Motion-Secondary: Chaim Berkowitz v. Yeshuas Moshe D'Viznitz, Institute For The Promotion Of Jewish Education, Inc., Israel J. Gottesman A/K/A RABBI ISRAEL J. GOTTESMAN, Jacob Kiffel A/K/A RABBI JACOB KIFFEL, Jacob Kapolowitz A/K/A RABBI JACOB KAPOLOWITZ

On January 17, 2019 a Motion-Secondary was filed involving a dispute between Chaim Berkowitz, and Institute For The Promotion Of Jewish Education, Inc., Israel J. Gottesman A K A Rabbi Israel J. Gottesman, Jacob Kapolowitz A K A Rabbi Jacob Kapolowitz, Jacob Kiffel A K A Rabbi Jacob Kiffel, Yeshuas Moshe D'Viznitz, for Torts - Other Negligence (Premises Liability) in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 06/02/2021 10:23 AM INDEX NO. 501262/2019
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-- ---- ---------------------------X

CHAIM BERKOWITZ, Index No.: 501262/2019

Plaintiff, AFFIRMATION IN

SUPPORT OF
MOTION TO VACATE
-against- DEFAULT JUDGMENT
PURSUANT TO
YESHUAS MOSHE D'VIZNITZ, INSTITUTE FOR THE CPLR 6 317 OR
PROMOTION OF JEWISH EDUCATION, INC. § 5015(a)(1)
ISRAEL J. GOTTESMAN a/k/a RABBI ISRAEL J.

GOTTESMAN, JACOB KIFFEL a/k/a RABBI JACOB
KIFFEL and JACOB KAPOLOWITZ a/k/a RABBI
JACOB KAPOLOWITZ,

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

STEVEN F. GOLDSTEIN, an attorney duly admitted to the practice of law before the

Courts of the State of New York, and not a party to the above-entitled cause, affirms the

following to be true under the penalties of perjury prescribed by CPLR. §2106:

1. I am a partner of the law firm of STEVEN F. GOLDSTEIN, LLP, attorneys for

Defendant, YESHUAS MOSHE D'VIZNITZ and as such, am fully familiar with the facts and

circumstances of the instant action, such knowledge having been obtained upon my review of

the files maintained by our office during the course of this litigation.

2. This Affirmation is submitted in support of Defendant's Motion for an Order

pursuant to CPLR §317 or §5015(a)(1): Granting Defendant YESHUAS MOSHE D'VIZNITZ,

within Motion to Vacate the Decision and Order of Honorable Richard K. Montelione, J.S.C.

dated October 15, 2019, which granted Plaintiff's Motion seeking a Default as against the

moving Defendant and which held the entry ofjudgmeñt in abeyance until the time of inquest;

and for such other and further relief as this Court may deem just and proper.

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RELEVANT PROCEDURAL HISTORY

3. Plaintiff, CHAIM BERKOWITZ, commenced the instant action against

Defendant, YESHUAS MOSHE D'VIZNITZ and others by the filing of a Summons and

Verified Complaint on or about January 17, 2019, under Index No.: 501262/2019. Plaintiff

alleges that on or about May 10, 2018, he sustained injuries in a slip and fallaccident while

traversing the premises located at 9 Nancy Lane, Monsey New York. A copy of Plaintiff's

Summons and Verified Complaint, as well as Affidavits of Service are annexed hereto as

"A."
Exhibit

4. By Order dated October 15, 2019, this Honorable Court granted Plaintiff's

Motion which sought a default as against Defendant, YESHUAS MOSHE D'VIZNITZ, and

2020."
directed that "Entry of Judgment shall be held on January 14, Itdoes not appear that the

"B."
Inquest was held. A copy of the Order is annexed hereto as Exhibit

5. Subsequent to the Court's Order (see: Exhibit "B") the plaintiff commenced an

action against Cong Y H K A Viznitz a/k/a Congregation Y.H.K.A. Viznitz, on or about

November 30, 2020. The complaint in this action assets the same set of operative facts and

allegations arising out of the same incident. A copy of the Summons & Complaint is annexed

hereto as Exhibit "C".

MATERIAL FACTS

6. As detailed in the Affidavit of Merit of Shimon Brettler, this defendants legal

name is,Congregation YHKA, a New York Non-for-Profit Corporation comprised of a

congregation which worships at a synagogue, located at 21 Ronald Drive, Monsey New York.

Also located upon that property is a separate house with an address of 9 Nancy Lane, Monsey

Affidavit"
New York, which occupied by Yakov Schwartz. The "Brettler is annexed hereto as

"D."
Exhibit

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7. The Summons and Verified Complaint was purportedly served on all defendants

by delivering the Summons & Complaint to Yakov Schwartz , purportedly a person of suitable

"A"
and age and discretion. See Exhibit for a copy of Plaintiff's Summons and Verified

Complaint dated January 17, 2019, and affidavits of service on all Defendants.

