Preview
FILED: NASSAU COUNTY CLERK 07/27/2023 06:17 PM INDEX NO. 609832/2023
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 38
24 RECEIVED
RECEIVEDNYSCEF:
NYSCEF:07/27/2023
06/20/202
NEW YORK STATE SUPREME COURT
COUNTY OF NASSAU
ARENTFOX SCHIFF LLP f/k/a ARENT FOX LLP,
Petitioner,
v. Index No. 800874/2023
REGAN LALLY,
Respondent.
MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO DISMISS AND
IN SUPPORT OF CROSS-MOTION FOR SANCTIONS
ARENTFOX SCHIFF LLP
Allen G. Reiter, Esq
Bernice K. Leber, Esq.
Brian Farkas, Esq.
Nicholas Collins, Esq.
Tisha Martin, Esq.
1301 Avenue of the Americas
Floor 42
New York, NY 10019
(212) 484-3900
allen.reiter@afslaw.com
FILED: NASSAU COUNTY CLERK 07/27/2023 06:17 PM INDEX NO. 609832/2023
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Legal Standard
Dismiss,"
The Notice of Motion is styled as a "Motion to CPLR 3211(a). (See
citing
NYSCEF No. 4). However, the relief actually sought by the Motion is not dismissal of the Petition;
rather, the Motion seeks vacatur of the April 13, 2021 Judgment, which was rendered in a separate
action.3
(Id.) Motions to vacate judgments are governed by CPLR 5015. As relevant here, CPLR
. .
5015(a) provides:
The court which rendered a judgment or order may relieve a party from it upon
such terms as may 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; or
4. lack of jurisdiction to render the judgment or order; or
5. reversal, modification or vacatur of a prior judgment or order upon which
it is based.
Although the Motion does not explicitly cite to CPLR 5015(a), or any specific section above, the
only issues arguably implicated by Lally's Affidavit are allegations of "fraud, misrepresentation,
misconduct" 5015(a)(3).4
or other under CPLR
3
Aebly v. Lally, New York State Supreme Court, Nassau County, Index No. 202114/2008 (April 13, 2021).
4
Nothing in the Motion claims default (Section (1)), newly discovered evidence (Section (2)), lack of jurisdiction by
the Supreme Court, Nassau County that rendered the Judgment (Section (4)), or reversal, modification or vacatur of a
separate judgment upon which the operative Judgment is based (Section (5)).
3
FILED: NASSAU COUNTY CLERK 07/27/2023 06:17 PM INDEX NO. 609832/2023
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Argument
L Lally's attempt to challenge the underlying judgment is based on
mischaracterizations and falsehoods.
As is demonstrated in the Reiter Affidavit, Lally's Affidavit advances a bevy of outright
fabrications about various prior proceedings in an attempt to establish "fraud, misrepresentation,
misconduct"
or other under CPLR 5015(a)(3). Because her assertions are flatly wrong, and have
been previously rejected by other courts, she cannot meet these standards.
"secretly"
For example, Lally's contention that the Judgment was obtained is belied by the
affidavit and proof of service upon her, coupled with her filed opposition papers to the Motion
seeking the judgment; her claims that Arent Fox wrongfully portrayed itself as the plaintiff or as
the defendant in the underlying matrimonial action in which the Judgment was awarded are not
merely false, but bizarre on their face; and her repeated claim that she only recently learned of the
Judgment is undone by the proof of service and of delivery of the Judgment to her. (See Reiter
Aff., ¶¶ 8-11).
In sum, the entire Motion is predicated on demonstrable falsehoods about prior
proceedings. Lally has not, and cannot, meet the standards of showing "fraud, misrepresentation,
misconduct"
or other under CPLR 5015(a)(3). For this reason alone, her Motion must be denied.
IL The Motion is untimely, further requiring denial.
Even if Lally's factual assertions were accurate-which they are not-her Motion to vacate
the Judgment is untimely as a matter of law, and therefore must be denied.
A party seeking relief from a judgment pursuant to CPLR 5015(a)(3) "is required to make
time."
the motion within a reasonable Sieger v. Sieger, 51 A.D.3d 1004, 1006 (2d Dep't 2008)
(citations omitted). The statute does not provide a specific time limitation. However, courts
4
FILED: NASSAU COUNTY CLERK 07/27/2023 06:17 PM.. INDEX NO. 609832/2023
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NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 38
24 RECEIVED
RECEIVEDNYSCEF:
NYSCEF:07/27/2023
06/20/202
Dated: June 20, 2023
New York, New York
ARENTFOX SCHIFF LLP
By: Allen G. Reiter
Allen G. Reiter, Esq.
Bernice K. Leber, Esq.
Brian Farkas, Esq.
Nicholas Collins, Esq.
Tisha Martin, Esq.
1301 Avenue of the Americas
Floor 42
New York, NY 10019
(212) 484-3900
allen.reiter@afslaw.com
To (via NYSCEF and First Class Mail):
Regan Lally, Esq.
