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INDEX NO. 601821/2015
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 09/17/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
-------------- a----------
ANTHONY R. FRANZESE, Index No: 601821/15
Plaintiff,
-against- AFFIRMATION IN OPPOSITION
PETER SKYLLAS a/k/a PETE SKYLLAS,
Defendant.
--------------- ------------
JULES A. EPSTEIN, an attorney at law duly admitted to practice
in the courts of this state, affirms under penalties of perjury
that the following statements are true:
1 I am the attorney for Plaintiff Anthony Franzese
(“Plaintiff”). I am fully familiar with the facts and
circumstances set forth below.
2 I submit this affirmation in opposition to Defendant
Peter Skyllas a/k/a Pete Skyllas's (“Skyllas” or “Defendant” )
motion to vacate the judgment on default rendered against him on
May 19, 2015 (the “Judgment” ) pursuant to CPLR 317 and/or CPLR
015 (a) (4 For the reasons set forth below and in Plaintiff's
accompanying affidavit, Defendant's motion should be denied.
STATEMENT OF FACTS
3 On February 20, 2007 Plaintiff made a short-term loan of
$220,000 to Defendant. The loan was evidenced by Defendant's
promissory note with the loan bearing interest at five (5%) percent
per annum (the “Note”) The Note came due in one month's time on
March 8, 2007. A copy of the Note is annexed as Exhibit “1”.
4 There is no dispute that Plaintiff loaned the money and
Skyllas executed the Note. There is also no dispute that Defendant
did not repay the Note.? Plaintiff thus establishes his prima
facie right to Judgment for the unpaid balance of the Note.
5 On February 23, 2015 Plaintiff commenced this action by
filing a summons and notice of motion and supporting papers
pursuant to CPLR 3213 for summary judgment in lieu of complaint on
the Note. The summons and notice of motion were served on Skyllas
on February 26, 2015 by delivering the summons and motion papers to
an individual named “Jimenez” identified as Defendant's co-worker
at his actual place business, to wit - 728 East 136‘ Street, Bronx,
New York 10454. Service was completed by mailing an additional
copy on February 27, 2015 to Defendant at his actual place of
business. The affidavit of service was filed on March 4, 2015.
Thus, service was effectively made and completed on Defendant
pursuant to CPLR 308(2).
6 The motion for summary judgment in lieu of a complaint
was returnable on April 27, 2015. Defendant did not oppose the
motion. By order dated May 6, 2015 Plaintiff's motion for summary
judgment in lieu of a complaint was granted. See, copy of Order
annexed as Exhibit son to motion. Judgment was entered against
Skyllas in favor of Plaintiff on May 19, 2015 in the sum of
‘pefendant vaguely alleges that “the amount due is incorrect” without
specifying what he contends the balance of the debt is. See, Skyllas Affidavit,
paragraph 25.
and av pa
$221,191.44. A copy of the Judgment is annexed as Exhibit “D” to
Defendant's motion.
7 Defendant now moves to vacate the Judgment pursuant to
CPLR 317 and/or CPLR 5015(a) (4).
8 Defendant has failed to establish either a reasonable
excuse for his default nor, more importantly, that he has a
meritorious defense to the action.
THE COURT ACQUIRED JURISDICTION OVER DEFENDANT
9 Plaintiff filed an affidavit of service of the summons
and motion in lieu of a complaint establishing that process was
properly served on Skyllas pursuant to CPLR 308(2 A process
server's affidavit of service gives rise to a presumption of proper
service:
“A process server's affidavit of service
gives rise to a presumption of proper service
(see, Wells Fargo Bank, NLA. v Final Touch
Interiors LLC, 112 AD3d 813, g14, 977 NYS2d
351 (2013); Matter of Romeo v. Ramirez, 100
AD3d 909, 910, 955 NYS2d 353 (2012); Stephan
. Gleich & Assoc. v. Gritsipis, 87 AD3d 216,
220, 927 NYS2d 349 (2011). To be entitled to
vacatur of a default judgment and dismissal of
a complaint under CPLR 5015(a) (4), a defendant
must overcome the presumption raised by the
process server's affidavit of service.”
See, Machovec v. Svoboda, 120 AD3d 773 (2°° Dept., 2014) .?
*Cited in Defendant's Memorandum of Law page 5.
3
10. The affidavit of service (“AOS”) establishes that process
was delivered to Defendant's co-worker named Jimenez at 728 East
136° Street, Bronx, New York on February 26, 2015, and an
additional copy was mailed to Defendant at that address the
following date on February 27, 2015. The AOS was filed on March 4,
2015. See, AOS Exhibit gan,
11. Defendant admits that he is the chief operating officer
(*COO”) of Titan P&H, LLC (“Titan Plumbing”), and that his and
Titan Plumbing's only place of business is the 728 East 136°
Street, Bronx, New York location where process was delivered.
