Motion-Secondary: Pawflex Inc. v. International Warehouse Group Inc., Hartford Fire Insurance Company

On February 08, 2021 a Motion-Secondary was filed involving a dispute between Pawflex Inc., and Hartford Fire Insurance Company, International Warehouse Group Inc., for Torts - Other (negligence) in the District Court of Kings County.

Preview
FILED: KINGS COUNTY CLERK 10/05/2022 10:40 PM INDEX NO. 503015/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/05/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------------------X
PAWFLEX INC.,
Index No. 503015/2021
Plaintiff,
AFFIRMATION IN
-against- OPPOSITION TO
DEFENDANT IWG’S
INTERNATIONAL WAREHOUSE GROUP, INC. and MOTION TO VACATE
HARTFORD FIRE INSURANCE COMPANY, DEFAULT

Defendants.
--------------------------------------------------------------------X

SCOTT E. AGULNICK, an attorney and counselor at law, duly admitted to practice law

before the Courts of the State of New York, and a partner of the law offices of GREENBLATT

AGULNICK KREMIN, P.C., affirms the following to be true under the penalties of perjury:

1. Your Affirmant is fully familiar with the facts and circumstances of the within

action, based upon information and belief and information contained within the file maintained

by this office, submits this affirmation in opposition to Defendant INTERNATIONAL

WAREHOUSE GROUP, INC.’s motion for an Order pursuant to NY CPLR §§ 317 and

5015(a)(1) to vacate the default judgment order entered on October 13, 2021 in favor of the

Plaintiff Pawflex, Inc. against IWG.

I. PRELIMINARY STATEMENT

2. Defendant INTERNATIONAL WAREHOUSE GROUP, INC. (hereinafter

“IWG”) files this motion to vacate the default judgment (NYSCEF Doc No. 21) in an untimely

and wasteful manner.

1 of 11
FILED: KINGS COUNTY CLERK 10/05/2022 10:40 PM INDEX NO. 503015/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/05/2022

3. Defendant IWG’s counsel filed a Notice of Appearance in this matter on or about

October 13, 2021, the same date This Court granted Plaintiff’s motion for a default judgment for

IWG’S failure to appear in this action.

4. That Defendant has not answered the Complaint and now moves to vacate a

default judgment nearly a year later after it has been entered, and a year and a half after the

Motion for Default was served, a year after being personal served subpoena. Unreasonable delay,

gamesmanship, and disingenuous assertions cannot cure the intentional avoidance of joining suit.

Assertions of not receiving notice from the Department of State are belied by the prior actions on

record where service was effectuated precisely the same way.

5. Pursuant to CLPR §§ 5015(a)(1) and 317, each will be addressed in this

affirmation, should be denied in its entirety.

II. BACKGROUND

6. By way of background, this is an action by Plaintiff PAWFLEX INC.,

(hereinafter referred to as “Plaintiff”), inter alia, to recover from the defendants, for losses which

occurred on February 29, 2019, (hereinafter referred to as “the Loss”) at INTERNATIONAL

WAREHOUSE GROUP, INC. (hereinafter referred to as “IWG”) located at 290 Spagnoli Road,

Melville, New York 11747 (hereinafter referred to as the “Warehouse”), in the County of Suffolk

and State of New York. A copy of the Summons and Verified Complaint is annexed hereto as

EXHIBIT A. A copy of Defendant HARTFORD FIRE INSURANCE COMPANY’s Answer

filed April 8, 2021 is annexed hereto as EXHIBIT B.

7. On February 11, 2021, service was effectuated on Defendant IWG by personal

service upon Sue Zouky, authorized by the Secretary of State to receive such service, at the

2 of 11
FILED: KINGS COUNTY CLERK 10/05/2022 10:40 PM INDEX NO. 503015/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/05/2022

Department of State in the City of Albany, New York. A copy of the Affidavit of Service is

annexed hereto as EXHIBIT C and it was filed in a timely manner with the Clerk on February

16, 2021 via e-file.

8. That Plaintiff served additional copies of the Summons and Verified Complaint

on March 17, 2021 to Defendant’s place of business and served a copy of the Notice of Motion

for Default Judgment on April 15, 2021. See NYSCEF Doc. No. 12 & 17.

9. Plaintiff was forced to file a motion for default judgment as against Defendant

IWG despite good faith efforts. See Plaintiff’s Motion for Default judgment at NYSCEF Doc

Nos. 8 – 17. On or about September 30, 2021, This Court granted Plaintiff’s motion for default

judgment. A copy of Default Judgment Order is annexed hereto as EXHIBIT D.

10. That Plaintiff also served a Subpoena Ad Testificandum on IWG via personal

service to an agent of IWG at their principal address and place of business on September 30,

2021. The subpoena included the same caption, made reference to the instant matter, and the

same address as listed with the Secretary of State. A copy of the subpoena and the affidavit of

service of the subpoena is annexed hereto as EXHIBIT E.

