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FILED: SUFFOLK COUNTY CLERK 07/10/2023 11:51 AM INDEX NO. 607311/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 07/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
In the matter of Allan Goetz,
Petitioner,
Index # : 6 0 7 3 1 1 / 2 0 2 3
- against -
AFFIRMATION IN OPPOSITION
Wyandanch Volunteer Fire Company Inc., and
Town of Babylon
Respondent
Brent Chapman, Esq., being an attorney duly licensed to practice law before the
Courts of this State under penalty of perjury hereby affirms that the statements herein are
true except to those facts stated upon information and belief which are believed to be true.
I set forth this Affirmation in Opposition to the relief requested in Respondent’s
Order to Show cause to excuse the Respondent for failing to appear in court and vacate
the Order entered against the Respondent, restore the within action to the active calendar,
and permit Respondent’s motion to dismiss to be heard and decided. For the reasons
stated herein the relief requested in Respondent’s Order to Show Cause must be denied
in its entirety.
BRIEF FACTUAL BACKGROUND
1) On March 22, 2023, Petitioner filed an Article 78 petition, which was noticed to
be heard on May 1, 2023. Respondent and Respondent’s Counsel were served on March
31, 2023.
2) Respondent, Wyandanch Volunteer Fire Company, sought a thirty day
adjournment of the return date of Petitioner’s Article 78 petition, from May 1, 2023, until
June 1, 2023. Although a delay in the proceeding prejudiced the Petitioner, the Petitioner
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approved a thirty day adjournment request on April 18, 2023. The Court adjourned the
matter to June 5, 2023, to an in person appearance f or submission and oral argument.
3) On May 30, 2023, the Respondent reached out to our Law Office and requested
additional time. The Petitioner agreed to a week extension. Yet, the Respondent did not
inquire with the Court regarding said extension. On June 5, 2023, our office contacted the
part regarding the Respondent’s adjournment request and was advised that Counsel did
not reach out to the Court for said adjournment. The Court advised that the Petitioner
should appear on June 5, 2023, considering there was no application for an adjournment.
Based on representation with counsel and as a courtesy our office advised the Court that
a return date on the motion to June 12, 2023, was acceptable.
4) On June 9, 2023, counsel uploaded a letter to NYSCEF, requesting that the
instant matter be returnable on June 12, 2023. The Court advised via NYSCEF that the
matter was returnable to June 12, 2023, for oral argument and submission (Exhibit “A”).
To confirm our office reached out to Honorable Hackeling’s Court part and was advised of
the same information.
5) On June 9, 2023, the Respondent used NYSCEF to communicate with Honorable
Hackeling’s part. Again, the Court informed the Respondent via NYSCEF and email that
the return date of the motion and oral argument has been adjourned to June 12, 2023
(Exhibit “B”).
5) On June 12, 2023, the Petitioner and counsel appeared before Honorable
Hackeling. The Respondent failed to appear or notify the Court. Furthermore, Respondent
did not submit responsive papers to the Petitioner’s Article 78 Petition. As such, the Court
properly issued a ruling on default.
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RESPONDENT’S MOTION MUST BE DISMISSED
6) This motion must be dismissed, as Counsel’s mea culpa1 will not serve as a
shield to the clear mandates of the applicable jurisprudence.
7) Pursuant to CPLR 5015(a)(1), a party seeking to vacate an order entered upon
their default must demonstrate both a ‘reasonable excuse’ for the default and a ‘meritorious
defense’ to the underlying action. As for the first prong a ‘reasonable excuse’, law office
failure may qualify as such if it is supported by a credible and detailed explanation of the
default. A conclusory, undetailed and uncorroborated claim of law office failure does not
amount to a reasonable excuse and mere neglect will not suffice (See Beach 28 RE, LLC
v. Somra, 188 N.Y.S.3d 598 (2nd Dep’t. 2023) ; Wilmington Sav. Fund Soc'y, FSB v.
Helal, 181 N.Y.S.3d 306 (2nd Dep’t. 2022) ; Sauteanu v. BJ's Wholesale Club, Inc., 179
N.Y.S.3d 131 (2nd Dep’t. 2022) ; Delucia v. Mar Lumber Co., 177 N.Y.S.3d 669 (2nd
Dep’t. 2022) ; Wells Fargo Bank, N.A. v. Eliacin, 171 N.Y.S.3d 139 (2nd Dep’t. 2022) ;
U.S. Bank Tr., N.A. v. Gomez, 165 N.Y.S.3d 883 (2nd Dep’t. 2022) ; Al Maruf v. E.B. Mgmt.
