Preview
INDEX NO. 81092872015
FILED: ERIE COUNTY CLERK 10/05/2015 01:22 PM
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/05/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
-X INDEX NO. 810928/2015
ROBERT ZINK File No. C535666
Plaintiff,
AFFIRMATION
-against-
SELIP & STYLIANOU LLP and;
MIDLAND FUNDING LLC
Defendants.
XK
ALEX PONZE, an attorney duly admitted to practice in the courts of the State of New
York, affirms the following to be true under the penalties of perjury:
1 lam associated with Selip & Stylianou LLP, one of the above named Defendants’
herein. (hereinafter “S&S”). As such, I am fully familiar with the facts and circumstances
herein except those matters stated upon information and belief and as to those matters; I
believe them to be true.
2. I submit this Affirmation in support of S&S’s application for an Order pursuant to
CPLR 32118 (a) (7) dismissing the Complaint of ROBERT ZINK (hereinafter “Plaintiff”)
with prejudice and for such other and further relief as this Court deems just and proper. No
prior application for the relief sought herein has been made.
3 For the reasons that follow, the Complaint should be dismissed in its entirety and
with prejudice as to S&S.
PROCEDURAL HISTORY
4. On or about March 25, 2015 S&S commenced an action against Plaintiff on
behalf of its client, Midland Funding LLC by filing a Summons and Complaint in
Lackawanna City Court. (“Collection Action”) The caption of the Collection Action is
Page | 2
entitled Midland Funding LLC against Robert Zink and bears the index number CV102-
15/LA. Copies of the Summons and Complaint are annexed hereto as Exhibit "A".
5 On or about April 8, 2015, Plaintiff was served with a copy of the pleadings. A
copy of the Affidavit of Service is annexed hereto as Exhibit "B"
6 On or about May 1, 2015 Plaintiff appeared in the Collection Action by filing an
Answer. A copy of the Plaintiff's Answer is annexed hereto as Exhibit “C”.
7 By stipulation dated May 15, 2015 the Collection Action was discontinued with
prejudice. A copy of said stipulation is annexed hereto as Exhibit “D”.
8 On September 16, 2015 S&S was served a Summons and Complaint in
connection with the above captioned case. In sum and substance, the pleadings allege that
S&S and Midland Funding LLC (Collectively the “Defendants”) violated the Fair Debt
Collection Practices Act (“FDCPA”) by commencing the Collection Action in an improper
venue. The venue provision of the FDCPA provides that a debt collector seeking to recover a
consumer debt must “bring such action only in the judicial district or similar legal entity .. .
in which such consumer signed the contract sued upon or in which such consumer resides at
the commencement of the action.” 15 U.S.C. § 1692i (a) (2).
9 The entire basis of Plaintiff's FDCPA rests upon opposing counsel’s assertion that
“Mr. Zink was not living in Lackawanna when Defendants sued same.”
10. On the strength of S&S’s purported violation of 15 U.S.C. § 1692i (a) (2),
Plaintiff seeks to recover additional damages under NY GBL§349.
Page | 3
IRREFUTABLE FACTS
11. Erie County is part of the 8" Judicial District, 4" Judicial Department of the New
York State Unified Court System. Among the multitude of towns and villages located in Erie
County, there are only three cities; Tonawanda, Buffalo and Lackawanna. The City of
Lackawanna is immediately contiguous to the southern border of Buffalo. See Exhibit “E”
http://www2.erie.gov/communications/index.php?q=erie-county-psap-map
12. At all relevant times the Plaintiff resided in Erie County at the premises known as
49 Kenefick Avenue Apt. 2 Buffalo New York 14220. See Exhibits A-C supra.
13. Per the New York State Unified Court System E-Courts Web site
(http://www.courts.state.ny.us/courts/8jd/landing-courts.shtml), there are four (4) venues located
in Erie County; Erie County Court/Erie Supreme Court, Buffalo City Court, Tonawanda City
Court and Lackawanna City Court. See Exhibit F
14. Erie County Supreme Court is located at 25 Delaware Avenue Buffalo, New
York 14202. The distance between Erie County Supreme Court and Plaintiff's home address
is 5.11 miles. (See Mapquest Exhibit “G”). Buffalo City Court is located at 50 Delaware
Avenue Buffalo, New York 14202. The distance between Buffalo City Court and Plaintiff's
home address is 5.14 miles. (See Mapquest Exhibit “H”) Tonawanda City Court is located at
200 Niagara Street, Tonawanda, New York 14150. The distance between Tonawanda City
Court and Plaintiff's home address is 16.24 miles. (See Mapquest Exhibit “I’”).
