Preview
FILED: NEW YORK COUNTY CLERK 08/30/2023 03:54 AM INDEX NO. 652966/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/30/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------x
EHRLICH GAYNER, LLP,
Plaintiff, Index No. 652966/23
- against -
MATTHEW GATES,
Defendant.
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MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S
MOTION FOR A DEFAULT JUDGMENT AND
IN SUPPORT OF DEFENDANT’S CROSS MOTION FOR SANCTIONS
Defendant Matthew Gates (“Gates” or “Defendant”), by and through his attorneys, The
Roth Law Firm, PLLC, hereby submits this Memorandum of Law in Opposition to Plaintiff
Ehrlich Gayner’s (“Plaintiff) Motion for a Default Judgment and in support of Gates cross
motion for sanctions pursuant to 22 N.Y.C.R.R. § 130-1.1(a) as follows:
ARGUMENT
The motion, by a purportedly experienced law firm, is frivolous.
First, and foremost, there can be no default as Plaintiff has not even completed service of
the Summons and Complaint. That is, by its motion papers, Plaintiff admittedly simply dropped
the Complaint off at Gates alleged actual place of business. That, in and of itself, is insufficient
to constitute service.
Second, it is well established under the laws of the State of New York that a default
judgment will not be entered where the defendant has demonstrated excusable default and a
meritorious defense to the action. Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., 67
N.Y.2d 138, 501 N.Y.S.2d 8 (1986) (citations omitted).
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For the reasons stated below, this Court should not allow for a default and should allow
Gates to answer the complaint. Further, as set forth below, not only did Plaintiff prematurely
move for default, but when asked by counsel for Gates if it would simply withdraw the motion as
it was a waste of judicial and legal resources, Plaintiff refused to do so. That action is frivolous
and malicious.
POINT I
THE COURT SHOULD NOT ISSUE A DEFAULT
AS SERVICE OF PROCESS IS NOT YET COMPLETE
By its motion, Plaintiff submits an affidavit of service from Rachel Hughes, who claims
that she delivered a copy of the Summons and Complaint to a Compliance Officer at Gate’s
place of business. Assuming, for purposes of the motion, that the office was Gate’s place of
business, that service alone is insufficient to fully effectuate service.
CPLR Section 308(2) provides:
§ 308. Personal service upon a natural person. Personal service upon a natural
person shall be made by any of the following methods:
2. by delivering the summons within the state to a person of suitable age and
discretion at the actual place of business, dwelling place or usual place of
abode of the person to be served and by either mailing the summons to the
person to be served at his or her last known residence or by mailing the
summons by first class mail to the person to be served at his or her actual place
of business in an envelope bearing the legend "personal and confidential" and
not indicating on the outside thereof, by return address or otherwise, that the
communication is from an attorney or concerns an action against the person to
be served, such delivery and mailing to be effected within twenty days of each
other; proof of such service shall be filed with the clerk of the court
designated in the summons within twenty days of either such delivery or mailing,
whichever is effected later; service shall be complete ten days after such filing;
proof of service shall identify such person of suitable age and discretion and
state the date, time and place of service …
(emphasis added).
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Hughes, by her affidavit of service, states that she began service by delivering
the Summons and Complaint to Gate’s actual place of business, but never either: (i)
mailed the summons to his last known address; nor (ii) mailed it by first class mail
marked “personal and confidential.” Nor is there any proof in the New York State
Unified Court System that she has done so or that anyone has done so.
More egregious is the fact that Plaintiff is well aware that service has not been
complete. Indeed, by its motion papers, in the Affirmation of Charles Gayner, dated
August 4, 2023, Mr. Gayner states:
Thus, Plaintiff makes its motion for default judgment before even completing service!
If that were not enough, even assuming service was proper and complete on
June 23, 2023, as the statue makes clear, service is not even complete until 10 days after
the filing of the Affidavit of Service. Since it was filed on June 23, 2023, service could
not be complete until August 3, 2023. Notwithstanding, Plaintiff made its motion on
August 4, 2023. Such conduct, by an attorney and law firm that has been practicing in
this state for decades, is not only vexatious, but frivolous – particularly when it is suing a
client – and should be met with swift and serious sanctions by the Court.
