Preview
Supreme Court of State of New York
County of QUEENS
. PRESENT: HON
Justice of the Supreme Court
Index #: 703010-2015 E
Bank of New York Mellon 1 O
cm Plaintiff(s) Order to Show Cause
d-a-d T.R.O. In Civil Action
o a bA With
Anthony Williams, g al .
Defendant(s)
Upon reading and filing the affidavit of Anthony Williams,
sworn to on the 3gl day of April, 2023, and upon the Exhibit(s) attached to the affidavit, and
Exhibit A: 1
E . .
E it D:
Queens Counts Clerk's Office
Pasm 2971340 04/03/2023 2:579
Cashier ZASHRAF Resister 4 4
Tr.3669635 $45.00
Documents Pas At Court E-file
703010/2015
OTSC
Total: $45.00
Cash $100.00
Chanse:
$55.00
&
Let the Plaintiff or their attorney show cause:
at IAS Part , Room ,
of this Court, to be held at:
Supreme Court of the State of New York
County of QUEENS
88-11 Sutphin Boulevard,
Jamaica, N.Y. 11435
On the day of 2023
at o'clock a.m./ p.m.
or as soon as counsel may be heard why and order should not be made:
1 Vacating/ reversing the default judgment of foreclosure entered against Defendant,
2. Vacating/ reversing/ staying any and all auctions for subject premises, scheduled for on or around April 6,
2023,
3 Dismissing this action against Defendant with prejudice.
Pending the hearing and determination of this motion, it is ORDERED that:
1. Vacating/ reversing the default judgment of foreclosure entered against Defendant,
2. Vacating/ reversing/ staying any and all auctions for subject premises, scheduled for on or around April 6,
3. Dismissing this action against Defendant with prejudice.
And why Defendant should not have such other and further relief as may be just, proper and equitable.
Sufficient cause appearing therefor, let personal service of a copy of this order, and the other papers upon
which this order is granted, upon the Plaintiff or Attorney(s) for Plaintiff) by
on or before the ___day of , E be deemed
good and sufficient. An affidavit or other proof of service shall be presented to this Court on the return date directed
in the second paragraph of this order.
ENTER
J.S.C.
Supreme Court of State of New York
County of QUEENS
Bank of New York Mellon, .a
Plaintiff(s)h 2,kq
v. in C-- ¹½F Index #: 703010-2015
Emergency Affidavit
Anthony Williams, _e_tal
Defendant(s)
_______________________________------------Ç
I, Anthony Williams, am the Defendant in the above-named action/ special proceeding.
I request immediate judicial review of my Order to Show Cause with a T.R.O. on the following grounds:
" If the default judgment stands, it will lead to a great financial hardship for Defendant. .
VERIFICATION
Anthony Williams, being duly sworn, deposes and says:
I am the Defendant in the above-titled action. I have read the foregoing Emergency Affidavit and know the
contents thereof. The same is true to my knowledge, except as to matters therein stated to be alleged on information
and belief and as to those matters, I belief them to be true.
Anthony Williams
Sworn to before me this
ANNA USA S. ENRIQUEZ
Notary Public - State of
of April, 20 New York
3rd_day
No.-04EN6405207
Qualified In Queens
County
Commission Expirec March 2,
Notary Public
"
Go Forward Realty
Mr. Gbenga Fadoju, Broker
res: (718) 776-7200
Fax: (718) 776-7272
info@Goforwardrealty.com
March 27, 2023
Ref; 0579479701
To Whom It May Concern:
116th
My name is Anthony Williams owner of the ref #, a.k.a 200-16 Ave, St Albans, NY 11412.
Needless to regurgitate the history of the subject note. But, I'm a very ill man who mostly spent
substantial amount of time in the hospitals. One of the main caused of my sickness is stress, anxiety
about whether I would have a shelter to live daily.
I am offering $105,000.00 as short payoff for this note in totality of debt owe. If my offer is accepted.
I'll need about ninety days to raise the funds through family members and well-wishers..
I strongly and humbly ask that you accept my offer, so, I can hopefully start to regain my strength and
subsequently cure my illness.
An ony Williams
.
