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FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022
NYSCEF DOC. NO. 54 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.
Motion Sequence No. 001
ATLAS CYBERSECURITY, LLC,
a New York Limited Liability Company and
BARRY DYNKIN,
Defendants.
_______________________________________________/
ATTORNEY AFFIRMATION IN SUPPORT OF PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT IN LIEU OF COMPLAINT
JONATHAN MARC DAVIDOFF, an attorney duly admitted to practice law in the courts
of the State of New York, affirms under penalty of perjury pursuant to New York CPLR § 2105
and Rule 2106 as follows:
1. I am the managing member of the Davidoff Law Firm, PLLC, counsel for the Plaintiff,
Ben-Zion Alcalay (“Plaintiff”), in the above titled action and as such I am fully familiar with the
facts and circumstances of the instant action against Atlas Cybersecurity, LLC and Barry Dynkin.
2. I submit this Affirmation in Support of Plaintiff’s Reply to Defendants, Atlas
Cybersecurity, LLC (“Atlas”) and Barry Dynkin (“Barry”)(collectively, the “Defendants”),
Opposition (“Opposition”) to Plaintiff’s Motion for Summary Judgment in Lieu of Complaint
pursuant to CPLR §§3213 and 5406 (the “Motion”) and in further support thereof.
3. On November 23, 2020, Plaintiff initiated an action in Florida, in the Circuit Court of the
15th Judicial Circuit in and for Palm Beach County, Florida (the “Florida Court”), captioned Ben-
Zion Alcalay v. Atlas Cybersecurity Holdings, LLC, et al, Case No.: 502020CA012935, against
Atlas, Barry and Benjamin Dynkin (the “Florida Action”).
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4. On December 7, 2021, Plaintiff obtained a default Judgment in the amount of $293,291,
plus interest from November 23, 2020, costs and disbursements, against Defendants, in the Circuit
Court of the 15th Judicial Circuit in and for Palm Beach County, Florida (the “Final Judgment”).
A true and accurate copy of the Final Judgment is annexed hereto as Exhibit “A.”
5. On May 17, 2022, Barry was served at his dwelling, located at 130 Cooper Drive, Great
Neck, New York (the “Dwelling”), with the “AMENDED SUMMONS W/ AMENDED NOTICE
OF MOTION IN SUPPORT FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT,
NOTICE OF EFILING, ATTORNEY AFFIRMATION, AFFIDAVIT IN SUPPORT, MEMO OF
LAW, AND SUPPORTING EXHIBITS …” A true and accurate copy of process server John
Savage’s (“Mr. Savage”) affidavit of service demonstrating service upon Barry is annexed hereto
as Exhibit “B” (emphasis in original).
6. On May 17, 2022, service pursuant to CPLR §308(4) was completed when the
above stated documents were mailed by Mr. Savage via First Class Mail to Barry at the Dwelling..
7. On May 20, 2022, Louise Maldonado, effectuated service upon Barry pursuant to
CPLR §3215. A true and accurate copy of the affidavit of service evidencing service pursuant to
CPLR §3215 is annexed hereto as Exhibit “C.”
8. In attempting to deny (once again) they were properly served with process in the
instant action, Defendants make a fatal flaw by attempting to claim that Barry never received the
service effectuated on May 20, 2022, which was made pursuant to CPLR §3215, and that such
service was required for service pursuant to CPLR §308(3) to be completed. It is well settled that
Plaintiff need not have served Barry pursuant to CPLR §3215 for service pursuant to CPLR
§308(3) to be effectuated and completed.
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9. The Opposition must be read closely as this Court cannot fall into Defendants’
depict. In the Opposition, Defendants claim that Barry was not served with process because he
never received the mailing sent by Louise Maldonado on May 20, 2022. However, the May 20,
2022, mailing was to effectuate service pursuant to CPLR §3215. See Exhibit “C.” Barry never
claims not to have received the mailing effectuated by Mr. Savage, pursuant to CPLR §308(4) on
May 17, 2022. See Exhibit “B.”1
10. Annexed hereto as Exhibit “E” are true and accurate copies of photographs Mr.
Savage took during his many attempts to personally serve Barry at the Dwelling.
11. In the Opposition, Defendants failed to argue the first mailing to them, as Plaintiff
took extra steps to ensure that service was properly effectuated as it had two mailings sent of the
Motion.
12. Notably, Defendants attempted to evade liability in the Florida Action by claiming
to have not been served with the summons and complaint in that action, and then they asserted the
same defense as to the amended complaint and almost every other document served upon them
during the course of the Florida Action. Notably, Mr. Savage also served the Defendants in the
Florida Action, as he works for the process server that Plaintiff’s counsel employees for service,
and he is assigned the area in which the Defendants reside.
