Preview
FILED: KINGS COUNTY CLERK 02/08/2018 10:40 AM INDEX NO. 523297/2016
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/08/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
JUDY KUPFERSTEIN and PINCHUS KUPFERSTEIN,
Index No. 523297/2016
Plaintiffs,
-against- AFFIRMATION IN SUPPORT OF MOTION
FOR DEFAULT JUDGMENT
JACOB SABEL, as Preliminary Executor of the
Estate of ZOLTAN SABEL,
Defendant.
COUNTY OF NEW YORK )
) ss:
STATE OF NEW YORK )
Moshe Mortner, states under penalty of perjury, pursuant to CPLR 2106, as follows:
1. I am an attorney admitted to the practice of law in the State of New York. I am
the Attorney for Plaintiffs Judy Kupferstein and Pinchus Kupferstein (the "Plaintiffs").
Plaintiffs'
2. I submit this Affirmation in support of Plaintiffs motion for default judgment,
pursuant to CPLR §3215.
3. The following statements are true and correct based on my personal knowledge
or information transmitted to me from records of the Court and public records of the Office of
the City Register of the Department of Finance of the City of New York.
a. Nature of the Action
4. This action concerns titleto a residential unit that is part of a two-family
44th -
townhouse at the premises commonly referred to, known and addressed as 1467 Street
Unit 1, Brooklyn, New York, specifically described on the land and tax map of the City of New
York in the State of New York as Block: 5506, Lot: 1101 (hereinafter referred to as "the Subject
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Premises"
Premises"), located and situate in the Borough of Kings, City and State of New York, as further
described and being comprised in the Deed attached as Exhibit A, annexed hereto.
5. This isan action to impress a constructive trust on the Subject Premises.
b. Default of the Defendant
6. This action was commenced on December 30, 2016, with the filing of the
Summons and Complaint. A copy of the Summons and Complaint isannexed as Exhibit B.
7. Defendant Jacob Sabel, as Preliminary Executor of the Estate of Zoltan Sabel (the
"Defendant"
"Defendant"), was personally served with the Summons and Complaint on January 11, 2017, as
appears by the Affidavit of Service on file in this action and as annexed hereto as Exhibit C.
8. The Summons served on the defendant contained both the index number of the
case and the date of filing thereof.
9. On February 1, 2017, the Defendant appeared through counsel by efiling a
Notice of Appearance on the NYSCEF system. (A copy of the Notice of Appearance isannexed as
Exhibit D.
10. On February 1, 2018, one year after Defendant's counsel filed a Notice of
Appearance, the Defendant through his counsel, served an Answer by efiling on the NYSCEF
system.
11. On February 6, 2018, Plaintiff's counsel duly rejected Defendant's late served
Answer by serving a Notice of Rejection and Return of Answer with Statement of Objection. The
Notice of Rejection was mailed and efiled on the said date. A copy of the Notice of Rejection is
annexed as Exhibit E.
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12. The time provided for by law in which the defendant was required to answer
expired without the service of an answer, nor was the time to answer extended for the
defendant by the Court or by Stipulation, and the Defendant is now in default of pleading.
13. Based on the foregoing, issue has not been joined.
c. Additional Notice Requirements under CPLR 3215(g) Do Not Apply
14. No additional notice is required under CPLR § 3215(g)(3), because
a. This action is not an action based upon nonpayment of a contractual
obligation; and
b. This isan action affecting title to real property (See CPLR § 3215[g] [3]
[iii].)
15. All of the proceedings herein have been regular and in conformity with the CPLR.
16. Proofs supporting this application for default judgment are set forth in the
Affirmation of Pinchus Kupferstein annexed hereto as Exhibit F.
17. Based on the foregoing and the Complaint, default judgment should be granted
to Plaintiffs.
18. A previous application was made for the same relief as herein sought, and itwas
denied because the Court held that Plaintiffs had failed to supply an affidavit of non-military
service. Now, an Affidavit on Non-Military Service isattached hereto as Exhibit G, which
includes a Status Report regarding Jacob Sabel, pursuant to the Servicemembers Civil Relief Act,
issued the Department of Defense —
-Manpower Data which was issued than 30 days
by Center,
ago.
WHEREFORE, Plaintiffs Judy Kupferstein and Pinchus Kupferstein respectfully request
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that the Court grant default judgment to Plaintiffs and adjudge that a trust be impressed upon
the real property described in the complaint; that the defendant as Preliminary Executor of the
Estate of Zoltan Sabel be declared to be trustee and to hold the legal title to the said real
property in trust for the benefit of the plaintiff; and that the defendant as Preliminary Executor
of the Estate of Zoltan Sabel be ordered to execute a deed conveying to the plaintiffs legal title
to said real property and tenants in common; and that the defendant be restrained by order
and injunction of this court from selling, mortgaging or otherwise encumbering or disposing of
said real property; and grant such other and further relief as to the Court seems just and
proper.
