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FILED: GREENE COUNTY CLERK 08/18/2023 10:39 PM INDEX NO. EF2022-527
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/18/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF GREENE
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Rey Olsen, individually, derivatively, and as
Assignee of Windmont Development, LLC Index No. EF2022-527
and Eagles Landing, LLC, Justice ___________
Plaintiff, Opposing Motion No. 1
Vs. and for Plaintiff’s cross-motion
No. 2
15 Hollow View Road, LLC, et al
Defendants. Returnable 8/18/2023 10:00 am
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Rey Olsen’s Reply Memo of Law
In opposition to motion to compel of 15 Hollow View Road, LLC
and in support of Cross-Motion for a Default or Summary Judgment
August 18, 2023
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I. Overview
The motion of 15 Hollow View Road, LLC (15HVR/Defendant) to compel acceptance
of a late answer under CPLR 3012(d) overlooks the lack of a reasonable excuse for not
responding for 7 months to the Summons with Notice of Plaintiff Rey Olsen (Olsen) that was
served on 15 HVR by the New York Department of State (NYDOS).
The only objections proffered by 15HVR to the motion of Olsen’s motion for a default
judgment are:
1. That the failure of its attorney, John Burke (Burke), to keep current its
address with the NYDOS constitutes a law office failure. This ignores that the responsibility
belongs to 15HVR.
2. A challenge to Olsen’s standing to sue derivatively on behalf of
Windmont Development, LLC (WD). Unchallenged, however, is Olsen’s standing to sue as
an assignee of WD, as set forth in the caption of this action.
15HVR does not disagree substantively with any part of Olsen’s “Statement of
Undisputed Facts” in in support of a default judgment, or, alternatively, summary judgment.
15HVR makes the procedural objection that a motion for summary judgment does not
lie until a case has been joined. The rules of Justice Mott, however, explicitly state that a
summary judgment motion can be made at any time.
In sum, 15HVR’s motion to compel must be denied for failure to overcome its default.
Olsen’s motion for a default judgment should be granted or alternatively his motion for
summary judgment.
II. Contra-argument
(a) 15HVR has proffered no reasonable excuse for defaulting.
15HVR has not overcome binding case law holding that the failure to keep current
the address on file with the NYDOS is not a reasonable excuse for defaulting. Olsen aff.,
¶¶28, 29, 30. NYSCEF Doc No. 35.
No individual with personal knowledge of the facts has come forward with an affidavit
explaining why a current address for 15HVR was not maintained with the NYDOS.
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With admirable candor, 15HVR states: “In short, Hollow View does not contest that it
was served…” Def. Br.. NYSCEF Doc. No. 44, p. 9 of 12. Thus no argument lies to overcome
the fact that it did not timely respond to the Summons with Notice because of lack of service.
What is conspicuously missing is why the acknowledgement of service of the NYDOS
is incorrect? Id, p. 8 of 12. Noticeably absent is any sworn statement from a Member or
employee of 15HVR confirming Burke’s role or explaining when the admitted service of the
Summons with Notice was received. Why are they concealing this?
HVR states conclusorily with a hearsay reference to attorney Burke: “He was, however,
responsible for updating the service address for Hollow View with the State of New York.” Def.
Id, p. 8 of 12. Where is an affidavit from Burke?
No wonder it is absent: Burke does not want to confess to malpractice!
Finally, although 15HVR claims there was no lack of willfulness in defaulting, lacking
is any explanation of why waited seven months to file a notice of appearance.
(b) Olsen’s standing to sue pro se as an assignee of WD has not been and cannot be
questioned by 15HVR as a matter of law.
15HVR relies exclusively on an objection made by Co-Defendant Boris Shaljanin
(Shaljanin) to the standing of Olsen to bring a derivative action, pro se, on behalf of WD.
Apart from suing derivatively, Olsen also sued, pro se, as an assignee of WD based on
an assignment that Olsen made to himself as the Operating Manager of WD. Statement of
material facts, ¶10. NYSCEF Doc No. 39. Shaljanin did not object to Olsen’s assignee status.
