Preview
FILED: NASSAU COUNTY CLERK 08/30/2018 09:33 AM INDEX NO. 605636/2015
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/30/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
------ ---- ------------------------------x
AMERICAN EXPRESS CENTURION BANK,
INDEX NO. 605636/2015
PLAINTIFF,
vs.
AFFIRMATION IN SUPPORT OF
ORDER TO SHOW CAUSE TO
RESTORE TO THE COURTS
CALENDAR
ALEX ECHEVERRIA, AKA,
ALEX L ECHEVERRIA
DEFENDANT(S).
JEFFREY M GERACE, ESQ., an attorney admitted to practice in the Courts of the State of
New York, associated with the firm of Zwicker & Associates PC, Attorneys for Plaintiff, affirms
the following under penalty of perjury pursuant to the New York Civil Practice Law and Rules
("CPLR") section 2106, upon information and belief, based upon a file maintained by
affirmant's office.
1. This motioñ is being made to vacate the Plaintiff's Default and to restore the action to the
Court's calendar pursuant to CPLR §§ 2005 and 5015(a).
2. This action was commenced the of a Summons and Complaiñt on August 31, 2015.
by filing
A copy of the Summons and Complaint are attached as Exhibit A.
3. Subsequently, Plaintiff joined issue by submitting an Answer. A copy of Defendant's
Answer is attached as Exhibit B.
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FILED: NASSAU COUNTY CLERK 08/30/2018 09:33 AM INDEX NO. 605636/2015
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/30/2018
4. The Plaintiff was awarded summary judgment on or about July 2, 2018. A copy of the Order
granting Plaintiff summary judgment is attached as Exhibit C.
5. Prior to granting the Plaintiff summary judgment, the Court set the matter down for a
Supreme Trial, set for August 1, 2018 at 9:30 AM before the Honorable Feinman.
6. Approximately one week prior to the August 1, 2018 appearance date, I reviewed New York
State Unified Court System ("e-courts") to see ifan appearance was required on August 1,
2018 in light of the summary judgment order. Per e-courts, the Supreme Trial on August 1,
MOTION." e-
2018 was marked "DISPOSED/RESULT OF A A copy of a print out from
courts regarding this matter is attached as Exhibit D. Further, on or about July 30, 2018,
Plaintiff's counsel received an "eTrack Supreme update", indicating that the Supreme Trial
MOTION."
on August 1, 2018 was marked "DISPOSED/RESULT OF A Please see page 2
of the email from no-reply@nycourts.gov, attached as Exhibit E. As a result of these
notifications from the court, Plaintiff did not appear on August 1, 2018.
7. This Court signed an order dismissing the matter due to the Plaintiff's failure to appear. A
copy of the Order dismissing the matter is attached as Exhibit F.
ARGUMENT
A. The Plaintiff has demonstrated a reasonable excuse for default and the matter
should be restored to the Court's Calendar.
8. In the event that the party's failure to appear is merely the result of a law office failure,
CPLR § 2005 reinforces the principle that the client should not suffer because of the errors of
counsel. So long as there is no pattern of willful default and neglect nor conduct that
constitutes an intentional default or a default in bad faith, a law office failure, in the court's
discretion, may serve as a reasonable excuse for failing to appear. See CPLR § 2005 and
(2nd non-
Liotti v Peace, 15 AD3d 452, 790 NYS2d 512 Dept. 2005). (An isolated incident of
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FILED: NASSAU COUNTY CLERK 08/30/2018 09:33 AM INDEX NO. 605636/2015
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/30/2018
appearance as a result of a calendaring error with no evidence that the non-appearance was
willful is a reasonable excuse for default).
9. In this instance, the Plaintiff has been diligent working towards a resolution of this matter.
After receiving an order granting summary judgment and receiving numerous notifications
that the August 1, 2018 conference was disposed as a result of the motion, the Plaintiff did
not appear. When viewed in the totality of the circumstances, the Plaintiff has not shown a
pattern of neglect or any evidence of willful default.
10. If the Plaintiff's request for relief is granted, the Defendant will not suffer any prejudice as a
result of this motion being sustained. Prejudice "involves impairment of the defendant's
ability to defend on the merits, rather than merely foregoing such a procedural or technical
advantage."
National Union Fire Ins. Co. v. Barney Assocs., 130 F.R.D. 291, 294 (S.D.N.Y.
1990); see also Busler v. Corbett, 259 A.D.2d 13, 16, 696 N.Y.S.2d 615, 617 (4th Dept
1999). To permit the Defendant to prevail as a result of law office failure would be patently
inequitable.
WHEREFORE, Plaintiff requests that the Court vacate the Plaintiff's Default and restore
this matter to the Courts calendar,
Date 7 2 °l (
J F EY M. GERA ESQ.
WICKER & ASSOCIATES, P.C.
