Order to Show Cause: Doris Kaufman v. 2451 Broadway Market, Inc., Yucca Holding Corp., New Horizon Management Corp.

On January 29, 2014 a Order to Show Cause was filed involving a dispute between Doris Kaufman, and 2451 Broadway Market, Inc., New Horizon Management Corp., Yucca Holding Corp., for Tort in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 03/05/2018 11:48 PM INDEX NO. 150893/2014
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 03/05/2018

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------X

DORIS KAUFMAN,

Plaintiff, Index No.: 150893/2014

AFFIRMATION IN REPLY

- against -

2451 BROADWAY MARKET, INC., YUCCA HOLDING
CORP. And NEW HORIZON MANAGEMENT CORP.,

Defendants.
X
------------------------------------------------------------------X
MICHAEL J. SWEENEY, an attorney duly admitted to practice before the Courts of the

State of New York, hereby affirms the following to be true pursuant to CPLR § 2106:

1. This affirmation is submitted in further support of an Order to Show Cause

dismissing this matter pursuant to CPLR § 3213( c) and in reply to plaintiff's opposition.

Plaintiff has completely failed to show the requirements necessary to defeat this application

including a reasonable excuse for failing to timely enter a default and he furthermore failed to

even argue that the plaintiff has a meritorious case.

2. The matter clearly must be dismissed under CPLR § 3213( c) pursuant to the case

law. Hummingbird Associates v. Dix Auto Service, Inc., 709
,709 N.Y.S. 2d 51*; 2000 NY. App. Div.

(1"
LEXIS 6375**273 A.D.2d 58 Dept. 2000).

3. In paragraph 25 of the opposition papers, the Plaintiff has set forth the established

law of the case:

It iswell established that a complaint that is formally
amended and served supersedes the original complaint and
becomes the only complaint in the case: itrequires a new

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responsive pleading. See Hoppenfeld. v. Hoppenfeld, 220 A.D.2d
(1"
302, 632 N.Y.S.2d 55 Dep't 1995). Thus, defendant's original
answer has no effect and a new responsive pleadings must be
substituted for the original answer. See Stella v. Stella, 92
(2nd
A.A.d2d 589, 459 N.Y.S.2d 478 Dep't 1982). Plaintiff must
move within one year for a default on the responsive pleading.
See CPLR §3215( c). The failure to take a default within one year
after the default, will result in the case being deemed abandoned,
"unless sufficient cause is shown why the complaint should not be
dismissed."
Id.

3. In summary again of the procedural history of the case, the original summons and

complaint was electronically filed and served on around January 29, 2014. The answer on behalf

Market"
of 2451 Broadway Market, Inc. (hereafter "Broadway Market") was served and filed on around

April 23, 2014. On July 15, 2015, the plaintiff filed and served a supplemental summons and

amended verified complaint, adding the property owner, Yucca Holding Corp., and the

managing agent, New Horizon Management Corp as parties to the action. On that same date,

July 15, 2015, prior counsel Harold Weisberg, Esq., counsel for Broadway Market, signed a

stipulation permitting service of the supplemental summons and amended verified complaint.

The supplemental summons and the amended complaint were filed on the court system's

electronic filing system.

4. In a motion dated December 21, 2015, the plaintiff moved for a default judgment

against Yucca and New Horizon, parties added in the supplemental summons and amended

complaint. The motion was granted. With minimal difficulty and no additional burden, the

plaintiff should have moved to seek a default judgment against Broadway Market within a year

of filing and serving the supplemental summons and amended complaint. The plaintiff failed to

so. There is no record of the plaintiff ever having sought to coerce or urge Broadway Market to

serve an answer. No answer to the supplemental summons and amended complaint was served.

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5. Plaintiff's counsel in opposition papers cites the case, Atlantic Mut. Inc. v. Joyce

Intl. Inc., 31 A.D.3d 352 *32; 820 N.Y.S.2d 12, **12; 2006 N.Y.App.Div.LEXIS 9706, ***1;

(1"
2006 NY Slip Op 6056 Dep't 2006), arguing that the case fallsinto an exception to the

rule"
"general requiring dismissal under these circumstances. See plaintiff's paragraph 26.

