Preview
FILED: MONROE COUNTY CLERK 08/25/2022 12:17 PM INDEX NO. E2022004453
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/25/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
_______________________________________________X Index No.: E2022004453
LIBERTAS FUNDING LLC,
Plaintiff, ATTORNEY AFIRMATION
IN SUPPORT OF ORDER TO
SHOW CAUSE
v.
LAWSON CONTRACTING GROUP LLC; LAWSON
PROPERTY GROUP LLC; LC RENTS LLC; LAWSON
CONTRACTING LLC and SHAWN M LAWSON
Defendant(s).
_______________________________________________X
I, MIKHAIL USHER, ESQ., an attorney duly admitted to practice law in the State of
New York, affirms the following under the penalty of perjury: I am the principal of the Firm
USHER LAW GROUP, P.C., and attorney for the Defendants LAWSON CONTRACTING
GROUP LC; LAWSON PROPERTY GROUP LLC; LC RENTS LLC; LAWSON
CONTRACTING LLC and SHAWN M LAWSON, in the instant matter, and as such, I am fully
familiar with all the facts and circumstances hereinafter set forth.
1. This Affirmation is submitted in Support of the Order to Show Cause to Vacate pursuant
to CPLR 5015(a) and CPLR 317 the Default Judgment entered on August 10, 2022
against Defendants.
2. Plaintiff’s Counsel was notified by email on 8/24/2022 to steven@stevenzlaw.com that
the Order to Show Cause will be filed on 08/25/2022 with the Monroe County Supreme
99 Exchange Blvd, Rochester, NY 146141 at 2pm. (See Exhibit A)
3. Prior notice was not given to Steven W. Wells, Esq, as his appearance was entered after
notice was given to Steven Zakharyayev, Esq.
1 of 7
FILED: MONROE COUNTY CLERK 08/25/2022 12:17 PM INDEX NO. E2022004453
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/25/2022
4. On June 9, 2022 Plaintiff commenced the instant action by filing a summons and
complaint. (Exhibit B)
5. Pursuant to the Affidavits of Service filed by Plaintiff, Defendants were served as
follows;
a. LAWSON CONTRACTING GROUP LLC on 07/18/2022 by leaving it with Amy
Leasch at 1 Commerce Plaza, Albany, NY 12260. The Defendant resides and
operates in Arkansas; (See Exhibit C)
b. LAWSON PROPERTY GROUP LLC on 07/18/2022 by leaving it with Amy Leasch
at 1 Commerce Plaza, Albany, NY 12260. The Defendant resides and operates in
Arkansas; (See Exhibit D)
c. LC RENTS LLC on 07/18/2022 by leaving it with Amy Leasch at 1 Commerce
Plaza, Albany, NY 12260. The Defendant resides and operates in Arkansas; (See
Exhibit E)
d. LAWSON CONTRACTING LLC on 07/18/2022 by leaving it with Amy Leasch at 1
Commerce Plaza, Albany, NY 12260. The Defendant resides and operates in
Arkansas; (See Exhibit F)
e. SHAWN M LAWSON on 7/19/2022 by posting at the door of 40 Renea Drive,
Greenbrier, AR 72058, providing the Defendant Shawn Lawson until August 19,
2022 to file an answer or otherwise respond to the complaint pursuant to NY CPLR
320. (See Exhibit G)
f. Additionally, prior to entering the Default Judgment, Plaintiff was to serve the
Defendants with additional notice 20 days before the default judgment pursuant to
2 of 7
FILED: MONROE COUNTY CLERK 08/25/2022 12:17 PM INDEX NO. E2022004453
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/25/2022
CPLR 3215(g)(3), which as per Plaintiff’s affirmation was completed August 1, 2022.
10 days prior to requesting the Clerk Default. (See Exhibit H)
6. On July 10, 2022, Plaintiff filed a request for a Clerk Default and was granted one. (See
Exhibit I)
7. Pursuant to the NYSCEF Docket, there is only a JUDGMENT – CLERK DEFAULT
(PROPOSED) listed, and therefore Defendants were unaware of the entered Judgment.
