Motion to Set Aside or Vacate Judgment, Default or Dismissal in Ben-Zion Alcalay v. Barry Dynkin, Atlas Cybersecurity Llc| Trellis.Law

On March 04, 2022 a Exhibit,Appendix was filed involving a dispute between Ben-Zion Alcalay, and Atlas Cybersecurity Llc, Barry Dynkin, for Special Proceedings - Other (Domestication of Judgment) in the District Court of Nassau County.

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IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
_______________________________________
BEN-ZION ALCALAY
Plaintiff, Case No. 50-2020-CA-012935-MB

vs.

ATLAS CYBERSECURITY, LLC,
a New York Limited Liability Company,
DACS CYBERSECURITY HOLDINGS, LLC,
a New York Limited Liability Company,
BARRY DYNKIN, and BENJAMIN DYNKIN,
Defendants.
_______________________________________/

ORDER ON DEFENDANTS’ MOTION TO SET ASIDE JUDICIAL DEFAULT,
TO DISMISS FOR HAVING FILED A DUPLICATIVE ACTION, AND
IN THE ALTERNATIVE, TO QUASH SERVICE OF PROCESS AND SET AN
EVIDENTIARY HEARING TO CONFIRM THAT PROCESS WAS NOT SERVED
AND ON PLAINTIFF’S MOTION FOR THE ENTRY OF AN ORDER OF FINAL
JUDGMENT

THIS MATTER came before the Court on August 23, 2021 on Defendants ATLAS

CYBERSECURITY, LLC, (“Atlas”) and BARRY DYNKIN (“Barry”) and BENJAMIN

DYNKIN’S (“Benjamin”)(collectively “Defendants”) Motion to Set Aside Judicial Default, to

Dismiss for Having Filed a Duplicate Action and in the alternative, to Quash Service of Process

and Set an Evidentiary Hearing to Confirm that Process Was Not Served (the “Motion”). This

Court conducted an evidentiary hearing on November 1, 2021 and November 3, 2021, and is in

receipt of the Plaintiff’s response to the Motion that was filed on September 6, 2021. Upon

consideration of the Motion and the opposition and based on the testimony elicited by the parties,

the Motion is hereby denied for the reasons stated herein.

I. BACKGROUND

On November 23, 2020, Plaintiff initiated the instant action against Defendants Atlas,

Barry, and Benjamin for damages arising out of alleged misconduct associated with three
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agreements entered into by the parties herein. On January 5, 2021, Defendants Atlas, Barry and

Benjamin were served with the Summons and Complaint at 130 Cooper Drive, Great Neck, New

York 11023 (the “Dwelling” or “130 Cooper Drive”). On January 6, 2021, service was completed

by mailing a copy of the Summons and Complaint to the Dwelling. In the Motion, Defendants do

not contest that the Dwelling was the proper address for service to be effectuated or that the method

of service was improper, only that service never occurred. Thereafter, on January 12, 2021,

Plaintiff filed the affidavits of service for the service on all three Defendants from the process

server, John Savage (“Savage”), with this Court on the Comprehensive Case Information System.

Accordingly, Defendants were obligated to answer or otherwise respond to the Complaint by

February 4, 2021.

On January 22, 2021, prior to the February 4, 2021 deadline for the Defendants to respond

to the Complaint, Plaintiff’s counsel emailed Defendants’ counsel, Gary Rosen (“Mr. Rosen”),

and advised Mr. Rosen that his clients had been served in this action. Mr. Rosen responded to the

email from Plaintiff’s counsel, which stated “Ben‐zion actions in florida” in the subject line, and

at first stated “I do not know what you are talking about. My clients have not been served in any

Florida action and there is no jurisdiction over them. You should stop with the nonsensical filings

already and send me a settlement proposal. You want to waste your time with the orders to show

cause and everything, ok, and i'll keep responding, but our clients are just causing more damage.”

In response, Plaintiff’s counsel emailed Mr. Rosen and stated “Gary, Your clients have

been served and we will proceed with our motions.” Then, Mr. Rosen responded to Plaintiff’s

counsel and stated “in response to an email he received, and stated “Your affidavits of service are

defective for the alleged service on January 5, 2021. There will be a motion to dismiss filed in

Florida for lack of jurisdiction. We are filing an action against Ben-Zion Alcalay in the Eastern

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District of New York and sending for service via AO398. Note that its you who want to litigate

and spend the money.” Although Mr. Rosen acknowledged the purported service upon Defendants,

the filing of affidavits of service in the action, and represented that he did represent the Defendants

with respect to Plaintiff, the Defendants failed to file an answer, move for an extension of time, or

other act with respect to the Complaint by February 4, 2021.

