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Supreme Court of State of New York
County of QUEENS
PRESENT: HON
Justice of the Supreme Court
Index #: 702243 - 2021
Mintaka Financial, LLC
Plaintiff(s) Order to Show Cause
v. With T.R.O. In Civil Action
Todd L Jones,
Cuzin's Duzin Corp.
Defendant(s)
Upon reading and filing the affidavit of Todd L Jones,
sworn to on the M day of November, 2022, and upon the Exhibit(s) attached to the affidavit, and
Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Let the Plaintifff or their attorney show cause:
.
at IAS Part _, Room ,
of thisCourt, to be held at:
Supreme Court of the State of New York
County of QUEENS
88-11 Sutphin Boulevard,
Jamaica, N.Y. 11435
On the day of 2022
at o'clock a.m./ p.m.
or as soon as counsel may be heard why and order should not be made:
1. Vacating/ reversing the default judgment entered against Defendant on or around September 21, 2021, for
$78,442.02
2. Dismissing thisaction against Defendant with prejudice.
Pending the hearing and determination of this motion, itis ORDERED that:
1. Vacating/ reversing the default judgment entered against Defendant on or around September 21, 2021, for
$78,442.02
2. Dismissing thisaction against Defendant with prejudice.
And why Defendant should not have such other and furtherrelief as may be just, proper and equitable.
Sufficient cause appearing therefor, letpersonal service of a copy of this order, and the other papers upon
which this order is granted, upon the Plaintifff or Attorney(s) for Plaintifff) by
on or before the _day of , 1021 be deemed
good and sufficient. An affidavit or other proof of service shall be presented to thisCourt on the return date directed
in the second paragraph of thisorder.
ENTER
J.S.C.
Supreme Court of State of New York
County of QUEENS
Mintaka Financial, LLC,
Plaintiff(s)
v.
Index #: 702243 - 2021
Affidavit in Support
Todd L Jones,
Cuzin's Duzin Corp.
Defendant(s)
______________________________________________Ç
Todd L Jones being duly sworn deposes and says:
1. Iam the Defendant in this action. I make thisaffidavit in support of my motion for an order:
1. Vacating/ reversing the default judgment entered against Defendant on or around September 21, 2021, for
$78,442.02
2. Dismissing this action against Defendant with prejudice.
2. I believe the court should grant my motion because:
" Defendant(s) denies allallegations in the Summons and Complaint.
hereby
" denies each and allegation in the Summons and Complaint.
Defendant(s) every
" Defendant does not owe the amount alleged in the Summons and Complaint.
" The American rule isthat each side pays their own respective attorney fees and court costs. We request that
each side in this matter pay their own respective attorney fees and court costs.
" Statute of Limitations- the Statute of Limitations in thismatter has tolled.
" Laches- Defendant would be affected the length of time Plaintiff took in and re-
adversely by bringing
startingthis lawsuit.
Lack of Standing
" Plaintiffhas not shown legal acquisition/titleof the alleged loan note. Thus, Plaintiff does not have standing
to bring this action.
" Plaintiffhas failed to show that ithas standing to commence thisproceeding against Defendant.
" There is no of contract between Defendant and Plaintiff.
privity
" Plaintiffhas failed to show that ithas legallyacquired good titlethrough the original note/loan holder.
Plaintiffbears the burden of proving this by a preponderance of the evidence. Without such a showing,
Plaintiffhas no standing to bring this action against Defendant and the case must be dismissed.
Lack of Personal Jurisdiction over Defendant due to Plaintiff's Defective Service of the Summons and
Complaint
" Plaintiff failedto serve Defendant with a copy of the Summons and Complaint as required by statestatute
(e.g.CPLR 308).