8. As noted above, Mr. Schwartz was a tenant of the property located at 9 Nancy

Lane, Monsey New York.

9. Despite the Affirmation of the plaintiff's attorney submitted in support of the

Motion for a Default, conspicuously absent from the Affidavit of Service submitted in support

of the Motion for a Default, is an averment that Mr. Schwartz had the authority to accept

H service of process on behalf of the moving defendant.

10. Mr. Schwartz was not a member of the congregation and he did not have the

defendant's authority to accept service of process on it'sbehalf (see: Brettler Affidavit @ ¶12-

13).

11. Mr. Schwartz did not give the Summons & Complaint to Mr. Brettler or any

other congregant (see: Schwartz Affidavit @¶ 8). A copy of the Schwartz Affidavit is annexed

hereto as Exhibit "E".

12. The moving defendant has not been served with the Order with Notice of

Entry granting the default, and therefore this Motion is timely filed (see: Hunter v Enquirer/

Star, Inc, 210 AD2d 32.32. 619 NYS2d 268).

13. As concerns the alleged accident, Mr. Brettler was present in the synagogue on

May 10, 2018. He recalls observing the plaintiff, the father of a congregant, fallas he was

walking toward a seat. He did not recall any obstructions or other reason for the fall.

ARGUMENT

L THE DEFAULT JUDGMENT AGAINST YESHUAS MOSHE D'VIZNITZ

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SHOULD BE VACATED UNDER CPLR §317.

14. Respectfully, this Court should vacate the Default Judgment against Defendant,

YESHUAS MOSHE D'VIZNITZ , pursuant to CPLR §317 because: (1) service was not made

in a manner provided for by CPLR §308(2); (2) Defendant, YESHUAS MOSHE D'VIZNITZ,

did not have actual knowledge of this action or personally receive notice of the Summons in

time to defend; (3) Defendant, YESHUAS MOSHE D'VIZNITZ, has a meritorious defense; and

YESHUAS MOSHE is the instant Motion within the one-
(4) Defendant, D'VIZNITZ, making

year time limit in which itobtained knowledge of the Default Judgment. Cecelia v. Colonial

Sand & Stone Co., 85 A.D.2d 56, 448 N.Y.S.2d 617; Caba v. Rai, 2009, 63 A.D.3d 578, 581,

(2"d
882 N.Y.S.2d 56, 59 Dept.).

CPLR §308(2) Personal service upon a natural person shall be made by any of the

following methods:
n
Ii
"By delivering the summoñs within the state to a person of suitable age
and discretion at the actual place of business, dwelling place or usual

place of abode of the person to be served and by mailing the summons
"
to the person to be served at his last known address.

15. However, CPLR Section 308(2) further provides that service of process upon a

person of suitable age and discretion must be made at the dwelling place of the party to be

served.

16. The dwelling place of a person is the place where he or she actually dwells, lives

or inhabits. Gintzler v. Schwarz, 126 Misc.2d 491, 482 N.Y.S.2d 986, on re-argument, 129

Misc.2d 836, 494 N.Y.S.2d 649; Rich Products Corp. v. Diamond, 51 Misc.2d 675, 273

N.Y.S.2d 687).

17. CPLR §308(2) also requires that a copy of the Summons & Complaint be mailed

to the defendant by firstclass mail to the pemon to be served at his or her actual place of

confidential"
business in an envelope bearing the legend "personal and and not indicating on the

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outside thereof, by return address or otherwise, that the communication is from an attorney or

concerns an action against the person to be served, such delivery and mailing to be effected

within twenty days of each other; proof of such service shall be filed with the clerk of the court

designated in the summons within twenty days of either such delivery or mailing, whichever is

effected later; service shall be complete ten days after such filing; proof of service shall identify

such person of suitable age and discretion and state the date, time and place of service...

18. Neither Mr. Brettler or anyone else associated with the defendant received the

mailing required by the statute (see: Brettler Affidavit @ 12).

19. Defendant, YESHUAS MOSHE D'VIZNITZ , may avail itself of CPLR §317

and is entitled to open a default judgment because service was not made in a manner provided

for in CPLR §308(2).

20. Defendant, YESHUAS MOSHE D'VIZNITZ did not have actual notice of the

instant litigation, or the default judgment, in time to defend itself,and itslack ofnotice was not

a deliberate attempt to avoid such notice.