On February 4, 2021, Plaintiff filed an Amended Complaint against the Defendants, which

was served, along with a Summons, on Defendants Atlas, Benjamin and Barry via the United

States Postal Service, addressed to the Defendants at the Dwelling, on that same date. In the

Amended Complaint, DACS Cybersecurity Holdings, LLC (“DACS”)was added as a defendant,

and a summons was issued for DACS by the Clerk. Defendants time to answer or otherwise move

with respect to the Amended complaint expired on February 24, 2021, at which time Defendants

had failed to answer, move for an extension of time, or otherwise respond to the Amended

Complaint.

On April 19, 2021, a photograph of Benjamin was shown to Savage who thereafter

confirmed that the individual he served the Complaint upon for his service on the Defendants, on

January 5, 2021, was Benjamin. In the original affidavits of service, Savage stated that service was

on “John Doe” because Benjamin refused to provide his name, but because Savage was shown the

photograph of Benjamin from Atlas’ website, Savage was able to confirm Benjamin’s identity. At

that time, Savage executed three amended affidavits of service for Atlas, Benjamin and Barry. The

amended affidavits of service for Benjamin and Atlas identified the person served with the

Summons and Complaint as Benjamin and attested that personal service was effectuated upon

Benjamin and Atlas and substituted service for Barry on January 5, 2021.

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On May 5, 2021 Plaintiff filed a Motion for an Order of Default as to Defendants Atlas,

Benjamin and Barry (the “Motion for Default”) and noticed the motion for a hearing before the

Court on May 20, 2021, with service effectuated in compliance with the rules of this Court. On

May 20, 2021, this Court conducted a hearing on Plaintiff’s Motion for Default at which time Mr.

Rosen, appeared on behalf of the Defendants on the zoom hearing. This Court denied without

prejudice the Motion for Default because the affidavits of service did not appear on the Court’s

docket.

Thereafter, on May 20, 2021, the amended affidavits of service that evidenced service on

Defendants were filed with the Court. On May 20, 2021, Plaintiff filed a Renewed Motion for

Entry of Default Judgment (“Renewed Motion for Default”) and noticed the motion for hearing on

June 23, 2021, with service effectuated in compliance with the rules of this Court. On June 23,

2021, this Court conducted a zoom hearing on Plaintiff’s Renewed Motion for Default, which

neither the Defendants nor their counsel appeared or otherwise submitted any opposition to the

motion.

On June 26, 2021, this Court issued an order granting Plaintiff’s Renewed Motion for

Default (“Order of Judicial Default”), which was entered by the Clerk on June 30, 2021. The Order

of Judicial Default was granted upon the following findings of fact: (1) Plaintiff properly filed

affidavits of service for the service of the Summons and Complaint on Defendants; and (2) that no

answer, motion, or other response with respect to the Complaint or Amended Complaint was

submitted by the Defendants.

On July 13, 2021, this Court mailed a copy of the Order of Judicial Default to Defendants

at the address of the Dwelling. On July 16, 2021, the Plaintiff filed a motion for final judgment

after default. Defendants filed the instant Motion on August 23, 2021, 41 days after the mailing.

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On August 24, 2021, Plaintiff filed a Motion for Final Judgment After Default, and noticed the

hearing for October 6, 2021. On August 30, 2021, this Court issued an order setting a hearing for

a case management conference on September 21, 2021. On August 30, 2021, Defendants’ Counsel

also noticed the Motion for a hearing on the Court’s uniform motion calendar on September 14,

2021.

On September 14, 2021, the parties appeared before this Court for the hearing on the

Motion at which time this Court directed the parties to appear for an evidentiary hearing on the

Motion that the Court scheduled for November 1, 2021. On November 1, 2021 and continued on

November 24, 2021, this Court conducted an evidentiary hearing on the instant Motion (the

“Evidentiary Hearing”).

II. FINDINGS OF FACT

Based upon the briefs, exhibits, and affidavits submitted in connection with the Motion and

upon the testimony of Defendant Benjamin Dynkin and process server John Savage, the Court

makes the following Findings of Fact.

