Preview
FILED: ERIE COUNTY CLERK 11/22/2023 10:43 AM INDEX NO. 813469/2022
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/22/2023
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
NANCY SUDA,
44 Garnet Drive
Cheektowaga, New York 14227
and ATTORNEY
AFFIRMATION
JAMIE ULLMARK, IN OPPOSITION OF
4918 Clifton Parkway DEFENDANT'S
Hamburg, New York 14075 CROSS-MOTION
TOVACATEDEFAULT
JUDGMENT
Plaintiffs,
Index No.: 813469/2022
v.
MICHAEL HERNANDEZ,
Individually and d/b/a M & M General Contracting
6658 Ward Road
Niagara Falls, New York 14304
Defendant.
STATE OF NEW YORK )
) ss:
COUNTY OF ERIE )
OLIVIA PAULO-LEE, ESQ., an attorney admitted to practice in the State of New York,
hereby affirms the truth of the following facts under the penalties of perjury and pursuant to CPLR
2106:
1. I am a Partner at Long & Paulo-Lee, PLLC, the Attorneys for the Plaintiffs,
NANCY SUDA and JAMIE ULLMARK, and as such am fully familiar with the facts and
circumstances of this case.
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2. On or about November 2, 2022, the above-entitled action was commenced by filing
the Summons and Complaint on NYSCEF. NY St Cts Elec Filing [NYSCEF] Doc No 1, Summons
NYSCEF Doc No. 1 and NY St Cts Elec Filing [NYSCEF] Doc No 2, Complaint NYSCEF Doc
No. 2.
3. On or about November 2, 2022 Defendant was sent additional notice enclosing the
Summons with Notice, Complaint, E-Filing Confirmation, Notie of Commencement and a CPLR
3215(g) Notice. NY St Cts Elec Filing [NYSCEF] Doc No 17, Exhibit F CPLR 3215(g) Notice
NYSCEF Doc No. 17.
4. Defendant MICHAEL HERNANDEZ Individually and d/b/a M & M General
Contracting (hereinafter referred to as "Defendant or "Judgment Debtor") was personally served
on November 7, 2022. A true and accurate copy of the Affidavit of Service. NY St Cts Elec Filing
[NYSCEF] Doc No 3, Affidavit of Service Upon Michael Hernandez NYSCEF Doc No. 3.
5. Defendant's Answer or responsive pleading was due by November 28, 2022.
6. To date, Defendant has not served an Answer or moved with respect to the
Complaint, nor was time to do so been extended.
7. On or about February 1, 2023 a Notice of Motion for Default Judgment was filed.
NY St Cts Elec Filing [NYSCEF] Doc No 3, Notice of Motion for Default Judgment NYSCEF Doc.
No 4.
8. On or about February 1, 2023 a Notice of Motion for Default Judgment was mailed
to Defendant's last known address. NY St Cts Elec Filing [NYSCEF]Doc No 19, Affidavit of
Mailing NYSCEF Doc No. 19.
9. On or about May 5, 2023, an Order was granted and entered in favor of the Plaintiff.
NY St Cts Elec Filing [NYSCEF]Doc No 20, Order Default Judgment NYSCEF Doc No. 20.
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10. On or about May 10, 2023, the Notice of Entry was filed. NY St Cts Elec Filing
[NYSCEF]Doc No 21, Notice of Entry NYSCEF Doc No. 21.
11. That on or about May 10, 2023, copies of the Notice of Entry along with the Order
of Judgment against him were sent via regular mail to Judgment Debtor for the purpose of
informing Debtor that Judgment has been properly entered to Judgment Debtor's last known
business address. NY St Cts Elec Filing [NYSCEF]Doc No 22, Affidavit of Mailing NYSCEF Doc
No. 22.
