Preview
FILED: NEW YORK COUNTY CLERK 10/10/2023 04:27 PM INDEX NO. 151935/2022
NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 10/10/2023
SUPREME COURT OF THE STATE OF ÑEW YORK
COUNTY OF NEW YORK
-g- - ------------------------------------x
Index No.: 151935/2022
D S Ñ
Plaintiff,
-against-
MARLON SCHWARTZ,
Defendant.
_______________________________________________________________________Ç
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION
TO VACATE HIS DEFAULT
BORAH, GOLDSTEIN,
ALTSCHULER, NAHINS &
GOIDEL, P.C.
Attorneys for Plaintiff
6th
377 Broadway, Floor
New York, New York 10013
(212) 431-1300
JENNIFER E. SCHWARTZ, ESQ
on the Brief
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PRELIMINARY STATEMENT
This Memorandum of Law is submitted in opposition to Defendanes motion for an
Order seeking to:
(a) vacate the Judgments; and
(b) dismiss the action.
The relevant facts are set forth in the annexed affidavit in opposition of Dimitris
Chatzieleftheriou (the "Chatzieleftheriou Affidavit"), the opposing affirmation of Jennifer
E. Schwartz ("Schwartz Affirmation"), and the accompanying Exhibits annexed thereto.
Plaintiff BLUEGROUND US, INC. (the "Plaintiff") is the lessee of the Premises
82nd
known as Apt. 10F in the building known as 200 East street, New York, New Yoirk
10003 (the "Premises"). Defendant MARLON SCHWARTZ ("Defendant") is the occupant
in possession of the Premises pursuant to a written Blueground Guest Agreement
Confirmation , dated November 19, 2021, for a term commencing November 21, 2021
and ending December 21, 2021(the "Agreement ") dated April 6, 2016 ((See Exhibit B -
Agreement). Defendant accepted the terms of the Agreement and tendered the initial
payment of Guest Fees and Additional Guest Fees required by the Agreement (See
Exhibit C - Confirmation).
Subsequent to Defendant's initial payment, Defendant failed to pay any further
Guest Fees and/or Additional Guest Fees, failed to vacate the Premises on or before the
December 21, 2021 expiration of the Agreement and failed to take steps necessary to
extend the Agreement.
As a result of the foregoing, Plaintiff commence this action by service of a
summons and complaint, dated March 7, 2022 (the "Complaint") seeking, by way of a first
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cause of action, a declaratory judgment declaring the Agreement is expired, that
Defendant has no right to possession of the Premises that Defendant is liable for the
holdover rate in the Agreement for the term he remains in possession of the Premises
and that Defendanes ERAP is a nullity and Plaintiff may proceed to seek possession of
the Premises. Plaintiff also sought, as a second cause of action, a judgment for
Defendanes use and occupancy of the Premises at the holdover rate set forth in the
Agreement, and as a third cause of action, a judgment for its legal fees incurred as a
result of Defendanes holding over in possession of the Premises after expiration of the
Agreement. (See Exhibit D - Complaint). Defendant filed an answer and counterclaims,
dated July 29, 2022. (See Exhibit E - Answer). Plaintiff then filed a reply to counterclaims
(See Exhibit F - Reply).
Plaintiff then moved, by order to show cause ("Motion #1"), for an order directing
Defendant to pay use and occupancy pendente lite, of $16,090 per month for his ongoing
possession of rh Premises and to also post a bond for rent/use and occupancy arrears
for the period January 2022 through June 2022 in the sum of no less than $96,540.00.
(See NYSCEF Doc. Nos. 18 and 19). Defendant neither opposed Motion #1 nor appeared
at the virtual hearting thereof on July 19, 2022.
By decision and order, dated September 23, 2022 (the "September 2022 Order"),
the Hon. Paul A. Goetz granted Motion #1 and ordered Defendant to pay use and
occupancy, pendente lite, of $16,090 per month as use and occupancy for his ongoing
possession of the Premises and also ordered Defendant to post a bond for $96,540 as
rent arrears for January through June 2022. A copy of the September 2022 Order, with
Notice of Entry, is annexed as Exhibit G.
