Preview
INDEX NO. 614638/2019
FILED: NASSAU COUNTY CLERK 07707/2023 09:08 AM
NYSCEF DOC. NO. 31 RECEIVED NYSCEF 07/07/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
panne ene nee ene ee eee ene ene,
CINTAS CORPORATION NO. 2 d/b/a Index No. 614638/2019
CINTAS CORPORATION,
Plaintiff,
- against -
KD KOSHER INC. d/b/a KING DAVID,
Defendant.
panne ene nee ene ee eee ene ene,
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S
MOTION TO VACATE DEFAULT JUDGMENT AND TO DISMISS
AND APPLICATION FOR TEMPORARY RESTRAINING ORDER
GENE ROSEN’S LAW FIRM
A PROFESSIONAL CORPORATION
Attorneys for Defendant
200 Garden City Plaza, Suite 405
Garden City, New York 11530
Tel (212) 529-3600
Fax (347) 578-8793
1 of 10
INDEX NO. 614638/2019
FILED: NASSAU COUNTY CLERK 07707/2023 09:08 AM
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023
TABLE OF CONTENTS
TABLE OF AUTHORITIES il
PRELIMINARY STATEMENT..
STATEMENT OF FACTS
ARGUMENT
POINT I
THE DEFAULT JUDGMENT SHOULD BE VACATED
1. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR
§ 5015(a)(4) BECAUSE DEFENDANT WAS NEVER SERVED WITH
PROCESS
2. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR
§ 5015(a)(1) BECAUSE DEFENDANT HAS A REASONABLE EXCUSE
FOR ITS DEFAULT AND A MERITORIOUS DEFENSE TO THE
ACTION
3. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR
§ 5015(a)(3) BECAUSE PLAINTIFF’S CLAIM IS PREMISED ON A
VOID FORGERY
4. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR
§ 317 BECAUSE DEFENDANT DID NOT RECEIVE NOTICE OF THE
ACTION IN TIME TO DEFEND ITSELF AND HAS A MERITORIOUS
DEFENSE TO THE ACTION
POINT II
THIS ACTION SHOULD BE DISMISSED UNDER CPLR § 3211(a)(8) FOR
LACK OF JURISDICTION
POINT III
A TEMPORARY RESTRAINING ORDER STAYING ENFORCEMENT OF THE
DEFAULT JUDGMENT AND LIFTING ALL RESTRAINTS SHOULD BE
GRANTED BECAUSE DEFENDANT HAS DEMONSTRATED
ENTITLEMENT TO INJUNCTIVE RELIEF
CONCLUSION
2 of 10
INDEX NO. 614638/2019
FILED: NASSAU COUNTY CLERK 07707/2023 09:08 AM
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023
TABLE OF AUTHORITIES
Cases
Aames Capital Corp. v. Davidsohn
24 A.D. 3d 474 (2nd Dept., 2015)
Eugene Di Lorenzo, Inc. v. A. C. Dutton Lumber Co.
67 N.Y. 2d 138 (1986)
Marinoff v. Natty Realty Corp.
17 A.D. 3d 412 (2nd Dept., 2001)
Orlosky v. Empire Sec. Sys.
230 A.D. 2d 401 (3rd Dept., 1997)
Skyline Agency v. Ambrose Coppotelli
117 A.D. 2d 135 (2nd Dept., 1986)
State v. Kama
267 A.D. 2d 225 (2nd Dept., 1999)
Thattil v. Mondesir
275 A.D. 2d 408 (2nd Dept., 2000)
W. T. Grant Co. v. Srogi
52 N.Y. 2d 496 (1981)...
Statutes
CPLR § 306
CPLR
§ 317 1,4,5
CPLR
§ 3211 1,5
CPLR
§ 5015. 1,2,3,4
i
3 of 10
INDEX NO. 614638/2019
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023
PRELIMINARY STATEMENT
Defendant submits this memorandum of law in support of its motion to vacate the default
judgment entered against it and to dismiss this action and the application for a temporary
restraining Order staying enforcement of the judgment and lifting all restraints pending the hearing
and determination of the motion. Defendant’s President has submitted a statement made under the
penalties of perjury denying that Defendant was served with process or any other prior notice of
this action. This affidavit contradicts the process server’s affidavit of service. As a result, the
default judgment should be vacated under CPLR § 5015(a)(4).