12. On July 17, 2023, a Questionnaire, Subpoena Duces Tecum, and Information
Subpoena was personally served upon MICHAEL HERNANDEZ, to answer in writing under
oath certain written questions accompanying the subpoenas relevant to the satisfaction of the
judgment referred to in the subpoena. NY St Cts Elec Filing [NYSCEF]Doc No 31,
Affidavit/Affirmation of Service NYSCEF Doc No. 31.
13. To date, we have not received any response from Judgment Debtor to the written
questions.
14. Judgment Debtor has refused and willfully neglected to answer the information
subpoena, and furthermore, refused and willfully neglected to comply with a Subpoena to Appear
for Deposition.
15. The Subpoena Duces Tecum was properly and duly served upon
Defendant/Judgment Debtor by personal service pursuant to CPLR 308.
16. Judgment Creditors served the Subpoena Duces Tecum outside of the statutory 10
day period, pursuant to CPLR 5224(c).
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17. Plaintiffs then moved for contempt and to compel Defendant compliance by Order
to Show Cause. NY St Cts Elec Filing [NYSCEF]Doc No 24, Notice of Motion NYSCEF Doc. No
24.
18. Five days before this motion was scheduled to be argued, and two days prior to the
return date, Defendant cross-moved to vacate his default, for leave to submit an answer, and to
Plaintiffs'
dismiss Complaint on the basis of CPLR 5015 or for relief from judgment or order. NY
St Cts Elec Filing [NYSCEF]Doc No 32, Notice of Cross-Motion NYSCEF Doc No. 32.
19. Defendant has failed to establish either a meritorious defense to this proceeding or
a reasonable excuse for his default and instead relies on meritless objections to the service and
ignorance to the requirements of having to respond. That is not enough.
20. Defendant was in fact properly served in accordance with the CPLR and personal
jurisdiction was established. Defendant provides no additional excuses for his default and without
a meritorious defense and a reasonable excuse, the default judgement must remain in effect.
21. It is undisputed that Defendant is in default, as he failed to answer the pleadings.
Defendant's attempt to vacate the judgment solely based on service and without establishing a
meritorious defense and reasonable excuse is insufficient to justify vacating the default.
22. Under CPLR 2103(c) and (b)(2) govern service of interlocutory papers on a party
who has not appeared by counsel. Under these provisions, interlocutory papers, such as a default
judgment motion, may be served on an unrepresented party by mail "at the address designated...
address."
or if none is designated, at the...last known CPLR 2103.
23. Consistent with these provisions, Plaintiff served its default judgment motion on
Defendant by mailing the motion to its last address as listed on the Summons and Complaint, the
6658 Ward Road Niagara Falls, New York 14304 address.
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24. The 6658 Ward Road Niagara Falls, New York 14304 address was found through
search upon the Better Business Bureau website and upon a Westlaw search.
25. Further, Defendant requested to meet the process server at 8555 Packard Road,
Niagara Falls, New York 14304. Defendant alleges that the place Defendant requested for service
was not proper or his place of business despite requesting service there.
26. Defendant has not provided any documentary, objective or other evidence to
support their assertion that service of process was improper.
27. Defendant confirms that he received and was properly served the Summons and
Complaint at the address of 8555 Packard Road, Niagara Falls, New York 14304.
28. Defendant further contends that he agreed to meet our office's process server at that
address to accept the papers and conveyed the address they meet at as a place he does business.
14"'
See Affidavit of William Wenham Sworn to on the day of November 2023.
29. Defendant acknowledges and confirms he was personally served the Summons and
Complaint which clearly indicated 6658 Ward Road Niagara Falls, New York 14304 listed as his
address in the caption for his residential address and instead of contesting, or interposing an
answer, Defendant chose to ignore it.
30. After further research, not only do we, but other Plaintiff's in other unrelated
lawsuits have also found Defendant's 6658 Ward Road Niagara Falls, New York 14304 address,
as his last known address.
31. Defendant's attempt to vacate the judgment solely based on service and without
establishing a meritorious defense and reasonable excuse is insufficient to overcome the heavy
burden of vacating the default.
