Preview
FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
______________________________________________
BEN-ZION ALCALAY
Plaintiff, Index No.: 602826/2022
vs.
ATLAS CYBERSECURITY, LLC,
a New York Limited Liability Company and
BARRY DYNKIN,
Defendants.
_______________________________________________/
MEMORANDUM OF LAW IN REPLY TO DEFENDANTS’ OPPOSITION TO
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT
Plaintiff, Ben-Zion Alcalay (“Plaintiff” or Ben-Zion”) hereby respectfully submits this
memorandum of law in Reply to Defendants’, ATLAS CYBERSECURITY, LLC (“Atlas”) and
Barry Dynkin (“Barry”)(collectively, “Defendants”), Opposition to Plaintiff’s Motion for
Summary Judgment in Lieu of Complaint (the “SJM”).
PRELIMINARY STATEMENT
On December 7, 2021, Plaintiff obtained a final Judgment (the “Final Judgment”)(See
Exhibit “A”) in favor of him and against Atlas and Barry (as well as Benjamin Dynkin who is a ,
in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida (the “Florida
Court”), in the amount of $293,291, plus interest from November 23, 2020 (the “Florida Action”).
On March 4, 2021, Plaintiff commenced the instant action to have the Final Judgment
domesticated. NYSCEF Doc. Nos. 1-24.
Defendants now oppose the SJM and seek an order denying the domestication by making
the same exact arguments Defendants made in the Florida Action which were all expressly rejected
by the Florida Court in its December 5, 2021 Order (the “Vacate Order”)(See Exhibit “G”). The
Vacate Order denied the Defendants’ Motion to Set Aside Judicial Default, to Quash Service of
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Process and to 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 (the “Motion to Vacate”). See
NYSCEF Doc. No. 14; see also Affirmation of Jonathan Davidoff, setting forth the arguments
made by Defendants to the Florida Court and the Florida Court’s findings; see NYSCEF Doc.
Nos. 18 (where the Florida Court made 74 findings of fact in the Vacate Order prior to denying
the Motion to Vacate and granting Plaintiff’s final judgment.)
Contrary to Defendants’ belief, Defendants are not the judge and jury as to their
wrongdoings – they are the tortfeasors. In the Vacate Order, the Florida Court made clear findings
of fact which are binding on, and enforceable in, this Court under the Full Faith and Credit Clause
of the United States Constitution. Matter of Bennett, 84 A.D.3d 1365 (2nd Dep’t 2011). It is
irrelevant that the Defendants disagree with the findings of fact in the Vacate Order as the Florida
Court came to such conclusions and issued its ruling. Findings of fact were made in the Florida
Action, the Motion to Vacate was denied, and Plaintiff was granted a Final Judgment which under
the law of this state provides for Plaintiff to have such order domesticated and this matter not
stayed. Furthermore, the Defendants did not appeal the Final Judgment or the Vacate Order, nor
did the Defendants post a bond or undertaking. Therefore, the instant motion must be granted and
the Final Judgment domesticated.
FACTUAL BACKGROUND
The Court is respectfully directed to the affidavit of Ben-Zion Alcalay, dated March 4,
2022, filed in connection with the SJM, for a resuscitation of the relevant facts, which is
incorporated by reference herein. For a resuscitation of the facts which occurred after March 4,
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2022, the Court is respectfully directed to the accompanying affirmation of Jonathan M. Davidoff,
which is adopted herein as if detailed in this memorandum of law. 1
I. SERVICE WAS PROPERLY EFFECTUATED AGAINST BARRY.
It is unquestionable that Barry was served pursuant to CPLR §308(4) and Defendants’
claim otherwise is nothing more than another one of Defendants’ attempts to evade liability for
their debts by claiming not to have been served with process. 2 This is nothing new.
First, Barry was served at 130 Cooper Drive, Great Neck NY (the “Dwelling”), on May
17, 2022, as set forth in the process server’s, John Savage (“Savage”), affidavit of service (the
“AOS”). See Exhibit “B.” Savage effectuated service by substitution at 4:15 PM on May 17, 2022,
after diligently attempting to personally serve Barry to no avail, and then returned to the Dwelling
later that night at 9:21 to attempt personal service one more time does not lead to Defendants
unsupported conclusion that service was not effectuated at 4:17 PM on May 17, 2022. See Barry-
Affidavit p. 2. Rather, it shows Savage’s diligent efforts to prevent Defendants from making the
very service claims now before the Court. Indeed, Savage was the process server who effectuated
service on the Defendants in the Florida Action, and who testified at the evidentiary hearing, after
which the Florida Court concluded and ruled that Savage properly effectuated service at the
Dwelling and rejected Defendants attempt to deny such. See Exhibit “G.” Savage was also the
1
The legal arguments and relevant law set forth in the memorandum of law in support of the SJM are incorporated by
reference herein as if stated in this reply memorandum. NYSCEF Doc. No. 5.
2
Defendants made the same claim in the Florida Action, which was rejected after a two-day traverse hearing on the
matter. See Exhibit “G.” Defendants also claimed to not have been served with process in the following two actions
pending in the Supreme Court of the State of New York, Nassau County, commenced by 18BlackBears, LLC, a limited
liability company owned by Plaintiff’s two sons: (1) 18BLACKBEARS LLC v. DACS CYBERSECURITY HOLDINGS,
LLC, et al., Index No.: 612875/2020 (the “DACS Action”)(NYSCEF Doc. No. 139)(“Defendants were not personally
served pursuant to New York Civil Practice Rules and Laws” and as such “the Amended Complaint … should be
dismissed); and (2) 18BLACKBEARS LLC suing derivatively on behalf of DACS CYBERSECURITY HOLDINGS LLC
v. Atlas Cybersecurity, LLC et al., Index No. 609663/2021 (the “Atlas Action”)(NYSCEF Doc. No. 48)(“Respondents
were not personally served pursuant to New York Civil Practice Rules and Laws” and as such “the Petition … should
be dismissed).
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process server who served Defendants at the Dwelling in the DACS Action and the Atlas Action.
See Exhibit “D.”
Knowing firsthand of Defendants continuous and baseless claims regarding his service
attempts, Savage went to the Dwelling to attempt personal service an additional time after he had
already effectuated substituted service upon Barry. In fact, anticipating Defendants’ deceitful
games, Savage made sure to document his visits to the Dwelling. See Exhibit “E.” The photographs
taken by Savage with his process server GPS system corroborate the facts attested to in the AOS
by demonstrating Savages location at the Dwelling at same times that service was attempted and
effectuated on May 17, 2022. Id. 3 The photographs are conclusive evidence that Savage served
Barry at the Dwelling on May 17, 2022, and that Benjamin’s claim otherwise, and his theory
offered to support such, are flat out falsities. Moreover, Barry’s conclusory and unsubstantiated
denials of service are insufficient to rebut to presumption of proper service created by the AOS.
