SUPREME COURT - STATE OF NEW YORK IAS TERM PART 12 NASSAU COUNTY

Transcription

1 SCO SUPREME COURT - STATE OF NEW YORK IAS TERM PART 12 NASSAU COUNTY INDEX No PRESENT: HONORABLE SANDS POINT CENTER FOR HEALTH AND REHABILITATION - against - ADAM HARWOOD LEONARD B. AUSTIN Justice Motion RID: 12- Submission Date: 12- Motion Sequence No.: 001/ MOT D Plaintiff, Defendant. COUNSEL FOR PLAINTIFF Ken Kern, Esq. 445 Broad Hollow Road, Suite 19 Melvile, New York COUNSEL FOR DEFENDANT Adam Harwood - PRO SE 140 Dogwood Avenue Roslyn Harbor, New York ORDER The following papers were read on Plaintiffs motion for leave to enter a default judgment against Defendant: Notice of Motion dated November ; Affrmation of Ken Kern, Esq. dated November 9, 2007; Affdavit of David Moskowitz, dated November ; Affirmation of Jennifer B. Cona, Esq. dated November 9, Plaintiff, Sands Point Center for Health and Rehabilitation (" Sands Point" ), moves for a default judgment against Defendant, Adam Harwood (" Harwood"

2 Index No BACKGROUND Sand Points alleges that on June 9, 2004, the parties entered into an Admission Agreement ("Agreement", whereby Sands Point agreed to provide residential health care services to Alfredo Harwood (" Alfredo ) and Harwood agreed to pay for such care. and services. Alfredo was admitted to Sands Point and continued to reside there from June through July 6, Alfredo passed away on July 7, 2006, leaving no assets. At the time of Alfredo s death, Sands Point claims that it provided care and services worth $ Sands Point alleges that Harwood breached the Agreement by failng to make payment on account thereof. Sands Point further alleges that, prior to his death, Alfredo fraudulently conveyed his income, assets and/or real property to Harwood without fair consideration. Such conveyance rendered Alfredo insolvent and prevented Sands Point from receiving the, monies due pursuant to the Agreement. Sands Point further alleges that Alfredo made such conveyance upon realizing that he would incur debts beyond his abilty to pay and s fraudulent intent. Thus that Harwood such conveyance with the knowledge of Alfredo Sands Point asserts that such conveyance should be void under the Debtor and Creditor Law (" DCL" Sands Point claims that by the reason of breach of the Agreement, Harwood is liable for the collection fees, including but not limited to reasonable attorney fees and Court costs and that by the reason of fraudulent conveyance, Harwood is chargeable

3 pursuant to with plaintiffs attorney fees or an amount the Court shall fix as reasonable, Sands Point also claims that Harwood Debtor and Creditor Law 9 276(a). Moreover because it rendered residential has been unjustly enriched in the sum of $94 nursing care and services to Alfredo and has not been paid. DISCUSSION Pursuant to CPLR 3215(a), a party may obtain a default judgment against a defendant who defaults in appearing and answering. On application for a default judgment, a party must furnish proof of service of summons and complaint proof of the claim by a person with knowledge, including the amount due and proof of the default. See, WQson v. Mendon Leasing Corp., 100 N.Y. 2d 62, 70 (2003). See also, Seigel New York Practice 9295; and 7 Weinstein- Korn-Miler, NY Civ Prac 1f 3215., at The party seeking a default judgment must establish the existence of a prima facie cause of action against the defaulting part. Joosten v. Gale, 129 A. 2d 531 (1 Dept. 1987). When a defendant has failed to appear, the plaintiff does not have the benefit of discovery. Thus the affidavit (of merit) or verified complaint need only allege enough " Woodson v. facts to enable a court to determine that a viable cause of action exists. Mendon Leasing Corp. supra at 70. Moreover defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inference

4 Id. that flow from them. See also BQkina ODtica Co. v. Camera King, 63 N. 2d 728, 730 (1984). Sands Point has established service. The affidavit of service establishes service s motion for default judgment is upon Harwood pursuant to CPLR 308(4). The Plaintiff', Administrator of Sands Point, who supported by an affdavit made by David Moskowitz has first hand knowledge of the facts constituting the causes of action. See, Zelnick V. Biderman Industries U. A.. Inc., 242 A. 2d 227 (1 Dept. 1987); and Adkins V. Lipner. Gordon & Co., 10 Misc. 3d 1062(A) (Sup. Co., Nassau. Co. 2005). prima facie However, Sands Point has failed to establish the cause of action for part. The elements of a cause of action for breach of a contract against the defaulting breach of contract are the existence of a contract between the plaintiff and the defendant, consideration, performance by the plaintiff, breach by the defendant and damages resulting from the breach. Furia v. Furia, 116 A.D. 2d 694 (2 Dept. 1986). Plaintiff must establish the provisions of the contract that the defendant is alleged to have breached. Sud V. Sud, 211 A.D.2d 423 (2 Dept. 1995); and Atkinson V. Mobile Oil Corp., 205 2d 719 (2 Dept. 1994). The complaint makes no mention of any of the provisions of the Agreement or how or when those provisions were breached by Harwood. Significantly, a copy of the, the proof Agreement is not attached to either the complaint or the motion papers. Thus on the breach of contract cause of action is insufficient to establish a cause of action for

5 breach of contract. Accordingly, Plaintiff cannot establish causes of action for fraudulent conveyance of Alfredo s assets and property to Harwood to avoid the payment owed to Sands Point., Sand Points has failed to sustain Beyond allegations made upon information and belief its right to a default judgment on these causes of action. Accordingly, it is ORDERED, that Plaintiff's motion for leave to enter a default judgment is denied with leave to renew upon proof that Defendant signed the Agreement for the admission of Alfredo at the Plaintiff' s facilty as well as proof. This constitutes the decision and order of this Court. Dated: Mineola, NY May 1, 2008!B. AUSTIN, J. Nrelleo OUNt HAY SSA(J (;OUNT leri('