A. Service of the Complaint.

1. On December 28, 2020 at 12:28 PM, Savage went to the Dwelling, where Benjamin

and Barry resided and at that time was Atlas’ principal place of business, to effectuate service upon

Defendants Atlas, Benjamin and Barry. A photograph was admitted into evidence with GPS

tracking that supports this finding.

2. On December 28, 2020, Savage was unable to effectuate service upon Defendants.

3. On January 5, 2021 at 8:48 PM, Savage made a second attempt to serve Defendants

at the Dwelling, at which time the lights at the Dwelling were on and the automobile registered to

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Benjamin with the New York State Department of Motor Vehicle along with two other vehicles

was located in the driveway. A photograph was admitted into evidence with GPS tracking that

supports this finding.

4. Upon arriving at the Dwelling, Savage approached the premises, rang the doorbell

and knocked on the door twice. After the second knock, Benjamin approached the door and

removed a piece of cardboard that covered the window in the door. At this time, Savage could see

Benjamin through the window and Benjamin could see Savage. The two made eye contact with

one another and knew each other from a prior service in November 2020 by Savage on Benjamin

involving a New York Supreme Court action.

5. At that time, Savage identified himself as a process server, and stated that his

purpose at the Dwelling was to serve the Summons and Complaint in this action upon the

Defendants.

6. In response to Savage, Benjamin refused to open the door, would not identify

himself, and stated to Savage that he was not accepting service of the papers.

7. Due to Benjamin’s refusal to remove the barrier between Savage and himself,

Savage stated that he was leaving copies of the Summons and Complaint on the doorstep and that

Defendants had been served.

8. Pursuant to Florida law, a process server’s “reasonable attempt to effect personal

service of process upon a person in his own home, when the person reasonably should know the

officer's identity and purpose, cannot be frustrated by the simple expedient of the person closing

the front door in the officer's face and willfully refusing to accept service of process.” Haney v.

Olin Corp., 245 So.2d 671 (Fla. 4th DCA 1971). In this situation, the “mere leaving of suit papers

on a doorstep can become an effective delivery…” Id.

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9. Benjamin knew, or reasonably should have known Savage’s identity and purpose

because (i) on January 5, 2021, Savage identified himself to Benjamin and stated his purpose; and

(ii) prior to the January 5, 2021, service Savage had previously, and recently, served process upon

Benjamin in an unrelated New York state action, which Benjamin acknowledged during his

testimony that he had been served prior to January 5, 2021 by Savage.

10. Having refused to open the door and willfully refusing to accept service, itwas

proper for Savage to leave copies of the Summons and Complaint on the doorstep of the Dwelling

to effectuate service upon Defendants. Haney, 245 So.2d 671 (“Delivery does not require that copy

of summons and complaint be placed in the defendant's hands, nor for that manner, that the

defendant be eve physically touched with the suit papers.”)

11. After he effectuated service on the Defendants, Savage photographed the Dwelling

and the automobiles located in the driveway with his process server GPS system that evidenced

his location and the Dwelling at the time the service was effectuated on January 5, 2021 at 8:48

PM upon the Defendants.

12. On January 6, 2021, service upon the Defendants was completed by the mailing

copies of the Summons and Complaint, in a First Class postpaid properly addressed envelope

marked “Personal and Confidential” in an official depository under the exclusive care and custody

of the United States Post Office in the State of New York.

13. Thereafter, Savage executed affidavits of service for the service he effectuated upon

the Defendants.

14. The affidavit of service for service upon Benjamin correctly attested that on January

5, 2021, Benjamin was personally served at the Dwelling by leaving a copy of the Summons and

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Complaint with John Doe, a person of suitable age and discretion. Savage attested to the affidavit

on January 6, 2021.

15. The affidavit of service for service upon Atlas correctly attested that on January 5,

2021, Atlas was personally served at the Dwelling by leaving a copy of the Summons and

Complaint with John Doe, a person of suitable age and discretion. Savage attested to the affidavit

on January 6, 2021.