11. Defendant IWG has since participated in the case since October, 2021, without

moving to vacate the default, including but not limited to appearing at Preliminary and

Compliance Conferences.

III. DISCUSSION

A. Legal Standard

12. To prevail on a motion to vacate pursuant to CPLR 5015 (a) (1), a defendant must

"demonstrate both a reasonable excuse for [its] failure to timely answer and the existence of a

3 of 11
FILED: KINGS COUNTY CLERK 10/05/2022 10:40 PM INDEX NO. 503015/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/05/2022

potentially meritorious defense to the underlying causes of action" (Luderowski v Sexton, 152

AD3d 918, 919 [2017]). "The reasonableness of [the] proffered excuse must be assessed based

on all relevant factors, including the extent of the delay, whether there has been prejudice to the

opposing party, whether there has been willfulness, and the strong public policy in favor of

resolving cases on the merits" (id. at 919-920 [internal quotation marks and citations omitted]).

13. Here, Defendant cannot demonstrate a reasonable excuse for its failure to timely

answer the complaint, after waiting nearly a year to do so. Plaintiff properly effectuated service

on the Secretary of State. See EXHIBIT C.

14. Notably, Defendant claim to have not receive the summons and complaint

because it failed to update the address with the Secretary of State. The Defendant and its attorney

have affirmatively stated that IWG failed to update its service address for “at least 9 years.” See

Movant’s Affirmation pp 34-37.

15. “Under CPLR 5015, "there is no per se rule that a corporation served through the

Secretary which failed to update its address on file there cannot demonstrate an excusable

default." Rather, the determination of whether a default was reasonable pursuant to CPLR 5015,

depends on factors including the length of time during which defendant did not update its

address. (See Eugene Di Lorenzo Inc v A.C. Dutton Lumber Co., 108 AD2d 1004 [1986]); Dwyer

Agency of Mahopac, LLC v Dring Holding Corp., 164 AD3d 1214 [2d Dept, 2018]; Li Fen Li v

Cannon Co., Inc. 155 AD3d 858 [2d Dept, 2017]). “Defendant's years of neglect to update its

address does not constitute a reasonable excuse for default, and warrants denial of the motion

pursuant to CPLR 5015(a)”. (See, Bing Fang Qiu v Cameo Owners Corp., 172 AD3d 802 [2d

Dept 2019]).

4 of 11
FILED: KINGS COUNTY CLERK 10/05/2022 10:40 PM INDEX NO. 503015/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/05/2022

16. “In contrast to a motion pursuant to CPLR 317, on a motion pursuant to CPLR

5015 (a) (1), the movant is required to establish a reasonable excuse for his or her default. In

general, a defendant's failure to keep a current address on file with the Secretary of State does not

constitute a reasonable excuse (see Gershman v Midtown Moving & Stor., Inc., 123 AD3d 974,

975 [2014]; Sussman v Jo-Sta Realty Corp., 99 AD3d 787, 788 [2012]; Bontempts v Aude

Constr. Corp., 98 AD3d 1071, 1072 [2012]; Castle v Avanti, Ltd., 86 AD3d 531 [2011]).

B. DEFENDANT IWG HAS NOT DEMONSTRATED EXCUSABLE
NEGLECT

17. Defendant IWG has not demonstrated a excusable neglect in the matter.

Defendant IWG noted its appearance October 2021 and did not file a motion to vacate the

judgment at that time. Further, Defendant did not move to for leave to serve an Answer and did

not initially respond to the subpoena that was personally served to the defendant. Thus,

Defendant IWG, since October 2021, demonstrated no intention to defend its interest or present

affirmative defenses to the complaint.

18. CPLR 317 provides that a person served with a summons, other than by personal

delivery to him or her, who does not appear, may be allowed to defend the action within one year

after he or she obtains knowledge of entry of the judgment upon a finding of the court that he or

she did not personally receive notice of the summons in time to defend and has a potentially

meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141

[1986]; Moran v Grand Slam Ventures, LLC, 160 AD3d 944, 945 [2018]). However, the "mere

denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice

of the action in time to defend for the purpose of CPLR 317" (Goldfarb v Zhukov, 145 AD3d

757, 758 [2016]; see Moran v Grand Slam Ventures, LLC, 160 AD3d at 945; Thas v Dayrich

Trading, Inc., 78 AD3d 1163, 1164 [2010]).

5 of 11
FILED: KINGS COUNTY CLERK 10/05/2022 10:40 PM INDEX NO. 503015/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/05/2022

19. There is no reasonable excuse for the severe delay of “at least 9 years” of

Defendant’s efforts to update its address with the circumstances and thus, cannot not demonstrate

the lack of notice in the instant action. Under these circumstances, the defendant did not

demonstrate lack of actual notice of the action (see Moran v Grand Slam Ventures, LLC, 160

AD3d at 945; Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d 724, 725-726 [2016]).