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POINT II
ASSUMING ARGUENDO, THERE WAS A DEFAULT, IT IS EXCUSABLE
An excusable default exists where the default was neither willful nor deliberate (i.e.
inadvertent). See Fabel v. Fabel, 33 A.D.2d 922, 307 N.Y.S.2d 514 (2d Dep't 1970); Bouxsein
v. Bialo, 35 A.D.2d 523, 313 N.Y.S.2d 426 (2nd Dept. 1970). Where the period of delay is de
minimus a motion for a default should be denied. See Sisalcords Do Brazil, Ltd. v. Fiacaq
Brasileira De Sisal, 34 A.D.2d 778, 310 N.Y.S.2d 870 (lst Dept. 1970).
Indeed, Courts of this state routinely vacate defaults where the time period is short. In
Tugendhaft v. Country Estates Associates, 111 A.D.2d 846, 490 N.Y.S.2d 991(2nd Dept. 1985),
the Court, without discussing the conduct of Appellants' counsel, termed a delay of ninety days
"a relatively short time", and vacated a default judgment in light of the public policy favoring
resolution of disputes on their merits. Id. at 992. The lower court did not even address the
reasonableness of defendant's excuse. Indeed, a default judgment has also been ordered
vacated where over three years had passed from defendant's time to answer. Berlin v.
Schlotthauer, 117 A.D.2d 768, 499 N.Y.S.2d 421 (2d Dep't 1986). Again, the existence of
meritorious defenses was the deciding factor. Id., at 422.
Here, according to the motion papers -- while service is not even complete – assuming it
was, Gates Answer was due one day before the motion was made! Moreover, as indicated by the
Roth Affirmation, he contacted Plaintiff immediately after receiving the motion and asked
Gayner to withdraw it, which he refused to do. Roth Aff., ¶¶ 10.
Such does not amount to willful or deliberate default, and as explained in the annexed
Affidavit of Matthew Gates, the only reason why he did not submit an Answer was because he
was never informed of service. Thus, Gate’s alleged default is excusable.
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POINT III
GATES HAS SERIOUS MERITORIOUS DEFENSES
A meritorious defense simply requires an affidavit of merit by an individual with
personal knowledge of the underlying facts. Jackson v. Pelletier, 160 A.D.2d 604, 554 N.Y.S.2d
248 (1st Dep't 1990); Buderwitz v. Cunningham, 101 A.D.2d 821, 475 N.Y.S.2d 300 (2d Dep't
1984). Such an affidavit need only make out a prima facie showing of a meritorious defense. Tat
Sang Kwong v. Budge-Wood Laundry Service, Inc., 97 A.D.2d 691, 468 N.Y.S.2d 110 (lst Dep't
1983).
As set forth in the accompanying affidavit of Mathew Gates, sworn to August 23, 2023,
there are numerous defenses – over and above the procedural defense for failure to serve process
-- including the following: (i) the amount sought in the Complaint is four times the amount that
Plaintiff included in their Notice of Rights to Arbitrate (Gates Aff., ¶ 3; Exhs. A and B); (ii) in
the matter in which Plaintiff claims $7,110 is due, Plaintiff performed virtually no services
allowed his ex-wife to stay in their apartment for a year notwithstanding the fact that there was
an order from the Supreme Court that she could not do so, resulting in a judgment against Gates
(Gates Aff., ¶ 4); (iii) in the matter which Plaintiff seeks $26.255.86, Plaintiff agreed to collect
only on a contingency basis and took no efforts to do so; and (iv) Gates was overbilled for
services, paying approximately $180,000 in fees for a divorce matter (Gates Aff., ¶ 6).
As Gates can establish excusable default and meritorious defense, he respectfully
requests that the Court not issue a default against him.
