Preview
FILED: QUEENS COUNTY CLERK 05/14/2024 09:54 AM INDEX NO. 702616/2024
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/14/2024
SUPREME COURT STATE OF NEW YORK
COUNTY OF QUEENS
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ALEXIS D CORREA PAULINO,
AFFIRMATION IN
OPPOSITION TO MOTION
Plaintiff, FOR DEFAULT JUDGMENT
-against-
DAVID & YONATHAN LLC AND JAMAICA OPTICAL
Defendants.
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SCOTT B. PERO, ESQ., an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms the following to be true under the penalties of perjury:
1. I am an attorney at THE LAW OFFICES OF JOHN J. BELLO, JR., attorneys for
Defendant PREFERRED OPTICAL LTD i/s/h/a JAMAICA OPTICAL (Hereinafter referred to as
“PREFERRED/JAMAICA”) I am fully familiar with the facts and circumstances of this action as
evidenced by the file maintained in this office.
2. This Affirmation, and the annexed exhibits, are submitted in opposition to the
motion of Plaintiff ALEXIS D CORREA PAULINO (Hereinafter “CORREA PAULINO”) for a
default judgment against defendant PREFERRED/JAMAICA.
3. Plaintiff, CORREA PAULINO alleges to have been involved in an accident on
April 14, 2023. The location of the alleged accident was a cellar door area of sidewalk in the area
located at 92-16 Jamaica Avenue, County of Queens, State of New York. Plaintiff commenced
this action via Service and filing of a Summons and Complaint on February 2, 2024. A copy of the
Summons and Complaint is annexed hereto as Exhibit “A” (NYSCEF Doc. No. 1).
4. Defendant PREFERRED/JAMAICA is a lessee of premises at 92-16A Jamaica
Avenue, Woodhaven, NY 11241. The Landlord for the premises is co-defendant DAVID &
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YONATHAN, LLC (Hereinafter DAVID & YONATHAN). A copy of the lease between the
aforementioned entities is annexed hereto as Exhibit “B.” DAVID & YONATHAN served an
Answer to the Complaint on March 26, 2024, via E-Filing. A copy of the DAVID & YONATHAN
Answer is annexed hereto as Exhibit “C” (NYSCEF Doc. No. 5).
5. On March 18, 2024, your affirmant drafted an Answer to Plaintiff’s Summons and
Complaint on behalf of defendant PREFERRED/JAMAICA. Unfortunately, due to volume of
practice and clerical error on the part of your affirmant, the answer was not filed on March 18,
2024. Instead, the Answer to the complaint was filed on April 11, 2024 (See
PREFERRED/JAMAICA Answer annexed hereto as Exhibit “D” (NYSCEF Doc. No. 13). The
Answer was served on the same day that your affirmant heard from PREFERRED/JAMAICA
Principal David Nazginov informing your affirmant that a motion for Default Judgment had been
made against PREFERRED/JAMAICA dated March 27, 2024.
6. On April 12, 2024, after serving an Answer on behalf of PREFERRED/JAMAICA,
which didn’t assert jurisdictional defenses related to service of process, your affirmant contacted
counsel for plaintiff to request that the motion for default be withdrawn. A copy of the e-mail
correspondence sent to plaintiff’s counsel as well as a follow up correspondence sent after speaking
with a representative of plaintiff’s office are annexed hereto as Exhibit “E”. Thereafter, on April
23, 2024, your affirmant contacted counsel for plaintiff and co-defendant and provided a
Stipulation of Withdrawal of the motion for default, which counsel for co-defendant agreed to
execute (See Exhibit “F” hereto). To date, our office has not heard back from counsel for plaintiff
as to whether they will withdraw the motion for a default judgment against the answering
defendant PREFERRED/JAMAICA. Hence, the necessity of submitting opposition to plaintiff’s
motion for a default judgment against them.
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7. As a general rule, public policy favors the resolution of cases on the merits, and in
a case such as this, where there is a reasonable excuse for the default, a meritorious defense and
no prejudice to the plaintiff, a default judgment is inappropriate. Sippin v. Gallardo, 287 A.D.2d
703, 732 N.Y.S.2d 62, 63 (2d Dept. 2001); N.Y. Code of Professional Responsibility EC 7-38;
Bermudez v. City of New York, 22 A.D.2d 865, 254 N.Y.S.2d 420 (1st Dept. 1964) (It has been
noted as ‘extraordinary’ the time that our courts spend on motions of this nature when the issue
could be disposed of by the exercise of simple courtesy between attorneys). In addition, the courts
are empowered to extend time “upon such terms as may be just and upon good cause shown,
whether the application for extension is made before or after the expiration of the time fixed.” See,
CPLR 2004 and CPLR 3012(d).
8. “In order to successfully oppose a motion for leave to enter a default judgment
based upon the defendant’s failure to serve an answer, the defendant must demonstrate reasonable
excuse for the delay and provide a meritorious defense.” Pumarejo-Garcia v. McDonough, 242
A.D.2d 374, 662 N.Y.S.2d 66, 67 (2d Dept. 1997). “The determination of what constitutes a
reasonable excuse for a default lies within the sound discretion of the Supreme Court.”