20. Defendant has presented that their service address has not been updated for “at

least 9 years” and then states its failure to update the address was inadvertent. This is ridiculous

and severely prejudices any party attempting to serve legal documents on Defendant, including

but not limited, this action as that would be Defendant’s “excuse” to avoid service of process.

21. “A court should consider, among other factors, the length of time for which the

address had not been kept current” (see Lbr. Co., 67 NY2d at 143). Here, Defendant’s actions

should not constitute a reasonable excuse for its default as it does not take 9 years to change an

address for service of process.

22. Also, as is discussed below, this is not the only lawsuit served upon IWG through

the secretary of state within that nine-year period of disregard for their own service address. To

that end, it defies credulity that IWG was unaware of the location where process was being sent

by the Department of State.

23. Based upon these well settled standards, there exists no ground upon which

Defendant INTERNATIONAL WAREHOUSE GROUP, INC can successfully move to vacate

the default judgment pursuant to CPLR §§ 317 and/or 5015(a)(1).

24. “As defendant failed to provide a justifiable excuse, we need not consider whether

it established a potentially meritorious defense ( CPLR 5015[a][1] ; see New Globaltex Co., Ltd.

6 of 11
FILED: KINGS COUNTY CLERK 10/05/2022 10:40 PM INDEX NO. 503015/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/05/2022

v. Lin, 198 A.D.3d 573, 574, 152 N.Y.S.3d 900 [1st Dept. 2021] ).” Aetna Life Ins. Co. v. UTA of

KJ Inc., 203 A.D.3d 401, 402 (N.Y. App. Div. 2022).

C. DEFENDANT’S “EXCUSE” IS BELIED BY THE FACT THAT IWG HAS
BEEN SERVED AND APPEARED IN MULTIPLE OTHER LAWSUITS IN
THE SAME 9-YEAR PERIOD OF TIME

25. Contrary to the rather tone-deaf claims of excusable neglect and blame upon the

Secretary of State, Defendant IWG fails to account for the fact that IWC has been sued and

appeared in other lawsuits during that same period of time.

26. A simple review of NYSCEF reveals that IWG was a party to multiple lawsuits,

including:

a. That an action was brought in Nassau County Supreme Court, Juan Barahona et

al v. International Warehouse Group, Inc. bearing Index no. 603305/2017. In that action,

Defendant was also served via Secretary of State on April 27, 2017. A copy of the

Affidavit of Service is annexed hereto as EXHIBIT F. Defendant appeared in that action

on June 19, 2017 and did not object to service or did not state it did not receive the

action.

b. Further, an action brought in Suffolk County Supreme Court named Santos Noe

Paz v. 290 Spagnoli Realty, LLC, et al bearing Index No. 616145/2017 served its

Summons & Complaint via personal service at 290 Spagnoli Road, Melville, NY 11747

on August 28, 2017. Defendant also appeared in that action on October 13, 2017. A copy

of the affidavit of service is annexed hereto as EXHIBIT G.

27. The Defendant’s prior participation in lawsuits served in the precise manner as

this render their excuse as to the service address not being updated is entirely disingenuous.

7 of 11
FILED: KINGS COUNTY CLERK 10/05/2022 10:40 PM INDEX NO. 503015/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/05/2022

There was not one prior lawsuit, but two, making this the third instance where Defendant turned

a blind eye to their Department of State service address allegedly being outdated.

D. DEFENDANT OFFERED NO EXCUSE FOR NOT RESPONDING TO 3215
NOTICE OR THE MOTION FOR DEFAULT ITSELF, OR FOR
WAITING TO MOVE FOR RELIEF

28. In addition to the foregoing, Defendant offers no sufficient explanation as to its

disregard for the Notice pursuant to CPLR 3215(g) or the Notice of Motion for Default was sent

to Defendant’s address located at 290 Spagnoli Road, Melville, NY 11747.

29. Defendant attempts to blame the Covid-19 pandemic for not receiving any mail,

but such an excuse is not reasonable under the circumstances, entirely disingenuous, transparent,

and fails to excuse Defendant for essentially waiting over a year from when it had actual

knowledge of the suit and its own default.

30. In other words, Defendant knowingly waited over a year from the moment

Defendant had actual notice of the lawsuit to bring the instant motion, waited until after

discovery had commenced, after Plaintiff had expended resources to serve a subpoena upon

Defendant, and after attempts at settlement.

31. CPLR 317 does not give free reign to a defendant who actually and indisputably

is aware of a lawsuit to simply “take a year” before moving to vacate a default. The statute

exists for those with a viable and genuine excuse, not one which undertakes a calculated course

to procrastinate and frustrate. That is far beyond the statute’s intent.