Defendant has submitted credible evidence that the President’s signature on the document
that Plaintiff claims is a contract between the parties that forms the basis for this action is in fact a
forgery. As a result, in addition to having demonstrated a reasonable excuse due to lack of service,
Defendant has also demonstrated a meritorious defense sufficient for the default judgment to be
vacated under CPLR § 5015(a)(1). Similarly, Defendant has demonstrated grounds to vacate the
default judgment under CPLR § 317 because it did not receive notice of the action in time to defend
itself and has a meritorious defense to the action. Furthermore, Defendant has demonstrated fraud
sufficient for the default judgment to be vacated under CPLR § 5015(a)(3).
Defendant is entitled to dismissal under CPLR § 3211(a)(8) because it was never served
with process. Since the judgment should be vacated, temporary injunctive relief should be granted
staying enforcement of the default judgment and lifting all restraints pending the hearing and
determination ofthis motion.
-1-
4 of 10
INDEX NO. 614638/2019
NYSCEF DOC. NO. 31 RECEIVED NYSCEF 07/07/2023
STATEMENT OF FACTS
Please see the accompanying affidavits of Albert Shakarov and Arthur Shakarov.
ARGUMENT
POINT I
THE DEFAULT JUDGMENT SHOULD BE VACATED
1. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR § 5015(a)(4)
BECAUSE DEFENDANT WAS NEVER SERVED WITH PROCESS
CPLR § 5015(a)(4) authorizes the vacatur of a default for lack of jurisdiction, stating as
follows:
The court which rendered a judgment or order may relieve a party
from it upon such terms as may be just, on motion of any interested
person with such notice as the court may direct, upon the ground of
... lack ofjurisdiction to render the judgment or order.
CPLR § 306(b) requires the affidavit of service to describe identifying features of the person
served, stating as follows:
Whenever service is made pursuant to this article by delivery of the
summons to an individual, proof of service shall also include, in
addition to any other requirement, a description of the person to
whom it was so delivered, including, but not limited to, sex, color
of skin, hair color, approximate age, approximate weight and height,
and other identifying features.
(Emphasis added). A defendant’s sworn denial of receipt of service generally rebuts the
presumption of proper service established by a process server’s affidavit and necessitates and
evidentiary hearing. Skyline Agency v. Ambrose Coppotelli, 117 A.D. 2d 135, 139 (2nd Dept.,
1986) (“Where ... as here, there is a sworn denial of service by the defendant, the affidavit of
service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence
at a hearing.”’) (internal citations omitted). Here, where Defendant’s Vice President has submitted
-2-
5 of 10
INDEX NO. 614638/2019
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023
an affidavit under penalty of perjury affirming denial of service, contradicting the process server’s
affidavit, and demonstrating material omissions from the process server’s affidavit, Defendant is
entitled to vacatur for lack of personal jurisdiction, or, at the very least, a traverse hearing.
2. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR § 5015(a)(1)
BECAUSE DEFENDANT HAS A REASONABLE EXCUSE FOR ITS DEFAULT
AND A MERITORIOUS DEFENSE TO THE ACTION
CPLR § 5015(a)(1) authorizes the vacatur of an excusable default, providing in relevant
part as follows:
The court which rendered a judgment or order may relieve a party
from it upon such terms as may be just, on motion of any interested
person with such notice as the court may direct, upon the ground of
... excusable default, if such motion is made within one year after
service of a copy of the judgment or order with written notice of its
entry upon the moving party, or, if the moving party has entered the
judgment or order, within one year after such entry
A defendant seeking to vacate a default judgment must demonstrate a reasonable excuse for its
delay in appearing and answering the complaint and a meritorious defense to the action. Eugen
Di Lorenzo, Inc. v. A. C. Dutton Lumber Co., 67 N.Y. 2d 138 (1986). “The determination of what
constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court.”
Thattil v. Mondesir, 275 A.D. 2d 408, 409 (2nd Dept., 2000). The defense that is presented needs
to be potentially meritorious, and it is not necessary that the defense be established valid as a matter
of law. Marinoff v. Natty Realty Corp., 17 A.D. 3d 412 (2nd Dept., 2001). “The Supreme Court
has the inherent authority to vacate a judgment in the interest of justice, even where the statutory
one-year period under CPLR 5015(a)(1) has expired.” State v. Kama, 267 A.D. 2d 225, 225 (2nd
Dept., 1999) (internal citations omitted).