1
The Defendants attempted to evade liability in the Florida Action by claiming to have not been served with the
summons and complaint, and then the amended complaint and then every other document served upon them during
the course of the Florida Action. Defendants’ claims were flat out rejected by the Florida Court after a two-day
evidentiary hearing on the matter (similar to aa Traverse Hearing under New York law). 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 liabilitycompany owned by
Plaintiff’ssons: (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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13. In their attempt to vacate the default Judgment in the Florida Action Defendants’
claimed that they were neither served with process, nor served with any documents at all, were flat
out rejected by the Florida Court after a two-day traverse hearing on the matter (Exhibit “G”)
during which time Benjamin Dynkin (the brother of Barry who is also a defendant in the Florida
Action but this action does not seek relief against him as he filed a Bankruptcy petition) testified
that, among other things, Mr. Savage falsified his affidavits of service. In response to Defendants
claims, Mr. Savage was called to testify under oath to the facts surrounding said services and the
truth of his affidavits. The Florida Court expressly and explicitly “found Savage to be a credible
witness” and “[t]he Court did not find Benjamin’s testimony to be credible…” See Exhibit “G.”
14. Annexed hereto as Exhibit “F” are the photographs of the Dwelling that Plaintiff
had admitted into evidence during the evidentiary hearing on Defendants’ motion to vacate the
default judgment in the Florida Action that evidences that Barry’s car, Benjamin Dynkin’s car and
Barry’s parents’ car (i.e.the cars of individuals who are over the age of 18 and resides at the
Dwelling with Barry) were in the driveway at the Dwelling during each attempt Mr. Savage made
to effectuate service upon Atlas, Barry and Benjamin in the Florida Action. These photos, among
other things, were considered by the Florida Court that resulted in the conclusion that Defendants
were served with process in the Florida Action and that their contentions otherwise were not
credible. See Exhibit “G.”
15. Notably, all of the cars in the photographs presented in the Florida Action (Exhibit
“F”) are visible in the photographs of the Dwelling taken by Mr. Savage when he went to the
Dwelling, on multiple occasions, to serve process upon Barry. See Exhibit “E.”
16. Annexed hereto as Exhibit “D” are the affidavits of service executed by Mr.
Savage for service upon Defendants in the Atlas Action and in the DACS Action – two more
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actions that Mr. Savage served Defendants with process in and that Defendants claimed not to
have been served in.
17. Unfortunately, Mr. Savage is very familiar with games and lies the Defendants
attempt to perpetuate on this Court (as well as in the Florida Action and other proceedings). To
say Mr. Savage is very careful and diligent in his service upon Defendants is an understatement.
18. Annexed hereto as Exhibit “G” is a true and accurate copy of the Florida Court’s
December 5, 2021, Order (the “Vacate Order”) denying Defendants’ Motion to Set Aside Judicial
Default, to Quash Service of 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”).
19. To remind the Court, the Defendants, in the Motion to Vacate asserted the following
arguments, in response to which the Florida Court unambiguously and explicitly found the
following:
1. Service of Process.
a. Defendants’ Argument: Plaintiff failed to serve Defendants with the
Amended Complaint. NYSCEF Doc. No. 14. ¶ 8. Although Plaintiff
represents that the amended complaint was mailed to the Defendants on
February 4, 2021 “none of the Defendants ever received any Amended
Complaint by mail from the Plaintiff or his counsel” Id. ¶12 (emphasis
in original)
i. Florida Court Finding: “this Court concludes that the Defendants
were properly served with a copy of the Amended Complaint and
received it.” Exhibit “G” ¶49.
b. Defendants’ Argument: “Valid service was never effectuated since the
Defendants were never served at all.” NYSCEF Doc. No. 14. ¶72. The
process server’s affidavit is “false and none of the Defendants have been
served on January 5, 2021 or on any subsequent date”. Id. ¶ 77.
i. Florida Court Finding: “The Court [] concludes that, on January
5, 2021, service of process was properly effectuated upon the
Defendants.” Exhibit “G” ¶38.
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2. Personal Jurisdiction.
a. Defendants’ Argument: “Defendants have not been served in this matter”
NYSCEF Doc. No. 14 ¶79.
i. Florida Court Finding: The court “find[s] that much of Benjamin’s
testimony [regarding service of the Complaint] was not credible”,
that “Having refused to open the door and willingly refusing to
accept service, it was proper for Savage to leave copies of the
Summons and Complant on the doorstep of the Dwelling to
effectuate service upon Defendants” and Defendants were properly
served with the Summons and Complaint. Exhibit “G” ¶¶10, 31, 38.
