Preview
FILED: BRONX COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 302445/2014E
NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 04/05/2023
File No.: 21483
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
----------------------------------------------------------------------X
PIERISIA GONZALEZ,
AFFIRMATION IN
Plaintiff, SUPPORT
-against-
Index No.: 302445/2014
ARKA LOUNGE, TRIO’S CAFÉ & LOUNGE, INC.,
KISHA ESPINAL-LANTIGUA and JOHN
CATSIMATIDIS,
Defendants.
----------------------------------------------------------------------X
BIANCA CACACE, ESQ., duly admitted to practice law in the Courts of the State of New
York, hereby affirms under the penalties of perjury pursuant to CPLR §2106:
1. That I am associated with Subin Associates, LLP, the attorneys for the Plaintiff,
PIERISIA GONZALEZ (“Plaintiff”), and, as such, I am familiar with the facts and
circumstances herein, except as to those alleged upon information and belief, and as to
those I verily believe them to be true.
2. That I make this Affirmation in Support of Plaintiff's motion for an Order: (1) vacating
this Court’s Order, dated March 30, 2023; and (2) for such other and further relief in
favor of the Plaintiff as to this Honorable Court may seem just and proper.
3. That this is an action by Plaintiff to recover for serious personal injuries suffered as a
result of Defendants’ negligence arising from a slip and fall on February 17, 2014.
4. On or about March 20, 2014, Plaintiff initiated this action by filing a Summons and
Complaint. (See, Summons and Complaint, annexed hereto as Exhibit “A”).
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5. Defendants originally failed to serve Answers to the Complaint and therefore, a Default
Judgment was entered against all Defendants, on or about May 27, 2015. (See, Default
Judgment Order, annexed hereto as Exhibit “B”).
6. An Inquest was held on January 23, 2018 and a Judgment was awarded to Plaintiff in
the amount of $760,000.00. (See, Judgment Order with Notice of Entry, annexed hereto
as Exhibit “C”).
7. On or about January 6, 2021, Plaintiff and Defendant, JOHN CASTIMATIDIS,
stipulated to vacate the Default and the Judgment against Defendant. On or about
December 6, 2021, parties entered into another Stipulation which vacated the Default
and Judgment against the remaining Defendants. (See, Stipulations, annexed hereto
collectively as Exhibit “D”).
8. On January 6, 2021, Defendants, KISHA ESPINAL-LANTIGUA and TRIO’S
CAFÉ & LOUNGE INC. served their Verified Answers. On January 21, 2021,
Defendant, JOHN CATSIDMATIDIS, served his Verified Answer. (See, Verified
Answers, annexed hereto collectively as Exhibit “E”).
9. On or about September 14, 2022, parties agreed to a Preliminary Conference Order,
annexed hereto as Exhibit “F”.
10. Plaintiff’s deposition was completed on December 5, 2022.
11. On or about January 17, 2023, Defense Counsel, Clifford Greene, filed an Order to
Show Cause to be relieved as Counsel for Defendants, KISHA ESPINAL-
LANTIGUA and TRIO’S CAFÉ & LOUNGE INC. This Court signed an Amended
Order to Show Cause for parties to appear on March 22, 2023. (See, Amended Order
to Affirmation in Support, annexed hereto as Exhibit “G”).
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12. On March 27, 2023, parties appeared in front of this Court and entered into a
Stipulation. (See, Stipulation, dated March 27, 2023, annexed hereto as Exhibit “H”).
Pursuant to this Stipulation, Defendant, KISHA ESPINAL-LANTIGUA, was
discontinued from this action and Clifford Greene, Esq. agreed to withdraw his pending
Order to Show Cause to be relieved as counsel.
13. On March 30, 2023, this Court issued an Order granting Defense Counsel, Clifford
Greene’s Order to Show Cause to be relieved as counsel as to Defendant, TRIO’S
CAFÉ & LOUNGE INC. (See, Decision dated March 30, 2023, annexed hereto as
Exhibit “I”).
