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NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 01/29/2021
EXHIBIT L
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72 for COM 12
At the I.A.S. Part of the Supreme Court of
the State of New York, held in and for the
County of Kings, at the Courthouse located at
360 Adams Street, New York, New York, on
8th of .
the ___day
Ka J. for January 2021.
y King
PRESENT: HON.
In the Matter of the Application of:
Index No.: 504897/2020
Shaul Kopelowitz,
Mohfieclh
DISM - D Petitioner
ORDER TO SHOW
CAUSE
For a judgment Pursuant to CPLR 5206 (e)
for the Sale of a Homestead Exceeding one
hundred and fiftythousand dollars,
-against-
Michael Lichtenstein a/k/a Yechiel Lichtenstein,
Respondent.
______________________________
Upon the accompanying affirmation of Israel Goldberg, Esq., dated December 1 1, 2020
the exhibits annexed thereto and the affirmations of Miriam Gross dated December 10, 2020
and Miriam Gross dated December 9, 2020, and upon all filings herein,
COM 12 virtually, by telephone, or as per
LET Petitioner Show Cause before this Court, Reem====vat-the-Gourtheese;deeated
COM j)..Rules 20 2-(
ata6944ame-Brooleyn;-New-Y-eek-on the day of 2020-at an IAS
COM
Part at 9:30 a.m./pm= or as soon thereafter as counsel can be an Order
_12_ heard, why
should not be entered:
(a) Dismissing the captioned action pending in Supreme Court Kings County under
Index No.: 504897/2020 pursuant to CPLR §3211(a)(8) as this Court has not obtaiñed
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jurisdiction over the person of Respondent Michael Lichtenstein a/k/a Yechiel Lichtenstein; or
(b) In the alterñative setting thismatter down for a traverse hearing to determine the
efficacy of service upon Respondent Michael Lichtenstein a/k/a Yechiel Lichtenstein; and
(c) Vacating the Decision and Order of this Court dated December 4, 2020 issued
in the action pending in Supreme Court Kings County under Index No.: 527036/2019 granting
Petitioner leave to settlean order in the within proceeding pending under Supreme Court Kings
County under Index No.: 504897/2020 to sell the real property of Michael Lichtenstein a/k/a
5th
Yechiel Lichtenstein located at 929 East Street, Brooklyn, New York pursuant to the
provisions of CPLR § 5206; and
(d) Staying Petitioner Shaul Kopelowitz his agents and/or employees, assignees or
anyone acting on his behalf from taking any action to enforce the judgment entered against
Respondent Michael Lichtenstein a/k/a Yechiel Lichtcñstain in the action pending under Kings
County under Index No.: 527036/2019 against the parcel of real property located at 929 East
5th
Street, Brooklyn, New York; and
(e) For such other reliefas the Court deems just and proper; and itis further
STAY ORDERED a and-determination- of this application Petitioner
that, pending hearing
Shaul Kopelowitz his agents and/or employees, âssigñees or anyone acting on his behalf are
JSC
restrained and enjoined from taking any action to enforce the judgment entered against
Defendant Michael Lichtenstein a/k/a Yechiel Lichtenstein in the action peñding under Kings
County under Index No.: 527036/2019 against the parcel of real property located at 929 East
5th anada-fmfaes-
Street, Brooklyn, New York;
ORDERED=that=seply-papess;--iS-am5-mast=be-scssed-and-filed-on-=or=before-
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
In the Matter of the Application of:
Index No.:
Shaul Kopelowitz, 504897/2020
Petitioner, Mot. Seq. No. 2
For a judgment Pursuant to CPLR 5206 (e) for the AFFIRMATION
Sale of a Homestead Exceeding one hundred and fifty IN SUPPORT
thousand dollars, OF ORDER TO
SHOW CAUSE
-against-
Michael Lichtenstein a/k/a Yechiel Lichtenstein,
Respondent.
Israel Goldberg, an attorney duly admitted to practice law in the State of New York
affirms under the penalties of perjury.
1. I am a member of Goldberg & Markus, PLLC, attorneys for defendant Michael
Lichtenstein a/k/a Yechiel Lichtenstein ("Lichtenstein") and I submit this affirmation in support
of Defendant's Order to Show Cause for dismissal of this action as the Court has not obtained
jurisdiction over the person of Defendant Lichtenstein, or in the alternative setting this matter
down for a traverse hearing as Petitioner has failed to effect service of this proceeding on
Defendant as directed by the Court; and staying and enjoining Petitioner his agents and
employees from taking any action to all proceedings enforce the judgment entered against
Defendant Michael Lichtenstein a/k/a Yechiel Lichtenstein in the action pending under Kings
5th
County under Index No.: 527036/2019 against the parcel of real property located at 929 East
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Street, Brooklyn, New York (hereinafter Property); and for such other and further relief as is just
and proper.
2. At the outset the Court is asked to note that, as described below, jurisdiction over the
person of Respondent has not been obtained. There was a failure to serve this plenary action
(which is a special proceeding) as required by the Court. Having failed to effect service as required
and personal jurisdiction not obtained – this Court is without authority to grant the application
grant the relief sought under CPLR § 5206 against Respondent.
3. Petitioner Shaul Kopelowitz (hereinafter Kopelowitz or Petitioner ) has commenced
two separate proceedings against Defendant.
a) The first sought entry of a Judgment based on a Confession of Judgment
(hereinafter COJ) filed by Petitioner on December 11, 2019 (NYSCEF docket #1
and 2 in the Kings County under Index No.: 527036/2019) (hereinafter 2019
proceeding).
b) The second action was commenced on February 26, 2020 in Kings County under
Index No.: 504897/2020 (hereinafter 2020 Proceeding). The 2020 proceeding was
commenced by the filing of a Verified Petition and Order to Show Cause, which
sought an order authorizing the sale of Defendant Michael Lichtenstein a/k/a
Yechiel Lichtenstein’s home to satisfy the judgment obtained in the 2019
proceeding.
