| Stevens v Law Off. of Blank & Star, PLLC |
| 2017 NY Slip Op 08030 [155 AD3d 917] |
| November 15, 2017 |
| Appellate Division, Second Department |
[*1]
| Lonnie Stevens, Appellant, v Law Office of Blank& Star, PLLC, Respondent. |
Lonnie Stevens, New York, NY, appellant pro se.
Fixler & LaGattuta, LLP, New York, NY (Paul F. LaGattuta III of counsel), forrespondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from anorder of the Supreme Court, Kings County (Edwards, J.), dated May 15, 2015, which denied hismotion for leave to enter a default judgment against the defendant and granted the defendant'scross motion pursuant to CPLR 3211 (a) to dismiss the complaint.
Ordered that the order is affirmed, with costs.
On October 14, 2014, the plaintiff, proceeding pro se, commenced an action against thedefendant (hereinafter the first action), inter alia, to recover damages for legal malpractice. Theplaintiff alleged that the defendant's failure to timely serve a notice of claim in an underlyingpersonal injury action constituted legal malpractice. The plaintiff sought damages in the amountof $12,000,000.
On January 29, 2015, the plaintiff, proceeding pro se, commenced this action against thedefendant based on the same facts and seeking relief identical to the relief sought in the firstaction. Shortly thereafter, and before serving the summons and complaint on the defendant, theplaintiff moved for leave to enter a default judgment against the defendant. The defendantcross-moved pursuant to CPLR 3211 (a) (1), (4), (5), and (7) to dismiss the complaint. TheSupreme Court denied the plaintiff's motion and granted the defendant's cross motion. Theplaintiff appeals.
Contrary to the plaintiff's contention, the Supreme Court properly denied his motion for leaveto enter a default judgment against the defendant. A plaintiff moving for the entry of a defaultjudgment must "file proof of service of the summons and the complaint, . . . andproof of the facts constituting the claim, the default and the amount due by affidavit made by theparty . . . . Where a verified complaint has been served, it may be used as theaffidavit of the facts constituting the claim and the amount due" (CPLR 3215 [f]). Since theplaintiff failed to submit proof of service of process on the defendant and the defendant'ssubsequent failure to appear, the plaintiff failed to satisfy the requirements for demonstrating hisentitlement to enter a default judgment against the defendant.
The Supreme Court also properly granted the defendant's cross motion pursuant to [*2]CPLR 3211 (a) to dismiss the complaint. "Where there is asubstantial identity of the parties, the two actions are sufficiently similar, and the relief sought issubstantially the same, a court has broad discretion in determining whether an action should bedismissed pursuant to CPLR 3211 (a) (4) on the ground that there is another action pending" (Scottsdale Ins. Co. v Indemnity Ins. Corp.RRG, 110 AD3d 783, 784 [2013]; see Whitney v Whitney, 57 NY2d 731, 732[1982]; DAIJ, Inc. v Roth, 85 AD3d959, 959 [2011]). "The critical element is that both suits arise out of the same subject matteror series of alleged wrongs" (Cherico,Cherico & Assoc. v Midollo, 67 AD3d 622, 622 [2009] [internal quotation marksomitted]). This action and the first action, which was pending at the time the order appealed fromwas issued, arose from the same subject matter and alleged wrongs, and involved the sameparties. Accordingly, the court providently exercised its discretion in granting the defendant'scross motion to dismiss the complaint pursuant to CPLR 3211 (a) (4) (see Matter of Willnus, 101 AD3d1036, 1037 [2012]; DAIJ, Inc. v Roth, 85 AD3d at 960; Cherico, Cherico &Assoc. v Midollo, 67 AD3d at 623).
The plaintiff's remaining contentions need not be reached in light of our determination.Leventhal, J.P., Austin, Cohen and Brathwaite Nelson, JJ., concur.