Preview
NASSAU -COUNTY
.. ...-....
FILED: ....-..- -., - ... -...
CLERK ......,
11/15/2023
...., - - ... - .12:56
. . .. PM
--., INDEX NO. 000198/2018
NY!CEF·· RECEIVED /2023
DOC. NO.
NYSCEF DOC. NO. 104
105 RECEIVED NYS
NYSCEF: 1/14
11/15/2023
RETURN DATE At Part of the Supreme Court of the
ORIGINAL
State of New York, held in and for the
.. County of Nassau, at the Courthouse
REL located at 100 and Court Dr., Mmeola,
New York, 11501 on the \ 4 day of
IN(0 P M 0 t/
, 2023.
P R E S E N T : O rdLci 5m .f
y-,Tsc..
JUSTICE
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
.--------------,.----------------..---.---.....-x
ISABELLE Index No.: 000198/18
MESHOLAM,
Plaintiff,
-against-
ORDER TO SHOW
ELIAS ELK CAUSE
CHALET, LLC, INVESTORS, INC.,
ELIAS KALIMIAN, ROSLYN, LLC, and
MICHELLE MARTINEZ, COUNTY OF NASSAU,
VERA FLUDD, in her official Capacity as NASSAU
COUNTY SHERIFF, JOHN DOE 1 And JOHN DOE 2
(representing the Deputy Sheriffs who Carried out the
eviction of Plaintiff), ALLREADY MOVING AND
STORAGE d/b/a BENNETT MOVERS And/or
BENNETT STORAGE, and J T,
Defendants.
-------------- ------ ------------..--X
PLEASE TAKE NOTICE, that upon the annexed Affirmation of David S. Conklin, Esq.,
BY PAPER
SUBMISSIO
Member of the law firm of Ahmuty, Demers & Mc Manus, attorneys for defendant, ELIAS
ONLY
CHALET, LLC, ELK INVESTORS, INC., ELIAS KALIMIAN, and nOSLYN, LLC
ereinafter "ELIAS", collectively) dated November 9, 2023, let the parties to this action show
cau before this Court located at Part Û \ , Room __of the Supreme Court of the State of
New York, held in and for the County of Nassau at.the Courthouse located at 100 Supreme Court
1 of O
1 of 16
. ...-.
FILED: ....-..,., COUNTY -....
NASSAU -,........ CLERK ......, ....,
11/15/2023 .....- - - .
12:56 - .....,
PM INDEX NO. 000198/2018
RECEIVED 11/14/2023
NYSCEF t)OC. NO.
NYSCEF DOC. NO. 105 104
RECEIVED NYSCEF:
NYSCEF: 11/15/2023
18TH at Oa.m
Dr., Mineola, New York 11501 on the day ofDECEMBER, 2023
as to why an Order should not be entered into this action:
plaintiff's Complaint with prejudice for their unexplained
a) Dismissing
failure to substitute an estate representative for the deceased plaintiff
pursuant to CPLR Section 1021; and
b) Granting any further relief this Court deems just and proper.
IT IS FURTHER ORDERED that service of a copy of this Order, together with the
papers on which it was granted, be served upon all counsel of record via NYSCEF and via
OVERNIGHT MAIL, OVERNIGHT UPS, OR OVERNIGHT FEDERAL EXPRESS
Ye¥tnMXMil upon as follows: KRISTINA S. HEUSER, P.C. Attorneys for Plaintiff 20EXRKK
X μYuXtXM]6)M0½XIXMil; THOMAS A. ADAMS, Attn: Jillian Enright. Attorney for
Defendants COUNTY OF NASSAU and VERA FLUDD, in her official Capacity as Nassau
County Sheriff, DCXMMMMEXMMXMXXMX WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP, Attn: Gregory Regensburg, Attorneys for Defendant MICHELLE
MARTINEZ XM)reysXEKM6KtXMMXElpG@006M04XMM and further service upon
counsel for The Estate of ISABELLE MESHOLAM via email at
OVERNIGHT MAIL, OVERNIGHT UPS OR OVERNIGHT FED EX
YpYK¾Ys]] WNMM¾¾¾¾]] and ryg4)@(rX$(1 upon VISHNICH MCcGOVERN MILIZIO
LLP, Attn: Constantina S. Papageorgiou,. M §1MSMKK0^)$¥i¾X1%¥K&¾K¾&&MK¥MX
Fi¥¥2 on or before the 16TH of
NOVEMBER be deemed
day , 2023 good and sufficient
FILED AND
service. Opposition papers to this motion, if any, are required to be rved upon Ahmuty,
Demers & Mc Manus, at 200 I.U. Willets Road, Albertson, New York, 11507 tWeYÄfEyeYp¥MKYo
no later than December 11, 2023; and it is further,
RIXX0001Xl0DG($fMM ETðfK
ORDERED, that affidavits of service shall be filed with the Court before the return date of this motion; and
ORDE that all parties shall submit to chambers before tyjgpturn date of this motion, working courtesy
copies of their respective motion papers which conform to this part's individual rules concerning
motion submissions, including by attaching copies of all ase law and statutory law cited therein.
