Preview
FILED: KINGS COUNTY CLERK 10/18/2019 02:43 PM INDEX NO. 507512/2019
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/18/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------X
NEW YORK CITY TRANSIT AUTHORITY, Index No.: 507512/2019
Plaintiff,
AFFIRMATION IN OPPOSITION
-against-
DAHLIA GROUP INC.,
Defendant.
------------------------------------------------------------------X
RICHARD A. HARRIS, an attorney duly admitted to practice law in the Courts of the State
of New York hereby affirms the following under the penalties of perjury:
1.That your Affirmant is associated with the LAW OFFICE OF ANDREA G.
SAWYERS, attorneys for the defendant, DAHLIA GROUP INC., and make this Affirmation in
opposition to the instant motion for an Order (1) pursuant to, CPLR 3012(d) entering a default
judgment against the defendant. The defendant’s default is excusable and there is a meritorious
defense
2. This action is related to 22 actions presently pending in New York State Supreme
Court, County of Queens. It is related to the tragic bus crash of September 18, 2017 at the
intersection of Main Street and Northern Boulevard, Queens County and which, at the time,
garnered much media attention. (Annexed hereto as Exhibit “A” is the Administrative Order of
Jeremy Weinstein J.S.C. directing these related proceed through joint discovery before the Hon.
J. Risi J.S.C. Queens County.)
IN SUPPORT OF VACATING THE DEFAULT IN ANSWERING
3. Annexed hereto and made a part hereof as Exhibit “B” is the affidavit of Christine
Chiang, President of Dahlia group Inc. She avers not being made aware of the complaint herein
1 of 6
FILED: KINGS COUNTY CLERK 10/18/2019 02:43 PM INDEX NO. 507512/2019
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/18/2019
and only being advised of it until your Affirmant’s office made her aware of it. Ms. Chiang also
avers that dahlia has no intention of ignoring the complaint. This is evidenced by Dahlia
answering in over twenty-two other actions pending in New York Stet Supreme Court related to
this same accident.
4. On September 5, 2019, your Affirmant wrote to plaintiffs’ counsel explaining the other
actions pending in Queens County and requested the plaintiff accept the defendants answer; on
September 9, 2019 your Affirmant received a reply that the plaintiff would not stipulate to
change the venue of this action without a response regarding the late answer; On September 20,
2019 your Affirmant requested an response regarding acceptance of the answer which was
refused. A copy of the proposed answer was sent with this request. (Annexed hereto and made a
part hereto, respectively as Exhibits “C” and “D” are the proposed answer and emails to
plaintiffs’ counsel).
5. As a matter of law, cases are to be determined on the merits rather than on
technicalities; Fick v. Laguardia Medical Group, PC, 208 A.D.2d 800; Paoli v. Sulleraft Mfg.,
104 A.D.2d 333; Stark v. Marine Power and Light Co., 99 A.D.2d 753. New York maintains a
strong public policy of litigating actions on the merits; Scott v. Allstate Ins. Co., 124 A.D.2d 481,
597 N.Y.S.2d 629 (1st Dept. 1986); Silverio v. City of New York, 698 N.Y.S.2d 779 (1st Dept.
1999).
6. It is respectfully requested that the Court issue an Order vacating the default in
answering the complaint. Indeed, no judgement has been rendered yet and scientific discovery is
underway to determine potential causes of the accident. The Dahlia bus operator lost his life in
the accident and Dahlia cannot proffer an affidavit from him. The vacating of any such default
is addressed to the sound discretion of the Court, and the general policy of the Courts is to take a
2 of 6
FILED: KINGS COUNTY CLERK 10/18/2019 02:43 PM INDEX NO. 507512/2019
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/18/2019
liberal approach and permit a party to contest an action on the merits. Bouxein v. Bialo, 35
A.D.2d 523, 313 N.Y.S.2d 426 (2d Dept. 1970); Wall v. Bennett, 33 A.D.2d 827, 305 N.Y.S.2d
728 (3d Dept. 1970).
