Preview
FILED: KINGS COUNTY CLERK 05/31/2018 08:47 AM INDEX NO. 523297/2016
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 05/31/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
JUDY KUPFERSTEIN and PINCHUS KUPFERSTEIN,
Index No. 523297/2016
Plaintiffs,
-against- AFFIRMATION IN OPPOSITION TO
MOTION TO DISMISS
JACOB SABEL, as Preliminary Executor of the Estate of (CPLR 3211 [a][4])
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
"Plaintiffs"
the Attorney for the Plaintiffs Judy Kupferstein and Pinchus Kupferstein (the "Plaintiffs"). 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.
2. I submit this Affirmation in opposition to the Defendant's Order to Show Cause,
pursuant to CPRL 3211 (a)(4), to dismiss or, in the alternative, transfer this action.
Nature of the Action
3. This isan action to impress a constructive trust, and concerns titleto a
residential unit that is part of a two-family townhouse at the premises commonly referred to,
44th -
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: SS06, Lot: 1101
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Premises"
(hereinafter referred to as "the Subject 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.
PROCEDURAL HISTORY
4. 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.
5. 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 annexed hereto as Exhibit C.
6. Defendant's time to answer or move expired on January 22, 2017.
7. On February 1, 2017, the Defendant appeared through counsel by efilinga
Notice of Appearance on the NYSCEF system. (A copy of the Notice of Appearance isannexed as
Exhibit D.
8. 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.
9. Five days later, on February 6, 2018, Plaintiff's counsel duly rejected Defendant's
late served Answer by serving by mail and efile a Notice of Rejection and Return of Answer with
Statement of Objection. A copy of the Notice of Rejection isannexed as Exhibit E.
10. On February 8, 2018, Plaintiff filed a motion for default judgment against the
Defendant. That motion has been adjourned to June 28, 2018.
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11. On March 27, 2018, Defendant filed the instant Order to Show Cause to dismiss,
pursuant to CPRL 3211 (a)(4), which was signed by the Court on April 4, 2018. The Order to
Show Cause directs the Plaintiff as follows:
ORDERED that Plaintiffs SHOW CAUSE ...WHY an Order should not
be made and entered herein dismissing the within proceeding on
the ground that a prior action is pending for the same relief, or,
alternatively, pursuant to CPLR § 3211(a)(4), transferring the within
matter to the Surrogate's Court of the State of New York, Rockland
County.
ARGUMENT
I. THE DEFENDANT'S MOTION IS UNTIMELY, PURSUANT TO CPLR 3211(e)(e)
12. CPLR 3211 (a) (4),which isthe basis of Defendant's motion, isone of the
subsections of CPLR3211 (a) that is limited by CPRL 3211 (e).Therefore, the Defendant's motion
to dismiss the complaint in this action is untimely, because itwas made after the time to file an
answer had lapsed (see CPLR 3211 [e]; Lema v. New York Cent. Mut. Fire Ins. .Co.,
Co., 112 AD 3d 891
[2nd Dept. 2013]; Bennett v Hucke, 64 AD3d 529, 530 [2nd Dept. 2009]).
13. The time provided by law in which the defendant was required to answer or
move expired on January 22, 2017 without the service by Defendant of an answer or a motion,
nor was the time to answer extended for the defendant by the Court or by Stipulation.
14. More than one year passed from the time Defendant was required to answer
or move before Defendant submitted the instant Order to Show Cause to the Court.
15. Based on the foregoing the Court must deny the Order to Show Cause.
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II. DEFENDANT HAS NOT SATISFIED THE REQUIREMENTS OF CPLR 3211(a)(4)
16. Furthermore, even ifthe motion was timely, Defendant has not satisfied the
requirements of CPLR 3211 (a)(4), which provides that an action may be dismissed or
transferred when "there is another action pending between the same parties for the some
States."
cause of action in a court of any state or the United
17. Here, Defendant seeks dismissal or transfer of this equitable action for the
imposition of a constructive trust, pursuant to CPLR 3211 (a)(4), because of a pending
Surrogate's Court turnover proceeding commenced by the Defendant herein. Clearly, these are
not the same causes of action, as required by CPLR 3211 (a)(4). The action in this court is
brought by the Kupfersteins, whereas as the action in the Surrogate's Court is brought by Jacob
Sabel. The action in this court isfor the equitable reliefof imposition of a constructive trust,
whereas the Surrogate's Court isentertaining a legal action for ejectment or eviction.
Accordingly, there is no basis for dismissal or transfer of this action.
WHEREFORE, Plaintiffs Judy Kupferstein and Pinchus Kupferstein respectfully request
that the Court deny Defendant's motion to dismiss.
Dated: New York, NY
May 30, 2018
~5( .