(See Exhibit J)
8. Additionally, Defendant Shawn Lawson has been in and out of the hospital due to his
numerous health issues and continues to battle these issues as they are still unresolved.
(See Exhibit K)
9. It is well settled that New York Courts prefer to decide cases on their merits as opposed
to a strictly procedural basis. (See Harris v. City of New York, 30 A.D.3d 461, 464 (2d
Dept. 2006)). Courts use their discretion when considering motions to vacate a default
under CPLR § 5015(a)(1) and generally take a liberal approach to vacating defaults
because public policy favors a disposition on the merits (See Bardes v. Pintado, 983
N.Y.S.2d 52, 54 (2d Dep't 2014)).
10. To vacate a default order or judgment under CPLR § 5015(a)(1), the movant must show
a reasonable excuse for the default and a meritorious claim or defense. (See Eugene Di
Lorenzo, Inc., 501 N.Y.S.2d at 10; Deutsche Bank Natl. Tr. Co. v. Abrahim, 121
N.Y.S.3d 904, 905 (2d Dep't 2020)).
11. Courts use their discretion when determining whether there was a reasonable excuse for
the default and consider the circumstances of each case. In making that determination,
3 of 7
FILED: MONROE COUNTY CLERK 08/25/2022 12:17 PM INDEX NO. E2022004453
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/25/2022
the Court considers various factors, including: the length of delay, whether the opposing
party was prejudiced, whether the default was intentional and the strong public policy in
favor of resolving cases on the merits. (See Bank of New York Mellon v. Faragalla, 105
N.Y.S.3d 529, 530 (2d Dep't 2019)).
12. Defendants did not receive any notice of the Summons & Complaint being filed against
them.
13. In regards to the Meritorious Defense, the Defendants herein have several defenses. First,
the agreement (Exhibit L) which was used as a basis for the Plaintiff commencing the
instant action was completely mischaracterized. The agreement was a usurious loan, not
a risk-laden purchase of future receivables as Plaintiff claims. Under Claimant’s
agreement, Claimant placed an ACH daily debit on the Respondent’s bank account,
automatically withdrawing the same daily amount without regard for the Defendant’s
actual sales. The daily payment pursuant to the agreement was supposedly an estimate of
how much the business could afford daily, but the de facto agreement was a usurious
loan that existed solely to get around usury laws and constitute deceptive business
practices, inter alia.
14. Secondly, and in the alternative, Defendant asserts that the Plaintiff is suing for the
wrong amount and has otherwise mischaracterized the amounts owed. Moreover, the
Defendants assert that the Plaintiff breached the agreement, by failing to reconcile the
daily receivables and thereby lending further evidentiary support to the fact that the
agreement in question did not represent a purchase of future receivables, but rather an
unlawful usurious loan. Additionally, the Defendants assert that the Plaintiffs are adding
4 of 7
FILED: MONROE COUNTY CLERK 08/25/2022 12:17 PM INDEX NO. E2022004453
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/25/2022
in addition to the amounts allegedly owed various and legally impermissible fees which
are the punitive in nature and are not reasonably calculated to compensate the Plaintiff
for their actual alleged damages in this case.
15. A motion to vacate a default based on excusable neglect must be made within one year
from when the movant is served with written notice of the entry of the judgment (CPLR
§ 5015(a)(1); Barnett, 131 N.Y.S.3d at 199; Ashley v. Ashley, 33 N.Y.S.3d 270, 272 (2d
Dep't 2016)). This motion is being made well within the time frame allotted to make a
motion to vacate a default judgment based on excusable neglect as the Default Judgment
was only entered weeks ago.
16. In the event this Court finds that Defendants did not demonstrate a reasonable excuse, it
is respectfully requested that the default judgment be vacated pursuant to CPLR 317.
17. Under this section, the moving party is not required to demonstrate a reasonable excuse.
Instead, the movant must show that it did not receive a copy of the summons and
complaint in time to defend the action and that the defendant maintains a meritorious
defense. Geraldo v. Weingarten, 81 AD3d 885, 917 NYS2d 577 (2nd Dept. 2011).
