Motion for Child Support in Ninth Street Corp. v. Iris C. Fernandez, Jorge Mota| Trellis.Law

On July 13, 2023 a Motion-Secondary was filed involving a dispute between Ninth Street Corp., and Iris C. Fernandez, Jorge Mota, for Commercial - Contract in the District Court of Nassau County.

Preview
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

SUPREME COURT OF THE STATE OF NEW YORK Hon. Randy Sue Marber
COUNTY OF NASSAU
----------------x
NINTH STREET CORP.,
Ptaintiff ,

- against - Index No. 01459312013

lRlS C. FERNANDEZ alkla
lRlS C. FERNANDEZ MOTA and MIGUEL MOTA
a/kla MIGUEL FERNANDEZ a/kla JORGE MOTA,

?:l::::::';

PLAINTIFF'S MEMORANDUM OF LAW

Susan von Ohten, Esq.
Attorney for Ptaintiff
25 West Woods Road
Great Neck, New York 11020
(s16) 829-9378
vonohtens@aot.com

1 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

STATEMENT OF FACTS

The facts are detaited in the Affidavits of Susan von Ohten sworn to Juty 31 , 7023,

August 3,2023 and September 14,2023 and documented in the exhibits and briefty

summarized herein.

The 2010/201 3 Actions

The 2010 Action invotved fraudutent transfer of 5109,596, in cash, in 7004, based

on a Sheriff's Bit[ of Sate. (lndex No. 174712013)

The 2013 Action invotved fraudutent transfer of 5241,102 in bank accounts during

2008-2012 based on Sheriff's Bitts of Sate. (lndex No. 01459312013)

Defendants were represented in the 201012013 Actions by Jose Camacho, Esq"

The Hon. Karen V. Murphy granted judgment to Ninth Street by companion Orders

dated Juty 9, 2015, determined that defendants were personatty served and defautted

and directed an inquest on damages. The Orders were not appeated.

On August 13,2015 the Hon. Randy Sue Marber conducted an inquest. Ninth

Street proved its damages by testimonial and documentary evidence. Defendants did

not appear. The Court suo sponte ordered consolidation of the Actions and Judgment.

Judgment was granted for 5581,877.42 consisting of 5109,596 for the 2013

Action, 5741 ,102 f or the 2013 Action, 5206, 189.42 in interest and 525,000 tega[ fee.

Notice of Entry of the Judgment was served on defendants and Mr. Camacho on

December 23,2015. The Judgment was not appeated.

On March 14,2018, the Hon. Randy Sue Marber determined that the "Estate of

Sonia Fernandez" was a vehicte used by Fernandez to defraud Ninth Street and "has no

assets and has been dormant for more than five (5) years" and that Fernandez-not the

2 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

Estate-owns the Renta[ Property in Brooktyn and cottects the rental income.

Thereafter, the Hon. Randy Sue Marber issued a series of Orders, lnctuding

contempt orders and fines against defendants.

The Forectosure Action

On February 5,7013, the bank commenced a forectosure action (lndex No"

219712013) against a property in Brooktyn (the Rental Property) owned by Fernandez

through intestacy. Fernandez was represented by two different attorneys. ln January

2018, the bank served an Amended Comptaint on Fernandez and Ninth Street.

Fernandez defautted. Ninth Street was the only answering defendant. A judgment of

forectosure and sate was entered and a sale scheduted forAugust 25,2021. The day

before the sate, Mr. Larsen and Fernandez fited a "genuine emergency" OSC#1 to vacate

her defautt, dismiss the comptaint and stay atl enforcement proceedings. The Court

denied the TRO. The OSC was based on the fatse factual ctaim the "Estate" owned the

property and the fatse [ega[ ctaim it was a necessary party. Ninth Street opposed.

By Order dated February 7,7023, the Hon. Larry D. Martin denied vacatur,

imposed sanctions and attorneys fees on Fernandez and Larsen, determined Fernandez

owned the Property and ordered Mr. Larsen to comply with an lnformation Subpoena.

On February 28,2023, Mr. Larsen fited OSC#2 to stay the Marshal and Ninth Street

from levying on tenants and rents at the Rental Property. Mr. Larsen again asserted that

the property was owned by the "Estate of Sonia Fernandez". OSC#Z was not signed.

Mr. Larsen sent the unsignedO\C#Z to the Marshal which was rejected as "unsigned".

