Preview
FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023
SUPREME COURT OF THE STATE OF NEW YORK
COLNTY OF NASSAU
-----x
Masuda Begum and Motashern Billah Index No.: 61094612022
Plaintiff, AFFIRMATION IN
OPPOSITION TO
- against - ASSOCIATED'S MOTION
TO ACCEPT LATE
Associated Mutual Insurance Cooperative, ANSWER AND IN REPLY
Erhardt Adjustment Co., Inc. and All Dry USA
:::::i1" ._....._.........x
Jonathan Edward Kirchner, an attorney at law, aclmitted to practice in the Courts of the
State of New York, affirms the following statements are true, under penalty of perlury:
l. i am the attorney for Plaintiffs, and as such, am fully familiar with all the
facts and circumstances herein.
2. This affirrnation is submitted in opposition to Defendant Associated,s
motion requesting the court order Plaintiffs accept Associated's untimely
answer and is also subrnitted in further support of plaintiffs' motion for a
default judgment against Associated.
J. Def'endant All Dry timely interposed an answer.
Service Was Proper and Associated Ilad Actual Notice of the Suit Since August 31,2022
4. Not only was Associated properly served, prior to its default, Associated
had actual notice of the lawsuit.
5. Associated does not address the fact that a representative of Erhardt notified
Associated abor.rt the suit and provided a copy of the summons and
complaint to Associated on August 31, 2022. According to Defendant
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FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023
Erhardt's affidavit, Erhardt forwarded the summons
and complaint in this
action to Associated on August 31,2022. See Docurnent
13.
6. upon information a,d belief, after receivi,g the papers from
Erhardt,
Associated willfully avoided service of process.
7. Plaintiffs hired a process server to serve Associated at its principal
place of
business. The process server made attempts fro,r September 17, 2022
through September 21,2022 and there was ,,no contact,,
and the door was
locked. It is simply too mucli of a coincidence that Associated
was notified
of this lawsuit on August 31,2022 and in the weeks thereafter locked
its
doors so service of process could ,ot be made. plaintiffs, process server is
more than willing to testify at a traverse hearing to the
above. However, it
is respectfully requested that a representative frorn
Associated appear at the
traverse hearing to testify under oath and be sub.iect
to cross-examination
about the above.
8. Thereafter, on october 17,2022, Associated was served
via NyS DFS in
Albany and the Affidavit of Service was filed. See Document
6.
9. A process server's sworn affidavit of service is prima facie evidence of
service. Wachovia v. Carcano, 106 A.D.3 d726 (2d Dept.
2Ol3).
10. The affldavit must be rebutted by "detailed and specific
contradictions of
the allegations in the process server,s afficlavit.,, Id.
11. A Defendant's conclusoly denial of service is insufficient
to rebut the prima
facie evidence of proper service set forth in a process
server,s affidavit of
service. Id., Citing , l44 AD3d, 1132,
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FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023
ll33 12016l, , t21 AD3d 1044, to45
120141
12. A Defendant's co.clusory a,d unsubstantiated denial of service of the
surlmons and complaint does not constitute a reasonable
excuse fbr his
default pursuant to CpLR 5015. Id.
13. A Defendant is not entitlecl to relief pursuant to cpLR 317, where
Defendant received actual ttotice of the surrmons and
cornplaint in time to
defend the action. Id.
14. Despite the above case law, Associates' entire argument
is based uporr the
conclusory (false) allegation that it was not servecl.
15. Attached hereto as Exhibit 1, please find the affidavit of plaintiffs,process
server, complete with GeoTag, clearly and undoubtably
dernonstrating
service was rnade in Albany.
16. Associated's denial of receipt of service is insufficient
to negate both the
process server's origi,al affidavit of service ancl the further affidavit
attached hereto.
17. Associated of'fers up an email, allegedly frorn NyS DFS, with absolutely
no fou,datio,. It must be disregarded by the court. This e,rail chai,
includes a "Janessa"; no last name, ,o job title, etc. It contains simple
generalities that records were searched and nothing
was found. It does not
indicate wlio did the search or how. It does not indicate
how the search is
done' It is simply worthless. Again, there has been
no fou,dation laid at all
to i,troduce this item into evidence and it must be disregarded.