Supreme Court of State of New York
County of QUEENS
0MF
%t
Bank of New York Mellon, 4:- ya
Plaintiff(s) eleA AS
c a-P o9 et 9 C- . Index #: 703010-2015
Affidavit in Support
Anthony Williams, et al
Defendant(s)
___________________________________________Ç
Anthony Williams being duly sworn deposes and says:
1. I am the Defendant in this action. I make this affidavit in support of my motion for an order:
1. Vacating/ reversing the default judgment of foreclosure entered against Defendant,
2. Vacating/ reversing/ staying any and all auctions for subject premises, scheduled for on or around April 6,
20.23,
3. Dismissing this action against Defendant with prejudice.
. 2.·I believe the court should grant my motion because:
1. Bank of New York Mellon (hereinafter "Plaintiff") is the Plaintiff in this action.
2. Anthony Williams (hereinafter "Defendant") is tlie Defendant in this action.
3. Defendant(s) hereby denies all allegations in the Summons and Complaint.
4. Defendant(s) denies each and every allegation in the Summons and Complaint.
5. There is no privity of contact between Defendant and Plaintiff.
6. Defendant does not owe the amount alleged in the Summons and Complaint.
7. Plaintiff has not shown legal acquisition/title of the alleged loan note. Thus, Plaintiff does not have standing
to bring this action.
8. There is a good-faith basis for Defendant's defense.
9. My son is in the military, and subject premises is his primary residence.
Language to Vacate Default Judgment
Affidavit in Support
" Defendant(s) hereby denies all allegations in the Summons and Complaint.
" Defendant(s) denies each and every allegation in the Summons and Complaint.
" Defendant does not owe the amount alleged in the Summons and Complaint.
" The American rule is that each side pays their own respective attorney fees and court costs. We request that
each side in this matter pay their own respective attorney fees and court costs.
" Statute of Limitations- the Statute of Limitations in this matter has tolled.
" Laches- Defendant would be adversely affected by the length of time Plaintiff took in bringing and re-
starting this lawsuit.
Lack of Standing
" Plaintiff has not shown legal acquisition/title of the alleged loan note. Thus, Plaintiff does not have standing
to bring this action.
" Plaintiff has failed to show that it has standing to commence this proceeding against Defendant.
" There is no privity of contract between Defendant and Plaintiff.
" Plaintiff has failed to show that it has legally acquired good title through the original note/loan holder.
Plaintiff bears the burden of proving this by a preponderance of the evidence. Without such a showing,
Plaintiff has no standing to bring this action against Defendant and the case must be dismissed.
. . Lack of Personal Jurisdiction overDefendant due to Plaintiff's Defective Service of the Summons and
Complaint
" Plaintiff failed to serve Defendant with a copy of the Summons and Complaint as required by state statute
(e.g. CPLR 308).
" CPLR 308 provides in pertinent part:
"Personal service upon a natural person shall be made by any of the following methods:
308(1) by delivering the summons within the state to the person to be served; [or]
308(2) by delivering the summons within the state to a person of suitable age and discretion at the actual place of
business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the
person to be served at his or her last known residence or by mailing the summons by first class mail to the person to
confidential"
be served at his or her actual place of business in an envelope bearing the legend "personal and and not
indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or
concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of
each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty
days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such
filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of
service, ...; [or]
308(4) where service under paragraphs one and two cannot be made with due diligence, by affixing the summons
to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person
to be served and by either mailing the summons to such person at his or her last known residence or by mailing the
summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing
confidential"
the legend "personal and and not indicating on the outside thereof, by return address or otherwise, that
the communication is from an attorney or concerns an action against the person to be served, such affixing and
mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the
court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later;
..."
service shall be complete ten days after such filing [CPLR 308]
" In this case, no good-faith attempt at personal service was made upon the Defendant(s), such as placing the
Defendant(s)'
Summons and Complaint in hands. [CPLR 308(1)]
" In this case, no good-faith attempt at personal service was made upon a person of suitable age and discretion,
such as placing the Summons and Complaint in a person of suitable age and discretion's hands. [CPLR
308(2)]
" Because there was no good-faith attempt at personal service to either Defendant [or] a person of suitable age
and discretion, any alleged attempt at affixing a copy of the Summons and Complaint to Defendant's door
and mailing a copy of it to Defendant with proof of mailing [CPLR 308(4)] ["Nail and Mail"] ["Substituted
Service"] were also defective.
" Although the Affidavit of Service of the Plaintiffs Process Server in most cases, prima facie
may constitute,
evidence of valid service upon the defendant of the summons with notice pursuant to CPLR 308(1) (see US
Bank N.A. v Ramos, 153 AD3d 882, 884; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589), this
presumption can be rebutted/ overcome by Defendant by attacking the Affidavit of Service, itself, submitted
by the Plaintiff's Process Server.
