Application, Motion-Undefined in W. L. an infant under the age of 18 by his f/n/g, JIE LIN, Jie Lin v. Jessica Antonaccio, Michael Chaikin| Trellis.Law

On July 27, 2021 a Exhibit,Appendix was filed involving a dispute between Jie Lin, W. L. An Infant Under The Age Of 18 By His F N G, Jie Lin, and Jessica Antonaccio, Keith Chaikin, Michael Chaikin, for Torts - Other (Strict Liability, Neglige) in the District Court of Suffolk County.

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FILED: SUFFOLK COUNTY CLERK 07/26/2022 07:30 PM INDEX NO. 614361/2021
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
--________ _ ______________________ __--------_____Ç

W.L., an infant under the age of 18 years by his Index No.: 614361/2021
Father and natural guardian, JIE LIN and JIE LIN, individually,

Plaintiff, NOTICE OF MOTION

-against-

Return Date: 3/4/22
JESSICA ANTONACCIO, KEITH CHAIKIN and MICHAEL
CHAIKIN
Defendants.
__.--------------------_____...__________.--------Ç

4"'
Upon the affirmation of ALEXYS M. CARTER, ESQ. affirmed on the day of

February, 2022, upon the exhibits annexed hereto and upon the pleadings and proceedings

heretofore had herein, the defendant, JESSICA ANTONACCIO will move this Court at the

4th
Courthouse located at 1 Court Street, Riverhead, New York on the day of March, 2022, at

9:30 a.m. or as soon thereafter as counsel may be heard:

(a) For an order pursuant to CPLR § 2004 to extend this defendant's time to answer the

complaint; and

(b) For an order pursuant to CPLR § 3012(d), compelling plaintiff to accept this

defendant's Answer; and

fees; and

(d) For such other and further relief as this Court may deem just and proper.

The above-entitled action isfor personal injuries.

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Pursuant to CPLR § 2214, answering "affidavits,if any, and/or Notices of Cross-Motions

are required to be served upon the undersigned at least seven days before the return date of this

motion.

Dated: Mineola, New York
February4,2022

ALEXYS M. .
BONGIORN MONTIGLIO, MITCHELL &
PALMIERI, PLLC
Attorneys for Defendant
JESSICA ANFONACCIO
200 Old Country Road, Suite 680

Mineola, New York 11501

(516) 620-4490
Our File No.: DBY 024922 AJB/AMC

TO: WALKER & MACKENZIE, P.C.
Attorneys for Plaintiff
1650 Sycamore Avenue, Suite 19

Bohemia, New York 11716

(631) 791-5090

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
------- x
W.L., an infant under the age of 18 years by his Index No.: 614361/2021
Father and natural guardian, JIE LIN and RE LIN, individually,

Plaintiff, AFFIRMATION IN
SVPPORT
-against-

JESSICA ANTONACCIO, KEITH CHAIKIN and MICHAEL
CHAIKIN
Defendants.
--------.....-----------...--_.-_____..___._____-..x

ALEXYS M. CARTER, an attorney at law, duly licensed to practice in the State of New

York, hereby makes the following statements under the penalty of perjury:

1. I am an associate with the law finn of BONGIORNO, MONTIOLIO, MITCHELL &

PALMIERI, PLLC attorneys for the defendants, JESSICA ANTONACCIO in the above captioned

matter and as such, I am fully familiar with the facts and circumstances surrounding this matter.

2. This afHrmation is submitted in support of the within motion for an order pursuant to CPLR

§ 2004, CPLR §3012(d) and CPLR § in support of this motion to extend Defendant's time to

answer the complaint and compel plaintiff to accept Defendant's answer provided herein,

together with such further or other relief as this court may deem just and proper.

PROCEDURAL HISTORY

3. This action was commenced by the fding of a Summons and Cornplaint on July 27, 2021.

(Exhibit A). Pursuant to the afMdavit of service, the Summons and Complaint was allegedly served

on this defendant on October 21, 2021. (Exhibit B).

4. During the period that the Summons and Complaint was served and the time our firm

appeared on behalf of the defendant, there were numerous communications between the claims

adjuster and plaintiff s counsel, with a discussion focused on possible resolution of the matter. At

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that time, the adjuster received an extension of time to answer from plaintiff s counsel until January

13, 2022. (Exhibit C).

affirmant'
5. Once the case was assigned to this firm, your s office called and subsequently

emailed correspondence to plaintiff s counsel on January 4, 2021, advising that we would be

appearing for the defendant JESSICA ANTONACCIO and were seeking an extension of time to

answer, without the knowledge of the original extension to January 13, 2022. (Exhibit D). Plaintiff

did not provide the courtesy of a response to those requests for an extension.