ENTERED
Nov 14 2023
. R,
COUN Y CLERK S OFFICE
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NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/15/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
_____---____________----_______--________-___________________---__________Ç
ISABELLE Index No.: 000198/18
MESHOLAM,
Plaintiff,
-against-
AFFIRMATION IN
ELIAS LLC, ELK INVESTORS, INC.,
SUPPORT
CHALET,
ELIAS KALIMIAN, ROSLYN, LLC, and
MICHELLE MARTINEZ, COUNTY OF NASSAU,
VERA FLUDD, in her official Capacity as NASSAU
COUNTY SHERIFF, JOHN DOE 1 And JOHN DOE 2
(representing the Deputy Sheriffs who Carried out the
eviction of Plaintiff), ALLREADY MOVING AND
STORAGE d/b/a BENNETT MOVERS And/or
BENNETT STORAGE, and JOHN BENNETT,
Defendants.
-----------------------------________________________----------X
DAVID S. CONKLIN, an attorney admitted to practice before the Courts of the State of
New York, hereby makes the following statements under the penalties of perjury:
1. I am a Member of the law firm of Ahmuty, Demers & McManus, attorneys for
defendants ELIAS CHALET, LLC, ELK INVESTORS, INC., ELIAS KALIMIAN, and
ROSLYN, LLC (hereinafter "ELIAS", collectively) in this action. As such, I am fully familiar
with the facts and circumstances surrounding this matter based upon the review of the file
maintained by your affirmant's office.
2. This Affirmation is respectfully submitted in support of the within motion for an
Order, pursuant to CPLR Section 1021 dismissing plaintiff's Complaint with prejudice for their
unexplained failure to substitute an estate representative for the deceased plaintiff, and for such
other and further relief as this Court deems just and proper.
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NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/15/2023
3. This action, its current form was purportedly commenced by plaintiff, ISABELLE
MESHOLAM (hereinafter "MESHOLAM"), by the service of an Amended Verified Complaint
dated February 20, 2018 and filed with the Clerk on January 30, 2020. See NYSCEF Doc No. 4.
4. Issue was joined by defendant, Michelle Martinez (hereinafter MARTINEZ) by
the service of a Verified Answer on February 28, 2020. See NYSCEF Doc No. 5.
5. Issue was joined by defendant "ELIAS", by the filing of a Verified Answer on
March 2, 2020 See NYSCEF Doc No. 7.
6. By way of order dated June 4, 2021 this court issued an order which in part
consolidated plaintiff's action commenced against ELIAS and MARTINEZ with a subsequent
action commenced against COUNTY OF NASSAU, VERA FLUDD, in her official Capacity as
NASSAU COUNTY SHERIFF, JOHN DOE 1 And JOHN DOE 2 (representing the Deputy
Sheriffs who Carried out the eviction of Plaintiff), ALLREADY MOVING AND STORAGE
d/b/a BENNETT MOVERS And/or BENNETT STORAGE, and JOHN BENNETT. See
NYSCEF Doc No. 59.
7. By way of a preliminary conference order and stipulation dated August 5, 2021
and entered on August 13, 2021 Justice Helen Voutsinas ordered that plaintiff's deposition take
place on September 15, 2021. See NYSCEF Doc No. 65.
8. As plaintiff failed to appear for her court ordered deposition counsel for
MARTINEZ made a motion to dismiss plaintiff's complaint for failure to prosecute See
NYSCEF Does Nos. 65-75 & 76-86.
9. Plaintiff's deposition has never been conducted.
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10. On March 6, 2023 all counsel engaged in a telephone conference with the court.
At that time, counsel for plaintiff confirmed that her client MESHOLAM was deceased, having
passed on August 5, 2022.
11. On March 17, 2023 counsel for plaintiff provided an email update on her efforts
to ascertain who was in charge of plaintiff's estate and to have a determination made on how to
proceed regarding this litigation. (Exhibit A)
12. On March 21, 2023 counsel for plaintiff advised there was no estate and requested
that the conference which had been scheduled for March 21, 2023 be adjourned. (Exhibit B) The
conference was adjourned until October 12, 2023.