Contemporaneousty, Mr. Larsen sent the Marshal an Order of the Hon. Randy Sue

Marber dated January 2,2018 asserting that the "Orders [sic] invatidates your authority

3 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

too [sic] execute on behatf of Ninth Street. Ninth Street advised the Marshat that the

Order actuatty provides the reverse and states that "Nothing contained herein shatt be

construed to adversety affect the Ptaintiff's ctaim, right and entittement to
enforcement of the Judgment."

Mr. Larsen atso repeatedty argued to the forectosure court that an appettate

division Order obtained by Ninth Street was a stay of the "action" when, in fact, the

Order unambiguousty only stayed the "sate" as requested by Ninth Street.

The 2017 Action

On September 14, 2017, Ninth Street commenced an action (the "2017 Action")

under lndex No. 60956212017 based on the Sheriff's Bitt of Sate for fraudutent transfer

of 2 Mercedes-Benz vehictes, corporate stock and funds in bank accounts. Mr. Larsen

prepared and notarized defendants' affidavits on January 11,2018 denying service,

denying the transfers and atteging the 2017 Action was "doubte dipping" and "two

judgments for the same thing" based on a 2004 L&T judgment in the Civit Court, Kings

County in favor of Ninth Street against a corporate entity operated by defendants.

By Order dated March 6, 2018, the Hon. Jeffrey L. Brown rejected defendants'

denials of service and deniats of transfers and rejected the ctaim of "double dipping".

Notice of Entry of the Order was served on March 11,2018. Defendants did not appeat.

Judge Brown's Order atso directed an inquest on damages.

On May 30,2018, an inquest was conducted by the Hon. Denise L. Sher. Ninth

Street proved its damages by testimonial and documentary evidence. Defendants did

not appear. Judgment was granted for 5149,815.80. Notice of Entry of the Judgment

was served on defendants and Mr. Larsen on June 11,2018. Defendants did not appeal.

4 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

On August 15,2023, Mr. Larsen moved to vacate the Judgment in the 2017 Action

atteging the Estate owned the property and that the judgment was "dupticative".

The 2018 Action

On January 10,2018, Ninth Street commenced an action (the "2018 Action")

under lndex No. 60035212018 based on a Sheriff's Bit[ of Sate for fraudutent transfer of

558,367.89 in 3 checks payabte to Cabinets and the Estate of Sonia Fernandez. The

Estate was a sham to defraud Ninth Street, was dormant for more than 5 years and had

no assets pursuant to Judge Marber's March 14,2018 Order. The Estate had no interest

in the checks. The funds betonged to Ninth Street pursuant to the Bitt of Sate.

Fernandez deposited the checks into a sham 'estate' account, signed a fake name and

signed her deceased mother's name to withdraw and transfer the funds to hersetf and

her son Leonardo, as documented with bank account records.

By Order dated June 27, 2018, the Hon. Jeffrey L. Brown recited the assets

fraudutentty transferred in the 2017 Action (vehictes and bank accounts) and the

different assets fraudutently transferred in the 2018 Action (3 checks). The Order

granted judgment to Ninth Street and ordered an inquest on damages.

On Juty 30,2018, an inquest was conducted by the Hon. Jutianne Capetola. Ninth

Street proved its damages by testimonia[ and documentary evidence. Defendants did

not appear and did not contest the ctaim or damages, as noted by Judge Capetota.

Ninth Street was granted Judgment for 564,686. Notice of Entry of the Judgment was

served on defendants on August 74,2018. Fernandez did not appeal the Judgment.

On August 18,2023, Mr. Larsen moved to vacate the Judgment in the 2018 Action

atteging the Estate owned the property and that the judgment was "dupticative".

5 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

PRELIMINARY STATEMENT

Ninth Street moved to compel defendants and Mr. Larsen to respond to

lnformation Subpoenae and for defendants to account for rents cottected at the Rental

Property in excess of 5100,000/year in viotation of Restraining Notices and [evies. The

2015 Judgment imposed a Constructive Trust on atl property of the defendants,

inctuding the Renta[ Property. Defendants, as constructive trustees, have a duty to

account. Defendants ignored prior Orders by the Hon. Randy Sue Marber to account.

ln response, Mr. Larsen moved to vacate this Judgment and judgments in the

2017 and 20lBActions based on ctaims of the "Estate's Brooklyn Brownstone" and that

the judgments are "dupticative" of the 2004 L&T judgment. The purpose of this

"knowing fatsity" is to prevent enforcement against the property owned by Fernandez.

Judge Murphy's Juty 9, 2015 Order denied defendants' ctaim that the 2004 L&T

judgment was res judicato to [imit Ninth Street's actions for fraudutent transfers.

Judge Brown's March 6,2018 Order rejected defendants' "doubte dipping" and

"two judgments for the same thing" ctaim based on the L&T judgment.