16. The affidavit of service for service upon Barry correctly attested that on January 5,

2021, substituted service was effectuated upon Barry, at the Dwelling, by leaving a copy of the

Summons and Complaint with John Doe, a person of suitable age and discretion. (Collectively,

the “Affidavits of Service”)

17. Although Savage was aware of Benjamin’s identity because he had previously

served him in an unrelated action, it was proper for Savage to identify the person served on January

5, 2021, as John Doe as Benjamin refused to confirm his identity at the time service was

effectuated.

18. On April 19, 2021, Plaintiff’s counsel emailed the process server company a

photograph of Benjamin. This photograph was shown to Savage who then confirmed that on

January 5, 2021 the individual he served the Summons and Complaint upon was Benjamin.

Thereafter, Savage executed amended affidavits of service for the service of the Defendants.

19. The amended affidavits of service for Benjamin and Atlas identified the person

served with the Summons and Complaint as Benjamin and attested that personal service was

effectuated upon Benjamin and Atlas on January 5, 2021.

20. Benjamin is an individual authorized to accept service on behalf of Atlas as he was

the manager of the company.

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21. The amended affidavit of service for Barry identified the person served as Benjamin

and attested that substituted service upon Barry was effectuated on January 5, 2021, when Savage

served Benjamin with the Summons and Complaint. (Collectively, the “Amended Affidavits of

Service”).

22. Service upon Barry by delivering a copy of the Summons and Complaint to

Benjamin is proper as both individuals reside at the Dwelling.

23. This Court concludes that the alleged discrepancies in the height and weight notated

on the affidavits of service for Benjamin does not sway this Court that Savage did not serve

Benjamin with the Summons and Complaint as the vantage point from where Savage was when

he served the papers was a step down from where Benjamin was standing as well as he

communicated with Benjamin through a small window in the door. Furthermore, Savage stated

that Benjamin was the individual he served. Further, the Court found Savage to be a credible

witness.

24. The Affidavits of Service and the Amended Affidavits of Service are regular on

their face and are therefore presumptively valid to establish that service of process was properly

effectuated upon Defendants on January 5, 2021. Se. Termite & Pest v. Ones, 792 So. 2d 1266,

1268 (Fla. 4th DCA 2001)(Under Florida law, a certificate of service, which is regular on its face,

is presumptively valid to establish that service of process was properly effectuated).a

25. Accordingly, pursuant to Florida law, Defendants “must present sufficient evidence

to meet [their] heavy burden to impeach the [process server’s] return.” Slomowitz v. Walker, 429

So. 2d 797, 799 (Fla. 4th DCA 1983). The sufficient evidence standard requires the Defendants to

present evidence corroborating the Defendants’ denial of service and the corroborating evidence

must meet the standard of clear and convincing evidence. Id.

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26. The affidavits submitted by Benjamin and Barry, in connection with the Motion,

wherein Benjamin and Barry stated that neither was served on January 5, 2021, is insufficient to

impeach the Affidavits of Service and the Amended Affidavits of Service. Id. (quoting Sarlouis v.

Firemen's Insurance Co., 45 Md. 241, 244 (1876)(“[A] mere denial by a defendant, unsupported

by corporative evidence or circumstances is not enough to impeach the return of [a] process

server.”)

27. Defendants did not present this Court with evidence to corroborate their denial that

service was properly effectuated on them.

28. The only evidence submitted by Defendants to corroborate the denial of service

was the testimony of Benjamin who stated that he did not recall his whereabouts on January 5,

2021 at approximately 8:48 PM or that he was not home at such time.

29. Additionally, the photograph taken by Savage after he effectuated service of the

front of the Dwelling supports his claim that he served Benjamin with the papers as the lights were

on in the Dwelling and all three vehicles were in the driveway, including the vehicle registered to

Benjamin.

30. This Court also heard the testimony from Benjamin that he and his brother, on

January 5, 2021, still remained confined to the Dwelling, including for their employment, except

for random walks because of the pandemic, and they were not leaving the Dwelling to be in public

places such as restaurants and stores.

31. The Court did not find Benjamin’s testimony to be credible that he and Barry would

have been away from the Dwelling on a walk at the time service was effectuated based on the time

of day (that it was nighttime and dark out) as well as it was in the middle of winter in New York

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and Benjamin acknowledged that it would have been cold outside, even though he testified that he

wears a jacket to keep him warm.

32. Benjamin testified that he did not remember when he became aware of this action

or when the Defendants retained Mr. Rosen in connection with this action but he did testify that

the Defendants retained Mr. Rosen in November 2020 for all purposes relating to Atlas and DACS.

