Motion-Secondary: Prestige Home Fitness, Llc a/k/a Gymguyz Bay Ridge v. Gymguyz Franchising, Llc

On June 22, 2021 a Motion-Secondary was filed involving a dispute between Prestige Home Fitness, Llc A K A Gymguyz Bay Ridge, Prestige Home Fitness, Llc A K A Gymguyz Bay Ridge, and Gymguyz Franchising, Llc, for Commercial - Contract in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 05/31/2023 06:03 PM INDEX NO. 515251/2021
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 05/31/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------------X
PRESTIGE HOME FITNESS, LLC, a/k/a GYMGUYZ, Index No.: 515251/2021
BAY RIDGE

Plaintiff, AFFIRMATION IN
-against- OPPOSITION TO MOTION

GYMGUYZ FRANCHISING, LLC

Defendants.
---------------------------------------------------------------------------X

The undersigned, an attorney duly admitted to practice before the Courts of the State of New York,

hereby affirms the following under penalties of perjury and upon information and belief:

1. I am associated with Kopelevich & Feldsherova, P.C., the attorney of record for the Plaintiff,

PRESTIGE HOME FITNESS, LLC, a/k/a GYMGUYZ BAY RIDGE (hereinafter

“Plaintiff”) in the above-captioned matter. As such, I am fully familiar with the facts and

circumstances of this action.

2. This affirmation is submitted in opposition to Defendant’s motion seeking to “restore” its

motion to vacate the order of default pursuant to CPLR 3215 against the Defendant

GYMGUYZ FRANCHISING, LLC (hereinafter “Defendant”).

PROCEDURAL HISTORY

3. In this action, Plaintiff seeks judgment for unpaid money pursuant to a written agreement

between the parties, a declaration of the rights of the parties under the agreement, and such

other and further relief as may be just, proper, and equitable. The Summons and Complaint,

NYSCEF Doc. No. 1, was served on the Defendant on July 6, 2021. NYSCEF Doc. No. 2,

NYSCEF Doc. No. 3.

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4. The time for the Defendant to appear in this action expired on August 5, 2021, based on

service of the complaint. The Defendant did not timely appear in this action by service of

any answer, notice of motion, or notice of appearance, or make any request for an extension

of time.

5. Defendant alleges that it received the summons and complaint from the Secretary of State

on August 19, 2021, yet it still failed to take any action at that time.

6. On August 30, 2021, the Plaintiff filed its motion for default judgment with a return date of

September 30, 2021. NYSCEF Doc. No. 9. Upon filing, the motion for default judgment was

assigned a return date of January 18, 2022.

7. On September 8, 2021, after the motion for judgment was filed, Defendant filed its answer,

NYSCEF Doc. No. 13, and the answer was rejected. NYSCEF Doc. No. 14, and NYSCEF

Doc. No. 15.

8. Upon receipt of the rejection, Defendant still had four months and two days before

opposition to the motion for default judgment was due to be served pursuant to CPLR

2214(b).

9. Defendant took no action to interpose an answer or obtain an extension of time to do so

during the four months before the motion was submitted.

10. The motion was marked fully submitted on January 18, 2022, and decided by order dated

July 19, 2022, and entered on July 20, 2022. NYSCEF Doc. No. 16.

11. Defendant served notice of entry of the order denying default judgment on July 20, 2022,

the same day that the decision was uploaded to NYSCEF. NYSCEF Doc. No. 17. At that

time, Defendant did not move for leave to serve an untimely answer, attempt to serve an

answer, or request an extension of time to serve an answer.

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12. Five days later, Plaintiff served a motion to reargue with a noticed return date of August 17,

2022. NYSCEF Doc. No. 18. The motion was automatically adjourned to November 16,

2022.

13. Defendant took no action to interpose an answer or obtain an extension of time to do so

during the four month period between the decision and the return date of the motion to

reargue.

14. Again, although defense counsel knew or should have known of the motion to reargue,

Defendant took no action to oppose the motion or to move or cross-move to interpose an

answer. Defendant did not request any adjournment of the motion and did not appear on the

return date of the motion.

15. Reargument was granted and the underlying motion for default judgment was granted on

November 16, 2022, by order dated November 16, 2022, and entered November 21, 2022.

NYSCEF Doc. No. 27.

16. Notice of entry was served December 5, 2022. NYSCEF Doc. No. 28.

17. On December 14, 2022, Defendant, 526 days after it was served, 496 days after its answer

was due, 482 days after it admits receipt of the summons and complaint, and 462 days after

it appeared in this action and 462 days after its answer was rejected, served a motion to

vacate its intentional default pursuant to CPLR 317 (hereinafter, “Motion Sequence 3”).

