Motion to Amend in American Express National Bank v. Edgar Perez, Vo2 Llc| Trellis.Law

On December 02, 2020 a Motion-Secondary was filed involving a dispute between American Express National Bank, and Edgar Perez, Vo2 Llc, for Other Matters - Consumer Credit (Card) Original Creditor Plaintiff in the District Court of Orange County.

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FILED: ORANGE COUNTY CLERK 12/16/2022 11:36 AM INDEX NO. EF007175-2020
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/16/2022

SUPREME COURT
COUNTY OF ORANGE
STATE OF NEW YORK

AMERICAN EXPRESS NATIONAL BANK,
Index No. EF007175-2020

Plaintiff
AMENDED
AFFIRMATION IN SUPPORT OF
EÓGAR PEREZ and VO2 LLC
PLAINTIFF'S MOTION TO
EXTEND TIME FOR SERVICE
Defendant(s).

Elizabeth A. Clarke, Esq., an attorney admitted to practice in the Courts of the State of

New York, associated with the law firm of Zwicker & Associates, P.C., attorney for AMERICAN

EXPRESS NATIONAL BANK, (the "Plaintiff"), in the above entitled action, affirms under

penalty of perjury and pursuant to CPLR§2106 that the following facts are true, upon information

and belief, based upon a file maintained by affirmant's office.

PROCEDURAL HISTORY

1. The instant motion made by Plaintiff seeks to extend the time for service an additional 90

days from the date this motion is decided.

2. This is an action to recover damages, costs and disbursements, and for such further relief

resulting from nonpayment of a credit agreement.

3. The Plaintiff has retained the law firm of Zwicker & Associates, P.C. ("Plaintiff's

Counsel") for this matter.

4. Based on the file maintained by affirmant's office, there has been no prior motion to the

court for similar relief.

5. This action was commenced by way of Summons and Complaint seeking the total amount

of $26,543.58 from EDGAR PEREZ.

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6. The Summons and Complaint was filed December 02, 2020. (NYSCEF Doc #1)¹.

7. According to Plaintiff's Counsel's process server, service attempts were made on the

Defendant at 50 SCOLZA TER, GOSHEN, NY 10924 on December 21, 2020 at 11:05 am,

February 4, 2021 at 1:46 pm and February 8, 2021 at 6:02 pm. During the last attempt,

Plaintiff's counsel's process server was unable to effectuate service because there was no

answer at the door on each of the dates and times that service was attempted. A copy of the

affidavit of non-service is attached hereto as Exhibit A.

8. Pursuant to New York Governor Andrew Cuomo's Executive Order 202.8, all statutes of

limitations and other statutory deadlines for filing and service were suspended beginning

on March 20, 2020 through November 3, 2020. See Executive Order 202.67; Brash v.

Richards, 195 A.D.3d 582 (2d Dep't 2021).

9. On or about March 23, 2020, All New York State Courts and Government offices closed

due to the COVID-19 Pandemic.

10. The undersigned's firm did not re-open until late June 2020 and the re-opening consisted of

five attorneys returning to the office.

11. A skeleton crew support staff returned to the undersigned's office in August 2020 and the

office operated at less than twenty-five percent (25%) capacity until October 2020,

consistent with the Executive Orders in place at that time.

12. Thereafter the undersigned's office was allowed to begin operating at fifty percent (50%)

capacity, consistent with the Executive Orders in place at that time.

I Reference NYSCEF §2214 NYSCEF Documents herein
to Doc Nos is compliant with CPLR (c). referenced are
not republished through the instantapplication,with the exception of physical copies provided to Chambers pursuant
to PartRules or directionof theCourt.

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13. By May 2021, the undersigned's office was allowed to begin operating above 50%

capacity, consistent with the Executive Orders in place at that time.

14. The closing of the undersigned's office resulted in staffing issues once the firm was

allowed to reopen. These staffing issues persist to this day as the undersigned's firm has

encountered difficulty in hiring new attorneys and litigation assistants, and of the new hires

additional training was required.