-3-
6 of 10
INDEX NO. 614638/2019
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023
Here, Defendant has a reasonable excuse for its default because it was never served, nor
did it have any prior knowledge of this action. Defendant also has a meritorious defense because
the document that Plaintiff claims is a written contract that forms the basis for this action is in fact
a void forgery.
3. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR § 5015(a)(3)
BECAUSE PLAINTIFF’S CLAIM IS PREMISED ON A VOID FORGERY
CPLR § 5015(a)(3) authorizes the vacatur of a default judgment obtained by fraud,
providing in relevant part as follows:
The court which rendered a judgment or order may relieve a party
from it upon such terms as may be just, on motion of any interested
person with such notice as the court may direct, upon the ground of
... fraud, misrepresentation, or other misconduct of an adverse
party.
Forgery renders a contract void ab initio. Orlosky v. Empire Sec. Sys., 230 A.D. 2d 401, 403 (3rd
Dept., 1997) (‘there can be no meeting of the minds of the parties when a forgery has been
perpetrated”). There is no express time limit for seeking relief from a default judgment pursuant
to CPLR § 5015(a)(3). Aames Capital Corp. v. Davidsohn, 24 A.D. 3d 474, 475 (2nd Dept., 2015).
Here, the default judgment should be vacated because this entire action is premised on a forgery.
4. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR § 317
BECAUSE DEFENDANT DID NOT RECEIVE NOTICE OF THE ACTION IN TIME
TO DEFEND ITSELF AND HAS A MERITORIOUS DEFENSE TO THE ACTION
CPLR § 317 authorizes the vacatur of a default judgment where the defendant was not
personally served and demonstrates a potentially meritorious defense to the action, providing in
relevant part as follows:
-4-
7 of 10
INDEX NO. 614638/2019
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023
A person served with a summons other than by personal delivery to
him or to his agent for service designated under rule 318, within or
without the state, who does not appear may be allowed to defend the
action within one year after he obtains knowledge of entry of the
judgment, but in no event more than five years after such entry, upon
a finding of the court that he did not personally receive notice of the
summons in time to defend and has a meritorious defense.
Here, where Defendant was not personally served and it has been less than 5 years since the entry
of judgment and less than a year since Defendant became aware of the action, the default judgment
should be vacated pursuant to CPLR § 317 because Defendant has demonstrated that it was not
served, that it was not aware of the action, and that it has a meritorious defense as explained above.
POINT IT
THIS ACTION SHOULD BE DISMISSED UNDER CPLR § 3211(a)(8)
FOR LACK OF JURISDICTION
CPLR § 3211(a)(8) provides that [a] party may move for judgment dismissing one or more
causes of action asserted against him on the ground that ... the court has not jurisdiction over the
person of the defendant”. Here, as explained above, Defendant was not served with process in this
action. Accordingly, upon vacatur of the default judgment, this action should be dismissed.
POINT HI
A TEMPORARY RESTRAINING ORDER STAYING ENFORCEMENT
OF THE DEFAULT JUDGMENT AND LIFTING ALL RESTRAINTS
SHOULD BE GRANTED BECAUSE DEFENDANT HAS DEMONSTRATED
ENTITLEMENT TO INJUNCTIVE RELIEF
A temporary restraining order may be granted when the movant can demonstrate: (1) the
likelihood of success on the merits (2) irreparable injury absent granting the preliminary
injunction, and (3) a balancing of the equities. W. T. Grant Co. v. Srogi, 52 N.Y. 2d 496, 517 (1981).
-5-
8 of 10
INDEX NO. 614638/2019
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023
Here, Defendant has demonstrated: (1) a likelihood of success on the merits because it was never
served with process and the signature on its purported contract with Plaintiffis a forgery; (2) that
Defendant’s restaurant business will suffer irreparable injury if the default judgment continues to
be enforced; and (3) upon a consideration of the facts of this matter, a balancing of the equities tips
in favor of Defendant.
CONCLUSION
For all of the foregoing reasons, the default judgment should be vacated and this action
should be dismissed.
