Motion-Secondary: American Express Travel Related Services Company, Inc. v. Shangri-La Construction Lp

On November 22, 2017 a Motion-Secondary was filed involving a dispute between American Express Travel Related Services Company, Inc., and Shangri-La Construction Lp, for Commercial - Contract in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
â€-- â€”â€â€â€â€â€â€â€
-------------------------------------------------------------------X
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC., Index No. 657060/2017

Plaintiff,
v.

MEMORANDUM OF LAW IN
SHANGRI-LA CONSTRUCTION LP, OPPOSITION TO
Defendant. DEFENDANT'S MOTION TO
VACATE JUDGMENT AND
ALLOW AN UNTIMELY
ANSWER
-------------------------------------------------------------------X

MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT'S MOTION TO VACATE JUDGMENT

1. Plaintiff American Express submits this memorandum of law in opposition to the Order

"Motion"
to Show Cause, with supporting papers, (the "Motion") filed by Defendant Shangri-La

("Defendant"
Construction LP ("Defendant") to vacate a valid judgment entered against Defendant for breach

of a stipulated settlement.

PRELIMINARY STATEMENT

2. An entry of a stipulated judgment is a serious remedy that is warranted when a party has

breached the terms of a settlement that contains a judgment provision. An entry of a stipulated

judgment under CPLR § 3215 (i) is required to abide by contract laws and should only be

invalidated when there is just cause, such as fraud, duress, overreaching or unconscionability.

First, Defendant's Motion to Vacate the Judgment is utterly devoid of any legal reason justifying

its failure to abide by the terms of a stipulation of settlement. Second, Defendant has not even

alleged a basis for, letalone submitted evidence, of a meritorious defense that would invalidate a

stipulated judgment. In Defendant's motion papers, Defendant relies on the fact that Defendant

did not have an attorney review the stipulation nor did ithave an attorney representing itwhen it

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entered into the stipulation. A legal entity is allowed to enter into a contract, under New York

law, without an attorney. If the opposite were to hold true, then businesses across New York

would not be able to enter into valid contracts on their own volition. Third, Defendant further

avers to state that Plaintiff's attorney misled Defendant into signing the stipulation concerning

when the case would be dismissed. This is an absurd allegation as Defendant provides no

evidence that supports this allegation. Further, the stipulation entered into between the parties

contains a paragraph stating when the case would be dismissed. Fourth, Defendant states that

because itfell on hard times that itcould not pay under the terms of the stipulation and because it

is a California company that New York should not have jurisdiction over the matter. Neither of

statements constitute a defense that would invalidate a stipulated judgment. The unaddressed

"defenses"
of Defendant lack a foundation and Plaintiff should not be expected to blindly

respond to unsupported arguments. In short, Defendant's motion lacks any merit, is borderline

frivolous, and fails to meet the even the most liberal of standards provided by the CPLR and

applicable case law that are necessary to vacate this judgment. As such, Defendant's Motion to

vacate the judgment should be denied in its entirety.

3. Defendant also begs of this Court to allow time to answer the complaint seven (7) months

after service of the complaint, five (5) months after notice for the motion for default judgment,

and almost two (2) months after breach of the stipulation. As discussed in detail below,

Defendant provides no valid reason to have the Court grant such a lengthy extension. Further,

Defendant's attempt to ask this Court for an extension of time to answer the complaint is a work-

around in vacating Plaintiff's judgment in the event Defendant's firstposition is denied. As such,

Defendant's request for time to answer the complaint should be denied.

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FACTS NOT IN DISPUTE

4. The underlying lawsuit, case no. 657060/2017, was filed on November 22, 2017.

Defendant was served with a copy of the summons and complaint on November 27, 2017 and in

accordance with CPLR § 3215 (g), a copy of the summons and complaint was sent to Defendant

via first-class mail on December 8, 2017. On February 12, 2018, nearly three months after

Defendant was served, and in light of Defendant's failure to respond in any way to Plaintiff's

complaint, Plaintiff filed a motion to enter a default judgment. Because terms of repayment were

"Stipulation"
reached, a Stipulation of Settlement (hereinafter, "Stipulation"), attached hereto as Exhibit "1",

was filed on March 1, 2018.

5. On April 27, 2018, Plaintiff's attorney filed an Affirmation of Default, with supporting

exhibits, and a request for judgment due to breach of the Stipulation. On May 7, 2018, the Clerk

of the Court entered a judgment against the Defendant.