POINT IV
PLAINTIFF SHOULD BE SANCTIONED
New York law provides broad “discretion [to] award… reasonable attorney’s fees[]
resulting from frivolous conduct.” 22 N.Y.C.R.R. § 130-1.1(a). “Frivolous” conduct is defined
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as: (1) “completely without merit in law and [which] cannot be supported by a reasonable
argument for an extension, modification, or reversal of existing law,” (2) undertaken for the
purpose of delay or harassment, or (3) “asserts material factual statements that are false.” Id. §
130-1.1(c).
In determining whether the conduct was frivolous, the Court is to consider, inter alia,
"whether or not the conduct was continued when its lack of legal or factual basis was apparent,
should have been apparent, or was brought to the attention of counsel or the party." 22 NYCRR
130-1.1 (c). As the Appellate Division has stated, "[o]nce there is a finding of frivolousness,
sanction is mandatory." Nyitray v. New York Athletic Club in City of New York, 274 A.D.2d 326,
712 N.Y.S.2d 89, 90 (lst Dept. 2000); see also Gottlieb v. Northriver Trading Co. LL. 2008 WL
347768 (Sup. Ct., N.Y. Co. Jan 30, 2008) (holding even though some of a party’s arguments on a
motion may not have been frivolous, since many in fact were frivolous, sanctions pursuant to 22
NYCRR 130-1.1 were mandatory). One goal of imposing sanctions is to prevent "the waste of
judicial resources" and deter "vexatious litigation and dilatory or malicious litigation tactics."
Levy v. Carol Management Corp., 260 A.D.2d 27, 34, 698 N.Y.S.2d 226 (lst Dept. 1999) (citing
Kernisan v. Taylor, 171 A.D.2d 869, 567 N.Y.S.2d 794 (2d Dept. 1991).
Here, first and foremost, Plaintiff is a law firm. Second, Plaintiff’s motion is plainly
without merit. As set forth above, the Answer to the Summons is not even due yet! See
affirmation of Richard Roth, dated August 23, 2023, ¶¶ 2 – 6. Indeed, Plaintiff is aware that the
motion is frivolous as in its affidavit supporting the motion it concedes it has not yet completed
service. Roth Aff., ¶ 6.
The frivolity is not just limited to the making of the motion. As Roth makes clear, even
assuming service was proper and complete on June 23, 2023, as the statue makes clear, service is
not even complete until 10 days after the filing of the Affidavit of Service. Since it was filed on
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June 23, 2023, service could not be complete until August 3, 2023. Notwithstanding, Plaintiff
made its motion on August 4, 2023. Roth Aff., ¶ 8.
But there is more. Roth explains that on August 8, 2023, he contacted Mr. Gaynor, the
principal of Plaintiff, asking if his firm would grant Defendant an extension of the date in which
to answer, as it made no sense to litigate a default by a law firm against its client. Mr. Gaynor
refused to do so. Roth Aff., ¶ 10.
Further, Plaintiff, by its motion, seeks a judgment for a “sum certain and/or a sum certain
computation.” Gaynor Aff., ¶ 5. It does not state the amount as it cannot. By the Complaint,
Plaintiff seeks $151,395. See Complaint, ¶ 29 (Fourth Cause of Action), ¶ 33 (Fifth Cause of
Action). Yet, prior to commencing this action, Plaintiff served upon Defendant two Notices of
Client’s Rights to Arbitrate Over Attorney’s Fees pursuant to Part 137 of the New York State
Fee Dispute Resolution Program, forms it is obligated to serve before commencing this action
(the “Notice to Arbitrate Form”), both of which combined total $33,365.86. Gates Aff., Exhs. A
and B.; Roth Aff, ¶¶ 11 – 16.
The frivolity is even worse. That is, not only does Plaintiff now claim that the amount
almost doubled to $51,395, but it seeks another $100,000 from its former client without any basis
whatsoever. That conduct is frivolous, vexatious and wholly inappropriate for a litigant. Roth
Aff., ¶ 17.
