Preview
FILED: NEW YORK COUNTY CLERK 10/25/2017 12:23 AM INDEX NO. 154967/2017
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/25/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------------X
CHRISTIAN RUSSELL, INDEX NO.: 154967/2017
Plaintiff, AFFIRMATION IN
-against- SUPPORT OF MOTION
TO DISMISS ACTION
HOUSLANGER & ASSOCIATES, PLLC,
AND TODD E. HOUSLANGER,
Defendants.
-------------------------------------------------------------------------X
TODD E. HOUSLANGER, ESQ., an attorney admitted to practice before the Courts of
the State of New York, hereby affirms the following, under penalty of perjury and pursuant to
CPLR § 2106:
1. I am the Managing Attorney of the firm of Houslanger & Associates, PLLC,
attorneys for Defendants, HOUSLANGER & ASSOCIATES, PLLC and TODD E.
HOUSLANGER, in the above-captioned action, and am fully familiar with all the facts and
circumstances presented herein.
2. I respectfully submit this affirmation in support of the instant application seeking
an order pursuant to CPLR §3012(b) dismissing this action for Plaintiff’s failure to serve the
complaint within twenty (20) days after service of Defendants demand for complaint or in the
alternative, to dismiss the action pursuant to CPLR § 3211(a)(1) and/or 3211(a)(2) and/or
3211(a)(7) and/or 3211(a)(8).
3. This Motion to Dismiss does not constitute an appearance.
PROCEDURAL HISTORY
4. Plaintiff commenced this action by filing a Summons with Notice on or about May
31, 2017 see a copy of the “Summons with Notice” annexed hereto as Exhibit “A”.
1 of 5
FILED: NEW YORK COUNTY CLERK 10/25/2017 12:23 AM INDEX NO. 154967/2017
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/25/2017
5. According to the Affidavit of Service filed by Plaintiff, Defendant,
HOUSLANGER & ASSOCIATES, PLLC was allegedly served on September 27, 2017. See
“Affidavit of Service” annexed hereto as Exhibit “B”. No complaint was served with the
Summons.
6. Defendant TODD E. HOUSLANGER, has not been served and no Affidavit of Service
attesting to service upon TODD E. HOUSLANGER has been filed by Plaintiff.
7. Thereafter on October 3, 2017, a demand for service of a complaint was served
upon Mitchell L. Pashkin, Esq attorney for Plaintiff. See attached as Exhibit “C” a copy of
Defendant’s demand for complaint.
8. No extension of time to serve the complaint has been granted.
9. A complaint has not been served in answer to Defendant’s demand and more than
twenty (20) days have elapsed since service of said demand.
THIS ACTION SHOULD BE DISMISSED PURSUANT TO CPLR § 3012(b) FOR
PLAINTIFF'S FAILURE TO SERVE THE COMPLAINT WITHIN TWENTY (20) DAYS
OF DEFENDANTS' DEMAND FOR COMPLAINT
10. Pursuant to CPLR § 3012(b), Plaintiff was required to serve the complaint within
twenty (20) days after service of Defendant’s demand for complaint.
CPLR § 3012(b) provides, in pertinent part:
Service of the complaint shall be made within twenty days after service
of the demand. Service of the demand shall extend the time to appear
until twenty days after service of the complaint. If no demand is made,
the complaint shall be served within twenty days after service of the
notice of appearance. The court upon motion may dismiss the action if
service of the complaint is not made as provided in this subdivision.
11. By the plain language of CPLR § 3012(b), a party may move to dismiss the action
if the complaint is not timely served. In order to avoid dismissal of an action for failure to timely
serve a complaint after a demand has been made, "[t]he plaintiff must demonstrate both a
2 of 5
FILED: NEW YORK COUNTY CLERK 10/25/2017 12:23 AM INDEX NO. 154967/2017
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/25/2017
reasonable excuse for the delay in serving the complaint and a meritorious cause of action." Weisel
v. City of New York, 897 N. Y .S.2d 673 (Sup. Ct. Kings Co. 2009).
