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FILED: QUEENS COUNTY CLERK 04/04/2023 10:25 PM INDEX NO. 707343/2016
NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 04/04/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
MARCELO LEMA, Queens Index no. 707343/2016
Plaintiff – Judgment Creditor, Motion Seq. No. [4]
– against –
PAN LINK CONSTRUCTION, INC.,
Defendant, and
SSW REALTY LLC,
Defendant – Judgment Debtor.
PLEASE TAKE NOTICE that an Order, a true copy of which is attached hereto
as Exhibit A, was duly entered in the Office of the Clerk of the Court, Supreme Court of
the State of New York, County of Queens, on April 3, 2023.
Dated: April 4, 2023
POLLOCK COHEN LLP
By: /s/ Adam Pollock
Adam Pollock
111 Broadway, Ste. 1804
New York, NY 10006
(212) 337-5361
Adam@PollockCohen.com
Counsel for Plaintiff – Judgment
Creditor
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Exhibit A
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SHORT FORM ORDER
NEW YORK STATE SUPREME COURT - QUEENS COUNTY
Present: Honorable Leonard Livote lAS Part 33
Supreme Court Justice
______________________- ---------~x
MARCELO LEMA, Index No.: 707343/2016
Plaintiff,
-against- Motion Date: 1/24/2023
PAN LINK CONSTRUCTION, INC. and
SSW REALTYLLC, Seq: #4
_________________________
~__~
.Defendants. rX
The following papers numbered 1 - 9 below read on this motion by
Defendant for the Plaintjff, Marcelo Lema, to show cause, why an Order should
not be made granting:
a. pursuant to CPLR 95015(a), vacating the previously entered Default
Judgment against Pan Link Construction, Inc.;
b. pursuant to CPLR995015(a), 317 and 2004, extending Defendants' time to
. answer or move with respect to Plaintiffs Complaint, or in the alternative,
'pursuant to CPLR 93215(c), dismissing Plaintiffs Complaint for failure to
take proceedings for entry of default , within one year of Pan Link's
purported defaults; and
c. pursuant to CPLR 92201, staying enforcement of the 'Money Judgment and
the execution thereof with respect to Pan Link's assets pending a
determination on the instant motion, such that any restraining notices
against Pan Link's banking accounts by reason of the Money Judgment be
lifted; and
, ,
d. pursuant to' CPLR 996301 and 6311 preliminarily enjoining Plaintiff from
I enforcing or seeking to enforce any restrains with respect to any banking or
other accounts of Pan Link, and further enjoining Plaintiff from engaging in
any other attempts to freeze, restrain, seize, take control of, or otherwise
interfere with any of Pan Link's assets.
PAPERS
'NUMBERED
Notice of Motion, Affirmation, Affidavits
and Exhibits............................................................................
!
1-4
1
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Cross Motion, Affirmation, Affidavits
and Exhibits .
Answering Affirmations, Affidavits
And Exhibits.... 5-7
Reply Affirmations, Affidavits
And Exhibits.............................................................................. 8-9
Other .
Upon the foregoing papers, the motion is determined as follows:
On June 18, 2015, plaintiff was injured while working at a construction site.
This case was filed on June 22, 2016 and service was made, via the Secretary of
State, the next day. Pan Link's business address at the time of the commencement
of this action was 29 Beach Road, Great Neck, New York 11023.0n June 29,
2017, Plaintiff's former counsel sent a letter via certified mail to Pan Link asking
the company to answer Plaintiff's complaint to avoid a default judgment. On July
10, 2017, Plaintiff's former counsel sent another notice, again by certified mail,
enclosing a new copy of the summons and complaint. This mailing was signed for.
Although return receipt does not contain the printed name of the person who
signed the receipt, Dan Liu, defendant's principal, does not specifically deny that
it is his signature on the return receipt. Defendant was notified a fourth time when
Plaintiff's former counsel sent its first default judgment motion to the 29 Beach
Road address on August 23,2017. Defendant was notified a fifth time when
Plaintiff's former counsel sent its second default judgment motion to the 29 Beach
Road address. Defendant was notified a sixth time when Plaintiff's former counsel
sent its third default judgment motion to the 29 Beach Road address. Defendant
was notified a seventh time when Plaintiff's former counsel sent the note of issue
to the 29 Beach Road address. Pan Link moved to its new business address of
65-47 171" Street, Fresh Meadows, New York on or about September 12,2020.
