The following e-filed documents listed on NYSCEF (Motion No. 005) numbered 74-84, [*2]86-88 were read on this motion. Oral argument was completed on March 13, 2025.

Upon the foregoing documents, Motion Sequence No. 005 is resolved and therefore, it is hereby,

ORDERED, that Plaintiff's Motion Sequence No. 005 request for a default judgment against Defendant Crivera Partners Corp, pursuant to CPLR §3215 and CPLR §321 [a] on all claims asserted against it in the Summons and Verified Complaint and granting all of the relief demanded in the Complaint in full, plus costs, interest, attorneys' fees and disbursements in favor of Plaintiff and against Defendant Crivera Partners Corp, based upon Defendant Crivera Partners Corp's failure to secure legal counsel is GRANTED with prejudice; and it is further,

ORDERED, that the matter as to Defendant Santo Crivera is adjourned for an in-person status conference on the next adjourn date of April 10, 2025, at 9:30 AM at the Courthouse located at 26 Central Avenue, Courtroom 330, Staten Island, NY; and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

On February 18, 2025, Plaintiff filed Motion Sequence No. 005 by Notice of Motion seeking (a) default judgment against Defendant Crivera Partners Corp, hereinafter referred to as CPC, pursuant to CPLR §3215 and CPLR §321 [a] on all claims asserted against it in the Summons and Verified Complaint and granting all of the relief demanded in the Complaint in full, plus costs, interest, attorneys' fees and disbursements in favor of Plaintiff and against Defendant CPC, based upon Defendant CPC's failure to secure legal counsel; and (b) such other and further relief as this Court may deem just and proper.

Defendants filed opposition on March 12, 2025. Plaintiff filed reply on March 12, 2025. On March 13, 2025, oral argument was completed on Motion Sequence No. 005.

On August 8, 2023, Plaintiff filed a Verified Summons and Complaint, asserting causes of action for breach of contract, breach of good faith and fair dealing, fraud, fraudulent inducement, unjust enrichment, and a violation of General Business Law §349. (NY St Cts Filing [NYSCEF] Doc No. 1). Defendants Crivera Partners Corp. and Santo Crivera were both personally served. (NY St Cts Filing [NYSCEF] Doc Nos. 4; 5). On September 13, 2023, the parties stipulated to extend Defendants' time to file an Answer to October 12, 2023. (NY St Cts Filing [NYSCEF] Doc No. 6). On that date Defendants filed Motion Sequence No. 001 seeking to dismiss pursuant to CPLR §§3211 [a] [7] and [a] [1] in lieu of an Answer.

On February 27, 2024, Defendants' counsel emailed the Court to indicate that he was withdrawing the motion to dismiss, as the parties had reached a settlement and would be filing a Stipulation of Discontinuance shortly. (NY St Cts Filing [NYSCEF] Doc No. 58). The parties [*3]entered into a written Settlement Agreement on February 27, 2024, but a Stipulation of Discontinuance was never filed. (see id).

On April 4, 2024, Plaintiff moved for default judgment in Motion Sequence No. 002 for failure to answer the Complaint. Defendants filed Cross-Motion Sequence No. 003 seeking to enlarging the Defendants' time to appear or plead pursuant to CPLR § 2004 and CPLR § 3012 [d] and permitting the defendants to interpose the annexed proposed Verified Answer. The Court, Hon. Catherine M. DiDomenico, denied Plaintiff's default motion and granted Defendant's motion to compel Plaintiff to accept Defendants late answer. (NY St Cts Filing [NYSCEF] Doc No. 58).

On December 27, 2024, Defendants' counsel's request to be relieved was granted by the Court, Hon. Catherine M. DiDomenico. (NY St Cts Filing [NYSCEF] Doc No. 72). On January 30, 2025, Court, Hon. Catherine M. DiDomenico held a preliminary conference. Plaintiff contends that the preliminary conference did not include Defendant CPC since Defendant CPC did not appear. (NY St Cts Filing [NYSCEF] Doc No. 75). On February 18, 2025, Plaintiff filed Motion Sequence No. 005 seeking default judgment as to Defendant CPC. Defendants present counsel filed his Notice of Appearance and opposition to Motion Sequence No. 005 on March 12, 2025.

