In a December 22, 2010, decision by Justice Driscoll, the court denied plaintiff’s motion for a default judgment. Plaintiff invested nearly $600,000 in various real estate business ventures under three separate agreements with defendants. Plaintiff later commenced a foreclosure action and separately alleged multiple causes of action in law and equity against the individual defendants, including breach of contract, breach of fiduciary duty, accounting, and constructive trust. When defendants failed to answer, move, or otherwise appear in the action, plaintiff moved for a default judgment under CPLR 3215. The court determined that it had “an insufficient basis on which to award plaintiff judgment against the defendants, notwithstanding defendants’ failure to appear or answer.” Specifically, the court found that plaintiff provided insufficient documentation regarding the terms of and parties to the agreements; that plaintiff failed to provide her own affidavit “amplifying the allegations in the complaint” regarding her business relationship with defendants; failed to provide an affidavit from her husband who was intimately involved in the provision of investment funds under the agreements; and failed to provide sufficient documentation regarding the business relationship as between the defendants. Because plaintiff’s motion was not supported with enough facts to enable the court to determine whether plaintiff’s causes of action were viable, the court denied the motion without prejudice.
Cook v Kim, Sup Ct, Nassau County, December 22, 2010, Driscoll, J., Index No. 026362/09