Movant's codefendant SSW Realty, LLC, filed its answer on December 23,
2016. On or about August 23,2017, Plaintiff filed a motion seeking a default
judgment against Pan Link. On October 25, 2017, Counsels for Plaintiff and
co-defendant SSW Realty LLC entered into a Stipulation, which was So-Ordered
by Honorable Diccia T. Pineda-Kirwan, J.S.C., and Plaintiffs motion for default
judgment was withdrawn without prejudice against both defendants.
On or about November 10, 2017, Plaintiff filed a second motion for a
default judgment against Pan Link, returnable on December 1, 2017. The second
motion for a default judgment was marked off the motion calendar.
On December 15,2017, Plaintiff filed a third motion for a default judgment
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against Pan Link. By short form order of the Honorable Diccia T. Pineda-Kirwan,
J.S.C. dated March 1,2018, and entered March 14,2018, this Court denied
Plaintiffs third motion for default judgment against Pan Link on the ground that
Plaintiffs Verified Complaint was verified by counsel rather than the Plaintiff and
the affirmation from Plaintiffs counsel is insufficient to meet the evidentiary
burden to support entry of the default judgment.
The matter was set for trial on December 18, 2019 . Neither Pan Link nor
the co-defendant SSW Realty LLC appeared at the trial, and by Order of the
Honorable David Elliot, J.S.C. dated December 18,2019, codefendant SSW
Realty LLC's answer was stricken, and the action was set for inquest on March 18,
2020.
The Court held an inquest hearing on November 5, 2021 and ordered the
entry of a verdict of $3,000,000. (Dkt. no. 43.) On November 22,2022, following
the inquest, the Court signed the Judgment of the sum of $3,000,000 plus interest
from June 18,2015, in the amount of$2,008,356.16, together with costs and
disbursements as taxed by the Clerk in the sums of$835 and $1,107, totaling to
$5,010,298.16.
In the instant case, Pan Link was never adjudged to be in default.
Accordingly, the judgment must be vacated as against Pan Link.
Pan Link also moves to dismiss the action pursuant to CPLR S3215( c), for
plaintiff's failure to take proceedings for entry of default within one year of Pan
Link's default. Pursuant to CPLR 3215( c), if a plaintiff "fails to take proceedings
for the entry of judgment within one year after the default, the court shall not enter
judgment but shall dismiss the complaint as abandoned, without costs, upon its
own initiative or on motion, unless sufficient cause is shown why the complaint
should not be dismissed" (see Iorizzo v. Mattikow, 25 A.D.3d 762, 763). In the
instant case, the numerous letters sent to Pan Link constitute both "proceedings
and "sufficient cause" under the statute. Accordingly, this branch of the motion is
denied.
Pan Link further moves further moves to extend its time to answer. To
"compel the plaintiff to accept an untimely answer as timely, a defendant must
provide a reasonable excuse for the delay and demonstrate a potentially
meritorious defense to the action." (Ryan v. Breezy Point Coop., Inc., 76 A.D.3d
523, 524, 904 N.Y.S.2d 910, HSBC Bank USA, NA. v Cayo, 34 Mise 3d 850, 854
[Sup Ct 2011]). In the instant case, Pan Link failed to provide a reasonable excuse.
Pan Link avers that it never received process nor any other notification of this
case. This is belied by numerous letters sent to Pan Link, one of which was signed
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for. Accordingly, this branch of the motion is' denied.
Upon the foregoing papers, it is,-
ORDERED, that the Judgment signed on November 22, 2022, and entered
on November 23,2022, is vacated as against defendant Pan Link Const~ction Inc.
Any other and/of further relief requested and not specifically addressed is
denied.
This constitutes the Order of the Court.
