Preview
FILED: KINGS COUNTY CLERK 09/13/2023 03:50 PM INDEX NO. 10493/2010
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/13/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
SUCCESSOR BY MERGER TO WACHOVIA BANK
NATIONAL ASSOCIATION,
Plaintiff, AFFIRMATION
-against- Index No. 10493/2010
16TH STREET REGENCY LLC, NATHAN HIRSCH
a/k/a NATHAN HIRSH, BENJAMIN MUTZEN, WELLS
FARGO NATIONAL BANK, NATIONAL ASSOCIATION,
SUCCESSOR BY MERGER TO WACHOVIA BANK,
NATIONAL ASSOCIATION, CITY OF NEW YORK BY
ENVIRONMENTAL CONTROL BOARD, CITY OF
NEW YORK BY PARKING VIOLATIONS BUREAU, CITY
OF NEW YORK BY TRANSIT AJUDICATION BUREAU,
ACE INSTALLERS, d/b/a ACCURATE CUSTOM ENTRANCES,
BUILDERS ASSISTANCE CORP., BOARD OF MANAGERS
OF 198-210 16TH STREET CONDOMINIUM,
WILLIAM NCNUTT, JESSICA/AKAMI, NEGAR AKAMI,
Defendants.
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ANTHONY R. FILOSA, an attorney duly admitted to practice law before the
courts of the State of New York, affirms the following under the penalties of perjury.
1. I am a partner of Rosenberg Fortuna & Laitman, LLP, counsel for
Defendants 16th Street Regency LLC, Nathan Hirsch a/k/a Nathan Hirsh and Benjamin Mutzen
(collectively, the “Defendants”) and, as such, I am fully familiar with the facts and circumstances
hereinafter set forth. I submit this Affirmation based upon my personal knowledge of the facts set
forth herein.
2. I submit this Affirmation in opposition to Plaintiff’s motion brought via and
Order to Show Cause for an order: (i) denying the Defendant’s cross-motion for failure to obtain
jurisdiction over Plaintiff; (ii) pursuant to CPLR 5015(a)(4) vacating the Plaintiff’s default in
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appearing at the July 31, 2023 Conference and vacating Plaintiff’s default in opposing the
Defendant’s motion for lack of proper service on Plaintiff; (iii) pursuant to CPLR 2004 for an
extension of time for Plaintiff to submit opposition to Defendant’s cross-motion 60 days from a
final determination of this motion; (iv) restoring Plaintiff’s Motion for Judgment of Foreclosure
and Sale to the Active calendar; and (v) for such other and further relief as this Court may deem
equitable, just and proper.
3. For the reasons that follow, Plaintiff’s motion should be denied in all
respects.
STATEMENT OF FACTS
4. The undersigned, as counsel for Defendants, and counsel for Plaintiff,
stipulated to convert this “paper” case to electronic filing on May 9, 2023 (the “E-Filing
Stipulation”). A copy of the E-Filing Stipulation is annexed hereto as Exhibit “A”.
5. The E-Filing Stipulation constituted Plaintiff’s consent to the use of
NYSCEF electronic filing in this action:
We the undersigned, counsel in good standing
representing parties in this matter, counsel admitted
pro hac vice, and/or a self-represented party in this
matter, hereby stipulate and consent to the use of the
New York State Courts Electronic Filing System
(“NYSCEF”) in this matter.
See Exhibit “A”.
6. Moreover, on May 8, 2023, by separate stipulation, counsel stipulated to
adjourn Plaintiff’s motion for a judgment of foreclosure and sale (Motion Sequence No. 7) to July
31, 2023. See Exhibit “B” at ¶1.
7. On May 11, 2023, counsel wrote the Court jointly (a) to seek approval of
the July 31, 2023 proposed adjourned return date and (b) to advise of the stipulation converting
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the matter to electronic filing. A true and accurate copy of this joint correspondence to the Court
is annexed hereto as Exhibit “C”. The Court approved the July 31, 2023 return date on May 11,
2023. See id.
8. The matter was created on NYSCEF on May 12, 2023. See NYSCEF Doc.
No. 1.
9. Defendants electronically filed their opposition to Plaintiff’s motion and a
Notice of Cross-Motion to NYSCEF on June 16, 2023. See NYSCEF Doc. Nos. 2-6.
10. Plaintiff did not submit any written opposition to Defendants’ cross-motion.
11. The undersigned appeared before the Court for a hearing upon the Plaintiff’s
motion and Defendants’ cross-motion on July 31, 2023.
