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139730684113 E-Filed 12/05/2021 09:33:58 AM RECEIVED NYSCEF: 12/01/2022
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
BEN-ZION ALCALAY
Plaintiff Case No. 50-2020-CA-012935-MB
vs.
ATLAS CYBERSECURITY, LLC,
a New York Limited Liability Company,
DACS CYBERSECURITY HOLDINGS, LLC,
a New York Limited Liability Company,
BARRY DYNKIN, and BENJAMIN DYNKIN,
Defendants.
DEFENDANTS'
ORDER ON MOTION TO SET ASIDE JUDICIAL DEFAULT,
TO DISMISS FOR HAVING FILED A DUPLICATIVE ACTION, AND
IN THE ALTERNATIVE, TO QUASH SERVICE OF PROCESS AND SET AN
EVIDENTIARY HEARING TO CONFIRM THAT PROCESS WAS NOT SERVED
AND ON PLAINTIFF'S MOTION FOR THE ENTRY OF AN ORDER OF FINAL
JUDGMENT
THIS MATTER came before the Court on August 23, 2021 on Defendants ATLAS
CYBERSECURITY, LLC, ("Atlas") and BARRY DYNKIN ("Barry") and BENJAMIN
DYNKIN'S ("Benjamin")(collectively "Defendants") Motion to Set Aside Judicial Default, to
Dismiss for Having Filed a Duplicate Action and in the alternative, to Quash Service of Process
and Set an Evidentiary Hearing to Confirm that Process Was Not Served (the "Motion"). This
Court conducted an evidentiary hearing on November 1, 2021 and November 3, 2021, and is in
receipt of the Plaintiff's response to the Motion that was filed on September 6, 2021. Upon
consideration of the Motion and the opposition and based on the testimony elicited by the parties,
the Motion is hereby denied for the reasons stated herein.
L BACKGROUND
On November 23, 2020, Plaintiff initiated the instant action against Defendants Atlas,
Barry, and Benjamin for damages arising out of alleged misconduct associated with three
FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 12/05/2021 09:33:58 AM
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agreements entered into by the parties herein. On January 5, 2021, Defendants Atlas, Barry and
Benjamin were served with the Summons and Complaint at 130 Cooper Drive, Great Neck, New
"Dwelling"
York 11023 (the or "130 Cooper Drive"). On January 6, 2021, service was completed
by mailing a copy of the Summons and Complaint to the Dwelling. In the Motion, Defendants do
not contest that the Dwelling was the proper address for service to be effectuated or that the method
of service was improper, only that service never occurred. Thereafter, on January 12, 2021,
Plaintiff filed the affidavits of service for the service on all three Defendants from the process
server, John Savage ("Savage"), with this Court on the Comprehensive Case Information System.
Accordingly, Defendants were obligated to answer or otherwise respond to the Complaint by
February 4, 2021.
On January 22, 2021, prior to the February 4, 2021 deadline for the Defendants to respond
Defendants'
to the Complaint, Plaintiff's counsel emailed counsel, Gary Rosen ("Mr. Rosen"),
and advised Mr. Rosen that his clients had been served in this action. Mr. Rosen responded to the
florida"
email from Plaintiff's counsel, which stated "Ben-zion actions in in the subject line, and
at first stated "I do not know what you are talking about. My clients have not been served in any
Florida action and there is no jurisdiction over them. You should stop with the nonsensical filings
already and send me a settlement proposal. You want to waste your time with the orders to show
damage."
cause and everything, ok, and i'llkeep responding, but our clients are just causing more
In response, Plaintiff's counsel emailed Mr. Rosen and stated "Gary, Your clients have
motions."
been served and we will proceed with our Then, Mr. Rosen responded to Plaintiff's
counsel and stated "in response to an email he received, and stated "Your affidavits of service are
defective for the alleged service on January 5, 2021. There will be a motion to dismiss filed in
Florida for lack of jurisdiction. We are filing an action against Ben-Zion Alcalay in the Eastern
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District of New York and sending for service via AO398. Note that its you who want to litigate
money."
and spend the Although Mr. Rosen acknowledged the purported service upon Defendants,
the filing of affidavits of service in the action, and represented that he did represent the Defendants
with respect to Plaintiff, the Defendants failed to file an answer, move for an extension of time, or
other act with respect to the Complaint by February 4, 2021.