Dated: March 28, 2023
"\
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FILED: QUEENS COUNTY CLERK 04/04/2023 10:25 PM INDEX NO. 707343/2016 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 04/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS MARCELO LEMA, Queens Index no. 707343/2016 Plaintiff – Judgment Creditor, Motion Seq. No. [4] – against – PAN LINK CONSTRUCTION, INC., Defendant, and SSW REALTY LLC, Defendant – Judgment Debtor. PLEASE TAKE NOTICE that an Order, a true copy of which is attached hereto as Exhibit A, was duly entered in the Office of the Clerk of the Court, Supreme Court of the State of New York, County of Queens, on April 3, 2023. Dated: April 4, 2023 POLLOCK COHEN LLP By: /s/ Adam Pollock Adam Pollock 111 Broadway, Ste. 1804 New York, NY 10006 (212) 337-5361 Adam@PollockCohen.com Counsel for Plaintiff – Judgment Creditor 1 of 6 FILED: QUEENS COUNTY CLERK 04/04/2023 10:25 PM INDEX NO. 707343/2016 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 04/04/2023 Exhibit A 2 of 6 FILED: QUEENS COUNTY CLERK 04/04/2023 04/03/2023 10:25 10:43 PM AM INDEX NO. 707343/2016 NYSCEF DOC. NO. 103 102 RECEIVED NYSCEF: 04/04/2023 04/03/2023 SHORT FORM ORDER NEW YORK STATE SUPREME COURT - QUEENS COUNTY Present: Honorable Leonard Livote lAS Part 33 Supreme Court Justice ______________________- ---------~x MARCELO LEMA, Index No.: 707343/2016 Plaintiff, -against- Motion Date: 1/24/2023 PAN LINK CONSTRUCTION, INC. and SSW REALTYLLC, Seq: #4 _________________________ ~__~ .Defendants. rX The following papers numbered 1 - 9 below read on this motion by Defendant for the Plaintjff, Marcelo Lema, to show cause, why an Order should not be made granting: a. pursuant to CPLR 95015(a), vacating the previously entered Default Judgment against Pan Link Construction, Inc.; b. pursuant to CPLR995015(a), 317 and 2004, extending Defendants' time to . answer or move with respect to Plaintiffs Complaint, or in the alternative, 'pursuant to CPLR 93215(c), dismissing Plaintiffs Complaint for failure to take proceedings for entry of default , within one year of Pan Link's purported defaults; and c. pursuant to CPLR 92201, staying enforcement of the 'Money Judgment and the execution thereof with respect to Pan Link's assets pending a determination on the instant motion, such that any restraining notices against Pan Link's banking accounts by reason of the Money Judgment be lifted; and , , d. pursuant to' CPLR 996301 and 6311 preliminarily enjoining Plaintiff from I enforcing or seeking to enforce any restrains with respect to any banking or other accounts of Pan Link, and further enjoining Plaintiff from engaging in any other attempts to freeze, restrain, seize, take control of, or otherwise interfere with any of Pan Link's assets. PAPERS 'NUMBERED Notice of Motion, Affirmation, Affidavits and Exhibits............................................................................ ! 1-4 1 1 of 6 3 4 FILED: QUEENS COUNTY CLERK 04/04/2023 04/03/2023 10:25 10:43 PM AM INDEX NO. 707343/2016 NYSCEF DOC. NO. 103 102 RECEIVED NYSCEF: 04/04/2023 04/03/2023 Cross Motion, Affirmation, Affidavits and Exhibits . Answering Affirmations, Affidavits And Exhibits.... 5-7 Reply Affirmations, Affidavits And Exhibits.............................................................................. 8-9 Other . Upon the foregoing papers, the motion is determined as follows: On June 18, 2015, plaintiff was injured while working at a construction site. This case was filed on June 22, 2016 and service was made, via the Secretary of State, the next day. Pan Link's business address at the time of the commencement of this action was 29 Beach Road, Great Neck, New York 11023.0n June 29, 2017, Plaintiff's former counsel sent a letter via certified mail to Pan Link asking the company to answer Plaintiff's complaint to avoid a default judgment. On July 10, 2017, Plaintiff's former counsel sent another notice, again by certified mail, enclosing a new copy of the summons and complaint. This mailing was signed for. Although return receipt does not contain the printed name of the person who signed the receipt, Dan Liu, defendant's principal, does not specifically deny that it is his signature on the return receipt. Defendant was notified a fourth time when Plaintiff's former counsel sent its first default