15. By a considerable margin, Lackawanna City Court is the closest venue to the
location where Plaintiff resides. The Lackawanna City Court is located at 714 Ridge Road
Lackawanna, New York 14218. The distance between Plaintiff's home address and
Lackawanna City Court is 1.86 miles. (See Mapquest Exhibit “J”).
Page | 4
16. The above stated facts are not subject to reasonable dispute. Geography and
common knowledge dictate that Lackawanna is contiguous to the City of Buffalo, Buffalo
and Lackawanna are both located in Erie County and the venue in closest proximity to
Plaintiffs home address is Lackawanna City Court.
17. Annexed hereto as Exhibit “K” is a map of Erie County delineated by zip code.
The location designated “A” is Plaintiffs home address. The location designated “B” is
Buffalo City Court. The location designated “C” is Lackawanna City Court. The location
designated “D” is Tonawanda City Court.
18. As explained below, judicial notice of the above stated facts warrants summary
dismissal of the Complaint.
STANDARD ON THIS MOTION
19, On a CPLR §3211(a)(7) motion, the Court’s role is limited to determining
whether a cause of action is stated within the four corners of the pleadings, and not whether
there is evidentiary support for it. See Frank v. DaimlerChrysler Corp., 292 A.D.2d 118 (1st
Dep’t 2002); see also Ackerman v. 305 East 40th Owners Corp., 189 A.D.2d 665 (1st Dep’t
1993).
20. As with any motion to dismiss under CPLR §3211 (a), the Court must determine
if, assuming the truth of the facts alleged, the pleadings state the elements of a legally
cognizable cause of action. 1199 Housing Corp. v. Int'l Fidelity Insurance Co., N.Y.S.2d 88,
89 (1st Dep’t 2005). _
21. Under most circumstances, the Court must assume the truth of the facts alleged by
the non-moving party on a CPLR§3211(a) (7) motion. However, the Court is not required to
accept legal conclusions that are unsupportable based upon undisputed facts. Robinson v.
Page | 5
Robinson, 303 A.D. 2d 234 (1st Dep’t 2003); Water St. Leasehold LLC v. DeLoitte&Touche
LLP, 19 A.D.3d 183 (1st Dep’t 2005).
22. In the case at bar, S&S has proffered unassailable proof that Lackawanna City was
the proper verntue to commence the Collection Action. In complete conformity with the venue
provision of the FDCPA, Lackawanna City Court constitutes a “judicial district or similar
legal entity “. .. where the instant Plaintiff resided at the commencement of the action. 15
USS.C. § 1692i (a) (2) (Emphasis added).
23. This conclusion is bolstered by N.Y. Uniform City Court Act §213. In pertinent
part, N.Y. Uniform City Court Act §213 provides that an action seeking to recover a money
judgment may be filed in a city court if the consumer is:
A resident of the city or of a town contiguous to such city, provided such town is
(i) within the same county, and
(ii) contiguous to the city by land, and
(iii) not within either Nassau or Westchester counties;
ARGUMENT
J. THE COLLECTION ACTION WAS COMMENCED IN THE APPROPRIATE
VENUE AS A MATTER OF LAW
24. It is well settled law that a court has the authority to take judicial notice of
undisputed facts. Undisputed facts include matters of common and general knowledge that
are well established and authoritatively settled. The test is whether sufficient notoriety
attaches to the fact to make it proper to assume its existence without proof. Carter v. Metro
N. Assocs., 255 A.D.2d 251, 251 (1st Dep't 1998) The fact at issue must be " 'generalized
knowledge as [is] so notorious as not to be the subject of reasonable dispute’ mn Abrevaya v
Palace Theatre & Realty Co., 25 Misc 2d 600, 603 (Sup Ct, NY County 1960) See generally
CPLR §4511(b).