Properties, LLC, 121 N.Y.S.3d 282 (2nd Dep’t. 2020). Here, the Respondent failed to
appear for a Court date which the Respondent himself requested. The Court notified the
Respondent multiple times about the Court appearance yet the Respondent failed to
appear. The Respondent makes a bare bones statement, “the undersigned, a solo
practitioner, concedes to such a law office mistake and miscalculation of statutory time to
respond to a motion”, yet does not provide a detailed explanation of the default or credible
1
Mea culpa is a phrase originating from Latin that means ‘my fault’ or ‘my
mistake’ and is an acknowledgment of having committed an avoidable wrong first
attributed to Geoffrey Chaucer's 14th-century Troilus and Criseyde. The expression is
also employed in a religious context from a Western Christian prayer of confession of
sinfulness, known as the Confiteor, used in the Roman Rite at the beginning of Mass or
when receiving the sacrament of Penance as referencing ‘through my own fault’.
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evidence to support the same. As such, the application fails and must summarily be
dismissed.
8) For example, in Delucia v. Mar Lumber Co.,the assertion of the plaintiff's counsel
that she missed two calendar calls because she was simultaneously appearing on another
matter in the same courthouse did not constitute a reasonable excuse for the default. 210
A.D.3d 636, 177 N.Y.S.3d 669 (2nd Dep’t. 2022). Additionally in, Wilmington Sav. Fund
Soc'y, FSB v. Helal, the Supreme Court providently exercised its discretion in determining
that the defendant's claim of law office failure did not constitute a reasonable excuse for
his default in opposing JPMorgan's motion. The defendant's submissions essentially
attributed the failure to oppose the motion to general confusion on the part of his counsel
resulting from its busy legal practice. 181 N.Y.S.3d 306 (2nd Dep’t. 2022).
9) In a recent decision the Second Department in Beach 28 RE, LLC v. Somra
reasoned the following, which is applicable to the instant matter. The Second Department
held that a Court has discretion to accept law office failure as a reasonable excuse where
the claim is supported by a detailed and credible explanation of the default. However, law
office failure should not be excused where a default results not from an isolated,
inadvertent mistake, but from repeated neglect, or where allegations of law office failure
are vague, conclusory, and unsubstantiated. There, the defendants’ submissions in
support of their motion to vacate the order did not set forth a detailed and credible
explanation for the defendants’ failure to appear on those dates. The defendants’ claim of
law office failure was vague, conclusory, and unsubstantiated, and did not establish a
reasonable excuse for their default. Accordingly, the Supreme Court providently exercised
its discretion in determining that the defendants failed to offer a reasonable excuse for their
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default. As in Beach 28 Re, the Respondent in the instant matter had ample notice to
appear for Court. First, the Respondent requested that the matter be adjourned to June 12,
2023. Second, the Respondent inquired with the Court via NYSCEF as to the submission
date of the motion and the Court confirmed that the submission date and oral argument
was adjourned to June 12, 2023. Third, the Court notified the parties via email that the next
appearance was for submission and in person oral argument on June 12, 2023. The
Respondent does establish a reasonable excuse for the default, particularly as the
Respondent had ample notice.
10) Since Movant failed to demonstrate a reasonable excuse for the default, it is
unnecessary to determine whether they demonstrated the existence of a potentially
meritorious defense (See Gleizer v. Gleizer, 188 N.Y.S.3d 673 (2nd Dep’t. 2023) ; Bank
of Am., N.A. v. Anderson, 216 A.D.3d 890 (2nd Dep’t. 2023) ; Beach 28 RE, LLC v.