A Law Firm Engaged in Debt Collection
Attorneys for Plaintiff
100 Corporate Woods, Suite 230
Rochester, NY 14623
(585)427-0482
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Preview
FILED: NASSAU COUNTY CLERK 08/30/2018 09:33 AM INDEX NO. 605636/2015 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/30/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------ ---- ------------------------------x AMERICAN EXPRESS CENTURION BANK, INDEX NO. 605636/2015 PLAINTIFF, vs. AFFIRMATION IN SUPPORT OF ORDER TO SHOW CAUSE TO RESTORE TO THE COURTS CALENDAR ALEX ECHEVERRIA, AKA, ALEX L ECHEVERRIA DEFENDANT(S). JEFFREY M GERACE, ESQ., an attorney admitted to practice in the Courts of the State of New York, associated with the firm of Zwicker & Associates PC, Attorneys for Plaintiff, affirms the following under penalty of perjury pursuant to the New York Civil Practice Law and Rules ("CPLR") section 2106, upon information and belief, based upon a file maintained by affirmant's office. 1. This motioñ is being made to vacate the Plaintiff's Default and to restore the action to the Court's calendar pursuant to CPLR §§ 2005 and 5015(a). 2. This action was commenced the of a Summons and Complaiñt on August 31, 2015. by filing A copy of the Summons and Complaint are attached as Exhibit A. 3. Subsequently, Plaintiff joined issue by submitting an Answer. A copy of Defendant's Answer is attached as Exhibit B. 1 of 3 FILED: NASSAU COUNTY CLERK 08/30/2018 09:33 AM INDEX NO. 605636/2015 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/30/2018 4. The Plaintiff was awarded summary judgment on or about July 2, 2018. A copy of the Order granting Plaintiff summary judgment is attached as Exhibit C. 5. Prior to granting the Plaintiff summary judgment, the Court set the matter down for a Supreme Trial, set for August 1, 2018 at 9:30 AM before the Honorable Feinman. 6. Approximately one week prior to the August 1, 2018 appearance date, I reviewed New York State Unified Court System ("e-courts") to see ifan appearance was required on August 1, 2018 in light of the summary judgment order. Per e-courts, the Supreme Trial on August 1, MOTION." e- 2018 was marked "DISPOSED/RESULT OF A A copy of a print out from courts regarding this matter is attached as Exhibit D. Further, on or about July 30, 2018, Plaintiff's counsel received an "eTrack Supreme update", indicating that the Supreme Trial MOTION." on August 1, 2018 was marked "DISPOSED/RESULT OF A Please see page 2 of the email from no-reply@nycourts.gov, attached as Exhibit E. As a result of these notifications from the court, Plaintiff did not appear on August 1, 2018. 7. This Court signed an order dismissing the matter due to the Plaintiff's failure to appear. A copy of the Order dismissing the matter is attached as Exhibit F. ARGUMENT A. The Plaintiff has demonstrated a reasonable excuse for default and the matter should be restored to the Court's Calendar. 8. In the event that the party's failure to appear is merely the result of a law office failure, CPLR § 2005 reinforces the principle that the client should not suffer because of the errors of counsel. So long as there is no pattern of willful default and neglect nor conduct that constitutes an intentional default or a default in bad faith, a law office failure, in the court's discretion, may serve as a reasonable excuse for failing to appear. See CPLR § 2005 and (2nd non- Liotti v Peace, 15 AD3d 452, 790 NYS2d 512 Dept. 2005). (An isolated incident of 2 of 3 FILED: NASSAU COUNTY CLERK 08/30/2018 09:33 AM INDEX NO. 605636/2015 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/30/2018 appearance as a result of a calendaring error with no evidence that the non-appearance was willful is a reasonable excuse for default). 9. In this instance, the Plaintiff has been diligent working towards a resolution of this matter. After receiving an order granting summary judgment and receiving numerous notifications that the August 1, 2018 conference was disposed as a result of the motion, the Plaintiff did not appear. When viewed in the totality of the circumstances, the Plaintiff has not shown a pattern of neglect or any evidence of willful default. 10. If the Plaintiff's request for relief is granted, the Defendant will not suffer any prejudice as a result of this motion being sustained. Prejudice "involves impairment of the defendant's ability to defend on the merits, rather than merely foregoing such a procedural or technical advantage." National Union Fire Ins. Co. v. Barney Assocs., 130 F.R.D. 291, 294 (S.D.N.Y. 1990); see also Busler v. Corbett, 259 A.D.2d 13, 16, 696 N.Y.S.2d 615, 617 (4th Dept 1999). To permit the Defendant to prevail as a result of law office failure would be patently inequitable. WHEREFORE, Plaintiff requests that the Court vacate the Plaintiff's Default and restore this matter to the Courts calendar, Date 7 2 °l ( J F EY M. GERA ESQ. WICKER & ASSOCIATES, P.C. A Law Firm Engaged in Debt Collection Attorneys for Plaintiff 100 Corporate Woods, Suite 230 Rochester, NY 14623 (585)427-0482 3 of 3