12. Defendant does not identify any other office or location
for Titan Plumbing, does not allege he is employed by anyone other
than Titan Plumbing, and does not allege that he has any other
actual place of business.
13. Rather, Defendant alleges that he works “primarily in the
field at various job sites” being serviced by Titan Plumbing.
Whether that is true or not, it does not change the fact that
Defendant is Titan Plumbing's COO and Titan Plumbing's actual place
of business is the location where process was delivered.
14. Defendant offers no authority for his strained argument
that his actual place of business is “in the field at various job
sites” that he does not identify. Moreover, Defendant admits that
he “visits” Titan Plumbing's 728 East 136°" Street, Bronx, New York
office at least once monthly.
mancy\ay A. ep
15. Defendant's reliance on Selmani v. City of New York, 100
AD3d 861 (2° Dept., 2012) is misplaced. Here, Defendant admits he
is physically present with regularity at Titan Plumbing's place of
business.’
16. As Titan Plumbing's chief operating officer, Defendant
held out Titan Plumbing's 728 East 136° Street address as his
actual place of business. See, e.g., Davison XQ, LLC v. Watson, 47
Misc.3d 1222( ) (19) (2015); Robeck v. Prasad, 6 AD3d 691 (2™° Dept.,
2004). The fact that Defendant was not present at the time process
was served is immaterial See, e.g., Louis Greenberg, Inc. v.
Minewald, 225 AD2d 321 (18* Dept., 1996).
17. Defendant's argument, taken to its illogical conclusion,
that his actual place of business is unidentified “job sites in the
field”, is not and has never been the law.
18. Next, Defendant grudgingly concedes that he does indeed
have a co-worker name Jimenez. See, Defendant's Memorandum of Law,
footnote 2.* (In point of fact, Jimenez is Defendant's proverbial
“right-hand man” whose full name is Jeser Jimenez. See, Plaintiff
Affidavit.) Even while attempting to distance himself from Jeser
Jimenez, Defendant's signature of moving affidavit is acknowledged
by the very same Jeser Jimenez.
*Regardless of frequency, he is still physically present with regularity.
‘Defendant's affidavit merely refers to wan individual named Jimenez”.
See, Defendant Affidavit, paragraph 4.
anaese\Atti Aes wed
19. Whether or not (1) Jimenez delivered the summons to
Defendant (Defendant Affidavit, paragraph 9), (ii) Defendant
regularly checks his mail, and (iii) regardless of the frequency of
his visits to his office, Defendant has failed to rebut the
presumption of proper service.
20. On the contrary, Defendant admits the location where the
process was delivered is the actual place of business of the
company of which he is chief operating officer. Defendant admits
the person to whom process was delivered is his co-worker, even to
the extent of having that same person acknowledge his signature on
his moving affidavit. (Notably, there is no affidavit from Jimenez
denying receipt of the summons and motion papers, even though quite
obviously Jimenez is in a position to deliver such an affidavit
since he acknowledged Defendant's signature on his moving
affidavit.*)
21. Thus, Defendant does not effectively challenge the
service of process made pursuant to CPLR _308(2). Whether or not
Defendant timely received the process, either because he was not at
his actual place of business or did not check his mail promptly, or
because Jimenez failed to deliver the process to him, the Court
acquired jurisdiction over and the burden falls on Defendant for
Jimenez's alleged failure to deliver the papers to him or retrieve
“since Jimenez is a licensed notary public, obviously no argument can be
made he is not a person of suitable age and discretion.
6
his mail.°
22. Thus, Defendant has failed to rebut the presumption of
valid service. Defendant's motion pursuant to PLR 5015 (a) (4
should be denied as the Court in fact acquired jurisdiction over
Defendant.
DEFENDANT HAS NO MERITORIOUS DEFENSE
23. Defendant also moves pursuant to CPLR 317 on the ground
that process was not personally delivered to him and he possesses
a meritorious defense. Defendant has no meritorious defense and
the motion to vacate the Judgment pursuant to CPLR 317 should also
be denied.
24. Defendant admits he made, executed and deliver the Note
and admits he did not repay the Note according to its terms.’
Plaintiff thus established his prima facie right to Judgment for
the unpaid balance of principal and interest due on the Note.
25. The Note came due by its terms on March 8, 2007 and this
action was commenced in 2015, more than six (6) years later. Thus,
Defendant argues he has a statute of limitations defense.