See ACT Prop., LLC v. Ana Garcia, 102 AD3d 712 (2nd Dept 2013)(“a process servers sworn
affidavit of service is prima facie evidence of proper service”). The photographs establish that the
vehicles used by Barry are present in the photographs when Savage attempted to and effectuated
service. Simply put, the Defendants attempt to evade service of every action by merely not opening
the door to be served. The Defendants hide behind the closed door, which is why New York
authorized service by nail and mail after three attempts of service at a residence of a defendant.
3
Although Defendants do not claim that substituted service upon Barry was improper, only that it did not occur, it
should be noted that the photographs demonstrate Defendants attempt to once again evade personal service. The
photographs evidence that each time Savage was at the Dwelling, on May 17, 2022, the same three vehicles were in
the driveway of the Dwelling that were in the driveway when Savage served Defendants in the Florida Action. See
See Exhibit “F.”; NYSCEF Doc. No. 50 (where Barry’s brother Benjamin Dynkin testifies that the vehicles in the
photographs annexed hereto as See Exhibit “F” his family’s vehicles in the driveway of the Dwelling). In the Florida
Action, the Florida Court found Savage to be a credible witness and that “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.”
See NYSCEF Doc. No. 18 ¶29.
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Second, Defendants’ contention that service was not properly effectuated upon Barry
because the amended summons was never set to Barry at the Dwelling is also meritless. Defendants
do not assert that the amended summons was not mailed according to the requirements set forth in
CPLR §308(4) but only that the amended summons was not sent to Barry “at his lack known
residence” because the affidavit of mailing (the “AOS”)(See Exhibit “C”) states that the mailing
was address to “130 Cooper Drive, Great Neck, NY 11020” and because the “address has the
wrong zip code, [] it was never delivered to” Barry. See Opposition p. 2. Defendants’ claim that
service was not effectuated because the zip code on the mailing was improper pursuant to what
was stated in the AOS is blatantly wrong.
Where the address on a mailing is otherwise correct “use of the wrong zip code [is]
insufficient to establish that service was inadequate.” Zwicker v. Emigrant Mortg. Co., 91 A.D.3d
443 (2012). In JP Morgan Chase Bank, Nat. Ass'n v. Bergen, 57 Misc. 3d 1214(A)(2017) the court
found the same. In JP Morgan, the defendant sought to vacate a default judgment entered against
her by claiming in an affidavit that service was improper because she was never personally served
with the summons and complaint and that she was not served pursuant to CPLR §308(4) because
the mailing “was directed to an address containing the wrong zip code” and as such she did not
receive the mailing. Id. The JP Morgan court rejected the defendant’s argument finding that
although directed to the wrong zip code, the mailing was addressed to the proper address and
because the defendant did not dispute that she lived at that address service was proper. The court
further noted that the defendant’s affidavit in sum and substance only contained a general denial
of service and receipt of the mailing which was insufficient to both (i) rebut the prima facie
presumption of proper service raised by a process servers sworn affidavit; and (ii) require a hearing
on the issue of service. Id. (citing U.S. Bank, NA v. Arias, 85 AD3d 1014 (2nd Dept 2011).
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The facts in the instant matter are completely analogous to the facts in JP Morgan. Here,
Barry claims that CPLR §308(4) service was improper because the mailing contained the wrong
zip code even though the address on the mailing, as stated in the AOS, was proper. ACT Prop.,
102 AD3d 712(“a process server’s sworn affidavit of service constitutes prima facie evidence of
proper service.”) Barry does not contend that he doesn’t live at 130 Cooper Drive, Great Neck NY.
As such, it is entirely irrelevant that the mailing contained the wrong zip-code. Moreover, Barry’s
affidavit contains nothing more than bare conclusory and unsubstantiated denials of receipt of the
amended summons which is insufficient to rebut the presumption of proper service created by the
process server’s affidavit. US Natl. Bank Assoc. v. Melton, 90 AD3d 742 (2nd Dept 2011). For
this reason, Barry is also not entitled to a hearing on the issue of service. Arias, 85 AD3d 1014.
Importantly, Barry only claims not to have received the amended summons sent on May
23, 2022 (i.e. service affirmed by AOS). See Opposition p. 2. However, the service affirmed by
the AOS was for service pursuant to CPLR §3215. On May 17, 2022, service pursuant to CPLR
§308(4) was completed when Savage mailed a true copy of the “AMENDED SUMMONS W/
AMENDED NOTICE OF MOTION TO SUPPORT OF SUMMARY JUDGMENT IN LIEU OF
COMPLAINT, NOTICE OF EFILING, ATTORNEY AFFIRMATION IN SUPPORT OF MEMO
OF LAW AND ALL SUPPORTING EXHIBITS” pursuant to the statutory mailing requirements
as affirmed the AOS filed with this Court on May 20, 2022. See Exhibit “B.” (emphasis in
original). Barry NEVER CLAIMS, either in his affidavit or in the opposition, that he did not
receive the CPLR §308(4) mailing effectuated by Savage on May 20, 2022. In fact, the mailing
effectuated pursuant to CPLR §308(4) is never mentioned in Defendants papers. 4 As such, CPLR
4
Even if this Court were to apply the allegations set forth in the Barry-Affidavit to rebut receipt of the CPLR §3215,
mailing raised by the AOS (See Exhibit “C”), to rebut the receipt of the CPLR §308(4) mailing created by the AOS
(See Exhibit “B”), it must find that Barry’s conclusory and unsubstantiated denials of receipt are insufficient to rebut
the presumption of service created by the AOS.
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§308(4) service of process was properly effectuated upon Barry rendering personal jurisdiction
over Barry proper. Id. 5
II. A STAY OF THE PROCEEDINGS IS NOT WARRANTED.
Defendants request that these proceedings be stayed pending a conclusion of an appeal of
a non-final order in the Florida Action is absolutely ludicrous, unwarranted and shows the extent
of the Defendants’ desperation that this Court not enter the domestication of the judgment and
prohibit the Plaintiff from executing on his judgment.
Florida Rule of Appellate Procedure 9.310 governs the issuance of stays pending an
appeal. Rule 9.310(b)(1) provides for an automatic stay of a judgment that is solely for the
payment of money upon the posting of a good and sufficient bond, defined as a “bond equal to the
principal amount of the Judgment plus twice the statutory rate of interest on Judgments on the total
amount on which the party has an obligation to pay interest.” The stay only goes into effect upon
the posting of the bond. Taplin v. Salamone, 422 So. 2d 92 (Fla. 4th DCA 1982). Defendants did
not post the required undertaking with the Florida Court and cannot seek to circumvent the Florida
Rules of Appellate Procedure by seeking to stay the domestication of the Florida Final Judgment
through this Court.