3
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Payment"
Plaintiff then filed a "Demand for letter, dated September 28, 2022,
demanding that Defendant pay to Plaintiff, on or before October 10, 2022, the sum of
$64,360.00 use and occupancy for the period July 2022 through October
representing
2022 and post a bond with the Court for $96,540.00 representing rent arrears for the
period January 2022 through June 2022. A copy of the Demand for Payment letter is
annexed as Exhibit H.
As a result of Defendanes failure to comply with the September 2022 Order or the
Demand for Payment, Plaintiff filed a second order to show cause, seeking entry of a
money judgment for $160,900.00, with costs and fees ("Motion #2), which was returnable
November 22, 2022. (See NYSCEF Doc. Nos. 45 and 46).
Again, Defendant neither opposed Motion, nor appeared at the virtual hearing of
Motion #2.
By decision and order, dated January 30, 2023 (the "January 2023 Order"), the
Hon. Paul A. Goetz granted Motion #2 to the extent of granting Plaintiff a money judgment
for $160,900, with interest from November 1, 2022, together with costs and
disbursements and directed Plaintiff to submit an affirmation in support of its request for
attorneys'
fees within 30 days. A copy of the January 2023 Order, with Notice of Entry,
is annexed as Exhibit I.
attorneys'
On February 27 2023, Plaintiff submitted its fees application, which
Defendant, again, failed to file any opposition thereto . (See NYSCEF Doc. Nos. 49-52).
By Decision and Order, dated March 22, 2023 (the "March 2023 Order"), the Hon.
attorneys'
Paul A. Goetz awarded to Plaintiff an additional judgment for $28,379.38 for
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fees., costs and disbursements. A copy of the March 2023 Order, with Notice of Entry, is
annexed as Exhibit J.
Plaintiff thereafter submitted 2 judgments to the Court - one for use and occupancy
attorneys'
pursuant to the 2023 Order, and the other for fees, pursuant to the
January
March 2023 Order (the "Judgments"). Copies of the Judgments, with Notices of Entry are
annexed, respectively, as Exhibits K and L (NYSCEF Doc. Nos. 59 and 61).
Despite being served with notices of entry of the Courts September 2022 and
2023 Orders, the Court's March 2023 Order and the Judgments (both dated April
January
4, 2023), Defendant never filed any notices of appeal and his time to do so has long since
expired.
Defendant now moves to vacate his default.
As more fully set forth below, Defendant is not entitled to vacate his default as he
has failed to set forth either a reasonable excuse for his default and/or a meritorious
defense to this action.
ARGUMENT
POINT I
DEFENDANT IS NOT ENTITLED TO VACATE HIS DEFAULT
To vacate a default judgment, the moving party must assert both a reasonable
excuse for the default and a meritorious defense for the court to properly consider the
motion. See CPLR 5015(a)(1); See Lockard v. Sopolsky, 82 A.D.3d 657, 920 N.Y.S.2d
558 (1st Dep't 2011); 481 Realty Corp. v. Soho Gallery Inc., 96 A.D.3d 484, 945 N.Y.S.2d
558 (1st Dept. 2012); D & R Global Selections, S.L. v. Pineiro, 90 A.D.3d 403, 934
N.Y.S.2d 19 (1st Dept. 2011). "It is within the courfs sound discretion to determine
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sufficient."
whether the movants excuse for the default is See Chevalier v. 368 E. 148th
St. LLC, 80 A.D.3d 411, 413-14 (1st Dep't 2011). In addition, "the
Associates,
determination whether a reasonable excuse has been offered is sui generis and should
be based on all relevant which are the length of the delay chargeable to
factors, among
the movant, whether the opposing party has been prejudiced, whether the default was
merits."
