Preview
FILED: ERIE COUNTY CLERK 04/12/2021 03:14 PM INDEX NO. 809237/2020
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/12/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
AUGUSTIN RAMOS,
REPLY ATTORNEY
Plaintiff, AFFIRMATION
V.
Index No.: 809237/2020
SUDWAL FOOTLOW a/k/a
FOOTLOW SUDWAL and
EFFICIENT PROPERTY HOLDINGS, LLC,
John Doe #1 through John Doe #12
said last 12 names being fictitious and unknown
to Plaintiff, the persons or parties intended being
tenants, occupants, persons or corporations, if
any, having or claiming an interest in or lien upon
the premises described in the Complaint,
Defendants.
TODD M. SCHIFFMACHER, ESQ. does hereby affirm under penalties of perjury the
following:
1. I am an attorney at law duly licensed to practice in the State of New York and am
a partner with the law firm of Bergen & attorneys for in the above-
Schiffmacher, LLP, Defendants,
captioned action. As such, I am familiar with the facts and circumstances of this matter as
fully
hereinafter set forth.
Defendants'
2. I make this Reply Attorney Affirmation in further support of Motion
for an Order, pursuant to CPLR Rule 3012(b), (i)dismissing Plaintiff's Amended Summons with
Notice dated August 21, 2020 and Plaintiff s Amended Notice of Pendency dated August 21, 2020
upon the ground that Plaintiff has failed to serve the Complaint within twenty (20) days after
service of a demand therefore, (ii)granting costs to Defendants in the within action, and (iii)
1 of 5
FILED: ERIE COUNTY CLERK 04/12/2021 03:14 PM INDEX NO. 809237/2020
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/12/2021
granting any such other and further relief as the Court deems just and proper. I specifically make
this Reply Attorney Affirmation in response to the Attorney Affirmation submitted by Plaintiff in
opposition to the Motion.
3. Quite simply, Plaintiff's opposition is woefully deficient as a matter of law and
Defendants'
Motion must be granted in itsentirety.
4. Itis well-settled that to avoid dismissal for failure to timely serve a complaint after
a demand for the complaint has been made pursuant to CPLR Rule 3012(b), a plaintiff must
demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious
(4th
cause of action. Berges v. Pfizer, Inc., 108 A.D.3d 1118 Dept. 2013); Fasano v. ,LC. Penney
(4th
Corporation, 59 A.D.3d 1102 Dept. 2009); Kordasiewicz v. BCC Prods., Inc., 26 A.D.3d 853
(4th
Dept. 2006). Plaintiff has failed to demonstrate either prong.
5. First, Plaintiff's counsel claims in general terms that he was unable to file the
Complaint because there was a language barrier between him and his client and that the alleged
language barrier and his client living out-of-state somehow resulted in Plaintiff's counsel needing
more time to conduct his investigation.
6. In this matter, the Summons with Notice was e-filed with the Erie County Clerk's
Office on August 21, 2020. Notably, the Summons with Notice referenced the same causes of
action contained in the Complaint e-filed on April 7, 2021 and further references the alleged
Installment Land Contract signed by the parties. As such, it appears that Plaintiff's counsel's
investigation was complete in August 2020 as he possessed allthe relevant facts, including the
alleged agreement, in order to know what causes of action to plead and what specific facts were
needed to plead the fact specific fraud causes of action. Query what additional investigation was
2
2 of 5
FILED: ERIE COUNTY CLERK 04/12/2021 03:14 PM INDEX NO. 809237/2020
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/12/2021
performed or was needed to be performed in over the seven (7) inoiltils between the filing of the
Summons with Notice and the Complaint.
7. Predictably, no specific information is provided by Plaintiff's counsel regarding
what investigation he needed to conduct or what documents he needed to obtain. He additionally
provides no details regarding the alleged translator he retained or what conversations or
information he required from Plaintiff after August 21, 2020. Furthermore, at no point was your
Affirmant ever advised by Plaintiff's counsel regarding the alleged difficulties he was having in
filing the Complaint.
8. Plaintiff's counsel's explanations amount to nothing more than inexcusable delay
(2nd
akin to that found in Egan v. Federated Department Stores, Inc., 108 A.D.2d 718 Dept. 1985).
