Preview
FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024
[Print in black ink all areas in bold letters]
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
x Index Number
[fill in name(s)] Plaintiff(s),
-against- AFFIDAVIT
IN SUPPORT
[fill in name(s)] Defendant(s).
x
COUNTY OF ss:
fvour name], being duly sworn,
deposes and says: /
1. I am the plaintiff / defendant [circle one] in this matter. I make this affidavit in support of this
motion for an order granting to following relief: [Describe what you are asking the Court to do. This
lef must also be stated in the Notice of Motion or Order to Show Cause.1 thd-u 0\Îfo-u )
2. I believe the Court should grant the relief sought [this motion] because [Explain why you
should be granted what you are requesting. Identify and Explain any Exhibits (documents) you annex
to this affidavit. Add more pages if needed.]
S-M 0 th:4Aoyd A If1r AAkt• T/-n \lai-dd
y
OrderShowCause - 1/2014
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FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024
3, A prior application has no / has [circle one] been made for the relief now requested. [lf you
made this application before in t is or any other court, describe where, when, the result and why you
are making it again. Attach copies of previous decisions.]
WHEREFORE, I respectfully request that this motion be g ted, an ave such other and
further relief as may be just and proper.
Sworn to before me this
day of , 20_ [sign your name ore a Notary]
Notary Public [print your name]
2
OrderShowCause - 1/2014
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FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024
JURAT
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
State of California
County of L&5 e. bes
A
Subscribed and sworn to (or affirmed) before me on this ) 5 day of rebri/«r ,
20 2jl by n 5
proved to me on the basis of satisfactory evidence to be the person(sf who appeared
before me.
E. GOLRII
" - Notary Public - California
LosAngelesCounty
Commission# 2418765
Signature (seal) my C-m. Expiresoct 25, 2o26
OPTIONAL INFORMATION INSTRUCTIONS
The wording of all Jurats completedin Califomiaafter January 1, 2015 must be in the form
as set forth within this Jurat. Thereare no exceptions.If a Jurat to be completeddoesnot
follow this form, the notary must correctthe verbiageby using ajurat stamp containingthe
correct wording or attaching a separatejurat form such as this one with does contain the
proper wording. in addition, the notary must require an oath or atñrmation from the
DESCRIPTION OF THE ATTACHED DOCUMENT document signer regarding the truthfulness of the contents of the document. The
documentmust be signed AFTER the oath or affirmation.If the document was previously
SO signed, it must be re-signedin front of the notary public during thejurat process.
(Title or descriptionof attached document)
" State and county information must be the state and county where the
document signer(s) personally appeared before the notary public.
(Title or descriptionof attacheddocument continued)
" Date of notarization must be the date the signer(s) personally
appeared which must also be the same date the jurat process is
completed.
Number of Pages Document Date " Print the name(s) of the document signer(s) who personally appear at
the time of notarization.
" Signature of the notary public must match the signature on file with the
Additionalinformation office of the county clerk.
" The notary seal impression must be clear and photographically
reproducible. Impression must not cover text or lines. If seal impression
smudges, re-seal if a sufficient area permits, otherwise complete a
different jurat form.
+ Additional information Is not required but could help
to ensure this jurat is not misused or attached to a
different document.
+ Indicate title or type of attached document, number of
pages and date.
" Securely attach this document to the signed document with a staple.
2015 Version www.NotaryClasses com 800-873-9865
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FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024
SUPREME COURT OF THE STATE OF NEW
YORK COUNTY OF NEW YORK
INDEX NO.: 654499/2022
)
ARBORETUM SILVERLEAF INCOME FUND LP ) AFFIRMATION OF JEFF
AND ACF CREDIT PROGRAM LLC ) KATOFSKY IN SUPPORT
) OF ORDER TO SHOW
Plaintiffs, ) CAUSE SEEKING THE
) COURT CLERK TO
-against- REJECT OR DENY
)
PLAINTIFFS'
)
JEFF KATOFSKY and ERNEST BARRECA ) STATEMENT OF
AS TRUSTEE OF THE SKG FAMILY TRUST, ) JUDGMENT AND/OR
ET AL. ) REQUEST FOR ENTRY
) OF JUDGMENT
Defendants. )
)
EMERGENCY AFFIRMATION PURSUANT TO RULE 202.7(f)
I, JEFF KATOFSKY, declare:
1. I submit this affirmation in support of my Order to Show Cause and in response
to Plaintiff's Request for Entry of Default and to inform the Clerk of the Court regarding
the status of this case.