"exception"
Atlantic is not an to the general rule, but follows the rule since in there the Appellate

cause"
Division found "good why the case should not be dismissed. According to Atlantic, the

default upon which defendant cross motion was predicated was itsfailure to answer the amended

complaint served less than one month after the original complaint which was served on April 5,

2002. Thus, the amended complaint was served sometime before May 5, 2002. Less that two

months later,the defendant answered the original complaint on June 28, 2002. Defense counsel

simply mistakenly answered the wrong complaint, confusing the complaint with the amended

complaint. There was no such confusion or affirmative mistake in the case at bar. Instead,

months passed including five months in 2015 passed with no answer interposed; 12 months in

2016 passed with no answer interposed; 12 months in 2017 passed with no answer interposed;

two months in 2018 have now passed. More than 31 months have gone by and plaintiff never

moved to take a default and never raised the issue.

cause"
6. The Court found "good under the circumstances where the original

complaint was filed and then the amended complaint and then an answer was filed in rapid

succession of three months. Further, we see from the briefs in the Atlantic case that itwas

defendant who was arguing he was confused, thinking he was answering the original complaint.

"A."
See page 14 of the defendant's Atlantic brief annexed as Exhibit Note that the Court is

permitted to take judicial notice of the Record on Appeal and Briefs in another action. See, e.g.,

cause"
People v. Grasso, 54 A.D.3d 180 (1st Dept. 2008). Thus, the basis in Atlantic for "good

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was the defendant's admitted confusion where the complaint was served, an amended complaint

was served and the defendant's answer was interposed, responding to the wrong answer.

7. This constitutes merely the error due to confusion and is a reasonable excuse for

"excuse"
the failure in that case to take a default judgment. Plaintiff has offered no such or

explanation whatsoever as to why plaintiff's counsel failed to take a timely default judgment.

This is a fatal defect in plaintiff's showing. The plaintiff is obliged under the case law to offer a

reasonable excuse for the failure to take a default judgment. Plaintiff has failed to offer any

reasonable excuse for the failure to take the defefault judgment. Laourdakis v. Torres, 98

(1st 91st
A.D.3d 892 Dept. 2012). See also Ryk Cheme v. Efka, 161 A.D.2d 196 Dep't 1990).

8. Plaintiff is unable to show also a meritorious case. This accident occurred on

"B."
August 12, 2013. Her testimony is annex in part as Exhibit Plaintiff testified that she was

walking up Broadway on a warm summer day with her friend. She approached the defendant

market, known as Barzini's, walked up to the outdoor fruit stand and inspected some fruit. She

testified that she as she approached the fruitstand, there was nothing in her way. She looked at

some fruit. There was nothing on the sidewalk in front of her as she stepped up to the fruit

stand. She then stepped backwards and tripped on a fruit basket that someone placed behind her

after she walked up to the fruit stand. She did not see who placed itdown behind her. She fell

on the sidewalk, knocking fruit over as she fell. See plaintiff's testimony annexed as Exhibit

"B."

9. The plaintiff has failed to show a meritorious defense. Paporters v. Campos, 122

(1st (1s
A.D.3d 521, 998 N.Y.S.2d 9 Dep't 2014); Hinds v. 2461 Realty Corp., 169 A.D.2d 629

Dept 1991). Plaintiff made no argument even to establish a meritorious defense in the

opposition papers. Even assuming the plaintiff's testimony is correct, there is no basis

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whatsoever for any finding of liability against the defendant, Broadway Market where the

plaintiff stepped backwards and tripped on a fruit basket at a fruit stand. Furthermore, in the

present case, a non-party witness, Jessica Mejia, has recently come forward, stating that she

witnessed the accident as she was exiting the grocery store Barzini's through the exit on

Broadway. She testified on September 8, 2017, that she walked out of Barzini's in time to

observe the plaintiff simply stumble and fall, through no fault of the defendant's. Her deposition

"C."
is annexes hereto as Exhibit Here, this is a matter that should have been dismissed by

motion for summary judgment.

10. Plaintiffs estoppel argument is without basis. Plaintiff argues that your affirmant

made a wrongful or bad act by proceeding with discovery apparently. Estoppel rests upon the

word or deed of one party upon which another party rightfully relies. Otis Elevator Co. V.

