party's default inanswering or appearing" (Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649,651 [2011]; see CPLR 3215 [f]; Dupps v Betancourt, 99 AD3d 855 [2012]). Generally,where a defendant has defaulted in appearing or answering [*2]a complaint, he or she will be "deemed to have admitted allfactual allegations contained in the complaint and all reasonable inferences that flowfrom them" (Mortgage Elec.Registration Sys., Inc. v Smith, 111 AD3d 804, 806 [2013] [citations andinternal quotation marks omitted]).
Here, in support of his motion for leave to enter a default judgment against Miller,the plaintiff submitted proof of service of the summons and complaint and proof ofMiller's default in answering or appearing. Further, contrary to the Supreme Court'sdetermination, the plaintiff submitted sufficient confirmation of the facts constituting theclaims against Miller. Among other things, he submitted an "affidavit of merit" settingforth the facts constituting the claims (see CPLR 3215 [f]; cf. DLJ Mtge. Capital, Inc. vUnited Gen. Tit. Ins. Co., 128 AD3d 760 [2d Dept 2015]; Joosten vGale, 129 AD2d 531, 535 [1987]). Accordingly, the Supreme Court should havegranted the plaintiff's unopposed motion, in effect, pursuant to CPLR 3215 for leave toenter a default judgment against Miller (see CPLR 3215 [f]; Woodson vMendon Leasing Corp., 100 NY2d 62, 70-71 [2003]; U.S. Bank N.A. v Poku, 118AD3d 980, 981 [2014]; Dupps v Betancourt, 99 AD3d 855 [2012]). Balkin, J.P.,Austin, Miller and Maltese, JJ., concur.