Absent from 15HVR’s brief is any argument that Olsen cannot sue pro se as an assignee
of WD. This is understandable as under binding precedent an LLC may assign a chose in action
even if the reason is to avoid engaging an attorney. NYSCEF Doc. No. 37, in ¶9:
"Further, the assignment did not violate N.Y. C.P.L.R. 321 (a), which
prohibited a corporation from appearing pro se. The court found that the
statutory prohibition did not extend to an assignee of a corporation, despite
the fact that the assignment may have been made to circumvent the statutory
prohibition against a corporation appearing pro se."
Traktman v. New York, 182 A.D.2d 814, 814 (2nd Dept. 1992).
Traktman was cited to for this holding in a recent case that ruled that: a corporation or
voluntary association such as an LLC can benefit by “prevailing caselaw holds that dismissal
of claims pursuant to 321(a) can be avoided by assignment to a different plaintiff.”
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Plaintiffs motion to dismiss must be denied. Though it is true that a corporation
cannot appear without an attorney subject to CPLR 321(a), prevailing caselaw
holds that dismissal of claims pursuant to 321(a) can be avoided by
assignment to a different plaintiff (see CPLR § 321(a); Kinlay v Henley, 57 AD3d
219, 220, 868 N.Y.S.2d 62 [1st Dept 2008]; Traktman v City of New York, 182
AD2d 814, 815, 582 N.Y.S.2d 808 [2d Dept 1992]). Here, Anchorage's claims
were assigned to NAS (see Def. Aff., Ex. C ¶¶ 4, 5). Accordingly, plaintiffs motion
to dismiss defendant Anchorage' counterclaims is DENIED. [Emphasis added.]
Anthony T. Rinaldi, LLC v Anchorage Constr. Corp., 2021 N.Y. Misc. LEXIS 153, *6
(2021) (NY Sup, NY Cty, 2021)
An LLC is a voluntary association.
Thus, CPLR 321(a) must include an LLC under the rubric of corporations and
voluntary associations because herein an individual has created a legal entity
and invested it with property designating it as the landlord.
Monte Carlo, L.L.C. v. Yorro, 195 Misc. 2d 762, 763
WD’s assignment to Olsen is grounded in General Obligations Law § 13-101 states that
“[a] ny claim or demand can be transferred,” with exceptions not relevant herein.”
Olsen’s representation that he is a lawful assignee of WD has been unchallenged by
admissible evidence of anyone with personal knowledge of the facts. An assignment may only
be challenged by its assignor, WD. As the other Operating Manager, Frank Castiglione, Sr.
died in October 2020, Olsen is the only Operating Manager under the OA.
No one could question the validity [**634] of the assignments except the
assignors and that they might never do.
In re Holden, 271 N.Y. 212, 218 (1936)
Accord: Jute v U.S. Bank N.A., 2020 N.Y. Misc. LEXIS 10875, *8 (NY Sup. Queen Cty, 2020)
CPLR 321(a) therefore does not bar Olsen appearing pro se as the assignee of WD.
(c) The brief of 15HVR is bereft of any meritorious argument of why a default
judgment or a summary judgment should not be entered.
1. A default judgment should be issued.
Even if 15HVR, had a reasonable excuse for defaulting, which it does not, it has not set
forth any evidence in an admissible format of a meritorious defense. Absent same, a default
judgment should be granted as no grounds would exist to vacate a default judgment. Even
when affidavits are submitted by an individual with personal knowledge of the facts, (not so
herein) vacatur of a default judgment has been denied
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In order to be relieved of a judgment on the ground of "excusable default" (
CPLR 5015 [a] [1]), a party "must establish that there was a reasonable excuse
for the default and a meritorious claim or defense" ( Pekarek v Votaw, 216
AD2d 829, 830; see, Matter of Butchar v Butchar, 213 AD2d 788). Upon
reviewing the contradictory affidavits submitted by [*818] third-party
defendant's president and counsel in support of its motion to vacate, we agree
with Supreme Court that third-party defendant failed to meet its burden of
demonstrating a reasonable or justifiable excuse for the delay.