“Benjamin’s testimony that he did not receive a copy of the
Amended Complaint, which the Court does not find credible, is
insufficient to rebut the presumptions that Defendants were served
with the Amended Complaint per the Certificate of Service.” Id.
¶¶47, 49.
b. Defendants’ Argument: the Florida Court lacks “personal jurisdiction over
the Defendants and the matters alleged” which is a meritorious defense
warranting vacatur of the default judgment. NYSCEF Doc. No. 14 ¶80-82
and 53-70.
i. Florida Court Finding: “Defendants failed to demonstrate … (ii) a
meritorious defense...” Exhibit “G” ¶ 70.
3. Meritorious Defense to Plaintiff’s Claims
a. Defendants’ Argument: Pursuant to the Florida Statute of Frauds there is no
enforceable personal guarantee from the Defendants for the $170.291.17
Business Loan disbursed by Plaintiff. NYSCEF Doc. No. 14 ¶¶82-92.
i. Florida Court Finding: “Defendants failed to demonstrate that they
have meritorious factual defenses.” Exhibit “G” ¶ 69. The defenses
set for by Defendants are “conclusory assertions which were
unsupported by a sworn motion, verified answer, or other competent
evidence setting forth the ultimate facts establishing the defense.”
Id. ¶ 68.
b. Defendants’ Arguments “Even if there was a personal guarantee, no monies
under any guarantee would be due.” NYSCEF Doc. No. 14 ¶¶93-97.
i. Florida Court Finding: “Defendants failed to demonstrate that they
have meritorious factual defenses.” Exhibit “G” ¶ 69. The defenses
set for by Defendants are “conclusory assertions which were
unsupported by a sworn motion, verified answer, or other competent
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evidence setting forth the ultimate facts establishing the defense.”
Id. ¶ 68.
c. Defendants’ Argument: Defendants did not make false statements to induce
Plaintiff to make a loan or otherwise and therefore Plaintiff has no claim for
fraud or fraudulent inducement. NYSCEF Doc. No. 14 ¶98-117.
i. Florida Court Finding: “Defendants failed to demonstrate that they
have meritorious factual defenses.” Exhibit “G” ¶ 69. The defenses
set for by Defendants are “conclusory assertions which were
unsupported by a sworn motion, verified answer, or other competent
evidence setting forth the ultimate facts establishing the defense.”
Id. ¶ 68.
d. Defendants’ Argument: The default Judgment must be vacated because it
was “entered upon false and incomplete information that the truth would
have revealed, Plaintiff’s failure to serve Defendants with the Amended
Complaint, false allegations that the original Complaint was served on the
Defendants, and misrepresentations that Plaintiff served his Renewed
Motion for Entry of Judicial Default filed on May 20, 2021 on the
Defendants at all.” NYSCEF Doc. No. 14 ¶ 120.
e. Florida Court Finding: “Defendants’ unsworn statements that excusable
neglect exists due to Plaintiff alleged failure to serve the Complaint, the
Amended Complaint, Notice of Motion and Notice of Hearing (1) lack
merit; and (2) are insufficient to support a finding of excusable neglect as
Defendants failed to set forth sworn facts to support said conclusions … in
this regard the Court notes that it did not find Benjamin’s testimony
regarding failure of service to be credible.” Exhibit “G” ¶57. Moreover,
Defendants’ counsel having appeared at the hearing on the Motion for
Default, in addition to the other evidence presented by Plaintiff, shows
Defendants contentions were unsupportable. Id. ¶50-60.
See Exhibit “G.”
20. The findings of fact, conclusions and holdings made by Florida Court in the Vacate
Order are res judicata and binding on Defendants and this Court, and such was not appealed and
cannot be appealed in the future as the time for Defendants to appeal such ruling has expired with
the Defendants having taken no action.
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21. Thereafter, on December 7, 2021, the Florida Court issued the Final Judgment
against Defendants, titled “FINAL DEFAULT JUDGMENT”. See Exhibit “A” (emphasis in
original).
22. The “FINAL DEFAULT JUDGMENT” granted Plaintiff’s motion for a final
Judgment and ordered and adjudged that “Plaintiff is entitled to entry of Final Judgment against
the Defendants Atlas [], Benjamin Dynkin, and Barry Dynkin and the recovery of damages
resulting from their breach of contract, fraud, fraudulent inducement, and other causes of action
detailed in the amended Complaint”. Id.
23. The “FINAL DEFAULT JUDGMENT” was granted “in the amount of
$293,291.40 plus statutory interest from November 23, 2020.” Id.