12. The Court of Appeals cautioned that while the lower courts enjoy considerable
latitude in determining whether to dismiss an action pursuant to CPLR § 3012(b), the plaintiff
must demonstrate a reasonable excuse for the delay and meritorious claims to avoid dismissal. See
Barasch v. Micucci, 49 N.Y.2d 594,404 N.E.2d 1275,427 N.Y.S.2d 732 (1980).
13. Excuses categorized under "law office failure" cannot properly serve as a basis for
defeating a motion to dismiss under CPLR 3012(b), and a showing of merit requires an affidavit
containing evidentiary facts attested to by individuals with personal knowledge of the facts. Id.,
49 N.Y.2d at 599. The "[a]ffidavit must be sufficient to establish prima facie that the plaintiff has
a good cause of action." Jd., 49 N.Y.2d at 599. Furthermore, the "[a]bsence of prejudice to the
defendant cannot serve as a basis for withholding relief under CPLR 3012 (subd [b])." ld., 49
N.Y.2d at 600.
14. Plaintiff's counsel is a serial filer and brings numerous actions by filing just a
Summons with Notice in an attempt to compel settlements from defendants, without making the
effort to put forth valid causes of action or make the effort to draft the Complaint.
15. Plaintiff files their purported claims based upon Federal Question and includes the
NY GBL in order to take advantage of the expedited and least costly method of filing a Summons
with Notice.
16. If Plaintiff’s counsel chooses to serve by the manner he does (Summons with
Notice), then he must abide by the strict requirements concomitant therewith and serve the
complaint within twenty (20) days of the demand thereof.
3 of 5
FILED: NEW YORK COUNTY CLERK 10/25/2017 12:23 AM INDEX NO. 154967/2017
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/25/2017
THIS ACTION SHOULD BE DISMISSED PURSUANT TO CPLR § 3211(a)(8) FOR
PLAINTIFF'S FAILURE TO EFFECTUATE SERVICE UPON DEFENDANT
17. Defendant TODD E. HOUSLANGER, has not been served with the Summons with
Notice or the Complaint of this action. Since Plaintiff has failed to effectuate service upon TODD
E. HOUSLANGER this action must be dismissed against him. No jurisdiction has been obtained
over Defendant TODD E. HOUSLANGER.
18. As the Plaintiff’s attorney’s practice is to file the bare bones Summons with Notice on or
about the last day that the Statute of Limitations expires and then waits until the day the 120 day
period expires to serve the Summons with Notice, the Plaintiff is well aware of the constraint and
the prejudice it imposes upon Defendants.
19. Plaintiff's counsel’s cavalier disregard for the rules of civil procedure violates Defendants
statutory rights and therefore this action should be dismissed with prejudice.
WHEREFORE, the Defendant respectfully requests that Court grant the instant motion in its
entirety, together with such other and further relief as to this Court may seem just and proper.
Dated: Huntington, New York
October 25, 2017
______________________________________
Todd E. Houslanger, Esq.
HOUSLANGER & ASSOCIATES, PLLC
Attorney for Defendant
TODD E. HOUSLANGER
372 New York Avenue
TO: Mitchell L. Pashkin, Esq. Huntington, New York 11743
775 Park Avenue, Suite 255 (631) 427-1140
Huntington, NY 11743 Our File No.: 299327
4 of 5
FILED: NEW YORK COUNTY CLERK 10/25/2017 12:23 AM INDEX NO. 154967/2017
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/25/2017
INDEX NO.: 154967/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------------X
CHRISTIAN RUSSELL,
Plaintiff,
-against-
HOUSLANGER & ASSOCIATES, PLLC,
AND TODD E. HOUSLANGER,
Defendants.