Westchester Medical Center v. Clarendon Ins. Co., 304 A.D.2d 753, 757 N.Y.S.2d 765, 766 (2d
Dept. 2003).
9. As noted above, your affirmant has been in contact with PREFERRED/JAMAICA
Principal David Nazginov regarding this matter since the middle of March 2024. Mr. Nazginov
and your affrimant contend that the PREFERRD/JAMAICA defendant didn’t have access to
and/or a responsibility to maintain the area of the cellar door where we understand that plaintiff’s
alleged accident of April 14, 2023, is claimed to have occurred. Plaintiff has yet to respond to the
demands for a Bill of Particulars and Discovery/Inspection which were served on April 11, 2024,
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along with the PREFERRED/JAMAICA Answer. As such it is believed that the lease attached
hereto along with the PREFERRED/JAMAICA Answer wherein liability/culpability for the
happening of the occurrence has been denied, demonstrate that a viable defense to plaintiff’s
claims can be established. Moreover, the PREFERRED/JAMAICA defendant Answered
Plaintiff’s Complaint more than one month ago and is awaiting preliminary discovery from
plaintiff as it prepares its defense. As such, it is clear that the motion for a default Judgment against
the appearing defendant PREFERRED OPTICAL LTD i/s/h/a JAMAICA OPTICAL should be
denied in its entirety.
WHEREFORE, It Is Respectfully Requested That This Honorable Court render an Order
denying the motion by Plaintiff ALEXIS D. CORREA PAULINO for a default judgment against
defendant PREFERRED OPTICAL LTD i/s/h/a JAMAICA OPTICAL in its entirety along with
any additional or other relief which This Honorable Court deems appropriate.
Dated: New York, NY
May 14, 2024
_______________________________
BY: SCOTT B. PERO
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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ALEXIS D CORREA PAULINO, Index No.: 702616/2024
Plaintiff,
-against- CERTIFICATION
PURSUANT TO RULE
DAVID & YONATHAN LLC AND JAMAICA OPTICAL
Defendants.
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SCOTT B. PERO, hereby certifies that the above Affirmation in Support complies with
the word count (excluding the caption, signature block, and this Certification) page limits, as set
forth in the Uniform Civil Rules for the Supreme Court, Rule 202.8-b. The moving defendants’
Affirmation in Support contains 992 words.
_______________________________
BY: SCOTT B. PERO
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Preview
FILED: QUEENS COUNTY CLERK 05/14/2024 09:54 AM INDEX NO. 702616/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/14/2024 SUPREME COURT STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------------X Index. No. 702616/2024 ALEXIS D CORREA PAULINO, AFFIRMATION IN OPPOSITION TO MOTION Plaintiff, FOR DEFAULT JUDGMENT -against- DAVID & YONATHAN LLC AND JAMAICA OPTICAL Defendants. ------------------------------------------------------------------------X SCOTT B. PERO, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury: 1. I am an attorney at THE LAW OFFICES OF JOHN J. BELLO, JR., attorneys for Defendant PREFERRED OPTICAL LTD i/s/h/a JAMAICA OPTICAL (Hereinafter referred to as “PREFERRED/JAMAICA”) I am fully familiar with the facts and circumstances of this action as evidenced by the file maintained in this office. 2. This Affirmation, and the annexed exhibits, are submitted in opposition to the motion of Plaintiff ALEXIS D CORREA PAULINO (Hereinafter “CORREA PAULINO”) for a default judgment against defendant PREFERRED/JAMAICA. 3. Plaintiff, CORREA PAULINO alleges to have been involved in an accident on April 14, 2023. The location of the alleged accident was a cellar door area of sidewalk in the area located at 92-16 Jamaica Avenue, County of Queens, State of New York. Plaintiff commenced this action via Service and filing of a Summons and Complaint on February 2, 2024. A copy of the Summons and Complaint is annexed hereto as Exhibit “A” (NYSCEF Doc. No. 1). 4. Defendant PREFERRED/JAMAICA is a lessee of premises at 92-16A Jamaica Avenue, Woodhaven, NY 11241. The Landlord for the premises is co-defendant DAVID & 1 1 of 5 FILED: QUEENS COUNTY CLERK 05/14/2024 09:54 AM INDEX NO. 702616/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/14/2024 YONATHAN, LLC (Hereinafter DAVID & YONATHAN). A copy of the lease between the aforementioned entities is annexed hereto as Exhibit “B.” DAVID & YONATHAN served an Answer to the Complaint on March 26, 2024, via E-Filing. A copy of the DAVID & YONATHAN Answer is annexed hereto as Exhibit “C” (NYSCEF Doc. No. 5). 5. On March 18, 2024, your affirmant drafted an Answer to Plaintiff’s Summons and Complaint on behalf of defendant PREFERRED/JAMAICA. Unfortunately, due to volume of practice and clerical error on the part of your affirmant, the answer was not filed on March 18, 2024. Instead, the Answer to the complaint was filed on April 11, 2024 (See PREFERRED/JAMAICA Answer annexed hereto as Exhibit “D” (NYSCEF Doc. No. 13). The Answer was served on the same day that your affirmant heard from PREFERRED/JAMAICA Principal David Nazginov informing your affirmant that a motion for Default Judgment had been made against PREFERRED/JAMAICA dated March 27, 2024. 