24. On February 16, 2022, the Florida Court issued an “AMENDED ORDER ON
PLAINTIFF’S MOTION FOR FINAL JUDGMENT” a true and accurate copy of which is
annexed hereto as Exhibit “I.”
25. The “AMENDED ORDER ON PLAINTIFF’S MOTION FOR FINAL
JUDGMENT” merely supplemented the Final Default Judgment to include and obligate the
Defendants to complete a fact information sheet, which is standard under Florida law and the rules
of the court to enable the judgment creditor to obtain basic financial information of the judgment
debtors. The basis and amount of the Final Judgment was unaltered in the Amended Final
Judgment.
26. The Amended Final Judgment did not alter 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”).
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27. Upon notice of Benjamin Dynkin’s Bankruptcy Petition, on February 14, 2022, the
Court entered an order that vacating the Amended Final Judgment and stayed the action (the
“February 14, 2022, Order”). A true and accurate copy of the February 14, 2022, Order is annexed
hereto as Exhibit “J.”
28. Plaintiff moved to vacate the February 14, 2022, Order and lift the stay as to the
non-bankruptcy Defendants and argued that the stay was not applicable to them..
29. The court conducted an evidentiary hearing and hear oral argument on May 11,
2022 on the motion, and on May 13, 2022, the Florida Court issued an order which (1) granted
Plaintiff’s motion to vacate the February 14, 2022, Order; (2) stayed the Florida Action as to
Benjamin Dynkin, the only bankrupt defendant in the Florida Action; and (3) lifted the stay of the
Florida Action as to Barry and Atlas (the “Reinstatement Order”). A true and accurate copy of the
Reinstatement Order is annexed hereto as Exhibit “K.”
30. The Reinstatement Order also ordered and adjudged that (1) “the Amended Order
on Plaintiff’s Motion for Final Judgment is hereby VACATED”; and (2) ordered that “the Final
Default Judgment entered on December 7, 2021... remains in full force and effect as to all the
named Defendants in such order.” Id. (emphasis added).
31. The Reinstatement Order specifically vacated the Amended Order on Plaintiff’s
Motion for Final Judgment lifted the stay as to the non-bankruptcy Defendants and stated that
the Final Default Judgment is the operative and enforceable final Judgment that the Plaintiff can
collect upon. It is perplexing that Defendants seek to have this Court stay the instant action on the
basis that it is unclear to them which final judgment is the operative Judgment and upon the claim
that there are now two competing final Judgment. Such argument by the Defendants is meritless
and frivolous, as it only seeks to delay the proceedings and the ultimate determination, which is
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that Plaintiff’s judgment should be domesticated and he can proceed to collection on such against
the non-bankruptcy Defendants.
32. Indeed, the Florida Court could not have been clearer in its ruling in the
Reinstatement Order given that it (i) uses the exact titles bolded, underlined, and centered on the
top of each specific Judgment; (ii) states the date the Judgment which is “in full force and effect”
was issued; and (iii) the judge that ruled on Defendants’ motion and entered the Final Default
Judgment is a different judge from the judge that issued and entered the Amended Order on
Plaintiff’s Motion for Final Judgment.
33. 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.” Notably, the stay provided for by
Rule 9.310(b)(1) only goes into effect upon the posting of the bond. Taplin v. Salamone, 422 So.
2d 92 (Fla. 4th DCA 1982).
34. At no time has the Defendants posted the bond required, under Florida law, to stay
the execution of the Final Judgment and as such Plaintiff has every right to collect on his Final
Judgment.
35. 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.
36. Notably, Defendants’ time to appeal the Florida Court’s June 23, 2021 order
granting Plaintiff’s Motion for Default, a true and accurate copy of which is annexed hereto as
Exhibit “H”, has elapsed with no appeal having been taken.
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37. Defendants time to appeal the Amended Final Judgment has also elapsed with no
appeal having been taken.
38. As such, Defendants’ baseless appeal of the Restatement Order in no way effects
the Default Judgment, the Final Judgment, the Amended Final Judgment or the Final Order which
are final and non-appealable orders, judgments and determination.
39. The Defendants now seek to use an appeal of the Restatement Order to appeal the
underlying rulings in the previously issued orders, which the time to appeal has expired and such
rulings and orders are binding on the parties and cannot be appealed in the future.
40. It is time for Defendants to stop attempting to evade liability and to finally take
responsibility for their debts. Enough is enough, and this Court must finally rule that the games
are over and permit the domestication of the judgment Plaintiff obtained in Florida against the
Defendants – in honor of the Full Faith and Credit Clause.
Dated: July 1, 2022
Respectfully submitted,
DAVIDOFF LAW FIRM, PLLC
__________JMD________________
Jonathan Marc Davidoff, Esq.