SETTLEMENT AGREEMENTS ARE FAVORED BY NEW YORK COURTS

6. Defendant's entire motion predicates itself around CPLR 5015 without providing a single

valid reason to invalidate the Stipulation. Defendant avoids this issue entirely because none of

Defendant's supporting case law is relevant to this case. Defendant's entire supporting case law

is premised on either non-appearance default or default by failure to file a responsive pleading

but nothing addresses a Stipulated judgment. This Court, and every other Court in New York,

favor settlement agreements. Stipulations of settlement are favored by the courts and not lightly

cast aside. Hallock v State, 64 N.Y.2d 224 (1984); Matter of Galasso, 35 N.Y.2d 319, 321

(1974); 1420 Concourse Corp. v. Cruz, 135 A.D.2d 371 (2d Dep't 1987); William E. McClain

Realty v. Rivers, 144 A.D.2d 216 (3d Dep't 1988); Furey v. Furey 230 A.D.2d 708 (2d Dep't

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1996) (Settlement agreements will be set aside only where there is cause sufficient to invalidate a

contract, such as fraud, collusion, mistake or accident). Setting aside the Stipulation without just

cause would be a slippery slope that this Court should not extend to this fact pattern.

7. Defendant is required to show cause to invalidate a contract to relieve the Defendant of

the Stipulation that Defendant voluntarily and knowingly entered into with Plaintiff and

Defendant has not done so. As held throughout the State of New York, "[o]nly where there is

cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party

litigation."
be relieved from the consequences of a stipulation made during Hallock v. State of

New York, 64 N.Y.2d 224, 230 (1984); Cohn v. Cohn, 15 A.D.3d 332 (2d Dep't 2005);

Strangolagalli v. Strangolagalli, 295 A.D.2d 338 (2d Dep't 2002); Lesesne v. Lesesne, 292

A.D.2d 507, 508 (2d Dep't 2002). Further, itis the party seeking to set aside the stipulation of

settlement who has the burden of showing that the agreement was the result of fraud, duress, or

overreaching, or that its terms were unconscionable. (See Rubin v. Rubin, 33 A.D.3d 983, 985

[2d Dep't 2006]). Defendant's Motion does not address any reason, valid or invalid, to invalidate

the Stipulation.

8. The judgment issued by the Clerk was based on a breach of a Stipulation; a filing that

does not warrant a responsive pleading by right under the CPLR. As such, the analysis of

Defendant's Motion should end at thispoint and be denied in its entirety because there is nothing

that would invalidate the contract, aka the Stipulation, allowing the judgment to be vacated.

DEFENDANT NOT READING THE AGREEMENT DOES NOT CONSTITUTE FRAUD

9. Defendant falsely states that itrelied on Plaintiff stating this was all that was needed to

dismiss the lawsuit as Plaintiff nor Plaintiff's attorneys ever stated this. See 18, 9 of the Abel

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Affidavit. All conversations the Stipulation were with Ayahlushim Co-
regarding Getachew,

Owner and President for Defendant and Cody Holmes, Director of Finance for Defendant. If

Defendant's co-owner and employee misinformed Andy Meyers that is not a valid defense to

invalidating the Stipulation. In Level Export Corp. v. Wolz, Aiekn & Co., 305. N.Y. 82 (1953) the

Court of Appeals reaffirmed the Metzger v. Aetna Ins. Co. decision holding "that when a party to

a written contract accepts itas a contract he isbound by the stipulations and conditions expressed

not."
in itwhether he read them or Metzger v. Aetna Ins. Co., 227 N.Y. 411, 416 (1920). A mere

reading of the one page Stipulation would make anyone aware of the stipulations and conditions

the Defendant was entering into. The paragraph regarding dismissal of the action is clear and has

zero ambiguity in it.He who signs or accepts a written contract, in the absence of fraud or other

wrongful act on the part of another contracting party, is conclusively presumed to know its

contents and to assent to them. id. at 416. Since there is no fraud or wrongful act on Plaintiff's

behalf, the Stipulation between Defendant and Plaintiff is valid. The Stipulation was executed

before a notary public, one of Defendant's choosing, in the State of California, See Exhibit "1".

If Defendant did not read the terms of the Stipulation then that is Defendant's fault as "[a] party

bound'
who signs a document without any valid excuse for not having read itis 'conclusively by

terms."
its Ferrarella v. Godt, 131 A.D.3d 563, 567-568 (2015), quoting Gillman v. Chase

Manhattan Bank, 73 N.Y.2d 1, 11 (1988).