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32. As it is respectfully submitted that this Honorable Court must find Judgment-
such,
Debtor in contempt in that Judgment-Debtor's refusal and willful neglect were calculated to and
actually did defeat, impair, impede, and prejudice the rights and remedies of the Judgment
Creditors herein, in that the Judgment Creditors have been unable to obtain information on matters
relevant to the satisfaction of the judgment as authorized by law.
33. In the moving papers, Plaintiffs demonstrated unequivocally that Defendant had
willfully failed to respond to the Subpoena and should be held in contempt for his refusal to
comply.
CONCLUSION
It is respectfully submitted that Defendant's Cross-Motion to vacate his default be denied
in its entirety. Defendant cannot vacate his default pursuant to C.P.L.R. 5015(a)(1) or C.P.L.R.
5105(a)(4). As such, it is respectfully submitted that Plaintiff's Motion for Contempt should be
granted and that this Court hold Defendant in contempt, require Defendant to purge his contempt
by complying with the Subpoena in full by a date certain, and if he does not, should issue a warrant
Plaintiffs' attorneys'
for his arrest for disobedience of a Court Order and require him to pay fees,
costs, and expenses incurred in bringing this motion.
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FILED: ERIE COUNTY CLERK 11/22/2023 10:43 AM INDEX NO. 813469/2022
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/22/2023
Dated: November 22, 2023
Williamsville, New York
LONG & PAULO-LEE, PLLC
By:
Olivia T. Paulo-Lee, Esq.
Steven K. Long, Esq.
Attorneys for Plaint ff
1967 Wehrle Drive, Suite 9
Williamsville, New York 14221
(716) 634-7400 Telephone
OTL@longpaulolee.com Email
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Preview
FILED: ERIE COUNTY CLERK 11/22/2023 10:43 AM INDEX NO. 813469/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/22/2023 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE NANCY SUDA, 44 Garnet Drive Cheektowaga, New York 14227 and ATTORNEY AFFIRMATION JAMIE ULLMARK, IN OPPOSITION OF 4918 Clifton Parkway DEFENDANT'S Hamburg, New York 14075 CROSS-MOTION TOVACATEDEFAULT JUDGMENT Plaintiffs, Index No.: 813469/2022 v. MICHAEL HERNANDEZ, Individually and d/b/a M & M General Contracting 6658 Ward Road Niagara Falls, New York 14304 Defendant. STATE OF NEW YORK ) ) ss: COUNTY OF ERIE ) OLIVIA PAULO-LEE, ESQ., an attorney admitted to practice in the State of New York, hereby affirms the truth of the following facts under the penalties of perjury and pursuant to CPLR 2106: 1. I am a Partner at Long & Paulo-Lee, PLLC, the Attorneys for the Plaintiffs, NANCY SUDA and JAMIE ULLMARK, and as such am fully familiar with the facts and circumstances of this case. 1 of 7 FILED: ERIE COUNTY CLERK 11/22/2023 10:43 AM INDEX NO. 813469/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/22/2023 2. On or about November 2, 2022, the above-entitled action was commenced by filing the Summons and Complaint on NYSCEF. NY St Cts Elec Filing [NYSCEF] Doc No 1, Summons NYSCEF Doc No. 1 and NY St Cts Elec Filing [NYSCEF] Doc No 2, Complaint NYSCEF Doc No. 2. 3. On or about November 2, 2022 Defendant was sent additional notice enclosing the Summons with Notice, Complaint, E-Filing Confirmation, Notie of Commencement and a CPLR 3215(g) Notice. NY St Cts Elec Filing [NYSCEF] Doc No 17, Exhibit F CPLR 3215(g) Notice NYSCEF Doc No. 17. 4. Defendant MICHAEL HERNANDEZ Individually and d/b/a M & M General Contracting (hereinafter referred to as "Defendant or "Judgment Debtor") was personally served on November 7, 2022. A true and accurate copy of the Affidavit of Service. NY St Cts Elec Filing [NYSCEF] Doc No 3, Affidavit of Service Upon Michael Hernandez NYSCEF Doc No. 3. 5. Defendant's Answer or responsive pleading was due by November 28, 2022. 