(1st
Heggie Realty Co., 107 Mis. 2d 67, 437 N.Y.S.2d 832 Dept 1980). Its preposterous to argue

estoppel in this context. There was no bad act on defense counsel's part by continuing with

discovery. Plaintiff's counsel failed to timely take a default judgment and allow almost three

years to go by. This was his responsibility under the CPLR.

11. The case, Paz v. New Latham hotel Corp., 2010 WL 11241579 (N.Y.Sup) (Trial

Order) Supreme Court, New York Part 11, is not binding or presidential. Furthermore, itis not

instructive in these circumstances since itdoes not deal with the key issues of plaintiff's failure

to state a reasonable excuse for his failure to enter a default or to demonstrate a mertorious

12. No answer to the supplemental summons and amended complaint was never filed.

Plaintiff cannot evade responsibility for failing to take a default judgment by claiming the

defense counsel was somehow responsible. Hoppenfeld v. Hoppenfeld, 220 A.D.2d 302, 632

(1st
N.Y.S.2d 558 Dep't 1995).

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13. Plaintiff in this case neither set forth a viable excuse for the failure to enter

default within one year not even raised the issue of a meritorious case. The matter should be

(1"
dismissed. Utak v. Commerce Bank Inc., 88 A.D.3d 522 Dept. 2012). This matter must be

dismissed with prejudice since the statute of limitations had long since run.

WHEREFORE, itis respectfully requested that this matter must be dismissed and the

Court grant such other and further relief as the Court deems just.

Dated: Yonkers, New York
March 5, 2018
s/Michael J. Sweeney

Michael J. Sweeney

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK Index No: 150893/14

DORIS KAUFMAN,
Plaintiff,
Index No.: 1540893-14
-against-

2451 BROADWAY MARKET, INC.,
YUCCA HOLDING CORP. and
NEW HORIZON MANAGEMENT CORP.,

Defendants.

AFFIRMATION IN REPLY

LAW OFFICES OF MICHAEL J. SWEENEY
Attorney forDefendant
24651 Broadway Market, Inc.,
Ofñce and Post Office Address, Telephone
25 GREENWOOD ROAD
YONKERS, NEW YORK 19701
(914) 968-7033

The documents herein are certified pursuant to N.Y.C.R.R. 130-1.1-a. S/Michael J. Sweeney

MICHAEL J. SWEENEY, ESQ

Sir:Pleasetake notice
( ) NOTICE OF ENTRY
thatthe withinis a (certified)
truecopy of a
duly enteredin the office
of the clerk
of the within
named courton
( ) NOTICE OF SETTLEMENT
thatan order of whichthe withinis a true
copy willbe presentedforsettlementto
the HON. One of the judgesof the within
named court,at
on at
Dated, March 5,2018
Yours etc.,

To David Horowitz, P.C- LAW OFFICES OF MICHAEL J. ESQ.
SWEENEY,
171 Madison Avenue, Suite 1300 forDefendant
Attorney
New York New York 10016 Opice and Post Ofice Address,Telephone
25 GREENWOOD ROAD
Plaintift'
Attorneys forPlaintiff YourmRs , NEW YORK 10701

Weiner, Millo,Morgan & Bonanno (914) 968-7033
10*
220 Fifth Avenue, Floor
New York, New York 10001

Attorney(s) forYucca Holding Corp and New Horizon
Management Corp..

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Case Info

Judge

Alexander M Tisch Track Judge’s New Case

Case No.

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Document Filed Date

March 05, 2018

Case Filing Date

January 29, 2014

County

Parties

2451 BROADWAY MARKET, INC. Defendant
BONANNO, JOHN PERRY Attorney for the Defendants
Doris Kaufman Plaintiff
DRELICH, GLORIA Attorney for the Plaintiff
ELLMAN, STEPHEN FREDERICK Attorney for the Defendants
LEINBACH, BRYAN D Attorney for the Defendants
NEW HORIZON MANAGEMENT CORP. Defendant
sweeney, michael j Attorney for the Defendants
WEISBERG, HAROLD H Attorney for the Defendants
YUCCA HOLDING CORP. Defendant
MICHAEL BRUMER Attorneys for Plaintiffs
CHRISTOPHER JOSLIN Attorneys for Plaintiffs
JOHN O'HANLON Attorney
JOHN BOYLE Attorney
MICHAEL JU Attorneys for Defendants

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