10. CPLR § 3016 (b) provides as follows:

"Where a cause of action or defense is based upon misrepresentation, fraud,
mistake, willful default, breach of trust or undue influence, the circumstances
detail."
constituting the wrong shall be stated in

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allegations"
11. "Bare of fraud or undue influence are insufficient. Gervasio v. Di Napoli,

126 AD2d 514, 514, 510 N.Y.S.2d 634 (2d Dep't 1987); Pace v. Raisman & Assoc., Esqs., LLP,

95 AD3d 1185, 1189, 945 N.Y.S.2d 118 (2d Dep't 2012). Also, "allegations [that] are wholly

speculative"
lack the required particularity under CPLR 3016 (b). Katz 737 Corp. v. Cohen, 104

AD3d 144, 154, 957 N.Y.S.2d 295 (1st Dep't 2012), lv denied 21 N.Y.3d 864, 995 N.E.2d 1159,

973 N.Y.S.2d 87, 2013 N.Y. Slip Op 84042, 2013 WL 4711225 (2013). Defendant offers no

evidence that any fraudulent misrepresentations were made during any stage of the litigation.

12. Furthermore, "[t]o be 'undue', the influence exerted must amount to mental coercion that

led the [person] to carry out the wishes of another, instead of [his] own wishes, because the

resist."
[person] was unable to refuse or [was] too weak to (Matter of Ryan, 34 A.D.3d 212, 213,

824 N.Y.S.2d 20 [1st Dep't 2006], lv denied 8 N.Y.3d 804, 862 N.E.2d 792, 830 N.Y.S.2d 700

[2007] [internal citation omitted]). "The elements of undue influence are 'motive, opportunity

influence."
and the actual exercise of that undue Matter of Nofal, 35 A.D.3d 1132, 1134, 826

N.Y.S.2d 828 (3d Dep't 2006). Moreover, there must be "evidence that such influence was

utilized."
actually Matter of Walther, 6 N.Y.2d 49, 55, 159 N.E.2d 665, 188 N.Y.S.2d 168

(1959); Matter of Castiglione, 40 A.D.3d 1227, 1229, 837 N.Y.S.2d 360 (3d Dep't), lv denied 9

N.Y3.d 806, 874 N.E.2d 749, 842 N.Y.S.2d 782 (2007); Thea v. Thea, 284 A.D.2d 245, 245-246,

726 N.Y.S.2d 655 (1st Dep't 2001). Finally, "[m]ere speculation and conclusory allegations,

without specificity as to precisely where and when the influence was actually exerted, are

fact."
insufficient to raise an issue of Matter of Walker, 80 A.D.3d 865, 867, 914 N.Y.S.2d 379

(3d Dep't 2011), lv denied 16 N.Y.3d 711, 947 N.E.2d 165, 922 N.Y.S.2d 273 (2011).

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DEFENDANT HAS NO MERITORIOUS DEFENSE

13. Absent a showing of a valid reason to set aside the Stipulation and a rightfully obtained

judgment, Defendant's motion should be dismissed without further reading. Plaintiff however

will address Defendant's other contentions below, albeit they should not be necessary given no

valid reason exists to invalidate the Stipulation. While CPLR 5015 provides the Court with

discretionary power to set aside an entry of a default judgment, itrequires a showing of a

reasonable excuse for the default and a meritorious defense to the underlying action. Defendant

requests that this Court set aside the entry of a judgment, but offers no evidence or a legally

- cause" -
cognizable reason "good for doing so. Defendant's motion also does not address the

fact that this was a stipulated judgment, which requires additional factors for invalidating the

Stipulation and setting aside the judgment.

14. Defendant relies on CPLR § 5015 (a) (1) to state in its Affidavit that "'there is a ...strong

merits'
public policy that actions be resolved on their rather than on default especially where

there is evidence that the default by the defendant was not willful, nor where there is prejudice to

'"
plaintiff.'"
the plaintiff The Stipulation resolved the matter on its merits as terms were reached to end the

litigation process. The judgment was entered due to Defendant not abiding by the terms of the

Stipulation and breaching the Stipulation. Pursuant to the Stipulation, Plaintiff was also bound by

the terms of the Stipulation. Defendant should not be given the opportunity to choose when it

could enforce a contract. Plaintiff would also be severely prejudiced if the Court vacated the

judgment. The CEO of the Defendant stated that the company is experiencing hardship and has

no money to make payments due to Plaintiff, See ¶14 of the Abel Affidavit. As such, every day

of delay makes itmore likely that whatever assets the company may have had will be liquidated

and be made unavailable to Plaintiff. This dissipation of assets will prejudice Plaintiff severely.

