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FILED: KINGS COUNTY CLERK 10/18/2019 11:32 AM INDEX NO. 507512/2019
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 10/18/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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NEW YORK CITY TRANSIT AUTHORITY, Index No.: 507512/2019
Plaintiff,
AFFIRMATION IN SUPPORT
-against-
DAHLIA GROUP INC.,
Defendant.
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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
support of the instant motion for an Order (1) pursuant to, CPLR 3012(d) vacating the default in
answering the plaintiffs complaint on the grounds that defendant’s default is excusable and there
is a meritorious defense; (2) and for a further Order pursuant to CPLR 510(3) changing the venue
of this action to New York State Supreme Court, County of Queens.
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
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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
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
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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
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
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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
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.”
THE VENUE OF THIS ACTION IS MORE PROPERLY IN NEW YORK STATE SUPREME
COURT COUNTY OF QUEENS
13. In accordance with CPLR Section 510(3), a Court may change the venue of an action
where “the convenience of material witnesses and the ends of justice will be promoted by the
change”.
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14. This action is related to twenty-two plus actions venued in New York State Supreme
Court, Queens County and which are being coordinated through joint discovery before the Hon.
Justice Risi. All parties are coordinating the gathering of black box data from the subject buses,
coordinating engineering inspections of said buses and coordinating the exchange of basic
discovery such as bills of particulars and the scheduling of depositions. (Annexed hereto and
made a part hereof as Exhibit “E” is the Joint Discovery Order issued by Judge Risi on
September 26, 2019 and entered October 8, 2019)
15. The plaintiff’s liability witness/bus driver in this action has brought his own action
which is one of the cases being administratively coordinated by Judge Risi. See Devon Bryan v
Dahlia in the attached caption.
16. Among the factors which the court must weigh when deciding a motion to change
venue on such ground are the residency of the parties, the potential hardship to proposed
witnesses, the availability of an alternative forum, the situs of the underlying action, and the
burden which will be imposed upon the New York courts, with no one single factor controlling
(see, Islamic Republic of Iran v. Pahlavi, supra; Neville v. Anglo Am. Mgt. Corp., 191 A.D.2d
240, 241–242, 594 N.Y.S.2d 747). The motion is addressed to the sound discretion of the court,
and whatever result is reached will not be disturbed on appeal unless the court has failed to
consider all the relevant factors (see, National Bank & Trust Co. of N. Am. v. Banco De
Vizcaya, 72 N.Y.2d 1005, 534 N.Y.S.2d 913, 531 N.E.2d 634,cert. denied 489 U.S. 1067, 109
S.Ct. 1343, 103 L.Ed.2d 812; Islamic Republic of Iran v. Pahlavi, supra; Banco Ambrosiano v.
Artoc Bank & Trust, supra; Varkonyi v. S.A. Empresa De Viacao Airea Rio Grandense, 22
N.Y.2d 333, 292 N.Y.S.2d 670, 239 N.E.2d 542).
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17. In this case, the accident occurred in Queens County; was investigated by the local
NYPD Precincts and Highway Patrol in Queens County; and is being administratively
coordinated in Queens County Supreme Court. To allow a single action to proceed in Kings
County would place an enormous burden on this Defendant as well as the plaintiff herein, which
is a named defendant in nearly all the cases pending in Queens County.
WHEREFORE, your Affirmant respectfully requests the Court grant and enter an Order
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 a Further
Order pursuant to CPLR 510(3) directing the Clerk of this Court transfer the venue of this action
to the Clerk of the Court of the Supreme Court, County of Queens, and for such other and further
relief as to this Court seems just and proper.
Dated: Melville, NY October 18, 2019
Respectfully Submitted,
________________________________
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
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