Florida Rule of Appellate Procedure 9.310 provides that an appeal from a final order or
judgment must be commenced with the clerk of the issuing tribunal within 30 days. On June 23,
2021, the Florida Court entered an Order granting Plaintiff a Default Judgment against Defendants
(the “Default Judgment”). See Exhibit “H.” Defendants did not appeal the Default Judgment and
on December 5, 2021, the Florida Court entered the Vacate Order, denying Defendants Motion to
5
Notably, although the AOS contains the improper zip code, it contains the proper address of the Dwelling and thus
service of process was proper. See Zwicker, 91 A.D.3d 443
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Vacate the Default Judgment. See Exhibit “G.” Defendants did not appeal the Vacate Order. Then
on December 7, 2021, the Florida Court entered the Final Judgment “in the amount of $293,291.40
plus statutory interest from November 23, 2020”. See Exhibit “A.” Defendants did not appeal the
Final Judgment and the 30-day time limit for them to do so has passed. Thus, the time for the
Defendants to appeal either of the substantive and final orders (the order of default and the final
order, as well as the motion denying the Defendants’ request to vacate the default judgment) has
expired and cannot be recaptured. Those decisions are final and this Court cannot sit as an
appellate court and review those decisions for any errors or otherwise to adjudicate the merits of
those decisions and orders.
The “AMENDED ORDER ON PLAINTIFF’S MOTION FOR FINAL JUDGMENT”,
entered by the Florida Court on February 16, 2022, did not change the amount of the Final
Judgment ($293,291.40) but simply (i) calculated the interest owed on the Final Judgment entitling
Plaintiff to a final Judgment in the amount of $308,447.15; and (ii) directed Defendants to
complete a fact information sheet (the “Amended Final Judgment”). See Exhibit “I.” (emphasis in
original title) Thus the Amended Final Judgment and the Final Judgment were entirely consistent.
On February 17, 2022, the Florida Court stayed the Florida Action and “vacated the
Amended Order on Plaintiff’s Motion for Final Judgment”. See Exhibit “J.” Thereafter, on May
15, 2022, the Florida Court issued an order which (i) lifted the stay as to Atlas and Barry; (ii)
expressly ordered that “The Amended Order on Plaintiff’s Motion for Final Judgment [i.e. See
Exhibit “I”] is vacated”; and (iii) expressly ordered that the “Final Default Judgment entered on
December 7, 2021, […] remains in full force and effect” (the “Reinstatement Order”). See Exhibit
“K.”
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Despite the clear and unambiguous language of the Reinstatement Order – Defendants
somehow contend that there are two competing final judgment – the Final Judgment entered on
December 7, 2021 and the Amended Order on Plaintiff’s Motion for Final Judgment entered on
February 16, 2022. See Barry-Affidavit ¶10. This is not so, and Defendants’ argument that
domestication of the Final Judgment would be a violation of due process “when the Florida Court
is currently taking up the question of which final judgment is operative” is absurd, but more
importantly it is meritless and frivolous. Such argument is merely an attempt to delay the
inevitable, which can only be accomplished if the Defendants bond and/or obtain an undertaking.
The Florida Court has already determined such and Defendants no merely attempt to create
a smoke screen. The Reinstatement Order, could not have been clearer by (i) using the exact titles
bolded, underlined, and centered on the top of each Judgment; (ii) stating the date the Final
Judgment which is “in full force and effect” was issued; and (iii) the judge (Judge Coates) that the
Final Judgment was issued by.
Defendants’ argument is even more absurd given that the Amended Order on Plaintiff’s
Motion for Final Judgment was issued by Circuit Court Judge Scott Kerner, who succeeded
Judge Coates in the Florida Action. How the Florida Court could have been any clearer and
unambiguous is perplexing. The Final Judgment entered by Judge Coates on December 7, 2021
(see Exhibit “A”) is the only final Judgment that exists against Defendants. The Amended Order
on Plaintiff’s Motion for Final Judgment issued by Judge Kerner on May 13, 2022 was vacated.
It is clear from explicit terms of the Reinstatement Order, and it was made clear again when the
Florida Court granted Plaintiff’s motion on June 8, 2022, which directed and required the
Defendants to complete a fact information sheet – a directive not ordered in the Final Judgment
but ordered only in the Amended Order on Plaintiff’s Motion for Final Judgment (the “Fact Sheet
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Ruling”). Thus, the Fact Sheet Ruling was issued because the only final judgment in the Florida
Action is the Final Judgment which did not order Defendants to complete the fact information
sheet. If the Amended Final Judgment was in any way shape of form still in effect, the Fact Sheet
Ruling would have been unnecessary and not had.
It is also notable that in Hospital Service Plan of New Jersey v. Warehouse Production &
Sales Employees Union, the Second Department determined that a judgment rendered in a
sister State which is filed in this State pursuant to CPLR article 54 is entitled, under the principles
of full faith and credit, to enforcement together with the rate of interest applicable in the State in
which it was originally rendered. 76 A.D.2d 882 (2nd Dept 1980). Thus, even under Defendants’
(wrong and absurd) theory that the Final Judgment and the Amended Final Judgment are
competing judgments it makes no difference which Judgment is in effect. As mentioned above,
the only difference between the Final Judgment and the Amended Final Judgment is that the Final
Judgment states that Plaintiff was granted a Final Default Judgment “in the amount of $293,291.40
plus statutory interest from November 23, 2020” (see Exhibit “A”) and the Amended Final
Judgment simply calculates what that interest was as of that date (as interest continues to accrue
on the judgment). See Exhibit “I.” Thus, if the Amended Final Judgment is in effect, upon
domestication of such by the Court, this Court need not calculate the interest owed. However, since
the Final Judgment requires domestication, this Court must calculate the interested owed at “the
rate of interest applicable in the State” of Florida (as the Florida Court did in the Amended Final
Judgment). Hospital Service, 76 A.D.2d 882.
As the time to appeal the Final Judgment elapsed on or about January 7, 2022, Defendants
cannot now appeal the Final Judgment that Plaintiff seeks to domesticate in this action. The
insinuation that Defendants can do so by appealing the Reinstatement Order finding that the Final
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Judgment “remains” in full force and effect is absurd and is merely an attempt to circumvent the
appellate rules which govern the Florida Action (and this proceeding). Plaintiff is entitled to have
the Final Judgment domesticated as their appeal in Florida did not result a stay given that
Defendants did not post a bond or undertaking as is required by Florida Rules of Appellate
Procedure, Rule 9.310. “New York is required to give the same preclusive effect to a judgment
from another state as it would have in the issuing state, and it is precluded from inquiring into the
merits of the judgment” Balboa Capital Corp. v. Plaza Auto Care, Inc., 178 A.D.3d 646 (2nd Dept.