21. Defendant, YESHUAS MOSHE D'VIZNITZ, will be able to show a potentially

mentorious defense based upon Mr. Brettler's account of what he observed on the date of

accident. In order to demonstrate a potentially meritorious defense, a party must submit an

affidavit from an individual with knowledge of the facts (see, e.g., Mitchell v. Mid-Hudson

Medical Associates, 213 A.D.2d 932, 624 N.Y.S.2d 70; Hunter v. Enquirer/Star, Inc., 210

A.D.2d 32, 33, 619 N.Y.S.2d 268; Beverage Distributors of Nevada v. Schenley Industries, 155

A.D.2d 356, 547 N.Y.S.2d 323). The affidavit submitted from such individual must make

sufficient factual allegations; itmust do more than merely make conclusory allegations or

assertions."
"vague National Recovery Systems v. Weiss, 226 A.D.2d 289, 290, 641 N.Y.S.2d

296. For example, on a plaintiff's claim that defendant's negligent work caused property damage,

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defendant's affidavit was sufficient to demonstrate a meritorious defense where, having

conducted an investigation, defendant could set forth specific facts to the effect that its

employees were not working at the site at the time in question. Tiger v. Town of Bolton, 150

A.D.2d 889, 891, 540 N.Y.S.2d 912. Here, Mr. Brettler has supplied an Affidavit of Merit

which demonstrates that based on what he actually observed there was no question of

negligence on the part of the defendant. See Exhibit "D".

22. Finally, Defendant, YESHUAS MOSHE D'VIZNITZ, is making the instant

motion within the one-year time limit in which it firstobtained knowledge of the default

judgment. For purposes of C.P.L.R. §317, the running of the one-year time limit begins within

one year of actual notice, from any source, that a default judgment has been entered. Pena by

Pena v. Mittleman, 179 A.D.2d 607, 608, 579 N.Y.S.2d 359, 360 (1992). Here, the Order of the

Hon. Richard J.Montelione, LS.C. granted Plaintiff's motion seeking a default judgment against

Defendant, YESHUAS MOSHE D'VIZNITZ. Therefore, since the instant motion is made

within one year of the date Defendant, YESHUAS MOSHE D'VIZNITZ, first learned of the

default judgment, Defendant, YESHUAS MOSHE D'VlZNITZ may avail itself of CPLR §317.

23. As the Summons & Complaint was not served upon moving defendant's, it

accordance with the CPLR, itis respectfully requested that this Court vacate the default

judgment against Defendant, YESHUAS MOSHE D'VIZNITZ pursuant to CPLR §317, and

permit Defendant, YESHUAS MOSHE D'VIZNITZ to defend itself on the merits on the Instant

Action.

H. IN THE ALTERNATIVE, THE ORDER GRANTING DEFAULT JUDGMENT
AGAINST YESHUAS MOSHE D'VIZNITZ SHOULD BE VACATED
PURSUANT TO CPLR § 5015(a)(1).

24. Defendant, YESHUAS MOSHE D'VIZNITZ, is also entitled to relief to vacate

the Order granting Default Judgment against itpursuant to CPLR. § 5015(a)(1). The Court

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which rendered a judgment or order may relieve a party from itupon such terms as may be just,

upon the motion of any interested person demonstrating: (1) a reasonable excuse for itsdelay in

appearing and answering the complaint; and (2) a potentially meritorious defense to the action.

See C.P.L.R. § 5015(a)(1); Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., 67 N.Y.2d 138,

142, 492 N.E.2d 116, 118-19 (1986). See also State v. Richard TT, 132 A.D.3d 72, 14

(3"'
N.Y.S.3d 824 Dept. 2015), appeal dismissed, 26 N.Y.3d 994, 19 N.Y.S.3d 215, 41 N.E.3d

72 (2015), affirmed, 27 N.Y.3d 718, 37 N.Y.S.3d 765, 59 N.E.3d 500 (2016), certiorari denied,

137 S.Ct. 836, 197 L.Ed.2d 75 (2017) (the grounds for vacating set forth in the rule governing

motions for relief from judgment or orders are not exclusive, and a court has the common law

authority to, in its discretion, grant relief from a judgment or order in the interest of justice,

considering the facts of the particular case, the equities affecting each party and others affected

by the judgment or order, and the grounds for the requested relief).

25. This Court has inherent discretionary power to vacate an order or judgment in the

interests of substantial justice under CPLR. § 5105(a)(1). Woodson v. Mendon Leasing Corp,,

100 N.Y.2d 62, 760 N.Y.S.2d 727, 790 N.E.2d 1156 (2003). Moreover, courts have the inherent

justice"
power to forgive even an unexplained default "in the interest of New Media Holding

Co. LLC v. Kagalovsky, 97 A.D.3d 463, 465, 949 N.Y.S.2d 22, 25 (2012).