" CPLR 308 provides in pertinent part:
"Personal service upon a natural person shall be made by any of the following methods:
308(1) by delivering the summons within the state to the person to be served; [or]
308(2) by delivering the summons 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 either mailing the summons to the
person to be served at his or her lastknown residence or by mailing the summons by firstclass mail to the person to
confidential"
be served at his or her actual place of business in an envelope bearing the legend "personal and and not
indicating on the 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 aftersuch
filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of
service, ...; [or]
308(4) where service under paragraphs one and two cannot be made with due diligence, by affixing the summons
to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person
to be served and by either mailing the summons to such person at his or her lastknown residence or by mailing the
summons by firstclassmail to the person to be served athis or her actual place of business in an envelope bearing
confidential"
the legend "personal and and not indicating on the 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 affixing 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 eithersuch affixing or mailing, whichever is effected later;
..."
service shall be complete ten days aftersuch filing [CPLR 308]
" In this case, no good-faith attempt at personal service was made upon the Defendant, such as placing the
Summons and Complaint in Defendant's hand. [CPLR 308(1)]
" In this case, no good-faith attempt at personal service was made upon a person of suitable age and discretion,
such as placing the Summons and Complaint in person of suitable age and discretion's hand. [CPLR 308(2)]
" Because there was no good-faith attempt at personal service to either Defendant [or] a person of suitable age
and discretion, any alleged attempt at affixing a copy of the Summons and Complaint to Defendant's door
and mailing a copy of itto Defendant with proof of mailing [CPLR 308(4)] ["Nail and Mail"] ["Substituted
Service"] were also defective.
" Although the Affidavit of Service of the Plaintiffs Process Server may constitute, in most cases, prima facie
evidence of valid service upon the defendant of the summons with notice pursuant to CPLR 308(1) (see US
Bank N.A. v Ramos, 153 AD3d 882, 884; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589), this
presumption can be rebutted/ overcome by Defendant by attacking the Affidavit of Service, itself,submitted
by the Plaintiff'sProcess Server.
" A mere conclusory denial of proper service is insufficient to rebut the presumption of proper service arising
from the Process Server's Affidavit of Service (see Citimortgage, Inc. v Phillips, 82 AD3d 1032, 1033;
Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327; 96 Pierrepont v Mauro, 304 AD2d 631)
.
" In this case, The Affidavit of Service for the Summons and Complaint is clearlydefective as itfails to
describe personal service to Defendant [CPLR 308(1)] [or]a person of suitable age and discretion/ authority
[CPLR 308(2)] who matched the description of anyone at subject premises thatday.
" Plaintiff bears the burden of proving thisby a preponderance of the evidence.
" Without such a showing, this court does not have personal jurisdiction over Defendant and, thus, the entire
case must be dismissed.
.
Lack of Personal Jurisdiction over Defendant due to Plaintiff's Defective Service of the Notice of Motion for
Default Judgment
" Plaintiff failedto serve Defendant with a copy of the Notice of Motion for Default Judgment as required by
state statute [e.g.CPLR 5015].
" CPLR 5015 provides in pertinent part:
"Relief from judgment or order:
(a) On motion. The court which rendered a judgment or order may relieve a party from itupon such terms as may
be just,on motion of any interested person withsuch notice as the court may direct,upon the ground of:
1. excusable default, ifsuch motion ismade within one year afterservice of a copy of the judgment or order with
written notice of itsentry upon the moving party, or, ifthe moving party has entered the judgment or order, within
one year after such entry; [or]
2. newly-discovered evidence which, ifintroduced at the trial,would probably have produced a different result and
which could not have been discovered in time to move fora new trial under section 4404; [or]
3. fraud, misrepresentation, or other misconduct of an adverse party; [or]
4. lack of jurisdiction to render the judgment or order; [or]
5. reversal, modification or vacatur of a prior judgment or order upon which itis based.
(b) On stipulation. The clerk of the court may vacate a default judgment entered pursuant to section 3215 upon the
filing with him of a stipulation of consent to such vacatur by the parties personally or by their attorneys.
(c) On application of an administrative judge. An administrative judge, upon a showing that default judgments
were obtained by fraud, misrepresentation, illegality, unconscionability, lack of due service, violations of law, or
other illegalitiesor where such default judgments were obtained in cases in which those defendants would be
uniformly entitledto interpose a defense predicated upon but not limited to the foregoing defenses, and where such
default judgments have been obtained in a number deemed sufficient by him to justifysuch action as set forth herein,
and upon appropriate notice to counsel for the respective parties, or to the partiesthemselves, may bring a proceeding
to relieve a party or parties from them upon such terms as may be just. The disposition of any proceeding so
judge."
instituted shall be determined by ajudge other than the administrative
" CPLR 2103 provides in pertinent part:
CPLR Rule 2103. Service of papers
(a) Who can serve. Except where otherwise prescribed by law or order of court, papers may be served by any
person not a party of the age of eighteen years or over.
