Motion for Stipulated Judgment in Ira Mercer v. Austin Jackson, Kibrik Svetlaua, Svetlana Kibrik, Revived Soul Medical, P.C., Tender Touch Physical Therapy, P.L.L.C., John Doe , First and Last Names being unknown and fictitious| Trellis.Law

On November 04, 2020 a Motion-Secondary was filed involving a dispute between Ira Mercer, and Austin Jackson, John Doe , First And Last Names Being Unknown And Fictitious, Kibrik Svetlaua, Revived Soul Medical, P.C., Svetlana Kibrik, Tender Touch Physical Therapy, P.L.L.C., for Torts - Other (Assault) in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 12/28/2022 11:33 AM INDEX NO. 521747/2020
DocuSign Envelope ID: BCD3195E-5CFD-45C1-A697-759F80DC4BBE
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------------------------X
IRA MERCER,

Plaintiff, Index No.: 521747/2020

- against -
AFFIRMATION IN SUPPORT OF
ORDER TO SHOW CAUSE
AUSTIN JACKSON, KIBRIK SVETLAUA,
SVETLANA KIBRIK, REVIVED SOUL MEDICAL,
P.C., TENDER TOUCH PHYSICAL THERAPY,
P.L.L.C., “JOHN DOE” First and Last Names being
unknown and fictitious,

Defendants.
-------------------------------------------------------------X

IRINE KORENBLIT, ESQ., an attorney duly admitted to practice law in the State of

New York, hereby affirms under the penalty of perjury pursuant to § CPLR 2106, as follows:

1. I am a partner in the law firm of Korenblit & Vasserman, PLLC, attorneys for the

Defendants, SVETLANA KIBRIK and TENDER TOUCH PHYSICAL THERAPY, P.L.L.C.,

and as such, I am familiar with the facts and circumstances in prior proceedings herein.

2. I submit this affirmation in support of the Plaintiff's Motion, brought by Order to

Show Cause, for an Order

(a) Pursuant to C.P.L.R. §5015(a)(1), vacating the November 18, 2022 Judgment

after Inquest signed by the Honorable Nancy Sunshine, as against the moving Defendants,

SVETLANA KIBRIK and TENDER TOUCH PHYSICAL THERAPY, P.L.L.C, which was

granted in favor of the Plaintiff on default;

(b) Pursuant to C.P.L.R. §3211(a), dismissing this action as against the moving

Defendants, SVETLANA KIBRIK and TENDER TOUCH PHYSICAL THERAPY, P.L.L.C,

with prejudice, as the court lack jurisdiction over the Defendants;

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Defendants’, SVETLANA KIBRIK and TENDER TOUCH PHYSICAL THERAPY, P.L.L.C,

bank accounts and/or any other accounts;

(d) Enjoining Plaintiff from taking any steps to enforce the Judgment obtained by the

Plaintiff by Default as against moving Defendants, SVETLANA KIBRIK and TENDER

TOUCH PHYSICAL THERAPY, P.L.L.C.;

(e) Awarding sanctions as against the Plaintiff and attorneys fees to the Defendants,

SVETLANA KIBRIK and TENDER TOUCH PHYSICAL THERAPY, P.L.L.C, for filing a

frivolous action as against the Defendants;

(f) For Sanctions, Costs and Legal Fees to be awarded as against the Plaintiff and to

the Defendants SVETLANA KIBRIK and TENDER TOUCH PHYSICAL THERAPY, P.L.L.C,

pursuant to Judiciary Law §753; and

(g) Permitting the moving Defendants, SVETLANA KIBRIK and TENDER TOUCH

PHYSICAL THERAPY, P.L.L.C., to file answering papers and/or motions necessary to properly

defend this action; and

(h) For such other and further relief as to this Court seems just, proper and necessary.

