Preview
FILED: QUEENS COUNTY CLERK 05/04/2023 11:24 AM INDEX NO. 707343/2016
NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 05/04/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
MARCELO LEMA,
Index No.: 707343/2016
Plaintiff,
-against-
NOTICE OF
CROSS-APPEAL
PAN LINK CONSTRUCTION, INC. and
SSW REALTY LLC,
Defendants.
PLEASE TAKE NOTICE, that the Defendant, SSW REALTY LLC,, through its
Attorneys THE LAW OFFICES OF ROBERT W. NAPOLES, hereby appeals to the Appellate
Division of the Supreme Court of the State of New York, Second Judicial Department, from the
attached Order of the Hon. Leonard Livote, dated March 28th, 2023, and entered with the Clerk
of the Court on April 4, 2023, and from each and every part thereof.
Dated: Astoria, New York
May 4, 2023.
LAW OFFICES OF ROBERT W. NAPOLES.
By: Robert W. Napoles, Esq.
Attorney for Defendant
SSW REALTY LLC
31-19 Newtown Avenue, Suite 901
Astoria, New York 11102
(718) 764-8380
rnapoles@napoleslawfirm.com
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NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 05/04/2023
To: (Service via NYSECF)
POLLOCK COHEN LLP
111 Broadway, Ste. 1804
New York, NY 10006
(212) 337-5361
Adam@PollockCohen.com
Demidchik Law Firm PLLC
136-18 39th Avenue 8th F1
Flushing, NY 11354
(718) 255-9898
lori@dcklawfirm.com
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9upreme Gourt at tile 9tate at New Barle
Appellate Btutsina: Second flubirtal Bepartment
Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil
[a])
For Comt of Original Instance
MARCELO LEMA
Date Notice of Appeal Filed
- against -
PAN LINK CONSTRUCTION, INC. and .
For Appellate Division
SSW REALTY LLC,
Civil Action O CPLR article 78 Proceeding E Appeal O Transferred Proceeding
O CPLR article 75 Arbitration O Special Proceeding Other O Original Proceedings O CPLR Article 78
O Action Commenced under CPLR 214-8 O CPLR Article 78 O Faecutive Law § 298
O Habeas Corpus Proceeding
O Eminent Domain CPLR 5704 Review
O Labor Law 220 or 220-b
O Public Officers Iaw § 36
O Real Property Tax Iaw § 1278
O Administrative Review O Business Relationships O Commercial O Contracts
O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters
O Family Court O Mortgage Foreclosure O Miscellaneous O Prisoner Discipline & Parole
O Real Property O Statutory O Taxation E Torts
(other than foreclosure)
Informational Statement - CMI
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NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 05/04/2023
Paper Appealed From (Check one only): If an appeal has been taken from more than one order or
judgment by the filing of this notice of appeal, please
indicate the below information for each such order or
judgment appealed from on a separate sheet of paper.
O Amended Decree O Determination Order O Resettled Order
O Amended Judgement O Finding O Order & Judgment O Ruling
O Amended Order O Interlocutory Decree O Partial Decree O Other (specify):
O Decision O interlocutory Judgment O Resettled Decree
O Decree E Judgment O Resettled Judgment
Court: Supreme Court County: Queens
Dated: 03/28/2923 Entered: 4/4/2023
Judge (name in full): Hon. Leonard Livote Index No.: f U104d/2U I O
Stage: O Interlocutory Final O Post-Final Trial: O Yes B No If Yes: O Jury O Non-Jury
Prior Unperfected Appeal and Related Case Information
Are any appeals arising in the same action or proceeding currently pending in the court? G Yes O No
If Yes, please set forth the Appellate Division Case Number assigned to each such appeal.
2023-00765 There is also an appeal by Plaintiff of the same order herein.
Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other
jurisdiction, and if so, the status of the case:
MARCELO LEMA,Plaintiff - Judgment V.GUANG DENG ZHIYlNG AND
Creditor, SHI, SHI,
JINSHOU WANG, INDEX NO. 510259/2023 Pleadings stage
Commenced by: O Order to Show Cause O Notice of Petition O Writ of Habeas Corpus Date Filed:
Statute authorizing commencement of proceeding in the Appellate Division:
Court: Choose Court ] County: Choose Countv
Judge (name in full): Order of Transfer Date:
court: Choose Court I County: Choose Countv
Judge (name in full): Dated:
Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief
requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the
nature of the ex parte order to be reviewed.
Appeal from Order dismissing judgmen against co-defendant Pan Link Construction, Inc.
Informational Statement - Civil
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Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds
for reversal, or modification to be advanced and the specific relief sought on appeal.