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FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023
18. Furthermore, to the extent that DFS lost or misplaced
the pleadi,gs, or DFS
was backed up, that is an issue between DFS and
Associated. There is no
doubt, based upon the affidavit of service and further
affidavit (with
Geotag), that DFS was served a,d thus Associated
was served. wliile this
may sound harsh, it is not in this case where Associated
had actual notice
19. Simply put, Associated's conclusory denial of receipt of service is
insufficient to rebut plaintiffs' process server's affidavits. Associated
has
no credibility, as it received a copy of the preadings on August
3r, 2022,
thereafter locked its doors so service could not be effectuated,
denied it
received service from DF-S a,d deried it received the 3215
Notice. These
denials are not credible.
20. Further demonstrating Associated's lack ol credibility, in paragraph
lg of
its afflrmation, it is statecl that "Associated Mutual first
became ofthe within
lawsuit upon receipt of plai,tiffs' ,otice lor a default judgrne,t.
. .,, This can
be seen as nothing more than untruthful as Associated
received actual notice
of the lawsuit when same was forwarded to it by Erhardt on August 3 1,
2022.
21' As service was proper, the Court should hold Associated
in default ancl set
the matter down for inquest.
No Meritorious Defense
22. Associated has no meritorious crefense to tl-ris action.
23. Associated wrongfully rescinded the policy.
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FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023
24. The affidavit of Jar*iewicz does not address this issue
further than a
conclusory staternent, thus must be disregarded.
25, The affidavit of collins attempts to create a meritorious
defense, however,
it fails to do so as it is purely hearsay.
26. Collins (falsely) alleges that Plaintiffs' home had tliree apaftments
and not
just one, and therefore, coverage was properly
rescinded.
27. collins has absolutely no first-ha,d knowledge of the above. collins
has
never stepped foot inside Plaintiffs' home. Therefore, the
affidavit must be
disregarded in its entirely as pure hearsay.
28. upon i,forrnation a,d belief, Defendant Erhardt,s company supplied
a
report to Associated, aud Associated based its decision to
rescind solelv
upon said report.
29. The collins affidavit does not produce the report and/or documents
that
demonstrate the (false) allegation that Plaintiffs' home has
three apartments.
30. why is the report ,ot included in Associated,s papers? Associated must
show a meritorious defetrse and has decided not to ir-rclude
the report that
they allege would support their.decision to rescind. fhe omission
speaks
volumes about the lack of a meritorious defense.
31. Plaintiffs would be extremely prejudiced if the cor-rrt permits the co_
Defer.rdants to file a late answer. plaintiffs have suffered enough by being
wro,gfully disclaimed / having their poricy r-escinded. The loss occurred
in
Aptil2022, approaching a year ago. Plaintiffs need and are entitled to have
their home fixed. The court granting co-Defendants an
opportu,ity to serve
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FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023
a late allswer where they rrave no reason for timely answering
and no
meritorious defense is unbelievably prejudicial.
The Court should grant a
default.iudgment against the Defendants and set the
matter down for inquest
as sooll as possible. This would perrnit the Plaintiffs to finally move forward
with fixing their home, which in
shor,rld have been fixed April2022 I May
2022 were it not for Def-endants wrongful actions.
32' As Collins has no first-hand knowledge of the layout of plaintiffs,
home,
and Associated failed to offer competent, adrnissible eviclence
(i.e. the
Erhardt report) to support its (false) allegation that there were three
apartments in the home, Associated has no meritorious defense to this
action.
33. Based upon the above, plaintiffs, motion for
t judgment must be
granted and Associated,s motion must be
in its e
Dated: Huntington, New york
February 27,2023
ward Kirchner
6 of 10
FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023
St lPIttl\,11r C'Ot jRt' Ot; l'flL. SI'Al.t: OIr NIItV \,ORK
('Ol-rN f\' ()F Nr\SSAL..r
------x
f,4asuda Begunr ancl \4orashernllillah Inclex No .61194612122
Illu int ilt.