Defendant is again incorrect.
°Defendant also argues that the order with notice of entry granting the
motion was not received by him because it was delivered to his former home
address Service of the order with notice of entry does not affect the Court's
jurisdiction and the address to which the order with notice of entry was mailed
is the address provided by Defendant on the Note. Defendant never notified
Plaintiff of any change of address. See, Franzese Affidavit, footnote 1.
"Defendant vaguely alleges that “the amount due is incorrect” (Defendant
Affidavit, paragraph 25). However, Defendant does not specify what he claims the
amount owed is and, in any event, by disputing the amount claimed as incorrect
he effectively admits executing the Note and owing the debt.
d.
26. Defendant made partial payments of the indebtedness by
the Note on the following dates:
August 28, 2009 - $5,000°
June 1, 2010 - $5,000
August 31, 2010 - $5,000
27. See, copies of checks - Exhibit “2”
28. The Court will also note that the last two (2) checks are
drawn on a company Defendant controls called PSEG Plumbing &
Heating, and the third check has a notation “for Pete Skyllas”.
29. These payments were not made to Plaintiff for any purpose
other than partial payment of the debt evidenced by the Note.
These payments are no compensation for services nor gifts, nor
loans to Plaintiff, nor paid to Plaintiff for any reason other than
partial payment and acknowledgment of the debt. See, Plaintiff
Affidavit.
30. A partial payment has the effect of tolling a statute of
limitations where it is shown that there was payment of a portion
of an admitted debt, made and accepted as such and accompanied by
circumstances amounting to an absolute and unqualified
acknowledgment by the debtor of more being due, from which a
promise to pay the remainder may be inferred. See, Co-America Bank
v Benedict, 39 AD3d 456 (2 Dept., 2007), Lew Morris Demolition
co. v Board of Education, 40 NY2d 516 (1976).
“This check actually bounced for insufficient funds.
°see, Defendant's Memorandum of Law, footnote 5.
8
31. Accordingly, the statute of limitations was tolled by
Defendant's several partial payments and this action timely
brought. Defendant has failed to raise a meritorious defense.*®
32. Defendant having failed to raise a meritorious defense,
his motion to vacate the judgment pursuant to CPLR 317 should be
also denied.
WHEREFORE, it is respectfully requested that an order be made
denying Defendant's motion to vacate the Judgment rendered herein
on May 19, 2015 and granting Plaintiff such other and further
relief as this Court deems just and proper
Dated: Garden City, New York
September 1 2015
ES
Defendant weakly argues that the Note requires amendments or
modifications to be in writing. However Defendant cites no authority for
proposition that this language somehow “un-tolls” the otherwise tolled statute
of limitations on account of his partial payments after the Note came due. In
any event, the Note does not require that extensions for the time of payment be
in writing. Defendant's partial payments are part performance of an oral
extension of the payment terms unequivocably referably to an oral modification
of the Note (i.e, extension of time of payment) See, Rose v. Spa Realt
Associates, 42 NY2d 338 (1977).
« 3 ¥ wy 0 s aese\nee a we
FRANZESE AFFIDAVIT
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
ween ene eee eee ee ee ee ee
ANTHONY R. FRANZESE, Index No: 601821/15
Plaintiff,
-against- AFFIDAVIT
PETER SKYLLAS a/k/a PETE SKYLLAS,
Defendant.
------------------
~~~ + - --------e
STATE OF NEW YORK )
)ss:
COUNTY OF NASSAU )
ANTHONY R. FRANZESE, being duly sworn, deposes and says:
1 I am the Plaintiff in this action. I submit this
affidavit in opposition to Defendant Peter Skyllas a/k/a Peter
Skyllas's (“Defendant” or “Skyllas”) motion to vacate the judgment
entered herein on May 19, 2015 in my favor in the sum of
$221,191.44 (the “Judgment”
) .
2 I understand that in order to succeed on his motion,
Defendant must establish (i) a reasonable excuse for his default;
and (ii) a meritorious defens
3 I respectfully submit Defendant has established neither.
STATEMENT OF FACTS AND ABSENCE OF MERITORIOUS DEFENSE
4 I know Skyllas as an executive and principal in the
plumbing contracting business. On February 8, 2007 I made a short-
term loan to Skyllas of $220,000. The loan is evidenced by
Skyllas' promissory note (the “Note”) A copy of the Note is
annexed as Exhibit wy The Note was due and payable in one
month's time on March 8, 2007 and bore interest at the rate of five
(5%) per annum.