2. I make this affirmation pursuant to Rule 202.7(f).
3. No prior request has been made for the relief sought in this application.
4. On November 8, 2022, Plaintiff filed this instant action.
5. On February 9, 2023, I removed this action to United States District Court for
the Southern District of New York ("District Court") pursuant to 28 U.S.C. Sections
1332, 1441, and 1446.
1
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FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024
6. On February 15, 2023, I filed my Motion to Dismiss or, Alternatively, Quash
Service of Summons in the District Court pursuant to FRCP 12(b)(5) ("Motion"). My
Motion has yet to be heard or considered.
7. On May 5, 2023, prior to entertaining my Motion, the District Court remanded
this case back to the Supreme Court of New York fmding that there was no complete
diversity amongst the parties.
8. On or about June 2, 2023, Plaintiffs filed a Memorandum of Opinion remanding
this case back to the Supreme Court of New York but did not include all documents
submitted in the District Court including my Motion to Dismiss/Quash for Failure to
Effectuate Proper Service as required by the Order.
9. Since June 2, 2023, I have diligently been monitoring the Supreme Court
Records On-Line Library to check the status of the remand and to see if this case has
been re-activated in this jurisdiction. There has been no indication that the case has been
effectively reactivated in the Supreme Court. I have not received any notice that this case
is now proceeding in due course in the Supreme Court of New York.
10.However, without warning and to my surprise, on January 4, 2024, Plaintiff
requested that this Clerk of the Court enter my default.
11.Based upon my previous appearances and activity, including filing a Notice of
Removal, law and motion practice in the District Court, resubmission of my Motion to
Dismiss in this jurisdiction, and this Declaration, I respectfully request that my Motion to
Dismiss or, alternatively, Quash Service of Summons be heard and that no default be
entered as requested.
2
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FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024
Plaintiffs'
12. To that end, on January 4, 2024 (the same day I received notice of
attempt to have a default judgment entered against me), I filed a Motion to Quash Service
of Summons and similarly advised the Court of appearance in this action. However, the
hearing on my motion is not set until March 5, 2024.
13. Since my motion will not be heard until March 2024, I submit this request for
emergency relief by way of this Order to Show Cause to ensure that the status quo
remained unchanged, and that the Clerk of the Court does not enter a default judgment in
light of the foregoing. Attached hereto as Exhibit 1 is a true and correct copy of my
Motion to Dismiss for Failure to Effectuate Service on Defendant or, alternatively, Quash
Service of Summons filed on January 4, 2024.
Plaintiffs'
14. Further good cause exists to reject or deny Statement of Judgment or
Request for Entry of Judgment because it is procedurally defective. As set forth in CPLR
3215(f), Plaintiffs were required, yet failed, to (i) file proof of service of the summons
and complaint; (ii) submit proof of the facts constituting the claim; and (3) submit, by
affidavit of the party, the default and the amount due. This alone is sufficient to deny
Plaintiffs'
request for default judgment against me.
15. On February 12, 2024, at 2:21 p.m., PST (5:21 p.m. EST), I sent the initial
version of this affirmation and Order to Show Cause to Clifford Katz, counsel for
Plaintiff in this action. I advised him of the emergency relief sought and requested
whether he would stipulate to the requested relief. Attached hereto as Exhibit 1 is a true
and correct copy of my e-mail to Mr. Katz dated February 12, 2024.
3
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FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024
16. Accordingly, it is respectfully requested that the instant application be reviewed
by the Clerk of the Court, and that this application be immediately granted to ensure a
default judgment is not entered as requested by Plaintiff, that the status quo remain, and
that my challenge to service of process be heard in due time.
I declare under penalty of perjury under the laws of the State of New York that
13d'
the foregoing is true and correct. Dated this day of February 2024 at Sherman Oaks,
California.
Kato sky
4
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FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024
Exhibit 1
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FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024
Subject: Re: Arboretum OSC
Date: Monday, February 12, 2024 at 2:21:56 PM Pacific Standard Time
From: Jeff Katofsky
To: ckatz@platzerlaw.com
CC: Jeff Katofsky, Michael H. Leff
Attachments: State Order to Show Cause re Statement of Judgment.docx, KATOFSKY DEC RE ORDER TO
SHOW CAUSE RE JUDGMENT.docx
Mr Katz
Attached is a copy of the attached Order to Show Cause and Affirmation. We intend to file this OSC tomorrow
and ask if you will stipulate to the requested relief.
Please advise
Thank You
Jeff Katofsky, Esq.