Plaintiff even claims that the $151,395 is a “sum certain” and thus, the Clerk of the Court
can issue a Judgment in that amount. Gaynor Aff., ¶ 5. Yet, as set forth by Defendant, no
amount is due. Gates Aff. And if any amount was due, certainly the $151,395 is not a sum
certain. Indeed, Plaintiff is well aware of that fact as it concedes, in the very next paragraph of
Gaynor (¶ 6) that, if a default were to be granted, an inquest is required.
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There is no better proof of the shoddiness of Plaintiff’s work than the papers submitted in
support of the motion. That is, aside from the frivolous argument that there is a default at all, as
Plaintiff never completed service, there are other errors that, frankly, are embarrassing on their
face. For example, the Notice of Motion which starts off referring to an affirmation of
“CHARLES JGAYNER, ESQ.,” dated “November 20, 2021.” There is no such affirmation
and the date is wrong. Simply, counsel did not even affix a proper Notice of Motion. That
is not all, the motion is returnable: “at 9:30 a.m. at an IAS Part, Room 130 on SEPTEMBER
5, 2023 at 9:30 a.m.” Again, while that error should not, in and of itself, result in a denial
of the motion, it exemplifies the work that Plaintiff did for Defendant.
Then there is the Complaint; Plaintiff is suing its former client purportedly under an
agreement between the parties. Yet, the Complaint seeks:
Remarkably, Plaintiff seeks (double) punitive damages on a contract action? Such a claim is, in
a word, frivolous.
Again, while those deficiencies alone do not amount to a violation of 22 N.Y.C.R.R. §
130-1.1(a), the fact, in and of itself, that Plaintiff, a law firm, ran to seek a default judgment
when it knew or should have known that Defendant, its former client, was never properly and
fully served, is frivolous.
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CONCLUSION
For all of the reasons stated above, Gates respectfully requests that Court deny Plaintiff’s
motion and grant his cross motion for sanctions.
DATED: New York, New York
August 29, 2023
THE ROTH LAW FIRM, PLLC
By:________________________
Richard A. Roth
295 Madison Avenue, Floor 22
New York, NY 10017
(212) 542-8882
Attorneys for Defendant
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Preview
FILED: NEW YORK COUNTY CLERK 08/30/2023 03:54 AM INDEX NO. 652966/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/30/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------x EHRLICH GAYNER, LLP, Plaintiff, Index No. 652966/23 - against - MATTHEW GATES, Defendant. ----------------------------------------------------------------------x MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT AND IN SUPPORT OF DEFENDANT’S CROSS MOTION FOR SANCTIONS Defendant Matthew Gates (“Gates” or “Defendant”), by and through his attorneys, The Roth Law Firm, PLLC, hereby submits this Memorandum of Law in Opposition to Plaintiff Ehrlich Gayner’s (“Plaintiff) Motion for a Default Judgment and in support of Gates cross motion for sanctions pursuant to 22 N.Y.C.R.R. § 130-1.1(a) as follows: ARGUMENT The motion, by a purportedly experienced law firm, is frivolous. First, and foremost, there can be no default as Plaintiff has not even completed service of the Summons and Complaint. That is, by its motion papers, Plaintiff admittedly simply dropped the Complaint off at Gates alleged actual place of business. That, in and of itself, is insufficient to constitute service. Second, it is well established under the laws of the State of New York that a default judgment will not be entered where the defendant has demonstrated excusable default and a meritorious defense to the action. Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., 67 N.Y.2d 138, 501 N.Y.S.2d 8 (1986) (citations omitted). 