Defendant Pro Se
345 Centre Island Road
Oyster Bay, N.Y. 11771
Copy (via First Class Mail):
Bank of America Corporation
157 South St.
Oyster Bay, NY 11771
10
Preview
FILED: NASSAU COUNTY CLERK 07/27/2023 06:17 PM INDEX NO. 609832/2023 NYSCEF NYSCEF DOC. DOC. NO. NO. 38 24 RECEIVED RECEIVEDNYSCEF: NYSCEF:07/27/2023 06/20/202 NEW YORK STATE SUPREME COURT COUNTY OF NASSAU ARENTFOX SCHIFF LLP f/k/a ARENT FOX LLP, Petitioner, v. Index No. 800874/2023 REGAN LALLY, Respondent. MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO DISMISS AND IN SUPPORT OF CROSS-MOTION FOR SANCTIONS ARENTFOX SCHIFF LLP Allen G. Reiter, Esq Bernice K. Leber, Esq. Brian Farkas, Esq. Nicholas Collins, Esq. Tisha Martin, Esq. 1301 Avenue of the Americas Floor 42 New York, NY 10019 (212) 484-3900 allen.reiter@afslaw.com FILED: NASSAU COUNTY CLERK 07/27/2023 06:17 PM INDEX NO. 609832/2023 NYSCEF NY SCEF DOC. DOC. NO. NO. 38 24 RECEIVED RECEIVEDNYSCEF: NY SCEF07/27/2023 : 0 6/ 2 0/ 2 02 Legal Standard Dismiss," The Notice of Motion is styled as a "Motion to CPLR 3211(a). (See citing NYSCEF No. 4). However, the relief actually sought by the Motion is not dismissal of the Petition; rather, the Motion seeks vacatur of the April 13, 2021 Judgment, which was rendered in a separate action.3 (Id.) Motions to vacate judgments are governed by CPLR 5015. As relevant here, CPLR . . 5015(a) provides: The court which rendered a judgment or order may relieve a party from it upon such terms as may 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; or 4. lack of jurisdiction to render the judgment or order; or 5. reversal, modification or vacatur of a prior judgment or order upon which it is based. Although the Motion does not explicitly cite to CPLR 5015(a), or any specific section above, the only issues arguably implicated by Lally's Affidavit are allegations of "fraud, misrepresentation, misconduct" 5015(a)(3).4 or other under CPLR 3 Aebly v. Lally, New York State Supreme Court, Nassau County, Index No. 202114/2008 (April 13, 2021). 4 Nothing in the Motion claims default (Section (1)), newly discovered evidence (Section (2)), lack of jurisdiction by the Supreme Court, Nassau County that rendered the Judgment (Section (4)), or reversal, modification or vacatur of a separate judgment upon which the operative Judgment is based (Section (5)). 3 FILED: NASSAU COUNTY CLERK 07/27/2023 06:17 PM INDEX NO. 609832/2023 NYSCEF NYSCEF DOC. DOC . NO. NO . 38 24 RECEIVED RECEIVEDNYSCEF: NYSCEF 07/27/2023 : 0 6/ 2 0/ 2 02 Argument L Lally's attempt to challenge the underlying judgment is based on mischaracterizations and falsehoods. As is demonstrated in the Reiter Affidavit, Lally's Affidavit advances a bevy of outright fabrications about various prior proceedings in an attempt to establish "fraud, misrepresentation, misconduct" or other under CPLR 5015(a)(3). Because her assertions are flatly wrong, and have been previously rejected by other courts, she cannot meet these standards. "secretly" For example, Lally's contention that the Judgment was obtained is belied by the affidavit and proof of service upon her, coupled with her filed opposition papers to the Motion seeking the judgment; her claims that Arent Fox wrongfully portrayed itself as the plaintiff or as the defendant in the underlying matrimonial action in which the Judgment was awarded are not merely false, but bizarre on their face; and her repeated claim that she only recently learned of the Judgment is undone by the proof of service and of delivery of the Judgment to her. (See Reiter Aff., ¶¶ 8-11). In sum, the entire Motion is predicated on demonstrable falsehoods about prior proceedings. Lally has not, and cannot, meet the standards of showing "fraud, misrepresentation, misconduct" or other under CPLR 5015(a)(3). For this reason alone, her Motion must be denied. IL The Motion is untimely, further requiring denial. Even if Lally's factual assertions were accurate-which they are not-her Motion to vacate the Judgment is untimely as a matter of law, and therefore must be denied. A party seeking relief from a judgment pursuant to CPLR 5015(a)(3) "is required to make time." the motion within a reasonable Sieger v. Sieger, 51 A.D.3d 1004, 1006 (2d Dep't 2008) (citations omitted). The statute does not provide a specific time limitation. However, courts 4 FILED: NASSAU COUNTY CLERK 07/27/2023 06:17 PM.. INDEX NO. 609832/2023 ....---. .......-... ---.... ----- ,, -, -,,, -,,-- ....... -- NYSCEF NYSCEF DOC. DOC. NO. NO. 38 24 RECEIVED RECEIVEDNYSCEF: NYSCEF:07/27/2023 06/20/202 Dated: June 20, 2023 New York, New York ARENTFOX SCHIFF LLP By: Allen G. Reiter Allen G. Reiter, Esq. Bernice K. Leber, Esq. Brian Farkas, Esq. Nicholas Collins, Esq. Tisha Martin, Esq. 1301 Avenue of the Americas Floor 42 New York, NY 10019 (212) 484-3900 allen.reiter@afslaw.com To (via NYSCEF and First Class Mail): Regan Lally, Esq. Defendant Pro Se 345 Centre Island Road Oyster Bay, N.Y. 11771 Copy (via First Class Mail): Bank of America Corporation 157 South St. Oyster Bay, NY 11771 10