" A mere conclusory denial of proper service is insufficient to rebut the presumption of proper service arising
from the Process Server's Affidavit of Service (see Citimortgage, Inc. v Phillips, 82 AD3d 1032, 1033;
Sturino v Nino Tripiechio & Son Landscaping, 65 AD3d 1327; 96 Pierrepont v Mauro, 304 AD2d 631)
. " In this case, The Affidavit of Service for the Summons and Complaint is clearly defective as it fails to
describe personal service to Defendant [CPLR 308(1)] [or] a person of suitable age and discretion/ authority
[CPLR 308(2)] who matched the description of anyone at subject premises that day.
" In this case, The Affidavit of Service for the Summons and Complaint is clearly defective as it fails to
describe that Diligent attempts personal service to Defendant [or] a person of suitable age and discretion/
authority [CPLR 308(4)] by delivering the Summons and Complaint in their hands, prior to resorting to
substituted service ("nail and mail") [CPLR 308(4)], by affixing the summons to the door of either the actual
place of business, dwelling place or usual place of abode within the state of the person to be served and by
either mailing the summons to such person at his or her last known residence or by mailing the summons by
first class mail to the person to be served at his or her actual place of business in an envelope bearing the
confidential"
legend "personal and and not indicating on the outside thereof, by return address or otherwise,
that the communication is from an attorney or concerns an action against the person to be served, such
affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with
the clerk of the court designated in the summons within twenty days of either such affixing or mailing,
whichever is effected later; service shall be complete ten days after such filing. [CPLR 308(4)]
" Plaintiff bears the burden of proving this by a preponderance of the evidence.
" Without such a showing, this court does not have personal jurisdiction over Defendant and, thus, the entire
case must be dismissed.
Lack of Personal Jurisdiction over Defendant due to Plaintiff s Defective Service of the Notice of Motion for
Default Judgment
" Plaintiff failed to serve Defendant with a copy of the Notice of Motion for Default Judgment as required by
state statute [e.g. CPLR 5015].
. " CPLR 5015 provides in pertinent part:
"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, 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; [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.
(b) On stipulation. The clerk of the court may vacate a default judgment entered pursuant to section 3215 upon the
filing with him of a stipulation of consent to such vacatur by the parties personally or by their attorneys.
(c) On application of an administrative judge. An administrative judge, upon a showing that default judgments
were obtained by fraud, misrepresentation, illegality, unconscionability, lack of due service, violations of law, or
other illegalities or where such default judgments were obtained in cases in which those defendants would be
uniformly entitled to interpose a defense predicated upon but not limited to the foregoing defenses, and where such
default judgments have been obtained in a number deemed sufficient by him to justify such action as set forth herein,
and upon appropriate notice to counsel for the respective parties, or to the parties themselves, may bring a proceeding
to relieve a party or parties from them upon such terms as may be just. The disposition of any proceeding so
judge."
instituted shall be determined by a judge other than the administrative
" CPLR 2103 provides in pertinent part:
CPLR Rule 2103. Service of papers
(a) Who can serve. Except where otherwise prescribed by law or order of court, papers may be served by any
person not a party of the age of eighteen years or over.
