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Michael v. Atlas Restoration Corp.

Supreme Court of New York, Second Department

March 28, 2018

Constantinos Michael, appellant,
v.
Atlas Restoration Corp., et al., defendants, Dimitrios Tsoumas, respondent. (Index No. 607248/15)

          Submitted - November 20, 2017

         D54887 C/htr

          Georgoulis PLLC, New York, NY (Chris Georgoulis of counsel), for appellant.

          MARK C. DILLON, J.P. JOHN M. LEVENTHAL HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered December 2, 2016, as, upon an order of the same court (Bucaria, J.), entered May 6, 2016, denying that branch of his unopposed motion pursuant to CPLR 3215(a) which was for leave to enter a default judgment against the defendant Dimitrios Tsoumas on the first cause of action upon his default in answering or appearing, in effect, dismissed the first cause of action insofar as asserted against Dimitrios Tsoumas.

         ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, the first cause of action is reinstated, that branch of the plaintiff s unopposed motion pursuant to CPLR 3215(a) which was for leave to enter a default judgment against the defendant Dimitrios Tsoumas on the first cause of action upon his default in answering or appearing is granted, the order entered May 6, 2016, is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate amended judgment.

         In November 2015, the plaintiff commenced this action against, among others, the defendants Atlas Restoration Corp. (hereinafter Atlas), and Dimitrios Tsoumas (hereinafter together the Atlas defendants), inter alia, to recover damages for breach of contract based upon their failure to repay certain loans made by the plaintiff to them during 2012 and 2013. The Atlas defendants failed to interpose an answer, and the plaintiff moved pursuant to CPLR 3215(a), among other things, for leave to enter a default judgment against them on the first cause of action, which alleged breach of contract. The Supreme Court (Bucaria, J.), in an order entered May 6, 2016, inter alia, granted that branch of the unopposed motion which sought leave to enter a default judgment against Atlas on the first cause of action alleging breach of contract, but denied that branch of the motion as it pertained to Tsoumas, finding that the plaintiff failed to demonstrate that the loans were made to Tsoumas. On December 2, 2016, the same court (Mahon, J.), entered a judgment based upon the order. We reverse the judgment insofar as appealed from.

         Pursuant to CPLR 3215, a plaintiff may seek a default judgment against a defendant who fails to appear (see CPLR 3215; U.S. Bank, N.A. v Razon, 115 A.D.3d 739, 740). Thus, a plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the causes of action, and proof of the defaulting defendant's failure to answer or appear (see CPLR 3215[f]; Allstate Prop. & Cas. Ins. Co. v Carrier, 147 A.D.3d 889, 890; Todd v Green, 122 A.D.3d 831, 832; U.S. Bank N.A. v Poku, 118 A.D.3d 980; U.S. Bank N.A. v Razon, 115 A.D.3d at 740; Cruz v Keter Residence, LLC, 115 A.D.3d 700; C&H Import & Export, Inc. v MNA Global, Inc., 79 A.D.3d 784).

         Here, the plaintiff, by his submission of the verified complaint and his affidavit, met all of these requirements and, thus, demonstrated his entitlement to a default judgment against Tsoumas on the first cause of action (see CPLR 105[u]; Todd v Green, 122 A.D.3d at 832; Oak Hollow Nursing Ctr. v Stumbo, 117 A.D.3d 698, 699). The verified complaint sufficiently alleged a basis for holding Tsoumas personally liable for the loans under the doctrine of piercing the corporate veil (see Matter of Morris v New York State Dept. of Taxation & Fin., 82 N.Y.2d 135, 140141; Olivieri Constr. Corp. v WN Weaver St., LLC, 144 A.D.3d 765, 766; East Hampton UnionFree School Dist. v Sandpebble Bldrs., Inc., 66 A.D.3d 122, 126, affd 16 N.Y.3d 775).

         Accordingly, the Supreme Court should have granted that branch of the plaintiffs motion which was for leave to enter a default judgment against Tsoumas on the first cause of ...


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