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FILED: KINGS COUNTY CLERK 06/05/2020 12:20 PM INDEX NO. 506324/2017
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 06/05/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------------------------------------------------------------X
ROBERT F. CODRINGTON II'
AFFIRMATION IN REPLY
Plaintiff '
Index No.: 506324/2017
-against-
SAMUEL CHURCHER,
Defendant.
-------------------------------------------------- X
1. YURIY PRAKHIN, ESQ., an attorney admitted to practice before the Courts of
this State affirms the truth of the following under the penalty of perjury:
2. I am a principal of LAW OFFICE OF YURIY PRAKHIN, P. C., attorneys for the
Plaintiff herein, and as such I am fully familiar with the facts and circumstances of this action
based upon a review of the case file and the investigation materials contained therein.
3. This affirmation in respectfully submitted in reply to the Affirmation of Yuriy
Prakhin, Esdq., on behalf of plaintiff, ROBERT F. CODRINGTON II,dated May 19, 2020, aind
in further support of Plaintiff's motion for an Order to (a) Pursuant to R. 5015(a)(1) of the Civil
Practice Law and Rules, vacating the Order and Decision of Hon. Johnny Lee Baynes, J.S.C.,
dated December 5, 2019 and entered December 11, 2019, that granted Defendants summary
judgment on default; (b) Pursuant to CPLR §3404, restoring this matter to the trialcalendar of
the Court; and (c) For such other and further relief as this Court deems just and proper.
CPLR 5015(a) Does Not Mandate a Party to Move by Order to Show Cause When
Seeking Relief from an Order or Judgment
4. The case of Vin-Mike Enterprises v. Grigg, 205 NY Slip Op. 31625(U), August
17, 2015, is not applicable here. In Vin-Mike Enterprises, the defendant moved for
dismissal due to improper service and was seeking directives by the Court, specifically,
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the Court's directives regarding the method and manner of service. The Court thus had no
opportunity to direct the method and manner of service because defendant moved via
notice of motion instead of order to show cause. Still,the Court considered the matter on
the merits of the defendant's motion regardless of the incorrect format of defendant's
moving papers.
5. Here, plaintiff is asking the Court to vacate a prior Order not the directives of the
Court. The prior Order has nothing to do with the method and manner of service.
Moreover, defendant has not made a single showing of how the wrong formatting of a
document can possibly impact the defendant prejudicially.
Plaintiff's Moving Papers were Timely Filed
6. Pursuant to CPLR 5015(a) "The court which rendered a judgment or order may
relieve a party from itupon 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
party."
written notice of itsentry upon the moving
7. Here, plaintiff was served with notice of entry on December 11, 2019. Plaintiff
timely moved within one year of service on May 28, 2020. Plaintiff moved within 5
months of service of the notice of entry and would have moved sooner however was
unable to do so due to the COVID-19 quarantine.
8. Accordingly, itis hereby requested that Plaintiff's motion for an Order to (a)
Pursuant to R. 5015(a)(1) of the Civil Practice Law and Rules, vacating the Order and
Decision of Hon. Johnny Lee Baynes, J.S.C., dated December 5, 2019 and entered
December 11, 2019, that granted Defendants summary judgment on default; (b) Pursuant
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to CPLR $3404, restoring this matter to the trial calendar of the Court; and (c) For such
other and further relief as this Court deems just and proper be granted in itsentirety.
WHEREFORE, your affirmant respectfully request that the within motion be
decided in accordance with the above, together with such other, further, and different
relief as to this Court deems just and proper.
Dated: Brooklyn, New York
June 5, 2020
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FILED: KINGS COUNTY CLERK 06/05/2020 12:20 PM INDEX NO. 506324/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 06/05/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X ROBERT F. CODRINGTON II' AFFIRMATION IN REPLY Plaintiff ' Index No.: 506324/2017 -against- SAMUEL CHURCHER, Defendant. -------------------------------------------------- X 1. YURIY PRAKHIN, ESQ., an attorney admitted to practice before the Courts of this State affirms the truth of the following under the penalty of perjury: 2. I am a principal of LAW OFFICE OF YURIY PRAKHIN, P. C., attorneys for the Plaintiff herein, and as such I am fully familiar with the facts and circumstances of this action based upon a review of the case file and the investigation materials contained therein. 3. This affirmation in respectfully submitted in reply to the Affirmation of Yuriy Prakhin, Esdq., on behalf of plaintiff, ROBERT F. CODRINGTON II,dated May 19, 2020, aind in further support of Plaintiff's motion for an Order to (a) Pursuant to R. 5015(a)(1) of the Civil Practice Law and Rules, vacating the Order and Decision of Hon. Johnny Lee Baynes, J.S.C., dated December 5, 2019 and entered December 11, 2019, that granted Defendants summary judgment on default; (b) Pursuant to CPLR §3404, restoring this matter to the trialcalendar of the Court; and (c) For such other and further relief as this Court deems just and proper. CPLR 5015(a) Does Not Mandate a Party to Move by Order to Show Cause When Seeking Relief from an Order or Judgment 4. The case of Vin-Mike Enterprises v. Grigg, 205 NY Slip Op. 31625(U), August 17, 2015, is not applicable here. In Vin-Mike Enterprises, the defendant moved for dismissal due to improper service and was seeking directives by the Court, specifically, 1 of 3 FILED: KINGS COUNTY CLERK 06/05/2020 12:20 PM INDEX NO. 506324/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 06/05/2020 the Court's directives regarding the method and manner of service. The Court thus had no opportunity to direct the method and manner of service because defendant moved via notice of motion instead of order to show cause. Still,the Court considered the matter on the merits of the defendant's motion regardless of the incorrect format of defendant's moving papers. 5. Here, plaintiff is asking the Court to vacate a prior Order not the directives of the Court. The prior Order has nothing to do with the method and manner of service. Moreover, defendant has not made a single showing of how the wrong formatting of a document can possibly impact the defendant prejudicially. Plaintiff's Moving Papers were Timely Filed 6. Pursuant to CPLR 5015(a) "The court which rendered a judgment or order may relieve a party from itupon 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 party." written notice of itsentry upon the moving 7. Here, plaintiff was served with notice of entry on December 11, 2019. Plaintiff timely moved within one year of service on May 28, 2020. Plaintiff moved within 5 months of service of the notice of entry and would have moved sooner however was unable to do so due to the COVID-19 quarantine. 8. Accordingly, itis hereby requested that Plaintiff's motion for an Order to (a) Pursuant to R. 5015(a)(1) of the Civil Practice Law and Rules, vacating the Order and Decision of Hon. Johnny Lee Baynes, J.S.C., dated December 5, 2019 and entered December 11, 2019, that granted Defendants summary judgment on default; (b) Pursuant 2 of 3 FILED: KINGS COUNTY CLERK 06/05/2020 12:20 PM INDEX NO. 506324/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 06/05/2020 to CPLR $3404, restoring this matter to the trial calendar of the Court; and (c) For such other and further relief as this Court deems just and proper be granted in itsentirety. WHEREFORE, your affirmant respectfully request that the within motion be decided in accordance with the above, together with such other, further, and different relief as to this Court deems just and proper. Dated: Brooklyn, New York June 5, 2020 3 of 3