Page | 6
25 The seminal case of Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d
13, 19-20 (2d Dep't 2009) illustrates the myriad of circumstances in which New York Courts
have deemed it appropriate to take judicial notice. In Kingsbrook, the court held that
diagnosis and procedure codes maintained by the United States Government on its Health and
Human Services Web site were of sufficient authenticity and reliability to warrant judicial
notice. In reaching its conclusion, the court observed:
Judicial notice has never been strictly limited to the constitutions,
resolutions, ordinances, and regulations of government, but has been applied
by case law to other public documents that are generated in a manner which
assures their reliability. Thus, the concept has been applied to census data
(see Affronti v Crosson, 95 NY2d 713, 720, 746 NE2d 1049, 723 NYS2d
757 [2001]; Buffalo Retired Teachers 91-94 Alliance v Board of Educ. for
ity School Dist. of City of Buffalo, 261 AD2d 824, 825, 689 NYS2d 56
[1999] Mackston v State of New York, 126 AD2d 710, 510 NYS2d 912
[1987]), agency policies (see Matter of Albano v Kirby, 36 NY2d 526, 532
330 NE2d 615, 369 NYS2d 655 [1975]), certificates of corporate dissolution
maintained by the Secretary of State (see Brandes Meat Corp. v Cromer, 146
AD2d 666, 667, 537 NYS2d 177 [1989]), the resignation of public officials
(see Matter of Soronen v Comptroller of State of N.Y., 248 AD2d 789, 791
669 NYS2d 694 [1998]; Matter of Maidman, 42 AD2d 44, 47, 345 NYS2d
82 [1973]), legislative proceedings [12] (see Outlet Embroidery Co.
De erwent Mills, 254 NY 179, 183, 172 N.E. 462 [1930]), legislative journals
(see Browne v City of New York, 213 App Div 206, 233, 211 N.Y.S. 306
[1925]), the consumer price index (see Sommers
Sommers yv Sommers
Sommers, 203 AD2d 975,
976, [20] 611 NYS2d 971 [1994]; City of Hope v Fisk Bldg. Assoc., 63
AD2d 946, 947, 406 NYS2d 472 [1978]), the location of real property
recorded [685] with a clerk (see Andy Assoc. v Bankers Trust Co., 49 NY2d
13, 23-24, 399 NE2d 1160, 424 NYS2d 139 [1979]), death certificates
maintained by the Department of Health (see Matter.of Reinhardt, 202 Misc
424, 426, 114 NYS2d 208 [1952]), and undisputed court records and files
(see e.g. Perezv New York City Hous. Auth., 47 AD3d 505, 850 NYS2d 75
[2008]; Walkerv City of New York, 46 AD3d 278, 282, 847 NYS2d 173
[2007]; Matter of Khatibe v Weill, 8 AD3d 485, 778 NYS2d 51 [2004]
Matter of Allen v Strough, 301 AD2d 11, 18, 752 NYS2d 339 [2002]). Even
material derived from official government Web sites may be the subject
of judicial notice (see Munaron vy Munaron, 21 Mise [5] 3d 295, 862
NYS2d 796 [Sup Ct, Westchester County 2008]; Parrino v Russo, 19
Misc 3d 1127[A], 866 NYS2d 93, 2008 NY Slip Op 50925[U] [Civ Ct,
Kings County 2008]; Nairne v Perkins, 14 Mise 3d 1237[A], 836 NYS2d
501, 2007 NY Slip Op 50336[U] [Civ Ct, Kings County 2008]; Proscan
Radiology of Buffalo vy Progressive Cas. Ins. Co., 12 Mise 3d 1176[A],
Page | 7
820 NYS2d 845, 2006 NY Slip Op 51242[U] [Buffalo City Ct 2006}). Id at
19-20
26. The distance, location and time of travel between places are appropriate subjects
for judicial notice. Application of Barbara, 14 Misc. 2d 223 (N.Y. Sup. Ct. 1958) (Court
takes judicial notice that distance between Appalachian, New York to New York City is
between 190 and 200 miles); Kossoff v. Samsung Co., 123 Mise.2d 177, 178, 474 N.Y.S.2d
180 (Sup. Ct 1984)( “This court takes judicial notice that New York City, more precisely the
Borough of Manhattan, is the national distribution center of all manner of wearing apparel”);
Spearing v. Manhattan Oil Transp. Corp., 375 F. Supp. 764, 771 (S.D.N.Y. 1974) ( Judicial
notice taken that Weehauken, New Jersey is located within 100 miles of the United States
Court House); Penthouse International, Ltd. v. Koch, 599 F. Supp. 1338, 1346 (S.D.N.Y.