(b) Upon an attorney. Except where otherwise prescribed by law or order of court, papers to be served upon a
party in a pending action shallbe served upon the party's attorney. Where the same attorney appears fortwo or more
parties,only one copy need be served upon the attorney. Such service upon an attorney shall be made:
. 1. by delivering the paper to the attorney personally; [or]
2. by mailing the paper to the attorney at the address designated by that attorney for that purpose or, ifnone is
designated, at the attorney's lastknown address; service by mail shall be complete upon mailing; where a period of
time prescribed by law ismeasured from the service of a paper and service isby mail, five days shall be added to the
prescribed period ifthe mailing ismade within the stateand six days ifthe mailing ismade from outside the state but
within the geographic boundaries of the United States; [or]
3. ifthe attorney's office isopen, by leaving the paper with a person in charge, or ifno person is incharge, by
leaving itin a conspicuous place; or if the attorney's office isnot open, by depositing the paper, enclosed in a sealed
wrapper directed to the attorney, in the attorney's office letterdrop or box; [or]
4. by leaving itat the attorney's residence within the state with a person of suitable age and discretion. Service
upon an attorney shall not be made at the attorney's residence unless service at the attorney's office cannot be made;
[or]
5. by transmitting the paper to the attorney by facsimile transmission, provided that a facsimile telephone number is
designated by the attorney forthat purpose. Service by facsimile transmission shall be complete upon the receipt by
the sender of a signal from the equipment of the attorney served indicating thatthe transmission was received, and
the mailing of a copy of the paper to that attorney. The designation of a facsimile telephone number in the address
block subscribed on a paper served or filed in the course of an action or proceeding shallconstitute consent to service
by facsimile transmission in accordance with thissubdivision. An attorney may change or rescind a facsimile
telephone number by serving a notice on the other parties; [or]
6. by dispatching the paper tothe attorney by overnight delivery service at the address designated by the attorney
for thatpurpose or, ifnone is designated, at the attorney's lastknown address. Service by overnight delivery service
shall be complete upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the
overnight delivery service for overnight delivery, prior to the latesttime designated by the overnight delivery service
for overnight delivery. Where a period of time prescribed by law is measured from the service of a paper and
service isby overnight delivery, one business day shall be added to the prescribed period. "Overnight delivery
service"
means any delivery service which regularly accepts items for overnight delivery to any address inthe state;
or
7. by transmitting the paper to the attorney by electronic means where and in the manner authorized by the chief
administrator of the courts by rule and, unless such rule shall otherwise provide, such transmission shall be upon the
party's written consent. The subject matter heading foreach paper sent by electronic means must indicate that the
matter being transmitted electronically isrelated to a court proceeding.
(c) Upon a party. If a party has not appeared by an attorney or the party'sattorney cannot be served, service shall .
be upon the party by a method specified in paragraph one, two, four, fiveor six of subdivision (b) of thisrule.
(d) Filing. Ifa paper cannot be served by any of the methods specified in subdivisions (b) and (c),service may be
made by filingthe paper as ifit were a paper required to be filed.
(e) Parties to be served. Each paper served on any party shall be served on every other party who has appeared,
except as otherwise may be provided by court order or asprovided in section 3012 or in subdivision (f) of section
3.215.Upon demand by a party, the plaintiff shall supply that party with a listof those who have appeared and the
names and addresses oftheir attorneys.
(f) Definitions. For the purposes of this rule:
"Mailing"
1. means the deposit of a paper enclosed in a firstclass postpaid wrapper, addressed to the address
designated by a person for thatpurpose or, ifnone isdesignated, at that person's lastknown address, in a post office
or official depository under the exclusive care and custody of the United States Postal Service within the United
States;
.
means"
2. "Electronic means any method of transmission of information between computers or other machines
designed for the purpose of sending and receiving such transmissions, and which allows the recipient to reproduce
the information transmitted in a tangible medium of expression;
transmission"
3. "Facsimile means any method of transmission of documents to a facsimile machine at a remote
location which can automatically produce a tangible copy of such documents.
