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SHORT FORM ORDER
SUPREME COURT -
STATE OF NEW YORK
Present: HON. F. DANA WINSLOW, Justice
TRIAL/IAS, PART 3
NASSAU COUNTY
INDEX NO.: 602135/14
MOTION DATE: 11/28/14
MOTION SEQ.: 001
AMERICANA PETROLEUM CORPORATION,
Plaintiff, -against-
BELLA PETROLEUM, INC., d/b/a COASTAL GAS and QASIM BUTT,
Defendants.
The following papers having been read on the motion (numbered 1):
Notice of Motion........................1
Pursuant to this Part's Rule, namely I(B), the Court automatically adjourns all motions that are submitted without opposition for one month, to determine whether or not there was either an administrative delay or excusable neglect. Such adjournment is made without prejudice to the moving party to have the merits of such ari adjournment considered in the event that there is a subsequent submission.
This is an action for damages resulting from an alleged breach of an agreement for goods sold and delivered. The Verified Complaint alleges that on or about July 15, 2013, plaintiff and defendant entered into an agreement whereby plaintiff agreed to sell motor fuel oil to defendant BELLA PETROLEUM, INC. (“BELLA”) (the “Agreement “), which obligations were guaranteed by defendant QASIM BUTT (“BUTT”) pursuant to a continuing, unconditional personal guarantee (the “Guaranty”). The Verified Complaint alleges further that between December 5, 2013 and December 16, 2013, plaintiff provided motor fuel oil in an amount of $63,859.13 and that BELLA has paid a total of $15,154.29 toward the amount due under the Agreement, leaving a balance due and owing of $48,704.84. Plaintiff asserts causes of action for breach of contract, quantum merit, unjust enrichment, account stated, dishonored checks, breach of personal guaranty and for costs and expenses. Plaintiff now seeks a default judgment pursuant to CPLR §3215 based upon defendant's failure to answer or appear.
In support of its motion, plaintiff has presented copies of (i) the Summons and Verified Complaint; (ii) an undated affirmation of plaintiff s counsel; (iii) an Affidavit of Service, sworn to on May 15, 2014, attesting to service of the Summons and Verified Complaint on BELLA by service on the Secretary of State on that date pursuant to CPLR§311(a)(1); and (iv) an Affidavit of Service, sworn to on June 16, 2014, attesting to service on BUTT by service on Kudra Familia as housekeeper at 14 Ethan Lane, Lake Ronkonkoma, NY 11779, BUTT's place of abode within the State pursuant to CPLR §308(2). Plaintiff has also demonstrated satisfaction of the additional notice requirement set forth in CPLR §3215(g)(3) and (4).
On its face, and in a cursory manner, this application appears to meet the evidentiary requirements set forth in CPLR §3215(f). However, shortcomings in plaintiffs proof regarding the merits of its claim raise doubt as to plaintiff's entitlement to judgment at this time. “CPLR §3215 does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action.” Joosten v. Gale, 129 AD2d 531. The Court recognizes that the standard of proof set forth in Joosten is not stringent. Generally, all that is required is some first-hand confirmation of the facts. Id., at 535.
In this case, however, although plaintiff quotes from the alleged Agreement and Guaranty, plaintiff has neglected to attach to the Verified Complaint or to its motion papers, a copy of the actual Agreement executed by BELLA from which defendant's liability allegedly derives, or the Guaranty from which BUTT's liability derives. When a cause of action derives from an alleged contract, the failure to substantiate the existence of an agreement, is inherently suspect. In such circumstances , the Court is reluctant to rely upon the absence of opposition to establish the facts constituting the claim. Documentary or other evidence is necessary to establish entitlement to judgment.
Based upon the foregoing, it is
ORDERED, that plaintiffs motion for a default judgment pursuant to CPLR §3215 is denied, without prejudice to re-submission upon proper proof. Plaintiff shall serve a copy of this Order (i) upon BELLA pursuant to CPLR §311(a)(1), except that service shall not be made upon BELLA by delivery to the Secretary of State or a registered agent; and (ii) upon BUTT pursuant to CPLR §308(1) or (2), and if pursuant to subsection (2), the affidavit of service shall fully identify the person of suitable age and discretion, with respect to his or her full name, description and relationship to the defendant. Plaintiff shall submit proof of such service with any renewed application for default judgment.
The foregoing constitutes the Order of this Court.
Dated: Dec 5, 2014
F. Dana Winslow J.S.C.
ENTERED Dec 11 2014
NASSAU COUNTY
COUNTY CLERK'S OFFICE
Oct. 8, 15, 22, 29, 201515-04332W