Dated: Garden City, New York
July 7, 2023
GENE ROSEN’S LAW FIRM
A PROFESSIONAL CORPORATION
Attorneys for Defendant
By: LEE
Gene W. Rosen, Esq.
200 Garden City Plaza, Suite 405
Garden City, New York 11530
Tel (212) 529-3600 Ext. 101
Fax (347) 578-8793
Gene@GeneRosen.com
-6-
9 of 10
INDEX NO. 614638/2019
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023
CERTIFICATION OF COMPLIANCE PURSUANT TO 22 NYCRR § 202.8-b
I, Gene W. Rosen, Esq., am filing the foregoing document. The number of words in the
document, exclusive of the caption, the signature block, and the pages containing the table of
contents and table of authorities, is 1,550. The document complies with the word count limit
imposed by 22 NYCRR § 202.8-b.
10 of 10
Preview
INDEX NO. 614638/2019 FILED: NASSAU COUNTY CLERK 07707/2023 09:08 AM NYSCEF DOC. NO. 31 RECEIVED NYSCEF 07/07/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU panne ene nee ene ee eee ene ene, CINTAS CORPORATION NO. 2 d/b/a Index No. 614638/2019 CINTAS CORPORATION, Plaintiff, - against - KD KOSHER INC. d/b/a KING DAVID, Defendant. panne ene nee ene ee eee ene ene, MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO VACATE DEFAULT JUDGMENT AND TO DISMISS AND APPLICATION FOR TEMPORARY RESTRAINING ORDER GENE ROSEN’S LAW FIRM A PROFESSIONAL CORPORATION Attorneys for Defendant 200 Garden City Plaza, Suite 405 Garden City, New York 11530 Tel (212) 529-3600 Fax (347) 578-8793 1 of 10 INDEX NO. 614638/2019 FILED: NASSAU COUNTY CLERK 07707/2023 09:08 AM NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023 TABLE OF CONTENTS TABLE OF AUTHORITIES il PRELIMINARY STATEMENT.. STATEMENT OF FACTS ARGUMENT POINT I THE DEFAULT JUDGMENT SHOULD BE VACATED 1. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR § 5015(a)(4) BECAUSE DEFENDANT WAS NEVER SERVED WITH PROCESS 2. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR § 5015(a)(1) BECAUSE DEFENDANT HAS A REASONABLE EXCUSE FOR ITS DEFAULT AND A MERITORIOUS DEFENSE TO THE ACTION 3. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR § 5015(a)(3) BECAUSE PLAINTIFF’S CLAIM IS PREMISED ON A VOID FORGERY 4. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR § 317 BECAUSE DEFENDANT DID NOT RECEIVE NOTICE OF THE ACTION IN TIME TO DEFEND ITSELF AND HAS A MERITORIOUS DEFENSE TO THE ACTION POINT II THIS ACTION SHOULD BE DISMISSED UNDER CPLR § 3211(a)(8) FOR LACK OF JURISDICTION POINT III A TEMPORARY RESTRAINING ORDER STAYING ENFORCEMENT OF THE DEFAULT JUDGMENT AND LIFTING ALL RESTRAINTS SHOULD BE GRANTED BECAUSE DEFENDANT HAS DEMONSTRATED ENTITLEMENT TO INJUNCTIVE RELIEF CONCLUSION 2 of 10 INDEX NO. 614638/2019 FILED: NASSAU COUNTY CLERK 07707/2023 09:08 AM NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023 TABLE OF AUTHORITIES Cases Aames Capital Corp. v. Davidsohn 24 A.D. 3d 474 (2nd Dept., 2015) Eugene Di Lorenzo, Inc. v. A. C. Dutton Lumber Co. 67 N.Y. 2d 138 (1986) Marinoff v. Natty Realty Corp. 17 A.D. 3d 412 (2nd Dept., 2001) Orlosky v. Empire Sec. Sys. 230 A.D. 2d 401 (3rd Dept., 1997) Skyline Agency v. Ambrose Coppotelli 117 A.D. 2d 135 (2nd Dept., 1986) State v. Kama 267 A.D. 2d 225 (2nd Dept., 1999) Thattil v. Mondesir 275 A.D. 2d 408 (2nd Dept., 2000) W. T. Grant Co. v. Srogi 52 N.Y. 2d 496 (1981)... Statutes CPLR § 306 CPLR § 317 1,4,5 CPLR § 3211 1,5 CPLR § 5015. 1,2,3,4 i 3 of 10 INDEX NO. 614638/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023 PRELIMINARY STATEMENT Defendant submits this memorandum of law in support of its motion to vacate the default judgment entered against it and to dismiss this action and the application for a temporary restraining Order staying enforcement of the judgment and lifting all restraints pending the hearing and determination of the motion. Defendant’s President has submitted a statement made under the penalties of perjury denying that Defendant was served with process or any other prior notice of this action. This affidavit contradicts the process server’s affidavit of service. As a result, the default judgment should be vacated under CPLR § 5015(a)(4). Defendant has submitted credible evidence that the President’s signature on the document that Plaintiff claims is a contract between the