" The "failure to give a party proper Notice of a Motion deprives the court of jurisdiction to entertain the
void"
motion and renders the resulting order (Citimortgage, Inc. v Reese, 162 AD3d 847, 848; see CPLR
2103[b]; U.S. Bank NA v Nakash, 195 AD3d 651).
" Further, The Affidavit of Service for the Notice of Motion forDefault Judgment are defective as it
clearly
failsto describe service that either Defendant [or] a person of suitable age and discretion/ authority who
matched the description of anyone at subject premises that day. Plaintiffbears the burden of proving this by
a preponderance of the evidence. Without such a showing, this court does not have personal jurisdiction over
Defendant and, thus, both the default judgment and the case must be dismissed.
3. No prior application has been made for the relief sought herein except:
"None."
WHEREFORE, I respectfully request that thismotion be granted, and thatI have such other and further
reliefas this Court may find to be just and proper.
VERIFICATION
Todd L Jones, being duly.sworn, deposes and says:
I am the Defendant in the above-titled action. I have read the foregoing Affidavit in Support to Order to Show
Cause with T.R.O. in a Civil Action and know the contents thereof. The same istrue to my knowledge, except as
to matters therein stated to be alleged on information and belief and as tothose matters, I belief them to be true.
Todd L Jones
Sworn to before me this
ANNA LISA S. ENRIQUEZ
11rd_day o 'November, 2011 Public.- State of New York
Notary
No. 04EN6405207
x , . Qualified,in Queens Coun
Commission EWpiree March 2,
Notary Public
Supreme Court of State of New York
County of QUEENS
Mintaka Financial, LLC,
Plaintiff(s)
v. . Index #: 702243 - 2021
Emergency Affidavit
Todd L Jones,
Cuzin's Duzin Corp.
Defendant(s)
____________-----__________-_____-_____________x
I,Todd L Jones, am the Defendant in the above-named action/ special proceeding.
-Irequest immediate judicial review of my Order to Show Cause with a T.R.O. on the following grounds:
" If judgment is itwill lead to a great financial for Defendant.
enforced, hardship
VERIFICATION
Todd L Jones, being duly sworn, deposes and says:
I am the Defendant in the above-titled action. I have read the foregoing Emergency Affidavit and know the
contents thereof. The same istrue to my knowledge, except as to matters therein stated to be alleged on information
and belief and as tothose matters, I belief them to be true.
X
Todd L Jones
Sworn to before me this
23rd da of November, E ANNA
Notary
USA
Public.-
S. NRIQUEZ
State of New York
.
No. 04EN6405207
Qualified.in Queens Coun
Commission Expires March 2,
Notary Public
Supreme Court ofState ofNew York
County ofQUEENS
Mintaka Financial,LLC,
.
Plaintiff(s)
v.
Index #:702243 - 2021
Affidavit inSupport ofNotification
Todd L Jones,
Cuzin's Duzin Corp.
Defendant(s)
_______________________________________________Ç
Todd L Jones,being duly swom deposesand says:
1. 1 reside
at: 90-15Queens Boulevard Elmhurst, N.Y.,11373.
2. I am aboutto commence a special
proceedmg or submitan Orderto how Cause containinga stay and/or order
restraining for:
a. Vacating/ reversing,thedefault judgment against Defendant,
3. 1 havenotifiedmy oppositionto appearat the
Ex Parte Office,
Room 140,
Supreme Court Stateof New York
County ofQUEENS .--7
88-11 Sutphin Boulevard
Jamaica, N.Y. 114
at9:30 a.m. on the day o , 2022to contestthe annexed applicati ,
by calling/
faxing to phone # 610 ; I spoke
to eception Professiona$.I received
Acknowledgment fromtheirReception Professional.
I contacted
them at 12:00 p.m./ noon on November 22, 2022.
4. I believe be significant
there will prejudiceby givingnoticebecause: Ifsubject premises is allowedto be auctionedoff,it will
lead toa greatfinancialhardship forDefendant.
"None."
. 5. No priorapplicationhas been made forthe relief
soughthereinexcept:
WHEREFORE, 1 respectfully
requestthatthismotion be granted,
and thatI havesuch other relief
and further as this
Courtmay find
and proper.
to be just
VERIFICATION
Todd L Jones,being duly sworn,deposes and says:
I am the Defendant in the above-titled
action. I have Affidavit
read the foregoing inSupport of Notificationand know the contentsthereof.