Ninth Street opposed the vacatur motion in this action based on this Court's

March 14 Order and Judge Martin's February 7, 7023 Order that Fernandez-not the

Estate-owned the property. Ninth Street documented the different assets and

amounts transferred ot different times in the different actions. The actions are based

on Sheriff's Bitts of Sale, not a 2004 L&T judgment. There are no dupticative judgments.

Ninth Street asserted the Orders of Judges Murphy and Brown rejecting the L&T

judgment as res judicata and the "double dipping"/"dupticative judgment" ctaim.

Mr. Larsen concealed Orders thot utterly refute his false rejected claims.

6 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

Mr. Larsen's motion-made more than 8 years after Notice of Entry was served on

defendants and Mr. Camacho--is untimety pursuant to CPLR 5015(a). Defendants were

represented in the 2O1O12O13 Action by Jose Camacho, Esq. who was atso served with

Notice of Entry of Judgment on December 23. 2015. ln the 2017 and 2018 Actions, the

motions to vacate are more than 5 years after Notice of Entry. Mr. Larsen frivotousty

ctaims his motions were made "wet[ within the time to vacate the order [sic]."

Mr. Larsen was sanctioned by Judge Martin for accusing Ninth Street's counsel of

presenting Judge Marber's March 14, 2018 Order (the 'estate' Order) "that was not

signed by her". Mr. Larsen was forced to retract hii fatse accusation:

White Larsen suggested that orders were not reatty signed by
Judge Marber, when questioned he admitted that they are
accurate representations of the orders entered in those cases
and present in the officiat fites of the Supreme Court, Nassau County.

ln this action, Mr. Larsen repeats-and escatates-accusations of misconduct.

Mr. Larsen "affirms"-as "facts" and not on information and betief-that counset:

1. "knowingty circumvented Judge Bucaria's December 10, 2013 Order" by

fiting the 2013 Comptaint "one week before" the Order was issuedl and

2. obtained this Judgment "by timing the Court's transfers of the 2010 and

2013 Action to three different justices and bombarding atl three with motions"Z ond

3. "proved fatse damages in both the 2010 and 2013 Actions"s and

I
This is patently absurd-"circutnventing" an Order before it exists.

2
Sirnilarlyabsurd. Judgcllucariaorderedthe 20l0Actiontoanon-commercial partwhercitwasassigned
to thc IIon. I(arcn V. Murphy and thcn assigncd to Judgc Marbcr for inqtrest by thc July 9,2015 Orders.
'l'he 20 l3 Action was assigncd to Judgc Marber as a "rclatcd casc" on the tLJI liled by Nintli Strect.

l'his defamatory falschood is refutcd by the record and thc inquest conducted by Judge Marbcr.

7 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

4, "convinced the Court" and "moved" to consotidate the actiona And

5. "the [2015] Judgment was based on [counset's] fatse representations and

that [counset] had successfutly committed an unprecedented fraud on the Court"5 and

6 "[counset's] post-judgment affirmations were "fatse"6 and

7. "illegally obtained financial and personal records" of defendantsT and

B. "obtained the Judgment by timing the Court's transfers of the 2010 and

2013 Action to three different justices and bombarding atl three with motions"B and
g. "proved fatse damages in both the 2010 and 2013 Actions"e

10. "the Judgment was based on [counset's] fatse representations and that

[counset] had successful,ty committed an unprecedented fraud on the Court"10

11. "That [counset's] post-judgment affirmations were "fatse"11

Mr. Larsen's accusations of "misconduct" are fatse, defamatory and intended to

intimidate, embarrass and damage counset's professional reputation. This is the same

type of outright tie Mr. Larsen asserted in the forectosure action for which he was

sanctioned , inter atio, by Judge Martin. But Mr. Larsen persists in this same misconduct.

TotallyfalseandrefutedbytheinquesttranscriptthatJudgeMarber suasponte orderedconsolidation.

This is outrageously false, defarnatory, malicious and refuted by the record

False, defatnatory and unsupported by a singlc fact or docutnent.

A false and defan.ratory accusation of a crirne, 'lhe Orders of Judges Murphy, Marber and Martin refer
to tlre tax and financial records that were disclosed in defendants' bankruptcy filing and by subpoenae.

Judge Bucaria ordercd the 2010 Action to be assigned to a non-commercial part where it was assigned to
Judge Muryhy and then assigned to Judge Malber for inque st. The 20 l3 Action was assigncd to Judge
Marbcr as a "r'clatcd case" pursuant to thc I{Jl filed by Ninth Strcct.