2019)(internal citations and quotations omitted). If Plaintiff attempted to collect on the Final
Judgment in Florida, he would be entitled to, as the Judgment has a preclusive effect, and the
Defendants appeal did not stay anything preventing such. Taplin, 422 So. 2d 92 (the stay only
goes into effect upon the posting of a sufficient bond). As such, this Court must treat Plaintiff’s
right to enforce his judgment and seek collection efforts in the same manner. This Court must
permit the domestication of the Final Judgment, that “remains in full force and effect.” See Exhibit
“K.”
III. THE FINAL JUDGMENT IS A VALID JUDGMENT ENTITLED TO
DOMESTICATION UNDER THE CPLR AND FULL FAIR AND CREDIT
CLAUSE.
As stated by the Supreme Court of the United States, it is well settled that:
Under the Full Faith and Credit Clause, a state may not disregard
the judgment of a sister state because it disagrees with the reasoning
underlying the judgment or deems it to be wrong on the merits; on
the contrary, the Full Faith and Credit Clause precludes any
inquiry into the merits of the cause of action, the logic or
consistency of the decision, or the validity of the legal principles
on which the judgment is based.
V.L. v. E.L., 577 U.S. 404 (2016)(emphasis added). Thus, “[a]bsent a challenge to the jurisdiction
of the issuing court, New York is required to give the same preclusive effect to a judgment from
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another state as it would have in the issuing state, and it is precluded from inquiring into the merits
of the judgment” Balboa Capital, 178 A.D.3d 646. Defendants seek this Court to defy the express
mandates of the United States Constitution, the United States Supreme Court, and the unanimous
precedent in this State, by inquiring into the merits of the Florida Action, the logic and consistence
of the Florida Court’s decision, and the validity of the legal principals upon which the Final
Judgment is based.
To be sure, in the Opposition, Defendants state that this Court should dismiss the instant
motion because (ii) “there were and are meritorious defenses to the Florida action”; and Defendants
had “a reasonable excuse for not having answered the complaint in Florida, which was due to
failure to serve the summons and complaint under Florida and New York law.” See Opposition
¶14. In the Vacate Order, the Florida Court expressly found that (i) “Defendants failed to
demonstrate that they have meritorious factual defenses” (see Exhibit “G” ¶ 69); and (ii)
Defendants “statements that excusable neglect exists due to Plaintiff’s 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” (Id. ¶57) and that “Service upon
Barry by delivering a copy of the Summons and Complaint to Benjamin is proper as both
individuals reside at the Dwelling” and that “on January 5, 2021, service of process was properly
and validly effectuated upon the Defendants.” Id. ¶38.
Defendants are not permitted to relitigate the legal or substantive issues presented in their
Motion to Vacate which resulted in the entry of the Final Judgment after said motion was denied.
Defendants cannot seek to have this Court review the decisions and orders in the Florida Action
and make determinations contrary to such decisions and order entered by the Florida Court in the
Vacate Order. The Full Faith and Credit Clause expressly prohibits such regardless of how
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unhappy Defendants are with the outcome of the Florida Action. V.L., 577 U.S. 404 (2016)(“the
Full Faith and Credit Clause precludes any inquiry into the merits of the cause of action, the logic
or consistency of the decision, or the validity of the legal principles on which the judgment is
based.) The Florida Court issued the Final Judgment determining that the Florida Action was
“DONE AND ORDERED”. See Exhibit “A” (emphasis in original). Thus, the litigation which
included whether Atlas and Barry are liable to Plaintiff for “damages resulting from their breach
of contract, fraud, fraudulent inducement, and other causes of action detailed in the amended
Complaint, is “DONE” and not appealable as such time has expired. Id. As conclusively
determined by the Florida Court, the determination of Defendants’ motion to vacate the default
judgment and the Final Judgment is binding and preclusive on this Court without any further
inquiry. Balboa Capital, 178 A.D.3d 646.
Moreover, Defendants’ contention that the Florida Court did not determine whether
personal jurisdiction over them was proper is false. In the Motion to Vacate Defendants expressly
argued that the “Defendants have a meritorious defense” and that their meritorious defense is that
the Florida Court lacks “personal jurisdiction over the Defendants for the reasons set forth herein”
NYSCEF Doc. No. 14 ¶82. In response, the Florida Court concluded that “Defendants failed to
demonstrate … (ii) a meritorious defense” See Exhibit “G” ¶70. Thus, Defendants contention that
the Florida Court did not issue a finding of fact or law related to the question of personal
jurisdiction is without merit as the Florida Court expressly found that Defendants failed to state a
meritorious defense – lack of personal jurisdiction being one of the meritorious defenses raised by
Defendants in the Motion to Vacate (Id.)– and also that Defendants were properly served with
process in the Florida Action – another issue upon which the Florida Court found personal
jurisdiction to exist upon. Id. ¶82.
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Lastly, the Amended Final Judgment, entered after Defendants appeared in the Florida
Action, further belies their claim that the Florida Court never made a finding that it had personal
jurisdiction over Defendants. Indeed, in the Amended Final Judgment the Florida Court expressly
“ORDERED and ADJUDGED” that the Florida “Court retains jurisdiction over this matter
to enter any further Orders that may be necessary, including, but not limited to, an award of
attorneys’ fees and costs which the DAVIDOFF LAW FIRM, PLLC is entitled.” See Exhibit “I.”
Clearly, by ordering that it retained its jurisdiction over Defendants, the Florida Court previously
determined, in the Vacate Order, that is has personal jurisdiction over Defendants.
If a defendant challenges the jurisdiction of a foreign court in any appearance before said
court, a New York court cannot hear jurisdictional challenges to the foreign court’s jurisdiction
“regardless of the basis upon which the foreign court upholds its jurisdiction.” Baldwin v. Iowa
State Traveling Men's Ass'n, 283 U.S. 522 (1931). Accordingly, the Florida Court’s determination
that personal jurisdiction was proper over Defendants is res judicata and precludes any further
inquiry into such from this Court.
Simply put, the Defendants attempt in the Opposition to: (1) seek a stay of the proceedings
without posting a bond; (2) seek to relitigate the issues and defenses previously asserted and
adjudicated (in Plaintiff’s favor) in this action; and (3) seek to use their appeal of the Reinstatement
Order to circumvent the timing limitations of the Florida rules of appellate practice, which they
cannot and this Court should not entertain such meritless argument.
CONCLUSION
For the reasons stated herein, in the accompanying attorney affirmation of Jonathan
Davidoff, and Plaintiff’s original memorandum of law and all documents submitted therewith,
Plaintiff respectfully requests that this Court grant Plaintiff’s Motion for Summary Judgment in
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lieu of Complaint and domesticate the Final Judgment, in addition to granting Plaintiff any other
and further relief that this Court deems just and proper.
Dated: July 1, 2022
Respectfully submitted,
DAVIDOFF LAW FIRM, PLLC
By: __/s/_____JMD_______________________
Jonathan Marc Davidoff, Esq.
Danielle Shaye Shapero, Esq.
