Preview
FILED: BRONX COUNTY CLERK 01/721/2024 10:02 PM INDEX NO. 305209/2013E
NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 01/21/2024
EXHIBIT R
INDEX NO. 305209/2013E
NYSCEF DOC. NO. 104
@ & RECEIVED NYSCEF: 01/21/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
rn
LEON SIMON and GRAC DWARDS AON
Plaintiff,
Index No,: 305209/2013
Affirmation in Opposition
BERNARD LEWIS to Defendant’s Motion to
Dismiss
Defendants.
meennenenencentenn sac r cneenenennn nner cennncennnnnnnecenecessmamaamameres
Lawrence A. Garvey, an attorney duly admitted to practice before the Courts of the
State of New York, makes this affirmation based upon his personal knowledge and a review of
the file maintained at his office and hereby affirms as follows:
1 Tam a principal of the Law Office of Lawrence A. Garvey & Associates, P.C. 1
a\ am the attorney for Plaintiffs LEON SIMON and GRACE-EDWARDS SIMON (the “Plaintiffs”)
9
a in the above-captioned proceeding.
4
2 I submit this affirmation in Opposition to Defendant, Bernard Lewis's, (the
Defendant”) Motion to Dismiss pursuant to CPLR § 3211 (a) (1), CPLR § 3211 (a) (2), CPLR §
3211 (a) (3). and CPLR § 3211 (a) (7), and for Sanctions pursuant to 22 NYCRR, Part 130-1.1.
4
3 Plaintiff respectfully requests that the instant motion be denied as Defendant for
the foregoing reasons, and furthermore requests that Sanctions be imposed on Defendant for
filing a frivolous motion as further set forth below.
4. Plaintiff is filing the instant Opposition to Defendant's Motion to Dismiss which
was filed pro se by Bernard Lewis and mailed to Plaintiff's Counsel. This opposition is being
tiled pursuant to instructions from Principal Law Clerk/Court Attorney Mary Ann Amodeo. Esq.
= INDEX NO. 305209/2013E
NYSCEF BOC. NO. 104
@ 8 RECEIVED NYSCEF: 01/21/2024
Counsel for Plaintiffs Leon Simon and Grace Edwards-Simon (“Plaintiffs”).
Lawrence A. Garvey, Esq., and Counsel of record for Defendant Bernard Lewis (“Defendant”).
Ury Abraham Leid. Esq. spoke with Principal Law Clerk/Court Attorney Mary Ann Amodeo,
Esq. via telephone conference on 12/19/2018 regarding the instant motion. Both Plaintiff's
Counsel and Defense Counsel of record were concerned that Defendant had submitted nothing to
the Court regarding terminating the representation of Mr. Leid. Mr. Leid stated that Defendant
had told him via telephone and letter that he did not want Mr. Leid to represent him anymore but
that Defendant had not submitted anything to the Court to have Mr. Lied relieved as Counsel, nor
had Defendant picked up his file. Mary Ann Amodeo. sq. told defense Counsel that this was
sufficient to terminate his representation and that Plaintiff was required to respond,
6. Plaintiffs object to service by pro se Defendant. a party to the action, and upon
information and belief, on the basis that pro se Defendant has not filed an Affidavit of Service
with the Court.
7 Plaintiffs’ Counsel objects to the accusation in Defendant's Notice of Motion that
“plaintiffs and their attorneys made misrepresentations and false representations to the Court
with intent to deceive.” Furthermore. the conduct of the Defendant. in mailing this Motion to the
Bronx District Attorney and in his request that the Court “refer the matter to the Bronx District
attorney for a criminal investigation as required by title 18 USC § 4” is at least frivolous and may
constitute the crime of attempted Coercion in the third degree under the NYS Penal Law
$135.60.
8 With regard to Defendant’s Motion to Dismiss pursuant to CPLR § 3211 (a(t)
and CPLR § 3211 (a) (3). this Motion must be dismissed as untimely. Pursuant to CPLR R 3211
(e) “Any objection or defense based upon a ground set forth in paragraphs one, three. four, five
INDEX NO. 305209/2013E
NYSCEF DOC. NO. 104
8 Ore NYSCEF: 01/21/2024
.
and six of subdivision (a) is waived unless raised either by such a motion or in the responsive
pleading.