13. By way of email dated October 10, 2023 counsel for plaintiff advised she was
residing out of State and would be unable to attend the October 12, 2023 conference . However,
she would email the estate attorney to see what the status was and to make the estate attorney
aware of the court date. (Exhibit C)
14. On October 12, 2023 counsel for plaintiff did not appear for the conference. On
October 12, 2023 plaintiff's counsel advised she had reached out to the estate attorney to see
how they wanted to proceed and provided the estate attorney contact information. (Exhibit D)
15. The court has scheduled a further conference for November 29, 2023 at 9:15 a.m.
16. To date, neither plaintiff's counsel nor the estate attorney has provided any
information regarding plaintiff's next of kin to defense counsel. Defense counsel have not been
provided any information or contacted in any way with respect to the estate's intentions
regarding the decedent's personal injury action, including whether they intend to substitute an
estate representative as the plaintiff. Finally, no efforts have been made to substitute an estate
representative as the plaintiff in this action. It is respectfully submitted that the lack of any effort
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to have an estate representative appointed since plaintiff's death in August of 2022 shows
abandonment of this action.
17. CPLR Section 1021 provides:
A motion for substitution may be made by the successors or
representatives of a party or by any party. If a person who should be
substituted does not appear voluntarily he may be made a party defendant.
If the event requiring substitution occurs before final judgment and
substitution is not made within a reasonable time, the action may be
dismissed as to the party for whom substitution should have been made,
however, such dismissal shall not be on the merits unless the court shall so
indicate...
18. Moreover, the plaintiff in this action failed to testify and was in violation of the
court's preliminary order for close to a year prior to her passing. It is submitted that as a result of
plaintiff's failure to provide testimony prior to her passing it will be impossible for plaintiff to
make out a prima facie case, even if an estate representative is appointed to act as plaintiff in this
matter. Based upon the foregoing, dismissal is warranted.
19. No prior application has been made for the same relief, except as noted herein.
WHEREFORE, it is respectfully requested that the Court issue an Order pursuant to
CPLR Section 1021 dismissing plaintiff's Complaint with prejudice for their unexplained failure
to substitute an estate representative for the deceased plaintiff, and for such other and further
relief as this Court deems just and proper.
Dated: Albertson, New York
November 8, 2023
By: ©@idf. Con n
David s. Conklin
AHMUTY, DEMERS & McMANUS
Attorneys for Defendant
200 I.U. Willets Road
Albertson, New York 11507
(516) 535-1816
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
-----------------------------------------------------------__------X
ISABELLE Index No.: 000198/18
MESHOLAM,
Plaintiff,
WORD COUNT
-against- CERTIFICATION
ELIAS CHALET, LLC, ELK INVESTORS, INC.,
ELIAS KALIMIAN, ROSLYN, LLC, and
MICHELLE MARTINEZ, COUNTY OF NASSAU,
VERA FLUDD, in her official Capacity as NASSAU
COUNTY SHERIFF, JOHN DOE 1 And JOHN DOE 2
(representing the
Deputy Sheriffs who Carried out the
eviction of Plaintiff), ALLREADY MOVING AND
STORAGE d/b/a BENNETT MOVERS And/or
BENNETT STORAGE, and JOHN BENNETT,
Defendants.
--------------------------------_----------------X
WORD COUNT CERTIFICATION
I hereby certify pursuant to § 202.8(b) of the Uniform Civil Rules for the Supreme Court
and the County Court that the foregoing Affirmation complies with the word count limit.
The total number of words, as relied upon the word-processing system used to prepared
the document, is 1,700.
This word count total is inclusive of point headings and footnotes and exclusive of the
caption, table of contents, table of authorities, proof of service and signature block.
Dated: Albertson, New York
November 8, 2023
By: Card/f. Con¾$n
David S. Conklin
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"A"
EXHIBIT
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NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/15/2023
David S. Conklin
From: Kristina S. Heuser, Esq.
Sent: Friday, March 17, 2023 2:55 PM
To: JudgeSingerRemote
Cc: Enright, Jillian; Regensburg, Gregory P.; David S. Conklin; Gregory J.
Subject: Re: Mesholam v. Elias Chalet, et al., Index No. 000198/18
Good Afternoon:
I am emailing to provide an update on my efforts to ascertain who is in charge of Ms. Mesholam's estate and
have a determination made on how to proceed regarding this litigation. I was able to locate Ms. Mesholam's
daughter and, after some missed phone calls back and forth, we spoke and she informed me that an attorney
was named as the executor of Ms. Mesholam's estate. I also learned that said attorney is now a judge, so is no
longer able to serve in the role of executor. I reached out to him and am waiting to hear back from him, but as
of now there is no executor and no estate proceeding. Ms. Mesholam's daughter has no authority regarding
her mother's affairs.
I respectfully request that the conference in this matter scheduled for next week either be adjourned or that
the matter be stayed until such time as an Estate is formed so that someone with authority can make a
decision regarding how to proceed in this matter. Alternatively, I respectfully request that the conference be
held virtually since I reside in Florida and having to incur travel time and expenses when I am not being paid
and have no valuable information to relay to the Court at this time would be unduly burdensome.
I think the Court for its courtesy and understanding.
Sincerely,
Kr(¬wuvS. Hewer, EI.
Kristina S. Heuser, P.C.