Somra, 188 N.Y.S.3d 598 (2nd Dep’t. 2023) ; Wilmington Sav. Fund Soc'y, FSB v. Helal,
181 N.Y.S.3d 306 (2nd Dep’t. 2022). Even if the Court continued with the legal analysis
beyond the ‘reasonable excuse’ element, however, the application would still fail on the
second required factor of presenting a ‘meritorious defense’. Counsel’s discussion is his
paragraph number 21 that he does not need establish a meritorious defense is utterly
confusing, misapplied and simply wrong in the legal sense. First and foremost, Counsel
incorrectly asserts that he can somehow sidestep the crystal clear mandate that he directly
present the existence of a meritorious defense (See CPLR 5015(a)(3) ; U.S. Bank Nat'l
Ass'n v. Hunte, 188 N.Y.S.3d 92 (2nd Dep’t. 2023) ; Wilmington Sav. Fund Soc'y, FSB v.
Helal, 181 N.Y.S.3d 306 (2nd Dep’t. 2022) ; Murray v. Giovannello,171 NYS3d 365 (2nd
Dep’t. 2022) ; Mondelus v. Emile, 121 N.Y.S.3d 666 (2nd Dep’t. 2020) ; Patouhas v.
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Patouhas, 98 N.Y.S.3d 853 (2nd Dep’t. 2019) ; Florestal v. Florestal, 36 N.Y.S.3d 684
(2nd Dep’t. 2016) ; Alam v. Alam, 1 N.Y.S.3d 227 (2nd Dep’t. 2014) ; Hasanji v. Hasanji,
993 NYS2d 512 (2nd Dep’t 2014) ; Li Wong v. Fen Liu, 993 NYS2d 372 (2nd Dep’t. 2014)
; Farhadi v. Qureshi, 964 NYS2d 214 (2nd Dep’t. 2013) ; Ogazi v. Ogazi, 848 NYS2d 248
(2nd Dep’t. 2007) ; Faltings v. Faltings, 824 NYS2d 730 (2nd Dep’t. 2006) ; Passas v.
Passas, 796 NYS2d 649 (2nd Dep’t. 2005). In addition, all but one case noted by Counsel
are outside of the second department and the single one from the second department of
Kulka v. Molsky, 566 N.Y.S.2d 656 (2nd Dep’t. 1991) that might have any precedent value
actually rebuts the argument as that Court held that the movant failed to demonstrate any
potentially meritorious defense.
11) In fact, it is well settled that an affirmation of an attorney, who demonstrates no
personal knowledge of the matter, is unavailing and without evidentiary value (See
Zuckerman v. City of New York, 427 NYS2d 595 (Court of Appeals 1980) ; R.A. v. State,
157 N.Y.S.3d 695 (N.Y. Ct. Cl. 2021) United Specialty Ins. v. Columbia Cas. Co.,129
NYS3d 510, (2nd Dep’t. 2020) ; Tower Ins. Co. of New York v. Zaroom, 44 N.Y.S.3d 32
(1st Dep’t. 2016) ; State v. Swezey, 996 N.Y.S.2d 684 (2nd Dep’t. 2014) ; Ross v. DD 11th
Avenue, LLC, 971 NYS2d 304 (2nd Dep’t. 2013) ; Bank of New York v. Castillo, 991
N.Y.S.2d 446 (2nd Dep’t 2014) ; Bahlkow v. Greenberg, 587 N.Y.S.2d 661 (2nd Dept.
1992) ; Winter v. Black, 943 N.Y.S.2d 909 (2nd Dept. 2012) ; Mikelatos v. Theofilaktidis,
962 N.Y.S.2d 693 (2nd Dept. 2013) ; Zuckerman v. City of NY, 49 N.Y.2d 557, 427
N.Y.S.2d 595). Here, the Respondent only submits an attorney affirmation in the
Respondent’s Order to show cause and fails to submit a signed Affidavit from his client.
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RESPONDENT’S CASE LAW IS UNAVAILING
12) Even some of the scant cases Counsel adopts to purportedly address this
seminal point that law office failure will in some way protects him, actually squarely defeats
his argument, as Shmarkatyuk v. Chouchereba, 738 N.Y.S.2d 367 (2nd Dep’t. 2002) and
Tolliver v. Cnty. of Nassau, 647 N.Y.S.2d 834 (2nd Dep’t. 1996) both denied the
application based on this exact basis.