12. Plaintiff failed to appear at the July 31, 2023 hearing of the motions.
ARGUMENT
A. Plaintiff Fails To Offer A Reasonable Excuse
For Its Failure To Appear On The
July 31, 2023 Return Date
13. “A party seeking to vacate a default in appearing on the return date of the
motion must demonstrate both a reasonable excuse for the default and a potentially meritorious
cause of action or defense”. US Bank Trust NA v Edwards, __ AD3d ___, 2023 NY Slip Op
042229, *1 [Aug. 9, 2023]; Bank of Am., NA v Russell, 197 AD3d 448, 448 [2d Dept 2021].
14. Here, Plaintiff fails to offer a reasonable excuse for its failure to appear on
the July 31, 2023 return date of its motion for a judgment of foreclosure and sale and Defendants’
cross-motion. Nor does it demonstrate the potential merit of its motion and the potential merit of
any defense to the cross-motion.
15. Rather, Plaintiff argues that its default in appearing at the return date of its
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own motion should be excused under CPLR 5015(a)(4) — for lack of personal jurisdiction.
16. Defendants’ service of the Notice of Cross-Motion via electronic filing is
proper for the reasons stated in Section C below.
17. Nevertheless, Plaintiff fails to explain how its alleged lack of notice of the
electronic filing of Defendants’ cross-motion excuses Plaintiff’s failure to appear in person in
support of its own motion for a judgment of foreclosure.
18. This is particularly true in that Plaintiff stipulated in writing to adjourn the
return date of its motion to July 31, 2023. See Exhibit “B”. Plaintiff jointly wrote the Court to
request the adjournment to July 31, 2023. See Exhibit “C”. eCourts reflected the July 31, 2023
return date. See Exhibit “D”. As the Court is aware, the eCourts’ notification system has nothing
to do with whether a case is electronically filed on NYSCEF or a “paper” case. eCourts’
notifications are separate and apart from NYSCEF.
19. Thus, Plaintiff failed to offer a reasonable excuse for its failure to appear on
the July 31, 2023 return date of its motion. See Edwards, supra; Russell, supra.
B. Plaintiff Was Served With The Notice Of Cross-Motion
Via NYSCEF Electronic Filing
20. Contrary to Plaintiff’s contention, Defendants’ service of their Notice of
Cross-Motion via NYSCEF electronic filing was proper service upon Plaintiff and conferred
jurisdiction over the Court to entertain Defendants’ cross-motion. See 22 NYCRR 202.5-b(f)(2)(ii)
(“An e-filing party causes a service of an interlocutory document to be made upon another party
participating in e-filing by filing the document electronically”).
21. By stipulating and consenting to electronic filing in this action, Plaintiff
agreed to accept service of documents via NYSCEF electronic filing. See 22 NYCRR 202.5-
b(b)(2)(ii) (“A consent to e-filing in an action shall state that the party providing it agrees to the
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use of e-filing in the action and to be bound by the filing and service provisions of this section”).
22. The E-Filing Stipulation constituted Plaintiff’s consent to the use of
NYSCEF electronic filing in this action. See Exhibit “A”; see ¶5, supra.
23. Accordingly, Defendants’ service of the Notice of Cross-Motion via
NYSCEF electronic filing was proper, and conferred jurisdiction upon the Court to adjudicate the
cross-motion. See CPLR 2215.
WHEREFORE, Plaintiff’s motion should be denied in its entirety, together with
such other and further relief as the Court deems just and proper.
Dated: Garden City, New York
September 13, 2023
Anthony R . Filosa
ANTHONY R. FILOSA
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PRINTING SPECIFICATIONS STATEMENT
I hereby certify that the foregoing AFFIRMATION was prepared on a computer using Microsoft
Word.
Type. A proportionally spaced typeface was used, as follows:
Name of typeface: Times New Roman
Point size: 12
Line spacing: Double
Word Count. The total number of words in this brief, inclusive of point headings and footnotes
and exclusive of pages containing the table of contents, table of citations, proof of service and this
Statement is 1,059.