18. Motion Sequence 3 was set for a first appearance on March 1, 2023.

19. Between the filing and the hearing of Motion Sequence 3, Plaintiff moved for discovery-

related relief by Order to Show Cause (hereinafter, Motion Sequence 4)1. Motion Sequence

4 was assigned a return date of January 12, 2023 in the Central Compliance Motion Part.

1
The proposed order to show cause was uploaded once but signed twice and assigned two motion sequence numbers, 4
and 5.

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20. By order dated January 12, 2023, NYSCEF Doc. No. 57, Exhibit A, Justice Knipel

scheduled Motion Sequence 4 and 5 for “March 31, 2023 to be decided after the

defendant’s motion to vacate its default is resolved” (emphasis added).

21. Plaintiff filed its opposition to Motion Sequence 3 on February 23, 2022. On or about

February 24, defense counsel requested an adjournment for extra time to put in a reply. The

undersigned consented to a brief adjournment, and counsel sent a letter to the part clerk for

the IAS Justice requesting the adjournment. The IAS Justice’s Part Clerk informed defense

counsel that her request was being forwarded to Justice Montelione’s part clerk. Exhibit B.

Counsel for the Defendant acknowledged receipt of this message and therefore, counsel must

be presumed to be aware of its contents.

22. On March 21, 2023, the day before the adjourned date, the undersigned conferred with

defense counsel about the pending motions under a shared mistaken belief that March 22,

2023, was the return date for Motion Sequence 4, which defense counsel did and would not

oppose. Defense counsel informed the undersigned that she would not be appearing. Exhibit

23. On March 22, 2023, the undersigned became aware of the mistake before the calendar call.

After appearing in the Central Compliance Part, the undersigned was informed by the Clerk

that the March 22, 2023, motion was Motion Sequence 3, rather than Motion Sequence 4,

and that the appearance that day was before Justice Montelione. The undersigned

immediately called defense counsel from the Courthouse to inform her that Motion Sequence

3 was the motion on the calendar for that day and we discussed that the discovery-related

motion and the default-related motion were pending in different parts. Defense counsel

requested that the undersigned obtain a short adjournment due to the mistake, and the

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undersigned stated that he would attempt to do so. The undersigned obtained the

adjournment as a courtesy given the acknowledged mutual mistake, and Motion Sequence 3

was adjourned to May 10, 2023, and marked final.

24. On March 24, 2023, the Court Attorney for Justice Freier circulated a link for a Microsoft

Teams Virtual Conference regarding Motion Sequence 4 scheduled for March 31, 2023, to

counsel for the parties. Exhibit D. In response, the undersigned sent an email to the Court

Attorney to inform Justice Freier that Motion Sequence 3 had not been resolved on March

22. Id. The undersigned requested that Motion Sequence 4 “be adjourned to a date later in

May so that everything may proceed in that order.” Id. The Court Attorney responded,

ultimately advising that “The Orders to Show Cause in the above case (mot. Seq. 004 and

005), currently scheduled for Friday, March 31, will be adjourned to Monday, May 22, at

10:00 a.m.” Id.

25. Not one but three lawyers from defense counsel’s law firm were copied on the above-

referenced email chain. Id.

26. The e-Courts appearance tracking system shows that the “Final” appearance for Motion

Sequence 3 was scheduled for May 10, 2023, and provides no reason to believe that Motion

Sequence 3 was adjourned. Exhibit E.

27. The e-Track email Appearance Reminder system provided by the New York State Unified

Court System sent three relevant emails to anyone who subscribed to the free service for the

instant case. All three of the following eTrack emails are included in Exhibit F.

a. On March 22, 2023, the day on which Motion Sequence 3 was adjourned, the

undersigned received an eTrack email updating highlighting in red text that Motion

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Sequence 3, a “Motion-Notice of Motion” was scheduled before Justice Montelione

on May 10, 2023, and that said motion was marked “FINAL.”

b. On March 27, 2023, the undersigned received an eTrack email update highlighting

in red text that there would be a virtual appearance for Motion Sequence 4, which it

noted as a “Motion-Order to Show Cause” returnable in the “Central Compliance

Part-Motions” on May 22, 2023. Directly below that red text was a reminder that

Motion Sequence 3, a “Motion-Notice of Motion” was scheduled before Justice

Montelione on May 10, 2023, and that said motion was marked “FINAL.”

c. On April 10, 2023, the undersigned received an eTrack email “reminder about the

appearance 30 days in advance for the following Court appearance” specifying that

the appearance concerned a “Motion-Notice of Motion” before “Justice: Montelione,

Hon. Richard J,” and that the motion was marked “FINAL” in all capital letters.