4. The 2019 proceeding was a discrete proceeding that addressed the efficacy of the
Confession of Judgment (the deficiencies in the filed document, amount of judgment and the
monetary obligations that were purported to be confessed by the document). Once that single
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issue was resolved the case was disposed and the proceeding for enforcement should have been
commenced by a NEW plenary action. See CPLR § 5206(e)
5. The Court in the 2019 proceeding addressed the issues regarding the propriety of the
Confession of Judgment. In an order docketed on January 29, 2020 the Court (Ruchelsman, J)
issued an order that left the Confession of Judgment in place subject to a hearing by a referee
appointed to hear and report regarding the accuracy of the amount of the COJ. NYSCEF docket
# 37.
6. Prior to the issuance of the Referee’s report on November 5, 2020, the Court filed in
the 2019 proceeding a signed copy of the Order to Show Cause order portion (without the
supporting documents) of the OSC filed in the 2020 proceeding. See NYSCEF Docket # 51 to the
case pending under Index # 527036/2019.
7. That signed Order to Show Cause was the same Order portion of the Order to Show
Cause docketed in the 2020 proceeding at NYSCEF docket # 13.
8. Even more confusing is the fact that the only upload of the Order to Show Cause in the
2019 case is by a “COURT USER” and that there is no proposed Order to Show Cause filed on
the efile docket prior to the upload of the Court signed OSC. NYSCEF docket # 51
9. Equally bizarre is the affidavit of service of the signed OSC uploaded to the efile
docket at NYSCEF docket # 53 in 2009 proceeding.
10. That affidavit – the first upload to motion sequence Michael Lichtenstein Michael
Lichtenstein 2 in the 2019 proceeding – lists Kings County Index number 504897/2020 as the case
in which the papers were being served.
11. There are many questions raised by the interchangeable filings in separate court
dockets. What is of most concern is the issuance of a Decision and Order of the Court throwing
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Defendant Lichtenstein out of his house based on pleadings that were not properly served and the
substantial due process violations in the issuance of decisions and orders affecting the movant.
12. The saga continues.
13. On November 5, 2020 the report of the Referee (Daniel D. Kuhn) was docketed on
efile as NYSCEF docket # 54 in the 2019 proceeding (Hereinafter “Referee’s Report”).
14. By Decision and Order of the Court dated November 5, 2020 the Court, sua sponte,
entered an Order confirming the Referee’s Report. 1
15. In its November 5, 2020 decision sua sponte confirming the Referee’s
Report (NYSCEF docket # 54) the Court opined:
Although the order to show cause seeking the sale of the property
is based on a petition in the other action there is no reason why the
order to show cause cannot be considered at this time. Both actions
essentially concern the same confession of judgment and the same
relief.
16. In making its determination, the Court did not consider that it was without the
authority to consolidate the 2019 proceeding and the within 2020 proceeding. See AIU Ins. Co. v
ELRAC, Inc., 269 AD2d 412, 412 [2d Dept 2000] (“The Supreme Court erred when it ordered
consolidation in the absence of any motion by one of the parties for such relief (see, CPLR
602[b]”). “[T]he trial court acted improperly when, upon its own motion, it ordered consolidation
of the actions…Admittedly a court has broad powers to order consolidation but they should not
be exercised in a situation as at bar where neither side requests such action…” Singer v Singer,
1
The sua sponte ruling of the Court confirmation of the Referee’s Report ran afoul of the rules of procedure.
In its November 5, 2019 Decision and Order issued ithe related 2019 proceeding that this Court sua sponte
joined with this case (2020 proceeding), the Court confirmed the Referee’s report immediately upon it being
filed. It did so even though a motion to confirm was not filed, as required by Court regulation, and even
though the Referee’s report did not file not file the hearing exhibits and the transcripts of the proceeding
before him.
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33 AD2d 1054, 1055 [2d Dept 1970]. See also Lazich v Vittoria & Parker, 196 AD2d 526, 530
[2d Dept 1993](“although it appears that the instant action should be consolidated with the related
matrimonial action, neither this court nor the trial court has the authority to sua sponte order such
relief.”).
17. The cases are related only to the extent that the 2020 proceeding was filed to enforce
the judgment issued based on the COJ filed in the 2019 proceeding. The 2019 proceeding had
nothing to do with enforcement.
18. On November 12, 2020 seven (7) days after the Court in the 2019 action issued its
sua sponte confirmation of the Referee’s Report and opinion that it could make a ruling in the
2020 proceeding (NYSCEF docket # 55) (Exhibit A) in the context of the 2019 proceeding
(NYSCEF docket # 51) (Exhibit B). Following that ruling, the Court signed the Order to Show
Cause that was filed in the 2020 proceeding uploaded to NYSCEF on February 26, 2020 at
NYSCEF docket # 13 (Exhibit C) and uploaded it in the 2019 proceeding (NYSCEF docket #
51) (Exhibit B)
19. Notably, the affidavit of service of the OSC filed in the 2020 proceeding (NYSCEF
docket # 12) (Exhibit D) is the same affidavit of service filed in the 2019 proceeding at NYSCEF
docket # 53. (Exhibit E).
20. Notably the affidavit of service for the OSC ((NYSCEF docket # 53) states that it
was served in the case under index number 504897/2020 NOT in the case under Index #
527036/2019, i.e., the 2019 proceeding.
21. In making this determination, it is respectfully stated, that the Court ignored both
procedural and substantive requirements. In this regard the Court is asked to Consider the
following:
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Once the Court confirmed the report of the Referee’s Report in
its November 5, 2020 decision and determined that the COJ was
a valid document the 2019 proceeding was disposed.
The Court without any appropriate motion to have the cases
consolidated and heard together essentially consolidated the 2019
and 2020 proceedings.