Dated: Garden City, New York
September 13, 2023
ROSENBERG FORTUNA &
LAITMAN, LLP
By: Anthony R . Filosa
ANTHONY R. FILOSA
Attorneys for Defendants
16th Street Regency LLC,
Nathan Hirsch a/k/a Nathan Hirsh
and Benjamin Mutzen
666 Old Country Road, Suite 810
Garden City, New York 11530
(516) 228-6666
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Preview
FILED: KINGS COUNTY CLERK 09/13/2023 03:50 PM INDEX NO. 10493/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X WELLS FARGO BANK, NATIONAL ASSOCIATION, SUCCESSOR BY MERGER TO WACHOVIA BANK NATIONAL ASSOCIATION, Plaintiff, AFFIRMATION -against- Index No. 10493/2010 16TH STREET REGENCY LLC, NATHAN HIRSCH a/k/a NATHAN HIRSH, BENJAMIN MUTZEN, WELLS FARGO NATIONAL BANK, NATIONAL ASSOCIATION, SUCCESSOR BY MERGER TO WACHOVIA BANK, NATIONAL ASSOCIATION, CITY OF NEW YORK BY ENVIRONMENTAL CONTROL BOARD, CITY OF NEW YORK BY PARKING VIOLATIONS BUREAU, CITY OF NEW YORK BY TRANSIT AJUDICATION BUREAU, ACE INSTALLERS, d/b/a ACCURATE CUSTOM ENTRANCES, BUILDERS ASSISTANCE CORP., BOARD OF MANAGERS OF 198-210 16TH STREET CONDOMINIUM, WILLIAM NCNUTT, JESSICA/AKAMI, NEGAR AKAMI, Defendants. ---------------------------------------------------------------------X ANTHONY R. FILOSA, an attorney duly admitted to practice law before the courts of the State of New York, affirms the following under the penalties of perjury. 1. I am a partner of Rosenberg Fortuna & Laitman, LLP, counsel for Defendants 16th Street Regency LLC, Nathan Hirsch a/k/a Nathan Hirsh and Benjamin Mutzen (collectively, the “Defendants”) and, as such, I am fully familiar with the facts and circumstances hereinafter set forth. I submit this Affirmation based upon my personal knowledge of the facts set forth herein. 2. I submit this Affirmation in opposition to Plaintiff’s motion brought via and Order to Show Cause for an order: (i) denying the Defendant’s cross-motion for failure to obtain jurisdiction over Plaintiff; (ii) pursuant to CPLR 5015(a)(4) vacating the Plaintiff’s default in 1 of 6 FILED: KINGS COUNTY CLERK 09/13/2023 03:50 PM INDEX NO. 10493/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/13/2023 appearing at the July 31, 2023 Conference and vacating Plaintiff’s default in opposing the Defendant’s motion for lack of proper service on Plaintiff; (iii) pursuant to CPLR 2004 for an extension of time for Plaintiff to submit opposition to Defendant’s cross-motion 60 days from a final determination of this motion; (iv) restoring Plaintiff’s Motion for Judgment of Foreclosure and Sale to the Active calendar; and (v) for such other and further relief as this Court may deem equitable, just and proper. 3. For the reasons that follow, Plaintiff’s motion should be denied in all respects. STATEMENT OF FACTS 4. The undersigned, as counsel for Defendants, and counsel for Plaintiff, stipulated to convert this “paper” case to electronic filing on May 9, 2023 (the “E-Filing Stipulation”). A copy of the E-Filing Stipulation is annexed hereto as Exhibit “A”. 5. The E-Filing Stipulation constituted Plaintiff’s consent to the use of NYSCEF electronic filing in this action: We the undersigned, counsel in good standing representing parties in this matter, counsel admitted pro hac vice, and/or a self-represented party in this matter, hereby stipulate and consent to the use of the New York State Courts Electronic Filing System (“NYSCEF”) in this matter. See Exhibit “A”. 6. Moreover, on May 8, 2023, by separate stipulation, counsel stipulated to adjourn Plaintiff’s motion for a judgment of foreclosure and sale (Motion Sequence No. 7) to July 31, 2023. See Exhibit “B” at ¶1. 7. On May 11, 2023, counsel wrote the Court jointly (a) to seek approval of the July 31, 2023 proposed adjourned return date and (b) to advise of the stipulation converting 2 2 of 6 FILED: KINGS COUNTY CLERK 09/13/2023 03:50 PM INDEX NO. 10493/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/13/2023 the matter to electronic filing. A true and accurate copy of this joint correspondence to the Court is annexed hereto as Exhibit “C”. The Court approved the July 31, 2023 return date on May 11, 2023. See id. 8. The matter was created on NYSCEF on May 12, 2023. See NYSCEF Doc. No. 1. 9. Defendants electronically filed their opposition to Plaintiff’s motion and a Notice of Cross-Motion to NYSCEF on June 16, 2023. See NYSCEF Doc. Nos. 2-6. 10. Plaintiff did not submit any written opposition to Defendants’ cross-motion. 11. The undersigned appeared before the Court for a hearing upon the Plaintiff’s motion and Defendants’ cross-motion on July 31, 2023. 