Preview
FILED: BRONX COUNTY CLERK 12/01/2022 12:40 PM INDEX NO. 816525/2021E
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 12/01/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
--------------------------------------------------------------------X Index No. 816525/2021E
MARK SONNENSCHEIN and 477 WILLIS AVE LLC
AFFIRMATION IN
Plaintiffs, OPPOSITION TO
-against- DEFENDANTS’ APPLICATION
TO ADJOURN MOTION
1986-F&S OF NEW YORK, LTD., and NEW YORK SEQUENCE #4
DEFERRED EXCHANGE CORPORATION
Defendants.
--------------------------------------------------------------------X
GARY ROSEN, ESQ. an attorney duly admitted to practice law in the courts of
the State of New York affirms under the penalties of perjury that the following are true:
1. I am the attorney for Plaintiffs MARK SONNENSCHEIN and 477
WILLIS AVE LLC (the “Plaintiffs”) in this action.
2. I am fully familiar with the contents herein, and the facts and
circumstances concerning this action.
3. I note that there is a status conference before this Court on December 19,
2022 at 2:00 p.m.
4. At the present time, there are two open motions:
a. Motion Sequence # 3 is returnable on December 19, 2022; and
b. Motion Sequence # 4 is returnable on December 8, 2022.
5. Defendants’ counsel asked to adjourn Motion Sequence # 4 but has
refused to consent to adjourn Motion Sequence # 3 to put both motions on the same
return date.
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6. On November 30, 2022, Defendants’ counsel made an application to this
Court (NYSCEF DOC. NO. 116) to adjourn Motion Sequence # 4 from December 8,
2022 for an additional thirty (30) days.
7. Motion Sequence # 3 is scheduled to be heard on December 19, 2022, and
we told Defendants’ counsel to send us a stipulation to adjourn Motion Sequence # 3 and
Motion Sequence # 4 to the same adjourned date for judicial economy, and it is the
Defendants’ counsel who asked us for consent to adjourn Motion Sequence # 4, but he
refused to agree to adjourn Motion Sequence # 3.
8. It is inconceivable that Defendants’ counsel would ask for our consent to
adjourn Motion Sequence # 4, but refuse to consent to adjourn Motion Sequence # 3 to
the same date as Motion Sequence # 4.
9. Defendants’ counsel is only trying to get an advantage over the Plaintiffs
by having Motion Sequence # 3 heard prior to Motion Sequence # 4.
10. The Court should either deny Defendants’ application for the
adjournment of Motion Sequence # 4, or adjourn both, Motion Sequence # 3 and
Motion Sequence # 4 to the same adjourned date for judicial economy and for
fairness and no advantage to any party.
11. I told Defendant NYDEC’S counsel, Harris Davidson, Esq. that I have
no problem adjourning both, Motion Sequence # 3 and Motion Sequence # 4 to any
date that he wants, but he refused – he only wanted to adjourn Motion Sequence #
4, but not adjourn Motion Sequence # 3 as I requested, to put both Motion Sequence
# 3 and Motion Sequence # 4 returnable on the same date.
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12. Defendant NYDEC’S counsel, Harris Davidson, Esq. wanted me to
consent to adjourn Motion Sequence # 4, while Defendant NYDEC’S counsel,
Harris Davidson, Esq. simultaneously refused to adjourned my request for an
adjournment of Motion Sequence # 3.
13. Mr. Davidson wanted a one-way courtesy, but refused to extend the
same courtesy to me and Plaintiffs.
14. We submit this affirmation opposition to Defendant NEW YORK
DEFERRED EXCHANGE CORPORATION’S (“Defendant NYDEC”) application for a
thirty (30) day adjournment on Plaintiffs’ Motion for Default (Motion Sequence # 4).
15. Motion Sequence # 3 is Defendant NYDEC’s order to show cause
requesting relief under CPLR §3012 (to permit the filing of Defendant NYDEC’s late and
untimely answer) and CPLR §2004 (to grant an extension of time to permit the filing of
Defendant NYDEC’s late and untimely answer) (the “Order to Show Cause –
NYSCEF Doc. Nos. 99-101).
16. Motion Sequence # 4 is Plaintiffs’ motion for a default judgment.
17. Motion Sequence # 3 should be heard at the same time as Motion
Sequence # 4.
18. In an attempt to have Motion Sequence # 3 heard before Motion Sequence
# 4, Defendant NYDEC intentionally submitted the email exchanged between me and
Defendant NYDEC’s counsel, Harris Davidson, Esq. in an attempt to deceive this Court,
as Harris Davidson, Esq. failed to explain the ENTIRE email exchange between he and
me regarding adjourning both, Motion Sequence # 3 and Motion Sequence # 4.