Attorney for Plaintiff
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Preview
FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 54 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. Motion Sequence No. 001 ATLAS CYBERSECURITY, LLC, a New York Limited Liability Company and BARRY DYNKIN, Defendants. _______________________________________________/ ATTORNEY AFFIRMATION IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT JONATHAN MARC DAVIDOFF, an attorney duly admitted to practice law in the courts of the State of New York, affirms under penalty of perjury pursuant to New York CPLR § 2105 and Rule 2106 as follows: 1. I am the managing member of the Davidoff Law Firm, PLLC, counsel for the Plaintiff, Ben-Zion Alcalay (“Plaintiff”), in the above titled action and as such I am fully familiar with the facts and circumstances of the instant action against Atlas Cybersecurity, LLC and Barry Dynkin. 2. I submit this Affirmation in Support of Plaintiff’s Reply to Defendants, Atlas Cybersecurity, LLC (“Atlas”) and Barry Dynkin (“Barry”)(collectively, the “Defendants”), Opposition (“Opposition”) to Plaintiff’s Motion for Summary Judgment in Lieu of Complaint pursuant to CPLR §§3213 and 5406 (the “Motion”) and in further support thereof. 3. On November 23, 2020, Plaintiff initiated an action in Florida, in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida (the “Florida Court”), captioned Ben- Zion Alcalay v. Atlas Cybersecurity Holdings, LLC, et al, Case No.: 502020CA012935, against Atlas, Barry and Benjamin Dynkin (the “Florida Action”). Page 1 of 11 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 11 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 07/01/2022 4. On December 7, 2021, Plaintiff obtained a default Judgment in the amount of $293,291, plus interest from November 23, 2020, costs and disbursements, against Defendants, in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida (the “Final Judgment”). A true and accurate copy of the Final Judgment is annexed hereto as Exhibit “A.” 5. On May 17, 2022, Barry was served at his dwelling, located at 130 Cooper Drive, Great Neck, New York (the “Dwelling”), with the “AMENDED SUMMONS W/ AMENDED NOTICE OF MOTION IN SUPPORT FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT, NOTICE OF EFILING, ATTORNEY AFFIRMATION, AFFIDAVIT IN SUPPORT, MEMO OF LAW, AND SUPPORTING EXHIBITS …” A true and accurate copy of process server John Savage’s (“Mr. Savage”) affidavit of service demonstrating service upon Barry is annexed hereto as Exhibit “B” (emphasis in original). 6. On May 17, 2022, service pursuant to CPLR §308(4) was completed when the above stated documents were mailed by Mr. Savage via First Class Mail to Barry at the Dwelling.. 7. On May 20, 2022, Louise Maldonado, effectuated service upon Barry pursuant to CPLR §3215. A true and accurate copy of the affidavit of service evidencing service pursuant to CPLR §3215 is annexed hereto as Exhibit “C.” 8. In attempting to deny (once again) they were properly served with process in the instant action, Defendants make a fatal flaw by attempting to claim that Barry never received the service effectuated on May 20, 2022, which was made pursuant to CPLR §3215, and that such service was required for service pursuant to CPLR §308(3) to be completed. It is well settled that Plaintiff need not have served Barry pursuant to CPLR §3215 for service pursuant to CPLR §308(3) to be effectuated and completed. Page 2 of 11 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 11 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 07/01/2022 9. The Opposition must be read closely as this Court cannot fall into Defendants’ depict. In the Opposition, Defendants claim that Barry was not served with process because he never received the mailing sent by Louise Maldonado on May 20, 2022. However, the May 20, 2022, mailing was to effectuate service pursuant to CPLR §3215. See Exhibit “C.” Barry never claims not to have received the mailing effectuated by Mr. Savage, pursuant to CPLR §308(4) on May 17, 2022. See Exhibit “B.”1 10. Annexed hereto as Exhibit “E” are true and accurate copies of photographs Mr. Savage took during his many attempts to personally serve Barry at the Dwelling. 11. In the Opposition, Defendants failed to argue the first mailing to them, as Plaintiff took extra steps to ensure that service was properly effectuated as it had two mailings sent of the Motion. 12. Notably, Defendants attempted to evade liability in the Florida Action by claiming to have not been served with the summons and complaint in that action, and then they asserted the same defense as to the amended complaint and almost every other document served upon them during the course of the Florida Action. Notably, Mr. Savage also served the Defendants in the Florida Action, as he works for the process server that Plaintiff’s counsel employees for service, and he is assigned the area in which the Defendants reside. 1 The Defendants attempted to evade liability in the Florida Action by claiming to have not been served with the summons and complaint, and then the amended complaint and then every other document served upon them during the course of the Florida Action. Defendants’ claims were flat out rejected by the Florida Court after a two-day evidentiary hearing on the matter (similar to aa Traverse Hearing under New York law). 