9
Another false and defamatory accusation refuted by the record.

l0
Another false and defau.ratory accusation totally without any factual or documentary suppo(.

ll These were all rnotions assigned to the Hon. I{andy Sue Marber and irnposed sanctions on defendants.

8 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

Mr. Larsen atso threatened to fite a grievance against counsel with the

"Committee on Character and Fitness" in a declaratory action in Kings County-ex parte

and after submission--in which he admits he does not appear for any party but fatsety

claimed he was a defendant (he was not) and that the action to dectare the Rental

Property a non-homestead is "dupticative" of the forectosure action. Ninth Street's

retief was granted by Judge Martin and the property is dectared a non-homestead.12

Mr. Larsen atso requests sanctions and attorneys fees against Ninth Street and

counsel in this action and in the 2017 and 2018Actions in which he seeks vacatur.l3

This is btatant intimidation and vindictive retatiation for his own misconduct.

POINT I

MR" LARSEN'S MOTION IS MADE MORE THAN B YEARS AFTER
NOTICE OF ENTRY OF THE JUDGMENT AND IS UNTIMELY PURSUANT TO CPLR 5015

Mr. Larsen cites CPLR 5015 but there is not one fact or not one [ega[ authority

cited or discussed to support his motion. CPLR 5015(a) provides for vacatur, in retevant

part, upon "excusabte defautt, if such motion is made within one year after service of

a copy of the judgment or order with written notice of its entry. ."
Notice of Entry of the Judgment was served on defendants and their attorney,

Jose Camacho, Esq., on December 23, 201S-eight years ago. A motion under CPLR

5015(a)(1) is untimety if made more than 1 year after notice of entry, as in this case.

JP Morqan Chase Bank v. Atmazon ,2023 NY Stip Op 2110 (2 Dept. 2023) ("ln any event,

the motion was without merit as the defendant was required to demonstrate both a

reasonabte excuse for her defautt and a potentiatty meritorious defense.")

t2
Index No. 51312912022 and Exhibit O to von Ohlen Affidavit.
l3
Exhibit C to votr Ohlen Affidavit.

9 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

Here, defendants were personally served pursuant to Judge Murphy's July 9,

2015 Order. Defendants did not have and did not assert a meritorious defense. Mr.

Larsen does not even utter the words "excusabte negtect" or "meritorious defense".

There is no affidavit from either or both defendants based on personal knowtedge

to support the motion. "A conctusory affidavit or an affidavit by an individual without

personal knowtedge of the facts does not estabtish the proponent's primo facie
burden." JMD Hotdinqs v. Conqress Fin., 4 N.Y.3d 373 (2005).

Mr. Larsen admits his affirmation is based "entirety" on his "review" of the

"Court's records". This occurred on Aprit 30, 2018 according to the Nassau County Cterk

FOIA response.la Mr. Larsen's affirmation is not evidence. "An attorney's affirmation

that is not based upon personat knowtedge is of no probative or evidentiary

significance." Warrinqton v. Rvder Truck Rental ,7006 NY Stip Op 09230 (2 Dept. 2006).

Additionatty, Mr. Larsen does not attude to any defense based on "documentary

evidence" under (1), or that the court lacks subject matter jurisdiction under (2), or

that the ptaintiff lacks [egaI capacity under (3), or there is another pending action for

the same relief under (4), or the action is barred by arbitration, cottateraI estoppet,

discharge in bankruptcy, infancy, et cetera in (5), or a counterctaim that cannot be

property interposed under (6), or the pteading faits to state a cause of action under (7),

or that the court lacks jurisdiction over the person under (8).

It is irrefutabte that Mr. Larsen's motion is frivotous because it is untimeLy, it is

and not supported by an affidavit based on personal knowtedge and it does not even

attege excusabte negtect or a meritorious defense.

NYSCEF #56.

10 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

POINT 2

MR. LARSEN'S FALSE MISCONDUCT CLAIMS ARE ALSO TIME-BARRED
BECAUSE ALL "FACTS" WERE KNOWN BEFORE ENTRY OF THE JUDGMENT

Mr. Larsen's accusations of al.teged "misconduct" and "fraud" were atl known on

Januarv 11,2018 (when he prepared defendants'affidavits) and onAprit 30, 2018 (when

he reviewed the Court's records in this 201012013 Action-atl more than 8 years ago.

Even given the broadest possib[e interpretation of Mr. Larsen's fatse
"misconduct" ctaims, the motion is barred because no "reasonabte excuse" is even

asserted and time-barred because an 8-year detay is not a "reasonabte time".