5 Notably, Skyllas does not dispute (a) the loan I made to
him; (b) his execution of the Note; and (c) his failure to repay
the loan. Rather, Skyllas vaguely suggests that “the amount
alleged to be due on the Promissory Note is incorrect”. See,
Skyllas Affidavit, paragraph 25.
6 I am advised by counsel that by producing the Note and
proof of non-payment, I established my prima facie right to
judgment for the unpaid balance of the Note.
7 Skyllas' only defense is his argument that this action is
time-barred, having been brought more than six (6) years after the
Note came due on March 8 2007.?
8 Skyllas made partial payments of the Note on August 26
2009, June 1, 2010 and August 31, 2010. Each payment was in the
amount of $5,000. Copies of the checks are annexed collectively as
Exhibit vgn 3
‘skyllas' signature to the Note is witnessed by two (2) persons, one is
employee Jasmine Diaz. The Note identifies Skyllas' address as 7 Legends Way,
Nyack, New York. Defendant never provided another home address to me.
*Defendant argues that the Note prohibits an unwritten modification or
amendment . However, the Note does not require that an extension of the time for
payment be in writing.
‘skyllas' first $5,000 check on August 26, 2009 actually bounced for
insufficient funds The other (2) payments were drawn on a company Skyllas
two
operated called PSEC Plumbing & Heating Corp. The notation on the August 31
2010 PSEC Plumbing & Heating Corp. check is “for Pete Skyllas”
nent serwancy “y anzesesp Arco!
9 These payments reflect Skyllas' absolute and unqualified
acknowledgment by Skyllas of his debt owed to me. These monies
were not gifts to me from Skyllas, were not payment for services I
rendered to Skyllas or his company, were not a loan to me from
Skyllas or his company, nor were these payments made to me for any
purpose other than payment of the debt evidenced by the Note. (For
example, that is why the August 31, 2010 payment drawn on PSEC
Plumbing & Heating has the notation for “Pete Skyllas” )
10. Skyllas acknowledges he made payments to me after the
Note came due on March 8 2007 and offers no other explanation for
these payments, thereby admitting he is acknowledging the debt when
making partial payments
11. Accordingly, Skyllas has no meritorious defense to this
action and I am advised that his partial payments after the Note
came due served to toll the statute of limitation from each such
payment.
EXCUSABLE DEFAULT
12. I understand that the process server's affidavit of
service is
is prima facie proof that the summons and motion for
summary judgment in lieu of complaint were served on Skyllas in
accordance with New York law.
13. Skyllas admits that he is the chief operating officer of
Titan P&H, LLC (“Titan Plumbing”) and that Titan Plumbing is
*r understand that service is proper where a copy of the papers are
delivered to a person of suitable age and discretion and an additional copy is
mailed to Defendant at his actual place of business
located at 728 East 136" Street, Bronx, New York. See, Skyllas
Affidavit, paragraph 7.°
14. Skyllas euphemistically refers to “an individual named
Jimenez to whom process was delivered at 728 East 136 Street,
Bronx, New York” See, Skyllas Affidavit, paragraph 4. Defendant's
memorandum of law admits, albeit without reference to Defendant's
affidavit, that Titan Plumbing employs a person with a last name
“Jimenez”. See, Defendant's Memorandum of Law, footnote 2.
15. Skyllas' proverbial “right-hand man” is an individual
named Jeser Jimenez who fits the physical description of Jimenez in
the affidavit of service.‘
16. Moreover and remarkably enough, Defendant's signature on
his affidavit is actually acknowledged by Jeser Jimenez.
Accordingly, Defendant's argument that Jimenez was not employed at
Skyllas' actual place of business or was not a person of suitable
age and discretion is patently untrue.
17. It is my understanding that whether or not Defendant
actually received the suit papers that were delivered to Mr.
Jimenez, or whether Defendant “regularly checked” his mail at his
°Skyllas denies having an ownership interest in Titan Plumbing and alleges
he “works primarily in the field” at Titan Plumbing job sites Notably, Skyllas
does not identify any other actual place of business nor does he identify the
location of the “various job sites” works
°At some point in 2013 Skyllas proposed to put me on Titan Plumbing's
payroll, although I did not work for Titan Plumbing, in order to pay the debt.
I exchanged emails with Jeser Jimenez at the time. See, copies annexed as
Exhibit “3”.
"Notary Public number 01316116458 qualified in Bronx County.
4
actual place of business is irrelevant to the question whether
process was delivered to him in accordance with New York law.
18. Accordingly, I understand Skyllas has also failed to
demonstrate that there is a reasonable excuse for his default by
reason of his alleged failure to timely receive the suit papers.