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 liabilitycompany owned by Plaintiff’ssons: (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 11 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 11 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 07/01/2022 13. In their attempt to vacate the default Judgment in the Florida Action Defendants’ claimed that they were neither served with process, nor served with any documents at all, were flat out rejected by the Florida Court after a two-day traverse hearing on the matter (Exhibit “G”) during which time Benjamin Dynkin (the brother of Barry who is also a defendant in the Florida Action but this action does not seek relief against him as he filed a Bankruptcy petition) testified that, among other things, Mr. Savage falsified his affidavits of service. In response to Defendants claims, Mr. Savage was called to testify under oath to the facts surrounding said services and the truth of his affidavits. The Florida Court expressly and explicitly “found Savage to be a credible witness” and “[t]he Court did not find Benjamin’s testimony to be credible…” See Exhibit “G.” 14. Annexed hereto as Exhibit “F” are the photographs of the Dwelling that Plaintiff had admitted into evidence during the evidentiary hearing on Defendants’ motion to vacate the default judgment in the Florida Action that evidences that Barry’s car, Benjamin Dynkin’s car and Barry’s parents’ car (i.e.the cars of individuals who are over the age of 18 and resides at the Dwelling with Barry) were in the driveway at the Dwelling during each attempt Mr. Savage made to effectuate service upon Atlas, Barry and Benjamin in the Florida Action. These photos, among other things, were considered by the Florida Court that resulted in the conclusion that Defendants were served with process in the Florida Action and that their contentions otherwise were not credible. See Exhibit “G.” 15. Notably, all of the cars in the photographs presented in the Florida Action (Exhibit “F”) are visible in the photographs of the Dwelling taken by Mr. Savage when he went to the Dwelling, on multiple occasions, to serve process upon Barry. See Exhibit “E.” 16. Annexed hereto as Exhibit “D” are the affidavits of service executed by Mr. Savage for service upon Defendants in the Atlas Action and in the DACS Action – two more Page 4 of 11 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 11 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 07/01/2022 actions that Mr. Savage served Defendants with process in and that Defendants claimed not to have been served in. 17. Unfortunately, Mr. Savage is very familiar with games and lies the Defendants attempt to perpetuate on this Court (as well as in the Florida Action and other proceedings). To say Mr. Savage is very careful and diligent in his service upon Defendants is an understatement. 18. Annexed hereto as Exhibit “G” is a true and accurate copy of the Florida Court’s December 5, 2021, Order (the “Vacate Order”) denying Defendants’ Motion to Set Aside Judicial Default, to Quash Service of 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”). 19. To remind the Court, the Defendants, in the Motion to Vacate asserted the following arguments, in response to which the Florida Court unambiguously and explicitly found the following: 1. Service of Process. a. Defendants’ Argument: Plaintiff failed to serve Defendants with the Amended Complaint. NYSCEF Doc. No. 14. ¶ 8. Although Plaintiff represents that the amended complaint was mailed to the Defendants on February 4, 2021 “none of the Defendants ever received any Amended Complaint by mail from the Plaintiff or his counsel” Id. ¶12 (emphasis in original) i. Florida Court Finding: “this Court concludes that the Defendants were properly served with a copy of the Amended Complaint and received it.” Exhibit “G” ¶49. b. Defendants’ Argument: “Valid service was never effectuated since the Defendants were never served at all.” NYSCEF Doc. No. 14. ¶72. The process server’s affidavit is “false and none of the Defendants have been served on January 5, 2021 or on any subsequent date”. Id. ¶ 77. i. Florida Court Finding: “The Court [] concludes that, on January 5, 2021, service of process was properly effectuated upon the Defendants.” Exhibit “G” ¶38. Page 5 of 11 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 11 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 07/01/2022 2. Personal Jurisdiction. a. Defendants’ Argument: “Defendants have not been served in this matter” NYSCEF Doc. No. 14 ¶79. i. Florida Court Finding: The court “find[s] that much of Benjamin’s testimony [regarding service of the Complaint] was not credible”, that “Having refused to open the door and willingly refusing to accept service, it was proper for Savage to leave copies of the Summons and Complant on the doorstep of the Dwelling to effectuate service upon Defendants” and Defendants were properly served with the Summons and Complaint. Exhibit “G” ¶¶10, 31, 38. “Benjamin’s testimony that he did not receive a copy of the Amended Complaint, which the Court does not find credible, is insufficient to rebut the presumptions that Defendants were served with the Amended Complaint per the Certificate of Service.” Id. ¶¶47, 49. b. Defendants’ Argument: the Florida Court lacks “personal jurisdiction over the Defendants and the matters alleged” which is a meritorious defense warranting vacatur of the default judgment. NYSCEF Doc. No. 14 ¶80-82 and 53-70. i. Florida Court Finding: “Defendants failed to demonstrate … (ii) a meritorious defense...” Exhibit “G” ¶ 70. 