On February 4, 2021, Plaintiff filed an Amended Complaint against the Defendants, which
was served, along with a Summons, on Defendants Atlas, Benjamin and Barry via the United
States Postal Service, addressed to the Defendants at the Dwelling, on that same date. In the
Amended Complaint, DACS Cybersecurity Holdings, LLC ("DACS")was added as a defendant,
and a summons was issued for DACS by the Clerk. Defendants time to answer or otherwise move
with respect to the Amended complaint expired on February 24, 2021, at which time Defendants
had failed to answer, move for an extension of time, or otherwise respond to the Amended
Complaint.
On April 19, 2021, a photograph of Benjamin was shown to Savage who thereafter
confirmed that the individual he served the Complaint upon for his service on the Defendants, on
January 5, 2021, was Benjamin. In the original affidavits of service, Savage stated that service was
Doe"
on "John because Benjamin refused to provide his name, but because Savage was shown the
Atlas'
photograph of Benjamin from website, Savage was able to confirm Benjamin's identity. At
that time, Savage executed three amended affidavits of service for Atlas, Benjamin and Barry. The
amended affidavits of service for Benjamin and Atlas identified the person served with the
Summons and Complaint as Benjamin and attested that personal service was effectuated upon
Benjamin and Atlas and substituted service for on 5'2021.
Barry January
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On May 5, 2021 Plaintiff filed a Motion for an Order of Default as to Defendants Atlas,
Benjamin and Barry (the "Motion for Default") and noticed the motion for a hearing before the
Court on May 20, 2021, with service effectuated in compliance with the rules of this Court. On
May 20, 2021, this Court conducted a hearing on Plaintiff's Motion for Default at which time Mr.
Rosen, appeared on behalf of the Defendants on the zoom hearing. This Court denied without
prejudice the Motion for Default because the affidavits of service did not appear on the Court's
docket.
Thereafter, on May 20, 2021, the amended affidavits of service that evidenced service on
Defendants were filed with the Court. On May 20, 2021, Plaintiff filed a Renewed Motion for
Entry of Default Judgment ("Renewed Motion for Default") and noticed the motion for hearing on
June 23, 2021, with service effectuated in compliance with the rules of this Court. On June 23,
2021, this Court conducted a zoom hearing on Plaintiff's Renewed Motion for Default, which
neither the Defendants nor their counsel appeared or otherwise submitted any opposition to the
motion.
On June 26, 2021, this Court issued an order granting Plaintiff's Renewed Motion for
Default ("Order of Judicial Default"), which was entered by the Clerk on June 30, 2021. The Order
of Judicial Default was granted upon the following findings of fact: (1) Plaintiff properly filed
affidavits of service for the service of the Summons and Complaint on Defendants; and (2) that no
answer, motion, or other response with respect to the Complaint or Amended Complaint was
submitted by the Defendants.
On July 13, 2021, this Court mailed a copy of the Order of Judicial Default to Defendants
at the address of the Dwelling. On July 16, 2021, the Plaintiff filed a motion for final judgment
after default. Defendants filed the instant Motion on August 23, 2021, 41 days after the mailing.
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On August 24, 2021, Plaintiff filed a Motion for Final Judgment After Default, and noticed the
hearing for October 6, 2021. On August 30, 2021, this Court issued an order setting a hearing for
Defendants'
a case management conference on September 21, 2021. On August 30, 2021, Counsel
also noticed the Motion for a hearing on the Court's uniform motion calendar on September 14,
2021.
On September 14, 2021, the parties appeared before this Court for the hearing on the
Motion at which time this Court directed the parties to appear for an evidentiary hearing on the
Motion that the Court scheduled for November 1, 2021. On November 1, 2021 and continued on
November 24, 2021, this Court conducted an evidentiary hearing on the instant Motion (the
"Evidentiary Hearing").
II. FINDINGS OF FACT
Based upon the briefs, exhibits, and affidavits submitted in connection with the Motion and
upon the testimony of Defendant Benjamin Dynkin and process server John Savage, the Court
makes the following Findings of Fact.