15. The undersigned's firm continues to recover from the COVID closure and this matter was

promptly addressed based on the limitations suffered as a result of COVID. Plaintiff's

submission is reasonable at this time.

16. The reasonableness of the instant submission is consistent with the fact that the Courts also

suffered significant disruption as a result of the pandemic which persists to this day.

17. Based on the substantial disruption of the COVID Pandemic, the timing of the instant

submission is reasonable.

18. Plaintiff's process server performed a skip trace, which yielded the address at 50 SCOLZA

TER, GOSHEN, NY 10924 on August 17, 2022.

19. On or about August 17, 2022, Plaintiff's Counsel sent a request for change of address

information form to the United States Postal Service for 50 SCOLZA TER, GOSHEN, NY

addressed"
10924 and the same was returned indicating that said address is "good as for

Defendant. A copy of the search results is attached hereto as Exhibit B.

(i) The Plaintiff's position with respect to extending the time for service:

20. The Plaintiff's process server attempted to serve the Defendant but needs additional time

despite diligent efforts.

21. CPLR§306-b provides:

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"Service of the summons and complaint. . .shallbe made within one
hundred twenty days after the filing of the summons and complaint.
. .IfService is not made upon Defendant within the time provided in
this section, the court, upon motion, shall dismiss the action without
prejudice as to the defendant, or upon good cause shown or in the
added]"
interest ofjustice extend the time for service [Emphasis

(i.a)The time to serve the Defendant expired on April 1, 2021.

22. Based on the December 02, 2020 filing date of the summons and complaint, Plaintiff had

until April 1, 2021 to serve the Defendant.

23. Plaintiff's Counsel is requesting an extension of 90 days from the date this motion is

decided to complete service of the defendant.

(i.b)There is good cause to extend the time for service.

24. The Plaintiff has been diligent in attempting service in the above matter. "[E]xtenstions of

time should be liberally granted whenever Plaintiffs have been diligent in attempting

service."
Buster v. Corbett, 696 N.Y.S.2d 615, 617 (N.Y. App. Div. 4th Dep't 1999);

Watson v. Colwell, 2008 N.Y. Misc. LEXIS 7750 (N.Y. Sup. Ct. Jan. 3, 2008); Hollow v.

Hollow, 193 Misc. 2d 691 (N.Y. App. Term 2002).

25. Plaintiff's Counsel has demonstrated reasonable diligence in attempting service. According

to Plaintiff's counsel's process server, he attempted to serve the Defendant on December

21, 2020 at 11:05 am, February 4, 2021 at 1:46 pm and February 8, 2021 at 6:02 pm, but

was not successful.

(i.c) The time for service should be extended in the interests of justice.

26. The interest of justice standard requires a careful judicial analysis of the factual setting of

the case and a balancing of the competing interests presented by the parties. Unlike an

extension request premised on good cause, a plaintiff need not establish reasonably diligent

efforts at service as a threshold matter. However, the court may consider diligence, or lack

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thereof, along with any other relevant factor in making its determination, including

expiration of the statute of limitations, the meritorious nature of the cause of action, the

length of delay in service, the promptness of a plaintiffs request for the extension of time,

and prejudice to Defendant. See Leader v. Maroney, 97 N.Y.2d 95, 106 (N.Y. 2001);

Moundrakis v Dellis, 96 A.D.3d 1026 (N.Y. App. Div. 2d Dep't 2012); Nicodene v Byblos

Rest., Inc., 98 A.D.3d 445 (N.Y. App. Div. 1st Dep't 2012).

27. Although Leader held itwas not a necessary element for Plaintiff to demonstrate diligence

to prevail on the interest of justice standard, it is stillan element that is considered by

courts. As mentioned previously, Plaintiff attempted to serve the Defendant and was unable

to until it located another address.