33. Benjamin testified that he did not remember how Mr. Rosen became aware that the

Affidavits of Service had been filed in this action as of at least January 22, 2021 when Mr. Rosen

emailed Plaintiff’s counsel regarding the service in this action.

34. Based on the email communication between Mr. Rosen and Plaintiff’s counsel, it

is apparent that Mr. Rosen went onto the Court’s docket and reviewed the affidavits of service in

this action on January 22, 2021 after Plaintiff’s counsel advised him of the service in this action,

as Mr. Rosen at first was unaware of the purported service in his first email but after being advised

of the service he opined on the affidavits of service. Thus, this Court concludes that the Defendants

were aware of this action and the purported service as late as January 22, 2021. The Court finds

Benjamin’s testimony in this regard not to be credible.

35. In finding that much of Benjamin’s testimony was not credible, the Court notes that

many of the salient facts to which Benjamin testified to were not distinctly remembered, and his

testimony was neither precise nor explicit. The Court also did not find Benjamin to be confused;

rather based on much of his testimony, the Court finds and concludes he intentionally attempted

to delay the hearing by providing illogical, irrelevant, and lengthy responses that were not germane

to the inquiry from Plaintiff’s counsel.

36. As such, because of the Court’s significant concerns regarding Benjamin’s

credibility, the Court did not find his testimony to be of such a weight as to produce in the mind

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of this Court a firm belief or conviction, without hesitancy, as to the truth of the allegations

Defendants seek to establish with respect to the service. Slomowitz, 429 So. 2d 797 (setting forth

the standard for clear and convincing evidence). As such, Defendants failed to offer clear and

convincing corroborating evidence to support their contention that they were not served with the

Summons and Complaint on January 5, 2021.

37. Accordingly, Defendants failed to present sufficient evidence to overcome the

presumption that on January 5, 2021, service of the Summons and Complaint was effectuated upon

each Defendant.

38. The Court therefore concludes that, on January 5, 2021, service of process was

properly and validly effectuated upon the Defendants.

B. Service of the Amended Complaint.

39. Having found that Defendants were properly served with process of the Summons

and Complaint on January 5, 2021, service of the Amended Complaint by mail was proper.

Korman v. Stern, 294 So. 3d 918, 920 (Fla. 4th DCA. 2020)(Under Florida Law, “amended

pleadings require only service, not service of process.”)

40. “Service by mail is complete upon mailing”, Fla. R. Jud. Admin. 2.516(b)(2), and

“[a] certificate of service is ‘prima facie proof of such service in compliance with this

rule.’” Korman, 294 So. 3d 918, 921(quoting Fla. R. Jud. Admin. 2.516(f)).

41. On February 4, 2021, Plaintiff’s counsel filed the Amended Complaint that

included a certificate of service, in the form of an Attorney Affirmation of Service, attesting that

on February 4, 2021 copies of the Amended Complaint placed mailed via the United State Postal

Service to the Defendants at the Dwelling (“Certificate of Service”).

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42. The Certificate of Service is prima facie proof that the Defendants were properly

served with the Amended Complaint at the Dwelling.

43. Under Florida law “[w]hen documents are mailed to an addressee, there is a

presumption of receipt.” Camerota v. Kaufman, 666 So. 2d 1042, 1045 (Fla. 4th DCA. 1996). To

rebut this presumption, Defendants must submit “competent evidence to the contrary.” Migliore

v. Migliore, 717 So. 2d 1077, 1079 (Fla. 4th DCA. 1998).

44. Benjamin testified that he did not receive a copy of the Amended Complaint in the

mail and that if he had, he would have either collected it from the mailbox himself or a member of

his small family would have given it to him.

45. Benjamin also testified that at no point did he receive any mailings in the instant

action, including service of the Motion for Default and the Notice of Hearing on the Motion for

Default, until he received a copy of the Order of Judicial Default which was mailed to the

Dwelling, by the Clerk of this Court on July 13, 2021, 41 days later.

46. This Court finds that Benjamin’s testimony lacks credibility as Defendants’ counsel

was aware of this action as early as January 22, 2021 and appeared on behalf of Defendants at the

hearing on the Motion for Default on May 20, 2021, which was also noticed with a certificate of

service that confirmed service on the Defendants by mailing via the United States Postal Service

to the Dwelling.