(b) Upon an attorney. Except where otherwise prescribed by law or order of court, papers to be served upon a
party in a pending action shall be served upon the party's attorney. Where the same attorney appears for two or more
parties, only one copy need be served upon the attorney. Such service upon an attorney shall be made:
1. by delivering the paper to the attorney personally; [or]
2. by mailing the paper to the attorney at the address designated by that attorney for that purpose or, if none is
designated, at the attorney's last known address; service by mail shall be complete upon mailing; where a period of
time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the
prescribed period if the mailing is made within the state and six days if the mailing is made from outside the state but
within the geographic boundaries of the United States; [or]
3. if the attorney's office is open, by leaving the paper with a person in charge, or if no person is in charge, by
leaving it in a conspicuous place; or if the attorney's office is not open, by depositing the paper, enclosed in a sealed
wrapper directed to the attorney, in the attorney's office letter drop or box; [or]
4. by leaving it at the attorney's residence within the state with a person of suitable age and discretion. Service
upon an attorney shall not be made at the attorney's residence unless service at the attorney's office cannot be made;
[or]
5. by transmitting the paper to the attorney by facsimile transmission, provided that a facsimile telephone number is
designated by the attorney for that purpose. Serviceby facsimile transmission shall be complete upon the receipt by
the sender of a signal from the equipment of the attorney served indicating that the transmission was received, and
the mailing of a copy of the paper to that attorney. The designation of a facsimile telephone number in the address
block subscribed on a paper served or filed in the course of an action or proceeding shall constitute consent to service
by facsimile transmission in accordance with this subdivision. An attorney may change or rescind a facsimile
telephone number by serving a notice on the other parties; [or]
6. by dispatching the paper to the attorney by overnight delivery service at the address designated by the attomey
for that purpose or, if none is designated, at the attorney's last known address. Service by overnight delivery service
shall be complete upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the
overnight delivery service for overnight delivery, prior to the latest time designated by the overnight delivery service
for overnight delivery. Where a period of time prescribed by law is measured from the service of a paper and
service is by overnight delivery, one business day shall be added to the prescribed period. "Overnight deliverf
service"
means any delivery service which regularly accepts items for overnight delivery to any address in the state;
or
7. by transmitting the paper to the attorney by electronic means where and in the manner authorized by the chief
administrator of the courts by rule and, unless such rule shall otherwise provide, such transmission shall be upon the
party's written consent. The subject matter heading for each paper sent by electronic means must indicate that the
matter being transmitted electronically is related to a court proceeding.
(c) Upon a party. If a party has not appeared by an attorney or the party's attorney cannot be served, service shall
be upon the party by a method specified in paragraph one, two, four, five or six of subdivision (b) of this rule.
(d) Filing. If a paper cannot be served by any of the methods specified in subdivisions (b) and (c), service may be
made by filing the paper as if it were a paper required to be filed.
(e) Parties to be served. Each paper served on any party shall be served on every other party who has appeared,
except as otherwise may be provided by court order or as provided in section 3012 or in subdivision (f) of section
321.5. Upon demand by a party, the plaintiff shall supply that party with a list of those who have appeared and the
names and addresses of their attorneys.
(f) Definitions. For the purposes of this rule:
"Mailing"
1. means the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address
designated by a person for that purpose or, if none is designated, at that person's last known address, in a post office
or official depository under the exclusive care and custody of the United States Postal Service within the United
States;
means"
2. "Electronic means any method of transmission of information between computers or other machines
designed for the purpose of sending and receiving such transmissions, and which allows the recipient to reproduce
the information transmitted in a tangible medium of expression;
transmission"
3. "Facsimile means any method of transmission of documents to a facsimile machine at a remote
location which can automatically produce a tangible copy of such documents.
" The "failure to give a party proper Notice of a Motion deprives the court of jurisdiction to entertain the
void"
motion and renders the resulting order (Citimortgage, Inc. v Reese, 162 AD3d 847, 848; see CPLR
2103[b]; U.S. Bank NA v Nakash, 195 AD3d 651).
" Further, The Affidavit of Service for the Notice of Motion for Default Judgment are clearly defective as it
fails to describe service that either Defendant [or) a person of suitable age and discretion/ authority who .
matched the description of anyone at subject premises that day. Plaintiff bears the burden of proving this by
a preponderance of the evidence. Without such a showing, this court does not have personal jurisdiction over
Defendant and, thus, both the default judgment and the case must be dismissed.
3. No prior application has been made for the relief sought herein except:
"None."
WHEREFORE, I respectfully request that this motion be granted, and that I have such other and further
relief as this Court may find to be just and proper.
VERIFICATION
Anthony Williams, being duly sworn, deposes and says:
I am the Defendant in the above-titled action. I have read the foregoing Affidavit in Support to Order to Show
Cause with T.R.O. in a Civil Action and know the contents thereof. The same is true to my knowledge, except as
to matters therein stated to be alleged on information and belief and as to those ters, I belief t em to be true.
Anthony Williams
Sworn to before me this
3rd
---- da
.
f April. -
2023
Notary
.ANNA USA
Pub!ic-
S. ENR1QUEZ
State of New York
Mo. 04EN6405207
x Qualified in Queens Coun
Commission Expiree March 2,
Notary Public
Supreme Court of State of New York
County of QUEENS
Bank of New.York Mellon,
Plaintiff(s)
v.
Index #: 703010-2015
Affidavit in Support of Notification
Anthony Williams, g.8
Defendant(s)
___________________________..................____Ç
Anthony Williams, being duly sworn deposes and says:
1. I reside at 200-16 116 Avenue St. Albans, N.Y. 11412
2. I am about to commence a special proceeding or submit an Order to Show Cause containing a stay and/or restraining order for:
a. Vacating/ reversing, staying default judgment.