Defendant Santo Crivera, the principal of Defendant CPC, admits in his affirmation, "At the preliminary conference held on January 30, 2025, I told the Court I was going to secure new counsel for Defendant Crivera Partners Corp by the end of the week." (NY St Cts Filing [NYSCEF] Doc No. 87). Defendant Santo Crivera further admits he did not hire counsel until March 10, 2025, and alleges the reason for this delay was financial in nature. (see id).

"When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him." (see CPLR § 3215 [a]).

"On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default" (see Barbetta v Facchini, 2025 NYAppDiv LEXIS 1239 [2d Dept 2025] quoting Travelon, Inc. v Maekitan, 215 AD3d 710 [2d Dept 2023]).

"To demonstrate the facts constituting the cause of action, the plaintiff need only submit sufficient proof to enable a court to determine if the cause of action is viable, since defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them. However, a court does not have a mandatory, ministerial duty to grant a motion for leave to enter a default judgment, and retains the discretionary obligation to determine whether the movant has met the burden of stating a viable cause of action" (see id quoting Morris v Zimmer, 227 AD3d 696 [2d Dept 2025]; citing Barbetta v NY Auto Find, Inc., 221 AD3d 851 [2d Dept 2023]).

The Court "retains the discretionary obligation to determine whether the movant has met the burden of stating a viable cause of action" (see B&H Flooring, LLC v Folger, 228 AD3d 809 [2d Dept 2024] citing Barbetta v NY Auto Find, Inc., 221 AD3d 851 [2d Dept 2023] quoting Paulus v Christopher Vacirca, Inc., 128 AD3d 116 [2d Dept 2015]).

The Court in its discretion finds the allegations in the complaint sufficiently detail viable [*4]causes of action for fraud, breach of contract, unjust enrichment, and a violation of NY Gen Bus § 349, which prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state[.]" (NY St Cts Filing [NYSCEF] Doc No. 76).

Plaintiff's prior motion seeking default judgment, Motion Sequence No. 002, was denied on September 19, 2024, by the Court, Hon. Catherine M. DiDomenico, and adjourned the matter for preliminary conference on October 31, 2024. (NY St Cts Filing [NYSCEF] Doc No. 58). On September 20, 2024, a Court notice was sent to the Parties advising them that this matter was scheduled for preliminary conference on October 31, 2024, at 11:30 AM and that counsel should submit a proposed preliminary conference order no less than five days before via NYSCEF. (NY St Cts Filing [NYSCEF] Doc No. 60).

On October 25, 2024, Defendants' counsel filed an Order to Show Cause seeking to withdraw as counsel for Defendants. (NY St Cts Filing [NYSCEF] Doc Nos. 62-68). In counsel's affirmation, counsel cited Defendants failure to follow counsel's advice and had taken action which eroded the trust and communications between the Defendants and counsel. (NY St Cts Filing [NYSCEF] Doc No. 63). Counsel further cited Defendants refusal to pay legal fees. (see id).

On December 27, 2024, the Court, Hon. Catherine M. DiDomenico, relieved Defendants counsel and provided Defendants with "30 days for Defendants to obtain substitute counsel[.]" (NY St Cts Filing [NYSCEF] Doc No. 72). This matter was again scheduled for preliminary conference on January 30, 2025. Defendants did not obtain counsel. The matter was adjourned for compliance conference on April 30, 2025.

Plaintiff filed this default motion, Motion Sequence No. 005, on February 18, 2025. (NY St Cts Filing [NYSCEF] Doc Nos. 74-85). The return date scheduled for Motion Sequence No. 005 was March 13, 2025. CPLR § 2214 [b] provides "Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time." Motion Sequence No. 005 was filed 28 days prior to the motion return date.

Despite having been provided with 30 days to obtain counsel on December 27, 2024, by the Court, Hon. Catherine M. DiDomenico, Defendants counsel did not file a notice of appearance until March 12, 2025. This is more than 75 days after Defendants were advised to obtain counsel, 45 days after the time provided to Defendants to obtain counsel expired, and six days after opposition was due on Motion Sequence No. 005 pursuant to CPLR § 2214 [b].