- Bgaiflst -
AIII,]IDAVI'T
A ssociatecl l\,{u t ulrl I n su ra n ce ( looperal
i ve,
[:r'lrarclr:\djustnrclrt Co,. lnc. ancl AII Drv
t.lSA
::::ri::l': ..._..._x
State of'New, \rork )
('oLrrly or' Fl[1yy ]tt
'l'irnothl'
O'Donnell' being dulv sr.vorn, states the ibllowins under penalty
of per.iury,:
I Iatlt tt process server r\s sworn to in my afllclayit of service, I servecl Delbndant Associatecl
i\'lutual ltlsurance CiooPet'ative (hereinafler Associtrteci)bv
rieliverine the pleadings to the
Deparlnrent of Fi,anoial sen,ices in Albany on october. 17,2022.
2 Aller the serve, I createcl a Ceotag, rvhich uses CiPS to show your coorclinates
The Ge.tag is
altachedton'lvaf'fldavit ItshowsthatonOctober 17,2A221 wasatrhel.catio,of,42.65-5j779g.
-7i 758492i l. 'l'his location is on Elk Strect. right near Commerce plaza, where
service rvas
ellecluatcd Please see tl-le attachecl Google Maps.
3' Rased trpon the loregoing. it is mv heliel'that I properly and provaSly ell'ectuatecl sen,ice
upon
Associaled on October 17.2A22
Swcirn to before rne this
2:l dn-v ol'Februarr, 2023
f O'Donnei
Notar.y Public
7 of 10
FILED: INDEX NO. 610946/2022
1'lS_ 166603 NASSAU
8225391 jpg COUNTY CLERK 02/27/2023 05:09 PM
NYSCEF DOC. NO. 44 RECEIVED NYSCEF:
https ://rn 02/27/2023
ai l.google.com/rn ailI u/ /
O
lof 1
8 of 10 2/23/2023,2:24 pM
FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023
&* ,gle Map* 42's9'1e.4"N 73"4s's0,6"w
at.
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9 of 10
FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023
! :1.i r lirl: i,ir:ii i:r One Commerce plaza to 101-i 6S Elk St,
Albany, Ny 1221 0
Walk 453 ft, 2 min
'l': :tllti': I i.l
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f via s swan st and Etk st 2 min
I 453 ft
Mostly flat
10 of 10
Preview
FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023 SUPREME COURT OF THE STATE OF NEW YORK COLNTY OF NASSAU -----x Masuda Begum and Motashern Billah Index No.: 61094612022 Plaintiff, AFFIRMATION IN OPPOSITION TO - against - ASSOCIATED'S MOTION TO ACCEPT LATE Associated Mutual Insurance Cooperative, ANSWER AND IN REPLY Erhardt Adjustment Co., Inc. and All Dry USA :::::i1" ._....._.........x Jonathan Edward Kirchner, an attorney at law, aclmitted to practice in the Courts of the State of New York, affirms the following statements are true, under penalty of perlury: l. i am the attorney for Plaintiffs, and as such, am fully familiar with all the facts and circumstances herein. 2. This affirrnation is submitted in opposition to Defendant Associated,s motion requesting the court order Plaintiffs accept Associated's untimely answer and is also subrnitted in further support of plaintiffs' motion for a default judgment against Associated. J. Def'endant All Dry timely interposed an answer. Service Was Proper and Associated Ilad Actual Notice of the Suit Since August 31,2022 4. Not only was Associated properly served, prior to its default, Associated had actual notice of the lawsuit. 5. Associated does not address the fact that a representative of Erhardt notified Associated abor.rt the suit and provided a copy of the summons and complaint to Associated on August 31, 2022. According to Defendant 1 of 10 FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023 Erhardt's affidavit, Erhardt forwarded the summons and complaint in this action to Associated on August 31,2022. See Docurnent 13. 6. upon information a,d belief, after receivi,g the papers from Erhardt, Associated willfully avoided service of process. 7. Plaintiffs hired a process server to serve Associated at its principal place of business. The process server made attempts fro,r September 17, 2022 through September 21,2022 and there was ,,no contact,, and the door was locked. It is simply too mucli of a coincidence that Associated was notified of this lawsuit on August 31,2022 and in the weeks thereafter locked its doors so service of process could ,ot be made. plaintiffs, process server is more than willing to testify at a traverse hearing to the above. However, it is respectfully requested that a representative frorn Associated appear at the traverse hearing to testify under oath and be sub.iect to cross-examination about the above. 