As here, "broad, conctusory and unsubstantiated attegations of fraud failed to

demonstrate that ptaintiff engaged in any fraud, misrepresentation or other misconduct

warranting vacatur." Deutsche Bank v. Le-Mond, 198 A.D.3d 610, 611 (2 Dept. 2071).

Mr. Larsen's attegations are fatse, unsubstantiated and refuted by the record.

"Regarding CPLR 5015(a)(3), a motion to vacate upon grounds of fraud or

misrepresentation must be made within a reasonabte time. Where no excuse is
proffered for the detay in making the apptication, the motion must be denied. Mark v.

Lenfest, 80 A.D.3d 426 (1 Dept. 2011)(no excuse for 9 month detay). HSBC Bank v.

Lozovskiv, 206 A.D.3d 701 (2 Dept. 2022)(no vacatur if no reasonable excuse "regardless

of any potential merits of their defenses).

ln CitiMortqaqe v. Nunez, defendant sought to vacate the judgment based on

"fatse attegations in the comptaint". The Second Department denied vacatur because

defendant faited to assert a reasonabte excuse for the delay-4 years-and the Court

hetd that "such detaywas unreasonabte." 198A.D.3d 865, 866 (2 Dept. 7071). These

are the same facts in this action-no excusabte negtect and a longer 8-year detay.

11 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

See olso, Bank of New York Metton v. Vaden ,2023 NY SLip Op 02995 (2 Dept. 2023)

(vacatur denied based on "fatse attegations of standing and/or fraudutent documents"

where defendant faited to proffer a reasonabte excuse). Eastern Savines Bank v. Thomas

2012 NY Stip Op 30222 (Sup.Ct. Queens Co.) ("two years is unreasonable").

"Where attegations of fraud, misrepresentation or misconduct were readily

obtainabte prior to the time the order was issued, the attegations constitute nothing

more than newty interposed theories that could have been asserted prior to issuance of

the order." Washinqton Mutua[ Bank v. Batdera, 208 A.D.2d 1278, 1280. "The [asserter]

must satisfy its burden of estabtishing the order was procured through fraud or other

misconduct. Moreover, ptaintiff's attegations were nothing more than newty interposed

theories of defense that coutd have and shoutd have been asserted prior to order." ld.

"An order may not be vacated on the grounds of fraud, misrepresentation or

misconduct where the moving party had knowtedge of the fraud, misrepresentation or

misconduct before the order was issued." Citimortqaqe v. Roque, 202 A.D.3d 1041,

1042 (7 Dept. 2072). SNC Props. LLC v. DeMartino, 185 A.D.3d 750, 752 (2 Dept. 7020).

Smith v. Abbev-Lovetace,7023 NY Sl,ip Op 32020 (Sup.Ct. Kings Co.)

Notabty, Mr. Larsen and Fernandez atso moved to vacate her defautt in answering

the Amended Comptaint in the forectosure 6 vears after service in 2018 and that was

denied by Judge Martin in the February 7,2023 Order as untimety and merittess.

The totatity of the circumstances demonstrates that this motion-tike the

untimety and frivolous vacatur effort in the forectosure-is patentty frivotous and
intended to obstruct lawfuI enforcement of judgments.

Mr. Larsen's motion in this action is simitarty frivotous and shoutd be denied.

12 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

POINT 3

MR. LARSEN'S MOTION WAS MADE PRIMARILY_IF NOT SOLELY--
HARASS, OBSTRUCT IOUS INJURE C AND NINTH S

A motion is atso frivolous if "undertaken primarity to detay or protong the
resotution of the [itigation, or to harass or maticiousty injure another" pursuant to

22 NYCRR 130-1.1.

It is unquestionabte that Mr. Larsen's motion was made primarity-if not sotety--

(1) to obstruct resotution of Ninth Street's motions to compel defendants and Mr. Larsen

to compty with lnformation Subpoenae and to account for rentaI income cottected in

viotation of Restraining Notices and Marshal's [evies and (2) to maticiousty injure Ninth

Street by wasting resources in responding to a barrage of frivotous, dupticative vacatur

motions and to maticiousty injure counsel by fatse accusations of misconduct. Mr. Larsen

and defendants have a documented historv of disobevinq subpoenoe and Orders.

Mr. Larsen's fatse accusations and maticious attacks are evident in his accusation

that counsel presented Judge Marber's March 14 Order in the forectosure action "that

was not signed by her" and that resutted in sanctions by Judge Martin.