23 Birch Hill Road (rear)
Locust Valley, New York 11560
Tel. (516) 676-1565
Fax (516) 676-6382
E-mail: kheuser@heuserlawfirm.com
From: JudgeSingerRemote
Sent: Wednesday, March 1, 2023 10:24 AM
To: Kristina S. Heuser, Esq. ; JudgeSingerRemote
cc: Enright, Jillian ; Regensburg, Gregory P. ;
David S. Conklin ; Gregory J.
Subject: RE: Mesholam v. Elias Chalet, et al., index No. 000198/18
Good morning- Thank you for getting back to me. Ms. Heuser, at the time of the please initiate a
conference,
conference call with the other attorneys, and add chambers as the last party to the conference, using the telephone
number 516-493-3231.
1
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"B"
EXHIBIT
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David S. Conklin
From: Kristina S. Heuser, Esq.
Sent: Tuesday, March 21, 2023 10:00 AM
To: JudgeSingerRemote
Cc: Enright, Jillian; Regensburg, Gregory P.; David S. Conklin; Gregory J.
Subject: Re: Mesholam v. Elias Chalet, et al., Index No. 000198/18
Good morning. I am emailing to follow up on my prior email. At this time there is no estate established and no
one with to direct me vis-a-vis this litigation. For this as well as the fact that I reside out-of··
authority reason,
state, I respectfully request that the conference scheduled for tomorrow be adjourned or, alternatively, that I
be permitted to appear virtually. Thank you for your consideration.
KristmovS, Hemer, EI.
Kristina S. Heuser, P.C.
23 Birch Hill Road (rear)
Locust Valley, New York 11560
Tel. (516) 676-1565
Fax (516) 676-6382
E-mail: kheuser@heuserlawfirm.com
From: Kristina S. Heuser, Esq.
Sent: Friday, March 17, 2023 2:55 PM
To: JudgeSingerRemote
Cc: Enright, Jillian ; Regensburg, Gregory P.;
David S. Conklin ; Gregory J.
Subject: Re: Mesholam v. Elias Chalet, et al., Index No. 000198/18
Good Afternoon:
I am emailing to provide an update on my efforts to ascertain who is in charge of Ms. Mesholam's estate and
have a determination made on how to proceed regarding this litigation. I was able to locate Ms. Mesholam's
daughter and, after some missed phone calls back and forth, we spoke and she
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Analysis
The Superior Court of Santa Barbara County, Local Rules, rule 1308, requires:
“After an action is removed to federal court, remand from the federal court to the state court is effected when the federal court clerk sends a certified copy of the order on remand to the clerk of the superior court. Documents filed in federal court after removal are not provided to the superior court. To complete the superior court’s file after remand, within 30 days of the filing of the order of remand, each party shall file a declaration describing the material pleadings that party filed in the federal action and the pertinent orders or rulings entered in the federal action. Certified or conformed copies of all such pleadings and papers shall be attached to the declaration.”
The first amended complaint, filed in federal court, was not provided. Because the court is not in possession of the first amended complaint, to which the demurrers are directed, it is not possible to rule on the demurrers and the matter needs to be continued. The parties will be ordered to comply with the local rule, and the hearing date will be continued.
Ruling
SUNRISE PROJECTS, LLC, A WYOMING LIMITED LIABILITY COMPANY VS ALLSTAR FINANCIAL SERVICES, INC., A CALIFORNIA CORPORATION, ET AL.
Jul 19, 2024 |
21SMCV00756
Case Number:
21SMCV00756
Hearing Date:
July 19, 2024
Dept:
M
CASE NAM
E:
Sunrise Projects LLC v. Allstar Financial Services, et al.
CASE NO.:
21SMCV00756
MOTION:
Motion to be Relieved as Counsel
HEARING DATE: 7/19/2024
LEGAL STANDARD
The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (CCP § 284(2).) The attorney seeking to withdraw must take reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel. (Cal. Rules of Prof. Conduct, 3-700(A)(2).
See, e.g.,
Vann v. Shilleh
(1975) [holding withdrawal prejudicial where attorney withdraw from the representation of defendant on the Friday before trial began the following Monday].) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. (
Manfredi & Levine v. Superior Court
(1998) 66 Cal.App.4th 1128, 1133.)
An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (CRC 3.1362(a), (c), (e).) The requisite forms must be served on the client and on all parties that have appeared in the case. (CRC,
3.1362(d).) When a client is served by mail, the attorneys declaration must indicate that the clients address was confirmed within the last 30 days and how it was confirmed. (
Id.
) If the attorney is unable to confirm the clients current address, the declaration must state the reasonable efforts made within the last 30 days to obtain the clients current address. (Id
.
)
Additionally, the declaration must state in general terms and without compromising the confidentiality of the attorney client relationship why a motion is brought instead of filing a substitution of attorney. (CRC, 3.1362(c).)