32. Here, Defendant IWG did just that. The default motion was served over a year

and a half ago. The default motion was made over a year and a half ago. To assert a reasonable

excuse or reasonable delay under these circumstances defies credulity. Tales of dazzling

philanthropy through the pandemic are transparent and irrelevant to the conversation.

8 of 11
FILED: KINGS COUNTY CLERK 10/05/2022 10:40 PM INDEX NO. 503015/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/05/2022

IV.CONCLUSION

33. Defendant had notice of this action by service of the Summons & Complaint,

additional notice pursuant to CPLR 3215(g), service of the motion of default judgment in March

2021, and personal service of the subpoena in September 2021. Defendant’s counsel appeared in

this action October 2021 and failed to move for a vacate judgment or time to submit an Answer.

IWG thus let a year go by, as though the CPLR allows for the perfect mechanism to delay an

action, notwithstanding the participation of the other parties or the court. The CPLR does not

extend time to answer for over a year, nor is it intended to provide a context to engage in

disingenuous gamesmanship. Reasonable excuse also means, genuine.

34. Defendant is relying upon the incorrect supposition that if a defendant does not

receive a Complaint by personal service, or has some excuse, then effectively that Defendant is

under no obligation to act quickly to move to vacate the default, and that the CPLR allows for a

year to remedy its own failures. In other words, if one does not receive service personally, the

time to answer is extended by, as in the case here, almost a year and a half after the default itself.

Defendant IWG watched that time go by, dragging its feet, and demonstrating an intent NOT to

appear in the action. At some point, the “reasonable excuse” morphs into intentional delay, as is

crystal clear in the case here.

35. As is evident from NYSCEF records itself,this is not the first lawsuit IWG has

been a party to, or served through the Secretary of State. The old adage, “fool me once shame on

you, fool me twice shame on me” is appropriate, as the inexcusable blame falls on IWG, at least

for the second or third lawsuit subject of the same manner of service.

9 of 11
FILED: KINGS COUNTY CLERK 10/05/2022 10:40 PM INDEX NO. 503015/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/05/2022

36. Based upon the foregoing, it is respectfully submitted that defendant’s Motion

should be denied in its entirety.

Dated: Great Neck, New York
October 5, 2022
Yours, etc.

GREENBLATT AGULNICK KREMIN, P.C.,

By: ___________________________
Scott E. Agulnick, Esq.
Attorney for Plaintiff
PAWFLEX INC.
55 Northern Boulevard, Suite 302
Great Neck, New York 11021
Tel: (718) 352- 4800
Fax: (718) 732- 2110

TO:

Laura J. Mulholland
RIVKIN RADLER LLP
Attorneys for Defendant
HARTFORD FIRE INSURANCE COMPANY
926 RXR Plaza Uniondale
New York 11556-0926
Tel: (516) 357-3000

Jonathan S. Bodner, Esq.
BODNER LAW PLLC
Attorneys for Defendant
INTERNATIONAL WAREHOUSE GROUP, INC.
55 Cherry Lane, Suite 101
Carle Place, New York 11514
Tel: (516) 444-3923

10 of 11
FILED: KINGS COUNTY CLERK 10/05/2022 10:40 PM INDEX NO. 503015/2021
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/05/2022

Index #: 503015/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS

PAWFLEX INC.,

Plaintiff,

-against-

INTERNATIONAL WAREHOUSE GROUP, INC. and HARTFORD FIRE INSURANCE
COMPANY,

Defendants.

PLAINTIFF’S AFFIRMATION IN OPPOSITION TO
DEFENDANT INTERNATIONAL WAREHOUSE GROUP, INC.’S MOTION

GREENBLATT AGULNICK KREMIN, P.C.
Attorneys for PLAINTIFF(s)
Office and Post Office Address, Telephone
55 Northern Boulevard, Suite 302
Great Neck, NY 11021
Tel: (718) 352- 4800
Fax: (718) 732- 2110

“WE DO NOT ACCEPT SERVICE BY ELECTRONIC TRANSMISSION (FAX)”
To:
Attorney(s) for DEFENDANT(S)

Certification pursuant to 22 NYCRR 130-1.1(a)
It is hereby certified that, to the best of the undersigned’s knowledge, information and
belief, formed after an inquiry reasonable under the circumstances, the presentation of the paper
and/or the contentions herein are not frivolous as defined in section 130-1.1(c).

10/05/2022 __________________________
Dated Scott E. Agulnick, Esq.

Service of a copy of the within is hereby admitted
………………………………………………………………………………
Attorney(s) for

11 of 11

Case Info

Judge

Karen B Rothenberg Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

October 05, 2022

Case Filing Date

February 08, 2021

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.