Attorneys for Plaintiff
228 E. 45th Street, Suite 1110
New York, New York 10017
Tel. (212) 587-5971
Fax: (212) 658-9852
Email: Jonathan@davidofflawfirm.com
Email: Danielle@davidofflawfirm.com
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Preview
FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ______________________________________________ BEN-ZION ALCALAY Plaintiff, Index No.: 602826/2022 vs. ATLAS CYBERSECURITY, LLC, a New York Limited Liability Company and BARRY DYNKIN, Defendants. _______________________________________________/ MEMORANDUM OF LAW IN REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT Plaintiff, Ben-Zion Alcalay (“Plaintiff” or Ben-Zion”) hereby respectfully submits this memorandum of law in Reply to Defendants’, ATLAS CYBERSECURITY, LLC (“Atlas”) and Barry Dynkin (“Barry”)(collectively, “Defendants”), Opposition to Plaintiff’s Motion for Summary Judgment in Lieu of Complaint (the “SJM”). PRELIMINARY STATEMENT On December 7, 2021, Plaintiff obtained a final Judgment (the “Final Judgment”)(See Exhibit “A”) in favor of him and against Atlas and Barry (as well as Benjamin Dynkin who is a , in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida (the “Florida Court”), in the amount of $293,291, plus interest from November 23, 2020 (the “Florida Action”). On March 4, 2021, Plaintiff commenced the instant action to have the Final Judgment domesticated. NYSCEF Doc. Nos. 1-24. Defendants now oppose the SJM and seek an order denying the domestication by making the same exact arguments Defendants made in the Florida Action which were all expressly rejected by the Florida Court in its December 5, 2021 Order (the “Vacate Order”)(See Exhibit “G”). The Vacate Order denied the Defendants’ Motion to Set Aside Judicial Default, to Quash Service of Page 1 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 1 of 15 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 Process and to 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 (the “Motion to Vacate”). See NYSCEF Doc. No. 14; see also Affirmation of Jonathan Davidoff, setting forth the arguments made by Defendants to the Florida Court and the Florida Court’s findings; see NYSCEF Doc. Nos. 18 (where the Florida Court made 74 findings of fact in the Vacate Order prior to denying the Motion to Vacate and granting Plaintiff’s final judgment.) Contrary to Defendants’ belief, Defendants are not the judge and jury as to their wrongdoings – they are the tortfeasors. In the Vacate Order, the Florida Court made clear findings of fact which are binding on, and enforceable in, this Court under the Full Faith and Credit Clause of the United States Constitution. Matter of Bennett, 84 A.D.3d 1365 (2nd Dep’t 2011). It is irrelevant that the Defendants disagree with the findings of fact in the Vacate Order as the Florida Court came to such conclusions and issued its ruling. Findings of fact were made in the Florida Action, the Motion to Vacate was denied, and Plaintiff was granted a Final Judgment which under the law of this state provides for Plaintiff to have such order domesticated and this matter not stayed. Furthermore, the Defendants did not appeal the Final Judgment or the Vacate Order, nor did the Defendants post a bond or undertaking. Therefore, the instant motion must be granted and the Final Judgment domesticated. FACTUAL BACKGROUND The Court is respectfully directed to the affidavit of Ben-Zion Alcalay, dated March 4, 2022, filed in connection with the SJM, for a resuscitation of the relevant facts, which is incorporated by reference herein. For a resuscitation of the facts which occurred after March 4, Page 2 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 2 of 15 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 2022, the Court is respectfully directed to the accompanying affirmation of Jonathan M. Davidoff, which is adopted herein as if detailed in this memorandum of law. 1 I. SERVICE WAS PROPERLY EFFECTUATED AGAINST BARRY. It is unquestionable that Barry was served pursuant to CPLR §308(4) and Defendants’ claim otherwise is nothing more than another one of Defendants’ attempts to evade liability for their debts by claiming not to have been served with process. 2 This is nothing new. First, Barry was served at 130 Cooper Drive, Great Neck NY (the “Dwelling”), on May 17, 2022, as set forth in the process server’s, John Savage (“Savage”), affidavit of service (the “AOS”). See Exhibit “B.” Savage effectuated service by substitution at 4:15 PM on May 17, 2022, after diligently attempting to personally serve Barry to no avail, and then returned to the Dwelling later that night at 9:21 to attempt personal service one more time does not lead to Defendants unsupported conclusion that service was not effectuated at 4:17 PM on May 17, 2022. See Barry- Affidavit p. 2. Rather, it shows Savage’s diligent efforts to prevent Defendants from making the very service claims now before the Court. Indeed, Savage was the process server who effectuated service on the Defendants in the Florida Action, and who testified at the evidentiary hearing, after which the Florida Court concluded and ruled that Savage properly effectuated service at the Dwelling and rejected Defendants attempt to deny such. See Exhibit “G.” Savage was also the 1 The legal arguments and relevant law set forth in the memorandum of law in support of the SJM are incorporated by reference herein as if stated in this reply memorandum. NYSCEF Doc. No. 5. 2 Defendants made the same claim in the Florida Action, which was rejected after a two-day traverse hearing on the matter. See Exhibit “G.” Defendants also claimed to not have been served with process in the following two actions pending in the Supreme Court of the State of New York, Nassau County, commenced by 18BlackBears, LLC, a limited liability company owned by Plaintiff’s two sons: (1) 18BLACKBEARS LLC v. DACS CYBERSECURITY HOLDINGS, LLC, et al., Index No.: 612875/2020 (the “DACS Action”)(NYSCEF Doc. No. 139)(“Defendants were not personally served pursuant to New York Civil Practice Rules and Laws” and as such “the Amended Complaint … should be dismissed); and (2) 18BLACKBEARS LLC suing derivatively on behalf of DACS CYBERSECURITY HOLDINGS LLC v. Atlas Cybersecurity, LLC et al., Index No. 609663/2021 (the “Atlas Action”)(NYSCEF Doc. No. 48)(“Respondents were not personally served pursuant to New York Civil Practice Rules and Laws” and as such “the Petition … should be dismissed). Page 3 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 3 of 15 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 process server who served Defendants at the Dwelling in the DACS Action and the Atlas Action. See Exhibit “D.” Knowing firsthand of Defendants continuous and baseless claims regarding his service attempts, Savage went to the Dwelling to attempt personal service an additional time after he had already effectuated substituted service upon Barry. In fact, anticipating Defendants’ deceitful games, Savage made sure to document his visits to the Dwelling. See Exhibit “E.” The photographs taken by Savage with his process server GPS system corroborate the facts attested to in the AOS by demonstrating Savages location at the Dwelling at same times that service was attempted and effectuated on May 17, 2022. Id. 3 The photographs are conclusive evidence that Savage served Barry at the Dwelling on May 17, 2022, and that Benjamin’s claim otherwise, and his theory offered to support such, are flat out falsities. Moreover, Barry’s conclusory and unsubstantiated denials of service are insufficient to rebut to presumption of proper service created by the AOS. See ACT Prop., LLC v. Ana Garcia, 102 AD3d 712 (2nd Dept 2013)(“a process servers sworn affidavit of service is prima facie evidence of proper service”). The photographs establish that the vehicles used by Barry are present in the photographs when Savage attempted to and effectuated service. Simply put, the Defendants attempt to evade service of every action by merely not opening the door to be served. The Defendants hide behind the closed door, which is why New York authorized service by nail and mail after three attempts of service at a residence of a defendant. 