1 1 of 9 FILED: NEW YORK COUNTY CLERK 08/30/2023 03:54 AM INDEX NO. 652966/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/30/2023 For the reasons stated below, this Court should not allow for a default and should allow Gates to answer the complaint. Further, as set forth below, not only did Plaintiff prematurely move for default, but when asked by counsel for Gates if it would simply withdraw the motion as it was a waste of judicial and legal resources, Plaintiff refused to do so. That action is frivolous and malicious. POINT I THE COURT SHOULD NOT ISSUE A DEFAULT AS SERVICE OF PROCESS IS NOT YET COMPLETE By its motion, Plaintiff submits an affidavit of service from Rachel Hughes, who claims that she delivered a copy of the Summons and Complaint to a Compliance Officer at Gate’s place of business. Assuming, for purposes of the motion, that the office was Gate’s place of business, that service alone is insufficient to fully effectuate service. CPLR Section 308(2) provides: § 308. Personal service upon a natural person. Personal service upon a natural person shall be made by any of the following methods: 2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service … (emphasis added). 2 2 of 9 FILED: NEW YORK COUNTY CLERK 08/30/2023 03:54 AM INDEX NO. 652966/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/30/2023 Hughes, by her affidavit of service, states that she began service by delivering the Summons and Complaint to Gate’s actual place of business, but never either: (i) mailed the summons to his last known address; nor (ii) mailed it by first class mail marked “personal and confidential.” Nor is there any proof in the New York State Unified Court System that she has done so or that anyone has done so. More egregious is the fact that Plaintiff is well aware that service has not been complete. Indeed, by its motion papers, in the Affirmation of Charles Gayner, dated August 4, 2023, Mr. Gayner states: Thus, Plaintiff makes its motion for default judgment before even completing service! If that were not enough, even assuming service was proper and complete on June 23, 2023, as the statue makes clear, service is not even complete until 10 days after the filing of the Affidavit of Service. Since it was filed on June 23, 2023, service could not be complete until August 3, 2023. Notwithstanding, Plaintiff made its motion on August 4, 2023. Such conduct, by an attorney and law firm that has been practicing in this state for decades, is not only vexatious, but frivolous – particularly when it is suing a client – and should be met with swift and serious sanctions by the Court. 3 3 of 9 FILED: NEW YORK COUNTY CLERK 08/30/2023 03:54 AM INDEX NO. 652966/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/30/2023 POINT II ASSUMING ARGUENDO, THERE WAS A DEFAULT, IT IS EXCUSABLE An excusable default exists where the default was neither willful nor deliberate (i.e. inadvertent). See Fabel v. Fabel, 33 A.D.2d 922, 307 N.Y.S.2d 514 (2d Dep't 1970); Bouxsein v. Bialo, 35 A.D.2d 523, 313 N.Y.S.2d 426 (2nd Dept. 1970). Where the period of delay is de minimus a motion for a default should be denied. See Sisalcords Do Brazil, Ltd. v. Fiacaq Brasileira De Sisal, 34 A.D.2d 778, 310 N.Y.S.2d 870 (lst Dept. 1970). Indeed, Courts of this state routinely vacate defaults where the time period is short. In Tugendhaft v. Country Estates Associates, 111 A.D.2d 846, 490 N.Y.S.2d 991(2nd Dept. 1985), the Court, without discussing the conduct of Appellants' counsel, termed a delay of ninety days "a relatively short time", and vacated a default judgment in light of the public policy favoring resolution of disputes on their merits. Id. at 992. The lower court did not even address the reasonableness of defendant's excuse. Indeed, a default judgment has also been ordered vacated where over three years had passed from defendant's time to answer. Berlin v. Schlotthauer, 117 A.D.2d 768, 499 N.Y.S.2d 421 (2d Dep't 1986). Again, the existence of meritorious defenses was the deciding factor. Id., at 422. Here, according to the motion papers -- while service is not even complete – assuming it was, Gates Answer was due one day before the motion was made! Moreover, as indicated by the Roth Affirmation, he contacted Plaintiff immediately after receiving the motion and asked Gayner to withdraw it, which he refused to do. Roth Aff., ¶¶ 10. Such does not amount to willful or deliberate default, and as explained in the annexed Affidavit of Matthew Gates, the only reason why he did not submit an Answer was because he was never informed of service. Thus, Gate’s alleged default is excusable. 