PROCEDURAL HISTORY

3. The within action was brought by Plaintiff, Ira Mercer, by the filing of a summons

and complaint on or about November 4, 2020. (See Summons and Complaint annexed hereto as

Exhibit "A"). The Summons and Complaint was filed against the Defendant, Tender Touch

Physical Therapy, PLLC (“Tender Touch”), only and not as against the Defendant, Svetlana

Kibrik.

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4. The Plaintiff then allegedly served the Defendant, Tender Touch, through the

Secretary of State on or about November 30, 2020. (See Tender Touch Affidavit of Service

annexed hereto as Exhibit “B”).

5. Thereafter, the Plaintiff filed a Supplemental Summons and Complaint as against

the Defendant, Tender Touch, and the Defendant, Svetlana Kibrik, on February 8, 2021. (See

Supplemental Summons and Complaint annexed hereto as Exhibit “C”).

6. The Plaintiff thereafter allegedly served the Supplemental Summons and

Complaint on the Defendant, Tender Touch, by Regular Mail, on or about June 25, 2021. (See

Affidavit of Service as to Tender Touch annexed hereto as Exhibit “D”). However, at no point

in time did the Defendant actually receive a copy of the Supplemental Summons and Complaint.

7. The Plaintiff allegedly served the Defendant, Svetlana Kibrik, on or about March

1, 2021. (See Affidavit of Service as to Svetlana Kibrik annexed hereto as Exhibit “E”).

However, the address served is a two-family home and the Affidavit of Service is defective as it

does not state which floor was served with said action and the description of the individual

served does not match that of the moving Defendant, Svetlana Kibrik.

8. Based on Plaintiff's failure to notify and properly serve Defendants in all aspects

of this litigation, the Plaintiff was able to obtain a judgment on default after inquest as against the

Defendants on November 18, 2022 in the amount of $105,603.50. (See Order annexed hereto as

EXHIIBIT "F").

9. The Defendant, SVETLANA KIBRIK, is an individual who has never even met

or interacted with the Plaintiff, Ira Mercer.

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10. The Defendant, TENDER TOUCH, is a physical therapy practice owned by the

Defendant, SVETLANA KIBRIK, and has never rendered services of any kind to the Plaintiff,

Ira Mercer.

11. The Defendant, SVETLANA KIBRIK, first learned of this action when she

received a letter from a creditor informing her that a judgment has been issued against her.

Immediately thereafter, the Defendant took steps to notify your Affirmant’s office of this suit and

this Order to Show Cause was filed.

12. The Plaintiff clearly filed a frivolous action against the Defendants, SVETLANA

KIBRIK and TENDER TOUCH, and alleges to have served them, yet no papers were ever received

at any point in time by either Defendant, resulting in the need for the filing of this motion.

ARGUMENT

I. PLAINTIFFS' COMPLAINT AS AGAINST DEFENDANTS MUST BE
DISMISSED AS THE COURT LACKS JURISDICTION OVER THE DEFENDANTS
PURSUANT TO C.P.L.R. 3211(a)(8) AS PLAINTIFF FAILED TO PROPERLY SERVE
THE DEFENDANTS.

13. C.P.L.R. §3211(a)(3), provides as follows,

"(a) Motion to dismiss cause of action. A party may move for judgment

dismissing one or more causes of action asserted against him on the ground that:

3. the party asserting the cause of action has not legal capacity to sue."

14. C.P.L.R. §3211(a)(8), Motion to dismiss cause of action. A party may move for

judgment dismissing one or more causes of action asserted against him on the ground that:

8. the court has not jurisdiction of the person of the defendant."

15. C.P.L.R. §311, Personal service upon a corporation or governmental subdivision,

states as follows,

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“(a) Personal service upon a corporation or governmental subdivision shall be made by

delivering the summons as follows: 1. upon any domestic or foreign corporation, to an officer,

director, managing or general agent, or cashier or assistant cashier or to any other agent

authorized by appointment or by law to receive service.

16. Same can also be served via the Secretary of State pursuant to

Business Corporation Law § 306.