ANALYSIS
Brianna Milligan and the Geraci Law Firm move to be relieved as counsel for defendant Gerald Vaccerello, as Trustee of the G&B Vaccerello Trust. Counsel submits all the mandatory forms. Counsel states that an irreparable breakdown of the attorney-client relationship has occurred. Counsel served his client by mail at his last known address, which was confirmed within the past 30 days by email correspondence via the address through which attorneys/client regularly communicated. The declaration notes the hearings that are on calendar, including the trial date. Given that trial is not until October 14, 2024, the Court does not find that the client will be prejudiced by the withdrawal.
Accordingly, the motion is GRANTED.
Document
M&T Bank v. Veronica Florentino a/k/a Veronica C. Florentino, Anthony Gallo, People Of The State Of New York, Pearl Delta Funding Llc, New York State Department Of Taxation And Finance, John Doe #1 through #6, and, Jane Doe #1 through #6, the last twelve names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein
Jul 17, 2024 |
Real Property - Mortgage Foreclosure - Residential |
Real Property - Mortgage Foreclosure - Residential |
612513/2024
Document
Altagracia B Pierre-Outerbridge As Administrator Of the Estate of Lindrick Arthur Outerbridge a/k/a Lindrick Outerbridge, deceased v. Camnine Outerbridge, Ruben Outerbridge, Reese Outerbridge, Jennie Davenport a/k/a Jennie Outerbridge, Keith Outerbridge, Elijah Davenport, John Doe, Jane Doe
Feb 12, 2020 |
Roy S. Mahon
|
Commercial - Other (Ejectment, U&O, Waste) |
Commercial - Other (Ejectment, U&O, Waste) |
612930/2021
Document
Carrington Mortgage Services, Llc v. Peter William Horsham, Sarah Elizabeth Horsham, Secretary Of Housing And Urban Development, John Doe 1 through, John Doe 12, said names being fictitious, parties intended being possible tenants or occupants of premises, or corporations, other entities or persons who claim, or may claim, a lien against the premises
Jul 18, 2024 |
Real Property - Mortgage Foreclosure - Residential |
Real Property - Mortgage Foreclosure - Residential |
612605/2024
Preview
NASSAU -COUNTY .. ...-.... FILED: ....-..- -., - ... -... CLERK ......, 11/15/2023 ...., - - ... - .12:56 . . .. PM --., INDEX NO. 000198/2018 NY!CEF·· RECEIVED /2023 DOC. NO. NYSCEF DOC. NO. 104 105 RECEIVED NYS NYSCEF: 1/14 11/15/2023 RETURN DATE At Part of the Supreme Court of the ORIGINAL State of New York, held in and for the .. County of Nassau, at the Courthouse REL located at 100 and Court Dr., Mmeola, New York, 11501 on the \ 4 day of IN(0 P M 0 t/ , 2023. P R E S E N T : O rdLci 5m .f y-,Tsc.. JUSTICE SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU .--------------,.----------------..---.---.....-x ISABELLE Index No.: 000198/18 MESHOLAM, Plaintiff, -against- ORDER TO SHOW ELIAS ELK CAUSE CHALET, LLC, INVESTORS, INC., ELIAS KALIMIAN, ROSLYN, LLC, and MICHELLE MARTINEZ, COUNTY OF NASSAU, VERA FLUDD, in her official Capacity as NASSAU COUNTY SHERIFF, JOHN DOE 1 And JOHN DOE 2 (representing the Deputy Sheriffs who Carried out the eviction of Plaintiff), ALLREADY MOVING AND STORAGE d/b/a BENNETT MOVERS And/or BENNETT STORAGE, and J T, Defendants. -------------- ------ ------------..--X PLEASE TAKE NOTICE, that upon the annexed Affirmation of David S. Conklin, Esq., BY PAPER SUBMISSIO Member of the law firm of Ahmuty, Demers & Mc Manus, attorneys for defendant, ELIAS ONLY CHALET, LLC, ELK INVESTORS, INC., ELIAS KALIMIAN, and nOSLYN, LLC ereinafter "ELIAS", collectively) dated November 9, 2023, let the parties to this action show cau before this Court located at Part Û \ , Room __of the Supreme Court of the State of New York, held in and for the County of Nassau at.the Courthouse located at 100 Supreme Court 1 of O 1 of 16 . ...-. FILED: ....-..,., COUNTY -.... NASSAU -,........ CLERK ......, ...., 11/15/2023 .....- - - . 12:56 - ....., PM INDEX NO. 000198/2018 RECEIVED 11/14/2023 NYSCEF t)OC. NO. NYSCEF DOC. NO. 105 104 RECEIVED NYSCEF: NYSCEF: 11/15/2023 18TH at Oa.m Dr., Mineola, New York 11501 on the day ofDECEMBER, 2023 as to why an Order should not be entered into this action: plaintiff's Complaint with prejudice for their unexplained a) Dismissing failure to substitute an estate representative for the deceased plaintiff pursuant to CPLR Section 1021; and b) Granting any further relief this Court deems just and proper. IT IS FURTHER ORDERED that service of a copy of this Order, together with the papers on which it was granted, be served upon all counsel of record via NYSCEF and via OVERNIGHT MAIL, OVERNIGHT UPS, OR OVERNIGHT FEDERAL