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19. Defendant NYDEC alleges the following;
“On November 29, 2022, undersigned counsel for NYDEC emailed counsel
for Plaintiffs to request a three-week adjournment of the Motion. Plaintiffs’
counsel initially responded “no problem Please add 2 weeks for a reply” and
undersigned counsel prepared a stipulation in accordance with the parties’
agreement. However, shortly thereafter Plaintiffs’ counsel changed his mind,
stating “We are not consenting to adjourn any motion”. A copy of the
correspondence is annexed hereto as Exhibit A.” (the “ Affirmation of
Harris W. Davidson, Esq.” – NYSCEF Doc. No. 116)
20. Mr. Davidson intentionally and purposefully left out the email exchanges
which occurred between the emails when I agreed to the adjournment and when I notified
Defendant NYDEC’s counsel that we will not be consenting to an adjournment.
21. After I initially agreed to the adjournment requested, Defendant NYDEC
sent the following email;
22. The Proposed stipulation was only seeking an adjournment of Motion
Sequence # 4 and not seeking an adjournment for Motion Sequence # 3, when the
Stipulation should have stated that Motion Sequence # 3 and Motion Sequence # 4 would
be adjourned.
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23. After realizing this, I sent the following email to Defendant NYDEC’s
counsel seeking an adjournment of both Motion Sequence #3 and #4;
24. I told Mr. Davidson in my email sent at 2:44 p.m. on November 29, 2022
that “Need to adjourn both motion sequence 3 and 4 to January 4, 2023” which was
omitted in the stipulation that Mr. Davidson prepared.
25. However, it became blatantly obvious that Defendant NYDEC’s counsel,
Mr. Davidson, had no intention of adjourning both motions, and was deceptively trying
to have Plaintiffs stipulate an adjournment of Motion Sequence #4 so Defendant
NYDEC’s Motion Seq #3 could be heard before Motion Sequence #4.
26. Defendant NYDEC’s counsel sent the following in reply;
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27. After realizing that Defendant NYDEC’s counsel had no intention to
adjourn both motions, I sent the following email to Defendant counsel;
28. Defendant NYDEC’s counsel, Mr. Davidson never responded to my
email that I sent at 3:07 p.m. on November 29, 2022 stating “Are you trying to get
your motion heard first. Is that what you’re trying to do here?”
29. Thereafter, Mr. Davidson filed his application to this Court to
adjourn only Motion Sequence # 4.
30. It was at that point that I sent the following email stating that I would not
consent to an adjournment;
31. I then told Mr. Davidson that if he was unwilling to adjourn BOTH,
Motion Sequence #3 and Motion Sequence #4, then I would NOT consent to adjourning
any motion.
32. Plaintiffs have given Defendant NYDEC ample time to respond to Motion
Sequence #4 and Defendant NYDEC has refused to respond to Motion Sequence #4.
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NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 12/01/2022
WHEREFORE, it is respectfully requested that:
a. Defendant NYDEC’s application to this Court (NYSCEF DOC. NO. 116)
to adjourn Motion Sequence # 4 from December 8, 2022 for an additional thirty (30) days
be DENIED;
b. Or in the alternative, that both Motion Sequence #3 and Motion Sequence
#4 be adjourned together to the same return date;
c. And for such other and further relief as this Court deems just and proper.
Dated: December 1, 2022
Great Neck, New York
Gary Rosen, Esq.
Rosen Law LLC
Attorney for Plaintiffs
MARK SONNENSCHEIN and
477 WILLIS AVE LLC
216 Lakeville Road
Great Neck, New York 11020
Tel. (516) 437-3400
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FILED: BRONX COUNTY CLERK 12/01/2022 12:40 PM INDEX NO. 816525/2021E
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 12/01/2022
WORD COUNT CERTIFICATION
I hereby certify pursuant that the document was prepared on a computer using
Microsoft Word.
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 this affirmation is 1.285 words.
Dated: December 1, 2022
Great Neck, New York
Gary Rosen, Esq.
