The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 were read on this motion for JUDGMENT - DEFAULT.
In this action for goods sold and delivered, and on an account stated, plaintiff Forever Great Garment Ltd. moves, pursuant to CPLR 3215, for entry of a default judgment against defendant Alpha Garment, Inc.
BACKGROUND
For the last four years, at defendants request, plaintiff has sold and delivered apparel to defendant. Based on several invoices, an outstanding balance is due from defendant of $1,039,635.90 for those goods sold and delivered by plaintiff and accepted by defendant (NYSCEF Doc. No. 5, affirmation of Joseph M. Shur [Shur aff], paras. 4-5). Plaintiff submits copies of each invoice with the bills of lading and the account statement showing the balance due of $1,036,635.90 (NYSCEF Doc. No. 6). Plaintiff asserts that defendant accepted all the goods referenced therein and that, upon information and belief, defendant received and retained those invoices without objection (NYSCEF Doc. No.5, Shur aff, ¶ 9).
Plaintiff commenced this action against defendant by filing a summons and complaint asserting three causes of action: breach of contract, account stated and unjust enrichment. The complaint seeks damages of $1,317,522.30 (NYSCEF doc. no. 1, 7). Plaintiff now moves for a default judgment.
DISCUSSION
On an application for a default judgment, pursuant to CPLR 3215, the plaintiff must submit “proof of service of the summons and the complaint[,] ․ proof of the facts constituting the claim, [and] the default” (CPLR 3215[f]). Upon default, “a defendant admits all traversable allegations contained in the complaint, and thus concedes liability, although not damages” (HF Mgt. Servs. LLC v Dependable Care, LLC, 198 AD3d 457, 458 [1st Dept 2021] [internal quotation marks and citation omitted]; Petty v Law Off. of Robert P. Santoriella, P.C., 200 AD3d 621, 621 [1st Dept 2021] [while plaintiff must submit proof of prima facie viability of its claims, “the standard of proof is minimal”] [internal quotation marks and citation omitted]). Plaintiff has met this burden.
First, plaintiff has demonstrated that it served defendant with the summons and complaint and that defendants time to answer or appear has expired. An affidavit of service sworn to on March 23, 2021, shows that defendant, a domestic corporation with it principal place of business in New York (NYSCEF doc. no. 7, complaint, para. 2) was served with process by service on the Secretary of State at 99 Washington Ave, Albany, New York (NYSCEF doc. no. 8, affidavit of service). Such service is in conformity with CPLR 311(a)(1) and Business Corporation Law § 306(b).
Plaintiff has also demonstrated its compliance with CPLR 3215(g)(4)(i). Plaintiff served defendant with additional notice of the summons and complaint by mail addressed to defendant at its last known place of business at 1385 Broadway, Suite 400, New York, New York 10018, on March 29, 2021, in an envelope marked “Personal & Confidential” and which did not indicate on the outside that said notice was from an attorney or concerned an alleged debt (NYSCEF doc. no. 8, affidavit of additional notice; NYSCEF doc. no. 5, Shur aff, para. 12).
As to the merits, in an action for goods sold and delivered, a plaintiff must submit proof of invoices and other documentary evidence that defendant placed orders for the goods on the dates at issue, the goods were delivered to defendant, defendant accepted delivery, and did not object to the product or invoices (A & W Egg Co., Inc. v Tufos Wholesale Dairy, Inc., 169 AD3d 616, 617 [1st Dept 2019]). The plaintiff must also provide a “sufficient foundation to consider the invoices and most of the other documents submitted as business records” (id.; CPLR 4518[a]). “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the makers business practices and procedures” (Autovest, LLC v Cassamajor, 195 AD3d 672, 673 [2d Dept 2021] [internal quotation marks and citation omitted]).
Here, plaintiff has demonstrated the merits of its claim with proper proof. Hon Wai Shing, plaintiffs legal representative, avers that he is the custodian of plaintiffs records and has personal knowledge of its business and recordkeeping practices. He states that he reviews those books and records and is familiar with plaintiffs system for generating an invoice, making, and keeping a copy for plaintiffs records, and mailing a copy to the party receiving the goods, including the documents about the transaction at issue (NYSCEF doc. no. 9, paras. 1-3, 5, 9, 11). He affirms that plaintiff sold and delivered to defendant the apparel indicated on the account statement, invoices, and bills of lading, defendant accepted the apparel, these documents were sent to defendant, and, upon information and belief, defendant received and retained the invoices without objection (id., paras. 5, 9; see NYSCEF doc. no. 6, statement, invoices, and bills of lading). He further asserts that these documents demonstrate an outstanding balance due from defendant of $1,039,635.90 (NYSCEF doc. no. 9, ¶ 11). This is sufficient proof of the goods sold and delivered and of an account stated.
Accordingly, it is
ORDERED that the motion brought by plaintiff Forever Great Garment Ltd. for a default judgment against defendant Alpha Garment, Inc. is granted without opposition; and it is further
ORDERED that the Clerk is directed to enter judgment in favor of plaintiff Forever Great Garment Ltd. in the principal sum of $1,039,635.90, together with interest at the statutory rate from the date of entry of this judgment and thereafter, together with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs.
Robert R. Reed, J.