A. Service of the Complaint.
1. On December 28, 2020 at 12:28 PM, Savage went to the Dwelling, where Benjamin
Atlas'
and Barry resided and at thattime was principal place of business, to effectuate service upon
Defendants Atlas, Benjamin and Barry. A photograph was admitted into evidence with GPS
tracking that supports this finding.
2. On December 28, 2020, Savage was unable to effectuate service upon Defendants.
3. On January 5, 2021 at 8:48 PM, Savage made a second attempt to serve Defendants
at the Dwelling, at which time the lights at the Dwelling were on and the automobile registered to
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Benjamin with the New York State Department of Motor Vehicle along with two other vehicles
was located in the driveway. A photograph was admitted into evidence with GPS tracking that
supports this finding.
4. Upon arriving at the Dwelling, Savage approached the premises, rang the doorbell
and knocked on the door twice. After the second knock, Benjamin approached the door and
removed a piece of cardboard that covered the window in the door. At this time, Savage could see
Benjamin through the window and Benjamin could see Savage. The two made eye contact with
one another and knew each other from a prior service in November 2020 by Savage on Benjamin
involving a New York Supreme Court action.
5. At that time, Savage identified himself as a process server, and stated that his
purpose at the Dwelling was to serve the Summons and Complaint in this action upon the
Defendants.
6. In response to Savage, Benjamin refused to open the door, would not identify
himself, and stated to Savage that he was not accepting service of the papers.
7. Due to Benjamin's refusal to remove the barrier between Savage and himself,
Savage stated that he was leaving copies of the Summons and Complaint on the doorstep and that
Defendants had been served.
8. Pursuant to Florida law, a process server's "reasonable attempt to effect personal
service of process upon a person in his own home, when the person reasonably should know the
officer's identity and purpose, cannot be frustrated by the simple expedient of the person closing
process."
the front door in the officer's face and willfully refusing to accept service of Haney v.
Olin Corp., 245 So.2d 671 (Fla. 4th DCA 1971). In this situation, the "mere leaving of suit papers
delivery..."
on a doorstep can become an effective Id.
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9. Benjamin knew, or reasonably should have known Savage's identity and purpose
because (i) on January 5, 2021, Savage identified himself to Benjamin and stated his purpose; and
(ii)prior to the January 5, 2021, service Savage had previously, and recently, served process upon
Benjamin in an unrelated New York state action, which Benjamin acknowledged during his
testimony that he had been served prior to January 5, 2021 by Savage.
10. Having refused to open the door and willfully refusing to accept service, itwas
proper for Savage to leave copies of the Summons and Complaint on the doorstep of the Dwelling
to effectuate service upon Defendants. Haney, 245 So.2d 671 ("Delivery does not require that copy
of summons and complaint be placed in the defendant's hands, nor for that manner, that the
defendant be eve physically touched with the suit papers.")
11. After he effectuated service on the Defendants, Savage photographed the Dwelling
and the automobiles located in the driveway with his process server GPS system that evidenced
his location and the Dwelling at the time the service was effectuated on January 5, 2021 at 8:48
PM upon the Defendants.
12. On January 6, 2021, service upon the Defendants was completed by the mailing
copies of the Summons and Complaint, in a First Class postpaid properly addressed envelope
Confidential"
marked "Personal and in an official depository under the exclusive care and custody
of the United States Post Office in the State of New York.
13. Thereafter, Savage executed affidavits of service for the service he effectuated upon
the Defendants.
14. The affidavit of service for service upon Benjamin correctly attested that on January
5, 2021, Benjamin was personally served at the Dwelling by leaving a copy of the Summons and
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Complaint with John Doe, a person of suitable age and discretion. Savage attested to the affidavit
on January 6, 2021.
15. The affidavit of service for service upon Atlas correctly attested that on January 5,
2021, Atlas was personally served at the Dwelling by leaving a copy of the Summons and
Complaint with John Doe, a person of suitable age and discretion. Savage attested to the affidavit
on January 6, 2021.