3 Although Defendants do not claim that substituted service upon Barry was improper, only that it did not occur, it should be noted that the photographs demonstrate Defendants attempt to once again evade personal service. The photographs evidence that each time Savage was at the Dwelling, on May 17, 2022, the same three vehicles were in the driveway of the Dwelling that were in the driveway when Savage served Defendants in the Florida Action. See See Exhibit “F.”; NYSCEF Doc. No. 50 (where Barry’s brother Benjamin Dynkin testifies that the vehicles in the photographs annexed hereto as See Exhibit “F” his family’s vehicles in the driveway of the Dwelling). In the Florida Action, the Florida Court found Savage to be a credible witness and that “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.” See NYSCEF Doc. No. 18 ¶29. Page 4 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 4 of 15 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 Second, Defendants’ contention that service was not properly effectuated upon Barry because the amended summons was never set to Barry at the Dwelling is also meritless. Defendants do not assert that the amended summons was not mailed according to the requirements set forth in CPLR §308(4) but only that the amended summons was not sent to Barry “at his lack known residence” because the affidavit of mailing (the “AOS”)(See Exhibit “C”) states that the mailing was address to “130 Cooper Drive, Great Neck, NY 11020” and because the “address has the wrong zip code, [] it was never delivered to” Barry. See Opposition p. 2. Defendants’ claim that service was not effectuated because the zip code on the mailing was improper pursuant to what was stated in the AOS is blatantly wrong. Where the address on a mailing is otherwise correct “use of the wrong zip code [is] insufficient to establish that service was inadequate.” Zwicker v. Emigrant Mortg. Co., 91 A.D.3d 443 (2012). In JP Morgan Chase Bank, Nat. Ass'n v. Bergen, 57 Misc. 3d 1214(A)(2017) the court found the same. In JP Morgan, the defendant sought to vacate a default judgment entered against her by claiming in an affidavit that service was improper because she was never personally served with the summons and complaint and that she was not served pursuant to CPLR §308(4) because the mailing “was directed to an address containing the wrong zip code” and as such she did not receive the mailing. Id. The JP Morgan court rejected the defendant’s argument finding that although directed to the wrong zip code, the mailing was addressed to the proper address and because the defendant did not dispute that she lived at that address service was proper. The court further noted that the defendant’s affidavit in sum and substance only contained a general denial of service and receipt of the mailing which was insufficient to both (i) rebut the prima facie presumption of proper service raised by a process servers sworn affidavit; and (ii) require a hearing on the issue of service. Id. (citing U.S. Bank, NA v. Arias, 85 AD3d 1014 (2nd Dept 2011). Page 5 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 5 of 15 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 The facts in the instant matter are completely analogous to the facts in JP Morgan. Here, Barry claims that CPLR §308(4) service was improper because the mailing contained the wrong zip code even though the address on the mailing, as stated in the AOS, was proper. ACT Prop., 102 AD3d 712(“a process server’s sworn affidavit of service constitutes prima facie evidence of proper service.”) Barry does not contend that he doesn’t live at 130 Cooper Drive, Great Neck NY. As such, it is entirely irrelevant that the mailing contained the wrong zip-code. Moreover, Barry’s affidavit contains nothing more than bare conclusory and unsubstantiated denials of receipt of the amended summons which is insufficient to rebut the presumption of proper service created by the process server’s affidavit. US Natl. Bank Assoc. v. Melton, 90 AD3d 742 (2nd Dept 2011). For this reason, Barry is also not entitled to a hearing on the issue of service. Arias, 85 AD3d 1014. Importantly, Barry only claims not to have received the amended summons sent on May 23, 2022 (i.e. service affirmed by AOS). See Opposition p. 2. However, the service affirmed by the AOS was for service pursuant to CPLR §3215. On May 17, 2022, service pursuant to CPLR §308(4) was completed when Savage mailed a true copy of the “AMENDED SUMMONS W/ AMENDED NOTICE OF MOTION TO SUPPORT OF SUMMARY JUDGMENT IN LIEU OF COMPLAINT, NOTICE OF EFILING, ATTORNEY AFFIRMATION IN SUPPORT OF MEMO OF LAW AND ALL SUPPORTING EXHIBITS” pursuant to the statutory mailing requirements as affirmed the AOS filed with this Court on May 20, 2022. See Exhibit “B.” (emphasis in original). Barry NEVER CLAIMS, either in his affidavit or in the opposition, that he did not receive the CPLR §308(4) mailing effectuated by Savage on May 20, 2022. In fact, the mailing effectuated pursuant to CPLR §308(4) is never mentioned in Defendants papers. 4 As such, CPLR 4 Even if this Court were to apply the allegations set forth in the Barry-Affidavit to rebut receipt of the CPLR §3215, mailing raised by the AOS (See Exhibit “C”), to rebut the receipt of the CPLR §308(4) mailing created by the AOS (See Exhibit “B”), it must find that Barry’s conclusory and unsubstantiated denials of receipt are insufficient to rebut the presumption of service created by the AOS. Page 6 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 6 of 15 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 §308(4) service of process was properly effectuated upon Barry rendering personal jurisdiction over Barry proper. Id. 5 II. A STAY OF THE PROCEEDINGS IS NOT WARRANTED. Defendants request that these proceedings be stayed pending a conclusion of an appeal of a non-final order in the Florida Action is absolutely ludicrous, unwarranted and shows the extent of the Defendants’ desperation that this Court not enter the domestication of the judgment and prohibit the Plaintiff from executing on his judgment. Florida Rule of Appellate Procedure 9.310 governs the issuance of stays pending an appeal. Rule 9.310(b)(1) provides for an automatic stay of a judgment that is solely for the payment of money upon the posting of a good and sufficient bond, defined as a “bond equal to the principal amount of the Judgment plus twice the statutory rate of interest on Judgments on the total amount on which the party has an obligation to pay interest.” The stay only goes into effect upon the posting of the bond. Taplin v. Salamone, 422 So. 2d 92 (Fla. 4th DCA 1982). Defendants did not post the required undertaking with the Florida Court and cannot seek to circumvent the Florida Rules of Appellate Procedure by seeking to stay the domestication of the Florida Final Judgment through this Court. Florida Rule of Appellate Procedure 9.310 provides that an appeal from a final order or judgment must be commenced with the clerk of the issuing tribunal within 30 days. On June 23, 2021, the Florida Court entered an Order granting Plaintiff a Default Judgment against Defendants (the “Default Judgment”). See Exhibit “H.” Defendants did not appeal the Default Judgment and on December 5, 2021, the Florida Court entered the Vacate Order, denying Defendants Motion to 5 Notably, although the AOS contains the