6. To date, Defendant has not served an Answer or moved with respect to the Complaint, nor was time to do so been extended. 7. On or about February 1, 2023 a Notice of Motion for Default Judgment was filed. NY St Cts Elec Filing [NYSCEF] Doc No 3, Notice of Motion for Default Judgment NYSCEF Doc. No 4. 8. On or about February 1, 2023 a Notice of Motion for Default Judgment was mailed to Defendant's last known address. NY St Cts Elec Filing [NYSCEF]Doc No 19, Affidavit of Mailing NYSCEF Doc No. 19. 9. On or about May 5, 2023, an Order was granted and entered in favor of the Plaintiff. NY St Cts Elec Filing [NYSCEF]Doc No 20, Order Default Judgment NYSCEF Doc No. 20. 2 2 of 7 FILED: ERIE COUNTY CLERK 11/22/2023 10:43 AM INDEX NO. 813469/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/22/2023 10. On or about May 10, 2023, the Notice of Entry was filed. NY St Cts Elec Filing [NYSCEF]Doc No 21, Notice of Entry NYSCEF Doc No. 21. 11. That on or about May 10, 2023, copies of the Notice of Entry along with the Order of Judgment against him were sent via regular mail to Judgment Debtor for the purpose of informing Debtor that Judgment has been properly entered to Judgment Debtor's last known business address. NY St Cts Elec Filing [NYSCEF]Doc No 22, Affidavit of Mailing NYSCEF Doc No. 22. 12. On July 17, 2023, a Questionnaire, Subpoena Duces Tecum, and Information Subpoena was personally served upon MICHAEL HERNANDEZ, to answer in writing under oath certain written questions accompanying the subpoenas relevant to the satisfaction of the judgment referred to in the subpoena. NY St Cts Elec Filing [NYSCEF]Doc No 31, Affidavit/Affirmation of Service NYSCEF Doc No. 31. 13. To date, we have not received any response from Judgment Debtor to the written questions. 14. Judgment Debtor has refused and willfully neglected to answer the information subpoena, and furthermore, refused and willfully neglected to comply with a Subpoena to Appear for Deposition. 15. The Subpoena Duces Tecum was properly and duly served upon Defendant/Judgment Debtor by personal service pursuant to CPLR 308. 16. Judgment Creditors served the Subpoena Duces Tecum outside of the statutory 10 day period, pursuant to CPLR 5224(c). 3 3 of 7 FILED: ERIE COUNTY CLERK 11/22/2023 10:43 AM INDEX NO. 813469/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/22/2023 17. Plaintiffs then moved for contempt and to compel Defendant compliance by Order to Show Cause. NY St Cts Elec Filing [NYSCEF]Doc No 24, Notice of Motion NYSCEF Doc. No 24. 18. Five days before this motion was scheduled to be argued, and two days prior to the return date, Defendant cross-moved to vacate his default, for leave to submit an answer, and to Plaintiffs' dismiss Complaint on the basis of CPLR 5015 or for relief from judgment or order. NY St Cts Elec Filing [NYSCEF]Doc No 32, Notice of Cross-Motion NYSCEF Doc No. 32. 19. Defendant has failed to establish either a meritorious defense to this proceeding or a reasonable excuse for his default and instead relies on meritless objections to the service and ignorance to the requirements of having to respond. That is not enough. 20. Defendant was in fact properly served in accordance with the CPLR and personal jurisdiction was established. Defendant provides no additional excuses for his default and without a meritorious defense and a reasonable excuse, the default judgement must remain in effect. 21. It is undisputed that Defendant is in default, as he failed to answer the pleadings. Defendant's attempt to vacate the judgment solely based on service and without establishing a meritorious defense and reasonable excuse is insufficient to justify vacating the default. 22. Under CPLR 2103(c) and (b)(2) govern service of interlocutory papers on a party who has not appeared by counsel. Under these provisions, interlocutory papers, such as a default judgment motion, may be served on an unrepresented party by mail "at the address designated... address." or if none is designated, at the...last known CPLR 2103. 