judgment motion to the 29 Beach Road address on August 23,2017. Defendant was notified a fifth time when Plaintiff's former counsel sent its second default judgment motion to the 29 Beach Road address. Defendant was notified a sixth time when Plaintiff's former counsel sent its third default judgment motion to the 29 Beach Road address. Defendant was notified a seventh time when Plaintiff's former counsel sent the note of issue to the 29 Beach Road address. Pan Link moved to its new business address of 65-47 171" Street, Fresh Meadows, New York on or about September 12,2020. Movant's codefendant SSW Realty, LLC, filed its answer on December 23, 2016. On or about August 23,2017, Plaintiff filed a motion seeking a default judgment against Pan Link. On October 25, 2017, Counsels for Plaintiff and co-defendant SSW Realty LLC entered into a Stipulation, which was So-Ordered by Honorable Diccia T. Pineda-Kirwan, J.S.C., and Plaintiffs motion for default judgment was withdrawn without prejudice against both defendants. On or about November 10, 2017, Plaintiff filed a second motion for a default judgment against Pan Link, returnable on December 1, 2017. The second motion for a default judgment was marked off the motion calendar. On December 15,2017, Plaintiff filed a third motion for a default judgment 2 2 of 6 4 4 FILED: QUEENS COUNTY CLERK 04/04/2023 04/03/2023 10:25 10:43 PM AM INDEX NO. 707343/2016 NYSCEF DOC. NO. 103 102 RECEIVED NYSCEF: 04/04/2023 04/03/2023 against Pan Link. By short form order of the Honorable Diccia T. Pineda-Kirwan, J.S.C. dated March 1,2018, and entered March 14,2018, this Court denied Plaintiffs third motion for default judgment against Pan Link on the ground that Plaintiffs Verified Complaint was verified by counsel rather than the Plaintiff and the affirmation from Plaintiffs counsel is insufficient to meet the evidentiary burden to support entry of the default judgment. The matter was set for trial on December 18, 2019 . Neither Pan Link nor the co-defendant SSW Realty LLC appeared at the trial, and by Order of the Honorable David Elliot, J.S.C. dated December 18,2019, codefendant SSW Realty LLC's answer was stricken, and the action was set for inquest on March 18, 2020. The Court held an inquest hearing on November 5, 2021 and ordered the entry of a verdict of $3,000,000. (Dkt. no. 43.) On November 22,2022, following the inquest, the Court signed the Judgment of the sum of $3,000,000 plus interest from June 18,2015, in the amount of$2,008,356.16, together with costs and disbursements as taxed by the Clerk in the sums of$835 and $1,107, totaling to $5,010,298.16. In the instant case, Pan Link was never adjudged to be in default. Accordingly, the judgment must be vacated as against Pan Link. Pan Link also moves to dismiss the action pursuant to CPLR S3215( c), for plaintiff's failure to take proceedings for entry of default within one year of Pan Link's default. Pursuant to CPLR 3215( c), if a plaintiff "fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed" (see Iorizzo v. Mattikow, 25 A.D.3d 762, 763). In the instant case, the numerous letters sent to Pan Link constitute both "proceedings and "sufficient cause" under the statute. Accordingly, this branch of the motion is denied. Pan Link further moves further moves to extend its time to answer. To "compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action." (Ryan v. Breezy Point Coop., Inc., 76 A.D.3d 523, 524, 904 N.Y.S.2d 910, HSBC Bank USA, NA. v Cayo, 34 Mise 3d 850, 854 [Sup Ct 2011]). In the instant case, Pan Link failed to provide a reasonable excuse. Pan Link avers that it never received process nor any other notification of this case. This is belied by numerous letters sent to Pan Link, one of which was signed 3 3 of 6 5 4 FILED: QUEENS COUNTY CLERK 04/04/2023 04/03/2023 10:25 10:43 PM AM INDEX NO. 707343/2016 NYSCEF DOC. NO. 103 102 RECEIVED NYSCEF: 04/04/2023 04/03/2023 for. Accordingly, this branch of the motion is' denied. Upon the foregoing papers, it is,- ORDERED, that the Judgment signed on November 22, 2022, and entered on November 23,2022, is vacated as against defendant Pan Link Const~ction Inc. Any other and/of further relief requested and not specifically addressed is denied. This constitutes the Order of the Court. Dated: March 28, 2023 "\ 4 4 of 6 6 4