improper zip code, it contains the proper address of the Dwelling and thus service of process was proper. See Zwicker, 91 A.D.3d 443 Page 7 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 7 of 15 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 Vacate the Default Judgment. See Exhibit “G.” Defendants did not appeal the Vacate Order. Then on December 7, 2021, the Florida Court entered the Final Judgment “in the amount of $293,291.40 plus statutory interest from November 23, 2020”. See Exhibit “A.” Defendants did not appeal the Final Judgment and the 30-day time limit for them to do so has passed. Thus, the time for the Defendants to appeal either of the substantive and final orders (the order of default and the final order, as well as the motion denying the Defendants’ request to vacate the default judgment) has expired and cannot be recaptured. Those decisions are final and this Court cannot sit as an appellate court and review those decisions for any errors or otherwise to adjudicate the merits of those decisions and orders. The “AMENDED ORDER ON PLAINTIFF’S MOTION FOR FINAL JUDGMENT”, entered by the Florida Court on February 16, 2022, did not change the amount of the Final Judgment ($293,291.40) but simply (i) calculated the interest owed on the Final Judgment entitling Plaintiff to a final Judgment in the amount of $308,447.15; and (ii) directed Defendants to complete a fact information sheet (the “Amended Final Judgment”). See Exhibit “I.” (emphasis in original title) Thus the Amended Final Judgment and the Final Judgment were entirely consistent. On February 17, 2022, the Florida Court stayed the Florida Action and “vacated the Amended Order on Plaintiff’s Motion for Final Judgment”. See Exhibit “J.” Thereafter, on May 15, 2022, the Florida Court issued an order which (i) lifted the stay as to Atlas and Barry; (ii) expressly ordered that “The Amended Order on Plaintiff’s Motion for Final Judgment [i.e. See Exhibit “I”] is vacated”; and (iii) expressly ordered that the “Final Default Judgment entered on December 7, 2021, […] remains in full force and effect” (the “Reinstatement Order”). See Exhibit “K.” Page 8 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 8 of 15 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 Despite the clear and unambiguous language of the Reinstatement Order – Defendants somehow contend that there are two competing final judgment – the Final Judgment entered on December 7, 2021 and the Amended Order on Plaintiff’s Motion for Final Judgment entered on February 16, 2022. See Barry-Affidavit ¶10. This is not so, and Defendants’ argument that domestication of the Final Judgment would be a violation of due process “when the Florida Court is currently taking up the question of which final judgment is operative” is absurd, but more importantly it is meritless and frivolous. Such argument is merely an attempt to delay the inevitable, which can only be accomplished if the Defendants bond and/or obtain an undertaking. The Florida Court has already determined such and Defendants no merely attempt to create a smoke screen. The Reinstatement Order, could not have been clearer by (i) using the exact titles bolded, underlined, and centered on the top of each Judgment; (ii) stating the date the Final Judgment which is “in full force and effect” was issued; and (iii) the judge (Judge Coates) that the Final Judgment was issued by. Defendants’ argument is even more absurd given that the Amended Order on Plaintiff’s Motion for Final Judgment was issued by Circuit Court Judge Scott Kerner, who succeeded Judge Coates in the Florida Action. How the Florida Court could have been any clearer and unambiguous is perplexing. The Final Judgment entered by Judge Coates on December 7, 2021 (see Exhibit “A”) is the only final Judgment that exists against Defendants. The Amended Order on Plaintiff’s Motion for Final Judgment issued by Judge Kerner on May 13, 2022 was vacated. It is clear from explicit terms of the Reinstatement Order, and it was made clear again when the Florida Court granted Plaintiff’s motion on June 8, 2022, which directed and required the Defendants to complete a fact information sheet – a directive not ordered in the Final Judgment but ordered only in the Amended Order on Plaintiff’s Motion for Final Judgment (the “Fact Sheet Page 9 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 9 of 15 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 Ruling”). Thus, the Fact Sheet Ruling was issued because the only final judgment in the Florida Action is the Final Judgment which did not order Defendants to complete the fact information sheet. If the Amended Final Judgment was in any way shape of form still in effect, the Fact Sheet Ruling would have been unnecessary and not had. It is also notable that in Hospital Service Plan of New Jersey v. Warehouse Production & Sales Employees Union, the Second Department determined that a judgment rendered in a sister State which is filed in this State pursuant to CPLR article 54 is entitled, under the principles of full faith and credit, to enforcement together with the rate of interest applicable in the State in which it was originally rendered. 76 A.D.2d 882 (2nd Dept 1980). Thus, even under Defendants’ (wrong and absurd) theory that the Final Judgment and the Amended Final Judgment are competing judgments it makes no difference which Judgment is in effect. As mentioned above, the only difference between the Final Judgment and the Amended Final Judgment is that the Final Judgment states that Plaintiff was granted a Final Default Judgment “in the amount of $293,291.40 plus statutory interest from November 23, 2020” (see Exhibit “A”) and the Amended Final Judgment simply calculates what that interest was as of that date (as interest continues to accrue on the judgment). See Exhibit “I.” Thus, if the Amended Final Judgment is in effect, upon domestication of such by the Court, this Court need not calculate the interest owed. However, since the Final Judgment requires domestication, this Court must calculate the interested owed at “the rate of interest applicable in the State” of Florida (as the Florida Court did in the Amended Final Judgment). Hospital Service, 76 A.D.2d 882. As the time to appeal the Final Judgment elapsed on or about January 7, 2022, Defendants cannot now appeal the Final Judgment that Plaintiff seeks to domesticate in this action. The insinuation that Defendants can do so by appealing the Reinstatement Order finding that the Final Page 10 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 10 of 15 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 Judgment “remains” in full force and effect is absurd and is merely an attempt to circumvent the appellate rules which govern the Florida Action (and this proceeding). Plaintiff is entitled to have the Final Judgment domesticated as their appeal in Florida did not result a stay given that Defendants did not post a bond or undertaking as is required by Florida Rules of Appellate Procedure, Rule 9.310. “New York is required to give the same preclusive effect to a judgment from another state as it would have in the issuing state, and it is precluded from inquiring into the merits of the judgment” Balboa Capital Corp. v. Plaza Auto Care, Inc., 178 A.D.3d 646 (2nd Dept. 2019)(internal citations and quotations omitted). If Plaintiff attempted to collect on the Final Judgment in Florida, he would be entitled to, as the Judgment has a preclusive effect, and the Defendants appeal did not stay anything preventing such. Taplin, 422 So. 2d 92 (the stay only goes into effect upon the posting of a sufficient bond). As such, this Court must treat Plaintiff’s right to enforce his judgment and seek collection efforts in the same manner. This Court must