Preview
FILED: NEW YORK COUNTY CLERK 01/16/2024 04:24 PM INDEX NO. 651902/2023
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/16/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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MICHAEL FELD, : Index No. 651902/2023
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Plaintiff, :
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- against - :
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VICEROY DEVICES CORPORATION (d/b/a :
Deviceroy Corporation) and STEPHEN ELLIS, :
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Defendants. :
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REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFF’S
MOTION FOR A DEFAULT JUDGMENT, TO STRIKE
DEFENDANTS’ ANSWER, AND TO WITHDRAW
CERTAIN CLAIMS WITHOUT PREJUDICE
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ARGUMENT
Plaintiff Michael Feld has established that he is entitled to a default judgment under
CPLR 3215(a) for Defendants’ nearly seven-month delay in filing an Answer. Specifically,
Plaintiff has established (1) proper service of the Summons and Complaint, Affirmation of
Dennis Villasana at ¶¶ 4-5 [NYSCEF_40]; (2) Defendants’ failure to timely answer the
Summons and Complaint, Villasana Aff. at 6-14; and (3) the facts constituting Plaintiff’s claims,
Affidavit of Michael Feld [NYSCEF_47]. Defendants’ opposition provides no good reason for
the Court to overlook Defendants’ failure to timely answer.
Instead, Defendants choose to dissemble, distract, and blame Plaintiff for their own
failure to timely answer. They claim that CPLR 3215 does not apply because they have appeared
in the case in other ways. But Defendants do not get to pick and choose how they participate in
this case. Participating in other aspects of a case does not relieve a party of their duty to timely
answer a complaint. See, e.g., Mannino Dev., Inc. v Linares, 117 AD3d 995, 995 [2d Dept 2014]
(“The appellants' appearance and participation, along with their counsel, at settlement
conferences required for certain residential mortgage foreclosure actions do not provide a
reasonable excuse for their delay in answering.”)
As set forth in the Affirmation of Dennis Villasana, Defendants acknowledged service of
the Complaint on April 18, 2023. By stipulation, the parties agreed that Defendants would
answer by May 23, 2023. If they did not, Defendants agreed that “Plaintiff may pursue default
judgments and/or any other remedies or rights available to them at law.” Villasana Aff, Ex. B
[NYSCEF_42]. Defendants did not answer by May 23. Instead, they waited until May 31 to file
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in the District of Utah a motion for removal. By that date, the Answer was already late and
Defendants were in default.
The District of Utah immediately held that Defendants had shown no reasonable basis for
removal, awarded Plaintiff his costs (which remain unpaid), and remanded the case to this Court.
Defendants then represented to this Court that they would answer the Complaint seven days after
their then-pending motion for reconsideration of the remand order was decided. [NYSCEF_29].
The District of Utah denied that motion on July 20, but Defendants still did not file an Answer by
July 27 and did not do so until December 14, the day before they knew this motion was to be
filed. As pointed out in Plaintiff’s moving brief – and ignored by Defendants – an untimely
answer does not insulate a party from a default judgment under CPLR 3215(a). See, e.g, G.A.
Fleet Assoc., Inc. v Paramount Plumbing Co., Inc, 2021 WL 5027285 [NY Sup Ct, New York
Cty, October 25, 2021](granting default judgment and striking defendant’s untimely answer).
Defendants accordingly cannot establish that CPLR 3215(a) does not apply to their
failure to timely answer the Complaint. Defendants’ resulting attempt to instead manufacture a
“reasonable excuse” for their failure also falls short. Defendants first claim that their counsel had
a “discussion with Plaintiff’s former counsel that they would discuss the timing of an Answer
when the matter of removal had been resolved.” Defendants’ Opposition Brief, p. 2. Defendants
provide no evidence – not even an attorney affirmation – that this “discussion to discuss” ever
took place. But even if it had and, as Defendants claim, it was left open, that would not relieve
Defendants of their obligation under the CPLR to file a timely answer. In any event, the issue of
removal was resolved conclusively by July 20, 2023 at the latest – nearly five months before
Defendants filed their Answer. See Colony Ins. Co. v Danica Group, LLC, 115 AD3d 453, 454
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[1st Dept 2014](rejecting defendants contention that “plaintiff’s conduct lulled it into not
responding”).