Petitioner did not file a motion and petition for the sale of
Defendant’s home pursuant to CPLR § 5206(e) in the 2019
proceeding action in which the Court issued its Order authorizing
the sale.
The Petition to authorize the sale of Respondent’s home pursuant
to CPLR § 5206(e) was not served as directed by the Court and
jurisdiction over the person of Respondent Lichtenstein has not
been acquired by the Court.
22. In the 2019 proceeding the Court determined the only issue presented to it, to wit:
the efficacy of the Confession of Judgment. Once that determination issued (correctly or
incorrectly) the matter was disposed of except for applications respecting the Court‘s
determination allowing the Confession of Judgment to stand which included confirmation of the
Referee’s report.
23. On February 26, 2020 Petitioner Saul Kopelowitz commenced the plenary action
(2020 proceeding) to sell Respondent’s home pursuant to CPLR § 5206(e) by the filing of by
Order to Show Cause and a Verified Petition.
24. While the RJI filed in the 2020 proceeding notes the related 2019 case, neither of the
docket in the 2020 proceeding nor the 2019 proceeding has a filed application seeking
consolidation of the 2020 and 2019 actions.
25. In the 2020 proceeding Petitioner filed an Order to Show Cause with supporting
papers for an order allowing Petitioner to sell the Property pursuant to the provisions of CPLR §
5206. NYSCEF docket #s: 2 and 13 which is a conformed copy of OSC.
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26. In the 2019 proceeding the only document uploaded respecting Petitioner’s request
for an Order authorizing the sale of Defendant’s home pursuant to CPLR § 5206(e) are the decretal
paragraphs of the OSC. Based on the efile notations that document (NYSCEF docket # 51)
(Exhibit B) was uploaded by the Court. Interestingly, the docket in the 2019 proceeding does not
have a proposed Order to Show Cause uploaded to its efile docket. 2
27. No supporting documents were uploaded to the efile docket in the 2019 case. Based
on the Court record, a proposed OSC for motion sequence 2 was not filed.
28. Nonetheless, in the related but not consolidated 2019 proceeding the Court has issued
a Decision requiring an Order to be settled granting the OSC to allow the sale of Petitioner’s
home. NYSCEF docket # 55
29. On December 4, 2020 Petitioner settled a proposed Order in the 2020 proceeding
(NYSCEF docket # 15 and 16) based on the decision of the Court in the 2019 proceeding.
30. The proposed settlement leaves the date of argument and date of decision blank.
Undoubtedly it is blank because there was no decision in the 2020 proceeding.
31. SO WITH NO COURT ORDER IN THE 2020 PROCEEDING AND WITH NO
APPEARANCES BY RESPONDENT IN THE 2020 PROCEEDING, PETITIONER
KOPELOWITZ BY HIS ATTORNEY JEFFREY FLEISCHMAN, FILED A PROPOSED
ORDER.
2
A screen shot of the efile docket entry for motion sequence # 2 is attached.
The first mention of any document relating to motion sequence # 2 in the 2019 proceeding is the filing by
the Court User.
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32. To find the Order that Petitioner relies on in settling an Order in the 2020 proceeding
one must look at the docket in the 2019 proceeding at NYSCEF docket # 74. Exhibit G In that
action the Court making up its own procedure ruled that the 2019 proceeding and 2020 proceeding
are really the same so on December 4, 2020 it granted the application in the 2020 action but wrote
the decision in the 2019 action.
33. This application has been made as it appears the Court has, on its own, improperly
extended its jurisdiction to expand the 2019 proceeding and issue decisions in that case to decide
a motion in the 2020 proceeding that has not been consolidated into the 2019 proceeding. This
application is also made as there is substantial question as to whether the Court jurisdiction over
the person of Respondent has been obtained in this case as set out infra.
34. The Court is being asked to recall its improperly issued decision NYSCEF docket #
74 in the 2019 proceeding
35. Of particular concern is the fact that the Court has granted an application on an Order
to Show Cause and Verified Petition that has not been properly served regarding a case where
personal jurisdiction (as set out below) has not been obtained over the person of Petitioner .
36. This application is seeks an Order of the Court dismissing this action as jurisdiction
over the person of Respondent Lichtenstein has never been obtained in this (the 2020 proceeding)
case.
37. The failure of service is evident on the face of the affidavit of service filed in the 2020
proceeding at NYSCEF docket No.: 12. That affidavit of service reflecting that service was
purportedly made in the 2020 proceeding was efiled as proof of service in the 2019 action at
NYSCEF docket # 53. (Exhibit E)
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38. So service on one OSC was purportedly made by serving one set of papers to cover
two separate and distinct cases.
39. The Signed OSC in the 2020 case required Petitioner to serve the Order to Show
Cause on or before October 26, 2020 by “personal service of a copy of this Order, the Petition
and the papers upon which it is granted upon respondent/Judgment debtor Yechiel Lichtenstein
…” NYSCEF docket # 53 in the 2019 proceeding and NYSCEF docket # 12 in the 2020
proceeding. 3
40. The affidavit of service filed by the process server Mahmoud Nassar states that he
served the
ORDER TO SHOW CAUSE DATED OCTOBER 19, 2020 AND
SUPPORTING PAPERS on MICHAEL LICHTENSTEIN A/K/A
YECHIEL LICHTENSTEIN A/K/A YECHIAL LICHTENSTEIN
….
NYSCEF docket # 12 in the 2020 proceeding.
41. The affidavit does not state that a copy of the Petition was served on Defendant
Lichtenstein. It swears that all that Nassar served was the Order to Show Cause and the supporting
papers. There is no statement what those supporting papers were.
42. The service attested to in the affidavit is not compliant with the law.
43. The statute and attendant case law requires that the Petition be served as a separate
and distinct document from the Order to Show Cause. Even if the Petition was one of the exhibits
attached to the Order to Show Cause service of process is deficient if not served separately.