18. In the alternative, pursuant to the foregoing the Defendants herein request a traverse
hearing to determine if service was proper herein where the Plaintiff shall have the
burden of showing that service was proper herein. (See Citibank, NA. v. K.L.P.
Sportswear, Inc., 144 A.D.3d 475, 476 (1st Dep’t 2016); see further Chaudry Const.
Corp. v. James G. Kalpakis & Assocs., 60 A.D.3d 544, 545 (1st Dep’t 2009).
19. No application for the remedy requested herein has been made previously.
5 of 7
FILED: MONROE COUNTY CLERK 08/25/2022 12:17 PM INDEX NO. E2022004453
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/25/2022
20. There is also absolutely no prejudice to Plaintiff upon vacating the default judgment in
this matter. There has been no discovery exchanged, no depositions held, and no court
conferences conducted; nothing has transpired in this action aside from Plaintiffs filing
of the Complaint and subsequent filing for a default judgment, which was filed less than
two weeks ago.
WHEREFORE, for these reasons set forth above, it is respectfully requested this Court
vacate the Default Judgment entered against Defendants LAWSON CONTRACTING GROUP
LC; LAWSON PROPERTY GROUP LLC; LC RENTS LLC; LAWSON CONTRACTING LLC
and SHAWN M LAWSON, pursuant to CPLR § 5015 and CPLR § 317, allow this matter to be
resolved on the merits, and grant such other and further relief as this Court deems just, proper
and equitable.
Dated: Brooklyn, New York
August 24, 2022
Respectfully submitted,
__/s/ Mikhail Usher______
Mikhail Usher, Esq.
USHER LAW GROUP P.C.
1022 Avenue P, 2nd Floor
Brooklyn, NY 11223
Phone.: 718-484-7510
Fax.: 718-865-8566
E-mail: musheresq@gmail.com
Law Offices of Steven Zakharyayev, PLLC
Attorney for Judgment-Creditor
Empire Recover Services, LLC
10 W 37th Street, RM 602
6 of 7
FILED: MONROE COUNTY CLERK 08/25/2022 12:17 PM INDEX NO. E2022004453
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/25/2022
New York, NY 10018
7 of 7
Preview
FILED: MONROE COUNTY CLERK 08/25/2022 12:17 PM INDEX NO. E2022004453 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/25/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE _______________________________________________X Index No.: E2022004453 LIBERTAS FUNDING LLC, Plaintiff, ATTORNEY AFIRMATION IN SUPPORT OF ORDER TO SHOW CAUSE v. LAWSON CONTRACTING GROUP LLC; LAWSON PROPERTY GROUP LLC; LC RENTS LLC; LAWSON CONTRACTING LLC and SHAWN M LAWSON Defendant(s). _______________________________________________X I, MIKHAIL USHER, ESQ., an attorney duly admitted to practice law in the State of New York, affirms the following under the penalty of perjury: I am the principal of the Firm USHER LAW GROUP, P.C., and attorney for the Defendants LAWSON CONTRACTING GROUP LC; LAWSON PROPERTY GROUP LLC; LC RENTS LLC; LAWSON CONTRACTING LLC and SHAWN M LAWSON, in the instant matter, and as such, I am fully familiar with all the facts and circumstances hereinafter set forth. 1. This Affirmation is submitted in Support of the Order to Show Cause to Vacate pursuant to CPLR 5015(a) and CPLR 317 the Default Judgment entered on August 10, 2022 against Defendants. 2. Plaintiff’s Counsel was notified by email on 8/24/2022 to steven@stevenzlaw.com that the Order to Show Cause will be filed on 08/25/2022 with the Monroe County Supreme 99 Exchange Blvd, Rochester, NY 146141 at 2pm. (See Exhibit A) 3. Prior notice was not given to Steven W. Wells, Esq, as his appearance was entered after notice was given to Steven Zakharyayev, Esq. 1 of 7 FILED: MONROE COUNTY CLERK 08/25/2022 12:17 PM INDEX NO. E2022004453 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/25/2022 4. On June 9, 2022 Plaintiff commenced the instant action by filing a summons and complaint. (Exhibit B) 5. Pursuant to the Affidavits of Service filed by Plaintiff, Defendants were served as follows; a. LAWSON CONTRACTING GROUP LLC on 07/18/2022 by leaving it with Amy Leasch at 1 Commerce