PLAINTIFF’S MOTION TO VACATE THE MARCH 30, 2023
DECISION SHOULD BE GRANTED
14. Statutory authority for vacating a judgment or an Order in general is found in CPLR
5015(a) (Levine v. Berlin, 46 AD2d 902 [2d Dept 1974]; Brenner v. Arterial Plaza,
Inc., 29 AD2d 815 [3d Dept 1968]; 5 Weinstein-Korn-Miller, NY CivPrac, ¶ 5015.04),
which provides in pertinent part as follows:
Rule 5015. 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
was 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
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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. In addition,
it is well settled that a court has inherent power, not limited by the
provisions of CPLR 5015, to set aside a default judgment in the interests
of justice (Ladd v. Stevenson,112 NY 325, 332 [1889]; Michaud v.
Loblaws, Inc., 36 AD2d 1013 [4 Dept 1971]; 5 Weinstein-Korn-Miller,
NY CivPrac ¶ 5015.12).
15. The statutory list of grounds for vacating orders and judgments under CPLR 5015 is
not necessarily exhaustive despite the absence of a catch-all paragraph. A court may
vacate its own orders or judgments, for instance, for sufficient reason and in the
interests of substantial justice (Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 760
N.Y.S.2d 727, 790 N.E.2d 1156 [2003]; JP Morgan Chase Bank, National Association
v Dev, 176 A.D.3d 691, 110 N.Y.S.3d 127 [2nd Dep't. 2019]; 40 BP, LLC v Katatikarn,
147 A.D.3d 710, 46 N.Y.S.3d 217 [2nd Dep't. 2017]).
16. The Stipulation entered into by parties and signed by this Court on March 27, 2023,
thereby withdrew Defense Counsel’s Order to Show Cause that was pending. The Court
then issued an Order on March 30, 2023, which granted Defense Counsel’s Order to
Show Cause, which is in direct conflict with the Stipulation.
17. Plaintiff hereby respectfully requests that this Court vacate the Decision on the Order
to Show Cause in the interest of substantial justice.
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WHEREFORE, it is respectfully requested that the within motion be granted in all
respects, and for such other and further relief as to this Honorable Court may seem just and proper.
Dated: New York, New York
April 5, 2023
U|tÇvt Vtvtvx
Bianca Cacace, Esq.
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Preview
FILED: BRONX COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 302445/2014E NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 04/05/2023 File No.: 21483 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------------------X PIERISIA GONZALEZ, AFFIRMATION IN Plaintiff, SUPPORT -against- Index No.: 302445/2014 ARKA LOUNGE, TRIO’S CAFÉ & LOUNGE, INC., KISHA ESPINAL-LANTIGUA and JOHN CATSIMATIDIS, Defendants. ----------------------------------------------------------------------X BIANCA CACACE, ESQ., duly admitted to practice law in the Courts of the State of New York, hereby affirms under the penalties of perjury pursuant to CPLR §2106: 1. That I am associated with Subin Associates, LLP, the attorneys for the Plaintiff, PIERISIA GONZALEZ (“Plaintiff”), and, as such, I am familiar with the facts and circumstances herein, except as to those alleged upon information and belief, and as to those I verily believe them to be true. 2. That I make this Affirmation in Support of Plaintiff's motion for an Order: (1) vacating this Court’s Order, dated March 30, 2023; and (2) for such other and further relief in favor of the Plaintiff as to this Honorable Court may seem just and proper. 3. That this is an action by Plaintiff to recover for serious personal injuries suffered as a result of Defendants’ negligence arising from a slip and fall on February 17, 2014. 4. On or about March 20, 2014, Plaintiff initiated this action by filing a Summons and Complaint. (See, Summons and Complaint, annexed hereto as Exhibit “A”). 1 of 5 FILED: BRONX COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 302445/2014E NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 04/05/2023 5. Defendants originally failed to serve Answers to the Complaint and therefore, a Default Judgment was entered against all Defendants, on or about May 27, 2015. (See, Default Judgment Order, annexed hereto as Exhibit “B”). 6. An Inquest was held on January 23, 2018 and a Judgment was awarded to Plaintiff in the amount of $760,000.00. (See, Judgment Order with Notice of Entry, annexed hereto as Exhibit “C”). 