1984) (Judicial notice of the layout and characteristics of the New York City subway system)
27. In the case at bar, the annexed exhibits constitute unassailable proof that S&S
commenced the Collection Action in the proper venue. All of the information provided in
support of the instant Motion was obtained from official government Web sites and publicly
available sources. In short, none of the facts asserted by S&S are subject to dispute or
interpretation. Lackawanna City Court is located in the same County where Plaintiff resides,
Lackawanna is contiguous to the City of Buffalo and the venue in closest proximity to where
Plaintiff resides is Lackawanna City Court.
28. Accordingly, S&S requests that the Court take judicial notice of the foregoing
facts and dismiss Plaintiff's FDCPA claim with prejudice.
Page | 8
Il. THE NY GBL§ 349 CLAIM CANNOT SURVIVE WITHOUT AN
ACCOMPANYING FDCPA VIOLATION
29. As discussed in detail above, the pleadings fail to state a valid claim under the
FDCPA. Therefore, Plaintiff's cause of action under GBL 349 automatically fails as a matter
of law. Without an accompanying FDCPA violation, there is no cognizable theory of injury
pleaded in the Complaint. See Baron v. Pfizer Inc., 42 A.D3d 627, 629 (3d Dep’t 2007)
(Court dismissed GBL§ 349 claim for failure to allege injury absent manifestation of
pecuniary or “actual harm”).
CONCLUSION
For all of the foregoing reasons, the Complaint fails to state a cause of action against S&S
and should be dismissed with prejudice. Accordingly, S&S respectfully requests that the
Court enter an Order pursuant to CPLR§3211(a) (7) dismissing both causes of action asserted
in the Complaint with prejudice on the ground that the pleadings fail to state a cause of action
; and for such further relief that the Court may deem just and proper
DATED: Woodbury, New York
October 2, 2015
Yours etc.,
By: Alex Ponze
Selip & Stylianou LLP
Defendant Pro Se
199 Crossways Park Drive,
Woodbury, New York 11797
Page | 9
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INDEX NO. 81092872015 FILED: ERIE COUNTY CLERK 10/05/2015 01:22 PM NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/05/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE -X INDEX NO. 810928/2015 ROBERT ZINK File No. C535666 Plaintiff, AFFIRMATION -against- SELIP & STYLIANOU LLP and; MIDLAND FUNDING LLC Defendants. XK ALEX PONZE, an attorney duly admitted to practice in the courts of the State of New York, affirms the following to be true under the penalties of perjury: 1 lam associated with Selip & Stylianou LLP, one of the above named Defendants’ herein. (hereinafter “S&S”). As such, I am fully familiar with the facts and circumstances herein except those matters stated upon information and belief and as to those matters; I believe them to be true. 2. I submit this Affirmation in support of S&S’s application for an Order pursuant to CPLR 32118 (a) (7) dismissing the Complaint of ROBERT ZINK (hereinafter “Plaintiff”) with prejudice and for such other and further relief as this Court deems just and proper. No prior application for the relief sought herein has been made. 3 For the reasons that follow, the Complaint should be dismissed in its entirety and with prejudice as to S&S. PROCEDURAL HISTORY 4. On or about March 25, 2015 S&S commenced an action against Plaintiff on behalf of its client, Midland Funding LLC by filing a Summons and Complaint in Lackawanna City Court. (“Collection Action”) The caption of the Collection Action is Page | 2 entitled Midland Funding LLC against Robert Zink and bears the index number CV102- 15/LA. Copies of the Summons and Complaint are annexed hereto as Exhibit "A". 5 On or about April 8, 2015, Plaintiff was served with a copy of the pleadings. A copy of the Affidavit of Service is annexed hereto as Exhibit "B" 6 On or about May 1, 2015 Plaintiff appeared in the Collection Action by filing an Answer. A copy of the Plaintiff's Answer is annexed hereto as Exhibit “C”. 