In that case, the Court specifically found that the plaintiff failed to proffer a reasonable excuse for
the delay in filing the complaint based upon (i) the fact that Plaintiff's counsel's conclusory
assertion that an investigation of the incident was ñécessary before the complaint could be drafted
was unsupported by the record, (ii)there was no showing of what investigation was 15erformed,
and (iii) the allegations contained in the complaint provided that plaintiff's counsel possessed
enough information to draft the complaint at the time the initial summons was drafted. The Court
additionally rejected the plaintiff's counsel's claim that he had difficulty contacting his client over
a period of 5 ½ months.
9. Furthermore, as held in Sotirakis v. United Services Automobile Association, 91
(2nd
A.D.2d 1067 Dept. 1983), the excuse of the plaintiff's attorney that the plaintiff resided out
of state (at least for part of the time) was an insufficient excuse for the two-month delay as the
attorney had ample time to confer with his client to prepare the complaint, both before and after
the service of the summons.
3
3 of 5
FILED: ERIE COUNTY CLERK 04/12/2021 03:14 PM INDEX NO. 809237/2020
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/12/2021
10. Itis respectfully submitted that Plaintiff has failed to proffer a justifiable reasonable
excuse for the delay as a matter of law. The Court should exercise itsdiscretion to reject Plaintiff's
attempted justification.
11. Notwithstanding Plaintiff's counsel's failure to provide a reasonable excuse for the
delay, he has also failed to demonstrate a meritorious cause of action. Notably, in support of his
opposition, the only papers submitted were an attorney affirmation and an unverified copy of the
Complaint. No affidavit was submitted by Plaintiff or anyone having personal knowledge of the
facts and circunistances of this matter. Also not submitted was any documentary evidence other
than the sham agreement.
12. Significantly, the attorney affirmation is not based upon personal knowledge of the
Tamiliar"
facts and circumstances of this matter as Plaintiff's counsel affirms he is only "personally
with the same. Additionally, his Affirmation only contams a recital of the same general allegations
contained in the unverified Complaint. Not a scintilla of evidence was submitted regarding the
execution of the alleged Installment Land Contract and no proof was subinitted that any of the
alleged payments were made. It is additionally not a coincidence that no facts were offered to
demonstrate, inter alia, who prepared the alleged Installment Land Contract, when and by whom
"seller" Sudwal"
itwas signed, why the of the subject property is "Footlow who is neither Efficient
Property Holdings, Inc or Manvir Sudwal, itsprincipal, how the alleged Installment Land Contract
is somehow binding, when or how any alleged representations of Defendants were made, or how
Morales"
alleged payments to a "non-party Jovino are binding upon Defendants.
13. As held by the Appellate Division, Fourth Department in Berges, supra (citations
omitted), the affidavit of merit must contain evidentiary facts to establish a prima facie case and
must be of a type which would defeat a motion for summary judgment on the ground that there is
4
4 of 5
FILED: ERIE COUNTY CLERK 04/12/2021 03:14 PM INDEX NO. 809237/2020
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/12/2021
no issue of fact. Stated differently, an attorney affidavit is not a valid substitute ifitis not based
upon personal knowledge. Egan, supra. Additionally, an attorney affidavit that asserts in
facts"
conclusory fashion that the attorney is only "fully familiar with the and/or merely
summarizes or paraphrases the allegations set forth in the complaint will not suffice. Abele Tractor
(3rd
& Equipment Company, Inc., 94 A.D.3d 1270 Dept. 2102). See also, Kordasiewicz v. BCC
(4th
Products, Inc., 26 A.D.3d 853 Dept. 2006); Billings v. Berkshire Mutual Insurance Company,
(3rd
149 A.D.2d 895 9 9
14. In the instant action, Plaintiff's Attorney's Affirmation is wholly insufficient to
demonstrate any merit to Plaintiff's claimed causes of action. It contains no evidentiary facts
sufficient to establish that any of Plaintiff's causes of action are valid and instead contains general
allegations about which Plaintiff's attorney has no personal knowledge. Even if the Complaint
was verified, itwould stillbe insufficient to meet Plaintiff's burden.
15. In view of the foregoing and Plaintiff's failure to demonstrate either a reasonable
excuse or a meritorious cause of action mandates a dismissal of the Amended Summons with
Defendants'
Notice and Amended Notice of Pendency as a matter of law. Motion must be granted
in its entirety.