and the public the resolution of cases on the
Preview
FILED: NEW YORK COUNTY CLERK 10/10/2023 04:27 PM INDEX NO. 151935/2022 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 10/10/2023 SUPREME COURT OF THE STATE OF ÑEW YORK COUNTY OF NEW YORK -g- - ------------------------------------x Index No.: 151935/2022 D S Ñ Plaintiff, -against- MARLON SCHWARTZ, Defendant. _______________________________________________________________________Ç MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION TO VACATE HIS DEFAULT BORAH, GOLDSTEIN, ALTSCHULER, NAHINS & GOIDEL, P.C. Attorneys for Plaintiff 6th 377 Broadway, Floor New York, New York 10013 (212) 431-1300 JENNIFER E. SCHWARTZ, ESQ on the Brief 1 of 11 FILED: NEW YORK COUNTY CLERK 10/10/2023 04:27 PM INDEX NO. 151935/2022 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 10/10/2023 PRELIMINARY STATEMENT This Memorandum of Law is submitted in opposition to Defendanes motion for an Order seeking to: (a) vacate the Judgments; and (b) dismiss the action. The relevant facts are set forth in the annexed affidavit in opposition of Dimitris Chatzieleftheriou (the "Chatzieleftheriou Affidavit"), the opposing affirmation of Jennifer E. Schwartz ("Schwartz Affirmation"), and the accompanying Exhibits annexed thereto. Plaintiff BLUEGROUND US, INC. (the "Plaintiff") is the lessee of the Premises 82nd known as Apt. 10F in the building known as 200 East street, New York, New Yoirk 10003 (the "Premises"). Defendant MARLON SCHWARTZ ("Defendant") is the occupant in possession of the Premises pursuant to a written Blueground Guest Agreement Confirmation , dated November 19, 2021, for a term commencing November 21, 2021 and ending December 21, 2021(the "Agreement ") dated April 6, 2016 ((See Exhibit B - Agreement). Defendant accepted the terms of the Agreement and tendered the initial payment of Guest Fees and Additional Guest Fees required by the Agreement (See Exhibit C - Confirmation). Subsequent to Defendant's initial payment, Defendant failed to pay any further Guest Fees and/or Additional Guest Fees, failed to vacate the Premises on or before the December 21, 2021 expiration of the Agreement and failed to take steps necessary to extend the Agreement. As a result of the foregoing, Plaintiff commence this action by service of a summons and complaint, dated March 7, 2022 (the "Complaint") seeking, by way of a first 2 of 11 FILED: NEW YORK COUNTY CLERK 10/10/2023 04:27 PM INDEX NO. 151935/2022 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 10/10/2023 cause of action, a declaratory judgment declaring the Agreement is expired, that Defendant has no right to possession of the Premises that Defendant is liable for the holdover rate in the Agreement for the term he remains in possession of the Premises and that Defendanes ERAP is a nullity and Plaintiff may proceed to seek possession of the Premises. Plaintiff also sought, as a second cause of action, a judgment for Defendanes use and occupancy of the Premises at the holdover rate set forth in the Agreement, and as a third cause of action, a judgment for its legal fees incurred as a result of Defendanes holding over in possession of the Premises after expiration of the Agreement. (See Exhibit D - Complaint). Defendant filed an answer and counterclaims, dated July 29, 2022. (See Exhibit E - Answer). Plaintiff then filed a reply to counterclaims (See Exhibit F - Reply). Plaintiff then moved, by order to show cause ("Motion #1"), for an order directing Defendant to pay use and occupancy pendente lite, of $16,090 per month for his ongoing possession of rh Premises and to also post a bond for rent/use and occupancy arrears for the period January 2022 through June 2022 in the sum of no less than $96,540.00. (See NYSCEF Doc. Nos. 18 and 19). Defendant neither opposed Motion #1 nor appeared at the virtual hearting thereof on July 19, 2022. By decision and order, dated September 23, 2022 (the "September 2022 Order"), the Hon. Paul A. Goetz granted Motion #1 and ordered Defendant to pay use and occupancy, pendente lite, of $16,090 per month as use and occupancy for his ongoing possession of the Premises and also ordered Defendant to post