Mr. Larsen threatened to fite a grievance-in an ex parte communication after

submission of a motion in which he does not represent a party and is not a defendant.

ln this action, Mr. Larsen has made a series of outrageously fatse accusations of

misconduct, incl,uding "ittegatty" obtaining defendants' financiaI records. His

accusations of "convincing" the Court and "timing" assignment of cases and "moving

for consotidation" are atl refuted by the record. He seeks sanctions and attorneys fees.

ln the 7017 and 2018 Actions, Mr. Larsen repeats these scandatous accusations

and atso seeks sanctions and attorneys fees against counse[ and Ninth Street.

13 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

POINT 4

MR. LARSEN'S MISCONDUCT IN HIS MOTION REPEATS MISCONDUCT
FOR WHICH HE WAS SANCTIONED BY JUDGE MARTIN

Mr. Larsen repeats-in this motion and his other vacatur motions-the same

misconduct for which he was sanctioned by Judge Martin:

"lJpon a review of the record, it is clear that Defendant's OSC
was substontially frivolous. She ond her counsel, Larsen, were
well awore that she-rather than the estate-was the owner of
the property and that the estate was not a necessary party.

It is undisputed that Judge Marber already determined that-
consistent with the laws of intestacy-the 'estate' has no interest
in the property and was merely a vehicle utilized by Defendant
to hide assefs from creditors. Defendant atso swore to Surrogate's
Court that she was the owner of the property and stated simitarty
on her tax returns. That in making the instant motion she claimed
that the estate owns the property was, thus, a knowing folsity."
Ninth Street is correct that Defendant and Larsen's continued
refusal to withdraw the OSC after opposition was fited
showing the fatsities is atso sanctionabte.

ln light of the clear evidence thot Defendant's OSC is
substantially frivolous and based upon knowing folsities,
Ninth Street's motion for assessment of attorneys fees against
Defendant, Larsen and King is granted. (itatics added)

Judge Martin remarked on Mr. Larsen fatse accusation against counset:

White Larsen suggested that orders were not reatty signed by
Judge Marber, when questioned he admitted that they are accurate
representations of the orders entered in those cases and present
in the officiat fites of the Supreme Court, Nassau County.
and
the misconduct documented by Ninth Street is not exhaustive of the misconduct:

Counse[ raises further grounds for sanctions against
Larsen in her Affidavit in Further Support of Cross Motion.

White many of them are troubting and remain unrebutted,
the Court need not reach them as the requested sanctions
are atready being granted.

14 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

POINT 5

MR. LARSEN',S MOTION lS FRIVoLOUS AS DEFINED lN NYCRR 1 30-1 .1 .1 (c),
MADE PRIMARILY FOR AN IMPROPER PURPOSE AND SANCTIONABLE

NYCRR 130-1.1(b) is entitted "Certification" and provides that:

By signing a paper, an attorney or party certifies
that to the best of that person's knowtedge, information
and betief, formed after an inquiry reasonabte under
the circumstances, (1) the presentation of the paper
or the contentions therein are not frivotous as defined
in section 130-1.1(c) of this Subpart . . . .

Here, certifications are made by Mr. Larsen in his affirmations under penatty of perjury.

Part 130-1.1(c) provides that "for purposes of this Part, conduct is frivotous if:

(1) it is comptete[y without merit in law and cannot
be supported by a reasonabte argument for an extension,
modification or reversal of existing [aw;

(2) it is undertaken primarity to detay or protong
the resotution of the titigation, or to harass or maticiousty
injure another; or

(3) it asserts material factua[ statements that are fatse.
That part atso states that "the court shatl consider, among other issues the

(1) circumstances under which the conduct took ptace,
inctuding the time avaitabte for investigating the [ega[ or
factual basis of the conduct; and

(2) whether or not the conduct was continued when its
lack of [ega[ or factual basis was apparent, shoutd have been
apparent, or was brought to the attention of counse[ or the party.

Here, att the facts were known when defendants and their attorney Jose

Camacho Esq. were served with Notice of Entry of the Judgment on December 23, 2015.

Mr. Camacho represented defendants and vigorousty litigated the 201012013 Actions did

not appeal any Orders or the Judgment and did not ctaim any impropriety whatsoever.

15 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

Here, Mr. Larsen's "reasonabte time to investigate" began in Januarv 2018.

Here, Mr. Larsen knew that Judge Murphy rejected defendants' ctaim that the

2004 L&T judgment was res judicato in the Juty 9. 2015 Order.

Here, Mr. Larsen knew att the atteged ctaims of "dupticative judgment" and

"doubte dipping" and "two judgments for the same thing" on Januarv 11 , 2018 because

he prepared and notarized defendants' affidavits asserting these ctaims.