Rosen Law LLC
Attorney for Plaintiffs
MARK SONNENSCHEIN and
477 WILLIS AVE LLC
216 Lakeville Road
Great Neck, New York 11020
Tel. (516) 437-3400
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Preview
FILED: BRONX COUNTY CLERK 12/01/2022 12:40 PM INDEX NO. 816525/2021E NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 12/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX --------------------------------------------------------------------X Index No. 816525/2021E MARK SONNENSCHEIN and 477 WILLIS AVE LLC AFFIRMATION IN Plaintiffs, OPPOSITION TO -against- DEFENDANTS’ APPLICATION TO ADJOURN MOTION 1986-F&S OF NEW YORK, LTD., and NEW YORK SEQUENCE #4 DEFERRED EXCHANGE CORPORATION Defendants. --------------------------------------------------------------------X GARY ROSEN, ESQ. an attorney duly admitted to practice law in the courts of the State of New York affirms under the penalties of perjury that the following are true: 1. I am the attorney for Plaintiffs MARK SONNENSCHEIN and 477 WILLIS AVE LLC (the “Plaintiffs”) in this action. 2. I am fully familiar with the contents herein, and the facts and circumstances concerning this action. 3. I note that there is a status conference before this Court on December 19, 2022 at 2:00 p.m. 4. At the present time, there are two open motions: a. Motion Sequence # 3 is returnable on December 19, 2022; and b. Motion Sequence # 4 is returnable on December 8, 2022. 5. Defendants’ counsel asked to adjourn Motion Sequence # 4 but has refused to consent to adjourn Motion Sequence # 3 to put both motions on the same return date. 1 1 of 8 FILED: BRONX COUNTY CLERK 12/01/2022 12:40 PM INDEX NO. 816525/2021E NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 12/01/2022 6. On November 30, 2022, Defendants’ counsel made an application to this Court (NYSCEF DOC. NO. 116) to adjourn Motion Sequence # 4 from December 8, 2022 for an additional thirty (30) days. 7. Motion Sequence # 3 is scheduled to be heard on December 19, 2022, and we told Defendants’ counsel to send us a stipulation to adjourn Motion Sequence # 3 and Motion Sequence # 4 to the same adjourned date for judicial economy, and it is the Defendants’ counsel who asked us for consent to adjourn Motion Sequence # 4, but he refused to agree to adjourn Motion Sequence # 3. 8. It is inconceivable that Defendants’ counsel would ask for our consent to adjourn Motion Sequence # 4, but refuse to consent to adjourn Motion Sequence # 3 to the same date as Motion Sequence # 4. 9. Defendants’ counsel is only trying to get an advantage over the Plaintiffs by having Motion Sequence # 3 heard prior to Motion Sequence # 4. 10. The Court should either deny Defendants’ application for the adjournment of Motion Sequence # 4, or adjourn both, Motion Sequence # 3 and Motion Sequence # 4 to the same adjourned date for judicial economy and for fairness and no advantage to any party. 11. I told Defendant NYDEC’S counsel, Harris Davidson, Esq. that I have no problem adjourning both, Motion Sequence # 3 and Motion Sequence # 4 to any date that he wants, but he refused – he only wanted to adjourn Motion Sequence # 4, but not adjourn Motion Sequence # 3 as I requested, to put both Motion Sequence # 3 and Motion Sequence # 4 returnable on the same date. 2 2 of 8 FILED: BRONX COUNTY CLERK 12/01/2022 12:40 PM INDEX NO. 816525/2021E NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 12/01/2022 12. Defendant NYDEC’S counsel, Harris Davidson, Esq. wanted me to consent to adjourn Motion Sequence # 4, while Defendant NYDEC’S counsel, Harris Davidson, Esq. simultaneously refused to adjourned my request for an adjournment of Motion Sequence # 3. 13. Mr. Davidson wanted a one-way courtesy, but refused to extend the same courtesy to me and Plaintiffs. 14. We submit this affirmation opposition to Defendant NEW YORK DEFERRED EXCHANGE CORPORATION’S (“Defendant NYDEC”) application for a thirty (30) day adjournment on Plaintiffs’ Motion for Default (Motion Sequence # 4). 15. Motion Sequence # 3 is Defendant NYDEC’s order to show cause requesting relief under CPLR §3012 (to permit the filing of Defendant NYDEC’s late and untimely answer) and CPLR §2004 (to grant an extension of time to permit the filing of Defendant NYDEC’s late and untimely answer) (the “Order to Show Cause – NYSCEF Doc. Nos. 99-101). 16. Motion Sequence # 4 is Plaintiffs’ motion for a default judgment. 17. Motion Sequence # 3 should be heard at the same time as Motion Sequence # 4. 18. In an attempt to have Motion Sequence # 3 heard before Motion Sequence # 4, Defendant NYDEC intentionally submitted the email exchanged between me and Defendant NYDEC’s counsel, Harris Davidson, Esq. in an attempt to deceive this Court, as Harris Davidson, Esq. failed to explain the ENTIRE email exchange between he and me regarding adjourning both, Motion Sequence # 3 and Motion Sequence # 4. 