3. Meritorious Defense to Plaintiff’s Claims a. Defendants’ Argument: Pursuant to the Florida Statute of Frauds there is no enforceable personal guarantee from the Defendants for the $170.291.17 Business Loan disbursed by Plaintiff. NYSCEF Doc. No. 14 ¶¶82-92. i. Florida Court Finding: “Defendants failed to demonstrate that they have meritorious factual defenses.” Exhibit “G” ¶ 69. The defenses set for by Defendants are “conclusory assertions which were unsupported by a sworn motion, verified answer, or other competent evidence setting forth the ultimate facts establishing the defense.” Id. ¶ 68. b. Defendants’ Arguments “Even if there was a personal guarantee, no monies under any guarantee would be due.” NYSCEF Doc. No. 14 ¶¶93-97. i. Florida Court Finding: “Defendants failed to demonstrate that they have meritorious factual defenses.” Exhibit “G” ¶ 69. The defenses set for by Defendants are “conclusory assertions which were unsupported by a sworn motion, verified answer, or other competent Page 6 of 11 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 11 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 07/01/2022 evidence setting forth the ultimate facts establishing the defense.” Id. ¶ 68. c. Defendants’ Argument: Defendants did not make false statements to induce Plaintiff to make a loan or otherwise and therefore Plaintiff has no claim for fraud or fraudulent inducement. NYSCEF Doc. No. 14 ¶98-117. i. Florida Court Finding: “Defendants failed to demonstrate that they have meritorious factual defenses.” Exhibit “G” ¶ 69. The defenses set for by Defendants are “conclusory assertions which were unsupported by a sworn motion, verified answer, or other competent evidence setting forth the ultimate facts establishing the defense.” Id. ¶ 68. d. Defendants’ Argument: The default Judgment must be vacated because it was “entered upon false and incomplete information that the truth would have revealed, Plaintiff’s failure to serve Defendants with the Amended Complaint, false allegations that the original Complaint was served on the Defendants, and misrepresentations that Plaintiff served his Renewed Motion for Entry of Judicial Default filed on May 20, 2021 on the Defendants at all.” NYSCEF Doc. No. 14 ¶ 120. e. Florida Court Finding: “Defendants’ unsworn statements that excusable neglect exists due to Plaintiff alleged failure to serve the Complaint, the Amended Complaint, Notice of Motion and Notice of Hearing (1) lack merit; and (2) are insufficient to support a finding of excusable neglect as Defendants failed to set forth sworn facts to support said conclusions … in this regard the Court notes that it did not find Benjamin’s testimony regarding failure of service to be credible.” Exhibit “G” ¶57. Moreover, Defendants’ counsel having appeared at the hearing on the Motion for Default, in addition to the other evidence presented by Plaintiff, shows Defendants contentions were unsupportable. Id. ¶50-60. See Exhibit “G.” 20. The findings of fact, conclusions and holdings made by Florida Court in the Vacate Order are res judicata and binding on Defendants and this Court, and such was not appealed and cannot be appealed in the future as the time for Defendants to appeal such ruling has expired with the Defendants having taken no action. Page 7 of 11 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 11 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 07/01/2022 21. Thereafter, on December 7, 2021, the Florida Court issued the Final Judgment against Defendants, titled “FINAL DEFAULT JUDGMENT”. See Exhibit “A” (emphasis in original). 22. The “FINAL DEFAULT JUDGMENT” granted Plaintiff’s motion for a final Judgment and ordered and adjudged that “Plaintiff is entitled to entry of Final Judgment against the Defendants Atlas [], Benjamin Dynkin, and Barry Dynkin and the recovery of damages resulting from their breach of contract, fraud, fraudulent inducement, and other causes of action detailed in the amended Complaint”. Id. 23. The “FINAL DEFAULT JUDGMENT” was granted “in the amount of $293,291.40 plus statutory interest from November 23, 2020.” Id. 24. On February 16, 2022, the Florida Court issued an “AMENDED ORDER ON PLAINTIFF’S MOTION FOR FINAL JUDGMENT” a true and accurate copy of which is annexed hereto as Exhibit “I.” 25. The “AMENDED ORDER ON PLAINTIFF’S MOTION FOR FINAL JUDGMENT” merely supplemented the Final Default Judgment to include and obligate the Defendants to complete a fact information sheet, which is standard under Florida law and the rules of the court to enable the judgment creditor to obtain basic financial information of the judgment debtors. The basis and amount of the Final Judgment was unaltered in the Amended Final Judgment. 