4558 Sherman Oaks Avenue
Sherman Oaks CA 91403
818 990 1475
ONLY REPLY TO jeff@katofskylaw.com
Otherwise, I will not get it
We do not accept service of any legal documents or notices, of any kind, by email or electronic means.
9 of 9
Preview
FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024 [Print in black ink all areas in bold letters] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x Index Number [fill in name(s)] Plaintiff(s), -against- AFFIDAVIT IN SUPPORT [fill in name(s)] Defendant(s). x COUNTY OF ss: fvour name], being duly sworn, deposes and says: / 1. I am the plaintiff / defendant [circle one] in this matter. I make this affidavit in support of this motion for an order granting to following relief: [Describe what you are asking the Court to do. This lef must also be stated in the Notice of Motion or Order to Show Cause.1 thd-u 0\Îfo-u ) 2. I believe the Court should grant the relief sought [this motion] because [Explain why you should be granted what you are requesting. Identify and Explain any Exhibits (documents) you annex to this affidavit. Add more pages if needed.] S-M 0 th:4Aoyd A If1r AAkt• T/-n \lai-dd y OrderShowCause - 1/2014 1 of 9 FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024 3, A prior application has no / has [circle one] been made for the relief now requested. [lf you made this application before in t is or any other court, describe where, when, the result and why you are making it again. Attach copies of previous decisions.] WHEREFORE, I respectfully request that this motion be g ted, an ave such other and further relief as may be just and proper. Sworn to before me this day of , 20_ [sign your name ore a Notary] Notary Public [print your name] 2 OrderShowCause - 1/2014 2 of 9 FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024 JURAT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of L&5 e. bes A Subscribed and sworn to (or affirmed) before me on this ) 5 day of rebri/«r , 20 2jl by n 5 proved to me on the basis of satisfactory evidence to be the person(sf who appeared before me. E. GOLRII " - Notary Public - California LosAngelesCounty Commission# 2418765 Signature (seal) my C-m. Expiresoct 25, 2o26 OPTIONAL INFORMATION INSTRUCTIONS The wording of all Jurats completedin Califomiaafter January 1, 2015 must be in the form as set forth within this Jurat. Thereare no exceptions.If a Jurat to be completeddoesnot follow this form, the notary must correctthe verbiageby using ajurat stamp containingthe correct wording or attaching a separatejurat form such as this one with does contain the proper wording. in addition, the notary must require an oath or atñrmation from the DESCRIPTION OF THE ATTACHED DOCUMENT document signer regarding the truthfulness of the contents of the document. The documentmust be signed AFTER the oath or affirmation.If the document was previously SO signed, it must be re-signedin front of the notary public during thejurat process. (Title or descriptionof attached document) " State and county information must be the state and county where the document signer(s) personally appeared before the notary public. (Title or descriptionof attacheddocument continued) " Date of notarization must be the date the signer(s) personally appeared which must also be the same date the jurat process is completed. Number of Pages Document Date " Print the name(s) of the document signer(s) who personally appear at the time of notarization. " Signature of the notary public must match the signature on file with the Additionalinformation office of the county clerk. " The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different jurat form. + Additional information Is not required but could help to ensure this jurat is not misused or attached to a different document. + Indicate title or type of attached document, number of pages and date. " Securely attach this document to the signed document with a staple. 2015 Version www.NotaryClasses com 800-873-9865 3 of 9 FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK INDEX NO.: 654499/2022 ) ARBORETUM SILVERLEAF INCOME FUND LP ) AFFIRMATION OF JEFF AND ACF CREDIT PROGRAM LLC ) KATOFSKY IN SUPPORT ) OF ORDER TO SHOW Plaintiffs, ) CAUSE SEEKING THE ) COURT CLERK TO -against- REJECT OR DENY ) PLAINTIFFS' ) JEFF KATOFSKY and ERNEST BARRECA ) STATEMENT OF AS TRUSTEE OF THE SKG FAMILY TRUST, ) JUDGMENT AND/OR ET AL. ) REQUEST FOR ENTRY ) OF JUDGMENT Defendants. ) ) EMERGENCY AFFIRMATION PURSUANT TO RULE 202.7(f) I, JEFF KATOFSKY, declare: 1. I submit this affirmation in support of my Order to Show Cause and in response to Plaintiff's Request for Entry of Default and to inform the Clerk of the Court regarding the status of this case. 2. I make this affirmation pursuant to Rule 202.7(f). 3. No prior request has been made for the relief sought in this application. 4. On November 8, 2022, Plaintiff filed this instant action. 5. On February 9, 2023, I removed this action to United States District Court for the Southern District of New York ("District Court") pursuant to 28 U.S.C. Sections 1332, 1441, and 1446. 