Plaza, Albany, NY 12260. The Defendant resides and operates in Arkansas; (See Exhibit C) b. LAWSON PROPERTY GROUP LLC on 07/18/2022 by leaving it with Amy Leasch at 1 Commerce Plaza, Albany, NY 12260. The Defendant resides and operates in Arkansas; (See Exhibit D) c. LC RENTS LLC on 07/18/2022 by leaving it with Amy Leasch at 1 Commerce Plaza, Albany, NY 12260. The Defendant resides and operates in Arkansas; (See Exhibit E) d. LAWSON CONTRACTING LLC on 07/18/2022 by leaving it with Amy Leasch at 1 Commerce Plaza, Albany, NY 12260. The Defendant resides and operates in Arkansas; (See Exhibit F) e. SHAWN M LAWSON on 7/19/2022 by posting at the door of 40 Renea Drive, Greenbrier, AR 72058, providing the Defendant Shawn Lawson until August 19, 2022 to file an answer or otherwise respond to the complaint pursuant to NY CPLR 320. (See Exhibit G) f. Additionally, prior to entering the Default Judgment, Plaintiff was to serve the Defendants with additional notice 20 days before the default judgment pursuant to 2 of 7 FILED: MONROE COUNTY CLERK 08/25/2022 12:17 PM INDEX NO. E2022004453 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/25/2022 CPLR 3215(g)(3), which as per Plaintiff’s affirmation was completed August 1, 2022. 10 days prior to requesting the Clerk Default. (See Exhibit H) 6. On July 10, 2022, Plaintiff filed a request for a Clerk Default and was granted one. (See Exhibit I) 7. Pursuant to the NYSCEF Docket, there is only a JUDGMENT – CLERK DEFAULT (PROPOSED) listed, and therefore Defendants were unaware of the entered Judgment. (See Exhibit J) 8. Additionally, Defendant Shawn Lawson has been in and out of the hospital due to his numerous health issues and continues to battle these issues as they are still unresolved. (See Exhibit K) 9. It is well settled that New York Courts prefer to decide cases on their merits as opposed to a strictly procedural basis. (See Harris v. City of New York, 30 A.D.3d 461, 464 (2d Dept. 2006)). Courts use their discretion when considering motions to vacate a default under CPLR § 5015(a)(1) and generally take a liberal approach to vacating defaults because public policy favors a disposition on the merits (See Bardes v. Pintado, 983 N.Y.S.2d 52, 54 (2d Dep't 2014)). 10. To vacate a default order or judgment under CPLR § 5015(a)(1), the movant must show a reasonable excuse for the default and a meritorious claim or defense. (See Eugene Di Lorenzo, Inc., 501 N.Y.S.2d at 10; Deutsche Bank Natl. Tr. Co. v. Abrahim, 121 N.Y.S.3d 904, 905 (2d Dep't 2020)). 11. Courts use their discretion when determining whether there was a reasonable excuse for the default and consider the circumstances of each case. In making that determination, 3 of 7 FILED: MONROE COUNTY CLERK 08/25/2022 12:17 PM INDEX NO. E2022004453 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/25/2022 the Court considers various factors, including: the length of delay, whether the opposing party was prejudiced, whether the default was intentional and the strong public policy in favor of resolving cases on the merits. (See Bank of New York Mellon v. Faragalla, 105 N.Y.S.3d 529, 530 (2d Dep't 2019)). 12. Defendants did not receive any notice of the Summons & Complaint being filed against them. 13. In regards to the Meritorious Defense, the Defendants herein have several defenses. First, the agreement (Exhibit L) which was used as a basis for the Plaintiff commencing the instant action was completely mischaracterized. The agreement was a usurious loan, not a risk-laden purchase of future receivables as Plaintiff claims. Under Claimant’s agreement, Claimant placed an ACH daily debit on the Respondent’s bank account, automatically withdrawing the same daily amount without regard for the Defendant’s actual sales. The daily payment pursuant to the agreement was supposedly an estimate of how much the business could afford daily, but the de facto agreement was a usurious