Preview
FILED: KINGS COUNTY CLERK 05/19/2020 04:05 PM INDEX NO. 507512/2019
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/19/2020
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 § 5015(a) (1) vacating the default
judgment against the defendant. The defendant’s default is excusable and there is a meritorious
defense. The defendant is also requesting that. upon vacatur, transferring this action to New York
State Supreme Court, County of Queens. The present venue is improper based upon statutory
grounds and would be an inefficient use of judicial resources.
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.)
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3.On October 18, 2019 the defendants opposed plaintiffs motion for a default judgement
and cross moved requesting the court allow it to interpose an answer as well as to change the
venue of this action to the proper County, the site of the alleged incident, and where 22 other
actions related to the incident are presently pending ; said motion being returnable on November
1, 2019( a copy of which is attached as Exhibit B). Counsel appeared on said return date and the
motion was adjourned to January 10, 2020. The counsel appearing for the defendants
communicated the wrong date to your Affirmant’s office of January 24, 2020 and thus
defendants did not appear on the January 10, 2020 return date.
As a result, a default judgment was entered, without prejudice. Annexed as Exhibit C is a
copy of the email transmitting the wrong return date and as Exhibit D the default judgment
without prejudice.
IN SUPPORT OF VACATING THE DEFAULT IN ANSWERING
3. Annexed hereto and made a part hereof as Exhibit “E” 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 State 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
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refused. A copy of the proposed answer was sent with this request. (Annexed hereto and made a
part hereto, respectively as Exhibits “F” and “G” 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
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,
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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
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).
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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.”
13. This action is improperly venued in The Supreme Court of Kings County. Annexed
hereto as Exhibit “H” is a true copy of the plaintiffs summons and complaint. It avers the cause
of action arose from a collision between two buses at the intersection of Main Street and
Northern Boulevard, County of Queens, New York. To litigate this case separate and apart from
22 plus other cases consolidated for joint discovery in the County of Queens, would be an
inappropriate waste of judicial resources; unduly burdensome and costly to the parties herein;
and could result in inconsistent verdicts and/or judicial determinations based on the same set of
underlying facts.
The Queens County venue is also based upon the specific venue provisions governing
actions involving the New York City Transit Authority. CPLR 505(b) states: b) Against New
York city transit authority. The place of trial of an action against the New York city transit authority
shall be in the county within the city of New York in which the cause of action arose, or, if it arose
outside of the city, in the county of New York.
On these bases, this action is properly venued in New York State Supreme Court, County of
Queens and not the County of Kings.
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WHEREFORE, your Affirmant respectfully requests the Court Order (1) pursuant to
CPLR § 5015(a) (1) vacating the default judgment against the defendant. The defendant’s default
is excusable and there is a meritorious defense. The defendant is also requesting that. upon
vacatur, transferring this action to New York State Supreme Court, County of Queens; and for
such other and further relief as to this Court seems just and proper.
Dated: Melville, NY
May 19, 2020
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
TO:
DAVID I. FARBER, ESQ.
Plaintiff Counsel
130 Livingston Street – Room 1219A
Brooklyn, NY 11201
(718) 694-4876
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Preview
FILED: KINGS COUNTY CLERK 05/19/2020 04:05 PM INDEX NO. 507512/2019 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/19/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------X NEW YORK CITY TRANSIT AUTHORITY, Index No.: 507512/2019 Plaintiff, AFFIRMATION IN SUPPORT -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 support of the instant motion for an Order (1) pursuant to CPLR § 5015(a) (1) vacating the default judgment against the defendant. The defendant’s default is excusable and there is a meritorious defense. The defendant is also requesting that. upon vacatur, transferring this action to New York State Supreme Court, County of Queens. The present venue is improper based upon statutory grounds and would be an inefficient use of judicial resources. 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.) 1 of 7 FILED: KINGS COUNTY CLERK 05/19/2020 04:05 PM INDEX NO. 507512/2019 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/19/2020 3.On October 18, 2019 the defendants opposed plaintiffs motion for a default judgement and cross moved requesting the court allow it to interpose an answer as well as to change the venue of this action to the proper County, the site of the alleged incident, and where 22 other actions related to the incident are presently pending ; said motion being returnable on November 1, 2019( a copy of which is attached as Exhibit B). Counsel appeared on said return date and the motion was adjourned to January 10, 2020. The counsel appearing for the defendants communicated the wrong date to your Affirmant’s office of January 24, 2020 and thus defendants did not appear on the January 10, 2020 return date. As a result, a default judgment was entered, without prejudice. Annexed as Exhibit C is a copy of the email transmitting the wrong return date and as Exhibit D the default judgment without prejudice. IN SUPPORT OF VACATING THE DEFAULT IN ANSWERING 3. Annexed hereto and made a part hereof as Exhibit “E” 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 State 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 2 of 7 FILED: KINGS COUNTY CLERK 05/19/2020 04:05 PM INDEX NO. 507512/2019 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/19/2020 refused. A copy of the proposed answer was sent with this request. (Annexed hereto and made a part hereto, respectively as Exhibits “F” and “G” 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 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, 3 of 7 FILED: KINGS COUNTY CLERK 05/19/2020 04:05 PM INDEX NO. 507512/2019 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/19/2020 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 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). 4 of 7 FILED: KINGS COUNTY CLERK 05/19/2020 04:05 PM INDEX NO. 507512/2019 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/19/2020 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.” 13. This action is improperly venued in The Supreme Court of Kings County. Annexed hereto as Exhibit “H” is a true copy of the plaintiffs summons and complaint. It avers the cause of action arose from a collision between two buses at the intersection of Main Street and Northern Boulevard, County of Queens, New York. To litigate this case separate and apart from 22 plus other cases consolidated for joint discovery in the County of Queens, would be an inappropriate waste of judicial resources; unduly burdensome and costly to the parties herein; and could result in inconsistent verdicts and/or judicial determinations based on the same set of underlying facts. The Queens County venue is also based upon the specific venue provisions governing actions involving the New York City Transit Authority. CPLR 505(b) states: b) Against New York city transit authority. The place of trial of an action against the New York city transit authority shall be in the county within the city of New York in which the cause of action arose, or, if it arose outside of the city, in the county of New York. On these bases, this action is properly venued in New York State Supreme Court, County of Queens and not the County of Kings. 5 of 7 FILED: KINGS COUNTY CLERK 05/19/2020 04:05 PM INDEX NO. 507512/2019 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/19/2020 WHEREFORE, your Affirmant respectfully requests the Court Order (1) pursuant to CPLR § 5015(a) (1) vacating the default judgment against the defendant. The defendant’s default is excusable and there is a meritorious defense. The defendant is also requesting that. upon vacatur, transferring this action to New York State Supreme Court, County of Queens; and for such other and further relief as to this Court seems just and proper. Dated: Melville, NY May 19, 2020 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 TO: DAVID I. FARBER, ESQ. Plaintiff Counsel 130 Livingston Street – Room 1219A Brooklyn, NY 11201 (718) 694-4876 6 of 7 FILED: KINGS COUNTY CLERK 05/19/2020 04:05 PM INDEX NO. 507512/2019 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 05/19/2020 7 of 7