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  • Robert F Codrington Ii v. Samuel Churcher Torts - Motor Vehicle document preview
  • Robert F Codrington Ii v. Samuel Churcher Torts - Motor Vehicle document preview
  • Robert F Codrington Ii v. Samuel Churcher Torts - Motor Vehicle document preview
  • Robert F Codrington Ii v. Samuel Churcher Torts - Motor Vehicle document preview
						
                                

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FILED: KINGS COUNTY CLERK 06/01/2020 11:39 AM INDEX NO. 506324/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/01/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X INDEX NO.: 506324/17 ROBERT F. CODRINGTON II, Plaintiff(s), - against - AFFIRMATION IN OPPOSITION SAMUEL CHURCHER, FILE NO.: 674237 Defendant(s). -------------------------------------------------------------------X STEPHEN SCHIOPPI, an attorney duly admitted to practice law in the Courts of the State of New York, affirms the following to be true, upon information and belief, under the penalty of perjury pursuant to CPLR 2106: 1. I am associated with BAKER, McEVOY & MOSKOVITS, P.C., attorneys for Defendant, in the above noted action, and as such am fully familiar with the facts and circumstances of this action based upon the contents of the file maintained by this office. 2. This Affirmation in Opposition is respectfully submitted in opposition to the plaintiffs motion, pursuant to CPLR 5015, seeking relief in the form vacating the courts order dated December of 2019, which granted defendants summary judgment in this case and for such other and further relief as this Honorable Court deems just and proper. Motion for Relief from Order / Judgment Under CPLR 5015 Should be Made by Order to Show Cause not Notice of Motion 3. CPLR 5015(a) provides: “ 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 1 of 4 FILED: KINGS COUNTY CLERK 06/01/2020 11:39 AM INDEX NO. 506324/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/01/2020 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; or 2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a 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 it is based. 4. In Vin-Mike Enterprises v. Grigg, 2015 NY Slip Op. 31625(U), August 17, 2015 the court began its analysis of the defendant’s motion for relief from judgment by looking at how that motion had been brought: Subparagraph (a) of Rule 5015 mandates that a person seeking relief from a judgment or order entered in an action move for such relief “with such notice as the court may direct”. Motions pursuant to CPLR 5015(a) are thus required to be interposed by the presentation of an order to show cause providing in blank for court directives regarding the method and manner of service. At least one appellate court has determined that the failure to move for relief pursuant to CPLR 5015(a) by order to show cause is a jurisdictional defect warranting the vacatur of any order issued on an application not compliant with these requirements. (see Smith v Smith, 291 AD2d 828, 736 NYS2d 557 [4th Dept. 2002); 133 Siegel's Prac. Rev. 4, David D Siegel [2003]) 5. In the case at bar, the instant motion was interposed by a mere notice of motion rather than by order to show cause. Due to the wrong format of this motion, the defendant has been prejudicially impacted by this defect. The plaintiff has neglected to follow the guidelines of CPLR 5015 and thus, this motion should be denied. Plaintiff Fails to Offer a Reasonable Excuse for the Prolonged Delay in Moving for Such Relief under CPLR 5015 2 of 4 FILED: KINGS COUNTY CLERK 06/01/2020 11:39 AM INDEX NO. 506324/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/01/2020 6. In order to vacate a default, a party must demonstrate a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015(a) (1); Bontempts v Aude Constr. Corp., 98 AD3d [*2]1071, 1072). The defendant failed to proffer a reasonable excuse for the more than seven-month delay in moving, inter alia, to vacate the default and instead offered conclusory and unsubstantiated reasons that do not constitute a reasonable excuse (see CEO Bus. Brokers, Inc. v Algabili, 105 AD3d 989, 990; Matter of Nieto, 70 AD3d 831, 832). 7. In the case at bar, the plaintiff has failed to offer a reasonable excuse for the delay of close to six months in moving for this relief. In its place, the plaintiff has only offered conclusory and unsupported reasons that don’t qualify as reasonable excuses. Therefore, the court must deny the movant as to relief sought in this motion. WHEREFORE, the Defendants respectfully request that the Court deny plaintiffs motion in its entirety; and any other and further relief the Court deems just and proper. Dated: Brooklyn, New York June 1, 2020 Yours, etc., BAKER, McEVOY & MOSKOVITS, P.C. Stephen Schioppi ______________________________ By: STEPHEN SCHIOPPI, Esq. Attorneys for Defendant SAMUEL CHURCHER 1 MetroTech Center, 8th Floor Brooklyn, New York 11201 (212) 857-8230 TO: LAW OFFICE OF YURIY PRAKHIN, P.C. 1883 86TH STREET, 2ND FLOOR BROOKLYN, NY 11214 3 of 4 FILED: KINGS COUNTY CLERK 06/01/2020 11:39 AM INDEX NO. 506324/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/01/2020 SUPREME COURT OF THE STATE OF NEW YORK INDEX NO: 506324/17 COUNTY OF KINGS -----------------------------------------------------------------------------------x ROBERT F. CODRINGTON II, Plaintiff, AFFIRMATION IN OPPOSITION -against- SAMUEL CHURCHER, Defendants. FILE NO: 674237 -----------------------------------------------------------------------------------x BAKER, McEVOY & MOSKOVITS, P.C. 1 METROTECH CENTER BROOKLYN, NY 11201 212-857-8230 Attorneys for Defendant: SAMUEL CHURCHER Signed: pursuant to 22 NYRRR § 130-1.1-a Stephen Schioppi _________________________________ STEPHEN SCHIOPPI, ESQ. 4 of 4