Motion-Secondary: Integrated Management, Inc., Dr. Brian Fradet v. Allen Swerdlowe

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                                INDEX   NO.   652326/2011
(FILED: NEW YORK COUNTY CLERK 1171572011)
NYSCEF   DOC.     NO.    9                                                                                       RECEIVED   NYSCEF:       11/15/2011



                SUPREME COURT OF THE STATE OF NEW YORK
                COUNTY OF NEW YORK
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                INTEGRATED MANAGEMENT, INC. and
                DR. BRIAN FRADET,                                                             AFFIRMATION IN REPLY

                                                            Plaintiffs,                       Index No.: 652326/2011
                             -against-
                                                                                              Hon. Anil Singh, J.S.C.
                ALLEN SWERDLOWE,

                                                            Defendant.

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                             David N. Vozza, an attorney duly permitted to practice before the Courts of the State of

                New York, pursuant to CPLR §2106, affirms the following to be true under penalty of perjury:

                             1         I am associated with the law firm of Kern Augustine Conroy & Schoppmann,

                P.C., attorneys for the plaintiffs, Integrated Management, Inc. (“IMI”) and Dr. Brian Fradet

                (“Fradet”) (collectively the “plaintiffs”) and fully familiar with all the facts and circumstances

                heretofore had herein.

                             2         I submit      this     affirmation   in   reply   to   the   defendant,   Allen   Swerdlowe’s

                (“defendant”) opposition to the plaintiffs’ motion for an order, pursuant to CPLR                                §3215,

                directing that a default judgment be entered against the defendant.

                                                 THE DEFENDANT’S CONTENTION THAT
                                            AN AGREEMENT WAS REACHED TO EXTEND HIS
                                             TIME TO INTERPOSE AN ANSWER IS NOT TRUE

                             3           The assertion set forth by defendant’s counsel, namely Patrick Filan, that “counsel

                for the plaintiff agreed to an extension” is simply not true. (Filan Affirmation, §4)
4        As previously affirmed, the above-entitled action was commenced by the personal

service of a Notice of Commencement of Action Subject to Mandatory Electronic Filing and

Summons and Verified Complaint upon the defendant on the August 27, 2011.                (See exhibits

“B” and “C” of plaintiff's underlying cross-motion)

          5        On or about September 15, Mr. Filan telephoned me to request an extension of

defendant’s time to interpose an answer.      In accordance with the same, I requested that Mr. Filan

prepare and forward a stipulation, containing a waiver of any jurisdictional defenses, so that I

could present the same to the plaintiffs.      Thereafter, and for a period of weeks, I did not hear

from Mr. Filan and never received the requested stipulation.

          6        In or about the first week of October, and in furtherance of my good faith effort to

resolve the defendant’s continued default and his failure to forward the discussed stipulation, I

attempted to contact Mr. Filan.       On October 3, 2011, Mr. Filan (ostensibly responding to my

voicemail) instead forwarded a proposed stipulation extending the defendant’s time to file an

answer until November        1, 2011 — more than two (2) months from the date he was personally

served.       We did not (and would not have) agree to such a lengthy extension.        Moreover, the

proposed stipulation did not contain a waiver of jurisdictional defenses as discussed in our initial

conversation.


          7        Accordingly, the basis of the defendant’s opposition to the plaintiffs cross motion

— that an agreement was reached to extend his time to answer — is patently untrue and should not

be considered by this Court.

          WHEREFORE, the plaintiffs respectfully request that the Court enter an Order, pursuant

to CPLR        §3215, granting their motion for a default judgment and denying the defendant’s

motion in its entirety.
Dated: Garden City, New York
      November 14, 2011         /)
                               ‘ David N.   022i