6. Thereafter, on January 14, 2022 the answer on behalf of JESSICA ANTONACCIO was

served. (Exhibit E).

7. On January 28, 2022, plaintiff e-filed via NYSCEF a rejection of our answer, stating that the

answer is very late and untimely, despite the fact that there was not motion for default judgment

filedagainst this defendant or any other defendant (Exhibit F).

8. In an effort to avoid motion practice, your affinnant contacted plaintiff s counsel by phone

to discuss the rejection and possible acceptance in lieu of motion practice. I spoke with Meagan

Mackenzie on February 2, 2022. Counsel advised that she had been in settlement negotiations with

the adjuster and no offer was made. As such, they would not accept service of the answer despite

the fact thatno default motion had been filed and the answer was only one (1) day late.

THE PINNTIFF SHOULD BE COMPEI4ED To ACCEPT THE ANSWER OF THE
DEFENDANTESSICA ANTONACCIO

9. When a party fails to serve and filea timely responsive pleading and seeks leave to do so,

it must: (1) provide a reasonable excuse for its delay, and (2) demonstrate a potentially

meritorious defense to the action. HSBC Bank USA, Nat. AssI v. Wider, 101 A.D.3d 683 (2d

Dep't 2012); Ryan v. Breezy Point Coop., 76 A.D.3d 523 (2d Dep't 2010); Ennis v. Lema, 305

A.D.2d 632 (2d Dep't 2003).

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10. CPLR § 2004, provides, in relevant part:

Except where expressly prescribed by law, the
Court may extend the time fixed by any statute, rule
or order for doing any act, upon such terms as may
be just and upon good cause shown, whether the
application for extension is made before or after the
expiration of the time fixed.

11. CPLR §3012(d), provides, in relevant part:

Upon application of a party, the Court may extend
the time to appear or plead, or compel the
acceptance of a pleading untimely served, upon
such term as may be just and upon a showing of a
reasonable excuse for delay or default.

12. It iswithin the trial court's discretion to grant extension of time within which the

defendant can serve their answer. This is particularly true where the plaintiff has not been

prejudiced, there is a possible meritorious defense and lack of willfulness of the part of the

defendant. Moreover, public policy favors resolving cases on the merits. Finkelstein v. Sunshine,

47 A.D.3d 882 (2d Dep't 2008); See also, Jolkovsky v. Legeman, 32 A.D.3d 418 (2d Dep't

2006); Rottenberg v. Preferred Property Management, Inc., 22 A.D.3d 826 (2d Dep't 2005);

Kaiser v. Delaney, 255 A.D.2d 362 (2d Dep't 1998); Robles v. Grace Episcopal Church, 192

A.D.2d 515 (2d Dep't 1993). As such, this defendant should be allowed to appear and defend the

instant action.

13. Where are reasonable excuse isrequired, the determination as to whether or not an

"reasonable"
excuse is is as "sui generis determination to be made by the court based on all

relevant factors, including the extent of the delay, whether there has been prejudice to the

opposing party, whether there has been willfulness, and the strong public policy in favor of

merits."
resolving cases on the Fried v. Jacob Holding, Inc., I10 A.D.3d 56 (2d Dep't 2013),

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citing, Harcztark v. Drive Variety, Inc., 21 A.D.3d 876 (2d Dep't 2005); Zanelli v. JMM

Raceway, LLC, 83 A.D.3d 697 (2d Dep't 2011); Grinage v. City of New York 45 A.D.3d 729

(2d Dep't 2007).

14. Here, as in Fried, the evidence in this matter shows that the purposed default was not

willful, the period of delay was in no way prejudicial to the plaintiffand amounted to a delay of a

mere 13.5 hours. Under the circumstances of this case, and in light of the strong public policy in

favor of deciding matters on their merits, itis respectfully submitted that the Court should accept

excuse"
this defendant's explanation as a "reasonable for its alleged failure to answer the

complaint timely. See also,Gomez v. Trimarchi, 137 A.D.3d 972 (2d Dep't 2016).