parties that forms the basis for this action is in fact a forgery. As a result, in addition to having demonstrated a reasonable excuse due to lack of service, Defendant has also demonstrated a meritorious defense sufficient for the default judgment to be vacated under CPLR § 5015(a)(1). Similarly, Defendant has demonstrated grounds to vacate the default judgment under CPLR § 317 because it did not receive notice of the action in time to defend itself and has a meritorious defense to the action. Furthermore, Defendant has demonstrated fraud sufficient for the default judgment to be vacated under CPLR § 5015(a)(3). Defendant is entitled to dismissal under CPLR § 3211(a)(8) because it was never served with process. Since the judgment should be vacated, temporary injunctive relief should be granted staying enforcement of the default judgment and lifting all restraints pending the hearing and determination ofthis motion. -1- 4 of 10 INDEX NO. 614638/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF 07/07/2023 STATEMENT OF FACTS Please see the accompanying affidavits of Albert Shakarov and Arthur Shakarov. ARGUMENT POINT I THE DEFAULT JUDGMENT SHOULD BE VACATED 1. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR § 5015(a)(4) BECAUSE DEFENDANT WAS NEVER SERVED WITH PROCESS CPLR § 5015(a)(4) authorizes the vacatur of a default for lack of jurisdiction, stating as follows: The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of ... lack ofjurisdiction to render the judgment or order. CPLR § 306(b) requires the affidavit of service to describe identifying features of the person served, stating as follows: Whenever service is made pursuant to this article by delivery of the summons to an individual, proof of service shall also include, in addition to any other requirement, a description of the person to whom it was so delivered, including, but not limited to, sex, color of skin, hair color, approximate age, approximate weight and height, and other identifying features. (Emphasis added). A defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server’s affidavit and necessitates and evidentiary hearing. Skyline Agency v. Ambrose Coppotelli, 117 A.D. 2d 135, 139 (2nd Dept., 1986) (“Where ... as here, there is a sworn denial of service by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing.”’) (internal citations omitted). Here, where Defendant’s Vice President has submitted -2- 5 of 10 INDEX NO. 614638/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023 an affidavit under penalty of perjury affirming denial of service, contradicting the process server’s affidavit, and demonstrating material omissions from the process server’s affidavit, Defendant is entitled to vacatur for lack of personal jurisdiction, or, at the very least, a traverse hearing. 2. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR § 5015(a)(1) BECAUSE DEFENDANT HAS A REASONABLE EXCUSE FOR ITS DEFAULT AND A MERITORIOUS DEFENSE TO THE ACTION CPLR § 5015(a)(1) authorizes the vacatur of an excusable default, providing in relevant part as follows: The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of ... excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry A defendant seeking to vacate a default judgment must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action. Eugen Di Lorenzo, Inc. v. A. C. Dutton Lumber Co., 67 N.Y. 2d 138 (1986). “The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court.” Thattil v. Mondesir, 275 A.D. 2d 408, 409 (2nd Dept., 2000). The defense that is presented needs to be potentially meritorious, and it is not necessary that the defense be established valid as a matter of law. Marinoff v. Natty Realty Corp., 17 A.D. 3d 412 (2nd Dept., 2001). “The Supreme Court has the inherent authority to vacate a judgment in the interest of justice, even where the statutory one-year period under CPLR 5015(a)(1) has expired.” State v. Kama, 267 A.D. 2d 225, 225 (2nd Dept., 1999) (internal citations omitted). -3- 6 of 10 INDEX NO. 614638/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023 Here, Defendant has a reasonable excuse for its default because it was never served, nor did it have any prior knowledge of this action. Defendant also has a meritorious defense because the document that Plaintiff claims is a written contract that forms the basis for this action is in fact a void forgery. 3. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR § 5015(a)(3) BECAUSE PLAINTIFF’S CLAIM IS PREMISED ON A VOID FORGERY CPLR § 5015(a)(3) authorizes the vacatur of a default judgment obtained by fraud, providing in relevant part as follows: The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of ... fraud, misrepresentation, or other misconduct of an adverse party. Forgery renders a contract void ab initio. Orlosky v. Empire Sec. Sys., 230 A.D. 2d 401, 403 (3rd Dept., 1997) (‘there can be no meeting of the minds of the parties when a forgery has been perpetrated”). There is no express time limit for seeking relief from a default judgment pursuant to CPLR § 5015(a)(3). Aames Capital Corp. v. Davidsohn, 24 A.D. 3d 474, 475 (2nd Dept., 2015). Here, the default judgment should be vacated because this entire action is premised on a forgery. 4. THE DEFAULT JUDGMENT SHOULD BE VACATED UNDER CPLR § 317 BECAUSE DEFENDANT DID NOT RECEIVE NOTICE OF THE ACTION IN TIME TO DEFEND ITSELF AND HAS A MERITORIOUS DEFENSE TO THE ACTION CPLR § 317 authorizes the vacatur of a default judgment where the defendant was not personally served and demonstrates a potentially meritorious defense to the action, providing in relevant part as follows: -4- 7 of 10 INDEX NO. 614638/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023 A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. Here, where Defendant was not personally served and it has been less than 5 years since the entry of judgment and less than a year since Defendant became aware of the action, the default judgment should be vacated pursuant to CPLR § 317 because Defendant has demonstrated that it was not served, that it was not aware of the action, and that it has a meritorious defense as explained above. POINT IT THIS ACTION SHOULD BE DISMISSED UNDER CPLR § 3211(a)(8) FOR LACK OF JURISDICTION CPLR § 3211(a)(8) provides that [a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that ... the court has not jurisdiction over the person of the defendant”. Here, as explained above, Defendant was not served with process in this action. Accordingly, upon vacatur of the default judgment, this action should be dismissed. POINT HI A TEMPORARY RESTRAINING ORDER STAYING ENFORCEMENT OF THE DEFAULT JUDGMENT AND LIFTING ALL RESTRAINTS SHOULD BE GRANTED BECAUSE DEFENDANT HAS DEMONSTRATED ENTITLEMENT TO INJUNCTIVE RELIEF A temporary restraining order may be granted when the movant can demonstrate: (1) the likelihood of success on the merits (2) irreparable injury absent granting the preliminary injunction, and (3) a balancing of the equities. W. T. Grant Co. v. Srogi, 52 N.Y. 2d 496, 517 (1981). -5- 8 of 10 INDEX NO. 614638/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023 Here, Defendant has demonstrated: (1) a likelihood of success on the merits because it was never served with process and the signature on its purported contract with Plaintiffis a forgery; (2) that Defendant’s restaurant business will suffer irreparable injury if the default judgment continues to be enforced; and (3) upon a consideration of the facts of this matter, a balancing of the equities tips in favor of Defendant. CONCLUSION For all of the foregoing reasons, the default judgment should be vacated and this action should be dismissed. Dated: Garden City, New York July 7, 2023 GENE ROSEN’S LAW FIRM A PROFESSIONAL CORPORATION Attorneys for Defendant By: LEE Gene W. Rosen, Esq. 200 Garden City Plaza, Suite 405 Garden City, New York 11530 Tel (212) 529-3600 Ext. 101 Fax (347) 578-8793 Gene@GeneRosen.com -6- 9 of 10 INDEX NO. 614638/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/07/2023 CERTIFICATION OF COMPLIANCE PURSUANT TO 22 NYCRR § 202.8-b I, Gene W. Rosen, Esq., am filing the foregoing document. The number of words in the document, exclusive of the caption, the signature block, and the pages containing the table of contents and table of authorities, is 1,550. The document complies with the word count limit imposed by 22 NYCRR § 202.8-b. 10 of 10