WHEREFORE, it is respectfully requested that an order be made
denying Defendant's motion to vacate the motion on default entered
on May 19, 2015, and granting Plaintiff such other and further
relief as the Court deems just and proper.
ANTHONY R. -FRANZESE
Sworn to before me on this
\El day of September, 2015
SS 4
pertinent fallin
P
Vn { re
Preview
INDEX NO. 601821/2015 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 09/17/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------- a---------- ANTHONY R. FRANZESE, Index No: 601821/15 Plaintiff, -against- AFFIRMATION IN OPPOSITION PETER SKYLLAS a/k/a PETE SKYLLAS, Defendant. --------------- ------------ JULES A. EPSTEIN, an attorney at law duly admitted to practice in the courts of this state, affirms under penalties of perjury that the following statements are true: 1 I am the attorney for Plaintiff Anthony Franzese (“Plaintiff”). I am fully familiar with the facts and circumstances set forth below. 2 I submit this affirmation in opposition to Defendant Peter Skyllas a/k/a Pete Skyllas's (“Skyllas” or “Defendant” ) motion to vacate the judgment on default rendered against him on May 19, 2015 (the “Judgment” ) pursuant to CPLR 317 and/or CPLR 015 (a) (4 For the reasons set forth below and in Plaintiff's accompanying affidavit, Defendant's motion should be denied. STATEMENT OF FACTS 3 On February 20, 2007 Plaintiff made a short-term loan of $220,000 to Defendant. The loan was evidenced by Defendant's promissory note with the loan bearing interest at five (5%) percent per annum (the “Note”) The Note came due in one month's time on March 8, 2007. A copy of the Note is annexed as Exhibit “1”. 4 There is no dispute that Plaintiff loaned the money and Skyllas executed the Note. There is also no dispute that Defendant did not repay the Note.? Plaintiff thus establishes his prima facie right to Judgment for the unpaid balance of the Note. 5 On February 23, 2015 Plaintiff commenced this action by filing a summons and notice of motion and supporting papers pursuant to CPLR 3213 for summary judgment in lieu of complaint on the Note. The summons and notice of motion were served on Skyllas on February 26, 2015 by delivering the summons and motion papers to an individual named “Jimenez” identified as Defendant's co-worker at his actual place business, to wit - 728 East 136‘ Street, Bronx, New York 10454. Service was completed by mailing an additional copy on February 27, 2015 to Defendant at his actual place of business. The affidavit of service was filed on March 4, 2015. Thus, service was effectively made and completed on Defendant pursuant to CPLR 308(2). 6 The motion for summary judgment in lieu of a complaint was returnable on April 27, 2015. Defendant did not oppose the motion. By order dated May 6, 2015 Plaintiff's motion for summary judgment in lieu of a complaint was granted. See, copy of Order annexed as Exhibit son to motion. Judgment was entered against Skyllas in favor of Plaintiff on May 19, 2015 in the sum of ‘pefendant vaguely alleges that “the amount due is incorrect” without specifying what he contends the balance of the debt is. See, Skyllas Affidavit, paragraph 25. and av pa $221,191.44. A copy of the Judgment is annexed as Exhibit “D” to Defendant's motion. 7 Defendant now moves to vacate the Judgment pursuant to CPLR 317 and/or CPLR 5015(a) (4). 8 Defendant has failed to establish either a reasonable excuse for his default nor, more importantly, that he has a meritorious defense to the action. THE COURT ACQUIRED JURISDICTION OVER DEFENDANT 9 Plaintiff filed an affidavit of service of the summons and motion in lieu of a complaint establishing that process was properly served on Skyllas pursuant to CPLR 308(2 A process server's affidavit of service gives rise to a presumption of proper service: “A process server's affidavit of service gives rise to a presumption of proper service (see, Wells Fargo Bank, NLA. v Final Touch Interiors LLC, 112 AD3d 813, g14, 977 NYS2d 351 (2013); Matter of Romeo v. Ramirez, 100 AD3d 909, 910, 955 NYS2d 353 (2012); Stephan . Gleich & Assoc. v. Gritsipis, 87 AD3d 216, 220, 927 NYS2d 349 (2011). To be entitled to vacatur of a default judgment and dismissal of a complaint under CPLR 5015(a) (4), a defendant must overcome the presumption raised by the process server's affidavit of service.” See, Machovec v. Svoboda, 120 AD3d 773 (2°° Dept., 2014) .? *Cited in Defendant's Memorandum of Law page 5. 3 10. The affidavit of service (“AOS”) establishes that process was delivered to Defendant's co-worker named Jimenez at 728 East 136° Street, Bronx, New York on February 26, 2015, and an additional copy was mailed to Defendant at that address the following date on February 27, 2015. The AOS was filed on March 4, 2015. See, AOS Exhibit gan, 11. Defendant admits that he is the chief operating officer (*COO”) of Titan P&H, LLC (“Titan Plumbing”), and that his and Titan Plumbing's only place of business is the 728 East 136° Street, Bronx, New York location where process was delivered. 