Moshe Mortner
4
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Preview
FILED: KINGS COUNTY CLERK 05/31/2018 08:47 AM INDEX NO. 523297/2016 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 05/31/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS JUDY KUPFERSTEIN and PINCHUS KUPFERSTEIN, Index No. 523297/2016 Plaintiffs, -against- AFFIRMATION IN OPPOSITION TO MOTION TO DISMISS JACOB SABEL, as Preliminary Executor of the Estate of (CPLR 3211 [a][4]) 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 "Plaintiffs" the Attorney for the Plaintiffs Judy Kupferstein and Pinchus Kupferstein (the "Plaintiffs"). 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. 2. I submit this Affirmation in opposition to the Defendant's Order to Show Cause, pursuant to CPRL 3211 (a)(4), to dismiss or, in the alternative, transfer this action. Nature of the Action 3. This isan action to impress a constructive trust, and concerns titleto a residential unit that is part of a two-family townhouse at the premises commonly referred to, 44th - 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: SS06, Lot: 1101 1 of 4 FILED: KINGS COUNTY CLERK 05/31/2018 08:47 AM INDEX NO. 523297/2016 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 05/31/2018 Premises" (hereinafter referred to as "the Subject 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. PROCEDURAL HISTORY 4. 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. 5. 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 annexed hereto as Exhibit C. 6. Defendant's time to answer or move expired on January 22, 2017. 7. On February 1, 2017, the Defendant appeared through counsel by efilinga Notice of Appearance on the NYSCEF system. (A copy of the Notice of Appearance isannexed as Exhibit D. 8. 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. 9. Five days later, on February 6, 2018, Plaintiff's counsel duly rejected Defendant's late served Answer by serving by mail and efile a Notice of Rejection and Return of Answer with Statement of Objection. A copy of the Notice of Rejection isannexed as Exhibit E. 10. On February 8, 2018, Plaintiff filed a motion for default judgment against the Defendant. That motion has been adjourned to June 28, 2018. 2 of 4 FILED: KINGS COUNTY CLERK 05/31/2018 08:47 AM INDEX NO. 523297/2016 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 05/31/2018 11. On March 27, 2018, Defendant filed the instant Order to Show Cause to dismiss, pursuant to CPRL 3211 (a)(4), which was signed by the Court on April 4, 2018. The Order to Show Cause directs the Plaintiff as follows: ORDERED that Plaintiffs SHOW CAUSE ...WHY an Order should not be made and entered herein dismissing the within proceeding on the ground that a prior action is pending for the same relief, or, alternatively, pursuant to CPLR § 3211(a)(4), transferring the within matter to the Surrogate's Court of the State of New York, Rockland County. ARGUMENT I. THE DEFENDANT'S MOTION IS UNTIMELY, PURSUANT TO CPLR 3211(e)(e) 12. CPLR 3211 (a) (4),which isthe basis of Defendant's motion, isone of the subsections of CPLR3211 (a) that is limited by CPRL 3211 (e).Therefore, the Defendant's motion to dismiss the complaint in this action is untimely, because itwas made after the time to file an answer had lapsed (see CPLR 3211 [e]; Lema v. New York Cent. Mut. Fire Ins. .Co., Co., 112 AD 3d 891 [2nd Dept. 2013]; Bennett v Hucke, 64 AD3d 529, 530 [2nd Dept. 2009]). 13. The time provided by law in which the defendant was required to answer or move expired on January 22, 2017 without the service by Defendant of an answer or a motion, nor was the time to answer extended for the defendant by the Court or by Stipulation. 14. More than one year passed from the time Defendant was required to answer or move before Defendant submitted the instant Order to Show Cause to the Court. 15. Based on the foregoing the Court must deny the Order to Show Cause. 3 of 4 FILED: KINGS COUNTY CLERK 05/31/2018 08:47 AM INDEX NO. 523297/2016 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 05/31/2018 II. DEFENDANT HAS NOT SATISFIED THE REQUIREMENTS OF CPLR 3211(a)(4) 16. Furthermore, even ifthe motion was timely, Defendant has not satisfied the requirements of CPLR 3211 (a)(4), which provides that an action may be dismissed or transferred when "there is another action pending between the same parties for the some States." cause of action in a court of any state or the United 17. Here, Defendant seeks dismissal or transfer of this equitable action for the imposition of a constructive trust, pursuant to CPLR 3211 (a)(4), because of a pending Surrogate's Court turnover proceeding commenced by the Defendant herein. Clearly, these are not the same causes of action, as required by CPLR 3211 (a)(4). The action in this court is brought by the Kupfersteins, whereas as the action in the Surrogate's Court is brought by Jacob Sabel. The action in this court isfor the equitable reliefof imposition of a constructive trust, whereas the Surrogate's Court isentertaining a legal action for ejectment or eviction. Accordingly, there is no basis for dismissal or transfer of this action. WHEREFORE, Plaintiffs Judy Kupferstein and Pinchus Kupferstein respectfully request that the Court deny Defendant's motion to dismiss. Dated: New York, NY May 30, 2018 ~5( . Moshe Mortner 4 4 of 4