The Court below erred in vacating the judgment against co-defendant.
Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an
appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. if this
form is to be filed for a proceeding commenced in this court, fill in only the party's name and his, her, or its status in this
court.
No. Party Name Original Status Appellate Division Status
1 ObVV MtML 1 Y l-LU Defendant Appellant
2 MMMUCLU LtlVlM, Plaintiff Plaintiff
3 FAIN LilNN UUlND I MUU I IUlN, llNU. Defendant Respondent
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Informational Statement- Civil
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Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the
notice of petition or order to show by which a special proceeding
cause is to be commenced in the Appellate Division,
only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or
Se"
himself, the box marked "Pro must be checked and the appropriate information for that litigant must be supplied
in the spaces provided.
Attorney/Firm Name: LaW U1TICSS OT MODerI VV. INapoleS
Address:d I - I W INSWIOW MVe US, OUlle WU I
City:MSIOrla State:IN Y Zip: I I IUZ Telephone No: / IO /04-UdUU
|
E-mail Address: f aPOneSUnapOleSiaWTirm.COm
Attorney Type: lii Retained O Assigned O Government O Pro Se O Pro Hac Vice
or Parties Represented (set forth from table above): I
Party party number(s)
Attorney/Firm Name: FULLUUl\ UUl"1t,1N l-LF
Address: I I I 13rOaOWay, oIe. IOU*
City:INSW Y O“K State:IN Y IUUUD No: (Z I Z} Od / "OðC
| | Zip: | Telephone
E-mail Address:MOamUFOllOCKUOnen.COm
Attorney Type: liill Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):2
Attorney/Firm Name: IJemlOC lK LaW l-lim FLLU
Address: I 40- I O OSIR MV0 US DID FI
City: FlUS l 9 State:IN Y I I304 No: / I O 200-W53d
| | Zip: Telephone
E-mail Address:IOrlUOCKlaWTirm.COm
Attorney Type: E Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):C
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Informational Statement - Civil
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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 Motion Seq. No.
Creditor, [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 - Judgment
Plaintiff
Creditor
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Exhibit A
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NO.
FILED: ENS C CLERK : 707343/2016
NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 04/03/2023
SHORT FORM ORDER
NEW VORK STATE SUPREME COURT - QUEENS COUNTY
Honorable Leonard Livote IAS Part 33
Present:
Supreme Court Justice
------------------------------------X
Index No.: 707343/2016
, MARCELO LEMA,
Plaintiff,
-against- Motion Date: 1/24/2023
PAN LINK CONSTRUCTION, INC. and
REALTY Seq: #4
SSW LLC, .
Defendants.
------------------------------------------x
.
The papers numbered 1 - 9 below read on this motion bó
following
Marcelo to show cause, why an Order should
Defendant for the Plaintiff, Lema,
not be made granting:
pursuant CPLR the previously entered Default
a. to §5015(a), vacating
Judgment against Pan Link Construction, Inc.;
Defendants'
pursuant to 317 and 2004, time to
b. CPLR§§5015(a), extending
answer or move with respect to Plaintiffs Complaint, or in the alternative,
pursuant to CPLR Plaintiffs Complaint for failure to
§3215(c), dismissing
take proceedings for of default within one year of Pan Link's
entry
purported defaults; and
c. pursuant to CPLR §2201, enforcement of the Money Judgment and
staying
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 accounts by reason of the Money Judgment be
banking
lifted; and
d. pursuant td CPLR §§6301 and 6311 preliminarily enjoining Plaintiff from
, enforcing or seekin# 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
3 of 4
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FILED : ENS COUNTY CLERK :
NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 04/08/2023
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 of
Secretary
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.On 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
171"
65-47 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 Plaintiff's 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
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FILED: ENS COUNTY CLERK :
NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 04/08/2023
against Pan Link. By short form orde
Preview