15. In Gomez, the Appellate Division, Second Department held that "the Supreme Court did

not improvidently exercise itsdisemtion in determining that the defendant's excuse for the delay

in answering was reasonable, especially since there was no prejudice or willfulness, and in light

merits."
of the public policy in favor of resolving cases on the

16. Defendant, JESSICA ANTONACCIO has a reasonable excuse for not timely responding

to the complaint and the plaintiff has suffered no prejudice in the delayed appearance, as there

has been no default letter sent to this defendant, nor has plaintiffmoved for a default judgment

against thisdefendant or any other defendant.

17. Most importantly, after service of the complaint was made on JESSICA ANTONACCIO,

plaintiff was in consistent contact with the assigned claims adjuster discussing possible

settlement of the matter. See generally, Exhibit C. During those discussions, the claims adjuster

sought an extension of time to answer the complaint. Plaintiff's counsel confirmed, in writing,

that the extension until January 13, 2022 was granted.

18. As soon as the matter was assigned to counsel, we promptly reached out to counsel to

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seek an extension of time to answer the complaint, which plaintiff s counsel failed to respond to.

See Exhibit D. Plaintiff failed to respond to this request and the Answer was served on January

14, 2022 at 1:28 p.m. It was thereafter rejected some two (2) weeks later by plaintiff's counsel

and all subsequent attempts to resolve this issue with plaintiff's counsel have failed. See Exhibit

F. See generally, Carter Aff. of Good Faith annexed.

19. This Defendant should be entitled to defense the case on the merits. This matter must be

fully investigated and resolved on the merits. As such, the plaintiff should be compelled to

accept this defendant's answer.

PLAINTIFF SHOULD BE COMP_ELLED TO_PAY_COSTS AND ATTORNEY'S FEES
DUE TO THEIRFRIVILOUS BEHAVIOR

20. Itis respectfully submitted that based on the foregoing documents, plaintiff s counsel iswell

aware that the complaint against JESSICA ANTONACCIO was received by the carrier and

settlement discussions were ongoing at the time the answer was interposed. There was no

defendant'
reasonable basis to reject this s answer.

21. There is no reason, other than plaintiff's personal feelings, that this defendant's answer

should not be accepted.

22. Furthermore, itis respectfully submitted that the defendant, JESSICA ANTONACCIO, is

attorneys'
entitled to an award of costs and reasonable fees pursuant to CPLR §8303-a, as

counsel for the plaintiff has refused to accept the answer in this action without any reasonable

basis in law or fact. Indeed, CPLR §8303-a provides in pertinent part:

"if in an action to recover damages for personal injury . ..

and such action or claim is commenced or continued by a
plaintiff . . . andis found, at any time during the proceedings
or upon judgment, to be frivolous by the court, the court
shall award to the successful party costs and reasonable
attorneys'
fees . . . in order to find the action . . . to be
frivolous under subdivision (a) of this section, the court

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must find one or more of the following; (i) the action, claim,
counterclaim, defense or cross claim was commenced, used
or continued in bad faith, solely to delay or the
prolong
resolution of the litigation or to harass or maliciously injure

another; (ii) the action, claim, counterclaim, defense or cross
claim was commenced or continued in bad faith without any
reasonable basis in law or fact and cannot be supported by a
good faith argument for an extension, modification or
reversal of existing law. Ifthe action, claim, counterclaim,
defense or cross claim was promptly discontinued when the

party or the attorney learned or should have learned that the

action, claim, counterclaim, defense or cross claim lacks
such a reasonable basis, the court may find that the party or
faith."
the attorney did not act in bad

23. Moreover, the plaintiff was informed by this office when the issue of default was first

addressed, that we were working to get the carrier to assign counsel, whether it be out firm or

another firm, and their patience and professional courtesy in the interim was most appreciated.

(See generally, Carter Aff. of Good Faith annexed).

24. The plaintiff's refusal to accept this defendant's answer is frivolous under CPLR 8303-
§

25. Based on the foregoing, JESSICA ANTONACCIO is entitled to recover reasonable

attorney's fees and costs pursuant to CPLR 8303-a. See Fritze v. Versailles, 158 A.D.2d 669,

551 N.Y.S.2d 854 (2d Dep't 1990). (Thus, the Supreme Court, having promptly found that the

continuation of this action . .. was frivolous, was mandated to grant the application for costs and

reasonable attorney's fees).

