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Cavallaro v. Reno

United States District Court, N.D. New York

April 21, 2015

JASON CAVALLARO, Plaintiff,
v.
SALVATORE RENO, Defendant. SALVATORE RENO, Third-Party Plaintiff,
v.
DAVID K. BRANNON d/b/a D.K.B. BUILDERS, Third-Party Defendant.

MAINETTI, MAINETTI & O'CONNOR, P.C. JOSEPH E. O'CONNOR, ESQ., ALEXANDER E. MAINETTI, ESQ., Kingston, NY, Counsel for Plaintiff.

HISCOCK & BARCLAY, LLP, DAVID B. CABANISS, ESQ., BRIAN D. CASEY, ESQ., Albany, NY, Counsel for Defendant/Third-Party Plaintiff.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this personal injury action filed by Jason Cavallaro ("Plaintiff") against Salvator Reno ("Defendant" or "Third-Party Plaintiff"), is Third-Party Plaintiff's motion for default judgment against David K. Brannon, d/b/a D.K.B. Builders ("Third-Party Defendant") pursuant to Fed.R.Civ.P. 55(b)(2). (Dkt. No. 26.) For the reasons set forth below, Third-Party Plaintiff's motion is granted.

I. RELEVANT BACKGROUND

On or about May 2, 2014, Plaintiff filed a Complaint against Defendant in New York State Supreme Court, asserting a claim of negligence arising from a slip-and-fall accident on a sidewalk outside a residential apartment building owned by Defendant, who is a resident of New Jersey. (Dkt. No. 1, Attach. 1.) On June 5, 2014, Defendant removed that action to this Court, based on diversity of jurisdiction. (Dkt. No. 1.)

On August 25, 2014, Defendant, as Third-Party Plaintiff, filed a Third-Party Complaint against Third-Party Defendant, asserting a claim for contribution and/or indemnification arising from Third-Party Defendant's alleged failure to replace a gutter system after removing it while performing roof work for Third-Party Plaintiff. (Dkt. No. 15, Attach. 1.)

On September 16, 2014, Third-Party Plaintiff served his Third-Party Complaint on Third-Party Defendant. (Dkt. No. 19.) As of the date of this Decision and Order, Third-Party Defendant has filed no Answer to that Third-Party Complaint. ( See generally Docket Sheet.)

On December 2, 2014, Third-Party Plaintiff filed for entry of default pursuant to Fed.R.Civ.P. 55(a). (Dkt. No. 23.) That same day, the Clerk of the Court entered default against Third-Party Defendant, pursuant to Fed.R.Civ.P. 55(a). (Dkt. No. 25.) As of the date of this Decision and Order, Third-Party Defendant has not appeared and attempted to cure that entry of default. ( See generally Docket Sheet.)

On December 23, 2014, Third-Party Plaintiff filed a motion for default judgment pursuant to Fed.R.Civ.P. 55(b)(2). (Dkt. No. 26.) On January 5, 2015, Third-Party Plaintiff mailed a copy of his motion papers to Third Party-Defendant. (Dkt. No. 32.) As of the date of this Decision and Order, Third-Party Defendant has filed no response to that motion. ( See generally Docket Sheet.)

Generally, in his motion, Third-Party Plaintiff requests a default judgment entitling him to contribution from Third-Party Defendant for an amount to be determined at trial, following the finding by the trier of fact of the relative shares of culpability, if any, of the parties, including Third-Party Defendant. (Dkt. No. 27, at ΒΆ 9.) Familiarity with the particular grounds of Third-Party Plaintiff's motion for default judgment is assumed in this Decision and Order, which is intended primarily for the review of the parties.

II. RELEVANT LEGAL STANDARD

"Federal Rule of Civil Procedure 55 provides a two-step process that the Court must follow before it may enter a default judgment against a defendant." Robertson v. Doe, 05-CV-7046, 2008 WL 2519894, at *3 (S.D.N.Y. June 19, 2008). "First, under Rule 55(a), when a party fails to plead or otherwise defend... the clerk must enter the party's default.'" Robertson, 2008 WL 2519894, at *3 (quoting Fed.R.Civ.P. 55[a]). "Second, pursuant to Rule 55(b)(2), the party seeking default judgment is required to present its application for entry of judgment to the court." Id. "Notice of the application must be sent ...


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