FILED: QUEENS COUNTY CLERK 05/04/2023 11:24 AM INDEX NO. 707343/2016 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 05/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS MARCELO LEMA, Index No.: 707343/2016 Plaintiff, -against- NOTICE OF CROSS-APPEAL PAN LINK CONSTRUCTION, INC. and SSW REALTY LLC, Defendants. PLEASE TAKE NOTICE, that the Defendant, SSW REALTY LLC,, through its Attorneys THE LAW OFFICES OF ROBERT W. NAPOLES, hereby appeals to the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department, from the attached Order of the Hon. Leonard Livote, dated March 28th, 2023, and entered with the Clerk of the Court on April 4, 2023, and from each and every part thereof. Dated: Astoria, New York May 4, 2023. LAW OFFICES OF ROBERT W. NAPOLES. By: Robert W. Napoles, Esq. Attorney for Defendant SSW REALTY LLC 31-19 Newtown Avenue, Suite 901 Astoria, New York 11102 (718) 764-8380 rnapoles@napoleslawfirm.com 1 of 12 FILED: QUEENS COUNTY CLERK 05/04/2023 11:24 AM INDEX NO. 707343/2016 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 05/04/2023 To: (Service via NYSECF) POLLOCK COHEN LLP 111 Broadway, Ste. 1804 New York, NY 10006 (212) 337-5361 Adam@PollockCohen.com Demidchik Law Firm PLLC 136-18 39th Avenue 8th F1 Flushing, NY 11354 (718) 255-9898 lori@dcklawfirm.com 2 of 12 FILED: QUEENS COUNTY CLERK 05/04/2023 11:24 AM INDEX NO. 707343/2016 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 05/04/2023 9upreme Gourt at tile 9tate at New Barle Appellate Btutsina: Second flubirtal Bepartment Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil [a]) For Comt of Original Instance MARCELO LEMA Date Notice of Appeal Filed - against - PAN LINK CONSTRUCTION, INC. and . For Appellate Division SSW REALTY LLC, Civil Action O CPLR article 78 Proceeding E Appeal O Transferred Proceeding O CPLR article 75 Arbitration O Special Proceeding Other O Original Proceedings O CPLR Article 78 O Action Commenced under CPLR 214-8 O CPLR Article 78 O Faecutive Law § 298 O Habeas Corpus Proceeding O Eminent Domain CPLR 5704 Review O Labor Law 220 or 220-b O Public Officers Iaw § 36 O Real Property Tax Iaw § 1278 O Administrative Review O Business Relationships O Commercial O Contracts O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters O Family Court O Mortgage Foreclosure O Miscellaneous O Prisoner Discipline & Parole O Real Property O Statutory O Taxation E Torts (other than foreclosure) Informational Statement - CMI 3 of 12 FILED: QUEENS COUNTY CLERK 05/04/2023 11:24 AM INDEX NO. 707343/2016 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 05/04/2023 Paper Appealed From (Check one only): If an appeal has been taken from more than one order or judgment by the filing of this notice of appeal, please indicate the below information for each such order or judgment appealed from on a separate sheet of paper. O Amended Decree O Determination Order O Resettled Order O Amended Judgement O Finding O Order & Judgment O Ruling O Amended Order O Interlocutory Decree O Partial Decree O Other (specify): O Decision O interlocutory Judgment O Resettled Decree O Decree E Judgment O Resettled Judgment Court: Supreme Court County: Queens Dated: 03/28/2923 Entered: 4/4/2023 Judge (name in full): Hon. Leonard Livote Index No.: f U104d/2U I O Stage: O Interlocutory Final O Post-Final Trial: O Yes B No If Yes: O Jury O Non-Jury Prior Unperfected Appeal and Related Case Information Are any appeals arising in the same action or proceeding currently pending in the court? G Yes O No If Yes, please set forth the Appellate Division Case Number assigned to each such appeal. 2023-00765 There is also an appeal by Plaintiff of the same order herein. Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other jurisdiction, and if so, the status of the case: MARCELO LEMA,Plaintiff - Judgment V.GUANG DENG ZHIYlNG AND Creditor, SHI, SHI, JINSHOU WANG, INDEX NO. 510259/2023 Pleadings stage Commenced by: O Order to Show Cause O Notice of Petition O Writ of Habeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Division: Court: Choose Court ] County: Choose Countv Judge (name in full): Order of Transfer Date: court: Choose Court I County: Choose Countv Judge (name in full): Dated: Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. Appeal from Order dismissing judgmen against co-defendant Pan Link Construction, Inc. Informational Statement - Civil 4 of 12 FILED: QUEENS COUNTY CLERK 05/04/2023 11:24 AM INDEX NO. 707343/2016 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 05/04/2023 Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds for reversal, or modification to be advanced and the specific relief sought on appeal. The Court below erred in vacating the judgment against co-defendant. Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. if this form is to be filed for a proceeding commenced in this court, fill in only the party's name and his, her, or its status in this court. No. Party Name Original Status Appellate Division Status 1 ObVV MtML 1 Y l-LU Defendant Appellant 2 MMMUCLU LtlVlM, Plaintiff Plaintiff 3 FAIN LilNN UUlND I MUU I IUlN, llNU. Defendant Respondent 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Informational Statement- Civil 5 of 12 FILED: QUEENS COUNTY CLERK 05/04/2023 11:24 AM INDEX NO. 707343/2016 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 05/04/2023 Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the notice of petition or order to show by which a special proceeding cause is to be commenced in the Appellate Division, only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or Se" himself, the box marked "Pro must be checked and the appropriate information for that litigant must be supplied in the spaces provided. Attorney/Firm Name: LaW U1TICSS OT MODerI VV. INapoleS Address:d I - I W INSWIOW MVe US, OUlle WU I City:MSIOrla State:IN Y Zip: I I IUZ Telephone No: / IO /04-UdUU | E-mail Address: f aPOneSUnapOleSiaWTirm.COm Attorney Type: lii Retained O Assigned O Government O Pro Se O Pro Hac Vice or Parties Represented (set forth from table above): I Party party number(s) Attorney/Firm Name: FULLUUl\ UUl"1t,1N l-LF Address: I I I 13rOaOWay, oIe. IOU* City:INSW Y O“K State:IN Y IUUUD No: (Z I Z} Od / "OðC | | Zip: | Telephone E-mail Address:MOamUFOllOCKUOnen.COm Attorney Type: liill Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above):2 Attorney/Firm Name: IJemlOC lK LaW l-lim FLLU Address: I 40- I O OSIR MV0 US DID FI City: FlUS l 9 State:IN Y I I304 No: / I O 200-W53d | | Zip: Telephone E-mail Address:IOrlUOCKlaWTirm.COm Attorney Type: E Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above):C Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Informational Statement - Civil 6 of 12 FILED: QUEENS COUNTY CLERK 05/04/2023 11:24 AM INDEX NO. 707343/2016 NYSCEF p gp: DOC. NO.ggg 106 C y ggg RECEIVED INDEX NYSCEF: NO. 05/04/2023 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 Motion Seq. No. Creditor, [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 - Judgment Plaintiff Creditor 1 of 6 7 of 12 FILED: QUEENS COUNTY CLERK 05/04/2023 11:24 AM INDEX NO. 707343/2016 NYSCEF FILED: DOC. QUEENS NO. 106 COUNTY CLERK 04/04/2023 10:25 RECEIVED INDEX NYSCEF: NO. 05/04/2023 707343/2016 PM| NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 04/04/2023 Exhibit A 2 of 6 8 of 12 FILED: QUEENS COUNTY CLERK 05/04/2023 11:24 AM INDEX NO. 707343/2016 NYSCEF DOC. NO. 106 RECEIVED INDEX NYSCEF: 05/04/2023 NO. FILED: ENS C CLERK : 707343/2016 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 04/03/2023 SHORT FORM ORDER NEW VORK STATE SUPREME COURT - QUEENS COUNTY Honorable Leonard Livote IAS Part 33 Present: Supreme Court Justice ------------------------------------X Index No.: 707343/2016 , MARCELO LEMA, Plaintiff, -against- Motion Date: 1/24/2023 PAN LINK CONSTRUCTION, INC. and REALTY Seq: #4 SSW LLC, . Defendants. ------------------------------------------x . The papers numbered 1 - 9 below read on this motion bó following Marcelo to show cause, why an Order should Defendant for the Plaintiff, Lema, not be made granting: pursuant CPLR the previously entered Default a. to §5015(a), vacating Judgment against Pan Link Construction, Inc.; Defendants' pursuant to 317 and 2004, time to b. CPLR§§5015(a), extending answer or move with respect to Plaintiffs Complaint, or in the alternative, pursuant to CPLR Plaintiffs Complaint for failure to §3215(c), dismissing take proceedings for of default within one year of Pan Link's entry purported defaults; and c. pursuant to CPLR §2201, enforcement of the Money Judgment and staying 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 accounts by reason of the Money Judgment be banking lifted; and d. pursuant td CPLR §§6301 and 6311 preliminarily enjoining Plaintiff from , enforcing or seekin# 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 3 of 4 9 of 12 FILED: QUEENS COUNTY CLERK 05/04/2023 11:24 AM INDEX NO. 707343/2016 NYSCEF DOC. NO. 106 RECEIVED INDEX NYSCEF: NO. 05/04/2023 707343/2016 FILED : ENS COUNTY CLERK : NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 04/08/2023 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 of Secretary 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.On 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 171" 65-47 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 Plaintiff's 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 8 of 6 10 of 12 FILED: QUEENS COUNTY CLERK 05/04/2023 11:24 AM INDEX NO. 707343/2016 NYSCEF DOC. NO. 106 RECEIVED INDEX NYSCEF: NO. 05/04/2023 707343/2016 FILED: ENS COUNTY CLERK : NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 04/08/2023 against Pan Link. By short form orde