12. Defendant does not identify any other office or location for Titan Plumbing, does not allege he is employed by anyone other than Titan Plumbing, and does not allege that he has any other actual place of business. 13. Rather, Defendant alleges that he works “primarily in the field at various job sites” being serviced by Titan Plumbing. Whether that is true or not, it does not change the fact that Defendant is Titan Plumbing's COO and Titan Plumbing's actual place of business is the location where process was delivered. 14. Defendant offers no authority for his strained argument that his actual place of business is “in the field at various job sites” that he does not identify. Moreover, Defendant admits that he “visits” Titan Plumbing's 728 East 136°" Street, Bronx, New York office at least once monthly. mancy\ay A. ep 15. Defendant's reliance on Selmani v. City of New York, 100 AD3d 861 (2° Dept., 2012) is misplaced. Here, Defendant admits he is physically present with regularity at Titan Plumbing's place of business.’ 16. As Titan Plumbing's chief operating officer, Defendant held out Titan Plumbing's 728 East 136° Street address as his actual place of business. See, e.g., Davison XQ, LLC v. Watson, 47 Misc.3d 1222( ) (19) (2015); Robeck v. Prasad, 6 AD3d 691 (2™° Dept., 2004). The fact that Defendant was not present at the time process was served is immaterial See, e.g., Louis Greenberg, Inc. v. Minewald, 225 AD2d 321 (18* Dept., 1996). 17. Defendant's argument, taken to its illogical conclusion, that his actual place of business is unidentified “job sites in the field”, is not and has never been the law. 18. Next, Defendant grudgingly concedes that he does indeed have a co-worker name Jimenez. See, Defendant's Memorandum of Law, footnote 2.* (In point of fact, Jimenez is Defendant's proverbial “right-hand man” whose full name is Jeser Jimenez. See, Plaintiff Affidavit.) Even while attempting to distance himself from Jeser Jimenez, Defendant's signature of moving affidavit is acknowledged by the very same Jeser Jimenez. *Regardless of frequency, he is still physically present with regularity. ‘Defendant's affidavit merely refers to wan individual named Jimenez”. See, Defendant Affidavit, paragraph 4. anaese\Atti Aes wed 19. Whether or not (1) Jimenez delivered the summons to Defendant (Defendant Affidavit, paragraph 9), (ii) Defendant regularly checks his mail, and (iii) regardless of the frequency of his visits to his office, Defendant has failed to rebut the presumption of proper service. 20. On the contrary, Defendant admits the location where the process was delivered is the actual place of business of the company of which he is chief operating officer. Defendant admits the person to whom process was delivered is his co-worker, even to the extent of having that same person acknowledge his signature on his moving affidavit. (Notably, there is no affidavit from Jimenez denying receipt of the summons and motion papers, even though quite obviously Jimenez is in a position to deliver such an affidavit since he acknowledged Defendant's signature on his moving affidavit.*) 21. Thus, Defendant does not effectively challenge the service of process made pursuant to CPLR _308(2). Whether or not Defendant timely received the process, either because he was not at his actual place of business or did not check his mail promptly, or because Jimenez failed to deliver the process to him, the Court acquired jurisdiction over and the burden falls on Defendant for Jimenez's alleged failure to deliver the papers to him or retrieve “since Jimenez is a licensed notary public, obviously no argument can be made he is not a person of suitable age and discretion. 6 his mail.° 22. Thus, Defendant has failed to rebut the presumption of valid service. Defendant's motion pursuant to PLR 5015 (a) (4 should be denied as the Court in fact acquired jurisdiction over Defendant. DEFENDANT HAS NO MERITORIOUS DEFENSE 23. Defendant also moves pursuant to CPLR 317 on the ground that process was not personally delivered to him and he possesses a meritorious defense. Defendant has no meritorious defense and the motion to vacate the Judgment pursuant to CPLR 317 should also be denied. 24. Defendant admits he made, executed and deliver the Note and admits he did not repay the Note according to its terms.’ Plaintiff thus established his prima facie right to Judgment for the unpaid balance of principal and interest due on the Note. 25. The Note came due by its terms on March 8, 2007 and this action was commenced in 2015, more than six (6) years later. Thus, Defendant argues he has a statute of limitations defense. Defendant is again incorrect. °Defendant also argues that the order with notice of entry granting the motion was not received by him because it was delivered to his former home address Service of the order with notice of entry does not affect the Court's jurisdiction and the address to which the order with notice of entry was mailed is the address provided by Defendant on the Note. Defendant never notified Plaintiff of any change of address. See, Franzese Affidavit, footnote 1. "Defendant vaguely alleges that “the amount due is incorrect” (Defendant Affidavit, paragraph 25). However, Defendant does not specify what he claims the amount owed is and, in any event, by disputing the amount claimed as incorrect he effectively admits executing the Note and owing the debt. d. 26. Defendant made partial payments of the indebtedness by the Note on the following dates: August 28, 2009 - $5,000° June 1, 2010 - $5,000 August 31, 2010 - $5,000 27. See, copies of checks - Exhibit “2” 28. The Court will also note that the last two (2) checks are drawn on a company Defendant controls called PSEG Plumbing & Heating, and the third check has a notation “for Pete Skyllas”. 29. These payments were not made to Plaintiff for any purpose other than partial payment of the debt evidenced by the Note. These payments are no compensation for services nor gifts, nor loans to Plaintiff, nor paid to Plaintiff for any reason other than partial payment and acknowledgment of the debt. See, Plaintiff Affidavit. 30. A partial payment has the effect of tolling a statute of limitations where it is shown that there was payment of a portion of an admitted debt, made and accepted as such and accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise to pay the remainder may be inferred. See, Co-America Bank v Benedict, 39 AD3d 456 (2 Dept., 2007), Lew Morris Demolition co. v Board of Education, 40 NY2d 516 (1976). “This check actually bounced for insufficient funds. °see, Defendant's Memorandum of Law, footnote 5. 8 31. Accordingly, the statute of limitations was tolled by Defendant's several partial payments and this action timely brought. Defendant has failed to raise a meritorious defense.*® 32. Defendant having failed to raise a meritorious defense, his motion to vacate the judgment pursuant to CPLR 317 should be also denied. WHEREFORE, it is respectfully requested that an order be made denying Defendant's motion to vacate the Judgment rendered herein on May 19, 2015 and granting Plaintiff such other and further relief as this Court deems just and proper Dated: Garden City, New York September 1 2015 ES Defendant weakly argues that the Note requires amendments or modifications to be in writing. However Defendant cites no authority for proposition that this language somehow “un-tolls” the otherwise tolled statute of limitations on account of his partial payments after the Note came due. In any event, the Note does not require that extensions for the time of payment be in writing. Defendant's partial payments are part performance of an oral extension of the payment terms unequivocably referably to an oral modification of the Note (i.e, extension of time of payment) See, Rose v. Spa Realt Associates, 42 NY2d 338 (1977). « 3 ¥ wy 0 s aese\nee a we FRANZESE AFFIDAVIT SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ween ene eee eee ee ee ee ee ANTHONY R. FRANZESE, Index No: 601821/15 Plaintiff, -against- AFFIDAVIT PETER SKYLLAS a/k/a PETE SKYLLAS, Defendant. ------------------ ~~~ + - --------e STATE OF NEW YORK ) )ss: COUNTY OF NASSAU ) ANTHONY R. FRANZESE, being duly sworn, deposes and says: 1 I am the Plaintiff in this action. I submit this affidavit in opposition to Defendant Peter Skyllas a/k/a Peter Skyllas's (“Defendant” or “Skyllas”) motion to vacate the judgment entered herein on May 19, 2015 in my favor in the sum of $221,191.44 (the “Judgment” ) . 2 I understand that in order to succeed on his motion, Defendant must establish (i) a reasonable excuse for his default; and (ii) a meritorious defens 3 I respectfully submit Defendant has established neither. STATEMENT OF FACTS AND ABSENCE OF MERITORIOUS DEFENSE 4 I know Skyllas as an executive and principal in the plumbing contracting business. On February 8, 2007 I made a short- term loan to Skyllas of $220,000. The loan is evidenced by Skyllas' promissory note (the “Note”) A copy of the Note is annexed as Exhibit wy The Note was due and payable in one month's time on March 8, 2007 and bore interest at the rate of five (5%) per annum. 5 Notably, Skyllas does not dispute (a) the loan I made to him; (b) his execution of the Note; and (c) his failure to repay the loan. Rather, Skyllas vaguely suggests that “the amount alleged to be due on the Promissory Note is incorrect”. See, Skyllas Affidavit, paragraph 25. 