Pagano v. U.W. Marx, Inc., 223 A.D.2d 817, 817-818 (3rd Dept, 1996)
2. Alternatively, Olsen should receive a summary judgment against 15HVR.
15 HVR has stated no objection to Olsen’s “Statement of Undisputed Facts” in support
of summary judgment.” Silence when there is a duty to speak is generally construed as
acquiescence.
Motion by plaintiff for summary judgment on the issue of liability
against defendants is granted, there appearing no opposition.
Velasquez v. City of New York, 2021 N.Y. Misc. LEXIS 2764, *1(NY Sup Ct, Queens
Cty, 2021)
Once a plaintiff has met its prima facie burden, he is entitled to
summary judgment unless the defendant provides a meritorious explanation.
Siklos v. Conn, 2019 N.Y. Misc. LEXIS 24069, *4 (NY Sup, Westchester Cty, 2019)
Its procedural objection that a summary judgment motion must await joinder is gainsaid
by Local Rule 9.0 of Justice Richard Mott’
9.0 Summary Judgment/Motion to Dismiss Summary judgment motions or
motions to dismiss may be made at any time.
(d) 15HVR provides no admissible evidence that it conducted “due diligence” before
purchasing the real property at issue.
Attorney Michael R. O’Donnell (O’Donnell), only recently engaged, was not the
attorney for 15HVR in 2016. His conclusory speculation about due diligence by 15HVR before
making its purchase and the membership of Olsen in WD is of no probative value.
Burke, who was the attorney for 15HVR in 2016, provides no explication of any due
diligence efforts on behalf of 15HVR.
There is not even an allegation that 15HVR read the Operating Agreement (OA) of WD
that explicitly proscribes the sale of any of its real property without the unanimous consent of
all Members. Olsen aff., ¶¶55, 56, 57. NYSCEF Doc No. 35. Without such approval, the TA
is void. 15HVR was grossly negligent in not investigating the title it was purchasing.
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Furthermore, the case record is bare of any affidavit of anyone contradicting Olsen’s
sworn statement that he never delivered or authorized the delivery of a Transfer Agreement
(TA) to anyone and therefore the said TA is void. Olsen retained his membership interest in
WD at all times.
Olsen has averred that he never agreed to any sale to 15HVR. Olsen aff., ¶ 54. Id.
15HVR points out correctly that Olsen’s citation to Munz v. Laguardia Hosp., 109
AD2d 731, 732 (2nd Dept, 1985), for its persuasiveness, was to the dissent. The case relied
upon in Munz was the binding authority of Barton v. County of Monroe, 1983 N.Y. App. Div.
LEXIS 17070, *1 (4th Dept.) that held that “The affidavit of plaintiff's attorney, who lacked
personal knowledge of the facts, was insufficient to establish a meritorious cause of action.”
Accord: Wasielewski v. Town of Cheektowaga, 281 A.D.2d 944, 945 (4th Dept, 2001).
Conspicuously absent is any affidavit of facts from a Member or employee of 15HVR.
III. Conclusion
WHEREFORE, 15HVR’s motion to compel acceptance of its answer should be denied;
Olsen’s motion for a default, or alternatively summary judgment, should be granted. Olsen
seeks such other and further relief, including general relief, as this Court deems just.
Windham, New York
August 18, 20231
/s Rey Olsen
Rey Olsen, pro se
As assignee of Windmont Development, LLC
P. O. Box 1114
Windham, NY 12496
(917) 701-1101
wsgny@aol.com
1 15HVR’s opposition brief was E-filed at 8:59 am on 8/18/2023, its return date.