13) Counsel is further misguided with his plea for shelter based on ‘in the interests
of justice’, as his reliance on Lounsbury v. Kiehl, 680 N.Y.S.2d 283 (2nd Dep’t. 1998)
actually unequivocally obliterates such a claim, as that Court held in sum and substance
that :
Although even when none of the conditions set forth in CPLR 5015 have been met, a
trial court still has the inherent authority to vacate a default judgment in the interest of
justice. Nevertheless, such relief should not be granted unless the moving defendant can
show an acceptable excuse for the default, an absence of willfulness and a meritorious
defense. Defendants have not satisfied these requirements.
PREJUDICE TO THE PETITIONER
14) The Petitioner is seventy-seven years old and has been an important member
of the Wyandanch Fire Department for over fifty-five years. Since this Court entered an
Order granting the Petitioner’s Article 78 Petition and reinstating Mr. Goetz as a lifetime
member he has now regained many of his previously lost benefits. Mr. Goetz life insurance
policy and pension plan have been reinstated. Furthermore, he will now be eligible to
receive his property credit if he achieves points during the course of the year. Most
importantly, Mr. Goetz and is family now have peace of mind knowing that he is now a
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member of the Fire Department and was wrongfully terminated.
THE RESPONDENT IS NOT ENTITLED TO NEW ARGUMENTS ON REPLY
15) Lest there be no confusion, the function of Reply papers is to address arguments
made in Opposition to the position taken by the Movant and not to permit the Movant to
introduce new arguments in support of, or new grounds or evidence for. Thus, it is
impermissible for the Father to attempt to correct the deficiencies in his original motion
papers by raising new arguments for the first time in his Reply papers, should one be
submitted (See Yakobowicz v. Yakobowicz, – NYS3d – , 2023 WL 3856275 (2nd Dep’t.
2023) ; Edward v. Edwards, 154 NYS3d 618(4th Dep’t. 2021) ; Stanley v. City of New York,
141 N.Y.S.3d 662 (N.Y. Sup. Ct. 2020) ; Nationstar Mortg., LLC v. Tamargo, 111 N.Y.S.3d
699 (2nd Dep’t. 2019) ; EPF Int'l Ltd. v. Lacey Fashions Inc., 97 N.Y.S.3d 45 (1st Dep’t.
2019) ; Catnap, LLC v. Cammeby's Mgmt. Co., LLC, 97 N.Y.S.3d 686 (2nd Dep’t. 2019)
; Boland v. N. Bellmore Union Free Sch. Dist., 96 N.Y.S.3d 244 (2nd Dep’t. 2019) ; Castro
v Durban, 77 NYS3d 680 (2nd Dep’t. 2018) ; Lee v. Law Offices of Kim & Bae, P.C., 77
N.Y.S.3d 676 (2nd Dep’t. 2018) ; All State Flooring Distributors, L.P. v. MD Floors, LLC,
16 N.Y.S.3d 539 (1st Dep’t. 2015). In other words, one only receives a single bite at the
apple. Thus, if the Movant attempts to concoct a ‘do over’ in their Reply, same must be
ignored by the Court. Therefore, this motion must be denied.
WHEREFORE, it respectfully requested that the Court Deny Respondent’s motion.
Dated : July 10, 2023 Brent Champman
Brent Chapman, Esq.
199 2nd Street
Mineola, NY 11501
Tel: (516) 707-0557
Fax: ( 516) 880-8171
Brent@brentchapmanlaw.com
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CERTIFICATION, WORD COUNT
I, Brent Chapman, Esq., am admitted to practice law in the State of New York, and
am an officer of the Court. I am counsel for Petitioner in the above entitled action.
As per Rule 130-1.1(c), I hereby certify to the court under penalties of perjury that
I have no knowledge that the substance of the submission in the within Affidavit and
Affirmation are frivolous.
In addition, as per Rule 202.8-b according to the word processing software used,
the Affidavit and Affirmation herein have a word count of 2,350.
Dated : July 10, 2023
Brent Chapman
Brent Chapman, Esq.