Defendants similarly opine that they should be excused from filing a timely Answer
because “Plaintiff’s current counsel never contacted or discussed the filing of an answer prior to
the hearing on December 6, 2023.” Defendants’ Opposition Brief, p. 2. But it was of course not
Plaintiff’s responsibility to get the Defendants to file their Answer. CPLR 320(a) already
required that they do so.
Defendants even argue that this Court should deny Feld’s motion for default because
Defendants have not disobeyed a court order to file an Answer. Defendants’ Opposition Brief, p.
3. But violation of a court order is not a prerequisite to a default judgment under CPLR 3215(a).
Finally, Defendants argue that their Answer and Counterclaims evidence a “meritorious
defense” to the Complaint. But they do not, as they are frivolous on their face. They allege no
facts that would support a defense to the claims here (and certainly provide no such evidence).
Indeed, the counterclaims do not even seek relief for any act Feld committed. Instead,
Defendants claim that they were damaged by the Complaint’s allegations themselves. First, if
these allegations were false and damaging, as Defendants claim, Defendants had eight months to
file a motion to dismiss or even to seal the Complaint but did not do so (and still have not).
Second, as set forth in Plaintiff’s moving papers, those allegations, in any event, are undeniably
protected by an absolute litigation privilege. See Gottwald v Sebert, 40 NY3d 240, 253 [2023].
Defendants can cite to no authority that calls for denial of Mr. Feld’s motion. Four of
Defendants' cases – Caterine v. Beth Israel Medical Center, 290 AD2d 213 [1st Dept 1999], Frye
v. City of New York, 228 AD2d 182 [1st Dept 1996], Dauria v. City of New York, 127 AD2d 459
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[1st Dept 1987], and G.M. Data Corp v Potato Farms, LLC, 2010 WL 9512565 [Sup Ct, New
York Cty 2010] – concern discovery sanctions and are inapposite to this motion for a default
judgment based on a failure to answer. Defendants' other cases are distinguishable. In Frank v.
Martuge, defendant offered "a plausible excuse for her default" and "raised issues of fact
sufficient to establish a reasonable excuse and meritorious defense." 285 AD2d 938, 939 [3d
Dept 2001]. In Martin v. Pitcher, 243 AD2d 1023 [3d Dept 1997], the court reversed an order of
default for failure to appear at hearing, where the defendant had called the court to inform it that
he would be delayed and showed up on the date of the hearing, before court adjourned, albeit one
or two hours late. Id. at 1023.
CONCLUSION
For the foregoing reasons, Plaintiff Michael Feld respectfully requests an order:
1) directing that a default judgment pursuant to CPLR 3215(a) be entered against
Defendants Viceroy Devices Corporation (d/b/a Deviceroy Corporation) and
Stephen Ellis (collectively Defendants) on the Complaint’s First, Second, Fifth,
Eighth, Tenth, Eleventh, Twelfth, and Thirteenth Causes of Action and that an
inquest be scheduled to determine damages;
2) striking Defendants’ untimely and frivolous December 14, 2023 Answer;
3) granting leave for Feld to withdraw without prejudice his Third, Fourth, Sixth,
Seventh, and Ninth causes of action.