loan that existed solely to get around usury laws and constitute deceptive business practices, inter alia. 14. Secondly, and in the alternative, Defendant asserts that the Plaintiff is suing for the wrong amount and has otherwise mischaracterized the amounts owed. Moreover, the Defendants assert that the Plaintiff breached the agreement, by failing to reconcile the daily receivables and thereby lending further evidentiary support to the fact that the agreement in question did not represent a purchase of future receivables, but rather an unlawful usurious loan. Additionally, the Defendants assert that the Plaintiffs are adding 4 of 7 FILED: MONROE COUNTY CLERK 08/25/2022 12:17 PM INDEX NO. E2022004453 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/25/2022 in addition to the amounts allegedly owed various and legally impermissible fees which are the punitive in nature and are not reasonably calculated to compensate the Plaintiff for their actual alleged damages in this case. 15. A motion to vacate a default based on excusable neglect must be made within one year from when the movant is served with written notice of the entry of the judgment (CPLR § 5015(a)(1); Barnett, 131 N.Y.S.3d at 199; Ashley v. Ashley, 33 N.Y.S.3d 270, 272 (2d Dep't 2016)). This motion is being made well within the time frame allotted to make a motion to vacate a default judgment based on excusable neglect as the Default Judgment was only entered weeks ago. 16. In the event this Court finds that Defendants did not demonstrate a reasonable excuse, it is respectfully requested that the default judgment be vacated pursuant to CPLR 317. 17. Under this section, the moving party is not required to demonstrate a reasonable excuse. Instead, the movant must show that it did not receive a copy of the summons and complaint in time to defend the action and that the defendant maintains a meritorious defense. Geraldo v. Weingarten, 81 AD3d 885, 917 NYS2d 577 (2nd Dept. 2011). 18. In the alternative, pursuant to the foregoing the Defendants herein request a traverse hearing to determine if service was proper herein where the Plaintiff shall have the burden of showing that service was proper herein. (See Citibank, NA. v. K.L.P. Sportswear, Inc., 144 A.D.3d 475, 476 (1st Dep’t 2016); see further Chaudry Const. Corp. v. James G. Kalpakis & Assocs., 60 A.D.3d 544, 545 (1st Dep’t 2009). 19. No application for the remedy requested herein has been made previously. 5 of 7 FILED: MONROE COUNTY CLERK 08/25/2022 12:17 PM INDEX NO. E2022004453 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/25/2022 20. There is also absolutely no prejudice to Plaintiff upon vacating the default judgment in this matter. There has been no discovery exchanged, no depositions held, and no court conferences conducted; nothing has transpired in this action aside from Plaintiffs filing of the Complaint and subsequent filing for a default judgment, which was filed less than two weeks ago. WHEREFORE, for these reasons set forth above, it is respectfully requested this Court vacate the Default Judgment entered against Defendants LAWSON CONTRACTING GROUP LC; LAWSON PROPERTY GROUP LLC; LC RENTS LLC; LAWSON CONTRACTING LLC and SHAWN M LAWSON, pursuant to CPLR § 5015 and CPLR § 317, allow this matter to be resolved on the merits, and grant such other and further relief as this Court deems just, proper and equitable. Dated: Brooklyn, New York August 24, 2022 Respectfully submitted, __/s/ Mikhail Usher______ Mikhail Usher, Esq. USHER LAW GROUP P.C. 1022 Avenue P, 2nd Floor Brooklyn, NY 11223 Phone.: 718-484-7510 Fax.: 718-865-8566 E-mail: musheresq@gmail.com Law Offices of Steven Zakharyayev, PLLC Attorney for Judgment-Creditor Empire Recover Services, LLC 10 W 37th Street, RM 602 6 of 7 FILED: MONROE COUNTY CLERK 08/25/2022 12:17 PM INDEX NO. E2022004453 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/25/2022 New York, NY 10018 7 of 7