28. On May 10, 2023, the Defendant defaulted again at the call of the motion calendar in Part

99 and the motion was “denied, no appearance movant.” Exhibit G.

29. Defendant now moves for an order “Restoring Defendant’s motion to vacate the default

judgment against it [Motion Sequence No. 3] to the calendar for the Court’s adjudication.”

Defendant’s Motion is Defective under the CPLR, the
Uniform Rules, and the Part Rules

30. Defendant’s motion does not comply with the CPLR and the rules of this Court and should

be denied based on its procedural defects.

31. The Defendant’s notice of the instant motion does not set forth the grounds upon which it

is based. “CPLR 2214(a) provides that a notice of motion shall specify the time and place

of the hearing on the motion, the supporting papers upon which the motion is based, the

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relief demanded and the grounds therefor.” Abizadeh v Abizadeh, 159 AD3d 856 (2d Dept

2018) (internal quotations omitted). “[A] court is not required to comb through a litigant's

papers to find information that is required to be set forth in the notice of motion.” Id. The

notice motion merely states the relief sought without any reference to grounds. Even if the

Court does comb through the papers, Defendant has offered no legal basis to grant the

motion. Although the Appellate Division has held that a “formal[] and specific[] request

for relief pursuant to” a specific statute is not required where the factual basis is clear from

the notice of motion, Blauman-Spindler v Blauman, 68 AD3d 1105 (2d Dept 2009), the

instant motion is distinguishable and must be denied. In Blauman-Spindler, the movant’s

notice of motion “clearly [sought] the relief of preclusion based upon the father’s alleged

willful failure to respond to her discovery demands.” Id. In this case, the motion merely

states that it seeks to “restore.” Unlike preclusion, restoration of a motion is not governed

by an easily identifiable provision of the CPLR. Plaintiff is prejudiced because without a

statement of the grounds for Defendant’s motion, or any citation to any law within the

motion, Plaintiff is left to speculate as to the relevant law and standards. The Court should

deny the instant motion.

32. Defendant’s moving papers do not contain a certification of the word counts of the moving

papers as required by 22 NYCRR 202.8-b. Defendant likewise failed to provide a word count

in Motion Sequence 3. Plaintiff brought this deficiency to Defendant’s attention in

opposition to Motion Sequence 3. There can be no argument that Defendant was unaware of

the Uniform Rules. In view of Defendant’s noncompliance with the rules of Court, the

moving papers should be disregarded.

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33. The rules for Motion Practice in Part 99 require that “Where pleadings, prior applications,

or prior decisions and orders are required to be annexed to the motion, reference to the

electronically filed papers alone is insufficient and should be part of the motion and

electronically uploaded as an exhibit.” This is the fourth motion in this action before

Justice Montelione, and the third of those four motions that concern a prior order.

Defendant’s failure to comply with the part rules is inexcusable.

Restoration Pursuant to CPLR 3404 Is Inapplicable

34. The Defendant’s motion does not offer any meaningful information beyond the undisputed

fact that Defendant defaulted on the final return date. Defendant’s motion appears to be

made under the misapprehension that the action was stricken from the calendar pursuant to

CPLR 3404, although the motion was denied by an order. The Appellate Division has

consistently held that the “far more liberal” standard for restoration under “CPLR 3404

does not apply to [a] pre-note of issue action.” Santiago v City of New York, 206 AD3d 948

(2d Dept 2022), citing Lopez v Imperial Delivery Service, Inc, 282 AD2d 190 (2d Dept

2001).

35. Defendant did not default at the call of a trial calendar as contemplated by CPLR 3404. See

Lopez, 282 AD2d at 194 (finding that the legislative purpose of CPLR 3404 is “to address

problems in trial calendar delay” [emphasis in original]).

36. Accordingly, Defendant is not entitled to any “restoration” relief under the lax standards

governing marking an action off the trial calendar.

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Defendant Apparently Seeks to Vacate the Prior Order

37. Although Defendant fails to acknowledge that an order was entered denying the motion,

Exhibit G, the Defendant’s prior motion was not simply stricken from the calendared but

denied upon its default. Defendant implicitly seeks to vacate the aforesaid order. Motions

to vacate an order granted on default are governed by CPLR 5015(a)(1).