17. C.P.L.R. §3025, Amended and supplemental pleadings, states as follows,

“(a) Amendments without leave. A party may amend his pleading once without leave of

court within twenty days after its service, or at any time before the period for responding to it

expires, or within twenty days after service of a pleading responding to it.”

18. As stated above, the Plaintiff first filed a Summons and Complaint on or about

November 4, 2020. (See Exhibit "A"). The Summons and Complaint was filed against the

Defendant, Tender Touch Physical Therapy, PLLC, only and not as against the Defendant,

Svetlana Kibrik.

19. Thereafter, the Plaintiff proceeded to file a Supplemental Summons and

Complaint as against the Defendant, Tender Touch, and the Defendant, Svetlana Kibrik, on

February 8, 2021. (See Exhibit “C”). Said Supplemental Summons and Complaint was filed

well past the twenty days permitted for filing of a supplemental summons as set forth in C.P.L.R.

§3025 (a), which permits amendments without leave of the Court within twenty days after its

service, or at any time before the period for responding to it expires. In this case, the Plaintiff

initially served Tender Touch only on November 30, 2020. The Plaintiff did not file a

Supplemental Summons and Complaint until February 8, 2021, which is over two months past

the time permitted pursuant to the C.P.L.R., nor did the Plaintiff move for permission to file a

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late Supplemental Summons and Complaint. As such, the Plaintiff’s Supplemental Summons and

Complaint is defective in all respects.

20. Further, the Supplemental Summons and Complaint added an additional

Defendant, SVETLANA KIBRIK, who was not named in the original Summons and Complaint.

As such, the Plaintiff’s Supplemental Summons and Complaint was defective from the onset and

bears no legal standing.

21. Even if the Court holds that the Supplemental Summons and Complaint was

properly filed, the Plaintiff allegedly served the Supplemental Summons and Complaint on the

Defendant, Tender Touch, by Regular Mail, on or about June 25, 2021. (See Exhibit “D”).

Service of same is defective as the Plaintiff was supposed to have personally served Tender

Touch, pursuant to C.P.L.R. §311 (a), which holds that personal service must be made upon a

corporation, not simply sending the Pleading by regular mail.

22. Further, the Plaintiff allegedly served the Defendant, Svetlana Kibrik, on or about

March 1, 2021. (See Affidavit of Service as to Svetlana Kibrik annexed hereto as Exhibit “E”).

However, the address served is a two-family home and the Affidavit of Service is defective as it

does not state which floor was served with said action and the description of the individual

served does not match that of the moving Defendant, Svetlana Kibrik.

23. Under CPLR 3211(a)(3), a party may move for dismissal of causes of action

asserted against it on the ground that "the party asserting the cause of action has not legal

capacity to sue." Under CPLR 3211(a)(l), a defendant may move to dismiss a complaint if a

defense is founded upon documentary evidence." Leon v. Martinez, 84 N.Y.2d 83, 88 (1994)

(dismissal is required under CPLR § 3211(a)(l) where "documentary evidence submitted

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conclusively establishes a defense to the asserted claims as a matter of law"); Sterling Fifth

Assoc. v. Carpentille Corp., 9 A.D.3d 261,261-62 (1st Dept. 2004).

24. In the case of Kang v. Zatorski, 2020 N.Y. Misc. LEXIS 9820, 2020 NY Slip Op

33787(U) (New York Cty. 2020), the Court dismissed the Complaint as against Defendants for

lack of personal jurisdiction because they were not personally served. The Court held that

pursuant to CPLR 3211(a)(8), a party may move for judgment dismissing one or more causes of

action asserted against him on the ground that the court does not have jurisdiction and when

presented with such a motion, “the party seeking to assert personal jurisdiction, the plaintiff[,]

bears the ultimate burden of proof on this issue.'" Id citing Marist Coll. v. Brady, 84 A.D.3d

1322, 1924 N.Y.S.2d 529 (2d Dept. 2011). In this case, the Plaintiff could not prove that the

Defendants were personally served and as such, the complaint was disissed.