The same is true
to my knowledge, exceptas to matters
thereinstated to be alleged
on informationand belief
and as to those
matters,I belief
them to be true.
X
Todd L Jones
ANNA LISA S. ÈiNR1QUEZ
. Public - State of
Sworn to beforeme this Notary New York
No. 04EN6405207
Qualified in Queens County
2hd_da of November. 2022
Commission Expires March 2, NZ
Notary Public
Preview
Supreme Court of State of New York County of QUEENS PRESENT: HON Justice of the Supreme Court Index #: 702243 - 2021 Mintaka Financial, LLC Plaintiff(s) Order to Show Cause v. With T.R.O. In Civil Action Todd L Jones, Cuzin's Duzin Corp. Defendant(s) Upon reading and filing the affidavit of Todd L Jones, sworn to on the M day of November, 2022, and upon the Exhibit(s) attached to the affidavit, and Exhibit A: Exhibit B: Exhibit C: Exhibit D: Let the Plaintifff or their attorney show cause: . at IAS Part _, Room , of thisCourt, to be held at: Supreme Court of the State of New York County of QUEENS 88-11 Sutphin Boulevard, Jamaica, N.Y. 11435 On the day of 2022 at o'clock a.m./ p.m. or as soon as counsel may be heard why and order should not be made: 1. Vacating/ reversing the default judgment entered against Defendant on or around September 21, 2021, for $78,442.02 2. Dismissing thisaction against Defendant with prejudice. Pending the hearing and determination of this motion, itis ORDERED that: 1. Vacating/ reversing the default judgment entered against Defendant on or around September 21, 2021, for $78,442.02 2. Dismissing thisaction against Defendant with prejudice. And why Defendant should not have such other and furtherrelief as may be just, proper and equitable. Sufficient cause appearing therefor, letpersonal service of a copy of this order, and the other papers upon which this order is granted, upon the Plaintifff or Attorney(s) for Plaintifff) by on or before the _day of , 1021 be deemed good and sufficient. An affidavit or other proof of service shall be presented to thisCourt on the return date directed in the second paragraph of thisorder. ENTER J.S.C. Supreme Court of State of New York County of QUEENS Mintaka Financial, LLC, Plaintiff(s) v. Index #: 702243 - 2021 Affidavit in Support Todd L Jones, Cuzin's Duzin Corp. Defendant(s) ______________________________________________Ç Todd L Jones being duly sworn deposes and says: 1. Iam the Defendant in this action. I make thisaffidavit in support of my motion for an order: 1. Vacating/ reversing the default judgment entered against Defendant on or around September 21, 2021, for $78,442.02 2. Dismissing this action against Defendant with prejudice. 2. I believe the court should grant my motion because: " Defendant(s) denies allallegations in the Summons and Complaint. hereby " denies each and allegation in the Summons and Complaint. Defendant(s) every " Defendant does not owe the amount alleged in the Summons and Complaint. " The American rule isthat each side pays their own respective attorney fees and court costs. We request that each side in this matter pay their own respective attorney fees and court costs. " Statute of Limitations- the Statute of Limitations in thismatter has tolled. " Laches- Defendant would be affected the length of time Plaintiff took in and re- adversely by bringing startingthis lawsuit. Lack of Standing " Plaintiffhas not shown legal acquisition/titleof the alleged loan note. Thus, Plaintiff does not have standing to bring this action. " Plaintiffhas failed to show that ithas standing to commence thisproceeding against Defendant. " There is no of contract between Defendant and Plaintiff. privity " Plaintiffhas failed to show that ithas legallyacquired good titlethrough the original note/loan holder. Plaintiffbears the burden of proving this by a preponderance of the evidence. Without such a showing, Plaintiffhas no standing to bring this action against Defendant and the case must be dismissed. Lack of Personal Jurisdiction over Defendant due to Plaintiff's Defective Service of the Summons and Complaint " Plaintiff failedto serve Defendant with a copy of the Summons and Complaint as required by statestatute (e.g.CPLR 308). " CPLR 308 provides in pertinent part: "Personal service upon a natural person shall be made by any of the following methods: 308(1) by delivering the summons within the state to the person to be served; [or] 308(2) by delivering the summons 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 either mailing the summons to the person to be served at his or her lastknown residence or by mailing the summons by firstclass mail to the person to confidential" be served at his or her actual place of business in an envelope bearing the legend "personal and and not indicating on the 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 aftersuch filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, ...; [or] 