3. I have notified my opposition to appear at the
Ex Parte Office, Room 140,
Supreme Court State of New York
County of QUEENS
88-11 Sutphin Boulevard
Jamaica, N.Y. 11435 .f
at 9Éf-aafli~on the ¶a.y.,oof , 2023 to co est'tlie3anneWd ap ication,
by calling/ faxing to phone # ; I sgiolte-to Reception Professional). I received
Acknowledgment from their eceptiU i PDsional. I contacted fliiffrat-1-2:30 pan. on April 3rd, 2023.
4. I believe there will be significant prejudice by giving notice because: If sub ject premises is allowed to be auctioned off, it will
lead to a great financial hardship for Defendant.
5. No prior application has been made for the relief sought herein except:
"None."
WHEREFORE, I respectfully request that this m
Preview
Supreme Court of State of New York County of QUEENS . PRESENT: HON Justice of the Supreme Court Index #: 703010-2015 E Bank of New York Mellon 1 O cm Plaintiff(s) Order to Show Cause d-a-d T.R.O. In Civil Action o a bA With Anthony Williams, g al . Defendant(s) Upon reading and filing the affidavit of Anthony Williams, sworn to on the 3gl day of April, 2023, and upon the Exhibit(s) attached to the affidavit, and Exhibit A: 1 E . . E it D: Queens Counts Clerk's Office Pasm 2971340 04/03/2023 2:579 Cashier ZASHRAF Resister 4 4 Tr.3669635 $45.00 Documents Pas At Court E-file 703010/2015 OTSC Total: $45.00 Cash $100.00 Chanse: $55.00 & Let the Plaintiff or their attorney show cause: at IAS Part , Room , of this Court, to be held at: Supreme Court of the State of New York County of QUEENS 88-11 Sutphin Boulevard, Jamaica, N.Y. 11435 On the day of 2023 at o'clock a.m./ p.m. or as soon as counsel may be heard why and order should not be made: 1 Vacating/ reversing the default judgment of foreclosure entered against Defendant, 2. Vacating/ reversing/ staying any and all auctions for subject premises, scheduled for on or around April 6, 2023, 3 Dismissing this action against Defendant with prejudice. Pending the hearing and determination of this motion, it is ORDERED that: 1. Vacating/ reversing the default judgment of foreclosure entered against Defendant, 2. Vacating/ reversing/ staying any and all auctions for subject premises, scheduled for on or around April 6, 3. Dismissing this action against Defendant with prejudice. And why Defendant should not have such other and further relief as may be just, proper and equitable. Sufficient cause appearing therefor, let personal service of a copy of this order, and the other papers upon which this order is granted, upon the Plaintiff or Attorney(s) for Plaintiff) by on or before the ___day of , E be deemed good and sufficient. An affidavit or other proof of service shall be presented to this Court on the return date directed in the second paragraph of this order. ENTER J.S.C. Supreme Court of State of New York County of QUEENS Bank of New York Mellon, .a Plaintiff(s)h 2,kq v. in C-- ¹½F Index #: 703010-2015 Emergency Affidavit Anthony Williams, _e_tal Defendant(s) _______________________________------------Ç I, Anthony Williams, am the Defendant in the above-named action/ special proceeding. I request immediate judicial review of my Order to Show Cause with a T.R.O. on the following grounds: " If the default judgment stands, it will lead to a great financial hardship for Defendant. . VERIFICATION Anthony Williams, being duly sworn, deposes and says: I am the Defendant in the above-titled action. I have read the foregoing Emergency Affidavit and know the contents thereof. The same is true to my knowledge, except as to matters therein stated to be alleged on information and belief and as to those matters, I belief them to be true. Anthony Williams Sworn to before me this ANNA USA S. ENRIQUEZ Notary Public - State of of April, 20 New York 3rd_day No.-04EN6405207 Qualified In Queens County Commission Expirec March 2, Notary Public " Go Forward Realty Mr. Gbenga Fadoju, Broker res: (718) 776-7200 Fax: (718) 776-7272 info@Goforwardrealty.com March 27, 2023 Ref; 0579479701 To Whom It May Concern: 116th My name is Anthony Williams owner of the ref #, a.k.a 200-16 Ave, St Albans, NY 11412. Needless to regurgitate the history of the subject note. But, I'm a very ill man who mostly spent substantial amount of time in the hospitals. One of the main caused of my sickness is stress, anxiety about whether I would have a shelter to live daily. I am offering $105,000.00 as short payoff for this note in totality of debt owe. If my offer is accepted. I'll need about ninety days to raise the funds through family members and well-wishers.. I strongly and humbly ask that you accept my offer, so, I can hopefully start to regain my strength and subsequently cure my illness. An ony Williams . Supreme Court of State of New York County of QUEENS 0MF %t Bank of New York Mellon, 4:- ya Plaintiff(s) eleA AS c a-P o9 et 9 C- . Index #: 703010-2015 Affidavit in Support Anthony Williams, et al Defendant(s) ___________________________________________Ç Anthony Williams being duly sworn deposes and says: 1. I am the Defendant in this action. I make this affidavit in support of my motion for an order: 1. Vacating/ reversing the default judgment of foreclosure entered against Defendant, 2. Vacating/ reversing/ staying any and all auctions for subject premises, scheduled for on or around April 6, 20.23, 3. Dismissing this action against Defendant with prejudice. . 