199 2nd Street
Mineola, NY 11501
Tel: (516) 707-0557
Fax: ( 516) 540-6553
Brent@ny-lawyer.com
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FILED: SUFFOLK COUNTY CLERK 07/10/2023 11:51 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 07/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK In the matter of Allan Goetz, Petitioner, Index # : 6 0 7 3 1 1 / 2 0 2 3 - against - AFFIRMATION IN OPPOSITION Wyandanch Volunteer Fire Company Inc., and Town of Babylon Respondent Brent Chapman, Esq., being an attorney duly licensed to practice law before the Courts of this State under penalty of perjury hereby affirms that the statements herein are true except to those facts stated upon information and belief which are believed to be true. I set forth this Affirmation in Opposition to the relief requested in Respondent’s Order to Show cause to excuse the Respondent for failing to appear in court and vacate the Order entered against the Respondent, restore the within action to the active calendar, and permit Respondent’s motion to dismiss to be heard and decided. For the reasons stated herein the relief requested in Respondent’s Order to Show Cause must be denied in its entirety. BRIEF FACTUAL BACKGROUND 1) On March 22, 2023, Petitioner filed an Article 78 petition, which was noticed to be heard on May 1, 2023. Respondent and Respondent’s Counsel were served on March 31, 2023. 2) Respondent, Wyandanch Volunteer Fire Company, sought a thirty day adjournment of the return date of Petitioner’s Article 78 petition, from May 1, 2023, until June 1, 2023. Although a delay in the proceeding prejudiced the Petitioner, the Petitioner 1 of 9 FILED: SUFFOLK COUNTY CLERK 07/10/2023 11:51 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 07/10/2023 approved a thirty day adjournment request on April 18, 2023. The Court adjourned the matter to June 5, 2023, to an in person appearance f or submission and oral argument. 3) On May 30, 2023, the Respondent reached out to our Law Office and requested additional time. The Petitioner agreed to a week extension. Yet, the Respondent did not inquire with the Court regarding said extension. On June 5, 2023, our office contacted the part regarding the Respondent’s adjournment request and was advised that Counsel did not reach out to the Court for said adjournment. The Court advised that the Petitioner should appear on June 5, 2023, considering there was no application for an adjournment. Based on representation with counsel and as a courtesy our office advised the Court that a return date on the motion to June 12, 2023, was acceptable. 4) On June 9, 2023, counsel uploaded a letter to NYSCEF, requesting that the instant matter be returnable on June 12, 2023. The Court advised via NYSCEF that the matter was returnable to June 12, 2023, for oral argument and submission (Exhibit “A”). To confirm our office reached out to Honorable Hackeling’s Court part and was advised of the same information. 5) On June 9, 2023, the Respondent used NYSCEF to communicate with Honorable Hackeling’s part. Again, the Court informed the Respondent via NYSCEF and email that the return date of the motion and oral argument has been adjourned to June 12, 2023 (Exhibit “B”). 5) On June 12, 2023, the Petitioner and counsel appeared before Honorable Hackeling. The Respondent failed to appear or notify the Court. Furthermore, Respondent did not submit responsive papers to the Petitioner’s Article 78 Petition. As such, the Court properly issued a ruling on default. 2 of 9 FILED: SUFFOLK COUNTY CLERK 07/10/2023 11:51 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 07/10/2023 RESPONDENT’S MOTION MUST BE DISMISSED 6) This motion must be dismissed, as Counsel’s mea culpa1 will not serve as a shield to the clear mandates of the applicable jurisprudence. 