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FILED: GREENE COUNTY CLERK 08/18/2023 10:39 PM INDEX NO. EF2022-527 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/18/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF GREENE ----------------------------------------------------------------X Rey Olsen, individually, derivatively, and as Assignee of Windmont Development, LLC Index No. EF2022-527 and Eagles Landing, LLC, Justice ___________ Plaintiff, Opposing Motion No. 1 Vs. and for Plaintiff’s cross-motion No. 2 15 Hollow View Road, LLC, et al Defendants. Returnable 8/18/2023 10:00 am -------------------------------------------------------------X Rey Olsen’s Reply Memo of Law In opposition to motion to compel of 15 Hollow View Road, LLC and in support of Cross-Motion for a Default or Summary Judgment August 18, 2023 0 1 of 6 FILED: GREENE COUNTY CLERK 08/18/2023 10:39 PM INDEX NO. EF2022-527 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/18/2023 I. Overview The motion of 15 Hollow View Road, LLC (15HVR/Defendant) to compel acceptance of a late answer under CPLR 3012(d) overlooks the lack of a reasonable excuse for not responding for 7 months to the Summons with Notice of Plaintiff Rey Olsen (Olsen) that was served on 15 HVR by the New York Department of State (NYDOS). The only objections proffered by 15HVR to the motion of Olsen’s motion for a default judgment are: 1. That the failure of its attorney, John Burke (Burke), to keep current its address with the NYDOS constitutes a law office failure. This ignores that the responsibility belongs to 15HVR. 2. A challenge to Olsen’s standing to sue derivatively on behalf of Windmont Development, LLC (WD). Unchallenged, however, is Olsen’s standing to sue as an assignee of WD, as set forth in the caption of this action. 15HVR does not disagree substantively with any part of Olsen’s “Statement of Undisputed Facts” in in support of a default judgment, or, alternatively, summary judgment. 15HVR makes the procedural objection that a motion for summary judgment does not lie until a case has been joined. The rules of Justice Mott, however, explicitly state that a summary judgment motion can be made at any time. In sum, 15HVR’s motion to compel must be denied for failure to overcome its default. Olsen’s motion for a default judgment should be granted or alternatively his motion for summary judgment. II. Contra-argument (a) 15HVR has proffered no reasonable excuse for defaulting. 15HVR has not overcome binding case law holding that the failure to keep current the address on file with the NYDOS is not a reasonable excuse for defaulting. Olsen aff., ¶¶28, 29, 30. NYSCEF Doc No. 35. No individual with personal knowledge of the facts has come forward with an affidavit explaining why a current address for 15HVR was not maintained with the NYDOS. 1 2 of 6 FILED: GREENE COUNTY CLERK 08/18/2023 10:39 PM INDEX NO. EF2022-527 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/18/2023 With admirable candor, 15HVR states: “In short, Hollow View does not contest that it was served…” Def. Br.. NYSCEF Doc. No. 44, p. 9 of 12. Thus no argument lies to overcome the fact that it did not timely respond to the Summons with Notice because of lack of service. What is conspicuously missing is why the acknowledgement of service of the NYDOS is incorrect? Id, p. 8 of 12. Noticeably absent is any sworn statement from a Member or employee of 15HVR confirming Burke’s role or explaining when the admitted service of the Summons with Notice was received. Why are they concealing this? HVR states conclusorily with a hearsay reference to attorney Burke: “He was, however, responsible for updating the service address for Hollow View with the State of New York.” Def. Id, p. 8 of 12. Where is an affidavit from Burke? No wonder it is absent: Burke does not want to confess to malpractice! Finally, although 15HVR claims there was no lack of willfulness in defaulting, lacking is any explanation of why waited seven months to file a notice of appearance. (b) Olsen’s standing to sue pro se as an assignee of WD has not been and cannot