16. The affidavit of service for service upon Barry correctly attested that on January 5,
2021, substituted service was effectuated upon Barry, at the Dwelling, by leaving a copy of the
Summons and Complaint with John Doe, a person of suitable age and discretion. (Collectively,
the "Affidavits of Service")
17. Although Savage was aware of Benjamin's identity because he had previously
served him in an unrelated action, itwas proper for Savage to identify the person served on January
5, 2021, as John Doe as Benjamin refused to confirm his identity at the time service was
effectuated.
18. On April 19, 2021, Plaintiff's counsel emailed the process server company a
photograph of Benjamin. This photograph was shown to Savage who then confirmed that on
January 5, 2021 the individual he served the Summons and Complaint upon was Benjamin.
Thereafter, Savage executed amended affidavits of service for the service of the Defendants.
19. The amended affidavits of service for Benjamin and Atlas identified the person
served with the Summons and Complaint as Benjamin and attested that personal service was
effectuated upon Benjamin and Atlas on 5' 2021.
January
20. Benjamin is an individual authorized to accept service on behalf of Atlas as he was
the manager of the company.
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21. The amended affidavit of service for Barry identified the person served as Benjamin
and attested that substituted service upon Barry was effectuated on January 5, 2021, when Savage
served Benjamin with the Summons and Complaint. (Collectively, the "Amended Affidavits of
Service").
22. Service upon Barry by delivering a copy of the Summons and Complaint to
Benjamin is proper as both individuals reside at the Dwelling.
23. This Court concludes that the alleged discrepancies in the height and weight notated
on the affidavits of service for Benjamin does not sway this Court that Savage did not serve
Benjamin with the Summons and Complaint as the vantage point from where Savage was when
he served the papers was a step down from where Benjamin was standing as well as he
communicated with Benjamin through a small window in the door. Furthermore, Savage stated
that Benjamin was the individual he served. Further, the Court found Savage to be a credible
witness.
24. The Affidavits of Service and the Amended Affidavits of Service are regular on
their face and are therefore presumptively valid to establish that service of process was properly
effectuated upon Defendants on January 5, 2021. Se. Termite & Pest v. Ones, 792 So. 2d 1266,
4tl¹
1268 (Fla. DCA 2001)(Under Florida law, a certificate of service, which is regular on itsface,
is presumptively valid to establish that service of process was properly effectuated).a
25. Accordingly, pursuant to Florida law, Defendants "must present sufficient evidence
return."
to meet [their] heavy burden to impeach the [process server's] Slomowitz v. Walker, 429
4th
So. 2d 797, 799 (Fla. DCA 1983). The sufficient evidence standard requires the Defendants to
Defendants'
present evidence corroborating the denial of service and the corroborating evidence
must meet the standard of clear and convincing evidence. Id.
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26. The affidavits submitted by Benjamin and Barry, in connection with the Motion,
wherein Benjamin and Barry stated that neither was served on January 5, 2021, is insufficient to
impeach the Affidavits of Service and the Amended Affidavits of Service. Id. (quoting Sarlouis v.
Firemen's Insurance Co., 45 Md. 241, 244 (1876)("[A] mere denial by a defendant, unsupported
by corporative evidence or circumstances is not enough to impeach the return of [a] process
server.")
27. Defendants did not present this Court with evidence to corroborate their denial that
service was properly effectuated on them.
28. The only evidence submitted by Defendants to corroborate the denial of service
was the testimony of Benjamin who stated that he did not recall his whereabouts on January 5,
2021 at approximately 8:48 PM or that he was not home at such time.
29. Additionally, the photograph taken by Savage after he effectuated service of the
front of the Dwelling supports his claim that he served Benjamin with the papers as the lights were
on in the Dwelling and all three vehicles were in the driveway, including the vehicle registered to
Benjamin.
30. This Court also heard the testimony from Benjamin that he and his brother, on
January 5, 2021, stillremained confined to the Dwelling, including for their employment, except
for random walks because of the pandemic, and they were not leaving the Dwelling to be in public
places such as restaurants and stores.