25. In the instant case, Plaintiff clearly lacks standing to sue the moving Defendants

as the pleadings upon which Plaintiff’s case lies are defective and the Defendants were never

properly and personally served.

26. The Defendant does ask, that should the Court choose not to dismiss this action,

that the Defendants be permitted to file a late answer to properly and meritoriously defend

themselves in this frivolous litigation.

II. THE DEFENDANTS, SVETLANA KIBRIK AND TENDER TOUCH, ARE
ENTITLED TO HAVE THE DEFAULT JUDGMENT AGAINST THEM VACATED
BASED ON EXCUSABLE DEFAULT.

27. C.P.L.R. §5015 (a) affords relief from judgment and order. Specifically, the rule

provides in relevant part:

“(a) On motion. The court which rendered a judgment or
order may relieve a party from it upon such terms as may

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be just, on motion of any interested person with such notice
as the court may direct, upon the ground of:
1. excusable default, if such motion is made within one year after service
of a copy of the judgment or order with written notice of its entry upon
the moving party, or, if the moving party has entered the judgment or order,
within one year after such entry; or
2. newly-discovered evidence which, if introduced at the trial, would probably
have produced a different result and which could not have been discovered in
time to move for a new trial under section 4404 ; or
3. fraud, misrepresentation, or other misconduct of an adverse party."

28. It is within the Court’s discretionary power to vacate its own judgment for

sufficient reasons and in the interest of substantial justice. Katz v. Marra, 74 A.D.3d 888, 905

N.Y.S.2d 204 (2d Dept. 2010); Pisciotta v. Lifestyle Designs, Inc., 62 A.D.3d 850, 879 N.Y.S.2d

179 (2d Dept. 2009). A party seeking to vacate an order pursuant to C.P.L.R. § 5015(a)(1) must

present a reasonable excuse for failing to oppose the motion and demonstrate the merit of the

cause of action. Id; see also Newell v. Hirsch, 65 A.D.3d 1108, 885 N.Y.S.2d 130 (2d Dept.

2009); Simpson v. Town of Southampton, 43 A.D.3d 1033, 841 N.Y.S.2d 454 (2d Dept. 2007);

Mediavilla v. Gurman, 272 A.D.2d 146, 707 N.Y.S.2d 432 (1st Dept. 2000).

29. In the case of Mediavilla, supra, the Appellate Division argued that, “To obtain

relief from an order or judgment on the basis of excusable default pursuant to C.P.L.R. §5015 (a)

(1), a party must provide a reasonable excuse for the failure to appear and demonstrate the merit

of the cause of action or defense. Id at 148 citing Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d

138 (1986), Aronson v. Hyatt Intl. Corp, 202 A.D.2d 153, 608 N.Y.S.2d 187 (1st Dept. 1994) and

Adam v. Hilton Hotels Corp., 91 A.D.2d 884, 457 N.Y.S.2d 289 (1st Dept. 1983). The Appellate

Division thereafter restored the matter to the active trial calendar and further held that no

prejudice resulted from the delay in moving to restore the matter to the calendar and this was

sufficient to obtain relief from an order or judgment on the basis of excusable default pursuant to

C.P.L.R. §5015 (a) (1).

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30. In the case of Raciti v. Sands Point Nursing Home, 54 A.D.3d 1010, 864

N.Y.S.2d 176 (2d Dept. 2008), the Appellate Division reversed the decision of the Trial Court

which had granted the defendant’s motions to dismiss the action due to the plaintiff’s default in

opposing said motions. The Appellate Division held that the plaintiff had a meritorious

opposition to the motions and that the plaintiff’s failure to oppose the motions was neither

“willful nor deliberate”. “Moreover, the plaintiff acted promptly to cure her default and there was

no prejudice to the other parties.” Id at 1014.