be questioned by 15HVR as a matter of law. 15HVR relies exclusively on an objection made by Co-Defendant Boris Shaljanin (Shaljanin) to the standing of Olsen to bring a derivative action, pro se, on behalf of WD. Apart from suing derivatively, Olsen also sued, pro se, as an assignee of WD based on an assignment that Olsen made to himself as the Operating Manager of WD. Statement of material facts, ¶10. NYSCEF Doc No. 39. Shaljanin did not object to Olsen’s assignee status. Absent from 15HVR’s brief is any argument that Olsen cannot sue pro se as an assignee of WD. This is understandable as under binding precedent an LLC may assign a chose in action even if the reason is to avoid engaging an attorney. NYSCEF Doc. No. 37, in ¶9: "Further, the assignment did not violate N.Y. C.P.L.R. 321 (a), which prohibited a corporation from appearing pro se. The court found that the statutory prohibition did not extend to an assignee of a corporation, despite the fact that the assignment may have been made to circumvent the statutory prohibition against a corporation appearing pro se." Traktman v. New York, 182 A.D.2d 814, 814 (2nd Dept. 1992). Traktman was cited to for this holding in a recent case that ruled that: a corporation or voluntary association such as an LLC can benefit by “prevailing caselaw holds that dismissal of claims pursuant to 321(a) can be avoided by assignment to a different plaintiff.” 2 3 of 6 FILED: GREENE COUNTY CLERK 08/18/2023 10:39 PM INDEX NO. EF2022-527 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/18/2023 Plaintiffs motion to dismiss must be denied. Though it is true that a corporation cannot appear without an attorney subject to CPLR 321(a), prevailing caselaw holds that dismissal of claims pursuant to 321(a) can be avoided by assignment to a different plaintiff (see CPLR § 321(a); Kinlay v Henley, 57 AD3d 219, 220, 868 N.Y.S.2d 62 [1st Dept 2008]; Traktman v City of New York, 182 AD2d 814, 815, 582 N.Y.S.2d 808 [2d Dept 1992]). Here, Anchorage's claims were assigned to NAS (see Def. Aff., Ex. C ¶¶ 4, 5). Accordingly, plaintiffs motion to dismiss defendant Anchorage' counterclaims is DENIED. [Emphasis added.] Anthony T. Rinaldi, LLC v Anchorage Constr. Corp., 2021 N.Y. Misc. LEXIS 153, *6 (2021) (NY Sup, NY Cty, 2021) An LLC is a voluntary association. Thus, CPLR 321(a) must include an LLC under the rubric of corporations and voluntary associations because herein an individual has created a legal entity and invested it with property designating it as the landlord. Monte Carlo, L.L.C. v. Yorro, 195 Misc. 2d 762, 763 WD’s assignment to Olsen is grounded in General Obligations Law § 13-101 states that “[a] ny claim or demand can be transferred,” with exceptions not relevant herein.” Olsen’s representation that he is a lawful assignee of WD has been unchallenged by admissible evidence of anyone with personal knowledge of the facts. An assignment may only be challenged by its assignor, WD. As the other Operating Manager, Frank Castiglione, Sr. died in October 2020, Olsen is the only Operating Manager under the OA. No one could question the validity [**634] of the assignments except the assignors and that they might never do. In re Holden, 271 N.Y. 212, 218 (1936) Accord: Jute v U.S. Bank N.A., 2020 N.Y. Misc. LEXIS 10875, *8 (NY Sup. Queen Cty, 2020) CPLR 321(a) therefore does not bar Olsen appearing pro se as the assignee of WD. (c) The brief of 15HVR is bereft of any meritorious argument of why a default judgment or a summary judgment should not be entered. 