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15. Defendant also asserts that itdid not have the money to make the payments under the

Stipulation. Not having money to make payment under a contract is not a legal defense to said

contract.

SIGNING A STIPULATION IS NOT AN APPEARANCE AS DEFINED BY THE CPLR

16. Defendant also wants the Court to extend CPLR 320 to the current case because 1.

Defendant may not have had an attorney when itsigned the Stipulation; and 2. Defendant could

not appear pro se under CPLR § 321 (a).See Eagle Associates v. Bank of Montreal, 926 F.2d

1305, 1309-1310 (2nd Cir. 1991)(ruling that a limited partnership must appear through an

attorney and may not appear through a layperson). The Court explained the rationale behind this

requirement:

a. "The lay litigant frequently brings pleadings that are awkwardly drafted, motions
multiplicative."
that are in articulately presented, proceedings that are needlessly

17. Plaintiff agrees that the Defendant could not appear pro se. However, Defendant

operating without an attorney in signing the Stipulation did not constitute an appearance under

CPLR 320, nor is ita legal defense to the entry of a valid contract. CPLR 320 clearly states that

"the defendant appears by serving an answer or notice appearance, or by making a motion which

answer."
has the effect of extending time to

18. Defendant's attorney misapplies CPLR § 321 (a) to the current situation, because signing

"appearance"
a stipulation of settlement does not give rise to an under CPLR 320. Because it

does not give rise to an appearance, Defendant did not appear pro se in this action. This Court

favors parties entering into stipulations and relieving the Court of the unnecessary burden of

hearing matters that are be settled. By extending CPLR 320 and 321 to Defendant's factually

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insufficient contention would establish a slippery slope beyond normal reach requiring an undue

delay in reaching settlements, and depriving distressed companies of valuable funds, as attorneys

would be required to appear on a company's behalf for the sole purpose of entering into

stipulations. The legislature clearly defined what constitutes an appearance under the CPLR and

Defendant offers no judicial rulings, nor facts, that back an expansion of the current rule.

19. Furthermore, Defendant is a legal entity and was capable of retaining an attorney to

review the Stipulation. Defendant's Affidavit does not state it did not have counsel review the

Stipulation before signing itbut erroneously states that Defendant appeared by the signing of the

Stipulation, $7 of the Andrew Abdul-Wahab Affidavt. In New York, companies are entitled to

enter contracts under their own volition.

A PARTNER OF LIMITED PARTNERSHIP IS ABLE TO BIND THE PARTNERSHIP

20. Defendant's attorney believes that legal business entities cannot enter contracts pro se.

New York, and California alike, both allow limited partnerships to enter into contracts without

attorney representation. Pursuant to PTR § 20 (1) a general partner of a limited partnership can

bind the entity to a contract. Caplan v. Caplan, 268 N.Y. 445 (1935) (Each member of a

partnership has actual or apparent authority to bind all the partners by acts in the course of the

partnership business and ordinarily allare responsible for torts committed in the course of the

joint business); In re Kahane, 6 Misc. 2d 575, 160 N.Y.S.2d 252, (Sup. Ct. Kings Co. Special

Term 1957) (During the existence of a partnership, each member is deemed to be authorized to

transact the whole business for the firm, his acts being treated as the acts of all, and binding on

them). Pursuant to Ca. Corp. Code § 15009, "Every partner is an agent of the partnership for the

purpose of its business, and the act of every partner ... for apparently carrying on in the usual

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partnership."
way the business of the partnership of which he isa member binds the Partnership

Law § 45. The partnership is liable for the acts of its agent based on what the partner causes the

third party to believe. Blackmon v. Hale, 1 Cal. 3d 548 (1970); Partnership Law § 47.