NOTICE OF MOTION TO DISMISS
And
AFFIRMATION IN SUPPORT OF MOTION TO DISMISS ACTION
HOUSLANGER & ASSOCIATES, PLLC
Attorneys for Defendant
TODD E. HOUSLANGER
372 New York Avenue
Huntington, NY 11743
Tel. (631) 427-1140
Fax. (631) 427-1143
Our File No.: 299327
_________________________________________________________
Service of a copy of the within is hereby admitted
Dated:
To:
Attorney(s) for
5 of 5
Preview
FILED: NEW YORK COUNTY CLERK 10/25/2017 12:23 AM INDEX NO. 154967/2017 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/25/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------X CHRISTIAN RUSSELL, INDEX NO.: 154967/2017 Plaintiff, AFFIRMATION IN -against- SUPPORT OF MOTION TO DISMISS ACTION HOUSLANGER & ASSOCIATES, PLLC, AND TODD E. HOUSLANGER, Defendants. -------------------------------------------------------------------------X TODD E. HOUSLANGER, ESQ., an attorney admitted to practice before the Courts of the State of New York, hereby affirms the following, under penalty of perjury and pursuant to CPLR § 2106: 1. I am the Managing Attorney of the firm of Houslanger & Associates, PLLC, attorneys for Defendants, HOUSLANGER & ASSOCIATES, PLLC and TODD E. HOUSLANGER, in the above-captioned action, and am fully familiar with all the facts and circumstances presented herein. 2. I respectfully submit this affirmation in support of the instant application seeking an order pursuant to CPLR §3012(b) dismissing this action for Plaintiff’s failure to serve the complaint within twenty (20) days after service of Defendants demand for complaint or in the alternative, to dismiss the action pursuant to CPLR § 3211(a)(1) and/or 3211(a)(2) and/or 3211(a)(7) and/or 3211(a)(8). 3. This Motion to Dismiss does not constitute an appearance. PROCEDURAL HISTORY 4. Plaintiff commenced this action by filing a Summons with Notice on or about May 31, 2017 see a copy of the “Summons with Notice” annexed hereto as Exhibit “A”. 1 of 5 FILED: NEW YORK COUNTY CLERK 10/25/2017 12:23 AM INDEX NO. 154967/2017 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/25/2017 5. According to the Affidavit of Service filed by Plaintiff, Defendant, HOUSLANGER & ASSOCIATES, PLLC was allegedly served on September 27, 2017. See “Affidavit of Service” annexed hereto as Exhibit “B”. No complaint was served with the Summons. 6. Defendant TODD E. HOUSLANGER, has not been served and no Affidavit of Service attesting to service upon TODD E. HOUSLANGER has been filed by Plaintiff. 7. Thereafter on October 3, 2017, a demand for service of a complaint was served upon Mitchell L. Pashkin, Esq attorney for Plaintiff. See attached as Exhibit “C” a copy of Defendant’s demand for complaint. 8. No extension of time to serve the complaint has been granted. 9. A complaint has not been served in answer to Defendant’s demand and more than twenty (20) days have elapsed since service of said demand. THIS ACTION SHOULD BE DISMISSED PURSUANT TO CPLR § 3012(b) FOR PLAINTIFF'S FAILURE TO SERVE THE COMPLAINT WITHIN TWENTY (20) DAYS OF DEFENDANTS' DEMAND FOR COMPLAINT 10. Pursuant to CPLR § 3012(b), Plaintiff was required to serve the complaint within twenty (20) days after service of Defendant’s demand for complaint. CPLR § 3012(b) provides, in pertinent part: Service of the complaint shall be made within twenty days after service of the demand. Service of the demand shall extend the time to appear until twenty days after service of the complaint. If no demand is made, the complaint shall be served within twenty days after service of the notice of appearance. The court upon motion may dismiss the action if service of the complaint is not made as provided in this subdivision. 11. By the plain language of CPLR § 3012(b), a party may move to dismiss the action if the complaint is not timely served. In order to avoid dismissal of an action for failure to timely serve a complaint after a demand has been made, "[t]he plaintiff must demonstrate both a 2 of 5 FILED: NEW YORK COUNTY CLERK 10/25/2017 12:23 AM INDEX NO. 154967/2017 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/25/2017 reasonable excuse for the delay in serving the complaint and a meritorious cause of action." Weisel v. City of New York, 897 N. Y .S.2d 673 (Sup. Ct. Kings Co. 2009). 