Dated: January 16, 2023 IZOWER LEFTON, LLP
New York, New York Attorneys for Plaintiff Michael Feld
By: s / Dennis Villasana
Dennis Villasana
1325 Franklin Ave., Suite 255
Garden City, New York 11530
Tel: 646-448-9011
Fax: 646-304-7071
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Preview
FILED: NEW YORK COUNTY CLERK 01/16/2024 04:24 PM INDEX NO. 651902/2023 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------- X : MICHAEL FELD, : Index No. 651902/2023 : Plaintiff, : : - against - : : : VICEROY DEVICES CORPORATION (d/b/a : Deviceroy Corporation) and STEPHEN ELLIS, : : Defendants. : : -------------------------------------------------------------------- X REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT, TO STRIKE DEFENDANTS’ ANSWER, AND TO WITHDRAW CERTAIN CLAIMS WITHOUT PREJUDICE 1 of 5 FILED: NEW YORK COUNTY CLERK 01/16/2024 04:24 PM INDEX NO. 651902/2023 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/16/2024 ARGUMENT Plaintiff Michael Feld has established that he is entitled to a default judgment under CPLR 3215(a) for Defendants’ nearly seven-month delay in filing an Answer. Specifically, Plaintiff has established (1) proper service of the Summons and Complaint, Affirmation of Dennis Villasana at ¶¶ 4-5 [NYSCEF_40]; (2) Defendants’ failure to timely answer the Summons and Complaint, Villasana Aff. at 6-14; and (3) the facts constituting Plaintiff’s claims, Affidavit of Michael Feld [NYSCEF_47]. Defendants’ opposition provides no good reason for the Court to overlook Defendants’ failure to timely answer. Instead, Defendants choose to dissemble, distract, and blame Plaintiff for their own failure to timely answer. They claim that CPLR 3215 does not apply because they have appeared in the case in other ways. But Defendants do not get to pick and choose how they participate in this case. Participating in other aspects of a case does not relieve a party of their duty to timely answer a complaint. See, e.g., Mannino Dev., Inc. v Linares, 117 AD3d 995, 995 [2d Dept 2014] (“The appellants' appearance and participation, along with their counsel, at settlement conferences required for certain residential mortgage foreclosure actions do not provide a reasonable excuse for their delay in answering.”) As set forth in the Affirmation of Dennis Villasana, Defendants acknowledged service of the Complaint on April 18, 2023. By stipulation, the parties agreed that Defendants would answer by May 23, 2023. If they did not, Defendants agreed that “Plaintiff may pursue default judgments and/or any other remedies or rights available to them at law.” Villasana Aff, Ex. B [NYSCEF_42]. Defendants did not answer by May 23. Instead, they waited until May 31 to file 2 of 5 FILED: NEW YORK COUNTY CLERK 01/16/2024 04:24 PM INDEX NO. 651902/2023 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/16/2024 in the District of Utah a motion for removal. By that date, the Answer was already late and Defendants were in default. The District of Utah immediately held that Defendants had shown no reasonable basis for removal, awarded Plaintiff his costs (which remain unpaid), and remanded the case to this Court. Defendants then represented to this Court that they would answer the Complaint seven days after their then-pending motion for reconsideration of the remand order was decided. [NYSCEF_29]. The District of Utah denied that motion on July 20, but Defendants still did not file an Answer by July 27 and did not do so until December 14, the day before they knew this motion was to be filed. As pointed out in Plaintiff’s moving brief – and ignored by Defendants – an untimely answer does not insulate a party from a default judgment under CPLR 3215(a). See, e.g, G.A. Fleet Assoc., Inc. v Paramount Plumbing Co., Inc, 2021 WL 5027285 [NY Sup Ct, New York Cty, October 25, 2021](granting default judgment and striking defendant’s untimely answer). Defendants accordingly cannot establish that CPLR 3215(a) does not apply to their failure to timely answer the Complaint. Defendants’ resulting attempt to instead manufacture a “reasonable excuse” for their failure also falls short. Defendants first claim that their counsel had a “discussion with Plaintiff’s former counsel that they would discuss the timing of an Answer when the matter of removal had been resolved.” Defendants’ Opposition