3
The upper right hand corner of the affidavit of service lists the Index Number of the document alleged to
have been served. The stated Index # is: 504897/2020 – the index number of the action in which this
application is filed. Thus, there is no affidavit attesting to service in the 2019 proceeding.
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44. The Courts have consistently held that “[w]here a summons has not yet been served
when a party seeks preliminary injunctive relief by way of order to show cause, the summons
should accompany the order to show cause and be served at the same time; it should not merely
be included as part of the papers on which the motion is based.” See Jamaica Chamber of
Commerce, Inc. v. Orion Plumbing & Heating Corp., 32 Misc.3d 1234(A) at 2, (2011).
45. Service of an order to show cause with the Petition as an exhibit to the Order to
Show Cause is insufficient to acquire personal jurisdiction over a defendant. See , Jamaica
Chamber of Commerce, Inc. v. Orion Plumbing 936 NYS 2d 59, 32 Misc.3d 1234 (Sup Ct Queens
County 2011); Iglesias v. Rodriguez, 143 Misc.2d 498, 499, 541 N.Y.S.2d 701 (Sup Ct Kings
County 1989) (“the summons and complaint appeared to be mere exhibits to the Order to Show
Cause, and as such, were insufficient for the commencement of an action and acquisition of
jurisdiction over the person of the defendants”).
46. No such separate service was made in this case. A review of the affidavit of service
filed by Petitioner simply show that the OSC was (allegedly) served with “supporting papers”,
but there is no mention of the Petition being served as a separate document anywhere in the
affidavit of service. There is no mention in the affidavit of what supporting papers were in fact
served with the order to Show Cause.
47. Service of the OSC without service of the Petition (in compliance with Article 3
of the CPLR) separate and apart is insufficient to obtain personal jurisdiction over the Defendants.
48. Thus, this Court should dismiss the 2020 proceeding as jurisdiction over the person
of Defendant Lichtenstein was NEVER obtained in the 2020 proceeding.
49. Further, the Court should dismiss the 2020 proceeding as process was not timely
served in compliance with the direction in the Order to Show Cause. NYSCEF docket No.: 53 in
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the 2020 proceeding. The Order to show Cause required that Service be made no later than
October 26, 2020.
50. The affirmation of Miriam Gross submitted herewith affirms to this Court under the
penalties of perjury that she was at the premises allegedly served on October 26, 2020 at 8:45
p.m. to pick up the mail at 929 East 5th Street, Brooklyn New York.
51. Ms. Gross affirmed under the penalties of perjury that she went to 929 East 5th Street,
Brooklyn New York to pick up the mail. At that time she went into the house from the front door
and checked the mail box.
52. The documents that were alleged to have been served were not at the property. Ms.
Gross did not see any papers affixed to the door nor did she see any legal papers in the mailbox.
53. Ms. Gross returned to get the mail two days later on – October 28, 2020 – and when
she went to the premises she found the Order to Show Cause affixed to the front door of 929 East
5th Street, Brooklyn New York
54. The sworn statements of Miriam Gross contradicting the statements of the process
server requires a factual hearing, if the case is not dismissed outright, to ascertain if service of
process was in fact obtained over Defendant Lichtenstein. That is, if the Court does not find the
service defective on its face.
55. As the process servers statements and the sworn affirmation raise serious question
as to the veracity of service which calls this Court’s jurisdiction over Defendant Lichtenstein into
question this Court should issue the requested injunction.
56. Based on the foregoing it is requested that the Court grant the requested injunction as
not to cause Respondent to be removed from his home during the COVID pandemic causing a
grave miscarriage of justice.
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57. Further, as on its face it appears that service of process of the 2020 proceeding was
not accomplished and that there are numerous procedural issues with the Orders that were issued
in this and the related 2019 proceeding this Court should grant the request to stay all proceedings
respecting enforcement of the judgment against Respondent.
58. The issues as to the propriety of the underlying Judgment – both procedural and
substantive- are addressed in the application to the Court that will be filed in the 2019 proceeding.
59. It is respectfully requested that the Court grant this Order to Show Cause on an
exigent basis so as to prevent irreparable harm to Respondent who stands to lose his home.
60. No application has been made for the relief sought herein.
61. Notice of this application has been given to all concerned parties via email. The
Notice of filing is submitted simultaneously with the filing of this Order to Show Cause.
Wherefore it is respectfully requested that this Court grant this application in all respects.
S//___________________
Israel Goldberg, Esq.
Dated: New York, New York
December 11, 2020
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Let
ORDBREDest a copy of this Order to Show Cause and the papers upon which itis
personally
presented shall be served on Petitioner's counsel v:ia:efde-on or before the day of
January m 2021.