1 4 of 9 FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024 6. On February 15, 2023, I filed my Motion to Dismiss or, Alternatively, Quash Service of Summons in the District Court pursuant to FRCP 12(b)(5) ("Motion"). My Motion has yet to be heard or considered. 7. On May 5, 2023, prior to entertaining my Motion, the District Court remanded this case back to the Supreme Court of New York fmding that there was no complete diversity amongst the parties. 8. On or about June 2, 2023, Plaintiffs filed a Memorandum of Opinion remanding this case back to the Supreme Court of New York but did not include all documents submitted in the District Court including my Motion to Dismiss/Quash for Failure to Effectuate Proper Service as required by the Order. 9. Since June 2, 2023, I have diligently been monitoring the Supreme Court Records On-Line Library to check the status of the remand and to see if this case has been re-activated in this jurisdiction. There has been no indication that the case has been effectively reactivated in the Supreme Court. I have not received any notice that this case is now proceeding in due course in the Supreme Court of New York. 10.However, without warning and to my surprise, on January 4, 2024, Plaintiff requested that this Clerk of the Court enter my default. 11.Based upon my previous appearances and activity, including filing a Notice of Removal, law and motion practice in the District Court, resubmission of my Motion to Dismiss in this jurisdiction, and this Declaration, I respectfully request that my Motion to Dismiss or, alternatively, Quash Service of Summons be heard and that no default be entered as requested. 2 5 of 9 FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024 Plaintiffs' 12. To that end, on January 4, 2024 (the same day I received notice of attempt to have a default judgment entered against me), I filed a Motion to Quash Service of Summons and similarly advised the Court of appearance in this action. However, the hearing on my motion is not set until March 5, 2024. 13. Since my motion will not be heard until March 2024, I submit this request for emergency relief by way of this Order to Show Cause to ensure that the status quo remained unchanged, and that the Clerk of the Court does not enter a default judgment in light of the foregoing. Attached hereto as Exhibit 1 is a true and correct copy of my Motion to Dismiss for Failure to Effectuate Service on Defendant or, alternatively, Quash Service of Summons filed on January 4, 2024. Plaintiffs' 14. Further good cause exists to reject or deny Statement of Judgment or Request for Entry of Judgment because it is procedurally defective. As set forth in CPLR 3215(f), Plaintiffs were required, yet failed, to (i) file proof of service of the summons and complaint; (ii) submit proof of the facts constituting the claim; and (3) submit, by affidavit of the party, the default and the amount due. This alone is sufficient to deny Plaintiffs' request for default judgment against me. 15. On February 12, 2024, at 2:21 p.m., PST (5:21 p.m. EST), I sent the initial version of this affirmation and Order to Show Cause to Clifford Katz, counsel for Plaintiff in this action. I advised him of the emergency relief sought and requested whether he would stipulate to the requested relief. Attached hereto as Exhibit 1 is a true and correct copy of my e-mail to Mr. Katz dated February 12, 2024. 3 6 of 9 FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024 16. Accordingly, it is respectfully requested that the instant application be reviewed by the Clerk of the Court, and that this application be immediately granted to ensure a default judgment is not entered as requested by Plaintiff, that the status quo remain, and that my challenge to service of process be heard in due time. I declare under penalty of perjury under the laws of the State of New York that 13d' the foregoing is true and correct. Dated this day of February 2024 at Sherman Oaks, California. Kato sky 4 7 of 9 FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024 Exhibit 1 8 of 9 FILED: NEW YORK COUNTY CLERK 02/13/2024 03:13 PM INDEX NO. 654499/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/15/2024 Subject: Re: Arboretum OSC Date: Monday, February 12, 2024 at 2:21:56 PM Pacific Standard Time From: Jeff Katofsky To: ckatz@platzerlaw.com CC: Jeff Katofsky, Michael H. Leff Attachments: State Order to Show Cause re Statement of Judgment.docx, KATOFSKY DEC RE ORDER TO SHOW CAUSE RE JUDGMENT.docx Mr Katz Attached is a copy of the attached Order to Show Cause and Affirmation. We intend to file this OSC tomorrow and ask if you will stipulate to the requested relief. Please advise Thank You Jeff Katofsky, Esq. 4558 Sherman Oaks Avenue Sherman Oaks CA 91403 818 990 1475 ONLY REPLY TO jeff@katofskylaw.com Otherwise, I will not get it We do not accept service of any legal documents or notices, of any kind, by email or electronic means. 9 of 9