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At an Ex Parte Term, of the Supreme Court of
the State of New York, held in the Courthouse
for the County of Erie, in the City of Buffalo,
New York, on the ______ day of
____________, 20____.
PRESENT: HON. ___________________________
JUSTICE OF THE SUPREME COURT
STATE OF NEW YORK
SUPREME COURT COUNTY OF ERIE
_________________________________________________
M&T BANK, ORDER FOR ALTERNATE
SERVICE BY PUBLICATION &
Plaintiff, APPOINTMENT OF
GUARDIAN AD LITEM
v.
CODY J. NICHOLS, MANUFACTURERS AND
TRADERS TRUST COMPANY, JOHN DOE, Index No. 805833/2022
Defendants.
_________________________________________________
Upon reading and filing the Affirmation of Brettanie L. Hart Saxton, Esq., dated November
1, 2022, and upon reading the Summons and Complaint, in support of Plaintiff's Ex Parte motion for
an order directing an alternate method of service of the Summons and Complaint herein on Defendant
CODY J. NICHOLS, and it appearing to the satisfaction of the Court that the Plaintiff has been and
will be unable to, with due diligence, serve the Summons and Complaint herein upon the Defendant
CODY J. NICHOLS, by personal service or other prescribed method, and after due diligence, the
Plaintiff has been unable to ascertain where said Defendant maintains an office to conduct business
or to ascertain a place where said Defendant will receive mail;
NOW, upon motion of Woods Oviatt Gilman LLP, attorneys for Plaintiff, Brettanie
L. Hart Saxton, Esq., it is
ORDERED, that Plaintiff's application for leave to file and serve a Supplemental
Summons in the form annexed is hereby granted; and it is further
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ORDERED, that Plaintiff is hereby granted leave to serve a Supplemental Summons
and Complaint by regular mail, upon all parties Defendant who have been served with the Original
Summons and Complaint, at the last known address for said Defendant, or at the address of their
attorney, if said Defendant have appeared; and it is further
ORDERED, that service of the Supplemental Summons and Complaint herein upon
Defendant CODY J. NICHOLS, together with notice and a brief statement of the object of the action
and a brief description of the property, be published in two (2) newspapers of general circulation, to
wit: _______________________________________, which is published in the County of Erie, and
in the __________________________________________ which is published in the County of Erie,
State of New York, once a week for four (4) consecutive weeks, the first such publication to be made
within thirty (30) days after the date of entry of this Order; and it is further
ORDERED, that the Supplemental Summons and Complaint in this action be
delivered on behalf of the Defendant(s) who may be served by publication in this action to
_____________________________ of
whose
telephone number is __________________________, who is hereby authorized, empowered and
designated to appear in this action as Guardian Ad Litem and Military Attorney on behalf of any of
said Defendants who may be infants, absentees or incompetents, or unknown successors in interest of
Defendant(s) who may be deceased, and to protect and defend the interests of said Defendants in this
action, upon the filing of his acknowledged consent and duly qualifying affidavit; and it is further
ORDERED, that the Guardian Ad Litem and Military Attorney shall also act for said
Defendant CODY J. NICHOLS, should they be in default and be in the military service of the United
States of America, for the purpose of representing them and protecting their interests in this action
pursuant to the provisions of the Service Members Civil Relief Act and Military Law of 1940, as
amended, and the Military Laws of the State of New York; and it is further
{4520164: } 105180
ORDERED, that the statutory fees of the Guardian Ad Litem, in the amount of
$500.00 is to be paid, as the fee in connection with services as Guardian Ad Litem to appear in this
action on behalf of said Defendant(s); and it is further
ORDERED, that by accepting this appointment, the Guardian Ad Litem and Military
Attorney certifies that she/he is in compliance with Part 36 of the Rules of the Chief Judge (22
NYCRR Part 36) including, but not limited to Section 36.2(c) ("Disqualification from Appointment")
and Section 36.2(d) ("Limitations on Appointments Based on Compensation"); and it is further
ORDERED, that this order and the papers upon which the same are based shall be
filed with the Clerk of this court on or before the first day of publication, and that the first publication
be within 30 days after the date of entry of this order; and it is further
ORDERED, that pursuant to CPLR 306-b the time to serve all Defendants is hereby
extended 120 days from the date of entry of this Order; and it is further
ORDERED, that service shall be complete twenty-eight (28) days from the date of
first publication in accordance with CPLR 316(c).