EXPRESS Ye¥tnMXMil upon as follows: KRISTINA S. HEUSER, P.C. Attorneys for Plaintiff 20EXRKK X μYuXtXM]6)M0½XIXMil; THOMAS A. ADAMS, Attn: Jillian Enright. Attorney for Defendants COUNTY OF NASSAU and VERA FLUDD, in her official Capacity as Nassau County Sheriff, DCXMMMMEXMMXMXXMX WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, Attn: Gregory Regensburg, Attorneys for Defendant MICHELLE MARTINEZ XM)reysXEKM6KtXMMXElpG@006M04XMM and further service upon counsel for The Estate of ISABELLE MESHOLAM via email at OVERNIGHT MAIL, OVERNIGHT UPS OR OVERNIGHT FED EX YpYK¾Ys]] WNMM¾¾¾¾]] and ryg4)@(rX$(1 upon VISHNICH MCcGOVERN MILIZIO LLP, Attn: Constantina S. Papageorgiou,. M §1MSMKK0^)$¥i¾X1%¥K&¾K¾&&MK¥MX Fi¥¥2 on or before the 16TH of NOVEMBER be deemed day , 2023 good and sufficient FILED AND service. Opposition papers to this motion, if any, are required to be rved upon Ahmuty, Demers & Mc Manus, at 200 I.U. Willets Road, Albertson, New York, 11507 tWeYÄfEyeYp¥MKYo no later than December 11, 2023; and it is further, RIXX0001Xl0DG($fMM ETðfK ORDERED, that affidavits of service shall be filed with the Court before the return date of this motion; and ORDE that all parties shall submit to chambers before tyjgpturn date of this motion, working courtesy copies of their respective motion papers which conform to this part's individual rules concerning motion submissions, including by attaching copies of all ase law and statutory law cited therein. ENTERED Nov 14 2023 . R, COUN Y CLERK S OFFICE 2 of 16 FILED: NASSAU COUNTY CLERK 11/15/2023 12:56 PM INDEX NO. 000198/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/15/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU _____---____________----_______--________-___________________---__________Ç ISABELLE Index No.: 000198/18 MESHOLAM, Plaintiff, -against- AFFIRMATION IN ELIAS LLC, ELK INVESTORS, INC., SUPPORT CHALET, ELIAS KALIMIAN, ROSLYN, LLC, and MICHELLE MARTINEZ, COUNTY OF NASSAU, VERA FLUDD, in her official Capacity as NASSAU COUNTY SHERIFF, JOHN DOE 1 And JOHN DOE 2 (representing the Deputy Sheriffs who Carried out the eviction of Plaintiff), ALLREADY MOVING AND STORAGE d/b/a BENNETT MOVERS And/or BENNETT STORAGE, and JOHN BENNETT, Defendants. -----------------------------________________________----------X DAVID S. CONKLIN, an attorney admitted to practice before the Courts of the State of New York, hereby makes the following statements under the penalties of perjury: 1. I am a Member of the law firm of Ahmuty, Demers & McManus, attorneys for defendants ELIAS CHALET, LLC, ELK INVESTORS, INC., ELIAS KALIMIAN, and ROSLYN, LLC (hereinafter "ELIAS", collectively) in this action. As such, I am fully familiar with the facts and circumstances surrounding this matter based upon the review of the file maintained by your affirmant's office. 2. This Affirmation is respectfully submitted in support of the within motion for an Order, pursuant to CPLR Section 1021 dismissing plaintiff's Complaint with prejudice for their unexplained failure to substitute an estate representative for the deceased plaintiff, and for such other and further relief as this Court deems just and proper. 3 of 16 FILED: NASSAU COUNTY CLERK 11/15/2023 12:56 PM INDEX NO. 000198/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/15/2023 3. This action, its current form was purportedly commenced by plaintiff, ISABELLE MESHOLAM (hereinafter "MESHOLAM"), by the service of an Amended Verified Complaint dated February 20, 2018 and filed with the Clerk on January 30, 2020. See NYSCEF Doc No. 4. 4. Issue was joined by defendant, Michelle Martinez (hereinafter MARTINEZ) by the service of a Verified Answer on February 28, 2020. See NYSCEF Doc No. 5. 5. Issue was joined by defendant "ELIAS", by the filing of a Verified Answer on March 2, 2020 See NYSCEF Doc No. 7. 6. By way of order dated June 4, 2021 this court issued an order which in part consolidated plaintiff's action commenced against ELIAS and MARTINEZ with a subsequent action commenced against COUNTY OF NASSAU, VERA FLUDD, in her official Capacity as NASSAU COUNTY SHERIFF, JOHN DOE 1 And JOHN DOE 2 (representing the Deputy Sheriffs who Carried out the eviction of Plaintiff), ALLREADY MOVING AND STORAGE d/b/a BENNETT MOVERS And/or BENNETT STORAGE, and JOHN BENNETT. See NYSCEF Doc No. 59. 7. By way of a preliminary conference order and stipulation dated August 5, 2021 and entered on August 13, 2021 Justice Helen Voutsinas ordered that plaintiff's deposition take place on September 15, 2021. See NYSCEF Doc No. 65. 