Motion,Ex Parte: Ehrlich Gayner, Llp v. Matthew Gates

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                                FILED: NEW YORK COUNTY CLERK 01/29/2024 04:02 PM                                                  INDEX NO. 652966/2023
NYSCEF DOC. NO. 48                                                                         RECEIVED NYSCEF: 01/29/2024



          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

                        DEFENDANT’S SUR-REPLY 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 Sur-Reply Memorandum of Law in Opposition to

          Plaintiff Ehrlich Gayner’s (“Plaintiff) Motion for a Default Judgment (Dkt. No. 20-25) and in

          support of Gates’s cross-motion for sanctions pursuant to 22 N.Y.C.R.R. § 130-1.1(a) as follows:

                                                           ARGUMENT

                  A party cannot meet its prima facie burden on a motion by submitting evidence for the

          first time in reply, and “generally, evidence submitted for the first time in reply papers should be

          disregarded by the court. Henriquez v. Grant, 186 A.D.3d 577 (2nd Dept. 2020)(affirming

          Supreme Court’s declining to consider report submitted for the first time in reply papers).

                  Here, Plaintiff’s reply papers should be disregarded by the Court because they

          exclusively consist of an affidavit and documents that were not submitted in their original motion

          for default judgment (Dkt. No. 20) or their first motion for default judgment (Dkt. No. 3) that

          was denied by the Court (Dkt. Nos. 19). Henriquez at 577. Moreover, Defendant requested these

          documents in discovery (Dkt. No. 28) but Plaintiff failed to respond to the requests and never


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FILED: NEW YORK COUNTY CLERK 01/29/2024 04:02 PM                                               INDEX NO. 652966/2023
NYSCEF DOC. NO. 48                                                                     RECEIVED NYSCEF: 01/29/2024



          produced documents. Further, Plaintiff continues to participate in discovery notwithstanding its

          claim of default. Dkt. Nos. 32 at ¶ 8-9, 36, 47 (responses to Defendant’s Notice to Admit).

         Plaintiff’s gamesmanship must be denied.

                                                  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
                         January 29, 2024
                                                               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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