7. A court, in considering a motion to vacate a default, should consider relevant factors
such as the extent of the delay, the lack of prejudice to opposing party, the lack of willfulness or
intent to deliberately default, and the strong public policy in favor of resolving cases on their
merits. Schmidt v. City of New York, 50 A.D.3d 664, 854 N.Y.S.2d 741 (2d Dept. 2008).
8. Even after judgment is rendered, CPLR § 5015(a) (1) states as follows:
Relief from judgment or order. (a) On motion. The court which rendered a
judgment or order may relieve a party from it upon such terms as may be just,
on motion of any interested person with such notice as the court may direct,
upon the ground of: 1. Excusable default, if such motion is made within one
year after service of a copy of the judgment or order with written notice of its
entry upon the moving party, or, if the moving party has entered the judgment
or order, within one year after such entry.
A defendant seeking to vacate a default judgment under CPLR § 5015(a) (1), must
demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a
meritorious defense to the action. DiLorenzo v. A.C. Dutton Lumber, Co., Inc., 67 N.Y.2d 138,
501 N.Y.S.2d 8 (1986); Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 463 N.Y.S.2d 192 (1983).
9. In this case, there was no intent by the defendant to deliberately default. A default
judgment should not be rendered because Dahlia has a reasonable excuse for the default and a
meritorious defense. Further, the within application is being made before entry of the judgment.
10. Pursuant to CPLR 5105 (a)(1), the court which rendered a judgment or order may
relieve a party from it upon such terms as may be just, including upon the ground of excusable
default. In the instant action, the defendant’s failure to appear was neither intentional nor
deliberate and was purely the product of inadvertence as over twenty lawsuits were filed against
3 of 6
FILED: KINGS COUNTY CLERK 10/18/2019 02:43 PM INDEX NO. 507512/2019
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/18/2019
this defendant related to this accident. It is respectfully submitted that the award of the relief
requested herein will not prejudice plaintiff as they will still have their day in court and be given
the opportunity to present evidence to the Court. Conversely, the defendant will be severely
prejudiced if the default is not vacated by denying the defendant the right to defend this action on
the merits.
11. The determination of what constitutes a reasonable excuse for a default judgment
lies within the sole discretion of the trial court Parker v. city of New York, 272 A.D.2d 310, 707
N.y.S.2d 199 (2d Dept. 2000).
12. Your Affirmant respectfully submits that when exercising its discretion in this
regard, the Court should consider such relevant factors as the extent of the delay, prejudice or
lack of prejudice and lack of willfulness. Orwell Building Corp. v. Bessaha, 5 A.D.3d 573, 775
N.Y.S.2d 126 (2d Dept. 2004). To so direct would be in the interests of justice, public policy in
favor of, and the general approach of the Courts of this State, in resolving cases on their merits.
CPLR 2004 provides that “… the court may extend the time fixed by statute, rule or order for
doing an act, upon such terms as may be just and upon good cause shown, whether the
application for the extension is made before or after the expiration of the time fixed.”
WHEREFORE, your Affirmant respectfully requests the Court deny the plaintiffs
application in its entirety and grant the defendants cross-motion pursuant to CPLR 3012(d)
vacating the default in answering the complaint herein and directing a time frame within which
the defendant can interpose its proposed answer; and for such other and further relief as to this
Court seems just and proper.
Dated: Melville, NY October 18, 2019
Respectfully Submitted,
4 of 6
FILED: KINGS COUNTY CLERK 10/18/2019 02:43 PM INDEX NO. 507512/2019
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/18/2019
________________________________
Law Office of Andrea G. Sawyers BY:
RICHARD A. HARRIS
Attorneys for Defendant
DAHLIA GROUP INC.
Mailing Address:
P.O. Box 2903
Hartford, CT 06104-2903
Physical Address:
3 Huntington Quadrangle, Suite 102S
Melville, New York 11747
(631) 501-3100
Matter No.: 2019093557RAH
TO:
DAVID I. FARBER, ESQ.