ENTER:
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FILED: KINGS COUNTY CLERK 01/29/2021 03:57 PM INDEX NO. 527036/2019 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 01/29/2021 EXHIBIT L FILED: KINGS COUNTY CLERK 01/26/2021 01/29/2021 02:53 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 35 115 RECEIVED NYSCEF: 01/26/2021 01/29/2021 72 for COM 12 At the I.A.S. Part of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse located at 360 Adams Street, New York, New York, on 8th of . the ___day Ka J. for January 2021. y King PRESENT: HON. In the Matter of the Application of: Index No.: 504897/2020 Shaul Kopelowitz, Mohfieclh DISM - D Petitioner ORDER TO SHOW CAUSE For a judgment Pursuant to CPLR 5206 (e) for the Sale of a Homestead Exceeding one hundred and fiftythousand dollars, -against- Michael Lichtenstein a/k/a Yechiel Lichtenstein, Respondent. ______________________________ Upon the accompanying affirmation of Israel Goldberg, Esq., dated December 1 1, 2020 the exhibits annexed thereto and the affirmations of Miriam Gross dated December 10, 2020 and Miriam Gross dated December 9, 2020, and upon all filings herein, COM 12 virtually, by telephone, or as per LET Petitioner Show Cause before this Court, Reem====vat-the-Gourtheese;deeated COM j)..Rules 20 2-( ata6944ame-Brooleyn;-New-Y-eek-on the day of 2020-at an IAS COM Part at 9:30 a.m./pm= or as soon thereafter as counsel can be an Order _12_ heard, why should not be entered: (a) Dismissing the captioned action pending in Supreme Court Kings County under Index No.: 504897/2020 pursuant to CPLR §3211(a)(8) as this Court has not obtaiñed 1 of 3 FILED: KINGS COUNTY CLERK 01/26/2021 01/29/2021 02:53 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 35 115 RECEIVED NYSCEF: 01/26/2021 01/29/2021 jurisdiction over the person of Respondent Michael Lichtenstein a/k/a Yechiel Lichtenstein; or (b) In the alterñative setting thismatter down for a traverse hearing to determine the efficacy of service upon Respondent Michael Lichtenstein a/k/a Yechiel Lichtenstein; and (c) Vacating the Decision and Order of this Court dated December 4, 2020 issued in the action pending in Supreme Court Kings County under Index No.: 527036/2019 granting Petitioner leave to settlean order in the within proceeding pending under Supreme Court Kings County under Index No.: 504897/2020 to sell the real property of Michael Lichtenstein a/k/a 5th Yechiel Lichtenstein located at 929 East Street, Brooklyn, New York pursuant to the provisions of CPLR § 5206; and (d) Staying Petitioner Shaul Kopelowitz his agents and/or employees, assignees or anyone acting on his behalf from taking any action to enforce the judgment entered against Respondent Michael Lichtenstein a/k/a Yechiel Lichtcñstain in the action pending under Kings County under Index No.: 527036/2019 against the parcel of real property located at 929 East 5th Street, Brooklyn, New York; and (e) For such other reliefas the Court deems just and proper; and itis further STAY ORDERED a and-determination- of this application Petitioner that, pending hearing Shaul Kopelowitz his agents and/or employees, âssigñees or anyone acting on his behalf are JSC restrained and enjoined from taking any action to enforce the judgment entered against Defendant Michael Lichtenstein a/k/a Yechiel Lichtenstein in the action peñding under Kings County under Index No.: 527036/2019 against the parcel of real property located at 929 East 5th anada-fmfaes- Street, Brooklyn, New York; ORDERED=that=seply-papess;--iS-am5-mast=be-scssed-and-filed-on-=or=before- 2 of 3 FILED: KINGS COUNTY CLERK 12/11/2020 01/29/2021 12:39 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 21 115 RECEIVED NYSCEF: 12/15/2020 01/29/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS In the Matter of the Application of: Index No.: Shaul Kopelowitz, 504897/2020 Petitioner, Mot. Seq. No. 2 For a judgment Pursuant to CPLR 5206 (e) for the AFFIRMATION Sale of a Homestead Exceeding one hundred and fifty IN SUPPORT thousand dollars, OF ORDER TO SHOW CAUSE -against- Michael Lichtenstein a/k/a Yechiel Lichtenstein, Respondent. Israel Goldberg, an attorney duly admitted to practice law in the State of New York affirms under the penalties of perjury. 1. I am a member of Goldberg & Markus, PLLC, attorneys for defendant Michael Lichtenstein a/k/a Yechiel Lichtenstein ("Lichtenstein") and I submit this affirmation in support of Defendant's Order to Show Cause for dismissal of this action as the Court has not obtained jurisdiction over the person of Defendant Lichtenstein, or in the alternative setting this matter down for a traverse hearing as Petitioner has failed to effect service of this proceeding on Defendant as directed by the Court; and staying and enjoining Petitioner his agents and employees from taking any action to all proceedings enforce the judgment entered against Defendant Michael Lichtenstein a/k/a Yechiel Lichtenstein in the action pending under Kings 5th County under Index No.: 527036/2019 against the parcel of real property located at 929 East 1 of 12 FILED: KINGS COUNTY CLERK 12/11/2020 01/29/2021 12:39 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 21 115 RECEIVED NYSCEF: 12/15/2020 01/29/2021 Street, Brooklyn, New York (hereinafter Property); and for such other and further relief as is just and proper. 2. At the outset the Court is asked to note that, as described below, jurisdiction over the person of Respondent has not been obtained. There was a failure to serve this plenary action (which is a special proceeding) as required by the Court. Having failed to effect service as required and personal jurisdiction not obtained – this Court is without authority to grant the application grant the relief sought under CPLR § 5206 against Respondent. 3. Petitioner Shaul Kopelowitz (hereinafter Kopelowitz or Petitioner ) has commenced two separate proceedings against Defendant. a) The first sought entry of a Judgment based on a Confession of Judgment (hereinafter COJ) filed by Petitioner on December 11, 2019 (NYSCEF docket #1 and 2 in the Kings County under Index No.: 527036/2019) (hereinafter 2019 proceeding). b) The second action was commenced on February 26, 2020 in Kings County under Index No.: 504897/2020 (hereinafter 2020 Proceeding). The 2020 proceeding was commenced by the filing of a Verified Petition and Order to Show Cause, which sought an order authorizing the sale of Defendant Michael Lichtenstein a/k/a Yechiel Lichtenstein’s home to satisfy the judgment obtained in the 2019 proceeding. 