23. Consistent with these provisions, Plaintiff served its default judgment motion on Defendant by mailing the motion to its last address as listed on the Summons and Complaint, the 6658 Ward Road Niagara Falls, New York 14304 address. 4 4 of 7 FILED: ERIE COUNTY CLERK 11/22/2023 10:43 AM INDEX NO. 813469/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/22/2023 24. The 6658 Ward Road Niagara Falls, New York 14304 address was found through search upon the Better Business Bureau website and upon a Westlaw search. 25. Further, Defendant requested to meet the process server at 8555 Packard Road, Niagara Falls, New York 14304. Defendant alleges that the place Defendant requested for service was not proper or his place of business despite requesting service there. 26. Defendant has not provided any documentary, objective or other evidence to support their assertion that service of process was improper. 27. Defendant confirms that he received and was properly served the Summons and Complaint at the address of 8555 Packard Road, Niagara Falls, New York 14304. 28. Defendant further contends that he agreed to meet our office's process server at that address to accept the papers and conveyed the address they meet at as a place he does business. 14"' See Affidavit of William Wenham Sworn to on the day of November 2023. 29. Defendant acknowledges and confirms he was personally served the Summons and Complaint which clearly indicated 6658 Ward Road Niagara Falls, New York 14304 listed as his address in the caption for his residential address and instead of contesting, or interposing an answer, Defendant chose to ignore it. 30. After further research, not only do we, but other Plaintiff's in other unrelated lawsuits have also found Defendant's 6658 Ward Road Niagara Falls, New York 14304 address, as his last known address. 31. Defendant's attempt to vacate the judgment solely based on service and without establishing a meritorious defense and reasonable excuse is insufficient to overcome the heavy burden of vacating the default. 5 5 of 7 FILED: ERIE COUNTY CLERK 11/22/2023 10:43 AM INDEX NO. 813469/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/22/2023 32. As it is respectfully submitted that this Honorable Court must find Judgment- such, Debtor in contempt in that Judgment-Debtor's refusal and willful neglect were calculated to and actually did defeat, impair, impede, and prejudice the rights and remedies of the Judgment Creditors herein, in that the Judgment Creditors have been unable to obtain information on matters relevant to the satisfaction of the judgment as authorized by law. 33. In the moving papers, Plaintiffs demonstrated unequivocally that Defendant had willfully failed to respond to the Subpoena and should be held in contempt for his refusal to comply. CONCLUSION It is respectfully submitted that Defendant's Cross-Motion to vacate his default be denied in its entirety. Defendant cannot vacate his default pursuant to C.P.L.R. 5015(a)(1) or C.P.L.R. 5105(a)(4). As such, it is respectfully submitted that Plaintiff's Motion for Contempt should be granted and that this Court hold Defendant in contempt, require Defendant to purge his contempt by complying with the Subpoena in full by a date certain, and if he does not, should issue a warrant Plaintiffs' attorneys' for his arrest for disobedience of a Court Order and require him to pay fees, costs, and expenses incurred in bringing this motion. 6 6 of 7 FILED: ERIE COUNTY CLERK 11/22/2023 10:43 AM INDEX NO. 813469/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/22/2023 Dated: November 22, 2023 Williamsville, New York LONG & PAULO-LEE, PLLC By: Olivia T. Paulo-Lee, Esq. Steven K. Long, Esq. Attorneys for Plaint ff 1967 Wehrle Drive, Suite 9 Williamsville, New York 14221 (716) 634-7400 Telephone OTL@longpaulolee.com Email 7 7 of 7