Dated: New York, NY
f
February 8, 2018
Moshe Mortner
4
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Preview
FILED: KINGS COUNTY CLERK 02/08/2018 10:40 AM INDEX NO. 523297/2016 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/08/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS JUDY KUPFERSTEIN and PINCHUS KUPFERSTEIN, Index No. 523297/2016 Plaintiffs, -against- AFFIRMATION IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT JACOB SABEL, as Preliminary Executor of the Estate of ZOLTAN SABEL, Defendant. COUNTY OF NEW YORK ) ) ss: STATE OF NEW YORK ) Moshe Mortner, states under penalty of perjury, pursuant to CPLR 2106, as follows: 1. I am an attorney admitted to the practice of law in the State of New York. I am the Attorney for Plaintiffs Judy Kupferstein and Pinchus Kupferstein (the "Plaintiffs"). Plaintiffs' 2. I submit this Affirmation in support of Plaintiffs motion for default judgment, pursuant to CPLR §3215. 3. The following statements are true and correct based on my personal knowledge or information transmitted to me from records of the Court and public records of the Office of the City Register of the Department of Finance of the City of New York. a. Nature of the Action 4. This action concerns titleto a residential unit that is part of a two-family 44th - townhouse at the premises commonly referred to, known and addressed as 1467 Street Unit 1, Brooklyn, New York, specifically described on the land and tax map of the City of New York in the State of New York as Block: 5506, Lot: 1101 (hereinafter referred to as "the Subject 1 of 4 FILED: KINGS COUNTY CLERK 02/08/2018 10:40 AM INDEX NO. 523297/2016 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/08/2018 Premises" Premises"), located and situate in the Borough of Kings, City and State of New York, as further described and being comprised in the Deed attached as Exhibit A, annexed hereto. 5. This isan action to impress a constructive trust on the Subject Premises. b. Default of the Defendant 6. This action was commenced on December 30, 2016, with the filing of the Summons and Complaint. A copy of the Summons and Complaint isannexed as Exhibit B. 7. Defendant Jacob Sabel, as Preliminary Executor of the Estate of Zoltan Sabel (the "Defendant" "Defendant"), was personally served with the Summons and Complaint on January 11, 2017, as appears by the Affidavit of Service on file in this action and as annexed hereto as Exhibit C. 8. The Summons served on the defendant contained both the index number of the case and the date of filing thereof. 9. On February 1, 2017, the Defendant appeared through counsel by efiling a Notice of Appearance on the NYSCEF system. (A copy of the Notice of Appearance isannexed as Exhibit D. 10. On February 1, 2018, one year after Defendant's counsel filed a Notice of Appearance, the Defendant through his counsel, served an Answer by efiling on the NYSCEF system. 11. On February 6, 2018, Plaintiff's counsel duly rejected Defendant's late served Answer by serving a Notice of Rejection and Return of Answer with Statement of Objection. The Notice of Rejection was mailed and efiled on the said date. A copy of the Notice of Rejection is annexed as Exhibit E. 2 of 4 FILED: KINGS COUNTY CLERK 02/08/2018 10:40 AM INDEX NO. 523297/2016 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/08/2018 12. The time provided for by law in which the defendant was required to answer expired without the service of an answer, nor was the time to answer extended for the defendant by the Court or by Stipulation, and the Defendant is now in default of pleading. 13. Based on the foregoing, issue has not been joined. c. Additional Notice Requirements under CPLR 3215(g) Do Not Apply 14. No additional notice is required under CPLR § 3215(g)(3), because a. This action is not an action based upon nonpayment of a contractual obligation; and b. This isan action affecting title to real property (See CPLR § 3215[g] [3] [iii].) 15. All of the proceedings herein have been regular and in conformity with the CPLR. 16. Proofs supporting this application for default judgment are set forth in the Affirmation of Pinchus Kupferstein annexed hereto as Exhibit F. 17. Based on the foregoing and the Complaint, default judgment should be granted to Plaintiffs. 18. A previous application was made for the same relief as herein sought, and itwas denied because the Court held that Plaintiffs had failed to supply an affidavit of non-military service. Now, an Affidavit on Non-Military Service isattached hereto as Exhibit G, which includes a Status Report regarding Jacob Sabel, pursuant to the Servicemembers Civil Relief Act, issued the Department of Defense — -Manpower Data which was issued than 30 days by Center, ago. WHEREFORE, Plaintiffs Judy Kupferstein and Pinchus Kupferstein respectfully request 3 of 4 FILED: KINGS COUNTY CLERK 02/08/2018 10:40 AM INDEX NO. 523297/2016 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/08/2018 that the Court grant default judgment to Plaintiffs and adjudge that a trust be impressed upon the real property described in the complaint; that the defendant as Preliminary Executor of the Estate of Zoltan Sabel be declared to be trustee and to hold the legal title to the said real property in trust for the benefit of the plaintiff; and that the defendant as Preliminary Executor of the Estate of Zoltan Sabel be ordered to execute a deed conveying to the plaintiffs legal title to said real property and tenants in common; and that the defendant be restrained by order and injunction of this court from selling, mortgaging or otherwise encumbering or disposing of said real property; and grant such other and further relief as to the Court seems just and proper. Dated: New York, NY f February 8, 2018 Moshe Mortner 4 4 of 4