4. The 2019 proceeding was a discrete proceeding that addressed the efficacy of the Confession of Judgment (the deficiencies in the filed document, amount of judgment and the monetary obligations that were purported to be confessed by the document). Once that single 2 of 12 FILED: KINGS COUNTY CLERK 12/11/2020 01/29/2021 12:39 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 21 115 RECEIVED NYSCEF: 12/15/2020 01/29/2021 issue was resolved the case was disposed and the proceeding for enforcement should have been commenced by a NEW plenary action. See CPLR § 5206(e) 5. The Court in the 2019 proceeding addressed the issues regarding the propriety of the Confession of Judgment. In an order docketed on January 29, 2020 the Court (Ruchelsman, J) issued an order that left the Confession of Judgment in place subject to a hearing by a referee appointed to hear and report regarding the accuracy of the amount of the COJ. NYSCEF docket # 37. 6. Prior to the issuance of the Referee’s report on November 5, 2020, the Court filed in the 2019 proceeding a signed copy of the Order to Show Cause order portion (without the supporting documents) of the OSC filed in the 2020 proceeding. See NYSCEF Docket # 51 to the case pending under Index # 527036/2019. 7. That signed Order to Show Cause was the same Order portion of the Order to Show Cause docketed in the 2020 proceeding at NYSCEF docket # 13. 8. Even more confusing is the fact that the only upload of the Order to Show Cause in the 2019 case is by a “COURT USER” and that there is no proposed Order to Show Cause filed on the efile docket prior to the upload of the Court signed OSC. NYSCEF docket # 51 9. Equally bizarre is the affidavit of service of the signed OSC uploaded to the efile docket at NYSCEF docket # 53 in 2009 proceeding. 10. That affidavit – the first upload to motion sequence Michael Lichtenstein Michael Lichtenstein 2 in the 2019 proceeding – lists Kings County Index number 504897/2020 as the case in which the papers were being served. 11. There are many questions raised by the interchangeable filings in separate court dockets. What is of most concern is the issuance of a Decision and Order of the Court throwing 3 of 12 FILED: KINGS COUNTY CLERK 12/11/2020 01/29/2021 12:39 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 21 115 RECEIVED NYSCEF: 12/15/2020 01/29/2021 Defendant Lichtenstein out of his house based on pleadings that were not properly served and the substantial due process violations in the issuance of decisions and orders affecting the movant. 12. The saga continues. 13. On November 5, 2020 the report of the Referee (Daniel D. Kuhn) was docketed on efile as NYSCEF docket # 54 in the 2019 proceeding (Hereinafter “Referee’s Report”). 14. By Decision and Order of the Court dated November 5, 2020 the Court, sua sponte, entered an Order confirming the Referee’s Report. 1 15. In its November 5, 2020 decision sua sponte confirming the Referee’s Report (NYSCEF docket # 54) the Court opined: Although the order to show cause seeking the sale of the property is based on a petition in the other action there is no reason why the order to show cause cannot be considered at this time. Both actions essentially concern the same confession of judgment and the same relief. 16. In making its determination, the Court did not consider that it was without the authority to consolidate the 2019 proceeding and the within 2020 proceeding. See AIU Ins. Co. v ELRAC, Inc., 269 AD2d 412, 412 [2d Dept 2000] (“The Supreme Court erred when it ordered consolidation in the absence of any motion by one of the parties for such relief (see, CPLR 602[b]”). “[T]he trial court acted improperly when, upon its own motion, it ordered consolidation of the actions…Admittedly a court has broad powers to order consolidation but they should not be exercised in a situation as at bar where neither side requests such action…” Singer v Singer, 1 The sua sponte ruling of the Court confirmation of the Referee’s Report ran afoul of the rules of procedure. In its November 5, 2019 Decision and Order issued ithe related 2019 proceeding that this Court sua sponte joined with this case (2020 proceeding), the Court confirmed the Referee’s report immediately upon it being filed. It did so even though a motion to confirm was not filed, as required by Court regulation, and even though the Referee’s report did not file not file the hearing exhibits and the transcripts of the proceeding before him. 4 of 12 FILED: KINGS COUNTY CLERK 12/11/2020 01/29/2021 12:39 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 21 115 RECEIVED NYSCEF: 12/15/2020 01/29/2021 33 AD2d 1054, 1055 [2d Dept 1970]. See also Lazich v Vittoria & Parker, 196 AD2d 526, 530 [2d Dept 1993](“although it appears that the instant action should be consolidated with the related matrimonial action, neither this court nor the trial court has the authority to sua sponte order such relief.”). 17. The cases are related only to the extent that the 2020 proceeding was filed to enforce the judgment issued based on the COJ filed in the 2019 proceeding. The 2019 proceeding had nothing to do with enforcement. 18. On November 12, 2020 seven (7) days after the Court in the 2019 action issued its sua sponte confirmation of the Referee’s Report and opinion that it could make a ruling in the 2020 proceeding (NYSCEF docket # 55) (Exhibit A) in the context of the 2019 proceeding (NYSCEF docket # 51) (Exhibit B). Following that ruling, the Court signed the Order to Show Cause that was filed in the 2020 proceeding uploaded to NYSCEF on February 26, 2020 at NYSCEF docket # 13 (Exhibit C) and uploaded it in the 2019 proceeding (NYSCEF docket # 51) (Exhibit B) 19. Notably, the affidavit of service of the OSC filed in the 2020 proceeding (NYSCEF docket # 12) (Exhibit D) is the same affidavit of service filed in the 2019 proceeding at NYSCEF docket # 53. (Exhibit E). 20. Notably the affidavit of service for the OSC ((NYSCEF docket # 53) states that it was served in the case under index number 504897/2020 NOT in the case under Index # 527036/2019, i.e., the 2019 proceeding. 