28. There is no question as to the meritorious nature of this action given the cause of action is

support by a contract between the parties and amount owed is supported by statements

evidencing purchases made by the Defendant, as Plaintiff has demonstrated reasonable

diligence in attempting service at a valid address for the Defendant.

29. In addition, there should be no prejudice to the Defendant if the motion is granted.

Prejudice "involves impairment of defendant's ability to defend on the merits, rather than

foregoing such a procedural or technical advantage". National Union Fire Ins. Co. v Barney

Assoc., 130 F.R.D. 291, 294 (S.D.N. Y.1990); Boley v. Kaymark, 123 F.3d 756, 759 (3d

Cir. Pa. 1997); Busler, 259 A.d.2d at 16.

30. The extension of service of process will not affect the Defendant's ability to defend the

matter on the merits and courts have routinely found that allowing time to extend the time

for service of the summons does not prejudice a defendant. See Busler, 259 A.d.2d at 16 ;

State v. Sella, 185 Misc. 2d 549, 554 (N.Y. Sup. Ct. 2000); Leader v. Maroney, 276 A.D.2d

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194 (N.Y. App. Div. 2d Dep't 2000); Merced v. Department ofCorrection, 1988 U.S. Dist.

LEXIS 7833 (S.D.N.Y. Aug. 1, 1988); National Union Fire Ins. Co. v. Barney Assoc., 130

F.R.D. 291 (S.D.N.Y. 1990).

WHEREFORE, Plaintiff respectfully requests that the motion be granted extending the time for

service an additional 90 days from the date this motion is decided.

Date: December , 2022

[ ] N P. VERHAGEN, ESQ.

[ JOSEPH JAKAS, ESQ.
ELIZABETH A. CLARKE, ESQ.

]STEPHANIE MAIDA, ESQ.
ZWICKER & ASSOCIATES, P.C.
A Law Firm Engaged in Debt Collection
Attorneys for Plaintiff
100 CORPORATE WOODS
SUITE 230

ROCHESTER, NY 14623
(585)427-0482

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FILED: ORANGE COUNTY CLERK 12/16/2022 11:36 AM INDEX NO. EF007175-2020
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/16/2022

AMENDED CERTIFICATION OF WORD COUNT

AMERICAN EXPRESS NATIONAL BANK v. EDGAR PEREZ and VO2 LLC
Index No.: EF007175-2020

STATE OF NEW YORK
COUNTY OF MONROE

The undersigned attorney herby certifies persuant to Section 202.8-b(c) of the Uniform Civil

Rules for the Supreme Court and the County Court that the accompanying Plaintiffs Affirmation

in Support contains 3087 words, excluding the parts of the document that are exempted by

Section 202.8(b). This certification was prepared in reliance of the word-count function of the

word-processing system (Microsoft Word) used to prepare this document.

Dated

[ ON P. VERHAGEN, ESQ.

[ ] JOSEPH JAKAS, ESQ.

f¼ ELIZABETH A. CLARKE, ESQ.

[ ] STEPHANIE MAIDA, ESQ.
ZWICKER & ASSOCIATES, P.C.
A Law Firm Engaged in Debt Collection
100 CORPORATE WOODS
SUITE 230

ROCHESTER, NY
(585)427-0482

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Case Info

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Document Filed Date

December 16, 2022

Case Filing Date

December 02, 2020

County

Parties

AMERICAN EXPRESS NATIONAL BANK Plaintiff
CLARKE, ELIZABETH ANN Attorney for the Plaintiff
Edgar Perez Defendant
VERHAGEN, JASON PETER Attorney for the Plaintiff
VO2 LLC Defendant
STEPHANIE MAIDA Attorneys for Plaintiffs
JOSEPH JAKAS Attorneys for Plaintiffs
JASON VERHAGEN Attorneys for Plaintiffs
LARRY POWELL Attorneys for Plaintiffs
ELIZABETH DEERY Attorneys for Plaintiffs
BETH CLARK Attorney

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Motion-Secondary: American Express National Bank v. Edgar Perez, Vo2 Llc

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