8. Thereafter, on october 17,2022, Associated was served via NyS DFS in Albany and the Affidavit of Service was filed. See Document 6. 9. A process server's sworn affidavit of service is prima facie evidence of service. Wachovia v. Carcano, 106 A.D.3 d726 (2d Dept. 2Ol3). 10. The affldavit must be rebutted by "detailed and specific contradictions of the allegations in the process server,s afficlavit.,, Id. 11. A Defendant's conclusoly denial of service is insufficient to rebut the prima facie evidence of proper service set forth in a process server,s affidavit of service. Id., Citing , l44 AD3d, 1132, 2 of 10 FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023 ll33 12016l, , t21 AD3d 1044, to45 120141 12. A Defendant's co.clusory a,d unsubstantiated denial of service of the surlmons and complaint does not constitute a reasonable excuse fbr his default pursuant to CpLR 5015. Id. 13. A Defendant is not entitlecl to relief pursuant to cpLR 317, where Defendant received actual ttotice of the surrmons and cornplaint in time to defend the action. Id. 14. Despite the above case law, Associates' entire argument is based uporr the conclusory (false) allegation that it was not servecl. 15. Attached hereto as Exhibit 1, please find the affidavit of plaintiffs,process server, complete with GeoTag, clearly and undoubtably dernonstrating service was rnade in Albany. 16. Associated's denial of receipt of service is insufficient to negate both the process server's origi,al affidavit of service ancl the further affidavit attached hereto. 17. Associated of'fers up an email, allegedly frorn NyS DFS, with absolutely no fou,datio,. It must be disregarded by the court. This e,rail chai, includes a "Janessa"; no last name, ,o job title, etc. It contains simple generalities that records were searched and nothing was found. It does not indicate wlio did the search or how. It does not indicate how the search is done' It is simply worthless. Again, there has been no fou,dation laid at all to i,troduce this item into evidence and it must be disregarded. 3 of 10 FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023 18. Furthermore, to the extent that DFS lost or misplaced the pleadi,gs, or DFS was backed up, that is an issue between DFS and Associated. There is no doubt, based upon the affidavit of service and further affidavit (with Geotag), that DFS was served a,d thus Associated was served. wliile this may sound harsh, it is not in this case where Associated had actual notice 19. Simply put, Associated's conclusory denial of receipt of service is insufficient to rebut plaintiffs' process server's affidavits. Associated has no credibility, as it received a copy of the preadings on August 3r, 2022, thereafter locked its doors so service could not be effectuated, denied it received service from DF-S a,d deried it received the 3215 Notice. These denials are not credible. 20. Further demonstrating Associated's lack ol credibility, in paragraph lg of its afflrmation, it is statecl that "Associated Mutual first became ofthe within lawsuit upon receipt of plai,tiffs' ,otice lor a default judgrne,t. . .,, This can be seen as nothing more than untruthful as Associated received actual notice of the lawsuit when same was forwarded to it by Erhardt on August 3 1, 2022. 21' As service was proper, the Court should hold Associated in default ancl set the matter down for inquest. No Meritorious Defense 22. Associated has no meritorious crefense to tl-ris action. 23. Associated wrongfully rescinded the policy. 4 of 10 FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023 24. The affidavit of Jar*iewicz does not address this issue further than a conclusory staternent, thus must be disregarded. 25, The affidavit of collins attempts to create a meritorious defense, however, it fails to do so as it is purely hearsay. 26. Collins (falsely) alleges that Plaintiffs' home had tliree apaftments and not just one, and therefore, coverage was properly rescinded. 27. collins has absolutely no first-ha,d knowledge of the above. collins has never stepped foot inside Plaintiffs' home. Therefore, the affidavit must be disregarded in its entirely as pure hearsay. 