31. The Court did not find Benjamin's testimony to be credible that he and Barry would
have been away from the Dwelling on a walk at the time service was effectuated based on the time
of day (that itwas nighttime and dark out) as well as it was in the middle of winter in New York
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and Benjamin acknowledged that itwould have been cold outside, even though he testified that he
wears a jacket to keep him warm.
32. Benjamin testified that he did not remember when he became aware of this action
or when the Defendants retained Mr. Rosen in connection with this action but he did testify that
the Defendants retained Mr. Rosen in November 2020 for allpurposes relating to Atlas and DACS.
33. Benjamin testified that he did not remember how Mr. Rosen became aware that the
Affidavits of Service had been filed in this action as of at least January 22, 2021 when Mr. Rosen
emailed Plaintiff's counsel regarding the service in this action.
34. Based on the email communication between Mr. Rosen and Plaintiff's counsel, it
is apparent that Mr. Rosen went onto the Court's docket and reviewed the affidavits of service in
this action on January 22, 2021 after Plaintiff's counsel advised him of the service in this action,
as Mr. Rosen at first was unaware of the purported service in his first email but after being advised
of the service he opined on the affidavits of service. Thus, this Court concludes that the Defendants
were aware of this action and the purported service as late as January 22, 2021. The Court finds
Benjamin's testimony in this regard not to be credible.
35. In finding that much of Benjamin's testimony was not credible, the Court notes that
many of the salient facts to which Benjamin testified to were not distinctly remembered, and his
testimony was neither precise nor explicit. The Court also did not find Benjamin to be confused;
rather based on much of his testimony, the Court finds and concludes he intentionally attempted
to delay the hearing by providing illogical, irrelevant, and lengthy responses that were not germane
to the inquiry from Plaintiff's counsel.
36. As such, because of the Court's significant concerns regarding Benjamin's
credibility, the Court did not find his testimony to be of such a weight as to produce in the mind
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of this Court a firm belief or conviction, without hesitancy, as to the truth of the allegations
Defendants seek to establish with respect to the service. Slomowitz, 429 So. 2d 797 (setting forth
the standard for clear and convincing evidence). As such, Defendants failed to offer clear and
convincing corroborating evidence to support their contention that they were not served with the
Summons and Complaint on January 5, 2021.
37. Accordingly, Defendants failed to present sufficient evidence to overcome the
presumption that on January 5, 2021, service of the Summons and Complaint was effectuated upon
each Defendant.
38. The Court therefore concludes that, on January 5, 2021, service of process was
properly and validly effectuated upon the Defendants.
B. Service of the Amended Complaint.
39. Having found that Defendants were properly served with process of the Summons
and Complaint on January 5, 2021, service of the Amended Complaint by mail was proper.
Korman v. Stern, 294 So. 3d 918, 920 (Fla. 4th DCA. 2020)(Under Florida Law, "amended
pleadings require only service, not service of process.")
40. "Service by mail is complete upon mailing", Fla. R. Jud. Admin. 2.516(b)(2), and
"[a] certificate of service is 'prima facie proof of such service in compliance with this
rule.'"
Korman, 294 So. 3d 918, 921(quoting Fla. R. Jud. Admin. 2.516(f)).
41. On February 4, 2021, Plaintiff's counsel filed the Amended Complaint that
included a certificate of service, in the form of an Attorney Affirmation of Service, attesting that
on February 4, 2021 copies of the Amended Complaint placed mailed via the United State Postal
Service to the Defendants at the Dwelling ("Certificate of Service").
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42. The Certificate of Service is prima facie proof that the Defendants were properly
served with the Amended Complaint at the Dwelling.
43. Under Florida law "[w]hen documents are mailed to an addressee, there is a
receipt."
presumption of Camerota v. Kaufman, 666 So. 2d 1042, 1045 (Fla. 4th DCA. 1996). To
contrary."
rebut this presumption, Defendants must submit "competent evidence to the Migliore
v. Migliore, 717 So. 2d 1077, 1079 (Fla. 4th DCA. 1998).
44. Benjamin testified that he did not receive a copy of the Amended Complaint in the
mail and that if he had, he would have either collected itfrom the mailbox himself or a member of
his small family would have given itto him.