7. On or about January 6, 2021, Plaintiff and Defendant, JOHN CASTIMATIDIS, stipulated to vacate the Default and the Judgment against Defendant. On or about December 6, 2021, parties entered into another Stipulation which vacated the Default and Judgment against the remaining Defendants. (See, Stipulations, annexed hereto collectively as Exhibit “D”). 8. On January 6, 2021, Defendants, KISHA ESPINAL-LANTIGUA and TRIO’S CAFÉ & LOUNGE INC. served their Verified Answers. On January 21, 2021, Defendant, JOHN CATSIDMATIDIS, served his Verified Answer. (See, Verified Answers, annexed hereto collectively as Exhibit “E”). 9. On or about September 14, 2022, parties agreed to a Preliminary Conference Order, annexed hereto as Exhibit “F”. 10. Plaintiff’s deposition was completed on December 5, 2022. 11. On or about January 17, 2023, Defense Counsel, Clifford Greene, filed an Order to Show Cause to be relieved as Counsel for Defendants, KISHA ESPINAL- LANTIGUA and TRIO’S CAFÉ & LOUNGE INC. This Court signed an Amended Order to Show Cause for parties to appear on March 22, 2023. (See, Amended Order to Affirmation in Support, annexed hereto as Exhibit “G”). 2 of 5 FILED: BRONX COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 302445/2014E NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 04/05/2023 12. On March 27, 2023, parties appeared in front of this Court and entered into a Stipulation. (See, Stipulation, dated March 27, 2023, annexed hereto as Exhibit “H”). Pursuant to this Stipulation, Defendant, KISHA ESPINAL-LANTIGUA, was discontinued from this action and Clifford Greene, Esq. agreed to withdraw his pending Order to Show Cause to be relieved as counsel. 13. On March 30, 2023, this Court issued an Order granting Defense Counsel, Clifford Greene’s Order to Show Cause to be relieved as counsel as to Defendant, TRIO’S CAFÉ & LOUNGE INC. (See, Decision dated March 30, 2023, annexed hereto as Exhibit “I”). PLAINTIFF’S MOTION TO VACATE THE MARCH 30, 2023 DECISION SHOULD BE GRANTED 14. Statutory authority for vacating a judgment or an Order in general is found in CPLR 5015(a) (Levine v. Berlin, 46 AD2d 902 [2d Dept 1974]; Brenner v. Arterial Plaza, Inc., 29 AD2d 815 [3d Dept 1968]; 5 Weinstein-Korn-Miller, NY CivPrac, ¶ 5015.04), which provides in pertinent part as follows: Rule 5015. 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 was 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 3 of 5 FILED: BRONX COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 302445/2014E NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 04/05/2023 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. In addition, it is well settled that a court has inherent power, not limited by the provisions of CPLR 5015, to set aside a default judgment in the interests of justice (Ladd v. Stevenson,112 NY 325, 332 [1889]; Michaud v. Loblaws, Inc., 36 AD2d 1013 [4 Dept 1971]; 5 Weinstein-Korn-Miller, NY CivPrac ¶ 5015.12). 15. The statutory list of grounds for vacating orders and judgments under CPLR 5015 is not necessarily exhaustive despite the absence of a catch-all paragraph. A court may vacate its own orders or judgments, for instance, for sufficient reason and in the interests of substantial justice (Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003]; JP Morgan Chase Bank, National Association v Dev, 176 A.D.3d 691, 110 N.Y.S.3d 127 [2nd Dep't. 2019]; 40 BP, LLC v Katatikarn, 147 A.D.3d 710, 46 N.Y.S.3d 217 [2nd Dep't. 2017]). 16. The Stipulation entered into by parties and signed by this Court on March 27, 2023, thereby withdrew Defense Counsel’s Order to Show Cause that was pending. The Court then issued an Order on March 30, 2023, which granted Defense Counsel’s Order to Show Cause, which is in direct conflict with the Stipulation. 17. Plaintiff hereby respectfully requests that this Court vacate the Decision on the Order to Show Cause in the interest of substantial justice. 4 of 5 FILED: BRONX COUNTY CLERK 04/05/2023 03:42 PM INDEX NO. 302445/2014E NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 04/05/2023 WHEREFORE, it is respectfully requested that the within motion be granted in all respects, and for such other and further relief as to this Honorable Court may seem just and proper. Dated: New York, New York April 5, 2023 U|tÇvt Vtvtvx Bianca Cacace, Esq. 5 of 5