7) Pursuant to CPLR 5015(a)(1), a party seeking to vacate an order entered upon their default must demonstrate both a ‘reasonable excuse’ for the default and a ‘meritorious defense’ to the underlying action. As for the first prong a ‘reasonable excuse’, law office failure may qualify as such if it is supported by a credible and detailed explanation of the default. A conclusory, undetailed and uncorroborated claim of law office failure does not amount to a reasonable excuse and mere neglect will not suffice (See Beach 28 RE, LLC v. Somra, 188 N.Y.S.3d 598 (2nd Dep’t. 2023) ; Wilmington Sav. Fund Soc'y, FSB v. Helal, 181 N.Y.S.3d 306 (2nd Dep’t. 2022) ; Sauteanu v. BJ's Wholesale Club, Inc., 179 N.Y.S.3d 131 (2nd Dep’t. 2022) ; Delucia v. Mar Lumber Co., 177 N.Y.S.3d 669 (2nd Dep’t. 2022) ; Wells Fargo Bank, N.A. v. Eliacin, 171 N.Y.S.3d 139 (2nd Dep’t. 2022) ; U.S. Bank Tr., N.A. v. Gomez, 165 N.Y.S.3d 883 (2nd Dep’t. 2022) ; Al Maruf v. E.B. Mgmt. Properties, LLC, 121 N.Y.S.3d 282 (2nd Dep’t. 2020). Here, the Respondent failed to appear for a Court date which the Respondent himself requested. The Court notified the Respondent multiple times about the Court appearance yet the Respondent failed to appear. The Respondent makes a bare bones statement, “the undersigned, a solo practitioner, concedes to such a law office mistake and miscalculation of statutory time to respond to a motion”, yet does not provide a detailed explanation of the default or credible 1 Mea culpa is a phrase originating from Latin that means ‘my fault’ or ‘my mistake’ and is an acknowledgment of having committed an avoidable wrong first attributed to Geoffrey Chaucer's 14th-century Troilus and Criseyde. The expression is also employed in a religious context from a Western Christian prayer of confession of sinfulness, known as the Confiteor, used in the Roman Rite at the beginning of Mass or when receiving the sacrament of Penance as referencing ‘through my own fault’. 3 of 9 FILED: SUFFOLK COUNTY CLERK 07/10/2023 11:51 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 07/10/2023 evidence to support the same. As such, the application fails and must summarily be dismissed. 8) For example, in Delucia v. Mar Lumber Co.,the assertion of the plaintiff's counsel that she missed two calendar calls because she was simultaneously appearing on another matter in the same courthouse did not constitute a reasonable excuse for the default. 210 A.D.3d 636, 177 N.Y.S.3d 669 (2nd Dep’t. 2022). Additionally in, Wilmington Sav. Fund Soc'y, FSB v. Helal, the Supreme Court providently exercised its discretion in determining that the defendant's claim of law office failure did not constitute a reasonable excuse for his default in opposing JPMorgan's motion. The defendant's submissions essentially attributed the failure to oppose the motion to general confusion on the part of his counsel resulting from its busy legal practice. 181 N.Y.S.3d 306 (2nd Dep’t. 2022). 9) In a recent decision the Second Department in Beach 28 RE, LLC v. Somra reasoned the following, which is applicable to the instant matter. The Second Department held that a Court has discretion to accept law office failure as a reasonable excuse where the claim is supported by a detailed and credible explanation of the default. However, law office failure should not be excused where a default results not from an isolated, inadvertent mistake, but from repeated neglect, or where allegations of law office failure are vague, conclusory, and unsubstantiated. There, the defendants’ submissions in support of their motion to vacate the order did not set forth a detailed and credible explanation for the defendants’ failure to appear on those dates. The defendants’ claim of law office failure was vague, conclusory, and unsubstantiated, and did not establish a reasonable excuse for their default. Accordingly, the Supreme Court providently exercised its discretion in determining that the defendants failed to offer a reasonable excuse for their 4 of 9 FILED: SUFFOLK COUNTY CLERK 07/10/2023 11:51 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 07/10/2023 default. As in Beach 28 Re, the Respondent in the instant matter had ample notice to appear for Court. First, the Respondent requested that the matter be adjourned to June 12, 2023. Second, the Respondent inquired with the Court via NYSCEF as to the submission date of the motion and the Court confirmed that the submission date and oral argument was adjourned to June 12, 2023. Third, the Court notified the parties via email that the next appearance was for submission and in person oral argument on June 12, 2023. The Respondent does establish a reasonable excuse for the default, particularly as the Respondent had ample notice. 