6. The Defendant's suggestion that this action be dismissed pursuant to CPLR 321 I{a) (2)
because the New York State Supreme Court lacks subject matter jurisdiction over an action
affecting real property situated in Bronx County, New York is prima facie untenable. Should the
Court require authority for this exercise of jurisdiction, Plaintiff respectfully cites NY CLS Const
Art VI. § 7 (a.) “The supreme court shall have general original jurisdiction in law and equity and
the appellate jurisdiction herein provided,” and see Chelsea 18 Partmers, LP v. Sheck Yee Mak,
(90 A.D.3d 38, 41, 933 N.Y.S.2d 204, 206 [1 Dept 2011]), “As a threshold issue, Supreme
Court has unlimited general jurisdiction over all plenary real property actions.” Assuming that
Defendant intended to challenge venue as opposed to subject matter jurisdiction, Bronx County
Supreme Court is the proper venue for the above-captioned action pursuant to NYS CPLR § 307
“The place of trial of an action in which the judgment demanded would affect the title to, or the
possession, use or enjoyment of, real property shall be in the county in which any part of the subject of
the action is situated.”. The Plaintiff respectfully requests that the Court take notice that the Court
has subject matter jurisdiction based on the location of the subject property at 4058 Pratt Avenue:
Bronx, further described in the “Description” attached to the deed as being in “the County of
Bronx, City and State of New York” and in addition the Plaintiff. (see Exhibit A, Deed and
attached description.)
*
Defendant's argument that the above-captioned action should be dismissed pursuant to
CPLR R 3211 based on the failure of the pleading to state a cause of action is entirely untenable.
“Under modern pleading theory, a complaint should not be dismissed on a pleading motion so
long as. when the plaintiff is given the benefit of every possible favorable inference. a cause of
action exists.” Rovello v. Orofino Realty Co., 40 N.Y .2d 633, 634, 389 N.Y.S.2d 314, 315, 357
INDEX NO. 305209/2013E
NYSCEF DOC. NO. 104
6 eur NYSCEF: 01/21/2024
N.E.2d 970, 971 (1976). Plaintiff's Verified Complaint plainly establishes a cause of action for
adverse possession, (See Exhibit B.) “In order to establish a claim of adverse possession, the Court
of Appeals held that the following five elements must be proved: possession must be (1) hostile under a
claim of right; (2) actual: (3) open and notorious; (4) exclusive; and (5) continuous for the requisite
period, ten years. (Walling v. Przybylo, 7 NY3d 228, 851 N.E.2d 1167, 818 N.Y.S.2d 816). The Court
held that "factual knowledge that another person is the real title owner does not, in and of itself, defeat a
claim of right by an adverse possession.” Meron v. Schepsman, 2011 NY Slip Op 33521(0), € 3 (Sup.
Ct) Plaintiffs Complaint sufficiently alleges the required elements. (See Exhibit B.) Defendant has
submitted no contrary evidence in admissible form. Defendant has submitted no contrary
evidence in any form. Defendant has not really even submitted an argument contrary to
Plaintiffs’ claim of adverse possession. (See Exhibit C,) Defendant argues that he did not enter
into any contract with Plaintiffs to transfer the property, However, Plaintiffs’ claim is not based
.
‘on contract. and furthermore, Defendant's argument is not relevant as to whether or not Plaintiffs
have stated a claim.
= INDEX NO. 305209/2013E
NYSCEF BOC. NO. 104
® ® RECEIVED NYSCEF: 91/21/2024
WHEREFORE. for the above mentioned reasons, Plaintiffs Leon Simon and Grace
Fdwards-Simon respectfully requests that the Court deny Defendant's Motion to Dismiss; award
Plaintiffs sanctions in the form of costs and attorney fees, grant such other and further reliefas
this Court deems just, necessary and proper.
Dated: White Plains. NY
December 20, 2018
Respectfully Submitted,
Lawrence A. Garvey & Associates, P.C.
7
By Lawrentée A. Sq
50 Main Street. te 390
White Plains, New York 10606
(914) 946-2200/ F: (914) 946-1300
Attorneys for Plaintiffs
INDEX NO. 305209/2013E
NYSCEF DOC. NO. 104
e RECEIVED NYSCEF: 01/21/2024
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
) SS:
COUNTY OF WESTCHESTER )
LEON SIMON AND GRACE A.
EDWARDS-SIMON V, BERNARD E.
LEWIS
Index No, 305209-2013
I. the undersigned, being duly sworn, say:
| am not a party to the action, am over 18 years of age and reside in Litchfield County,
Connecticut. On the 21st day of December, 2018 I served the
AFFIRMATION IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS
f
i By mailing a copy to each of the following persons at the last known address set
forth afier each name below by first class mail.
By delivering a true copy of each personally to each person named below at the
address indicated. | knew each person served to be the person mentioned and
described in said papers as a party therein.
By transmitting a copy to the following persons by:
FAX at the telephone number set forth after each name.