12. The Court of Appeals cautioned that while the lower courts enjoy considerable latitude in determining whether to dismiss an action pursuant to CPLR § 3012(b), the plaintiff must demonstrate a reasonable excuse for the delay and meritorious claims to avoid dismissal. See Barasch v. Micucci, 49 N.Y.2d 594,404 N.E.2d 1275,427 N.Y.S.2d 732 (1980). 13. Excuses categorized under "law office failure" cannot properly serve as a basis for defeating a motion to dismiss under CPLR 3012(b), and a showing of merit requires an affidavit containing evidentiary facts attested to by individuals with personal knowledge of the facts. Id., 49 N.Y.2d at 599. The "[a]ffidavit must be sufficient to establish prima facie that the plaintiff has a good cause of action." Jd., 49 N.Y.2d at 599. Furthermore, the "[a]bsence of prejudice to the defendant cannot serve as a basis for withholding relief under CPLR 3012 (subd [b])." ld., 49 N.Y.2d at 600. 14. Plaintiff's counsel is a serial filer and brings numerous actions by filing just a Summons with Notice in an attempt to compel settlements from defendants, without making the effort to put forth valid causes of action or make the effort to draft the Complaint. 15. Plaintiff files their purported claims based upon Federal Question and includes the NY GBL in order to take advantage of the expedited and least costly method of filing a Summons with Notice. 16. If Plaintiff’s counsel chooses to serve by the manner he does (Summons with Notice), then he must abide by the strict requirements concomitant therewith and serve the complaint within twenty (20) days of the demand thereof. 3 of 5 FILED: NEW YORK COUNTY CLERK 10/25/2017 12:23 AM INDEX NO. 154967/2017 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/25/2017 THIS ACTION SHOULD BE DISMISSED PURSUANT TO CPLR § 3211(a)(8) FOR PLAINTIFF'S FAILURE TO EFFECTUATE SERVICE UPON DEFENDANT 17. Defendant TODD E. HOUSLANGER, has not been served with the Summons with Notice or the Complaint of this action. Since Plaintiff has failed to effectuate service upon TODD E. HOUSLANGER this action must be dismissed against him. No jurisdiction has been obtained over Defendant TODD E. HOUSLANGER. 18. As the Plaintiff’s attorney’s practice is to file the bare bones Summons with Notice on or about the last day that the Statute of Limitations expires and then waits until the day the 120 day period expires to serve the Summons with Notice, the Plaintiff is well aware of the constraint and the prejudice it imposes upon Defendants. 19. Plaintiff's counsel’s cavalier disregard for the rules of civil procedure violates Defendants statutory rights and therefore this action should be dismissed with prejudice. WHEREFORE, the Defendant respectfully requests that Court grant the instant motion in its entirety, together with such other and further relief as to this Court may seem just and proper. Dated: Huntington, New York October 25, 2017 ______________________________________ Todd E. Houslanger, Esq. HOUSLANGER & ASSOCIATES, PLLC Attorney for Defendant TODD E. HOUSLANGER 372 New York Avenue TO: Mitchell L. Pashkin, Esq. Huntington, New York 11743 775 Park Avenue, Suite 255 (631) 427-1140 Huntington, NY 11743 Our File No.: 299327 4 of 5 FILED: NEW YORK COUNTY CLERK 10/25/2017 12:23 AM INDEX NO. 154967/2017 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/25/2017 INDEX NO.: 154967/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------X CHRISTIAN RUSSELL, Plaintiff, -against- HOUSLANGER & ASSOCIATES, PLLC, AND TODD E. HOUSLANGER, Defendants. NOTICE OF MOTION TO DISMISS And AFFIRMATION IN SUPPORT OF MOTION TO DISMISS ACTION HOUSLANGER & ASSOCIATES, PLLC Attorneys for Defendant TODD E. HOUSLANGER 372 New York Avenue Huntington, NY 11743 Tel. (631) 427-1140 Fax. (631) 427-1143 Our File No.: 299327 _________________________________________________________ Service of a copy of the within is hereby admitted Dated: To: Attorney(s) for 5 of 5