45. Benjamin also testified that at no point did he receive any mailings in the instant
action, including service of the Motion for Default and the Notice of Hearing on the Motion for
Default, until he received a copy of the Order of Judicial Default which was mailed to the
Dwelling, by the Clerk of this Court on July 13, 2021, 41 days later.
Defendants'
46. This Court finds that Benjamin's testimony lacks credibility as counsel
was aware of this action as early as January 22, 2021 and appeared on behalf of Defendants at the
hearing on the Motion for Default on May 20, 2021, which was also noticed with a certificate of
service that confirmed service on the Defendants by mailing via the United States Postal Service
to the Dwelling.
47. Benjamin's testimony that he did not receive a copy of the Amended Complaint in
the mail, which the Court does not find credible, is insufficient to rebut the presumptions that
Defendants were served with the Amended Complaint per the Certificate of Service.
48. As such, the Court finds and concludes that the Defendants failed to meet their
burden of rebutting the presumption of receipt.
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49. Therefore, this Court concludes that the Defendants were properly served with a
copy of the Amended Complaint and received it.
C. Motion to Vacate the Default Judgment.
Defendants'
50. On January 22, 2021, counsel emailed Plaintiff's counsel stating that
the Affidavits of Service filed in the instant action were defective and that Defendants would file
a motion to dismiss in the instant action.
51. The Defendants through their attorney, Mr. Rosen, was aware of this action on
January 22, 2021 and Mr. Rosen reviewed the Affidavits of Service on the same day.
52. This Court finds that Defendants were aware of this action, personally and/or
through their attorney, as of January 22, 2021.
53. As of at least January 22, 2021, Defendants were required to promptly file a
responsive pleading, a motion to dismiss, or a motion to quash service of process upon being
informed of the instant action.
54. Defendants were aware of this action as of at least January 22, 2021, and did not
file the motion to dismiss, a motion to quash service, an answer, or otherwise appear in this action
until May 20, 2021.
55. "To show excusable neglect, the moving party must produce sufficient evidence of
mistake, accident, excusable neglect, or surprise as contemplated by rule 1.540(b) before the
invoked.'"
court's equity jurisdiction may be Additionally, under Florida law
"excusable neglect must be proven by sworn statements or affidavits. Unsworn assertions
insufficient."
of excusable neglect are Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla. Dist. Ct. App.
2004).
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56. Defendants did not present sufficient evidence in the form of a sworn statement or
affidavit to demonstrate that their failure to file a responsive pleading, a motion to extend time to
respond to the Complaint or Amended Complaint, or a motion with respect to service of the
Complaint and/or Amended Complaint was the result of excusable neglect.
Defendants'
57. unsworn statements that excusable neglect exists due to Plaintiff
alleged failure to serve the Complaint, the Amended Complaint, Notice of Motion and Notice of
Hearing (1) lack merit; and (2) are insufficient to support a finding of excusable neglect as
Defendants failed to set forth sworn facts to support said conclusions. Further, in this regard the
Court notes that it did not find Benjamin's testimony regarding failure of service to be credible.
Westinghouse Elevator Co., a Div. of Westinghouse Elec. Corp. v. DFS Const. Co., 438 So. 2d
125, 126 (1983)("It is not permissible to allege that a defaulting party's negligence is excusable
without setting forth the facts to support such a conclusion.")
58. Accordingly, Defendants are found to have failed to satisfy their burden of
demonstrating that their failure to file a responsive pleading was a result of excusable neglect.
59. Defendants were aware that they were served as of January 22, 2021 and in default
Defendants'
on May 20, 2021, when counsel appeared at the hearing on the Motion for Default.
60. This Court mailed a copy of the Order of Judicial Default to Defendants at the
Dwelling and Benjamin testified that he received this correspondence from the Court through the
mail on or about July 13, 2021. Itis not credible that Defendants would have received this mailing
but no other mailings in this matter.
61. Defendants filed the Motion on August 23, 2021, 41 days after receipt of the Order
Defendants'
of Default that this Court entered against them and 95 days after counsel appeared at
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the hearing on the Motion for Default. The Court does not find this effort to be demonstrative of
the exercise of due diligence.
62. A six-week delay in moving to vacate does not constitute an exercise of due