2.·I believe the court should grant my motion because: 1. Bank of New York Mellon (hereinafter "Plaintiff") is the Plaintiff in this action. 2. Anthony Williams (hereinafter "Defendant") is tlie Defendant in this action. 3. Defendant(s) hereby denies all allegations in the Summons and Complaint. 4. Defendant(s) denies each and every allegation in the Summons and Complaint. 5. There is no privity of contact between Defendant and Plaintiff. 6. Defendant does not owe the amount alleged in the Summons and Complaint. 7. Plaintiff has not shown legal acquisition/title of the alleged loan note. Thus, Plaintiff does not have standing to bring this action. 8. There is a good-faith basis for Defendant's defense. 9. My son is in the military, and subject premises is his primary residence. Language to Vacate Default Judgment Affidavit in Support " Defendant(s) hereby denies all allegations in the Summons and Complaint. " Defendant(s) denies each and every allegation in the Summons and Complaint. " Defendant does not owe the amount alleged in the Summons and Complaint. " The American rule is that each side pays their own respective attorney fees and court costs. We request that each side in this matter pay their own respective attorney fees and court costs. " Statute of Limitations- the Statute of Limitations in this matter has tolled. " Laches- Defendant would be adversely affected by the length of time Plaintiff took in bringing and re- starting this lawsuit. Lack of Standing " Plaintiff has not shown legal acquisition/title of the alleged loan note. Thus, Plaintiff does not have standing to bring this action. " Plaintiff has failed to show that it has standing to commence this proceeding against Defendant. " There is no privity of contract between Defendant and Plaintiff. " Plaintiff has failed to show that it has legally acquired good title through the original note/loan holder. Plaintiff bears the burden of proving this by a preponderance of the evidence. Without such a showing, Plaintiff has no standing to bring this action against Defendant and the case must be dismissed. . . Lack of Personal Jurisdiction overDefendant due to Plaintiff's Defective Service of the Summons and Complaint " Plaintiff failed to serve Defendant with a copy of the Summons and Complaint as required by state statute (e.g. CPLR 308). " CPLR 308 provides in pertinent part: "Personal service upon a natural person shall be made by any of the following methods: 308(1) by delivering the summons within the state to the person to be served; [or] 308(2) by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to confidential" be served at his or her actual place of business in an envelope bearing the legend "personal and and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, ...; [or] 308(4) where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing confidential" the legend "personal and and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; ..." service shall be complete ten days after such filing [CPLR 308] " In this case, no good-faith attempt at personal service was made upon the Defendant(s), such as placing the Defendant(s)' Summons and Complaint in hands. [CPLR 308(1)] " In this case, no good-faith attempt at personal service was made upon a person of suitable age and discretion, such as placing the Summons and Complaint in a person of suitable age and discretion's hands. [CPLR 308(2)] " Because there was no good-faith attempt at personal service to either Defendant [or] a person of suitable age and discretion, any alleged attempt at affixing a copy of the Summons and Complaint to Defendant's door and mailing a copy of it to Defendant with proof of mailing [CPLR 308(4)] ["Nail and Mail"] ["Substituted Service"] were also defective. " Although the Affidavit of Service of the Plaintiffs Process Server in most cases, prima facie may constitute, evidence of valid service upon the defendant of the summons with notice pursuant to CPLR 308(1) (see US Bank N.A. v Ramos, 153 AD3d 882, 884; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589), this presumption can be rebutted/ overcome by Defendant by attacking the Affidavit of Service, itself, submitted by the Plaintiff's Process Server. " A mere conclusory denial of proper service is insufficient to rebut the presumption of proper service arising from the Process Server's Affidavit of Service (see Citimortgage, Inc. v Phillips, 82 AD3d 1032, 1033; Sturino v Nino Tripiechio & Son Landscaping, 65 AD3d 1327; 96 Pierrepont v Mauro, 304 AD2d 631) . " In this case, The Affidavit of Service for the Summons and Complaint is clearly defective as it fails to describe personal service to Defendant [CPLR 308(1)] [or] a person of suitable age and discretion/ authority [CPLR 308(2)] who matched the