6 I am advised by counsel that by producing the Note and proof of non-payment, I established my prima facie right to judgment for the unpaid balance of the Note. 7 Skyllas' only defense is his argument that this action is time-barred, having been brought more than six (6) years after the Note came due on March 8 2007.? 8 Skyllas made partial payments of the Note on August 26 2009, June 1, 2010 and August 31, 2010. Each payment was in the amount of $5,000. Copies of the checks are annexed collectively as Exhibit vgn 3 ‘skyllas' signature to the Note is witnessed by two (2) persons, one is employee Jasmine Diaz. The Note identifies Skyllas' address as 7 Legends Way, Nyack, New York. Defendant never provided another home address to me. *Defendant argues that the Note prohibits an unwritten modification or amendment . However, the Note does not require that an extension of the time for payment be in writing. ‘skyllas' first $5,000 check on August 26, 2009 actually bounced for insufficient funds The other (2) payments were drawn on a company Skyllas two operated called PSEC Plumbing & Heating Corp. The notation on the August 31 2010 PSEC Plumbing & Heating Corp. check is “for Pete Skyllas” nent serwancy “y anzesesp Arco! 9 These payments reflect Skyllas' absolute and unqualified acknowledgment by Skyllas of his debt owed to me. These monies were not gifts to me from Skyllas, were not payment for services I rendered to Skyllas or his company, were not a loan to me from Skyllas or his company, nor were these payments made to me for any purpose other than payment of the debt evidenced by the Note. (For example, that is why the August 31, 2010 payment drawn on PSEC Plumbing & Heating has the notation for “Pete Skyllas” ) 10. Skyllas acknowledges he made payments to me after the Note came due on March 8 2007 and offers no other explanation for these payments, thereby admitting he is acknowledging the debt when making partial payments 11. Accordingly, Skyllas has no meritorious defense to this action and I am advised that his partial payments after the Note came due served to toll the statute of limitation from each such payment. EXCUSABLE DEFAULT 12. I understand that the process server's affidavit of service is is prima facie proof that the summons and motion for summary judgment in lieu of complaint were served on Skyllas in accordance with New York law. 13. Skyllas admits that he is the chief operating officer of Titan P&H, LLC (“Titan Plumbing”) and that Titan Plumbing is *r understand that service is proper where a copy of the papers are delivered to a person of suitable age and discretion and an additional copy is mailed to Defendant at his actual place of business located at 728 East 136" Street, Bronx, New York. See, Skyllas Affidavit, paragraph 7.° 14. Skyllas euphemistically refers to “an individual named Jimenez to whom process was delivered at 728 East 136 Street, Bronx, New York” See, Skyllas Affidavit, paragraph 4. Defendant's memorandum of law admits, albeit without reference to Defendant's affidavit, that Titan Plumbing employs a person with a last name “Jimenez”. See, Defendant's Memorandum of Law, footnote 2. 15. Skyllas' proverbial “right-hand man” is an individual named Jeser Jimenez who fits the physical description of Jimenez in the affidavit of service.‘ 16. Moreover and remarkably enough, Defendant's signature on his affidavit is actually acknowledged by Jeser Jimenez. Accordingly, Defendant's argument that Jimenez was not employed at Skyllas' actual place of business or was not a person of suitable age and discretion is patently untrue. 17. It is my understanding that whether or not Defendant actually received the suit papers that were delivered to Mr. Jimenez, or whether Defendant “regularly checked” his mail at his °Skyllas denies having an ownership interest in Titan Plumbing and alleges he “works primarily in the field” at Titan Plumbing job sites Notably, Skyllas does not identify any other actual place of business nor does he identify the location of the “various job sites” works °At some point in 2013 Skyllas proposed to put me on Titan Plumbing's payroll, although I did not work for Titan Plumbing, in order to pay the debt. I exchanged emails with Jeser Jimenez at the time. See, copies annexed as Exhibit “3”. "Notary Public number 01316116458 qualified in Bronx County. 4 actual place of business is irrelevant to the question whether process was delivered to him in accordance with New York law. 18. Accordingly, I understand Skyllas has also failed to demonstrate that there is a reasonable excuse for his default by reason of his alleged failure to timely receive the suit papers. WHEREFORE, it is respectfully requested that an order be made denying Defendant's motion to vacate the motion on default entered on May 19, 2015, and granting Plaintiff such other and further relief as the Court deems just and proper. ANTHONY R. -FRANZESE Sworn to before me on this \El day of September, 2015 SS 4 pertinent fallin P Vn { re