21. In this case, the CEO, Andrew Abdul-Wahab aka Andrew Meyers, of the Defendant

company and CEO for Defendant's general partner, SLI Management Corp., signed the

Stipulation, ¶ 9 of the Andrew Abdul-Wahab Affidavit. A copy of the filed California documents

showing the general partnership nexus between both companies and CEO Andrew Abdul-Wahab

are attached hereto as Exhibit "2". The CEO also entered into the underlying agreement with

Plaintiff, attached hereto as Exhibit "3". Other officers of the Defendant company had

knowledge the CEO was signing the Stipulation, specifically Ayahlushim Getachew, Co-Owner

and President for Defendant and Cody Holmes, Director of Finance for Defendant. A copy of the

email exchanges between Plaintiff and Ms. Getachew and Mr. Holmes is attached hereto as

Exhibit "4". Due to the title of the person who signed the Stipulation and the other officers of the

company having complete knowledge of the Stipulation, prima facie apparent authority to enter

into the Stipulation existed. Greenpoint Coal Docks, Inc. v. Newtown Creek Realty Corp., 5

Misc. 2d 812 (1949); Mencher v. Weiss, 306 N.Y.1 (1953). Neither New York Partnership Law

nor the BCL state that a company cannot enter into a legally binding contract without an

attorney. In fact, BCL § 202 (a) (7) states the exact opposite, the same as the as the above cited

case law, in that it specifically grants a corporation to "make contracts, give guarantees and incur

liabilities..."
The CEO has authority under the BCL to bind SLI Management Corp., general

partner of the Defendant, to the Stipulation.

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THE TIME TO ANSWER HAS EXPIRED AND DEFENDANT HAS NO MERITORIOUS
DEFENSE

22. The Defendant has also moved to vacate the judgment under CPLR § 3012 (d) in order

for itto answer the complaint. This plea is an indirect attack to invalidate the Stipulation and

vacate the judgment against Defendant. If the Defendant is allowed time to answer the complaint

then the Stipulation is invalidated. As discussed above, without sufficient cause, fraud, collusion,

unconscionability, etc.,that shows good cause to invalidate a valid contract, the Defendant's plea

for time to answer should be denied.

23. Defendant does not address in itspapers that this is a stipulated judgment formed under

contract law, but rather moves the Court that it similar to a default judgment that was entered by

the court for nonappearance or a judgment entered for failure to file a responsive pleading to a

motion for summary judgment. Defendant's own motion papers, ¶ 63, state that a reasonable

excuse for the default and meritorious defense is required for the Court to accept an untimely

answer. A Defendant moving to vacate a default judgment under CPLR § 3012 (d) to compel the

acceptance of an untimely answer must establish a reasonable excuse for the default and a

meritorious defense. Palermo v. Rodridquez 255 A.D.2d 567, 682 N.Y.S.2d 602 (2d Dep't

Wells Fargo, N.A. v. 84 A.D.3d 789 (2d Dep't Midfirst Bank v. Al-
1998); Cervini, 2011);

Rahman, 81 A.D.3d 797 (2d Dep't 2011); Peck v. Dybo Realty Corp., 77 A.D.3d 640 (2d Dep't

2010); Alberton Devs., Inc. v. All Trade Enters., Inc., 74 A.D.3d 1000 (2d Dep't NYCTL-
2010);

1997-1 Trust v. Vila, 19 A.D.3d 382 (2d Dep't 2005). The determination of what constitutes a

reasonable excuse is leftto the sound discretion of the court, Abrams v. City of New York, 13

A.D.3d 566 (2d Dep't, 2004); Scarlett v. McCarthy, 2 A.D.3d 623 (2d Dep't 2003); Westchester

Med. Ctr. V. Clarendon Ins. Co., 304 A.D.2d 753 (2d Dep't 2003). As addressed above, no

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reasonable excuse exists for Defendant's default of the Stipulation that would invalidate the

Stipulation.

24. In the event the Court does find a valid reason for Defendant not making payments in

accordance with the Stipulation, Defendant should not be allowed an extension of time to answer

the complaint. Defendant does not provide a sworn denial of service, or proffer specific facts

necessary to rebut the statements in the process server's affidavit for service of the complaint.

Defendant does not present any reason as to why the complaint was never answered; Defendant

does not provide any steps taken to retain an attorney prior to this recent motion, any obstacles

faced in attempting to retain any attorney during the seven month period after service, nor any

reasonable excuse for the delay.

25. The Defendant also did not reply, through an attorney, to the Notice of Motion for

Default Judgment. Seven (7) months have passed since Defendant was served with the complaint

and five (5) months have passed since Plaintiff mailed a Notice of Motion for Default Judgment.

Only after Plaintiff obtained a judgment has Defendant decided to move this court to obtain an

extension to file an answer. Defendant offers no reasonable defense why it could not answer the

complaint. As such, Defendant should not be given time now, after a judgment has been validly

obtained, to file an answer and invalidate the Stipulation.