Here, Mr. Larsen knew that Judge Brown rejected defendants' ctaims of "doubte

dipping" and "dupticative judgment" by Order dated March 6,2018.

Here, Mr. Larsen knew Judge Marber's March 14, 2018 Order determined that

Fernandez-not the sham Estate-owned the Rental Property.

Here, Mr. Larsen reviewed the "Court's records" in the 201012013 Action on

ApriL 30, 2018, as evidenced by the FOIA response by the Nassau County Cterk.

Here, Mr. Larsen knew that the 2017 and 2018 Actions invotved different assets

because Judge Brown distinguished the 2 actions in the June27,201B Order.

Here, Mr. Larsen knew the Sheriff's Bitts of Sale were the basis of the actions as

stated in the Verified Comptaints, in motions, in notices to admit and at inquests.

Mr. Larsen ignored atl these Orders, documents, facts-the entire record-to

repeat the knowing fatsity of Estate ownership and the rejected ctaims of "dupticative"

judgments and res judicata based on the 2004 L&T judgment. As here,

"[Affiant] asserted materiaI factual statements that are
fatse in her sworn affidavit. . . Thus, [affiant] presented
knowingty fatse statements to the Court.

Furthermore, these fatse statements were used by ptaintiff
to support her causes of action."

Here, [affiant] was aware of the fatsity of her statements.

16 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

Thus, the defendants are entitted to an award of costs
in the form of reimbursement for actual expenses reasonabty
incurred and reasonabte attorneys fees.

Morqan v. NYP Hotdinqs, lnc.,2017 NY Stip Op 51907 (Sup.Ct. Kings Co.). See, Stein v.

McDowett, 74 A.D.3d 1323 (2 Dept. 2010) (fatse statement about stock ownership).

"Asserting fatse statements is a waste of judicial resources. This conduct must

be deterred." Downev S&Lv. Truiitto,2011 NY Stip Op 51517 (Sup.Ct. Kings Co.):

Nothing coutd more aptty be described as conduct
comptetety without merit in . . .fact than the giving
of sworn testimony or providing an affidavit knowing
the same to be fatse on a material issue. ld.

Deqtiarev v. Detecia-Kennv, 105 A.D.3d 691, 692 (2 Dept. 2013) (the arguments

advanced were "comptetety without merit in taw, faited to address the appticabte

statutory and case law and appear to have been advanced for the purpose of del.aying

. . the action.") ln the Matter of Parkside Limited Liabititv Company, 294 A.D.2d582,

584 (2 Dept. 2007) ("faiture to address pertinent [aw").

Here, there are numerous Orders in atl the actionsthot alreody determined the

focts and law-all of which Mr. Larsen wilfully ignored.

POINT 6

THE TOTALITY OF THE CIRCUMSTANCES EVIDENCES A WILFUL DISREGARD
OF FACTS AND THE RECORD TO DECEIVE THE COURT AND DEFRAUD NINTH STREET

"A court must [ook at the broad pattern of conduct." Downev S&L v. Trujitto,

2011 NY Stip Op 51517 (Sup.Ct. Kings Co.). "The frivotous nature of the Ititigation] must

be understood in the context of the undertying protracted frivotous litigation." Levy,

supro, at 34-35. "Motion practice several years after judgment, lacking [ega[ support

and intended onty to del.ay enforcement of a judgment, is a vatid basis for sanctions."

17 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

"Using an objective standard, a court may atso be abte to infer that an

objectivety unjustified ctaim is brought for an improper purpose." Matter of Gordon

v. Marrone, 155 Misc.2d726,731 (Sup.Ct. Westchester Co. , 1992)
Defendants have an adjudicated "tong history" of fraudutent, contumacious and

obstructionist misconduct to thwart enforcement of Ninth Street's judgment as

determined by Judge Marber's January 2,2018 Order:

[]t is ctear from the record and the long history of this case
that there is substantial merit to the Ptaintiff's ctaim that
Defendants have repeatedty frustrated Ninth Street's attempts
to cottect on a vatid and enforceabte money judgment.

The Marshal responded to Mr. Larsen's asserting the unsigned OSC#1 to stop the

[evies by exposing and rejecting his dupticitous effort.

The Marshal responded to Mr. Larsen's assertion that Judge Marber's January 2

"Orders [sic] invatidates your authority to execute on behatf of Ninth Street" by stating

"D/A [defendants' attorney] is "ptaying games". Moreover, Mr. Larsen misrepresented

Judge Marber's January 2 Order that actuaLLy hotds the reverse:

Nothing contained herein shatl be construed to adversety
affect Ptaintiff's ctaim right and entittement to enforce
the Judgment.