26. The Amended Final Judgment did not alter 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”). Page 8 of 11 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 11 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 07/01/2022 27. Upon notice of Benjamin Dynkin’s Bankruptcy Petition, on February 14, 2022, the Court entered an order that vacating the Amended Final Judgment and stayed the action (the “February 14, 2022, Order”). A true and accurate copy of the February 14, 2022, Order is annexed hereto as Exhibit “J.” 28. Plaintiff moved to vacate the February 14, 2022, Order and lift the stay as to the non-bankruptcy Defendants and argued that the stay was not applicable to them.. 29. The court conducted an evidentiary hearing and hear oral argument on May 11, 2022 on the motion, and on May 13, 2022, the Florida Court issued an order which (1) granted Plaintiff’s motion to vacate the February 14, 2022, Order; (2) stayed the Florida Action as to Benjamin Dynkin, the only bankrupt defendant in the Florida Action; and (3) lifted the stay of the Florida Action as to Barry and Atlas (the “Reinstatement Order”). A true and accurate copy of the Reinstatement Order is annexed hereto as Exhibit “K.” 30. The Reinstatement Order also ordered and adjudged that (1) “the Amended Order on Plaintiff’s Motion for Final Judgment is hereby VACATED”; and (2) ordered that “the Final Default Judgment entered on December 7, 2021... remains in full force and effect as to all the named Defendants in such order.” Id. (emphasis added). 31. The Reinstatement Order specifically vacated the Amended Order on Plaintiff’s Motion for Final Judgment lifted the stay as to the non-bankruptcy Defendants and stated that the Final Default Judgment is the operative and enforceable final Judgment that the Plaintiff can collect upon. It is perplexing that Defendants seek to have this Court stay the instant action on the basis that it is unclear to them which final judgment is the operative Judgment and upon the claim that there are now two competing final Judgment. Such argument by the Defendants is meritless and frivolous, as it only seeks to delay the proceedings and the ultimate determination, which is Page 9 of 11 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 11 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 07/01/2022 that Plaintiff’s judgment should be domesticated and he can proceed to collection on such against the non-bankruptcy Defendants. 32. Indeed, the Florida Court could not have been clearer in its ruling in the Reinstatement Order given that it (i) uses the exact titles bolded, underlined, and centered on the top of each specific Judgment; (ii) states the date the Judgment which is “in full force and effect” was issued; and (iii) the judge that ruled on Defendants’ motion and entered the Final Default Judgment is a different judge from the judge that issued and entered the Amended Order on Plaintiff’s Motion for Final Judgment. 33. 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.” Notably, the stay provided for by Rule 9.310(b)(1) only goes into effect upon the posting of the bond. Taplin v. Salamone, 422 So. 2d 92 (Fla. 4th DCA 1982). 34. At no time has the Defendants posted the bond required, under Florida law, to stay the execution of the Final Judgment and as such Plaintiff has every right to collect on his Final Judgment. 35. 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. 36. Notably, Defendants’ time to appeal the Florida Court’s June 23, 2021 order granting Plaintiff’s Motion for Default, a true and accurate copy of which is annexed hereto as Exhibit “H”, has elapsed with no appeal having been taken. Page 10 of 11 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 11 FILED: NASSAU COUNTY CLERK 07/01/2022 04:47 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 07/01/2022 37. Defendants time to appeal the Amended Final Judgment has also elapsed with no appeal having been taken. 38. As such, Defendants’ baseless appeal of the Restatement Order in no way effects the Default Judgment, the Final Judgment, the Amended Final Judgment or the Final Order which are final and non-appealable orders, judgments and determination. 39. The Defendants now seek to use an appeal of the Restatement Order to appeal the underlying rulings in the previously issued orders, which the time to appeal has expired and such rulings and orders are binding on the parties and cannot be appealed in the future. 40. It is time for Defendants to stop attempting to evade liability and to finally take responsibility for their debts. Enough is enough, and this Court must finally rule that the games are over and permit the domestication of the judgment Plaintiff obtained in Florida against the Defendants – in honor of the Full Faith and Credit Clause. Dated: July 1, 2022 Respectfully submitted, DAVIDOFF LAW FIRM, PLLC __________JMD________________ Jonathan Marc Davidoff, Esq. Attorney for Plaintiff Page 11 of 11 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 11