E-MAIL at the email address set forth after each name below, which was
designated by the attorney for such purpose. and by mailing a copy to the address
set forth after each name.
= By dispatching a copy by overnight delivery to each of the following persons at the
last known address set forth after each name below
Via inst Cle Mail
Bernard I We 1S
4818 Wilde t Ave “nue
Bronx. NY 10470 JOSEPH REITER
Plaintiff
Pro Se NOTARY PUBLIC-STATE OF NEW DR
No. 0O2RE6035108
Qualified in Rocktand County,
Ury A. Leid. Esq. My Commission Expires 10-24
2-2
URY ABRAHAM LEID & ASSOCIATES
3274 Boston Road
Bronx New York 10469 -
Attorneys for Defendant
C LN
Sworn to betore me on the Ashley Mancini
2] spay 9,
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Ota y Public
FREED: ERO Us COUNT SL ERK Oheed PLD 24 creme
be genkey INDEX NO 5209/2013E
Ain ee are
®
RECEIVED NYSCEF :§ 01/21/2024
SUPREME COURT OF THE STATE OF NEW YORK {
COUNTY OF THE BRONX Index No. 305209-2013
LEON SIMON AND GRACE A. EDWARDS-SIMON
Plaintiff,
-against-
BERNARD E. LEWIS
Defendant
1
AFFIRMATION IN OPPOSITION TO DEFENDANT’S MOTION TO DISMIss
Law Offices of
Lawrence A. Garvey & Associates PC
Attorneys for PLAINTIFF LEON SIMON we
AND GRACE A. EDWARDS-SIMON
50 Main Street, Suite 390
White Plains, New York 10606
914-946-2200
914-946-1300 (facsimile)
Pursuantto 22 NYCRR 130-11,
1, tthe undersigned, an attorney admitted to practice
sue Courts
of New York State, certifies that upon information and belief and reasonableiinquiry, the
contentions contained in the annexed document are not frivolous.
|
|
Dated: December 21, 2018 /s/ Lawrence A. Garve
Lawrence A. Garvey, Es
_—— —— ==
Service of a copy of the within is hereby admitted r|
Dated.
Attorney(s) for: |
To
|
Bernard E. Lewis |
4818 Wilder Avenue {
|
Bronx, NY 10470
Plaintiff Pro Se
UryA. Leid, Esq.
URY ABRAHAM LEID & ASSOCIATES
3274 Boston Road
Bronx New York 10469
Attorneys for Defendant
11
1 Sih
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LUfL ik
Preview
FILED: BRONX COUNTY CLERK 01/721/2024 10:02 PM INDEX NO. 305209/2013E NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 01/21/2024 EXHIBIT R INDEX NO. 305209/2013E NYSCEF DOC. NO. 104 @ & RECEIVED NYSCEF: 01/21/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX rn LEON SIMON and GRAC DWARDS AON Plaintiff, Index No,: 305209/2013 Affirmation in Opposition BERNARD LEWIS to Defendant’s Motion to Dismiss Defendants. meennenenencentenn sac r cneenenennn nner cennncennnnnnnecenecessmamaamameres Lawrence A. Garvey, an attorney duly admitted to practice before the Courts of the State of New York, makes this affirmation based upon his personal knowledge and a review of the file maintained at his office and hereby affirms as follows: 1 Tam a principal of the Law Office of Lawrence A. Garvey & Associates, P.C. 1 a\ am the attorney for Plaintiffs LEON SIMON and GRACE-EDWARDS SIMON (the “Plaintiffs”) 9 a in the above-captioned proceeding. 4 2 I submit this affirmation in Opposition to Defendant, Bernard Lewis's, (the Defendant”) Motion to Dismiss pursuant to CPLR § 3211 (a) (1), CPLR § 3211 (a) (2), CPLR § 3211 (a) (3). and CPLR § 3211 (a) (7), and for Sanctions pursuant to 22 NYCRR, Part 130-1.1. 4 3 Plaintiff respectfully requests that the instant motion be denied as Defendant for the foregoing reasons, and furthermore requests that Sanctions be imposed on Defendant for filing a frivolous motion as further set forth below. 4. Plaintiff is filing the instant Opposition to Defendant's Motion to Dismiss which was filed pro se by Bernard Lewis and mailed to Plaintiff's Counsel. This opposition is being tiled pursuant to instructions from Principal Law Clerk/Court Attorney Mary Ann Amodeo. Esq. = INDEX NO. 305209/2013E NYSCEF BOC. NO. 104 @ 8 RECEIVED NYSCEF: 01/21/2024 Counsel for Plaintiffs Leon Simon and Grace Edwards-Simon (“Plaintiffs”). Lawrence A. Garvey, Esq., and Counsel of record for Defendant Bernard Lewis (“Defendant”). Ury Abraham Leid. Esq. spoke with Principal Law Clerk/Court Attorney Mary Ann Amodeo, Esq. via telephone conference on 12/19/2018 regarding the instant motion. Both Plaintiff's Counsel and Defense Counsel of record were concerned that Defendant had submitted nothing to the Court