Dated: April 12, 2021
Tgfdd Schiffmacher, Esq.
5
5 of 5
Preview
FILED: ERIE COUNTY CLERK 04/12/2021 03:14 PM INDEX NO. 809237/2020 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/12/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE AUGUSTIN RAMOS, REPLY ATTORNEY Plaintiff, AFFIRMATION V. Index No.: 809237/2020 SUDWAL FOOTLOW a/k/a FOOTLOW SUDWAL and EFFICIENT PROPERTY HOLDINGS, LLC, John Doe #1 through John Doe #12 said last 12 names being fictitious and unknown to Plaintiff, the persons or parties intended being tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the Complaint, Defendants. TODD M. SCHIFFMACHER, ESQ. does hereby affirm under penalties of perjury the following: 1. I am an attorney at law duly licensed to practice in the State of New York and am a partner with the law firm of Bergen & attorneys for in the above- Schiffmacher, LLP, Defendants, captioned action. As such, I am familiar with the facts and circumstances of this matter as fully hereinafter set forth. Defendants' 2. I make this Reply Attorney Affirmation in further support of Motion for an Order, pursuant to CPLR Rule 3012(b), (i)dismissing Plaintiff's Amended Summons with Notice dated August 21, 2020 and Plaintiff s Amended Notice of Pendency dated August 21, 2020 upon the ground that Plaintiff has failed to serve the Complaint within twenty (20) days after service of a demand therefore, (ii)granting costs to Defendants in the within action, and (iii) 1 of 5 FILED: ERIE COUNTY CLERK 04/12/2021 03:14 PM INDEX NO. 809237/2020 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/12/2021 granting any such other and further relief as the Court deems just and proper. I specifically make this Reply Attorney Affirmation in response to the Attorney Affirmation submitted by Plaintiff in opposition to the Motion. 3. Quite simply, Plaintiff's opposition is woefully deficient as a matter of law and Defendants' Motion must be granted in itsentirety. 4. Itis well-settled that to avoid dismissal for failure to timely serve a complaint after a demand for the complaint has been made pursuant to CPLR Rule 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious (4th cause of action. Berges v. Pfizer, Inc., 108 A.D.3d 1118 Dept. 2013); Fasano v. ,LC. Penney (4th Corporation, 59 A.D.3d 1102 Dept. 2009); Kordasiewicz v. BCC Prods., Inc., 26 A.D.3d 853 (4th Dept. 2006). Plaintiff has failed to demonstrate either prong. 5. First, Plaintiff's counsel claims in general terms that he was unable to file the Complaint because there was a language barrier between him and his client and that the alleged language barrier and his client living out-of-state somehow resulted in Plaintiff's counsel needing more time to conduct his investigation. 6. In this matter, the Summons with Notice was e-filed with the Erie County Clerk's Office on August 21, 2020. Notably, the Summons with Notice referenced the same causes of action contained in the Complaint e-filed on April 7, 2021 and further references the alleged Installment Land Contract signed by the parties. As such, it appears that Plaintiff's counsel's investigation was complete in August 2020 as he possessed allthe relevant facts, including the alleged agreement, in order to know what causes of action to plead and what specific facts were needed to plead the fact specific fraud causes of action. Query what additional investigation was 2 2 of 5 FILED: ERIE COUNTY CLERK 04/12/2021 03:14 PM INDEX NO. 809237/2020 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/12/2021 performed or was needed to be performed in over the seven (7) inoiltils between the filing of the Summons with Notice and the Complaint. 7. Predictably, no specific information is provided by Plaintiff's counsel regarding what investigation he needed to conduct or what documents he needed to obtain. He additionally provides no details regarding the alleged translator he retained or what conversations or information he required from Plaintiff after August 21, 2020. Furthermore, at no point was your Affirmant ever advised by Plaintiff's counsel regarding the alleged difficulties he was having in filing the Complaint. 