| Glenwood Mason Supply Co., Inc. v Frantellizzi |
| 2016 NY Slip Op 02963 [138 AD3d 925] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| Glenwood Mason Supply Co., Inc.,Appellant, v Dominick Frantellizzi, Individually and Doing Business as CityView Masonry, et al., Defendants. |
Moulinos & Associates, LLC, New York, NY (Peter Moulinos of counsel), forappellant.
In an action, inter alia, to recover damages for breach of contract, the plaintiffappeals, as limited by its brief, from so much of an order of the Supreme Court, QueensCounty (Weiss, J.), entered April 29, 2015, as denied those branches of its unopposedmotion which were pursuant to CPLR 3215 for leave to enter a default judgment againstthe defendant Dominick Frantellizzi, individually, upon his failure to appear or answerthe complaint, and for an award of an attorney's fee.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the plaintiff's motion which was pursuant to CPLR 3215 for leaveto enter a default judgment against the defendant Dominick Frantellizzi, individually, andsubstituting therefor a provision granting that branch of the motion; as so modified, theorder is affirmed insofar as appealed from, without costs or disbursements.
"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 its claim, and proof of the defaulting party's default in answering orappearing" (Atlantic Cas. Ins.Co. v RJNJ Servs., Inc., 89 AD3d 649, 651 [2011]; see CPLR 3215 [f];Dupps v Betancourt, 99AD3d 855, 855 [2012]). A defendant who has defaulted in answering admits alltraversable allegations in the complaint, including the basic allegation of liability, butdoes not admit the plaintiff's conclusion as to damages (see Rokina Opt. Co. vCamera King, 63 NY2d 728, 730 [1984]; 425 E. 26th St. Owners Corp. v Beaton, 128 AD3d 766,769 [2015]; Paulus vChristopher Vacirca, Inc., 128 AD3d 116, 126 [2015]).
Here, the Supreme Court should have granted that branch of the plaintiff'sunopposed motion which was pursuant to CPLR 3215 for leave to enter a defaultjudgment against the defendant Dominick Frantellizzi, individually. In support of thatbranch of its unopposed motion, the plaintiff submitted proof of service of the summonsand complaint upon Frantellizzi, proof of the facts constituting its claim against thatdefendant, and evidence of his default in answering the complaint or appearing in theaction (see Loaiza vGuzman, 111 AD3d 608, 609 [2013]; Dupps v Betancourt, 99 AD3d at855). Contrary to the Supreme Court's determination, by defaulting, Frantellizzi isdeemed to have admitted the factual allegations in the complaint, including the allegationthat he "personally . . . agreed and promised to pay [the] [p]laintiff" for thesubject goods (see 425 E. 26th St. Owners [*2]Corp.v Beaton, 128 AD3d at 769).
The plaintiff's remaining contention is without merit. Chambers, J.P., Austin, Romanand Duffy, JJ., concur.