Plaintiff Counsel
130 Livingston Street – Room 1219A
Brooklyn, NY 11201
(718) 694-4876
5 of 6
FILED: KINGS COUNTY CLERK 10/18/2019 02:43 PM INDEX NO. 507512/2019
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/18/2019
6 of 6
Preview
FILED: KINGS COUNTY CLERK 10/18/2019 02:43 PM INDEX NO. 507512/2019 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/18/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------X NEW YORK CITY TRANSIT AUTHORITY, Index No.: 507512/2019 Plaintiff, AFFIRMATION IN OPPOSITION -against- DAHLIA GROUP INC., Defendant. ------------------------------------------------------------------X RICHARD A. HARRIS, an attorney duly admitted to practice law in the Courts of the State of New York hereby affirms the following under the penalties of perjury: 1.That your Affirmant is associated with the LAW OFFICE OF ANDREA G. SAWYERS, attorneys for the defendant, DAHLIA GROUP INC., and make this Affirmation in opposition to the instant motion for an Order (1) pursuant to, CPLR 3012(d) entering a default judgment against the defendant. The defendant’s default is excusable and there is a meritorious defense 2. This action is related to 22 actions presently pending in New York State Supreme Court, County of Queens. It is related to the tragic bus crash of September 18, 2017 at the intersection of Main Street and Northern Boulevard, Queens County and which, at the time, garnered much media attention. (Annexed hereto as Exhibit “A” is the Administrative Order of Jeremy Weinstein J.S.C. directing these related proceed through joint discovery before the Hon. J. Risi J.S.C. Queens County.) IN SUPPORT OF VACATING THE DEFAULT IN ANSWERING 3. Annexed hereto and made a part hereof as Exhibit “B” is the affidavit of Christine Chiang, President of Dahlia group Inc. She avers not being made aware of the complaint herein 1 of 6 FILED: KINGS COUNTY CLERK 10/18/2019 02:43 PM INDEX NO. 507512/2019 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/18/2019 and only being advised of it until your Affirmant’s office made her aware of it. Ms. Chiang also avers that dahlia has no intention of ignoring the complaint. This is evidenced by Dahlia answering in over twenty-two other actions pending in New York Stet Supreme Court related to this same accident. 4. On September 5, 2019, your Affirmant wrote to plaintiffs’ counsel explaining the other actions pending in Queens County and requested the plaintiff accept the defendants answer; on September 9, 2019 your Affirmant received a reply that the plaintiff would not stipulate to change the venue of this action without a response regarding the late answer; On September 20, 2019 your Affirmant requested an response regarding acceptance of the answer which was refused. A copy of the proposed answer was sent with this request. (Annexed hereto and made a part hereto, respectively as Exhibits “C” and “D” are the proposed answer and emails to plaintiffs’ counsel). 5. As a matter of law, cases are to be determined on the merits rather than on technicalities; Fick v. Laguardia Medical Group, PC, 208 A.D.2d 800; Paoli v. Sulleraft Mfg., 104 A.D.2d 333; Stark v. Marine Power and Light Co., 99 A.D.2d 753. New York maintains a strong public policy of litigating actions on the merits; Scott v. Allstate Ins. Co., 124 A.D.2d 481, 597 N.Y.S.2d 629 (1st Dept. 1986); Silverio v. City of New York, 698 N.Y.S.2d 779 (1st Dept. 1999). 6. It is respectfully requested that the Court issue an Order vacating the default in answering the complaint. Indeed, no judgement has been rendered yet and scientific discovery is underway to determine potential causes of the accident. The Dahlia bus operator lost his life in the accident and Dahlia cannot proffer an affidavit from him. The vacating of any such default is addressed to the sound discretion of the Court, and the general policy of the Courts is to take a 2 of 6 FILED: KINGS COUNTY CLERK 10/18/2019 02:43 PM INDEX NO. 507512/2019 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/18/2019 liberal approach and permit a party to contest an action on the merits. Bouxein v. Bialo, 35 A.D.2d 523, 313 N.Y.S.2d 426 (2d Dept. 1970); Wall v. Bennett, 33 A.D.2d 827, 305 N.Y.S.2d 728 (3d Dept. 1970). 