regarding terminating the representation of Mr. Leid. Mr. Leid stated that Defendant had told him via telephone and letter that he did not want Mr. Leid to represent him anymore but that Defendant had not submitted anything to the Court to have Mr. Lied relieved as Counsel, nor had Defendant picked up his file. Mary Ann Amodeo. sq. told defense Counsel that this was sufficient to terminate his representation and that Plaintiff was required to respond, 6. Plaintiffs object to service by pro se Defendant. a party to the action, and upon information and belief, on the basis that pro se Defendant has not filed an Affidavit of Service with the Court. 7 Plaintiffs’ Counsel objects to the accusation in Defendant's Notice of Motion that “plaintiffs and their attorneys made misrepresentations and false representations to the Court with intent to deceive.” Furthermore. the conduct of the Defendant. in mailing this Motion to the Bronx District Attorney and in his request that the Court “refer the matter to the Bronx District attorney for a criminal investigation as required by title 18 USC § 4” is at least frivolous and may constitute the crime of attempted Coercion in the third degree under the NYS Penal Law $135.60. 8 With regard to Defendant’s Motion to Dismiss pursuant to CPLR § 3211 (a(t) and CPLR § 3211 (a) (3). this Motion must be dismissed as untimely. Pursuant to CPLR R 3211 (e) “Any objection or defense based upon a ground set forth in paragraphs one, three. four, five INDEX NO. 305209/2013E NYSCEF DOC. NO. 104 8 Ore NYSCEF: 01/21/2024 . and six of subdivision (a) is waived unless raised either by such a motion or in the responsive pleading. 6. The Defendant's suggestion that this action be dismissed pursuant to CPLR 321 I{a) (2) because the New York State Supreme Court lacks subject matter jurisdiction over an action affecting real property situated in Bronx County, New York is prima facie untenable. Should the Court require authority for this exercise of jurisdiction, Plaintiff respectfully cites NY CLS Const Art VI. § 7 (a.) “The supreme court shall have general original jurisdiction in law and equity and the appellate jurisdiction herein provided,” and see Chelsea 18 Partmers, LP v. Sheck Yee Mak, (90 A.D.3d 38, 41, 933 N.Y.S.2d 204, 206 [1 Dept 2011]), “As a threshold issue, Supreme Court has unlimited general jurisdiction over all plenary real property actions.” Assuming that Defendant intended to challenge venue as opposed to subject matter jurisdiction, Bronx County Supreme Court is the proper venue for the above-captioned action pursuant to NYS CPLR § 307 “The place of trial of an action in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property shall be in the county in which any part of the subject of the action is situated.”. The Plaintiff respectfully requests that the Court take notice that the Court has subject matter jurisdiction based on the location of the subject property at 4058 Pratt Avenue: Bronx, further described in the “Description” attached to the deed as being in “the County of Bronx, City and State of New York” and in addition the Plaintiff. (see Exhibit A, Deed and attached description.) * Defendant's argument that the above-captioned action should be dismissed pursuant to CPLR R 3211 based on the failure of the pleading to state a cause of action is entirely untenable. “Under modern pleading theory, a complaint should not be dismissed on a pleading motion so long as. when the plaintiff is given the benefit of every possible favorable inference. a cause of action exists.” Rovello v. Orofino Realty Co., 40 N.Y .2d 633, 634, 389 N.Y.S.2d 314, 315, 357 INDEX NO. 305209/2013E NYSCEF DOC. NO. 104 6 eur NYSCEF: 01/21/2024 N.E.2d 970, 971 (1976). Plaintiff's Verified Complaint plainly establishes a cause of action for adverse possession, (See Exhibit B.) “In order to establish a claim of adverse possession, the Court of Appeals held that the following five elements must be proved: possession must be (1) hostile under a claim of right; (2) actual: (3) open and notorious; (4) exclusive; and (5) continuous for the requisite period, ten years. (Walling v. Przybylo, 7 NY3d 228, 851 N.E.2d 1167, 818 N.Y.S.2d 816). The Court held that "factual