3 3 of 8 FILED: BRONX COUNTY CLERK 12/01/2022 12:40 PM INDEX NO. 816525/2021E NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 12/01/2022 19. Defendant NYDEC alleges the following; “On November 29, 2022, undersigned counsel for NYDEC emailed counsel for Plaintiffs to request a three-week adjournment of the Motion. Plaintiffs’ counsel initially responded “no problem Please add 2 weeks for a reply” and undersigned counsel prepared a stipulation in accordance with the parties’ agreement. However, shortly thereafter Plaintiffs’ counsel changed his mind, stating “We are not consenting to adjourn any motion”. A copy of the correspondence is annexed hereto as Exhibit A.” (the “ Affirmation of Harris W. Davidson, Esq.” – NYSCEF Doc. No. 116) 20. Mr. Davidson intentionally and purposefully left out the email exchanges which occurred between the emails when I agreed to the adjournment and when I notified Defendant NYDEC’s counsel that we will not be consenting to an adjournment. 21. After I initially agreed to the adjournment requested, Defendant NYDEC sent the following email; 22. The Proposed stipulation was only seeking an adjournment of Motion Sequence # 4 and not seeking an adjournment for Motion Sequence # 3, when the Stipulation should have stated that Motion Sequence # 3 and Motion Sequence # 4 would be adjourned. 4 4 of 8 FILED: BRONX COUNTY CLERK 12/01/2022 12:40 PM INDEX NO. 816525/2021E NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 12/01/2022 23. After realizing this, I sent the following email to Defendant NYDEC’s counsel seeking an adjournment of both Motion Sequence #3 and #4; 24. I told Mr. Davidson in my email sent at 2:44 p.m. on November 29, 2022 that “Need to adjourn both motion sequence 3 and 4 to January 4, 2023” which was omitted in the stipulation that Mr. Davidson prepared. 25. However, it became blatantly obvious that Defendant NYDEC’s counsel, Mr. Davidson, had no intention of adjourning both motions, and was deceptively trying to have Plaintiffs stipulate an adjournment of Motion Sequence #4 so Defendant NYDEC’s Motion Seq #3 could be heard before Motion Sequence #4. 26. Defendant NYDEC’s counsel sent the following in reply; 5 5 of 8 FILED: BRONX COUNTY CLERK 12/01/2022 12:40 PM INDEX NO. 816525/2021E NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 12/01/2022 27. After realizing that Defendant NYDEC’s counsel had no intention to adjourn both motions, I sent the following email to Defendant counsel; 28. Defendant NYDEC’s counsel, Mr. Davidson never responded to my email that I sent at 3:07 p.m. on November 29, 2022 stating “Are you trying to get your motion heard first. Is that what you’re trying to do here?” 29. Thereafter, Mr. Davidson filed his application to this Court to adjourn only Motion Sequence # 4. 30. It was at that point that I sent the following email stating that I would not consent to an adjournment; 31. I then told Mr. Davidson that if he was unwilling to adjourn BOTH, Motion Sequence #3 and Motion Sequence #4, then I would NOT consent to adjourning any motion. 32. Plaintiffs have given Defendant NYDEC ample time to respond to Motion Sequence #4 and Defendant NYDEC has refused to respond to Motion Sequence #4. 6 6 of 8 FILED: BRONX COUNTY CLERK 12/01/2022 12:40 PM INDEX NO. 816525/2021E NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 12/01/2022 WHEREFORE, it is respectfully requested that: a. Defendant NYDEC’s application to this Court (NYSCEF DOC. NO. 116) to adjourn Motion Sequence # 4 from December 8, 2022 for an additional thirty (30) days be DENIED; b. Or in the alternative, that both Motion Sequence #3 and Motion Sequence #4 be adjourned together to the same return date; c. And for such other and further relief as this Court deems just and proper. Dated: December 1, 2022 Great Neck, New York Gary Rosen, Esq. Rosen Law LLC Attorney for Plaintiffs MARK SONNENSCHEIN and 477 WILLIS AVE LLC 216 Lakeville Road Great Neck, New York 11020 Tel. (516) 437-3400 7 7 of 8 FILED: BRONX COUNTY CLERK 12/01/2022 12:40 PM INDEX NO. 816525/2021E NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 12/01/2022 WORD COUNT CERTIFICATION I hereby certify pursuant that the document was prepared on a computer using Microsoft Word. 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 this affirmation is 1.285 words. Dated: December 1, 2022 Great Neck, New York Gary Rosen, Esq. Rosen Law LLC Attorney for Plaintiffs MARK SONNENSCHEIN and 477 WILLIS AVE LLC 216 Lakeville Road Great Neck, New York 11020 Tel. (516) 437-3400 8 8 of 8