H1. YESHUAS MOSHE D'VIZNITZ HAS A REASONABLE EXCUSE FOR ITS DELAY
IN APPEARING AND ANSWERING THE COMPLAINT.

26. Here, Defendant, YESHUAS MOSHE D'VIZNITZ had a reasonable excuse for

not appearing in time to answer the Complaint because itdid not know, and did not have reason

to know, of the Instant Action or the default judgment in time for Defendant, YESHUAS

MOSHE D'VIZNITZ to defend itself.As further illustrated in Mr. Brettler's Affidavit of Merit,

he was present on the alleged date of accident and actually observed that the plaintiff simply fell

and that there was no box or other obstruction or any other hazard which would have caused or

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contributed to his fall.As such, Defendant, YESHUAS MOSHE D'VIZNITZ, had no reason to

"D"
expect that a lawsuit would be commenced by the plaintiff. See Exhibit for (Brettler

Affidavit @ ¶l 5).

27. Furthermore, the delay in filing a responsive pleading in this case was not

lengthy, there was no willfulness on the part of Defendant, YESHUAS MOSHE D'VIZNITZ ,

not to appear and answer, and there is no prejudice to any other party if the default judgment is

vacated since the Inquest has not been conducted. YESHUAS MOSHE D'VIZNITZ lack of

notice of the Instant Action was not wilful.

28. The undersigned submits that the Order for default judgment against Defendant

YESHUAS MOSHE D'VIZNITZ, should be vacated based on excusable neglect.

IV. YESHUAS MOSHE D'VIZNITZ HAS DEMONSTRATED A POTENTIALLY
MERITORIOUS DEFENSE.

29. For the sake of brevity, the undersigned respectfully refers to the Brettler

Affidavit (see: Exhibit "D").

30. No prior application for this relief or similar relief has been requested.

WHEREFORE, for the aforementioned reasons set forth herein, and upon all

supporting papers, itis respectfully requested that the within motion be granted in its entirety,

and that this Court issue an Order pursuant to CPLR §317 or §5015(a)(1) granting Defendant,

YESHUAS MOSHE D'VIZNITZ's within Motion to Vacate the Default Judgrüent, permitting

Defendant, YESHUAS MOSHE D'VIZNITZ to be relieved from the Default and be permitted

to file and serve an Answer to the action and defend this action on the merits; and for such other

and further relief as this Court may deem just and proper.

Dated: Carle Place, New York

June 2, 2021

S EVEN F. GOLDSTEIN

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CERTIFICATION
PURSUANT TO RULE 202.8-b

The foregoing Affirmation was prepared on a computer using Microsoft Word 2010. A

proportionally spaced typeface was used, as follows:

Name of typeface: Times New Roman

Point size: 12

Line spacing: Double

The total number of words in the Affirmation in Support, inclusive of point headings

and footnotes and exclusive of pages containing the table of contents, table of citations, proof

of service, printing specifications statement, or any authorized addendum containing statutes,

rules, regulations, etc., is 2,808.

Dated: Carle Place, New York
June 2, 2021 Yours, etc.

STEVEN F. GO STEIN, LLP

By:
STEVEN F. GOLDSTEIN
Attorneys for Defendant
YESHUAS MOSHE D'VIZNITZ
One Old Country Road, Suite 318
Carle Place, New York 11514

(516) 873-0011

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Case Info

Judge

Ingrid Joseph Track Judge’s New Case

Case No.

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Document Filed Date

June 02, 2021

Case Filing Date

January 17, 2019

County

Parties

Chaim Berkowitz Plaintiff
FUCHS, CHERYL DIANA Attorney for the Plaintiff
GOLDSTEIN, STEVEN F Attorney for the Defendant
INSTITUTE FOR THE PROMOTION OF JEWISH EDUCATION, INC. Defendant
Israel J. Gottesman A/K/A RABBI ISRAEL J. GOTTESMAN Defendant
Jacob Kapolowitz A/K/A RABBI JACOB KAPOLOWITZ Defendant
Jacob Kiffel A/K/A RABBI JACOB KIFFEL Defendant
PRIZIMENTER, VALERIA Attorney for the Plaintiff
Yeshuas Moshe D'viznitz Defendant
KELECHI ACHOLONU Attorney
VALERIE PELS Attorney

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Motion-Secondary: Chaim Berkowitz v. Yeshuas Moshe D'Viznitz, Institute For The Promotion Of Jewish Education, Inc., Israel J. Gottesman A/K/A RABBI ISRAEL J. GOTTESMAN, Jacob Kiffel A/K/A RABBI JACOB KIFFEL, Jacob Kapolowitz A/K/A RABBI JACOB KAPOLOWITZ

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