308(4) where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her lastknown residence or by mailing the summons by firstclassmail to the person to be served athis or her actual place of business in an envelope bearing confidential" the legend "personal and and not indicating on the 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 affixing 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 eithersuch affixing or mailing, whichever is effected later; ..." service shall be complete ten days aftersuch filing [CPLR 308] " In this case, no good-faith attempt at personal service was made upon the Defendant, such as placing the Summons and Complaint in Defendant's hand. [CPLR 308(1)] " In this case, no good-faith attempt at personal service was made upon a person of suitable age and discretion, such as placing the Summons and Complaint in person of suitable age and discretion's hand. [CPLR 308(2)] " Because there was no good-faith attempt at personal service to either Defendant [or] a person of suitable age and discretion, any alleged attempt at affixing a copy of the Summons and Complaint to Defendant's door and mailing a copy of itto Defendant with proof of mailing [CPLR 308(4)] ["Nail and Mail"] ["Substituted Service"] were also defective. " Although the Affidavit of Service of the Plaintiffs Process Server may constitute, in most cases, prima facie evidence of valid service upon the defendant of the summons with notice pursuant to CPLR 308(1) (see US Bank N.A. v Ramos, 153 AD3d 882, 884; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589), this presumption can be rebutted/ overcome by Defendant by attacking the Affidavit of Service, itself,submitted by the Plaintiff'sProcess Server. " A mere conclusory denial of proper service is insufficient to rebut the presumption of proper service arising from the Process Server's Affidavit of Service (see Citimortgage, Inc. v Phillips, 82 AD3d 1032, 1033; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327; 96 Pierrepont v Mauro, 304 AD2d 631) . " In this case, The Affidavit of Service for the Summons and Complaint is clearlydefective as itfails to describe personal service to Defendant [CPLR 308(1)] [or]a person of suitable age and discretion/ authority [CPLR 308(2)] who matched the description of anyone at subject premises thatday. " Plaintiff bears the burden of proving thisby a preponderance of the evidence. " Without such a showing, this court does not have personal jurisdiction over Defendant and, thus, the entire case must be dismissed. . Lack of Personal Jurisdiction over Defendant due to Plaintiff's Defective Service of the Notice of Motion for Default Judgment " Plaintiff failedto serve Defendant with a copy of the Notice of Motion for Default Judgment as required by state statute [e.g.CPLR 5015]. " CPLR 5015 provides in pertinent part: "Relief from judgment or order: (a) On motion. The court which rendered a judgment or order may relieve a party from itupon such terms as may be just,on motion of any interested person withsuch notice as the court may direct,upon the ground of: 1. excusable default, ifsuch motion ismade within one year afterservice of a copy of the judgment or order with written notice of itsentry upon the moving party, or, ifthe moving party has entered the judgment or order, within one year after such entry; [or] 2. newly-discovered evidence which, ifintroduced at the trial,would probably have produced a different result and which could not have been discovered in time to move fora new trial under section 4404; [or] 3. fraud, misrepresentation, or other misconduct of an adverse party; [or] 4. lack of jurisdiction to render the judgment or order; [or] 5. reversal, modification or vacatur of a prior judgment or order upon which itis based. (b) On stipulation. The clerk of the court may vacate a default judgment entered pursuant to section 3215 upon the filing with him of a stipulation of consent to such vacatur by the parties personally or by their attorneys. (c) On application of an administrative judge. An administrative judge, upon a showing that default judgments were obtained by fraud, misrepresentation, illegality, unconscionability, lack of due service, violations of law, or other illegalitiesor where such default judgments were obtained in cases in which those defendants would be uniformly entitledto interpose a defense predicated upon but not limited to the foregoing defenses, and where such default judgments have been obtained in a number deemed sufficient by him to justifysuch action as set forth herein, and upon appropriate notice to counsel for the respective parties, or to the partiesthemselves, may bring a proceeding to relieve a party or parties from them upon such terms as may be just. The disposition of any proceeding so judge." instituted shall be determined by ajudge other than the administrative " CPLR 2103 provides in pertinent part: CPLR Rule 2103. Service of papers (a) Who can serve. Except where otherwise prescribed by law or order of court, papers may be served by any person not a party of the age of eighteen years or over. (b) Upon an attorney. Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shallbe served upon the party's attorney. Where the same attorney appears fortwo or more parties,only one copy need be served upon the attorney. Such service upon an attorney shall be made: . 1. by delivering the paper to the attorney personally; [or] 2. by mailing the paper to the attorney at the address designated by that attorney for that purpose or, ifnone is designated, at the attorney's lastknown address; service by mail shall be complete upon mailing; where a period of time prescribed by law ismeasured from the service of a paper and service isby mail, five days shall be added to the prescribed period ifthe mailing ismade within the stateand six days ifthe mailing ismade from outside the state but within the geographic boundaries of the United States; [or] 3. ifthe attorney's office isopen, by leaving the paper with a person in charge, or ifno person is incharge, by leaving itin a conspicuous place; or if the attorney's office isnot open, by depositing the paper, enclosed in a sealed wrapper directed to the attorney, in the attorney's office letterdrop or box; [or] 4. by leaving itat the attorney's residence within the state with a person of suitable age and discretion. Service upon an attorney shall not be made at the attorney's residence unless service at the attorney's office cannot be made; [or] 5. by transmitting the paper to the attorney by facsimile transmission, provided that a facsimile telephone number is designated by the attorney forthat purpose. Service by facsimile transmission shall be complete upon the receipt by the sender of a signal from the equipment of the attorney served indicating thatthe transmission was received, and the mailing of a copy of the paper to that attorney. The designation of a facsimile telephone number in the address block subscribed on a paper served or filed in the course of an action or proceeding shallconstitute consent to service by facsimile transmission in accordance with thissubdivision. An attorney may change or rescind a facsimile telephone number by serving a notice on the other parties; [or] 6. by dispatching the paper tothe attorney by overnight delivery service at the address designated by the attorney for thatpurpose or, ifnone is designated, at the attorney's lastknown address. Service by overnight delivery service shall be complete upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the overnight delivery service for overnight delivery, prior to the latesttime designated by the overnight delivery service for overnight delivery. Where a period of time prescribed by law is measured from the service of a paper and service isby overnight delivery, one business day shall be added to the prescribed period. "Overnight delivery service" means any delivery service which regularly accepts items for overnight delivery to any address inthe state; or 7. by transmitting the paper to the attorney by electronic means where and in the manner authorized by the chief administrator of the courts by rule and, unless such rule shall otherwise provide, such transmission shall be upon the party's written consent. The subject matter heading foreach paper sent by electronic means must indicate that the matter being transmitted electronically isrelated to a court proceeding. (c) Upon a party. If a party has not appeared by an attorney or the party'sattorney cannot be served, service shall . be upon the party by a method specified in paragraph one, two, four, fiveor six of subdivision (b) of thisrule. (d) Filing. Ifa paper cannot be served by any of the methods specified in subdivisions (b) and (c),service may be made by filingthe paper as ifit were a paper required to be filed. (e) Parties to be served. Each paper served on any party shall be served on every other party who has appeared, except as otherwise may be provided by court order or asprovided in section 3012 or in subdivision (f) of section 3.215.Upon demand by a party, the plaintiff shall supply that party with a listof those who have appeared and the names and addresses oftheir attorneys. (f) Definitions. For the purposes of this rule: "Mailing" 1. means the deposit of a paper enclosed in a firstclass postpaid wrapper, addressed to the address designated by a person for thatpurpose or, ifnone isdesignated, at that person's lastknown address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the United States; . means" 2. "Electronic means any method of transmission of information between computers or other machines designed for the purpose of sending and receiving such transmissions, and