21. In making this determination, it is respectfully stated, that the Court ignored both procedural and substantive requirements. In this regard the Court is asked to Consider the following: 5 of 12 FILED: KINGS COUNTY CLERK 12/11/2020 01/29/2021 12:39 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 21 115 RECEIVED NYSCEF: 12/15/2020 01/29/2021 Once the Court confirmed the report of the Referee’s Report in its November 5, 2020 decision and determined that the COJ was a valid document the 2019 proceeding was disposed. The Court without any appropriate motion to have the cases consolidated and heard together essentially consolidated the 2019 and 2020 proceedings. Petitioner did not file a motion and petition for the sale of Defendant’s home pursuant to CPLR § 5206(e) in the 2019 proceeding action in which the Court issued its Order authorizing the sale. The Petition to authorize the sale of Respondent’s home pursuant to CPLR § 5206(e) was not served as directed by the Court and jurisdiction over the person of Respondent Lichtenstein has not been acquired by the Court. 22. In the 2019 proceeding the Court determined the only issue presented to it, to wit: the efficacy of the Confession of Judgment. Once that determination issued (correctly or incorrectly) the matter was disposed of except for applications respecting the Court‘s determination allowing the Confession of Judgment to stand which included confirmation of the Referee’s report. 23. On February 26, 2020 Petitioner Saul Kopelowitz commenced the plenary action (2020 proceeding) to sell Respondent’s home pursuant to CPLR § 5206(e) by the filing of by Order to Show Cause and a Verified Petition. 24. While the RJI filed in the 2020 proceeding notes the related 2019 case, neither of the docket in the 2020 proceeding nor the 2019 proceeding has a filed application seeking consolidation of the 2020 and 2019 actions. 25. In the 2020 proceeding Petitioner filed an Order to Show Cause with supporting papers for an order allowing Petitioner to sell the Property pursuant to the provisions of CPLR § 5206. NYSCEF docket #s: 2 and 13 which is a conformed copy of OSC. 6 of 12 FILED: KINGS COUNTY CLERK 12/11/2020 01/29/2021 12:39 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 21 115 RECEIVED NYSCEF: 12/15/2020 01/29/2021 26. In the 2019 proceeding the only document uploaded respecting Petitioner’s request for an Order authorizing the sale of Defendant’s home pursuant to CPLR § 5206(e) are the decretal paragraphs of the OSC. Based on the efile notations that document (NYSCEF docket # 51) (Exhibit B) was uploaded by the Court. Interestingly, the docket in the 2019 proceeding does not have a proposed Order to Show Cause uploaded to its efile docket. 2 27. No supporting documents were uploaded to the efile docket in the 2019 case. Based on the Court record, a proposed OSC for motion sequence 2 was not filed. 28. Nonetheless, in the related but not consolidated 2019 proceeding the Court has issued a Decision requiring an Order to be settled granting the OSC to allow the sale of Petitioner’s home. NYSCEF docket # 55 29. On December 4, 2020 Petitioner settled a proposed Order in the 2020 proceeding (NYSCEF docket # 15 and 16) based on the decision of the Court in the 2019 proceeding. 30. The proposed settlement leaves the date of argument and date of decision blank. Undoubtedly it is blank because there was no decision in the 2020 proceeding. 31. SO WITH NO COURT ORDER IN THE 2020 PROCEEDING AND WITH NO APPEARANCES BY RESPONDENT IN THE 2020 PROCEEDING, PETITIONER KOPELOWITZ BY HIS ATTORNEY JEFFREY FLEISCHMAN, FILED A PROPOSED ORDER. 2 A screen shot of the efile docket entry for motion sequence # 2 is attached. The first mention of any document relating to motion sequence # 2 in the 2019 proceeding is the filing by the Court User. 7 of 12 FILED: KINGS COUNTY CLERK 12/11/2020 01/29/2021 12:39 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 21 115 RECEIVED NYSCEF: 12/15/2020 01/29/2021 32. To find the Order that Petitioner relies on in settling an Order in the 2020 proceeding one must look at the docket in the 2019 proceeding at NYSCEF docket # 74. Exhibit G In that action the Court making up its own procedure ruled that the 2019 proceeding and 2020 proceeding are really the same so on December 4, 2020 it granted the application in the 2020 action but wrote the decision in the 2019 action. 33. This application has been made as it appears the Court has, on its own, improperly extended its jurisdiction to expand the 2019 proceeding and issue decisions in that case to decide a motion in the 2020 proceeding that has not been consolidated into the 2019 proceeding. This application is also made as there is substantial question as to whether the Court jurisdiction over the person of Respondent has been obtained in this case as set out infra. 34. The Court is being asked to recall its improperly issued decision NYSCEF docket # 74 in the 2019 proceeding 35. Of particular concern is the fact that the Court has granted an application on an Order to Show Cause and Verified Petition that has not been properly served regarding a case where personal jurisdiction (as set out below) has not been obtained over the person of Petitioner . 36. This application is seeks an Order of the Court dismissing this action as jurisdiction over the person of Respondent Lichtenstein has never been obtained in this (the 2020 proceeding) case. 37. The failure of service is evident on the face of the affidavit of service filed in the 2020 proceeding at NYSCEF docket No.: 12. That affidavit of service reflecting that service was purportedly made in the 2020 proceeding was efiled as proof of service in the 2019 action at NYSCEF docket # 53. (Exhibit E) 8 of 12 FILED: KINGS COUNTY CLERK 12/11/2020 01/29/2021 12:39 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 21 115 RECEIVED NYSCEF: 12/15/2020 01/29/2021 38. So service on one OSC was purportedly made by serving one set of papers to cover two separate and distinct cases. 39. The Signed OSC in the 2020 case required Petitioner to serve the Order to Show Cause on or before October 26, 2020 by “personal service of a copy of this Order, the Petition and the papers upon which it is granted upon respondent/Judgment debtor Yechiel Lichtenstein …” NYSCEF docket # 53 in the 2019 proceeding and NYSCEF docket # 12 in the 2020 proceeding. 3 40. The affidavit of service filed by the process server Mahmoud Nassar states that he served the ORDER TO SHOW CAUSE DATED OCTOBER 19, 2020 AND SUPPORTING PAPERS on MICHAEL LICHTENSTEIN A/K/A YECHIEL LICHTENSTEIN A/K/A YECHIAL LICHTENSTEIN …. NYSCEF docket # 12 in the 2020 proceeding. 