permit the domestication of the Final Judgment, that “remains in full force and effect.” See Exhibit “K.” III. THE FINAL JUDGMENT IS A VALID JUDGMENT ENTITLED TO DOMESTICATION UNDER THE CPLR AND FULL FAIR AND CREDIT CLAUSE. As stated by the Supreme Court of the United States, it is well settled that: Under the Full Faith and Credit Clause, a state may not disregard the judgment of a sister state because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits; on the contrary, the Full Faith and Credit Clause precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based. V.L. v. E.L., 577 U.S. 404 (2016)(emphasis added). Thus, “[a]bsent a challenge to the jurisdiction of the issuing court, New York is required to give the same preclusive effect to a judgment from Page 11 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 11 of 15 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 another state as it would have in the issuing state, and it is precluded from inquiring into the merits of the judgment” Balboa Capital, 178 A.D.3d 646. Defendants seek this Court to defy the express mandates of the United States Constitution, the United States Supreme Court, and the unanimous precedent in this State, by inquiring into the merits of the Florida Action, the logic and consistence of the Florida Court’s decision, and the validity of the legal principals upon which the Final Judgment is based. To be sure, in the Opposition, Defendants state that this Court should dismiss the instant motion because (ii) “there were and are meritorious defenses to the Florida action”; and Defendants had “a reasonable excuse for not having answered the complaint in Florida, which was due to failure to serve the summons and complaint under Florida and New York law.” See Opposition ¶14. In the Vacate Order, the Florida Court expressly found that (i) “Defendants failed to demonstrate that they have meritorious factual defenses” (see Exhibit “G” ¶ 69); and (ii) Defendants “statements that excusable neglect exists due to Plaintiff’s 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” (Id. ¶57) and that “Service upon Barry by delivering a copy of the Summons and Complaint to Benjamin is proper as both individuals reside at the Dwelling” and that “on January 5, 2021, service of process was properly and validly effectuated upon the Defendants.” Id. ¶38. Defendants are not permitted to relitigate the legal or substantive issues presented in their Motion to Vacate which resulted in the entry of the Final Judgment after said motion was denied. Defendants cannot seek to have this Court review the decisions and orders in the Florida Action and make determinations contrary to such decisions and order entered by the Florida Court in the Vacate Order. The Full Faith and Credit Clause expressly prohibits such regardless of how Page 12 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 12 of 15 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 unhappy Defendants are with the outcome of the Florida Action. V.L., 577 U.S. 404 (2016)(“the Full Faith and Credit Clause precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based.) The Florida Court issued the Final Judgment determining that the Florida Action was “DONE AND ORDERED”. See Exhibit “A” (emphasis in original). Thus, the litigation which included whether Atlas and Barry are liable to Plaintiff for “damages resulting from their breach of contract, fraud, fraudulent inducement, and other causes of action detailed in the amended Complaint, is “DONE” and not appealable as such time has expired. Id. As conclusively determined by the Florida Court, the determination of Defendants’ motion to vacate the default judgment and the Final Judgment is binding and preclusive on this Court without any further inquiry. Balboa Capital, 178 A.D.3d 646. Moreover, Defendants’ contention that the Florida Court did not determine whether personal jurisdiction over them was proper is false. In the Motion to Vacate Defendants expressly argued that the “Defendants have a meritorious defense” and that their meritorious defense is that the Florida Court lacks “personal jurisdiction over the Defendants for the reasons set forth herein” NYSCEF Doc. No. 14 ¶82. In response, the Florida Court concluded that “Defendants failed to demonstrate … (ii) a meritorious defense” See Exhibit “G” ¶70. Thus, Defendants contention that the Florida Court did not issue a finding of fact or law related to the question of personal jurisdiction is without merit as the Florida Court expressly found that Defendants failed to state a meritorious defense – lack of personal jurisdiction being one of the meritorious defenses raised by Defendants in the Motion to Vacate (Id.)– and also that Defendants were properly served with process in the Florida Action – another issue upon which the Florida Court found personal jurisdiction to exist upon. Id. ¶82. Page 13 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 13 of 15 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 Lastly, the Amended Final Judgment, entered after Defendants appeared in the Florida Action, further belies their claim that the Florida Court never made a finding that it had personal jurisdiction over Defendants. Indeed, in the Amended Final Judgment the Florida Court expressly “ORDERED and ADJUDGED” that the Florida “Court retains jurisdiction over this matter to enter any further Orders that may be necessary, including, but not limited to, an award of attorneys’ fees and costs which the DAVIDOFF LAW FIRM, PLLC is entitled.” See Exhibit “I.” Clearly, by ordering that it retained its jurisdiction over Defendants, the Florida Court previously determined, in the Vacate Order, that is has personal jurisdiction over Defendants. If a defendant challenges the jurisdiction of a foreign court in any appearance before said court, a New York court cannot hear jurisdictional challenges to the foreign court’s jurisdiction “regardless of the basis upon which the foreign court upholds its jurisdiction.” Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522 (1931). Accordingly, the Florida Court’s determination that personal jurisdiction was proper over Defendants is res judicata and precludes any further inquiry into such from this Court. Simply put, the Defendants attempt in the Opposition to: (1) seek a stay of the proceedings without posting a bond; (2) seek to relitigate the issues and defenses previously asserted and adjudicated (in Plaintiff’s favor) in this action; and (3) seek to use their appeal of the Reinstatement Order to circumvent the timing limitations of the Florida rules of appellate practice, which they cannot and this Court should not entertain such meritless argument. CONCLUSION For the reasons stated herein, in the accompanying attorney affirmation of Jonathan Davidoff, and Plaintiff’s original memorandum of law and all documents submitted therewith, Plaintiff respectfully requests that this Court grant Plaintiff’s Motion for Summary Judgment in Page 14 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 14 of 15 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/01/2022 lieu of Complaint and domesticate the Final Judgment, in addition to granting Plaintiff any other and further relief that this Court deems just and proper. Dated: July 1, 2022 Respectfully submitted, DAVIDOFF LAW FIRM, PLLC By: __/s/_____JMD_______________________ Jonathan Marc Davidoff, Esq. Danielle Shaye Shapero, Esq. Attorneys for Plaintiff 228 E. 45th Street, Suite 1110 New York, New York 10017 Tel. (212) 587-5971 Fax: (212) 658-9852 Email: Jonathan@davidofflawfirm.com Email: Danielle@davidofflawfirm.com Page 15 of 15 DAVIDOFF LAW FIRM, PLLC 228 East 45th Street, Suite 1110, New York, New York 10017 ● Telephone (212) 587-5971 ● Fax (212) 658-9852 15 of 15