a bond for $96,540 as rent arrears for January through June 2022. A copy of the September 2022 Order, with Notice of Entry, is annexed as Exhibit G. 3 3 of 11 FILED: NEW YORK COUNTY CLERK 10/10/2023 04:27 PM INDEX NO. 151935/2022 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 10/10/2023 Payment" Plaintiff then filed a "Demand for letter, dated September 28, 2022, demanding that Defendant pay to Plaintiff, on or before October 10, 2022, the sum of $64,360.00 use and occupancy for the period July 2022 through October representing 2022 and post a bond with the Court for $96,540.00 representing rent arrears for the period January 2022 through June 2022. A copy of the Demand for Payment letter is annexed as Exhibit H. As a result of Defendanes failure to comply with the September 2022 Order or the Demand for Payment, Plaintiff filed a second order to show cause, seeking entry of a money judgment for $160,900.00, with costs and fees ("Motion #2), which was returnable November 22, 2022. (See NYSCEF Doc. Nos. 45 and 46). Again, Defendant neither opposed Motion, nor appeared at the virtual hearing of Motion #2. By decision and order, dated January 30, 2023 (the "January 2023 Order"), the Hon. Paul A. Goetz granted Motion #2 to the extent of granting Plaintiff a money judgment for $160,900, with interest from November 1, 2022, together with costs and disbursements and directed Plaintiff to submit an affirmation in support of its request for attorneys' fees within 30 days. A copy of the January 2023 Order, with Notice of Entry, is annexed as Exhibit I. attorneys' On February 27 2023, Plaintiff submitted its fees application, which Defendant, again, failed to file any opposition thereto . (See NYSCEF Doc. Nos. 49-52). By Decision and Order, dated March 22, 2023 (the "March 2023 Order"), the Hon. attorneys' Paul A. Goetz awarded to Plaintiff an additional judgment for $28,379.38 for 4 of 11 FILED: NEW YORK COUNTY CLERK 10/10/2023 04:27 PM INDEX NO. 151935/2022 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 10/10/2023 fees., costs and disbursements. A copy of the March 2023 Order, with Notice of Entry, is annexed as Exhibit J. Plaintiff thereafter submitted 2 judgments to the Court - one for use and occupancy attorneys' pursuant to the 2023 Order, and the other for fees, pursuant to the January March 2023 Order (the "Judgments"). Copies of the Judgments, with Notices of Entry are annexed, respectively, as Exhibits K and L (NYSCEF Doc. Nos. 59 and 61). Despite being served with notices of entry of the Courts September 2022 and 2023 Orders, the Court's March 2023 Order and the Judgments (both dated April January 4, 2023), Defendant never filed any notices of appeal and his time to do so has long since expired. Defendant now moves to vacate his default. As more fully set forth below, Defendant is not entitled to vacate his default as he has failed to set forth either a reasonable excuse for his default and/or a meritorious defense to this action. ARGUMENT POINT I DEFENDANT IS NOT ENTITLED TO VACATE HIS DEFAULT To vacate a default judgment, the moving party must assert both a reasonable excuse for the default and a meritorious defense for the court to properly consider the motion. See CPLR 5015(a)(1); See Lockard v. Sopolsky, 82 A.D.3d 657, 920 N.Y.S.2d 558 (1st Dep't 2011); 481 Realty Corp. v. Soho Gallery Inc., 96 A.D.3d 484, 945 N.Y.S.2d 558 (1st Dept. 2012); D & R Global Selections, S.L. v. Pineiro, 90 A.D.3d 403, 934 N.Y.S.2d 19 (1st Dept. 2011). "It is within the courfs sound discretion to determine 5 of 11 FILED: NEW YORK COUNTY CLERK 10/10/2023 04:27 PM INDEX NO. 151935/2022 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 10/10/2023 sufficient." whether the movants excuse for the default is See Chevalier v. 368 E. 148th St. LLC, 80 A.D.3d 411, 413-14 (1st Dep't 2011). In addition, "the Associates, determination whether a reasonable excuse has been offered is sui generis and should be based on all relevant which are the length of the delay chargeable to factors, among the movant, whether the opposing party has been prejudiced, whether the default was merits." and the public the resolution of cases on the