26. As such, itis respectfully requested that this Honorable Court award reasonable

attorney's fees and costs to this defendant, together with such other and further relief as this

court deems just, proper and equitable.

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CONCLUSION

27. Based on the foregoing, itis clear that this Defendant did not act willfully and has a

reasonable excuse for interposing a late answer to plaintiff's complaint.

28. Most importantly, there was no prejudice to the plaintiff resulting from the late answer.

Plaintiff never moved for a default judgment against this Defendant, or any of the other

defendants who are currently in default.

29. This case should be resolved on itsmerits, and itis respectfully requested that the Court

grant the motion herein.

30. Moreover, the moving defendant should be awarded costs and attorney's fees due to the

plaintiff's frivolous rejection which caused the need for this motion.

WHEREFORE, itis respectfully requested that the instant motion be granted in its

entirety, and for other and further relief as this Court may deem just and proper.

Dated: Mineola, New York

February 4, 2022

BY:
ALE M. ARTER, E. .
BONGIORN . MONTIGLIO, MITCHELL &
PALMIERI, PLLC
Attorneys for Defendant
JESSICA ANTONACCIO
200 Old Country Road, Suite 680

Mineola, New York 11501

(516) 620-4490
Our File No.: DBY 024922 AJB/AMC

TO: WALKER & MACKENZIE, P.C.
Attorneys for Plaintiff
1650 Sycamore Avenue, Suite 19

Bohemia, New York 11716

(631) 791-5090

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BUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK INDEX No, 614361/2021

WL., an infant under the age of 18 years his Father and Natural Jie Lin and Re
by Guardian,
Lin,individually, .

Plaintiff

-agai1tst-

JESSICA ANTONACCIO, KETTH CHAIKIN and MICHAEL CHAIKIN,

Defendants

- .

NOTICE OF MOTION, AFFIRMATION OF GOOD FALTH &
AFFIRMADON IN SUPPORT

: ICN G CRNO . .
MObft'IOUO
st m:1mu. a -
PA[MFERI, P]K
Annmeys forDefendant
JF.SSICA ANTONACCIO
200 Old Country Road, Sùite 680
Mineola, New York I 1501

(516) 620-4490
Fite Non DBY 024922 AJB/AMC

Attoumps) for
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RECEIVED NYSCEF: 02/04/2022

"A"
EXHIBIT
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SUPREME COURT OF THE STATE OF NEW YORK Index No.:
COUNTY OF SUFFOLK
X Filed:
I an infant under the age of 18 years by his
father and natural guardian, RE LIN and RE LIN, imlividually, SUMMONS

Plaintiff designates Suffolk
Plaintiffs,
County as the place of trial.

-against-
The basis of venue is
Defendant's Residence:
JESSICA ANTONACCIO, KEITH CHAIKIN and MICHAEL 1 Peachtree Court

CHAIKIN, Holtsville, NY

Defendants.

To the above naaned Defendants:

You are hereby sununosed to answer the complaint in this and to a
action, serve copy of
your answer, or ifthe complaint is not served with this summons, to serve a notice of appearance on
the Plaintiff s attomeys within twenty (20) days after the service of this summons exclusive of the
day of service, where service is made by upon you
delivery personally within the state or within
thirty (30) days after completion of service where service is made in other
any manner. In case of
your failure to appear or answer, judgment will be taken against you default
by for the relief
demanded in the complaint

Dated: Ronkonkoma, New York

July 27, 2021

SVETCANA WALKER, ESQ.
WALKER&MACKENZIE, P.C.
Attorneys for Plaintiffs
270 Ronkonkoma Avenue
Ronkonkoma, New York 11779

(631) 791-5090

TO: JESSICA ANTONACCIO
1 Peachtree Comt

Holtsville, NY 11742

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KEITH CHMKIN
1 Peachtree Court

Holtsville, NY 11742

MICHAEL CHAIKIN
18 Garden Road
Sound Beach, NY 11789

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
X
LB an infant under the age of 18 years by his
father and natural guardian, RE LIN and-JiE LIN, individually,

Index No.:

Plaintiffs,
COMPLAINT

-against-

JESSICA ANTONACCIO, KEtTH CHAIKIN and MICHAEL
CHAIKIN,

Defendants.

Plaintiffs, above of the Defendants
named, complaining by their attorneys, WALKER &

MACKENZIE, P.C., respectfully allege, upon information and belief, as follows:

AS AND FOR A FIRST CAUSE OF ACTION

1. At alltimes mentioned herein, there existed premises known and designated as I

Peachtree Court, Holtsville, New York.