6. On April 12, 2024, after serving an Answer on behalf of PREFERRED/JAMAICA, which didn’t assert jurisdictional defenses related to service of process, your affirmant contacted counsel for plaintiff to request that the motion for default be withdrawn. A copy of the e-mail correspondence sent to plaintiff’s counsel as well as a follow up correspondence sent after speaking with a representative of plaintiff’s office are annexed hereto as Exhibit “E”. Thereafter, on April 23, 2024, your affirmant contacted counsel for plaintiff and co-defendant and provided a Stipulation of Withdrawal of the motion for default, which counsel for co-defendant agreed to execute (See Exhibit “F” hereto). To date, our office has not heard back from counsel for plaintiff as to whether they will withdraw the motion for a default judgment against the answering defendant PREFERRED/JAMAICA. Hence, the necessity of submitting opposition to plaintiff’s motion for a default judgment against them. 2 2 of 5 FILED: QUEENS COUNTY CLERK 05/14/2024 09:54 AM INDEX NO. 702616/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/14/2024 7. As a general rule, public policy favors the resolution of cases on the merits, and in a case such as this, where there is a reasonable excuse for the default, a meritorious defense and no prejudice to the plaintiff, a default judgment is inappropriate. Sippin v. Gallardo, 287 A.D.2d 703, 732 N.Y.S.2d 62, 63 (2d Dept. 2001); N.Y. Code of Professional Responsibility EC 7-38; Bermudez v. City of New York, 22 A.D.2d 865, 254 N.Y.S.2d 420 (1st Dept. 1964) (It has been noted as ‘extraordinary’ the time that our courts spend on motions of this nature when the issue could be disposed of by the exercise of simple courtesy between attorneys). In addition, the courts are empowered to extend time “upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” See, CPLR 2004 and CPLR 3012(d). 8. “In order to successfully oppose a motion for leave to enter a default judgment based upon the defendant’s failure to serve an answer, the defendant must demonstrate reasonable excuse for the delay and provide a meritorious defense.” Pumarejo-Garcia v. McDonough, 242 A.D.2d 374, 662 N.Y.S.2d 66, 67 (2d Dept. 1997). “The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court.” Westchester Medical Center v. Clarendon Ins. Co., 304 A.D.2d 753, 757 N.Y.S.2d 765, 766 (2d Dept. 2003). 9. As noted above, your affirmant has been in contact with PREFERRED/JAMAICA Principal David Nazginov regarding this matter since the middle of March 2024. Mr. Nazginov and your affrimant contend that the PREFERRD/JAMAICA defendant didn’t have access to and/or a responsibility to maintain the area of the cellar door where we understand that plaintiff’s alleged accident of April 14, 2023, is claimed to have occurred. Plaintiff has yet to respond to the demands for a Bill of Particulars and Discovery/Inspection which were served on April 11, 2024, 3 3 of 5 FILED: QUEENS COUNTY CLERK 05/14/2024 09:54 AM INDEX NO. 702616/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/14/2024 along with the PREFERRED/JAMAICA Answer. As such it is believed that the lease attached hereto along with the PREFERRED/JAMAICA Answer wherein liability/culpability for the happening of the occurrence has been denied, demonstrate that a viable defense to plaintiff’s claims can be established. Moreover, the PREFERRED/JAMAICA defendant Answered Plaintiff’s Complaint more than one month ago and is awaiting preliminary discovery from plaintiff as it prepares its defense. As such, it is clear that the motion for a default Judgment against the appearing defendant PREFERRED OPTICAL LTD i/s/h/a JAMAICA OPTICAL should be denied in its entirety. WHEREFORE, It Is Respectfully Requested That This Honorable Court render an Order denying the motion by Plaintiff ALEXIS D. CORREA PAULINO for a default judgment against defendant PREFERRED OPTICAL LTD i/s/h/a JAMAICA OPTICAL in its entirety along with any additional or other relief which This Honorable Court deems appropriate. Dated: New York, NY May 14, 2024 _______________________________ BY: SCOTT B. PERO 4 4 of 5 FILED: QUEENS COUNTY CLERK 05/14/2024 09:54 AM INDEX NO. 702616/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/14/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ---------------------------------------------------------------------X ALEXIS D CORREA PAULINO, Index No.: 702616/2024 Plaintiff, -against- CERTIFICATION PURSUANT TO RULE DAVID & YONATHAN LLC AND JAMAICA OPTICAL Defendants. ---------------------------------------------------------------------X SCOTT B. PERO, hereby certifies that the above Affirmation in Support complies with the word count (excluding the caption, signature block, and this Certification) page limits, as set forth in the Uniform Civil Rules for the Supreme Court, Rule 202.8-b. The moving defendants’ Affirmation in Support contains 992 words. _______________________________ BY: SCOTT B. PERO 5 5 of 5