8. As plaintiff failed to appear for her court ordered deposition counsel for MARTINEZ made a motion to dismiss plaintiff's complaint for failure to prosecute See NYSCEF Does Nos. 65-75 & 76-86. 9. Plaintiff's deposition has never been conducted. 4 of 16 FILED: NASSAU COUNTY CLERK 11/15/2023 12:56 PM INDEX NO. 000198/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/15/2023 10. On March 6, 2023 all counsel engaged in a telephone conference with the court. At that time, counsel for plaintiff confirmed that her client MESHOLAM was deceased, having passed on August 5, 2022. 11. On March 17, 2023 counsel for plaintiff provided an email update on her efforts to ascertain who was in charge of plaintiff's estate and to have a determination made on how to proceed regarding this litigation. (Exhibit A) 12. On March 21, 2023 counsel for plaintiff advised there was no estate and requested that the conference which had been scheduled for March 21, 2023 be adjourned. (Exhibit B) The conference was adjourned until October 12, 2023. 13. By way of email dated October 10, 2023 counsel for plaintiff advised she was residing out of State and would be unable to attend the October 12, 2023 conference . However, she would email the estate attorney to see what the status was and to make the estate attorney aware of the court date. (Exhibit C) 14. On October 12, 2023 counsel for plaintiff did not appear for the conference. On October 12, 2023 plaintiff's counsel advised she had reached out to the estate attorney to see how they wanted to proceed and provided the estate attorney contact information. (Exhibit D) 15. The court has scheduled a further conference for November 29, 2023 at 9:15 a.m. 16. To date, neither plaintiff's counsel nor the estate attorney has provided any information regarding plaintiff's next of kin to defense counsel. Defense counsel have not been provided any information or contacted in any way with respect to the estate's intentions regarding the decedent's personal injury action, including whether they intend to substitute an estate representative as the plaintiff. Finally, no efforts have been made to substitute an estate representative as the plaintiff in this action. It is respectfully submitted that the lack of any effort 5 of 16 FILED: NASSAU COUNTY CLERK 11/15/2023 12:56 PM INDEX NO. 000198/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/15/2023 to have an estate representative appointed since plaintiff's death in August of 2022 shows abandonment of this action. 17. CPLR Section 1021 provides: A motion for substitution may be made by the successors or representatives of a party or by any party. If a person who should be substituted does not appear voluntarily he may be made a party defendant. If the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate... 18. Moreover, the plaintiff in this action failed to testify and was in violation of the court's preliminary order for close to a year prior to her passing. It is submitted that as a result of plaintiff's failure to provide testimony prior to her passing it will be impossible for plaintiff to make out a prima facie case, even if an estate representative is appointed to act as plaintiff in this matter. Based upon the foregoing, dismissal is warranted. 19. No prior application has been made for the same relief, except as noted herein. WHEREFORE, it is respectfully requested that the Court issue an Order pursuant to CPLR Section 1021 dismissing plaintiff's Complaint with prejudice for their unexplained failure to substitute an estate representative for the deceased plaintiff, and for such other and further relief as this Court deems just and proper. Dated: Albertson, New York November 8, 2023 By: ©@idf. Con n David s. Conklin AHMUTY, DEMERS & McMANUS Attorneys for Defendant 200 I.U. Willets Road Albertson, New York 11507 (516) 535-1816 6 of 16 FILED: NASSAU COUNTY CLERK 11/15/2023 12:56 PM INDEX NO. 000198/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/15/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -----------------------------------------------------------__------X ISABELLE Index No.: 000198/18 MESHOLAM, Plaintiff, WORD COUNT -against- CERTIFICATION ELIAS CHALET, LLC, ELK INVESTORS, INC., ELIAS KALIMIAN, ROSLYN, LLC, and MICHELLE MARTINEZ, COUNTY OF NASSAU, VERA FLUDD, in her official Capacity as NASSAU COUNTY SHERIFF, JOHN DOE 1 And JOHN DOE 2 (representing the Deputy Sheriffs who Carried out the eviction of Plaintiff), ALLREADY MOVING AND STORAGE d/b/a BENNETT MOVERS And/or BENNETT STORAGE, and JOHN BENNETT, Defendants. --------------------------------_----------------X WORD COUNT CERTIFICATION I hereby certify pursuant