which allows the recipient to reproduce the information transmitted in a tangible medium of expression; transmission" 3. "Facsimile means any method of transmission of documents to a facsimile machine at a remote location which can automatically produce a tangible copy of such documents. " The "failure to give a party proper Notice of a Motion deprives the court of jurisdiction to entertain the void" motion and renders the resulting order (Citimortgage, Inc. v Reese, 162 AD3d 847, 848; see CPLR 2103[b]; U.S. Bank NA v Nakash, 195 AD3d 651). " Further, The Affidavit of Service for the Notice of Motion forDefault Judgment are defective as it clearly failsto describe service that either Defendant [or] a person of suitable age and discretion/ authority who matched the description of anyone at subject premises that day. Plaintiffbears the burden of proving this by a preponderance of the evidence. Without such a showing, this court does not have personal jurisdiction over Defendant and, thus, both the default judgment and the case must be dismissed. 3. No prior application has been made for the relief sought herein except: "None." WHEREFORE, I respectfully request that thismotion be granted, and thatI have such other and further reliefas this Court may find to be just and proper. VERIFICATION Todd L Jones, being duly.sworn, deposes and says: I am the Defendant in the above-titled action. I have read the foregoing Affidavit in Support to Order to Show Cause with T.R.O. in a Civil Action and know the contents thereof. The same istrue to my knowledge, except as to matters therein stated to be alleged on information and belief and as tothose matters, I belief them to be true. Todd L Jones Sworn to before me this ANNA LISA S. ENRIQUEZ 11rd_day o 'November, 2011 Public.- State of New York Notary No. 04EN6405207 x , . Qualified,in Queens Coun Commission EWpiree March 2, Notary Public Supreme Court of State of New York County of QUEENS Mintaka Financial, LLC, Plaintiff(s) v. . Index #: 702243 - 2021 Emergency Affidavit Todd L Jones, Cuzin's Duzin Corp. Defendant(s) ____________-----__________-_____-_____________x I,Todd L Jones, am the Defendant in the above-named action/ special proceeding. -Irequest immediate judicial review of my Order to Show Cause with a T.R.O. on the following grounds: " If judgment is itwill lead to a great financial for Defendant. enforced, hardship VERIFICATION Todd L Jones, being duly sworn, deposes and says: I am the Defendant in the above-titled action. I have read the foregoing Emergency Affidavit and know the contents thereof. The same istrue to my knowledge, except as to matters therein stated to be alleged on information and belief and as tothose matters, I belief them to be true. X Todd L Jones Sworn to before me this 23rd da of November, E ANNA Notary USA Public.- S. NRIQUEZ State of New York . No. 04EN6405207 Qualified.in Queens Coun Commission Expires March 2, Notary Public Supreme Court ofState ofNew York County ofQUEENS Mintaka Financial,LLC, . Plaintiff(s) v. Index #:702243 - 2021 Affidavit inSupport ofNotification Todd L Jones, Cuzin's Duzin Corp. Defendant(s) _______________________________________________Ç Todd L Jones,being duly swom deposesand says: 1. 1 reside at: 90-15Queens Boulevard Elmhurst, N.Y.,11373. 2. I am aboutto commence a special proceedmg or submitan Orderto how Cause containinga stay and/or order restraining for: a. Vacating/ reversing,thedefault judgment against Defendant, 3. 1 havenotifiedmy oppositionto appearat the Ex Parte Office, Room 140, Supreme Court Stateof New York County ofQUEENS .--7 88-11 Sutphin Boulevard Jamaica, N.Y. 114 at9:30 a.m. on the day o , 2022to contestthe annexed applicati , by calling/ faxing to phone # 610 ; I spoke to eception Professiona$.I received Acknowledgment fromtheirReception Professional. I contacted them at 12:00 p.m./ noon on November 22, 2022. 4. I believe be significant there will prejudiceby givingnoticebecause: Ifsubject premises is allowedto be auctionedoff,it will lead toa greatfinancialhardship forDefendant. "None." . 5. No priorapplicationhas been made forthe relief soughthereinexcept: WHEREFORE, 1 respectfully requestthatthismotion be granted, and thatI havesuch other relief and further as this Courtmay find and proper. to be just VERIFICATION Todd L Jones,being duly sworn,deposes and says: I am the Defendant in the above-titled action. I have Affidavit read the foregoing inSupport of Notificationand know the contentsthereof. The same is true to my knowledge, exceptas to matters thereinstated to be alleged on informationand belief and as to those matters,I belief them to be true. X Todd L Jones ANNA LISA S. ÈiNR1QUEZ . Public - State of Sworn to beforeme this Notary New York No. 04EN6405207 Qualified in Queens County 2hd_da of November. 2022 Commission Expires March 2, NZ Notary Public