Defendant CPC has repeatedly failed to be represented by counsel in a timely matter resulting in further delay and expense to the Plaintiff. A corporation is in default in a civil proceeding when it is not represented by an attorney[.] (see Pere v 1470-1488 U&R, Inc., 247 AD2d 477 [2d Dept 1998] citing Mineola Mack Distribs. v Huntington Fleet Serv., 132 Misc 2d 18 [Nassau Dist Ct, 1st Dist 1986]). "A corporation and limited liability company must be represented by an attorney and cannot proceed pro se[.]" (see DeMartino v Golden, 150 AD3d 1200 [2d Dept 2017] citing CPLR § 321 [a]; Boente v Peter C. Kurth Off. of Architecture & Planning, P.C., 113 AD3d 803 [2d Dept 2014]; Michael Reilly Design, Inc. v Houraney, 40 AD3d 592 [2d Dept 2007]).

Defendant CPC was not represented by counsel at the preliminary conference on January 30, 2025, and therefore defaulted by failing to appear. Opposition to Plaintiff Motion Sequence [*5]No. 005 seeking default against Defendant CPC was due by March 6, 2025. Defendant CPC did not have counsel on that date nor was opposition filed as per CPLR § 2214 [b]. Defendant CPC did not retain counsel until March 11, 2025. (NY St Cts Filing [NYSCEF] Doc No. 85). Defendant CPC counsel did not file a Notice of Appearance until one day before the motion was to be heard. Opposition was filed equally late, practically barring Plaintiff's reply.

Despite the untimely response of Defendants, the Court in its discretion has accepted the Defendants very late opposition and considered the Defendants oral argument. "To defeat a facially sufficient CPLR § 3215 motion, a defendant must show either that there was no default, or that [he or she] had a reasonable excuse for [his or her] delay and a potentially meritorious defense" (see Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d 1006 [2d Dept 2020] quoting Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783 [2d Dept 2015]; citing Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192 [2d Dept 2017]).

"Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits[.]" (see Gomez v Gomez-Trimarchi, 137 AD3d 972 [2d Dept 2016] quoting Harcztark v Drive Variety, Inc., 21 AD3d 876 [2d Dept 2016]; citing Needleman v Tornheim, 106 AD3d 707 [2d Dept 2013]; Toll Bros., Inc. v Dorsch, 91 AD3d 755 [2d Dept 2012]; Dimitriadis v Visiting Nurse Serv. of NY, 84 AD3d 1150 [2d Dept 2011]).

The Court in its discretion having considered all the relevant facts provided by the parties finds that Defendant CPC has failed to proffer a reasonable excuse for repeated failures and delays in defending this matter.

Accordingly, Plaintiff's request for a default judgment against Defendant Crivera Partners Corp, pursuant to CPLR §3215 and CPLR §321 [a] on all claims asserted against it in the Summons and Verified Complaint and granting all of the relief demanded in the Complaint in full, plus costs, interest, attorneys' fees and disbursements in favor of Plaintiff and against Defendant Crivera Partners Corp, based upon Defendant Crivera Partners Corp's failure to secure legal counsel is GRANTED with prejudice.

ORDERED, that Plaintiff's Motion Sequence No. 005 request for a default judgment against Defendant Crivera Partners Corp, pursuant to CPLR §3215 and CPLR §321 [a] on all claims asserted against it in the Summons and Verified Complaint and granting all of the relief demanded in the Complaint in full, plus costs, interest, attorneys' fees and disbursements in favor of Plaintiff and against Defendant Crivera Partners Corp, based upon Defendant Crivera Partners Corp's failure to secure legal counsel is GRANTED with prejudice; and it is further,

ORDERED, that the matter as to Defendant Santo Crivera is adjourned for an in-person status conference on the next adjourn date of April 10, 2025, at 9:30 AM at the Courthouse located at 26 Central Avenue, Courtroom 330, Staten Island, NY; and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of this Court.