to § 202.8(b) of the Uniform Civil Rules for the Supreme Court and the County Court that the foregoing Affirmation complies with the word count limit. The total number of words, as relied upon the word-processing system used to prepared the document, is 1,700. This word count total is inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of authorities, proof of service and signature block. Dated: Albertson, New York November 8, 2023 By: Card/f. Con¾$n David S. Conklin 7 of 16 FILED: NASSAU COUNTY CLERK 11/15/2023 12:56 PM INDEX NO. 000198/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/15/2023 "A" EXHIBIT 8 of 16 FILED: NASSAU COUNTY CLERK 11/15/2023 12:56 PM INDEX NO. 000198/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/15/2023 David S. Conklin From: Kristina S. Heuser, Esq. Sent: Friday, March 17, 2023 2:55 PM To: JudgeSingerRemote Cc: Enright, Jillian; Regensburg, Gregory P.; David S. Conklin; Gregory J. Subject: Re: Mesholam v. Elias Chalet, et al., Index No. 000198/18 Good Afternoon: I am emailing to provide an update on my efforts to ascertain who is in charge of Ms. Mesholam's estate and have a determination made on how to proceed regarding this litigation. I was able to locate Ms. Mesholam's daughter and, after some missed phone calls back and forth, we spoke and she informed me that an attorney was named as the executor of Ms. Mesholam's estate. I also learned that said attorney is now a judge, so is no longer able to serve in the role of executor. I reached out to him and am waiting to hear back from him, but as of now there is no executor and no estate proceeding. Ms. Mesholam's daughter has no authority regarding her mother's affairs. I respectfully request that the conference in this matter scheduled for next week either be adjourned or that the matter be stayed until such time as an Estate is formed so that someone with authority can make a decision regarding how to proceed in this matter. Alternatively, I respectfully request that the conference be held virtually since I reside in Florida and having to incur travel time and expenses when I am not being paid and have no valuable information to relay to the Court at this time would be unduly burdensome. I think the Court for its courtesy and understanding. Sincerely, Kr(¬wuvS. Hewer, EI. Kristina S. Heuser, P.C. 23 Birch Hill Road (rear) Locust Valley, New York 11560 Tel. (516) 676-1565 Fax (516) 676-6382 E-mail: kheuser@heuserlawfirm.com From: JudgeSingerRemote Sent: Wednesday, March 1, 2023 10:24 AM To: Kristina S. Heuser, Esq. ; JudgeSingerRemote cc: Enright, Jillian ; Regensburg, Gregory P. ; David S. Conklin ; Gregory J. Subject: RE: Mesholam v. Elias Chalet, et al., index No. 000198/18 Good morning- Thank you for getting back to me. Ms. Heuser, at the time of the please initiate a conference, conference call with the other attorneys, and add chambers as the last party to the conference, using the telephone number 516-493-3231. 1 9 of 16 FILED: NASSAU COUNTY CLERK 11/15/2023 12:56 PM INDEX NO. 000198/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/15/2023 "B" EXHIBIT 10 of 16 FILED: NASSAU COUNTY CLERK 11/15/2023 12:56 PM INDEX NO. 000198/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/15/2023 David S. Conklin From: Kristina S. Heuser, Esq. Sent: Tuesday, March 21, 2023 10:00 AM To: JudgeSingerRemote Cc: Enright, Jillian; Regensburg, Gregory P.; David S. Conklin; Gregory J. Subject: Re: Mesholam v. Elias Chalet, et al., Index No. 000198/18 Good morning. I am emailing to follow up on my prior email. At this time there is no estate established and no one with to direct me vis-a-vis this litigation. For this as well as the fact that I reside out-of·· authority reason, state, I respectfully request that the conference scheduled for tomorrow be adjourned or, alternatively, that I be permitted to appear virtually. Thank you for your consideration. KristmovS, Hemer, EI. Kristina S. Heuser, P.C. 23 Birch Hill Road (rear) Locust Valley, New York 11560 Tel. (516) 676-1565 Fax (516) 676-6382 E-mail: kheuser@heuserlawfirm.com From: Kristina S. Heuser, Esq. Sent: Friday, March 17, 2023 2:55 PM To: JudgeSingerRemote Cc: Enright, Jillian ; Regensburg, Gregory P.; David S. Conklin ; Gregory J. Subject: Re: Mesholam v. Elias Chalet, et al., Index No. 000198/18 Good Afternoon: I am emailing to provide an update on my efforts to ascertain who is in charge of Ms. Mesholam's estate and have a determination made on how to proceed regarding this litigation. I was able to locate Ms. Mesholam's daughter and, after some missed phone calls back and forth, we spoke and she