ENTERED:
Dated: ______________________________
JUSTICE OF THE SUPREME COURT
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Preview
At an Ex Parte Term, of the Supreme Court of the State of New York, held in the Courthouse for the County of Erie, in the City of Buffalo, New York, on the ______ day of ____________, 20____. PRESENT: HON. ___________________________ JUSTICE OF THE SUPREME COURT STATE OF NEW YORK SUPREME COURT COUNTY OF ERIE _________________________________________________ M&T BANK, ORDER FOR ALTERNATE SERVICE BY PUBLICATION & Plaintiff, APPOINTMENT OF GUARDIAN AD LITEM v. CODY J. NICHOLS, MANUFACTURERS AND TRADERS TRUST COMPANY, JOHN DOE, Index No. 805833/2022 Defendants. _________________________________________________ Upon reading and filing the Affirmation of Brettanie L. Hart Saxton, Esq., dated November 1, 2022, and upon reading the Summons and Complaint, in support of Plaintiff's Ex Parte motion for an order directing an alternate method of service of the Summons and Complaint herein on Defendant CODY J. NICHOLS, and it appearing to the satisfaction of the Court that the Plaintiff has been and will be unable to, with due diligence, serve the Summons and Complaint herein upon the Defendant CODY J. NICHOLS, by personal service or other prescribed method, and after due diligence, the Plaintiff has been unable to ascertain where said Defendant maintains an office to conduct business or to ascertain a place where said Defendant will receive mail; NOW, upon motion of Woods Oviatt Gilman LLP, attorneys for Plaintiff, Brettanie L. Hart Saxton, Esq., it is ORDERED, that Plaintiff's application for leave to file and serve a Supplemental Summons in the form annexed is hereby granted; and it is further {4520164: } 105180 ORDERED, that Plaintiff is hereby granted leave to serve a Supplemental Summons and Complaint by regular mail, upon all parties Defendant who have been served with the Original Summons and Complaint, at the last known address for said Defendant, or at the address of their attorney, if said Defendant have appeared; and it is further ORDERED, that service of the Supplemental Summons and Complaint herein upon Defendant CODY J. NICHOLS, together with notice and a brief statement of the object of the action and a brief description of the property, be published in two (2) newspapers of general circulation, to wit: _______________________________________, which is published in the County of Erie, and in the __________________________________________ which is published in the County of Erie, State of New York, once a week for four (4) consecutive weeks, the first such publication to be made within thirty (30) days after the date of entry of this Order; and it is further ORDERED, that the Supplemental Summons and Complaint in this action be delivered on behalf of the Defendant(s) who may be served by publication in this action to _____________________________ of whose telephone number is __________________________, who is hereby authorized, empowered and designated to appear in this action as Guardian Ad Litem and Military Attorney on behalf of any of said Defendants who may be infants, absentees or incompetents, or unknown successors in interest of Defendant(s) who may be deceased, and to protect and defend the interests of said Defendants in this action, upon the filing of his acknowledged consent and duly qualifying affidavit; and it is further ORDERED, that the Guardian Ad Litem and Military Attorney shall also act for said Defendant CODY J. NICHOLS, should they be in default and be in the military service of the United States of America, for the purpose of representing them and protecting their interests in this action pursuant to the provisions of the Service Members Civil Relief Act and Military Law of 1940, as amended, and the Military Laws of the State of New York; and it is further {4520164: } 105180 ORDERED, that the statutory fees of the Guardian Ad Litem, in the amount of $500.00 is to be paid, as the fee in connection with services as Guardian Ad Litem to appear in this action on behalf of said Defendant(s); and it is further ORDERED, that by accepting this appointment, the Guardian Ad Litem and Military Attorney certifies that she/he is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36) including, but not limited to Section 36.2(c) ("Disqualification from Appointment") and Section 36.2(d) ("Limitations on Appointments Based on Compensation"); and it is further ORDERED, that this order and the papers upon which the same are based shall be filed with the Clerk of this court on or before the first day of publication, and that the first publication be within 30 days after the date of entry of this order; and it is further ORDERED, that pursuant to CPLR 306-b the time to serve all Defendants is hereby extended 120 days from the date of entry of this Order; and it is further ORDERED, that service shall be complete twenty-eight (28) days from the date of first publication in accordance with CPLR 316(c). ENTERED: Dated: ______________________________ JUSTICE OF THE SUPREME COURT {4520164: } 105180