GLENWOOD MASON SUPPLY CO INC v FRANTELLIZZIIn an action filed by attorney Peter Moulinos, Esq., on behalf of Glenwood Mason Supply Co., Inc., Plaintiff sought to recover monies against a corporate defendant for the delivery of materials. The corporate defendant’s obligations were guaranteed by an individual defendant, Dominic Frantelizzi. Both defendants failed to answer the Complaint filed against them. Plaintiff then moved for a default judgment against both Defendants.
The Supreme Court of the State of New York, Kings County, granted Plaintiff a default judgment against the corporate defendant however refused to grant the same relief against the individual defendant on the basis that it was unclear that the guaranty was enforceable. Plaintiff then appealed to the Appellate Division, Second Department, seeking a modification of the lower court’s order to grant the default judgment against the individual defendant.
The Appellate Division ruled in favor of the appeal filed by Moulinos & Associates LLC. Specifically, the Appellate Division ruled that “On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party’s default in answering or appearing” (Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651; see CPLR 3215[f]; Dupps v Betancourt, 99 AD3d 855, 855). A defendant who has defaulted in answering admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730; 425 E. 26th St. Owners Corp. v Beaton, 128 AD3d 766, 769; Paulus v Christopher Vacirca, Inc., 128 AD3d 116, 126).”
The Appellate Division further ruled that the default judgment against the individual defendant should have been granted given that “the plaintiff submitted proof of service of the summons and complaint upon Frantellizzi, proof of the facts constituting its claim against that defendant, and evidence of his default in answering the complaint or appearing in the action (see Loaiza vGuzman, 111AD3d 608, 609;Dupps v Betancourt, 99AD3d at 855). Contrary to the Supreme Court’s determination, by defaulting, Frantellizzi is deemed to have admitted the factual allegations in the complaint, including the allegation that he “personally. . . agreed and promised to pay [the] [p]laintiff” for the subject goods (see 425 E. 26th St. Owners Corp. v Beaton, 128 AD3d at 769).”
A copy of the Appellate Division’s decision can be viewed here GLENWOOD MASON SUPPLY CO INC v FRANTELLIZZI