47. Benjamin’s testimony that he did not receive a copy of the Amended Complaint in

the mail, which the Court does not find credible, is insufficient to rebut the presumptions that

Defendants were served with the Amended Complaint per the Certificate of Service.

48. As such, the Court finds and concludes that the Defendants failed to meet their

burden of rebutting the presumption of receipt.

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49. Therefore, this Court concludes that the Defendants were properly served with a

copy of the Amended Complaint and received it.

C. Motion to Vacate the Default Judgment.

50. On January 22, 2021, Defendants’ counsel emailed Plaintiff’s counsel stating that

the Affidavits of Service filed in the instant action were defective and that Defendants would file

a motion to dismiss in the instant action.

51. The Defendants through their attorney, Mr. Rosen, was aware of this action on

January 22, 2021 and Mr. Rosen reviewed the Affidavits of Service on the same day.

52. This Court finds that Defendants were aware of this action, personally and/or

through their attorney, as of January 22, 2021.

53. As of at least January 22, 2021, Defendants were required to promptly file a

responsive pleading, a motion to dismiss, or a motion to quash service of process upon being

informed of the instant action.

54. Defendants were aware of this action as of at least January 22, 2021, and did not

file the motion to dismiss, a motion to quash service, an answer, or otherwise appear in this action

until May 20, 2021.

55. “To show excusable neglect, the moving party must produce sufficient evidence of

mistake, accident, excusable neglect, or surprise as contemplated by rule 1.540(b) before the

court's equity jurisdiction may be invoked.’” Additionally, under Florida law

“excusable neglect must be proven by sworn statements or affidavits. Unsworn assertions

of excusable neglect are insufficient.” Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla. Dist. Ct. App.

2004).

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56. Defendants did not present sufficient evidence in the form of a sworn statement or

affidavit to demonstrate that their failure to file a responsive pleading, a motion to extend time to

respond to the Complaint or Amended Complaint, or a motion with respect to service of the

Complaint and/or Amended Complaint was the result of excusable neglect.

57. Defendants’ unsworn statements that excusable neglect exists due to Plaintiff

alleged failure to serve the Complaint, the Amended Complaint, Notice of Motion and Notice of

Hearing (1) lack merit; and (2) are insufficient to support a finding of excusable neglect as

Defendants failed to set forth sworn facts to support said conclusions. Further, in this regard the

Court notes that it did not find Benjamin’s testimony regarding failure of service to be credible.

Westinghouse Elevator Co., a Div. of Westinghouse Elec. Corp. v. DFS Const. Co., 438 So. 2d

125, 126 (1983)(“It is not permissible to allege that a defaulting party's negligence is excusable

without setting forth the facts to support such a conclusion.”)

58. Accordingly, Defendants are found to have failed to satisfy their burden of

demonstrating that their failure to file a responsive pleading was a result of excusable neglect.

59. Defendants were aware that they were served as of January 22, 2021 and in default

on May 20, 2021, when Defendants’ counsel appeared at the hearing on the Motion for Default.

60. This Court mailed a copy of the Order of Judicial Default to Defendants at the

Dwelling and Benjamin testified that he received this correspondence from the Court through the

mail on or about July 13, 2021. It is not credible that Defendants would have received this mailing

but no other mailings in this matter.

61. Defendants filed the Motion on August 23, 2021, 41 days after receipt of the Order

of Default that this Court entered against them and 95 days after Defendants’ counsel appeared at

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the hearing on the Motion for Default. The Court does not find this effort to be demonstrative of

the exercise of due diligence.

62. A six-week delay in moving to vacate does not constitute an exercise of due

diligence. Lazcar Int'l, Inc. v. Caraballo, 957 So. 2d 1191, 1192 (Fla. 3rd DCA 2007) (Holding

that Defendants failed to act with due diligence by waiting six weeks to vacate the default judgment

after receiving notice of any default.) Certainly, a delay of 95 days (more than 13.5 weeks) does

not constitute due diligence.

63. Defendants did not provide the Court with persuasive, believable evidence to

support a finding of due diligence, as is required on a motion to vacate a default judgement. Lazcar

Int'l, Inc., 957 So. 2d 1191, 1192 (“It has long been the law of this state that … that swift action

must be taken upon first receiving knowledge of any default” and “that evidence advanced in

support of the due diligence prong of a motion to vacate a default must be sworn”).