4 4 of 9 FILED: NEW YORK COUNTY CLERK 08/30/2023 03:54 AM INDEX NO. 652966/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/30/2023 POINT III GATES HAS SERIOUS MERITORIOUS DEFENSES A meritorious defense simply requires an affidavit of merit by an individual with personal knowledge of the underlying facts. Jackson v. Pelletier, 160 A.D.2d 604, 554 N.Y.S.2d 248 (1st Dep't 1990); Buderwitz v. Cunningham, 101 A.D.2d 821, 475 N.Y.S.2d 300 (2d Dep't 1984). Such an affidavit need only make out a prima facie showing of a meritorious defense. Tat Sang Kwong v. Budge-Wood Laundry Service, Inc., 97 A.D.2d 691, 468 N.Y.S.2d 110 (lst Dep't 1983). As set forth in the accompanying affidavit of Mathew Gates, sworn to August 23, 2023, there are numerous defenses – over and above the procedural defense for failure to serve process -- including the following: (i) the amount sought in the Complaint is four times the amount that Plaintiff included in their Notice of Rights to Arbitrate (Gates Aff., ¶ 3; Exhs. A and B); (ii) in the matter in which Plaintiff claims $7,110 is due, Plaintiff performed virtually no services allowed his ex-wife to stay in their apartment for a year notwithstanding the fact that there was an order from the Supreme Court that she could not do so, resulting in a judgment against Gates (Gates Aff., ¶ 4); (iii) in the matter which Plaintiff seeks $26.255.86, Plaintiff agreed to collect only on a contingency basis and took no efforts to do so; and (iv) Gates was overbilled for services, paying approximately $180,000 in fees for a divorce matter (Gates Aff., ¶ 6). As Gates can establish excusable default and meritorious defense, he respectfully requests that the Court not issue a default against him. POINT IV PLAINTIFF SHOULD BE SANCTIONED New York law provides broad “discretion [to] award… reasonable attorney’s fees[] resulting from frivolous conduct.” 22 N.Y.C.R.R. § 130-1.1(a). “Frivolous” conduct is defined 5 5 of 9 FILED: NEW YORK COUNTY CLERK 08/30/2023 03:54 AM INDEX NO. 652966/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/30/2023 as: (1) “completely without merit in law and [which] cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law,” (2) undertaken for the purpose of delay or harassment, or (3) “asserts material factual statements that are false.” Id. § 130-1.1(c). In determining whether the conduct was frivolous, the Court is to consider, inter alia, "whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party." 22 NYCRR 130-1.1 (c). As the Appellate Division has stated, "[o]nce there is a finding of frivolousness, sanction is mandatory." Nyitray v. New York Athletic Club in City of New York, 274 A.D.2d 326, 712 N.Y.S.2d 89, 90 (lst Dept. 2000); see also Gottlieb v. Northriver Trading Co. LL. 2008 WL 347768 (Sup. Ct., N.Y. Co. Jan 30, 2008) (holding even though some of a party’s arguments on a motion may not have been frivolous, since many in fact were frivolous, sanctions pursuant to 22 NYCRR 130-1.1 were mandatory). One goal of imposing sanctions is to prevent "the waste of judicial resources" and deter "vexatious litigation and dilatory or malicious litigation tactics." Levy v. Carol Management Corp., 260 A.D.2d 27, 34, 698 N.Y.S.2d 226 (lst Dept. 1999) (citing Kernisan v. Taylor, 171 A.D.2d 869, 567 N.Y.S.2d 794 (2d Dept. 1991). Here, first and foremost, Plaintiff is a law firm. Second, Plaintiff’s motion is plainly without merit. As set forth above, the Answer to the Summons is not even due yet! See affirmation of Richard Roth, dated August 23, 2023, ¶¶ 2 – 6. Indeed, Plaintiff is aware that the motion is frivolous as in its affidavit supporting the motion it concedes it has not yet completed service. Roth Aff., ¶ 6. The frivolity is not just limited to the making of the motion. As Roth makes clear, even assuming service was proper and complete on June 23, 2023, as the statue makes clear, service is