7 By stipulation dated May 15, 2015 the Collection Action was discontinued with prejudice. A copy of said stipulation is annexed hereto as Exhibit “D”. 8 On September 16, 2015 S&S was served a Summons and Complaint in connection with the above captioned case. In sum and substance, the pleadings allege that S&S and Midland Funding LLC (Collectively the “Defendants”) violated the Fair Debt Collection Practices Act (“FDCPA”) by commencing the Collection Action in an improper venue. The venue provision of the FDCPA provides that a debt collector seeking to recover a consumer debt must “bring such action only in the judicial district or similar legal entity .. . in which such consumer signed the contract sued upon or in which such consumer resides at the commencement of the action.” 15 U.S.C. § 1692i (a) (2). 9 The entire basis of Plaintiff's FDCPA rests upon opposing counsel’s assertion that “Mr. Zink was not living in Lackawanna when Defendants sued same.” 10. On the strength of S&S’s purported violation of 15 U.S.C. § 1692i (a) (2), Plaintiff seeks to recover additional damages under NY GBL§349. Page | 3 IRREFUTABLE FACTS 11. Erie County is part of the 8" Judicial District, 4" Judicial Department of the New York State Unified Court System. Among the multitude of towns and villages located in Erie County, there are only three cities; Tonawanda, Buffalo and Lackawanna. The City of Lackawanna is immediately contiguous to the southern border of Buffalo. See Exhibit “E” http://www2.erie.gov/communications/index.php?q=erie-county-psap-map 12. At all relevant times the Plaintiff resided in Erie County at the premises known as 49 Kenefick Avenue Apt. 2 Buffalo New York 14220. See Exhibits A-C supra. 13. Per the New York State Unified Court System E-Courts Web site (http://www.courts.state.ny.us/courts/8jd/landing-courts.shtml), there are four (4) venues located in Erie County; Erie County Court/Erie Supreme Court, Buffalo City Court, Tonawanda City Court and Lackawanna City Court. See Exhibit F 14. Erie County Supreme Court is located at 25 Delaware Avenue Buffalo, New York 14202. The distance between Erie County Supreme Court and Plaintiff's home address is 5.11 miles. (See Mapquest Exhibit “G”). Buffalo City Court is located at 50 Delaware Avenue Buffalo, New York 14202. The distance between Buffalo City Court and Plaintiff's home address is 5.14 miles. (See Mapquest Exhibit “H”) Tonawanda City Court is located at 200 Niagara Street, Tonawanda, New York 14150. The distance between Tonawanda City Court and Plaintiff's home address is 16.24 miles. (See Mapquest Exhibit “I’”). 15. By a considerable margin, Lackawanna City Court is the closest venue to the location where Plaintiff resides. The Lackawanna City Court is located at 714 Ridge Road Lackawanna, New York 14218. The distance between Plaintiff's home address and Lackawanna City Court is 1.86 miles. (See Mapquest Exhibit “J”). Page | 4 16. The above stated facts are not subject to reasonable dispute. Geography and common knowledge dictate that Lackawanna is contiguous to the City of Buffalo, Buffalo and Lackawanna are both located in Erie County and the venue in closest proximity to Plaintiffs home address is Lackawanna City Court. 17. Annexed hereto as Exhibit “K” is a map of Erie County delineated by zip code. The location designated “A” is Plaintiffs home address. The location designated “B” is Buffalo City Court. The location designated “C” is Lackawanna City Court. The location designated “D” is Tonawanda City Court. 18. As explained below, judicial notice of the above stated facts warrants summary dismissal of the Complaint. STANDARD ON THIS MOTION 19, On a CPLR §3211(a)(7) motion, the Court’s role is limited to determining whether a cause of action is stated within the four corners of the pleadings, and not whether there is evidentiary support for it. See Frank v. DaimlerChrysler Corp., 292 A.D.2d 118 (1st Dep’t 2002); see also Ackerman v. 305 East 40th Owners Corp., 189 A.D.2d 665 (1st Dep’t 1993). 