OSK IX, LLC v. Desir

OSK IX, LLC v Desir 2024 NY Slip Op 32224(U) July 1, 2024 Supreme Court, New York County Docket Number: Index No. 651375/2020 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

INDEX NO. 651375/2020 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 07/01/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 651375/2020 OSK IX, LLC, MOTION DATE 02/04/2021 Plaintiff, MOTION SEQ. NO. 001 - V - JACQUES DESIR, DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27 were read on this motion to/for JUDGMENT - DEFAULT Upon the foregoing documents, it is ORDERED that the plaintiff's application for an order that deems the filing of the affidavit of service of the summons and complaint as timely, pursuant to CPLR §§ 2001 and 2004, is granted, without opposition; and it is further ORDERED that that portion of the plaintiff's action that seeks the recovery of attorney's fees is severed and the issue of the amount of reasonable attorney's fees that plaintiff may recover from the defendant Jacques Desir is referred to a Special Referee to hear and report; and it is further ORDERED that counsel for the plaintiff shall, within thirty (30) days from the date of this order, serve a copy of this order with notice of entry, together with a completed Information Sheet, upon the Special Referee Clerk in the General Clerk's Office, who 651375/2020 OSK IX, LLC, vs. DESIR, JACQUES Page 1 of4 Motion No. 001

651375/2020 OSK IX, LLC, vs. DESIR, JACQUES Page 2 of 4 Motion No. 001

DECISION In this action seeking damages for breach of a promissory note, plaintiff OSK IX, LLC moves, pursuant to CPLR § 3215, for a default judgment for the relief demanded on the first cause of action of the complaint based on the failure of defendant Jacque Desir to answer or appear.

On this motion, plaintiff has complied with the strictures of CPLR 3215(f), having submitted proof of service of the summons and complaint and proof of service of this motion upon the defendant. Defendant has not opposed the application of plaintiff, pursuant to CPLR §§ 2001 and 2004, to deem the filing of the affidavit of service of the summons and complaint upon defendant as timely, nunc pro tune. Defendant has defaulted in appearance on this motion. Plaintiff has further submitted an affidavit of a person with knowledge of the facts, as well as an affirmation as to defendant's default pursuant to CPLR § 3215 (f). This motion is brought within one year of the default.

Having established the statutory requisites for entry of a default judgment and as the breach of promissory note claim is for a sum certain, plaintiff is entitled to the judgment it seeks.

However, the issue of reasonable attorneys' fees that plaintiff seeks to recover from defendant must be determined at

651375/2020 OSK IX, LLC, vs. DESIR, JACQUES Page 3 of 4 Motion No. 001

P- ~ .A - } ~ 20240701171802DJ AME582300328F EDC465F8D4D46E7860988BE

7/1/2024 DATE DEBRA A. JAMES, J.S.C.

~ ~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION □ DENIED □ GRANTED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 0 REFERENCE

651375/2020 OSK IX, LLC, vs. DESIR, JACQUES Page4 of 4 Motion No. 001

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