28. upon i,forrnation a,d belief, Defendant Erhardt,s company supplied a report to Associated, aud Associated based its decision to rescind solelv upon said report. 29. The collins affidavit does not produce the report and/or documents that demonstrate the (false) allegation that Plaintiffs' home has three apartments. 30. why is the report ,ot included in Associated,s papers? Associated must show a meritorious defetrse and has decided not to ir-rclude the report that they allege would support their.decision to rescind. fhe omission speaks volumes about the lack of a meritorious defense. 31. Plaintiffs would be extremely prejudiced if the cor-rrt permits the co_ Defer.rdants to file a late answer. plaintiffs have suffered enough by being wro,gfully disclaimed / having their poricy r-escinded. The loss occurred in Aptil2022, approaching a year ago. Plaintiffs need and are entitled to have their home fixed. The court granting co-Defendants an opportu,ity to serve 5 of 10 FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023 a late allswer where they rrave no reason for timely answering and no meritorious defense is unbelievably prejudicial. The Court should grant a default.iudgment against the Defendants and set the matter down for inquest as sooll as possible. This would perrnit the Plaintiffs to finally move forward with fixing their home, which in shor,rld have been fixed April2022 I May 2022 were it not for Def-endants wrongful actions. 32' As Collins has no first-hand knowledge of the layout of plaintiffs, home, and Associated failed to offer competent, adrnissible eviclence (i.e. the Erhardt report) to support its (false) allegation that there were three apartments in the home, Associated has no meritorious defense to this action. 33. Based upon the above, plaintiffs, motion for t judgment must be granted and Associated,s motion must be in its e Dated: Huntington, New york February 27,2023 ward Kirchner 6 of 10 FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023 St lPIttl\,11r C'Ot jRt' Ot; l'flL. SI'Al.t: OIr NIItV \,ORK ('Ol-rN f\' ()F Nr\SSAL..r ------x f,4asuda Begunr ancl \4orashernllillah Inclex No .61194612122 Illu int ilt. - Bgaiflst - AIII,]IDAVI'T A ssociatecl l\,{u t ulrl I n su ra n ce ( looperal i ve, [:r'lrarclr:\djustnrclrt Co,. lnc. ancl AII Drv t.lSA ::::ri::l': ..._..._x State of'New, \rork ) ('oLrrly or' Fl[1yy ]tt 'l'irnothl' O'Donnell' being dulv sr.vorn, states the ibllowins under penalty of per.iury,: I Iatlt tt process server r\s sworn to in my afllclayit of service, I servecl Delbndant Associatecl i\'lutual ltlsurance CiooPet'ative (hereinafler Associtrteci)bv rieliverine the pleadings to the Deparlnrent of Fi,anoial sen,ices in Albany on october. 17,2022. 2 Aller the serve, I createcl a Ceotag, rvhich uses CiPS to show your coorclinates The Ge.tag is altachedton'lvaf'fldavit ItshowsthatonOctober 17,2A221 wasatrhel.catio,of,42.65-5j779g. -7i 758492i l. 'l'his location is on Elk Strect. right near Commerce plaza, where service rvas ellecluatcd Please see tl-le attachecl Google Maps. 3' Rased trpon the loregoing. it is mv heliel'that I properly and provaSly ell'ectuatecl sen,ice upon Associaled on October 17.2A22 Swcirn to before rne this 2:l dn-v ol'Februarr, 2023 f O'Donnei Notar.y Public 7 of 10 FILED: INDEX NO. 610946/2022 1'lS_ 166603 NASSAU 8225391 jpg COUNTY CLERK 02/27/2023 05:09 PM NYSCEF DOC. NO. 44 RECEIVED NYSCEF: https ://rn 02/27/2023 ai l.google.com/rn ailI u/ / O lof 1 8 of 10 2/23/2023,2:24 pM FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023 &* ,gle Map* 42's9'1e.4"N 73"4s's0,6"w at. "o\ - {} '.,4 f {t; t.:i tt,i a,l::iaii:,/ ti i\4rp dzlt: G)2023 6oo9le 50ftL..J 42" 39'. 19.4"N 73"45',30.6"W 43. 6 553 ;/8, -7:t, ;/5u4ri2 Dirs{)iio,is (DG)($ :;e,/q Nfi3rhy ii0nd r')t \:, 10 $li$rr,r Frr01e 6\ 1 01 -1 65 ilk Sl, Albsny, NY 1 221 0 M64R+5J2 Albany, New York 9 of 10 FILED: NASSAU COUNTY CLERK 02/27/2023 05:09 PM INDEX NO. 610946/2022 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/27/2023 ! :1.i r lirl: i,ir:ii i:r One Commerce plaza to 101-i 6S Elk St, Albany, Ny 1221 0 Walk 453 ft, 2 min 'l': :tllti': I i.l I ir4rp dala ii)?0?3 f (rnn,e Zit ,i L*_ . *d f via s swan st and Etk st 2 min I 453 ft Mostly flat 10 of 10