20. As with any motion to dismiss under CPLR §3211 (a), the Court must determine if, assuming the truth of the facts alleged, the pleadings state the elements of a legally cognizable cause of action. 1199 Housing Corp. v. Int'l Fidelity Insurance Co., N.Y.S.2d 88, 89 (1st Dep’t 2005). _ 21. Under most circumstances, the Court must assume the truth of the facts alleged by the non-moving party on a CPLR§3211(a) (7) motion. However, the Court is not required to accept legal conclusions that are unsupportable based upon undisputed facts. Robinson v. Page | 5 Robinson, 303 A.D. 2d 234 (1st Dep’t 2003); Water St. Leasehold LLC v. DeLoitte&Touche LLP, 19 A.D.3d 183 (1st Dep’t 2005). 22. In the case at bar, S&S has proffered unassailable proof that Lackawanna City was the proper verntue to commence the Collection Action. In complete conformity with the venue provision of the FDCPA, Lackawanna City Court constitutes a “judicial district or similar legal entity “. .. where the instant Plaintiff resided at the commencement of the action. 15 USS.C. § 1692i (a) (2) (Emphasis added). 23. This conclusion is bolstered by N.Y. Uniform City Court Act §213. In pertinent part, N.Y. Uniform City Court Act §213 provides that an action seeking to recover a money judgment may be filed in a city court if the consumer is: A resident of the city or of a town contiguous to such city, provided such town is (i) within the same county, and (ii) contiguous to the city by land, and (iii) not within either Nassau or Westchester counties; ARGUMENT J. THE COLLECTION ACTION WAS COMMENCED IN THE APPROPRIATE VENUE AS A MATTER OF LAW 24. It is well settled law that a court has the authority to take judicial notice of undisputed facts. Undisputed facts include matters of common and general knowledge that are well established and authoritatively settled. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof. Carter v. Metro N. Assocs., 255 A.D.2d 251, 251 (1st Dep't 1998) The fact at issue must be " 'generalized knowledge as [is] so notorious as not to be the subject of reasonable dispute’ mn Abrevaya v Palace Theatre & Realty Co., 25 Misc 2d 600, 603 (Sup Ct, NY County 1960) See generally CPLR §4511(b). Page | 6 25 The seminal case of Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 A.D.3d 13, 19-20 (2d Dep't 2009) illustrates the myriad of circumstances in which New York Courts have deemed it appropriate to take judicial notice. In Kingsbrook, the court held that diagnosis and procedure codes maintained by the United States Government on its Health and Human Services Web site were of sufficient authenticity and reliability to warrant judicial notice. In reaching its conclusion, the court observed: Judicial notice has never been strictly limited to the constitutions, resolutions, ordinances, and regulations of government, but has been applied by case law to other public documents that are generated in a manner which assures their reliability. Thus, the concept has been applied to census data (see Affronti v Crosson, 95 NY2d 713, 720, 746 NE2d 1049, 723 NYS2d 757 [2001]; Buffalo Retired Teachers 91-94 Alliance v Board of Educ. for ity School Dist. of City of Buffalo, 261 AD2d 824, 825, 689 NYS2d 56 [1999] Mackston v State of New York, 126 AD2d 710, 510 NYS2d 912 [1987]), agency policies (see Matter of Albano v Kirby, 36 NY2d 526, 532 330 NE2d 615, 369 NYS2d 655 [1975]), certificates of corporate dissolution maintained by the Secretary of State (see Brandes Meat Corp. v Cromer, 146 AD2d 666, 667, 537 NYS2d 177 [1989]), the resignation of public officials (see Matter of Soronen v Comptroller of State of N.Y., 248 AD2d 789, 791 669 NYS2d 694 [1998]; Matter of Maidman, 42 AD2d 44, 47, 345 NYS2d 82 [1973]), legislative proceedings [12] (see Outlet Embroidery Co. De erwent Mills, 254 NY 179, 183, 172 N.E. 462 [1930]), legislative journals (see Browne v City of New York, 213 App Div 206, 233, 211 N.Y.S. 306 [1925]), the consumer price index (see Sommers Sommers yv Sommers Sommers, 203 AD2d 975, 976, [20] 611 NYS2d 971 [1994]; City of Hope v Fisk Bldg. Assoc., 63 AD2d 946, 947, 406 NYS2d 472 [1978]), the location of real property recorded [685] with a clerk (see Andy Assoc. v Bankers Trust Co., 49 NY2d 13, 23-24, 399 NE2d 1160, 424 NYS2d 139 [1979]), death certificates maintained by the Department of Health (see Matter.of Reinhardt, 202 Misc 424, 426, 114 NYS2d 208 [1952]), and undisputed court records and files (see e.g. Perezv New York City Hous. Auth., 47 AD3d 505, 850 NYS2d 75 [2008]; Walkerv City of New York, 46 AD3d 278, 282, 847 NYS2d 173 [2007]; Matter of Khatibe v Weill, 8 AD3d 485, 778 NYS2d 51 [2004] Matter of Allen v Strough, 301 AD2d 11, 18, 752 NYS2d 339 [2002]). Even material derived from official government Web sites may be the subject of judicial notice (see Munaron vy Munaron, 21 Mise [5] 3d 295, 862 NYS2d 796 [Sup Ct, Westchester County 2008]; Parrino v Russo, 19 Misc 3d 1127[A], 866 NYS2d 93, 2008 NY Slip Op 50925[U] [Civ Ct, Kings County 2008]; Nairne v Perkins, 14 Mise 3d 1237[A], 836 NYS2d 501, 2007 NY Slip Op 50336[U] [Civ Ct, Kings County 2008]; Proscan Radiology of Buffalo vy Progressive Cas. Ins. Co., 12 Mise 3d 1176[A], Page | 7 820 NYS2d 845, 2006 NY Slip Op 51242[U] [Buffalo City Ct 2006}). Id at 19-20 26. The distance, location and time of travel between places are appropriate subjects for judicial notice. Application of Barbara, 14 Misc. 2d 223 (N.Y. Sup. Ct. 1958) (Court takes judicial notice that distance between Appalachian, New York to New York City is between 190 and 200 miles); Kossoff v. Samsung Co., 123 Mise.2d 177, 178, 474 N.Y.S.2d 180 (Sup. Ct 1984)( “This court takes judicial notice that New York City, more precisely the Borough of Manhattan, is the national distribution center of all manner of wearing apparel”); Spearing v. Manhattan Oil Transp. Corp., 375 F. Supp. 764, 771 (S.D.N.Y. 1974) ( Judicial notice taken that Weehauken, New Jersey is located within 100 miles of the United States Court House); Penthouse International, Ltd. v. Koch, 599 F. Supp. 1338, 1346 (S.D.N.Y. 1984) (Judicial notice of the layout and characteristics of the New York City subway system) 27. In the case at bar, the annexed exhibits constitute unassailable proof that S&S commenced the Collection Action in the proper venue. All of the information provided in support of the instant Motion was obtained from official government Web sites and publicly available sources. In short, none of the facts asserted by S&S are subject to dispute or interpretation. Lackawanna City Court is located in the same County where Plaintiff resides, Lackawanna is contiguous to the City of Buffalo and the venue in closest proximity to where Plaintiff resides is Lackawanna City Court. 28. Accordingly, S&S requests that the Court take judicial notice of the foregoing facts and dismiss Plaintiff's FDCPA claim with prejudice. Page | 8 Il. THE NY GBL§ 349 CLAIM CANNOT SURVIVE WITHOUT AN ACCOMPANYING FDCPA VIOLATION 29. As discussed in detail above, the pleadings fail to state a valid claim under the FDCPA. Therefore, Plaintiff's cause of action under GBL 349 automatically fails as a matter of law. Without an accompanying FDCPA violation, there is no cognizable theory of injury pleaded in the Complaint. See Baron v. Pfizer Inc., 42 A.D3d 627, 629 (3d Dep’t 2007) (Court dismissed GBL§ 349 claim for failure to allege injury absent manifestation of pecuniary or “actual harm”). CONCLUSION For all of the foregoing reasons, the Complaint fails to state a cause of action against S&S and should be dismissed with prejudice. Accordingly, S&S respectfully requests that the Court enter an Order pursuant to CPLR§3211(a) (7) dismissing both causes of action asserted in the Complaint with prejudice on the ground that the pleadings fail to state a cause of action ; and for such further relief that the Court may deem just and proper DATED: Woodbury, New York October 2, 2015 Yours etc., By: Alex Ponze Selip & Stylianou LLP Defendant Pro Se 199 Crossways Park Drive, Woodbury, New York 11797 Page | 9