The record reftects Contempt Orders and fines by Judge Marber against defendants for

repeated refusal to compty with Orders and subpoenoe.

Judge Martin made simitar findings of "substantiatty frivotous" [itigation in an

attempt to vacate the forectosure judgment and stay the sate in the February 7 Order:

ln tight of the ctear evidence that Defendant's OSC is
substantiatty frivotous and based on knowing fatsities,
Ninth Street's motion for the assessment of attorneys
fees against Defendant, Larsen and King is granted.

18 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

As here, "the timing of the motion supports the finding that it was made
primarity to detay or protong the titigation." ln the Matter of Parkside Limited Liabititv

Companv, 294 A.D.2d 582, 584 (2 Dept. 2002\. Mr. Larsen's barrage of motions-6 years

late-were made to evade responding to the lnformation Subpoenae and to account for

rental income cottected in viotation of Restraining Notices and the Marshat's [evies.

"The goats inctude preventing the waste of judicial resources and deterring

vexatious titigation and diLatory or maticious Iitigation tactics....and sanctions are

appropriate to punish frivolous titigation." Levv, sLtpro, at 34. "One can hardty fathom

a more effective means of removing the incentive for engaging in devious conduct. . .

than a penatty which insures that the malefactor is denied the fruits of his misdeeds."

Kostika v. Cuomo, 41 N.Y.2d 673 (1977).

"Compensatory attorneys' fees are permitted under the rutes imposing sanctions

(22 NYCRR 130-1.1(a)." Winters v. Goutd,143 Misc.2d 44,49 (Sup.Ct. NY Co. 1989).

Marrero v. NYC Transit, 150A.D.3d 1097,1098 ("The court rute . . .authorizes the court

in its discretion to award a party in a civiI action reasonabte attorney's fees resutting

from frivotous conduct.") In the Matter of Parkside Limited Liabititv Companv,294

A.D.2d 582, 584 (2 Dept. 2002) ("diatribe of irretevant and convotuted arguments").

Tornheim v. Btue & White Food Products Corp.,73 A,.D.3d 749,750 (2 Dept. 2010)

("conduct of [party] and his attorney...appears to be comptetety without merit in [aw

or fact...") Financial Freedom v. Braunsbere,2017 NY Stip Op 31683 (Sup.Ct. Suffotk

Co.) (5t 0,692 against attorney personatty and entered as money judgment.)

The factors warranting attorneys fees and costs are wetl estabtished in this

record. Evidence of mala fides pervades this apptication. Matter of Gordon v' Marrone,

19 of 21
FILED: NASSAU COUNTY CLERK 10/03/2023 07:35 PM INDEX NO. 014593/2013
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/03/2023

155 Misc.2d726,732 (Sup.Ct. Westchester Co.,1997) ("actual bad faith not required

before awarding attorneys fees" and even "the assertion of a cotorabte ctaim wit[ not

bar assessment of attorney's fees"). Here, there is not even a remotety cotorabte ctaim

based on the Orders of Judges Murphy, Marber and Martin.

Mr. Larsen's motion is based on resurrecting adjudicated and rejected ctaims.

POINT 7

EALSE STATEMENTS TO THE COURT VIOLATE THE
PROFESSIONAL RULES OF CONDUCT

"New York requires attorneys in atl actions to investigate the legaI and factual

basis for an action before commencing [itigation." Steiner v. Bonhamer, 146 Misc.2d

10, 17 (Sup.Ct. Attegany Co. 1989). Pezenik v. Milano, 137 A.D.zd 748,749 (2 Dept.

1988) (duty of "due ditigence").

"An attorney who knowingl.y asserts a 'fatse statement of fact or [aw to a tribunal

or faits to correct a fatse statement of a material fact or [aw previousty made" is in

viotation of Rule 3.3 of the Rutes of Professiona[ Conduct. Judiciary Law section 90:

An attorney is guiLty of professional misconduct for
making fatse statements in the court.

Ru[e 8.4(c) of the New York Rutes of Professional Conduct states that a lawyer or law

firm shatl not

engage in conduct invotving dishonesty, fraud, deceit
or misrepresentation.

"Dishonesty by the court's officers is inh

Case Info

Judge

Randysue Marber Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

October 03, 2023

Case Filing Date

July 13, 2023

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: Ninth Street Corp. v. Iris C. Fernandez, Jorge Mota

Preview

Related Topics

Case Info

Parties