64. The only statements advanced by Defendants to support the assertion of due

diligence are found within the Motion. These factual statements hold no evidentiary weight.

Lazcar Int'l, Inc., 957 So. 2d 1191, 1192.(“Unsworn argument of counsel is insufficient to satisfy

the due diligence element of a motion to vacate a default final judgment” and “unsworn

representations by counsel about factual matters do not have any evidentiary weight in the absence

of a stipulation”)

65. As such, this Court finds that Defendants failed to satisfy the due diligence prong.

66. In support of the Motion, Defendants are additionally required to assert a

meritorious defense “either in a pleading or in an affidavit, and a general denial is insufficient to

demonstrate the existence of a meritorious defense.” Geer, 880 So. 2d 717, 720–21.

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67. It is Defendants burden to establish a meritorious factual defense, by setting forth

the “ultimate facts establishing the defense […] in a verified answer, sworn motion, or affidavit,

or by other competent evidence.” Id.

68. The factual defenses set forth by Defendants constitute conclusory assertions which

were unaccompanied by a sworn motion, verified answer, or other competent evidence setting

forth the ultimate facts establishing the defense.

69. Thus, in addition to failing to meet their burden in establishing their entitlement to

have the defaults vacated, Defendants failed to demonstrate that they have meritorious factual

defenses.

70. Based on the foregoing, the Court finds that Defendants failed to demonstrate, (i)

that their failure to file a responsive pleading resulted from excusable neglect, (ii) a meritorious

defense; and (iii) that Defendants acted with due diligence in seeking relief from the default.

D. Dismissal for Filing a Duplicative Action.

71. Defendants contend that Plaintiff filed the instant action on November 23, 2020 and

on January 7, 2021, Plaintiff filed a subsequent action in which it alleged some duplicative

allegations.

72. Defendants’ contention that the instant action must be dismissed in favor of the

later filed action on the grounds that Defendants consent to the later filed action and they filed an

answer in the later filed action is against well settled principals of law of this State. State v.

Lehman, 100 Fla. 1313, 1317, 131 So. 533 (1930)(“is a well-settled general principle of law that

the plea of a prior action pending will abate a later action or suit in the same court...”)

73. It is well settled that under the law of abatement, a prior action may never be abated

in favor of a subsequent action. Wheeler v. Hajianpour, 688 So. 2d 423, 424 (Fla. 4th DCA 1997).

17
FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/04/2022

74. This Court holds that the instant action cannot be dismissed in favor of the

subsequent action filed on November 23, 2020.

III. Order.

Based on the findings of fact and conclusions of law set forth above, it is hereby

ORDERED and ADJUDGED that:

1. The Motion is DENIED in its entirety, including specifically but without limitation

in so far as it seeks:

a. to set aside the Default Judgment;

b. to dismiss the instant action for having filed a duplicative action; and

c. to quash service of process hereby DENIED; and

2. Plaintiff is directed to submit to the Court a proposed final judgment as per the

Plaintiff’s pending motion for the entry of an order of final judgment, which the Court GRANTS.

DONE and ORDERED in Palm Beach County, Florida.

_____

Case Info

Judge

Randysue Marber Track Judge’s New Case

Case No.

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Document Filed Date

March 04, 2022

Case Filing Date

March 04, 2022

County

Parties

AMSALAM, BEN Attorney for the Plaintiff
Atlas cybersecurity LLC Defendant
Barry Dynkin Defendant
Ben-zion Alcalay Plaintiff
DAVIDOFF, JONATHAN M Attorney for the Plaintiff
ROSEN, GARY S Attorney for the Defendant
SHAPERO, DANIELLE SHAYNE Attorney for the Plaintiff
JARED ROSEN Attorney
JOSEPH NOONAN Attorney
JONATHAN MINNEN Attorney
JOHN SAVAGE Attorney
BENJAMIN DVORKIN Attorney
MAX DAVIDOFF Attorney
MICHAEL NOONAN Attorney
MICHAEL BROWN Attorney
DAVID O'MARA Attorney
GLEN KENDALL Attorneys for Plaintiffs

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Exhibit,Appendix: Ben-Zion Alcalay v. Barry Dynkin, Atlas Cybersecurity Llc

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