1. A default judgment should be issued. Even if 15HVR, had a reasonable excuse for defaulting, which it does not, it has not set forth any evidence in an admissible format of a meritorious defense. Absent same, a default judgment should be granted as no grounds would exist to vacate a default judgment. Even when affidavits are submitted by an individual with personal knowledge of the facts, (not so herein) vacatur of a default judgment has been denied 3 4 of 6 FILED: GREENE COUNTY CLERK 08/18/2023 10:39 PM INDEX NO. EF2022-527 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/18/2023 In order to be relieved of a judgment on the ground of "excusable default" ( CPLR 5015 [a] [1]), a party "must establish that there was a reasonable excuse for the default and a meritorious claim or defense" ( Pekarek v Votaw, 216 AD2d 829, 830; see, Matter of Butchar v Butchar, 213 AD2d 788). Upon reviewing the contradictory affidavits submitted by [*818] third-party defendant's president and counsel in support of its motion to vacate, we agree with Supreme Court that third-party defendant failed to meet its burden of demonstrating a reasonable or justifiable excuse for the delay. Pagano v. U.W. Marx, Inc., 223 A.D.2d 817, 817-818 (3rd Dept, 1996) 2. Alternatively, Olsen should receive a summary judgment against 15HVR. 15 HVR has stated no objection to Olsen’s “Statement of Undisputed Facts” in support of summary judgment.” Silence when there is a duty to speak is generally construed as acquiescence. Motion by plaintiff for summary judgment on the issue of liability against defendants is granted, there appearing no opposition. Velasquez v. City of New York, 2021 N.Y. Misc. LEXIS 2764, *1(NY Sup Ct, Queens Cty, 2021) Once a plaintiff has met its prima facie burden, he is entitled to summary judgment unless the defendant provides a meritorious explanation. Siklos v. Conn, 2019 N.Y. Misc. LEXIS 24069, *4 (NY Sup, Westchester Cty, 2019) Its procedural objection that a summary judgment motion must await joinder is gainsaid by Local Rule 9.0 of Justice Richard Mott’ 9.0 Summary Judgment/Motion to Dismiss Summary judgment motions or motions to dismiss may be made at any time. (d) 15HVR provides no admissible evidence that it conducted “due diligence” before purchasing the real property at issue. Attorney Michael R. O’Donnell (O’Donnell), only recently engaged, was not the attorney for 15HVR in 2016. His conclusory speculation about due diligence by 15HVR before making its purchase and the membership of Olsen in WD is of no probative value. Burke, who was the attorney for 15HVR in 2016, provides no explication of any due diligence efforts on behalf of 15HVR. There is not even an allegation that 15HVR read the Operating Agreement (OA) of WD that explicitly proscribes the sale of any of its real property without the unanimous consent of all Members. Olsen aff., ¶¶55, 56, 57. NYSCEF Doc No. 35. Without such approval, the TA is void. 15HVR was grossly negligent in not investigating the title it was purchasing. 4 5 of 6 FILED: GREENE COUNTY CLERK 08/18/2023 10:39 PM INDEX NO. EF2022-527 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 08/18/2023 Furthermore, the case record is bare of any affidavit of anyone contradicting Olsen’s sworn statement that he never delivered or authorized the delivery of a Transfer Agreement (TA) to anyone and therefore the said TA is void. Olsen retained his membership interest in WD at all times. Olsen has averred that he never agreed to any sale to 15HVR. Olsen aff., ¶ 54. Id. 15HVR points out correctly that Olsen’s citation to Munz v. Laguardia Hosp., 109 AD2d 731, 732 (2nd Dept, 1985), for its persuasiveness, was to the dissent. The case relied upon in Munz was the binding authority of Barton v. County of Monroe, 1983 N.Y. App. Div. LEXIS 17070, *1 (4th Dept.) that held that “The affidavit of plaintiff's attorney, who lacked personal knowledge of the facts, was insufficient to establish a meritorious cause of action.” Accord: Wasielewski v. Town of Cheektowaga, 281 A.D.2d 944, 945 (4th Dept, 2001). Conspicuously absent is any affidavit of facts from a Member or employee of 15HVR. III. Conclusion WHEREFORE, 15HVR’s motion to compel acceptance of its answer should be denied; Olsen’s motion for a default, or alternatively summary judgment, should be granted. Olsen seeks such other and further relief, including general relief, as this Court deems just. Windham, New York August 18, 20231 /s Rey Olsen Rey Olsen, pro se As assignee of Windmont Development, LLC P. O. Box 1114 Windham, NY 12496 (917) 701-1101 wsgny@aol.com 1 15HVR’s opposition brief was E-filed at 8:59 am on 8/18/2023, its return date. 5 6 of 6