Brief, p. 2. Defendants provide no evidence – not even an attorney affirmation – that this “discussion to discuss” ever took place. But even if it had and, as Defendants claim, it was left open, that would not relieve Defendants of their obligation under the CPLR to file a timely answer. In any event, the issue of removal was resolved conclusively by July 20, 2023 at the latest – nearly five months before Defendants filed their Answer. See Colony Ins. Co. v Danica Group, LLC, 115 AD3d 453, 454 3 of 5 FILED: NEW YORK COUNTY CLERK 01/16/2024 04:24 PM INDEX NO. 651902/2023 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/16/2024 [1st Dept 2014](rejecting defendants contention that “plaintiff’s conduct lulled it into not responding”). Defendants similarly opine that they should be excused from filing a timely Answer because “Plaintiff’s current counsel never contacted or discussed the filing of an answer prior to the hearing on December 6, 2023.” Defendants’ Opposition Brief, p. 2. But it was of course not Plaintiff’s responsibility to get the Defendants to file their Answer. CPLR 320(a) already required that they do so. Defendants even argue that this Court should deny Feld’s motion for default because Defendants have not disobeyed a court order to file an Answer. Defendants’ Opposition Brief, p. 3. But violation of a court order is not a prerequisite to a default judgment under CPLR 3215(a). Finally, Defendants argue that their Answer and Counterclaims evidence a “meritorious defense” to the Complaint. But they do not, as they are frivolous on their face. They allege no facts that would support a defense to the claims here (and certainly provide no such evidence). Indeed, the counterclaims do not even seek relief for any act Feld committed. Instead, Defendants claim that they were damaged by the Complaint’s allegations themselves. First, if these allegations were false and damaging, as Defendants claim, Defendants had eight months to file a motion to dismiss or even to seal the Complaint but did not do so (and still have not). Second, as set forth in Plaintiff’s moving papers, those allegations, in any event, are undeniably protected by an absolute litigation privilege. See Gottwald v Sebert, 40 NY3d 240, 253 [2023]. Defendants can cite to no authority that calls for denial of Mr. Feld’s motion. Four of Defendants' cases – Caterine v. Beth Israel Medical Center, 290 AD2d 213 [1st Dept 1999], Frye v. City of New York, 228 AD2d 182 [1st Dept 1996], Dauria v. City of New York, 127 AD2d 459 4 of 5 FILED: NEW YORK COUNTY CLERK 01/16/2024 04:24 PM INDEX NO. 651902/2023 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/16/2024 [1st Dept 1987], and G.M. Data Corp v Potato Farms, LLC, 2010 WL 9512565 [Sup Ct, New York Cty 2010] – concern discovery sanctions and are inapposite to this motion for a default judgment based on a failure to answer. Defendants' other cases are distinguishable. In Frank v. Martuge, defendant offered "a plausible excuse for her default" and "raised issues of fact sufficient to establish a reasonable excuse and meritorious defense." 285 AD2d 938, 939 [3d Dept 2001]. In Martin v. Pitcher, 243 AD2d 1023 [3d Dept 1997], the court reversed an order of default for failure to appear at hearing, where the defendant had called the court to inform it that he would be delayed and showed up on the date of the hearing, before court adjourned, albeit one or two hours late. Id. at 1023. CONCLUSION For the foregoing reasons, Plaintiff Michael Feld respectfully requests an order: 1) directing that a default judgment pursuant to CPLR 3215(a) be entered against Defendants Viceroy Devices Corporation (d/b/a Deviceroy Corporation) and Stephen Ellis (collectively Defendants) on the Complaint’s First, Second, Fifth, Eighth, Tenth, Eleventh, Twelfth, and Thirteenth Causes of Action and that an inquest be scheduled to determine damages; 2) striking Defendants’ untimely and frivolous December 14, 2023 Answer; 3) granting leave for Feld to withdraw without prejudice his Third, Fourth, Sixth, Seventh, and Ninth causes of action. Dated: January 16, 2023 IZOWER LEFTON, LLP New York, New York Attorneys for Plaintiff Michael Feld By: s / Dennis Villasana Dennis Villasana 1325 Franklin Ave., Suite 255 Garden City, New York 11530 Tel: 646-448-9011 Fax: 646-304-7071 5 of 5