41. The affidavit does not state that a copy of the Petition was served on Defendant Lichtenstein. It swears that all that Nassar served was the Order to Show Cause and the supporting papers. There is no statement what those supporting papers were. 42. The service attested to in the affidavit is not compliant with the law. 43. The statute and attendant case law requires that the Petition be served as a separate and distinct document from the Order to Show Cause. Even if the Petition was one of the exhibits attached to the Order to Show Cause service of process is deficient if not served separately. 3 The upper right hand corner of the affidavit of service lists the Index Number of the document alleged to have been served. The stated Index # is: 504897/2020 – the index number of the action in which this application is filed. Thus, there is no affidavit attesting to service in the 2019 proceeding. 9 of 12 FILED: KINGS COUNTY CLERK 12/11/2020 01/29/2021 12:39 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 21 115 RECEIVED NYSCEF: 12/15/2020 01/29/2021 44. The Courts have consistently held that “[w]here a summons has not yet been served when a party seeks preliminary injunctive relief by way of order to show cause, the summons should accompany the order to show cause and be served at the same time; it should not merely be included as part of the papers on which the motion is based.” See Jamaica Chamber of Commerce, Inc. v. Orion Plumbing & Heating Corp., 32 Misc.3d 1234(A) at 2, (2011). 45. Service of an order to show cause with the Petition as an exhibit to the Order to Show Cause is insufficient to acquire personal jurisdiction over a defendant. See , Jamaica Chamber of Commerce, Inc. v. Orion Plumbing 936 NYS 2d 59, 32 Misc.3d 1234 (Sup Ct Queens County 2011); Iglesias v. Rodriguez, 143 Misc.2d 498, 499, 541 N.Y.S.2d 701 (Sup Ct Kings County 1989) (“the summons and complaint appeared to be mere exhibits to the Order to Show Cause, and as such, were insufficient for the commencement of an action and acquisition of jurisdiction over the person of the defendants”). 46. No such separate service was made in this case. A review of the affidavit of service filed by Petitioner simply show that the OSC was (allegedly) served with “supporting papers”, but there is no mention of the Petition being served as a separate document anywhere in the affidavit of service. There is no mention in the affidavit of what supporting papers were in fact served with the order to Show Cause. 47. Service of the OSC without service of the Petition (in compliance with Article 3 of the CPLR) separate and apart is insufficient to obtain personal jurisdiction over the Defendants. 48. Thus, this Court should dismiss the 2020 proceeding as jurisdiction over the person of Defendant Lichtenstein was NEVER obtained in the 2020 proceeding. 49. Further, the Court should dismiss the 2020 proceeding as process was not timely served in compliance with the direction in the Order to Show Cause. NYSCEF docket No.: 53 in 10 of 12 FILED: KINGS COUNTY CLERK 12/11/2020 01/29/2021 12:39 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 21 115 RECEIVED NYSCEF: 12/15/2020 01/29/2021 the 2020 proceeding. The Order to show Cause required that Service be made no later than October 26, 2020. 50. The affirmation of Miriam Gross submitted herewith affirms to this Court under the penalties of perjury that she was at the premises allegedly served on October 26, 2020 at 8:45 p.m. to pick up the mail at 929 East 5th Street, Brooklyn New York. 51. Ms. Gross affirmed under the penalties of perjury that she went to 929 East 5th Street, Brooklyn New York to pick up the mail. At that time she went into the house from the front door and checked the mail box. 52. The documents that were alleged to have been served were not at the property. Ms. Gross did not see any papers affixed to the door nor did she see any legal papers in the mailbox. 53. Ms. Gross returned to get the mail two days later on – October 28, 2020 – and when she went to the premises she found the Order to Show Cause affixed to the front door of 929 East 5th Street, Brooklyn New York 54. The sworn statements of Miriam Gross contradicting the statements of the process server requires a factual hearing, if the case is not dismissed outright, to ascertain if service of process was in fact obtained over Defendant Lichtenstein. That is, if the Court does not find the service defective on its face. 55. As the process servers statements and the sworn affirmation raise serious question as to the veracity of service which calls this Court’s jurisdiction over Defendant Lichtenstein into question this Court should issue the requested injunction. 56. Based on the foregoing it is requested that the Court grant the requested injunction as not to cause Respondent to be removed from his home during the COVID pandemic causing a grave miscarriage of justice. 11 of 12 FILED: KINGS COUNTY CLERK 12/11/2020 01/29/2021 12:39 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 21 115 RECEIVED NYSCEF: 12/15/2020 01/29/2021 57. Further, as on its face it appears that service of process of the 2020 proceeding was not accomplished and that there are numerous procedural issues with the Orders that were issued in this and the related 2019 proceeding this Court should grant the request to stay all proceedings respecting enforcement of the judgment against Respondent. 58. The issues as to the propriety of the underlying Judgment – both procedural and substantive- are addressed in the application to the Court that will be filed in the 2019 proceeding. 59. It is respectfully requested that the Court grant this Order to Show Cause on an exigent basis so as to prevent irreparable harm to Respondent who stands to lose his home. 60. No application has been made for the relief sought herein. 61. Notice of this application has been given to all concerned parties via email. The Notice of filing is submitted simultaneously with the filing of this Order to Show Cause. Wherefore it is respectfully requested that this Court grant this application in all respects. S//___________________ Israel Goldberg, Esq. Dated: New York, New York December 11, 2020 12 of 12 FILED: KINGS COUNTY CLERK 01/26/2021 01/29/2021 02:53 03:57 PM INDEX NO. 504897/2020 527036/2019 NYSCEF DOC. NO. 35 115 RECEIVED NYSCEF: 01/26/2021 01/29/2021 Let ORDBREDest a copy of this Order to Show Cause and the papers upon which itis personally presented shall be served on Petitioner's counsel v:ia:efde-on or before the day of January m 2021. ENTER: 3 of 3 FILED: KINGS COUNTY CLERK 12/11/2020 01/29/2021 12:39