description of anyone at subject premises that day. " In this case, The Affidavit of Service for the Summons and Complaint is clearly defective as it fails to describe that Diligent attempts personal service to Defendant [or] a person of suitable age and discretion/ authority [CPLR 308(4)] by delivering the Summons and Complaint in their hands, prior to resorting to substituted service ("nail and mail") [CPLR 308(4)], by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the confidential" legend "personal and and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing. [CPLR 308(4)] " Plaintiff bears the burden of proving this by a preponderance of the evidence. " Without such a showing, this court does not have personal jurisdiction over Defendant and, thus, the entire case must be dismissed. Lack of Personal Jurisdiction over Defendant due to Plaintiff s Defective Service of the Notice of Motion for Default Judgment " Plaintiff failed to serve Defendant with a copy of the Notice of Motion for Default Judgment as required by state statute [e.g. CPLR 5015]. . " CPLR 5015 provides in pertinent part: "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, 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; [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. (b) On stipulation. The clerk of the court may vacate a default judgment entered pursuant to section 3215 upon the filing with him of a stipulation of consent to such vacatur by the parties personally or by their attorneys. (c) On application of an administrative judge. An administrative judge, upon a showing that default judgments were obtained by fraud, misrepresentation, illegality, unconscionability, lack of due service, violations of law, or other illegalities or where such default judgments were obtained in cases in which those defendants would be uniformly entitled to interpose a defense predicated upon but not limited to the foregoing defenses, and where such default judgments have been obtained in a number deemed sufficient by him to justify such action as set forth herein, and upon appropriate notice to counsel for the respective parties, or to the parties themselves, may bring a proceeding to relieve a party or parties from them upon such terms as may be just. The disposition of any proceeding so judge." instituted shall be determined by a judge other than the administrative " CPLR 2103 provides in pertinent part: CPLR Rule 2103. Service of papers (a) Who can serve. Except where otherwise prescribed by law or order of court, papers may be served by any person not a party of the age of eighteen years or over. (b) Upon an attorney. Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party's attorney. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. Such service upon an attorney shall be made: 1. by delivering the paper to the attorney personally; [or] 2. by mailing the paper to the attorney at the address designated by that attorney for that purpose or, if none is designated, at the attorney's last known address; service by mail shall be complete upon mailing; where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period if the mailing is made within the state and six days if the mailing is made from outside the state but within the geographic boundaries of the United States; [or] 3. if the attorney's office is open, by leaving the paper with a person in charge, or if no person is in charge, by leaving it in a conspicuous place; or if the attorney's office is not open, by depositing the paper, enclosed in a sealed wrapper directed to the attorney, in the attorney's office letter drop or box; [or] 4. by leaving it at the attorney's residence within the state with a person of suitable age and discretion. Service upon an attorney shall not be made at the attorney's residence unless service at the attorney's office cannot be made; [or] 5. by transmitting the paper to the attorney by facsimile transmission, provided that a facsimile telephone number is designated by the attorney for that purpose. Serviceby facsimile transmission shall be complete upon the receipt by the sender of a signal from the equipment of the attorney served indicating that the transmission was received, and the mailing of a copy of the paper to that attorney. The designation of a facsimile telephone number in the address block subscribed on a paper served or filed in the course of an action or proceeding shall constitute consent to service by facsimile transmission in accordance with this subdivision. An attorney may change or rescind a facsimile telephone number by serving a notice on the other parties; [or] 6. by dispatching the paper to the attorney by overnight delivery service at the address designated by the attomey for that purpose or, if none is designated, at the attorney's last known address. Service by overnight delivery service shall be complete upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the overnight delivery service for overnight delivery, prior to the latest time designated by the overnight delivery service for overnight delivery. Where a