38. The case law dictates that the denial of a motion based on the movant’s default requires

Defendant to meet the standard burden for vacatur of a default. “A party seeking to vacate

a default in appearing on the return date of a motion must demonstrate both a reasonable

excuse for the default and a potentially meritorious motion. . . . [T]he Court has discretion

to accept law office failure as a reasonable excuse where that claim is supported by a

detailed and credible explanation of the default at issue.” Santiago, 206 AD3d at 949.

39. In this case, Defendant fails to address, much less meet, both elements of its burden.

Defendant Lacks a Reasonable Excuse for the Default

40. “A conclusory and unsubstantiated claim of law office failure does not constitute a

reasonable excuse...” U.S. Bank Nat’l Ass’n v Adolphe, 170 AD3d 1236 (2d Dept 2019).

“[T]he excuse must be supported by detailed allegations of the law office failure.” HSBC

Bank, UNA Nat. Ass’n v Wider, 101 AD3d 683 (2d Dept 2012).

41. Law office failure is not a catch-all acceptable excuse for a default. The Second

Department has held that an attorney’s excuse “that he thought the conference date had

been adjourned by the Supreme Court, did not constitute a reasonable excuse…” Marrero

v Nails, 77 AD3d 798 (2d Dept 2010). A failure to appear “because [the attorney] was

unaware of the date, amounted to law office failure, which, under the circumstances of this

case, did not constitute a reasonable excuse.” Stancati v Weber, 17 AD3d 447 (2d Dept

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2005). In Hudson City Savings Bank v Augustin, 191 AD3d 774 (2d Dept 2021), the

defaulting attorney stated that “his office received notice eight days prior to the scheduled

conference and the appearance was calendared, [but] the information was not conveyed to

the calendaring team in a manner timely enough to ensure that the appearance was placed

on the firm’s calendar” (internal quotations omitted). The Appellate Division held that the

excuse was insufficient to constitute a reasonable excuse for the default.

42. In this case, counsel proffers a thin excuse that she “believed” that Motion Sequence 3 was

“being carried with” Motion Sequence 4 and claims that she “was unaware of the May 10,

2023 hearing.” The record gives lie to this excuse.

43. The January 12, 2023, order of Judge Knipel explicitly states that the orders to show cause

would be calendared and resolved after – not with – the motion to vacate. Exhibit A.

44. It would be unreasonable for a party’s attorney of record to be unaware of the Court’s

scheduling order and the Court’s directive that one motion be decided before the other is

considered.

45. As set forth supra, the undersigned informed counsel on March 24, 2023, that Motion

Sequence 3 was on the Court’s calendar for that day, separately from Motion Sequence 4,

and the undersigned obtained an adjournment of the motion as a courtesy due to the mutual

mistake and defense counsel’s non-appearance.

46. Upon being informed of the foregoing, a reasonable attorney would have checked such

attorney’s calendar and verified that future return dates were properly calendared for

appearances as necessary. Apparently, defense counsel did not do so.

47. Two days later, a number of emails were sent to three attorneys in defense counsel’s firm

on the subject of rescheduling Motion Sequence 4 with the explicit purpose of scheduling

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the next appearance on Motion Sequence 4 to occur after Motion Sequence 3. The email

sent by the undersigned to the Court Attorney for Justice Freier and copied to three

attorneys from defense counsel’s firm on March 24, 2023, at 10:47 AM states as follows:

Motion sequence 3 was adjourned earlier this
week to May 10 and marked final.
48. The Court Attorney’s reply clearly specified that “mot. Seq. 004 and 005” would be

adjourned to May 22, 2023.

49. It is unreasonable that three attorneys received the same email and for none of them to

calendar their client’s own motion for an appearance.

50. The Unified Court System provides a number of free tools for parties to track appearances

in their cases. The documents in Exhibits E and F demonstrate that using any of those

tools would have provided sufficient notice to defense counsel that Motion Sequence 3 was

not scheduled to be heard in the Central Compliance Motion Part but rather before Justice

Montelione in Part 99, where the previous default-related motions had been scheduled.

51. Defense counsel apparently failed to take advantage of any of these free tools provided by

the Uniform Court System.

52. The history of this case is riddled with Defendant’s and defense counsel’s failures to take

timely action. Defendant failed to timely answer the complaint. Defendant elected not to be

heard on the original motion for default judgment or the motion to reargue the original

motion. Months after demands were served, there has been no response from Defendant to

any of Plaintiff’s discovery demands.

53. It is clear that the Defendant’s strategy in this case is one of delay.

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54. The conduct of defense counsel in failing to appear for the “final” date of Motion

Sequence 3 fits in perfectly with the pattern of conduct established over the first two years

of this case’s pendency.