not even complete until 10 days after the filing of the Affidavit of Service. Since it was filed on 6 6 of 9 FILED: NEW YORK COUNTY CLERK 08/30/2023 03:54 AM INDEX NO. 652966/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/30/2023 June 23, 2023, service could not be complete until August 3, 2023. Notwithstanding, Plaintiff made its motion on August 4, 2023. Roth Aff., ¶ 8. But there is more. Roth explains that on August 8, 2023, he contacted Mr. Gaynor, the principal of Plaintiff, asking if his firm would grant Defendant an extension of the date in which to answer, as it made no sense to litigate a default by a law firm against its client. Mr. Gaynor refused to do so. Roth Aff., ¶ 10. Further, Plaintiff, by its motion, seeks a judgment for a “sum certain and/or a sum certain computation.” Gaynor Aff., ¶ 5. It does not state the amount as it cannot. By the Complaint, Plaintiff seeks $151,395. See Complaint, ¶ 29 (Fourth Cause of Action), ¶ 33 (Fifth Cause of Action). Yet, prior to commencing this action, Plaintiff served upon Defendant two Notices of Client’s Rights to Arbitrate Over Attorney’s Fees pursuant to Part 137 of the New York State Fee Dispute Resolution Program, forms it is obligated to serve before commencing this action (the “Notice to Arbitrate Form”), both of which combined total $33,365.86. Gates Aff., Exhs. A and B.; Roth Aff, ¶¶ 11 – 16. The frivolity is even worse. That is, not only does Plaintiff now claim that the amount almost doubled to $51,395, but it seeks another $100,000 from its former client without any basis whatsoever. That conduct is frivolous, vexatious and wholly inappropriate for a litigant. Roth Aff., ¶ 17. Plaintiff even claims that the $151,395 is a “sum certain” and thus, the Clerk of the Court can issue a Judgment in that amount. Gaynor Aff., ¶ 5. Yet, as set forth by Defendant, no amount is due. Gates Aff. And if any amount was due, certainly the $151,395 is not a sum certain. Indeed, Plaintiff is well aware of that fact as it concedes, in the very next paragraph of Gaynor (¶ 6) that, if a default were to be granted, an inquest is required. 7 7 of 9 FILED: NEW YORK COUNTY CLERK 08/30/2023 03:54 AM INDEX NO. 652966/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/30/2023 There is no better proof of the shoddiness of Plaintiff’s work than the papers submitted in support of the motion. That is, aside from the frivolous argument that there is a default at all, as Plaintiff never completed service, there are other errors that, frankly, are embarrassing on their face. For example, the Notice of Motion which starts off referring to an affirmation of “CHARLES JGAYNER, ESQ.,” dated “November 20, 2021.” There is no such affirmation and the date is wrong. Simply, counsel did not even affix a proper Notice of Motion. That is not all, the motion is returnable: “at 9:30 a.m. at an IAS Part, Room 130 on SEPTEMBER 5, 2023 at 9:30 a.m.” Again, while that error should not, in and of itself, result in a denial of the motion, it exemplifies the work that Plaintiff did for Defendant. Then there is the Complaint; Plaintiff is suing its former client purportedly under an agreement between the parties. Yet, the Complaint seeks: Remarkably, Plaintiff seeks (double) punitive damages on a contract action? Such a claim is, in a word, frivolous. Again, while those deficiencies alone do not amount to a violation of 22 N.Y.C.R.R. § 130-1.1(a), the fact, in and of itself, that Plaintiff, a law firm, ran to seek a default judgment when it knew or should have known that Defendant, its former client, was never properly and fully served, is frivolous. 8 8 of 9 FILED: NEW YORK COUNTY CLERK 08/30/2023 03:54 AM INDEX NO. 652966/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/30/2023 CONCLUSION For all of the reasons stated above, Gates respectfully requests that Court deny Plaintiff’s motion and grant his cross motion for sanctions. DATED: New York, New York August 29, 2023 THE ROTH LAW FIRM, PLLC By:________________________ Richard A. Roth 295 Madison Avenue, Floor 22 New York, NY 10017 (212) 542-8882 Attorneys for Defendant 9 9 of 9