period of time prescribed by law is measured from the service of a paper and service is by overnight delivery, one business day shall be added to the prescribed period. "Overnight deliverf service" means any delivery service which regularly accepts items for overnight delivery to any address in the state; or 7. by transmitting the paper to the attorney by electronic means where and in the manner authorized by the chief administrator of the courts by rule and, unless such rule shall otherwise provide, such transmission shall be upon the party's written consent. The subject matter heading for each paper sent by electronic means must indicate that the matter being transmitted electronically is related to a court proceeding. (c) Upon a party. If a party has not appeared by an attorney or the party's attorney cannot be served, service shall be upon the party by a method specified in paragraph one, two, four, five or six of subdivision (b) of this rule. (d) Filing. If a paper cannot be served by any of the methods specified in subdivisions (b) and (c), service may be made by filing the paper as if it were a paper required to be filed. (e) Parties to be served. Each paper served on any party shall be served on every other party who has appeared, except as otherwise may be provided by court order or as provided in section 3012 or in subdivision (f) of section 321.5. Upon demand by a party, the plaintiff shall supply that party with a list of those who have appeared and the names and addresses of their attorneys. (f) Definitions. For the purposes of this rule: "Mailing" 1. means the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person's last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the United States; means" 2. "Electronic means any method of transmission of information between computers or other machines designed for the purpose of sending and receiving such transmissions, and which allows the recipient to reproduce the information transmitted in a tangible medium of expression; transmission" 3. "Facsimile means any method of transmission of documents to a facsimile machine at a remote location which can automatically produce a tangible copy of such documents. " The "failure to give a party proper Notice of a Motion deprives the court of jurisdiction to entertain the void" motion and renders the resulting order (Citimortgage, Inc. v Reese, 162 AD3d 847, 848; see CPLR 2103[b]; U.S. Bank NA v Nakash, 195 AD3d 651). " Further, The Affidavit of Service for the Notice of Motion for Default Judgment are clearly defective as it fails to describe service that either Defendant [or) a person of suitable age and discretion/ authority who . matched the description of anyone at subject premises that day. Plaintiff bears the burden of proving this by a preponderance of the evidence. Without such a showing, this court does not have personal jurisdiction over Defendant and, thus, both the default judgment and the case must be dismissed. 3. No prior application has been made for the relief sought herein except: "None." WHEREFORE, I respectfully request that this motion be granted, and that I have such other and further relief as this Court may find to be just and proper. VERIFICATION Anthony Williams, being duly sworn, deposes and says: I am the Defendant in the above-titled action. I have read the foregoing Affidavit in Support to Order to Show Cause with T.R.O. in a Civil Action and know the contents thereof. The same is true to my knowledge, except as to matters therein stated to be alleged on information and belief and as to those ters, I belief t em to be true. Anthony Williams Sworn to before me this 3rd ---- da . f April. - 2023 Notary .ANNA USA Pub!ic- S. ENR1QUEZ State of New York Mo. 04EN6405207 x Qualified in Queens Coun Commission Expiree March 2, Notary Public Supreme Court of State of New York County of QUEENS Bank of New.York Mellon, Plaintiff(s) v. Index #: 703010-2015 Affidavit in Support of Notification Anthony Williams, g.8 Defendant(s) ___________________________..................____Ç Anthony Williams, being duly sworn deposes and says: 1. I reside at 200-16 116 Avenue St. Albans, N.Y. 11412 2. I am about to commence a special proceeding or submit an Order to Show Cause containing a stay and/or restraining order for: a. Vacating/ reversing, staying default judgment. 3. I have notified my opposition to appear at the Ex Parte Office, Room 140, Supreme Court State of New York County of QUEENS 88-11 Sutphin Boulevard Jamaica, N.Y. 11435 .f at 9Éf-aafli~on the ¶a.y.,oof , 2023 to co est'tlie3anneWd ap ication, by calling/ faxing to phone # ; I sgiolte-to Reception Professional). I received Acknowledgment from their eceptiU i PDsional. I contacted fliiffrat-1-2:30 pan. on April 3rd, 2023. 4. I believe there will be significant prejudice by giving notice because: If sub ject premises is allowed to be auctioned off, it will lead to a great financial hardship for Defendant. 5. No prior application has been made for the relief sought herein except: "None." WHEREFORE, I respectfully request that this m