10) Since Movant failed to demonstrate a reasonable excuse for the default, it is unnecessary to determine whether they demonstrated the existence of a potentially meritorious defense (See Gleizer v. Gleizer, 188 N.Y.S.3d 673 (2nd Dep’t. 2023) ; Bank of Am., N.A. v. Anderson, 216 A.D.3d 890 (2nd Dep’t. 2023) ; Beach 28 RE, LLC v. Somra, 188 N.Y.S.3d 598 (2nd Dep’t. 2023) ; Wilmington Sav. Fund Soc'y, FSB v. Helal, 181 N.Y.S.3d 306 (2nd Dep’t. 2022). Even if the Court continued with the legal analysis beyond the ‘reasonable excuse’ element, however, the application would still fail on the second required factor of presenting a ‘meritorious defense’. Counsel’s discussion is his paragraph number 21 that he does not need establish a meritorious defense is utterly confusing, misapplied and simply wrong in the legal sense. First and foremost, Counsel incorrectly asserts that he can somehow sidestep the crystal clear mandate that he directly present the existence of a meritorious defense (See CPLR 5015(a)(3) ; U.S. Bank Nat'l Ass'n v. Hunte, 188 N.Y.S.3d 92 (2nd Dep’t. 2023) ; Wilmington Sav. Fund Soc'y, FSB v. Helal, 181 N.Y.S.3d 306 (2nd Dep’t. 2022) ; Murray v. Giovannello,171 NYS3d 365 (2nd Dep’t. 2022) ; Mondelus v. Emile, 121 N.Y.S.3d 666 (2nd Dep’t. 2020) ; Patouhas v. 5 of 9 FILED: SUFFOLK COUNTY CLERK 07/10/2023 11:51 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 07/10/2023 Patouhas, 98 N.Y.S.3d 853 (2nd Dep’t. 2019) ; Florestal v. Florestal, 36 N.Y.S.3d 684 (2nd Dep’t. 2016) ; Alam v. Alam, 1 N.Y.S.3d 227 (2nd Dep’t. 2014) ; Hasanji v. Hasanji, 993 NYS2d 512 (2nd Dep’t 2014) ; Li Wong v. Fen Liu, 993 NYS2d 372 (2nd Dep’t. 2014) ; Farhadi v. Qureshi, 964 NYS2d 214 (2nd Dep’t. 2013) ; Ogazi v. Ogazi, 848 NYS2d 248 (2nd Dep’t. 2007) ; Faltings v. Faltings, 824 NYS2d 730 (2nd Dep’t. 2006) ; Passas v. Passas, 796 NYS2d 649 (2nd Dep’t. 2005). In addition, all but one case noted by Counsel are outside of the second department and the single one from the second department of Kulka v. Molsky, 566 N.Y.S.2d 656 (2nd Dep’t. 1991) that might have any precedent value actually rebuts the argument as that Court held that the movant failed to demonstrate any potentially meritorious defense. 11) In fact, it is well settled that an affirmation of an attorney, who demonstrates no personal knowledge of the matter, is unavailing and without evidentiary value (See Zuckerman v. City of New York, 427 NYS2d 595 (Court of Appeals 1980) ; R.A. v. State, 157 N.Y.S.3d 695 (N.Y. Ct. Cl. 2021) United Specialty Ins. v. Columbia Cas. Co.,129 NYS3d 510, (2nd Dep’t. 2020) ; Tower Ins. Co. of New York v. Zaroom, 44 N.Y.S.3d 32 (1st Dep’t. 2016) ; State v. Swezey, 996 N.Y.S.2d 684 (2nd Dep’t. 2014) ; Ross v. DD 11th Avenue, LLC, 971 NYS2d 304 (2nd Dep’t. 2013) ; Bank of New York v. Castillo, 991 N.Y.S.2d 446 (2nd Dep’t 2014) ; Bahlkow v. Greenberg, 587 N.Y.S.2d 661 (2nd Dept. 1992) ; Winter v. Black, 943 N.Y.S.2d 909 (2nd Dept. 2012) ; Mikelatos v. Theofilaktidis, 962 N.Y.S.2d 693 (2nd Dept. 2013) ; Zuckerman v. City of NY, 49 N.Y.2d 557, 427 N.Y.S.2d 595). Here, the Respondent only submits an attorney affirmation in the Respondent’s Order to show cause and fails to submit a signed Affidavit from his client. 6 of 9 FILED: SUFFOLK COUNTY CLERK 07/10/2023 11:51 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 07/10/2023 RESPONDENT’S CASE LAW IS UNAVAILING 12) Even some of the scant cases Counsel adopts to purportedly address this seminal point that law office failure will in some way protects him, actually squarely defeats his argument, as Shmarkatyuk v. Chouchereba, 738 N.Y.S.2d 367 (2nd Dep’t. 2002) and Tolliver v. Cnty. of Nassau, 647 N.Y.S.2d 834 (2nd Dep’t. 1996) both denied the application based on this exact basis. 