26. In view of the above, without a reasonable excuse for the inordinate delay in appearing or

answering the complaint and the failure to respond to Plaintiff's motion for leave to enter a

default judgment, the Defendant's pattern is one of willful neglect and default, and the Court

should not provide the Defendant time to filean untimely answer. Mega Const. Corp. v. Benson

Park Assoc., LLC, 60 A.D.3d. 826 (2d Dep't 2009);

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JURISDICTION IS PROPER PURSUANT TO THE CONTRACT

27. Defendant further alleges that jurisdiction is not proper. Under Provision 14, Governing

Law, of the Agreement, Defendant and Plaintiff agreed to be bound a choice of law and forum

clause dictating that New York law and the State of New York will be the sole jurisdiction for

litigating any issue arising from the Agreement. Defendant waived any objection to the filing of

a lawsuit arising out of the Agreement in the State of New York, waived objection to jurisdiction

in the State of New York, and waived any claim that a lawsuit in the State of New York would

be an inconvenient forum. Plaintiff's headquarters is located at 200 Vesey Street, New York, NY

10285 and the Agreement was transmitted to and processed at this location.

28. Further to Plaintiff's argument is that CPLR 302 (a) (1) permits the New York courts to

exercise personal jurisdiction over a non-domiciliary who transacts any business within the state

if the plaintiffs claim arises from the transaction of such business (Opticare Corp. v Castillo, 25

A.D.3d 238, 243 (2d Dep't 2005); CPLR 302. CPLR 302 (a) is a "single act statute [and] . ..

proof of one transaction in New York is sufficient to invoke jurisdiction, even though the

defendant never enters New York, so long as the defendant's activities here were purposeful and

asserted."
there is a substantial relationship between the transaction and the claim Kreutter v.

McFadden Oil Corp., 71 N.Y.2d 460, 467 (1988); see George Reiner & Co. v. Schwartz, 41

N.Y.2d 648, 651-652 (1977); Parke-Bernet Galleries v. Franklyn, 26 N.Y.2d 13, 16-17 (1970);

Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 443, 456 (1965), cert denied

sub nom. Estwing Mfg. Co., Inc. v. Singer, 382 U.S. 905 (1965); Deutsche Bank Sec., Inc. v.

Montana Bd. of Invs., 21 A.D.3d 90 (2005). Defendant availed itselfto the jurisdiction of New

York when it entered into a contractual relationship with Plaintiff and agreed by contract that any

issue could be heard in the State of New York.

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UNRESPONSIVE ARGUMENTS BECAUSE DEFENDANT DOES NOT PROVIDE A
FOUNDATION TO ANSWER

29. Defendant's attorney makes false accusations about Plaintiff's business practices in order

to paint Plaintiff as an aggressor. Defendant's ad hominem argument is based on nothing more

than an appeal for pity that is not based in fact nor backed by legal authority. This

characterization of Plaintiff is not relevant to any valid argument or defense. Plaintiff deals in

factual categories rather than how one feels about the matter. Plaintiff has submitted affidavits

and statements to this Court, as exhibits to its motion for default judgment, addressed to the

Defendant. Defendant did not object to the affidavits, statements, or the underlying Agreement.

Defendant's falsehoods are outlandish and not supported by any fact or statement presented to

this Court.

30. Defendant has not demonstrated any valid meritorious defense to invalidate the

Stipulation. Defendant should not be allowed to file a late answer in this proceeding under CPLR

§ 3102 (d) because no valid meritorious defense arose that would justify the extension of time

nor do defenses raised rise to a level that would invalidate the Stipulation. Case law is well-
any

settled in this area that to invalidate a stipulated judgment, fraud, duress, overreaching or

unconscionability needs to be present. In this matter, none occurred.

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CONCLUSION

Based on the foregoing, Plaintiff respectfully requests this Court to deny the Defendant's

motion in its entirety, deny the Defendant the opportunity to file a late answer, and provide

Plaintiff with any further relief that this court deems just and proper.

ZWICKER & ASSOCIATES, P.C.

Dated: June 18, 2018 /s/ Daniel Moken
Daniel Moken, Esq.
100 Corporate Woods, Suite 230

Rochester, NY 14623

(856) 784-7077
Attorneys for Plaintiff

To: Counsel via ECF

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NEW 34YORK COUNTY CLERK 02:57

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Document Filed Date

June 18, 2018

Case Filing Date

November 22, 2017

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Motion-Secondary: American Express Travel Related Services Company, Inc. v. Shangri-La Construction Lp

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