55. The excuse that counsel was unaware of the final motion date on her client’s own motion

to vacate the default judgment defies belief.

56. If, somehow, defense counsel was unaware of the return date, such unawareness cannot be

held to be reasonable. The default must be presumed to have been intentional or the result

of neglect.

57. Defendant’s motion to vacate its default does not provide a reasonable excuse for the

default, and it must be denied for this reason.

Defendant’s Underlying Motion Was Not Meritorious

58. Because the Defendant has failed to proffer a reasonable excuse, the Court need not, and

should not, reach the issue of whether the Defendant had a meritorious motion. See

Hudson City Savings Bank, 191 AD3d at 774.

59. However, should the Court determine that Defendant has a reasonable excuse for its

default, Plaintiff argues that Defendant’s underlying motion was not meritorious.

60. The arguments made in opposition to Plaintiff’s motion to vacate, Motion Sequence 3, are

annexed hereto as Exhibit H and hereby incorporated by reference in their entirety.

61. Defendant’s underlying motion lacked merit, and the new motion to vacate its default on

the original motion must be denied for that reason.

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CONCLUSION

62. Defendant appeared in this action, intentionally defaulted, and possesses no meritorious defense

to the action. Defendant further defaulted in appearing to argue its motion to vacate the default.

Accordingly, the motion to vacate Defendant’s most recent default must be denied.

WHEREFORE, it is respectfully requested that this Court issue an order denying Defendant’s

motion to vacate the default judgment with costs to the Plaintiff, and granting Plaintiff such and

other further relief as may be just, proper, and equitable.

Dated: Brooklyn, New York
May 31, 2023
KOPELEVICH & FELDSHEROVA, PC
Attorneys for Plaintiff
241 37th Street, Suite B439
Brooklyn, NY 11232
(718) 332-0577

______________________________________________
DAVID LANDFAIR

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CERTIFICATION OF WORD COUNT PURSUANT TO UNIFORM RULE 202.8-B

The undersigned, an attorney duly admitted to the practice of law in the Courts of the State of

New York, hereby certifies that the annexed Affirmation contains 3,450 words exclusive of

caption and signature block according to Microsoft Word, and that the Affirmation complies

with the relevant word count limits.

Dated: Brooklyn, New York
May 31, 2023

_______________________________________
DAVID LANDFAIR
KOPELEVICH & FELDSHEROVA, P.C.
241 37th Street, Suite B439
Brooklyn, NY 11232
718-332-0577

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS Index No.: 515251/2021
PRESTIGE HOME FITNESS, LLC, a/k/a GYMGUYZ
BAY RIDGE.,
Plaintiff(s),
-against-
GYMGUYZ FRANCHISING, LLC
Defendant(s).

AFFIRMATION IN OPPOSITION

KOPELEVICH & FELDSHEROVA, PC
Attorneys for Plaintiff
241 37th Street, Suite B439
Brooklyn, NY 11232
(718) 332-0577

Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney duly admitted to practice in the
courts of New York State, certifies that, upon information and belief and reasonable inquiry, the
contentions contained in the annexed documents are not frivolous.

Dated: May 31, 2023 Signature: ............................................................

Print Signer’s Name: David Landfair

To:
LASSER LAW GROUP
VIA NYSCEF

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Case Info

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Carolyn E Wade Track Judge’s New Case

Case No.

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Document Filed Date

May 31, 2023

Case Filing Date

June 22, 2021

County

Parties

BOLTON, DAVID Attorney for the Defendant
Gymguyz Franchising, LLC Defendant
Gymguyz Franchising, LLC Defendant
KOPELEVICH, MIKHAIL Attorney for the Plaintiff
KOURLAND, NANCY L. Attorney for the Defendant
LANDFAIR, DAVID MICHAEL Attorney for the Plaintiff
LASSER, STEPHEN MICHAEL Attorney for the Defendant
Prestige Home Fitness, LLC a/k/a Gymguyz Bay Ridge Plaintiff
Prestige Home Fitness, LLC a/k/a Gymguyz Bay Ridge Plaintiff
STIELL, HEATHER SHERRY Attorney for the Defendant
David Lafarga Attorney
MYRON LASSER Attorneys for Defendants
MICHAEL KAYAM Attorney
NAOMI COHEN Attorneys for Defendants

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Motion-Secondary: Prestige Home Fitness, Llc a/k/a Gymguyz Bay Ridge v. Gymguyz Franchising, Llc

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