2. At all times mentioned herein, Defendant JESSICA ANTONACCIO was an

owner of the aforesaid premises.

3. At all times mentioned herein, Defendant JESSICA ANTONACCIO was a lessor

of the aforesaid premises.

4. At all times mentioned herein, Defendant JESSICA ANTONACCIO was a lessee

of the aforesaid premises.

5. At all times mentioned Defendant
herein, JESSICA ANTONACCIO resided at

the aforesaid premises.

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6. At all times mentioned herein Defendant JESSICA her
ANTONACCIO, agents,

servants, employees and/or licensees operated the aforesaid premises.

7. At all times mentioned herein Defendant JESSICA ANTONACCIO, her agents,

servants, employees and/or licensees managed the aforesaid premises.

8. At all times mentioned herein Defendant JESSICA ANTONACCIO, her agents,

servants, employees and/or licensees maintained the aforesaid premises.

9. At all times mentioned herein Defendant JESSICA ANTONACC10, her agents,

servants, employees and/or licensees controlled the aforesaid premises.

10. At all times mentioned herein Defendant JESSICA ANTONACCIO, her agents,

servants, employees and/or licensees inspected the aforesaid premises.

11. At all times mentioned herein Defendant JESSICA ANTONACCIO, her agents,

servants, employees and/or licensees supervised the aforesaid premises.

12. At all times mentioned herein Defendant JESSICA ANTONACCIO, her agents,

servants, employees and/or licensees repaired the aforesaid premises.

13. At all times mentioned herein, Defendant JESSICA ANTONACCIO was an

owner of a certain dog.

14. At all times mentioned herein, Defendant JESSICA ANTONACCIO was an

owner of a dog named Mac.

15. At all times mentioned herein, Defendant JESSICA ANTONACCIO was an

owner of a Rottweiler dog.

16. At all times mentioned Defendant JESSICA
herein, ANTONACCIO was an

owner of a Rottweiler dog named Mac.

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17. On or about August 3, 2018, Defendant JESSICA ANTONACCIO harbored a

certain dog.

18. On or about August 3, 2013, Defendant JESSICA ANTONACCIO harbored a

certain dog named Mac.

19. On or about August 3, 2018, Defendant JESSICA ANTONACCIO harbored a

certain Rottweiler dog.

20. On or about August 3, 2018, Defendant JESSICA ANTONACCIO harbored a

certain Rottweiler dog named Mac.

21. On or about August 3, 2018, Defendant JESSICA ANTONACCIO harbored the

aforesaid dog at, near or about the aforesaid premises.

22. On or about August 3, 2018, Defendant JESSICA ANTONACCIO controlled the

aforesaid dog.

23. On or about August 3, 2018, Defendant JESSICA ANTONACCIO controlled the

aforesaid dog at,near or about the aforesaid premises.

24. On or about August 3, 2018, Defendant JESSICA ANTONACCIO supervised the

aforesaid dog.

25. On or about August 3, 2018, Defendant JESSICA ANTONACCIO supervised the

aforesaid dog at,near or about the aforesaid premises.

26. On or about August 3, 2013, Defendant JESSICA ANTONACCIO allowed a

certain dog at, near or about the aforesaid premises.

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Case Info

Judge

Stephen Hackeling Track Judge’s New Case

Case No.

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Document Filed Date

July 26, 2022

Case Filing Date

July 27, 2021

County

Parties

BONGIORNO, ANGELO JOSEPH Attorney for the Defendant
CARTER, ALEXYS MARIE Attorney for the Defendant
Jessica Antonaccio Defendant
Jie Lin Plaintiff
Keith Chaikin Defendant
MACKENZIE, MEGAN MAUREEN Attorney for the Plaintiff
Michael Chaikin Defendant
SPINNER, AMANDA ELIZABETH Attorney for the Defendant
WALKER, SVETLANA Attorney for the Plaintiff
W. L. an infant under the age of 18 by his f/n/g, JIE LIN Plaintiff
JAMES BONGIORNO Attorneys for Defendants
Mark Carter Attorney
KENNETH BLATT Attorney
MARY MACKENZIE Attorney

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Exhibit,Appendix: W. L. an infant under the age of 18 by his f/n/g, JIE LIN, Jie Lin v. Jessica Antonaccio, Michael Chaikin

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