13) Counsel is further misguided with his plea for shelter based on ‘in the interests of justice’, as his reliance on Lounsbury v. Kiehl, 680 N.Y.S.2d 283 (2nd Dep’t. 1998) actually unequivocally obliterates such a claim, as that Court held in sum and substance that : Although even when none of the conditions set forth in CPLR 5015 have been met, a trial court still has the inherent authority to vacate a default judgment in the interest of justice. Nevertheless, such relief should not be granted unless the moving defendant can show an acceptable excuse for the default, an absence of willfulness and a meritorious defense. Defendants have not satisfied these requirements. PREJUDICE TO THE PETITIONER 14) The Petitioner is seventy-seven years old and has been an important member of the Wyandanch Fire Department for over fifty-five years. Since this Court entered an Order granting the Petitioner’s Article 78 Petition and reinstating Mr. Goetz as a lifetime member he has now regained many of his previously lost benefits. Mr. Goetz life insurance policy and pension plan have been reinstated. Furthermore, he will now be eligible to receive his property credit if he achieves points during the course of the year. Most importantly, Mr. Goetz and is family now have peace of mind knowing that he is now a 7 of 9 FILED: SUFFOLK COUNTY CLERK 07/10/2023 11:51 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 07/10/2023 member of the Fire Department and was wrongfully terminated. THE RESPONDENT IS NOT ENTITLED TO NEW ARGUMENTS ON REPLY 15) Lest there be no confusion, the function of Reply papers is to address arguments made in Opposition to the position taken by the Movant and not to permit the Movant to introduce new arguments in support of, or new grounds or evidence for. Thus, it is impermissible for the Father to attempt to correct the deficiencies in his original motion papers by raising new arguments for the first time in his Reply papers, should one be submitted (See Yakobowicz v. Yakobowicz, – NYS3d – , 2023 WL 3856275 (2nd Dep’t. 2023) ; Edward v. Edwards, 154 NYS3d 618(4th Dep’t. 2021) ; Stanley v. City of New York, 141 N.Y.S.3d 662 (N.Y. Sup. Ct. 2020) ; Nationstar Mortg., LLC v. Tamargo, 111 N.Y.S.3d 699 (2nd Dep’t. 2019) ; EPF Int'l Ltd. v. Lacey Fashions Inc., 97 N.Y.S.3d 45 (1st Dep’t. 2019) ; Catnap, LLC v. Cammeby's Mgmt. Co., LLC, 97 N.Y.S.3d 686 (2nd Dep’t. 2019) ; Boland v. N. Bellmore Union Free Sch. Dist., 96 N.Y.S.3d 244 (2nd Dep’t. 2019) ; Castro v Durban, 77 NYS3d 680 (2nd Dep’t. 2018) ; Lee v. Law Offices of Kim & Bae, P.C., 77 N.Y.S.3d 676 (2nd Dep’t. 2018) ; All State Flooring Distributors, L.P. v. MD Floors, LLC, 16 N.Y.S.3d 539 (1st Dep’t. 2015). In other words, one only receives a single bite at the apple. Thus, if the Movant attempts to concoct a ‘do over’ in their Reply, same must be ignored by the Court. Therefore, this motion must be denied. WHEREFORE, it respectfully requested that the Court Deny Respondent’s motion. Dated : July 10, 2023 Brent Champman Brent Chapman, Esq. 199 2nd Street Mineola, NY 11501 Tel: (516) 707-0557 Fax: ( 516) 880-8171 Brent@brentchapmanlaw.com 8 of 9 FILED: SUFFOLK COUNTY CLERK 07/10/2023 11:51 AM INDEX NO. 607311/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 07/10/2023 CERTIFICATION, WORD COUNT I, Brent Chapman, Esq., am admitted to practice law in the State of New York, and am an officer of the Court. I am counsel for Petitioner in the above entitled action. As per Rule 130-1.1(c), I hereby certify to the court under penalties of perjury that I have no knowledge that the substance of the submission in the within Affidavit and Affirmation are frivolous. In addition, as per Rule 202.8-b according to the word processing software used, the Affidavit and Affirmation herein have a word count of 2,350. Dated : July 10, 2023 Brent Chapman Brent Chapman, Esq. 199 2nd Street Mineola, NY 11501 Tel: (516) 707-0557 Fax: ( 516) 540-6553 Brent@ny-lawyer.com 9 of 9