8. Plaintiff's counsel's explanations amount to nothing more than inexcusable delay (2nd akin to that found in Egan v. Federated Department Stores, Inc., 108 A.D.2d 718 Dept. 1985). In that case, the Court specifically found that the plaintiff failed to proffer a reasonable excuse for the delay in filing the complaint based upon (i) the fact that Plaintiff's counsel's conclusory assertion that an investigation of the incident was ñécessary before the complaint could be drafted was unsupported by the record, (ii)there was no showing of what investigation was 15erformed, and (iii) the allegations contained in the complaint provided that plaintiff's counsel possessed enough information to draft the complaint at the time the initial summons was drafted. The Court additionally rejected the plaintiff's counsel's claim that he had difficulty contacting his client over a period of 5 ½ months. 9. Furthermore, as held in Sotirakis v. United Services Automobile Association, 91 (2nd A.D.2d 1067 Dept. 1983), the excuse of the plaintiff's attorney that the plaintiff resided out of state (at least for part of the time) was an insufficient excuse for the two-month delay as the attorney had ample time to confer with his client to prepare the complaint, both before and after the service of the summons. 3 3 of 5 FILED: ERIE COUNTY CLERK 04/12/2021 03:14 PM INDEX NO. 809237/2020 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/12/2021 10. Itis respectfully submitted that Plaintiff has failed to proffer a justifiable reasonable excuse for the delay as a matter of law. The Court should exercise itsdiscretion to reject Plaintiff's attempted justification. 11. Notwithstanding Plaintiff's counsel's failure to provide a reasonable excuse for the delay, he has also failed to demonstrate a meritorious cause of action. Notably, in support of his opposition, the only papers submitted were an attorney affirmation and an unverified copy of the Complaint. No affidavit was submitted by Plaintiff or anyone having personal knowledge of the facts and circunistances of this matter. Also not submitted was any documentary evidence other than the sham agreement. 12. Significantly, the attorney affirmation is not based upon personal knowledge of the Tamiliar" facts and circumstances of this matter as Plaintiff's counsel affirms he is only "personally with the same. Additionally, his Affirmation only contams a recital of the same general allegations contained in the unverified Complaint. Not a scintilla of evidence was submitted regarding the execution of the alleged Installment Land Contract and no proof was subinitted that any of the alleged payments were made. It is additionally not a coincidence that no facts were offered to demonstrate, inter alia, who prepared the alleged Installment Land Contract, when and by whom "seller" Sudwal" itwas signed, why the of the subject property is "Footlow who is neither Efficient Property Holdings, Inc or Manvir Sudwal, itsprincipal, how the alleged Installment Land Contract is somehow binding, when or how any alleged representations of Defendants were made, or how Morales" alleged payments to a "non-party Jovino are binding upon Defendants. 13. As held by the Appellate Division, Fourth Department in Berges, supra (citations omitted), the affidavit of merit must contain evidentiary facts to establish a prima facie case and must be of a type which would defeat a motion for summary judgment on the ground that there is 4 4 of 5 FILED: ERIE COUNTY CLERK 04/12/2021 03:14 PM INDEX NO. 809237/2020 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/12/2021 no issue of fact. Stated differently, an attorney affidavit is not a valid substitute ifitis not based upon personal knowledge. Egan, supra. Additionally, an attorney affidavit that asserts in facts" conclusory fashion that the attorney is only "fully familiar with the and/or merely summarizes or paraphrases the allegations set forth in the complaint will not suffice. Abele Tractor (3rd & Equipment Company, Inc., 94 A.D.3d 1270 Dept. 2102). See also, Kordasiewicz v. BCC (4th Products, Inc., 26 A.D.3d 853 Dept. 2006); Billings v. Berkshire Mutual Insurance Company, (3rd 149 A.D.2d 895 9 9 14. In the instant action, Plaintiff's Attorney's Affirmation is wholly insufficient to demonstrate any merit to Plaintiff's claimed causes of action. It contains no evidentiary facts sufficient to establish that any of Plaintiff's causes of action are valid and instead contains general allegations about which Plaintiff's attorney has no personal knowledge. Even if the Complaint was verified, itwould stillbe insufficient to meet Plaintiff's burden. 15. In view of the foregoing and Plaintiff's failure to demonstrate either a reasonable excuse or a meritorious cause of action mandates a dismissal of the Amended Summons with Defendants' Notice and Amended Notice of Pendency as a matter of law. Motion must be granted in its entirety. Dated: April 12, 2021 Tgfdd Schiffmacher, Esq. 5 5 of 5