knowledge that another person is the real title owner does not, in and of itself, defeat a claim of right by an adverse possession.” Meron v. Schepsman, 2011 NY Slip Op 33521(0), € 3 (Sup. Ct) Plaintiffs Complaint sufficiently alleges the required elements. (See Exhibit B.) Defendant has submitted no contrary evidence in admissible form. Defendant has submitted no contrary evidence in any form. Defendant has not really even submitted an argument contrary to Plaintiffs’ claim of adverse possession. (See Exhibit C,) Defendant argues that he did not enter into any contract with Plaintiffs to transfer the property, However, Plaintiffs’ claim is not based . ‘on contract. and furthermore, Defendant's argument is not relevant as to whether or not Plaintiffs have stated a claim. = INDEX NO. 305209/2013E NYSCEF BOC. NO. 104 ® ® RECEIVED NYSCEF: 91/21/2024 WHEREFORE. for the above mentioned reasons, Plaintiffs Leon Simon and Grace Fdwards-Simon respectfully requests that the Court deny Defendant's Motion to Dismiss; award Plaintiffs sanctions in the form of costs and attorney fees, grant such other and further reliefas this Court deems just, necessary and proper. Dated: White Plains. NY December 20, 2018 Respectfully Submitted, Lawrence A. Garvey & Associates, P.C. 7 By Lawrentée A. Sq 50 Main Street. te 390 White Plains, New York 10606 (914) 946-2200/ F: (914) 946-1300 Attorneys for Plaintiffs INDEX NO. 305209/2013E NYSCEF DOC. NO. 104 e RECEIVED NYSCEF: 01/21/2024 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) SS: COUNTY OF WESTCHESTER ) LEON SIMON AND GRACE A. EDWARDS-SIMON V, BERNARD E. LEWIS Index No, 305209-2013 I. the undersigned, being duly sworn, say: | am not a party to the action, am over 18 years of age and reside in Litchfield County, Connecticut. On the 21st day of December, 2018 I served the AFFIRMATION IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS f i By mailing a copy to each of the following persons at the last known address set forth afier each name below by first class mail. By delivering a true copy of each personally to each person named below at the address indicated. | knew each person served to be the person mentioned and described in said papers as a party therein. By transmitting a copy to the following persons by: FAX at the telephone number set forth after each name. E-MAIL at the email address set forth after each name below, which was designated by the attorney for such purpose. and by mailing a copy to the address set forth after each name. = By dispatching a copy by overnight delivery to each of the following persons at the last known address set forth after each name below Via inst Cle Mail Bernard I We 1S 4818 Wilde t Ave “nue Bronx. NY 10470 JOSEPH REITER Plaintiff Pro Se NOTARY PUBLIC-STATE OF NEW DR No. 0O2RE6035108 Qualified in Rocktand County, Ury A. Leid. Esq. My Commission Expires 10-24 2-2 URY ABRAHAM LEID & ASSOCIATES 3274 Boston Road Bronx New York 10469 - Attorneys for Defendant C LN Sworn to betore me on the Ashley Mancini 2] spay 9, if x oe Ota y Public FREED: ERO Us COUNT SL ERK Oheed PLD 24 creme be genkey INDEX NO 5209/2013E Ain ee are ® RECEIVED NYSCEF :§ 01/21/2024 SUPREME COURT OF THE STATE OF NEW YORK { COUNTY OF THE BRONX Index No. 305209-2013 LEON SIMON AND GRACE A. EDWARDS-SIMON Plaintiff, -against- BERNARD E. LEWIS Defendant 1 AFFIRMATION IN OPPOSITION TO DEFENDANT’S MOTION TO DISMIss Law Offices of Lawrence A. Garvey & Associates PC Attorneys for PLAINTIFF LEON SIMON we AND GRACE A. EDWARDS-SIMON 50 Main Street, Suite 390 White Plains, New York 10606 914-946-2200 914-946-1300 (facsimile) Pursuantto 22 NYCRR 130-11, 1, tthe undersigned, an attorney admitted to practice sue Courts of New York State, certifies that upon information and belief and reasonableiinquiry, the contentions contained in the annexed document are not frivolous. | | Dated: December 21, 2018 /s/ Lawrence A. Garve Lawrence A. Garvey, Es _—— —— == Service of a copy of the within is hereby admitted r| Dated. Attorney(s) for: | To | Bernard E. Lewis | 4818 Wilder Avenue { | Bronx, NY 10470 Plaintiff Pro Se UryA. Leid, Esq. URY ABRAHAM LEID & ASSOCIATES 3274 Boston Road Bronx New York 10469 Attorneys for Defendant 11 1 Sih Ale LUfL ik