12. Plaintiff failed to appear at the July 31, 2023 hearing of the motions. ARGUMENT A. Plaintiff Fails To Offer A Reasonable Excuse For Its Failure To Appear On The July 31, 2023 Return Date 13. “A party seeking to vacate a default in appearing on the return date of the motion must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense”. US Bank Trust NA v Edwards, __ AD3d ___, 2023 NY Slip Op 042229, *1 [Aug. 9, 2023]; Bank of Am., NA v Russell, 197 AD3d 448, 448 [2d Dept 2021]. 14. Here, Plaintiff fails to offer a reasonable excuse for its failure to appear on the July 31, 2023 return date of its motion for a judgment of foreclosure and sale and Defendants’ cross-motion. Nor does it demonstrate the potential merit of its motion and the potential merit of any defense to the cross-motion. 15. Rather, Plaintiff argues that its default in appearing at the return date of its 3 3 of 6 FILED: KINGS COUNTY CLERK 09/13/2023 03:50 PM INDEX NO. 10493/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/13/2023 own motion should be excused under CPLR 5015(a)(4) — for lack of personal jurisdiction. 16. Defendants’ service of the Notice of Cross-Motion via electronic filing is proper for the reasons stated in Section C below. 17. Nevertheless, Plaintiff fails to explain how its alleged lack of notice of the electronic filing of Defendants’ cross-motion excuses Plaintiff’s failure to appear in person in support of its own motion for a judgment of foreclosure. 18. This is particularly true in that Plaintiff stipulated in writing to adjourn the return date of its motion to July 31, 2023. See Exhibit “B”. Plaintiff jointly wrote the Court to request the adjournment to July 31, 2023. See Exhibit “C”. eCourts reflected the July 31, 2023 return date. See Exhibit “D”. As the Court is aware, the eCourts’ notification system has nothing to do with whether a case is electronically filed on NYSCEF or a “paper” case. eCourts’ notifications are separate and apart from NYSCEF. 19. Thus, Plaintiff failed to offer a reasonable excuse for its failure to appear on the July 31, 2023 return date of its motion. See Edwards, supra; Russell, supra. B. Plaintiff Was Served With The Notice Of Cross-Motion Via NYSCEF Electronic Filing 20. Contrary to Plaintiff’s contention, Defendants’ service of their Notice of Cross-Motion via NYSCEF electronic filing was proper service upon Plaintiff and conferred jurisdiction over the Court to entertain Defendants’ cross-motion. See 22 NYCRR 202.5-b(f)(2)(ii) (“An e-filing party causes a service of an interlocutory document to be made upon another party participating in e-filing by filing the document electronically”). 21. By stipulating and consenting to electronic filing in this action, Plaintiff agreed to accept service of documents via NYSCEF electronic filing. See 22 NYCRR 202.5- b(b)(2)(ii) (“A consent to e-filing in an action shall state that the party providing it agrees to the 4 4 of 6 FILED: KINGS COUNTY CLERK 09/13/2023 03:50 PM INDEX NO. 10493/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/13/2023 use of e-filing in the action and to be bound by the filing and service provisions of this section”). 22. The E-Filing Stipulation constituted Plaintiff’s consent to the use of NYSCEF electronic filing in this action. See Exhibit “A”; see ¶5, supra. 23. Accordingly, Defendants’ service of the Notice of Cross-Motion via NYSCEF electronic filing was proper, and conferred jurisdiction upon the Court to adjudicate the cross-motion. See CPLR 2215. WHEREFORE, Plaintiff’s motion should be denied in its entirety, together with such other and further relief as the Court deems just and proper. Dated: Garden City, New York September 13, 2023 Anthony R . Filosa ANTHONY R. FILOSA 5 5 of 6 FILED: KINGS COUNTY CLERK 09/13/2023 03:50 PM INDEX NO. 10493/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/13/2023 PRINTING SPECIFICATIONS STATEMENT I hereby certify that the foregoing AFFIRMATION was prepared on a computer using Microsoft Word. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 12 Line spacing: Double Word Count. The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service and this Statement is 1,059. Dated: Garden City, New York September 13, 2023 ROSENBERG FORTUNA & LAITMAN, LLP By: Anthony R . Filosa ANTHONY R. FILOSA Attorneys for Defendants 16th Street Regency LLC, Nathan Hirsch a/k/a Nathan Hirsh and Benjamin Mutzen 666 Old Country Road, Suite 810 Garden City, New York 11530 (516) 228-6666 6 6 of 6