31. In the case of Yeung et al v. City of N.Y., supra, the Appellate Division reversed

the decision of the Trial Court which had denied the plaintiffs’ motion to vacate a default

judgment against them. The Appellate Division held that the plaintiffs had demonstrated a

reasonable excuse for their default and through affidavits, had established a meritorious claim.

32. In the case of Greer v. McCullough, 36 A.D.2d 954, 322 N.Y.S.2d 616 (2d Dept.

1971), the Appellate Division affirmed the decision of the Trial Court and granted the

defendant’s motion to vacate a judgment entered after an inquest. The Appellate Division held

that it was discretionary of the Court as to whether the defendant attorney’s default in appearing

at the inquest was excusable and whether the default judgment entered after the inquest should

have been vacated and that the trial court improvidently exercised their discretion in vacating

such judgment.

33. In the present case, the affidavit of the Defendant, Svetlana Kibrik, clearly shows

that her failure to appear and to appear on behalf of her company, Tender Touch, to oppose the

Plaintiff's action at any point in time prior to entry of judgment was solely as a result of Plaintiff

failing to properly serve and notify the Defendants of the pending action.

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34. Based on the above, the default judgment should be vacated and the Plaintiff's

motion should be dismissed in its entirety.

III. DEFENDANTS ARE ENTITLED TO ATTORNEYS FEES, COSTS AND
SANCTIONS AS AGAINST THE PLAINTIFF FOR THE FILING OF A FRIVOLOUS
ACTION.

35. Judiciary Law §753 vests the Court with the power to punish, by fine or

imprisonment or both, for various acts of civil contempt. Judiciary Law §753 (A) states that,

"A court of record has power to punish...by fine...[for] misconduct, by which a right or
remedy of a party to a civil action or special proceeding, pending in the court may be defeated,
impaired, impeded, or prejudiced, in any of the following cases:
2. A party to the action or special proceeding, for putting in fictitious bail or a fictitious
surety, or for any deceit or abuse of a mandate or proceeding of the court."

36. There is no question here that the Plaintiff's counsel filed a frivolous lawsuit

against the Defendant as the Defendant had absolutely no ties to the Plaintiff. Furthermore,

knowing this, to avoid the Defendants finding out about this lawsuit, the Plaintiff "served" the

Defendants through improper means.

37. The moving Defendants have now been severely prejudiced since they have been

forced to pay your Affirmant's office for unnecessary legal services rendered solely as a result of

the Plaintiff's fraudulent actions.

38. As a result, sanctions and an award of costs and legal fees are clearly warranted in

the instant matter.

WHEREFORE, it is respectfully submitted that the Defendants’ motion should be

granted in its entirety together with such other and further relief that this Court deems just and

necessary.

Relief of this kind has not been requested prior.

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Dated: Brooklyn, New York
December 21, 2022

____________________________
IRINE KORENBLIT

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Case Info

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Joy Campanelli Track Judge’s New Case

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Document Filed Date

December 28, 2022

Case Filing Date

November 04, 2020

County

Parties

Austin Jackson Defendant
DIBIA, IKECHUKWU PAUL Attorney for the Plaintiff
Ira Mercer Plaintiff
John Doe , First and Last Names being unknown and fictitious Defendant
Kibrik Svetlaua Defendant
KORENBLIT, IRINE Attorney for the Defendant
KORENBLIT & VASSERMAN, PLLC Attorney for the Defendant
REVIVED SOUL MEDICAL, P.C. Defendant
Sinayskaya Yuniver, P.C. Attorney for the Defendant
Svetlana Kibrik Defendant
TENDER TOUCH PHYSICAL THERAPY, P.L.L.C. Defendant
YUNIVER, STEVEN ROSS Attorney for the Defendant
CARL EKBERG Attorneys for Defendants

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Motion-Secondary: Ira Mercer v. Austin Jackson, Kibrik Svetlaua, Svetlana Kibrik, Revived Soul Medical, P.C., Tender Touch Physical Therapy, P.L.L.C., John Doe , First and Last Names being unknown and fictitious

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