7. A court, in considering a motion to vacate a default, should consider relevant factors such as the extent of the delay, the lack of prejudice to opposing party, the lack of willfulness or intent to deliberately default, and the strong public policy in favor of resolving cases on their merits. Schmidt v. City of New York, 50 A.D.3d 664, 854 N.Y.S.2d 741 (2d Dept. 2008). 8. Even after judgment is rendered, CPLR § 5015(a) (1) states as follows: Relief from judgment or order. (a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 1. Excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry. A defendant seeking to vacate a default judgment under CPLR § 5015(a) (1), must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action. DiLorenzo v. A.C. Dutton Lumber, Co., Inc., 67 N.Y.2d 138, 501 N.Y.S.2d 8 (1986); Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 463 N.Y.S.2d 192 (1983). 9. In this case, there was no intent by the defendant to deliberately default. A default judgment should not be rendered because Dahlia has a reasonable excuse for the default and a meritorious defense. Further, the within application is being made before entry of the judgment. 10. Pursuant to CPLR 5105 (a)(1), the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, including upon the ground of excusable default. In the instant action, the defendant’s failure to appear was neither intentional nor deliberate and was purely the product of inadvertence as over twenty lawsuits were filed against 3 of 6 FILED: KINGS COUNTY CLERK 10/18/2019 02:43 PM INDEX NO. 507512/2019 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/18/2019 this defendant related to this accident. It is respectfully submitted that the award of the relief requested herein will not prejudice plaintiff as they will still have their day in court and be given the opportunity to present evidence to the Court. Conversely, the defendant will be severely prejudiced if the default is not vacated by denying the defendant the right to defend this action on the merits. 11. The determination of what constitutes a reasonable excuse for a default judgment lies within the sole discretion of the trial court Parker v. city of New York, 272 A.D.2d 310, 707 N.y.S.2d 199 (2d Dept. 2000). 12. Your Affirmant respectfully submits that when exercising its discretion in this regard, the Court should consider such relevant factors as the extent of the delay, prejudice or lack of prejudice and lack of willfulness. Orwell Building Corp. v. Bessaha, 5 A.D.3d 573, 775 N.Y.S.2d 126 (2d Dept. 2004). To so direct would be in the interests of justice, public policy in favor of, and the general approach of the Courts of this State, in resolving cases on their merits. CPLR 2004 provides that “… the court may extend the time fixed by statute, rule or order for doing an act, upon such terms as may be just and upon good cause shown, whether the application for the extension is made before or after the expiration of the time fixed.” WHEREFORE, your Affirmant respectfully requests the Court deny the plaintiffs application in its entirety and grant the defendants cross-motion pursuant to CPLR 3012(d) vacating the default in answering the complaint herein and directing a time frame within which the defendant can interpose its proposed answer; and for such other and further relief as to this Court seems just and proper. Dated: Melville, NY October 18, 2019 Respectfully Submitted, 4 of 6 FILED: KINGS COUNTY CLERK 10/18/2019 02:43 PM INDEX NO. 507512/2019 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/18/2019 ________________________________ Law Office of Andrea G. Sawyers BY: RICHARD A. HARRIS Attorneys for Defendant DAHLIA GROUP INC. Mailing Address: P.O. Box 2903 Hartford, CT 06104-2903 Physical Address: 3 Huntington Quadrangle, Suite 102S Melville, New York 11747 (631) 501-3100 Matter No.: 2019093557RAH TO: DAVID I. FARBER, ESQ. Plaintiff Counsel 130 Livingston Street – Room 1219A Brooklyn, NY 11201 (718) 694-4876 5 of 6 FILED: KINGS COUNTY CLERK 10/18/2019 02:43 PM INDEX NO. 507512/2019 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 10/18/2019 6 of 6