Preview
July 2, 2020
Via NYSCEF
Hon. Tanya R. Kennedy, J.S.C.
IAS Part 63
60 Centre Street, Courtroom 321
New York, New York 10007
Re: Cedar Advance LLC v. DPW Holdings, Inc., et al. – Index No. 154031/2020
Dear Judge Kennedy:
This firm represents Defendants DPW Holdings Inc., DPW Ventures Inc., Digital Farms
Inc., Power-Plus Technical Distributors LLC, Coolisys Technologies Inc., I.AM Inc., Microphase
Corporation, and Milton C. Ault, III (collectively, “Defendants”) in the above-referenced matter.
Although Defendants do not wish to engage in a letter campaign concerning a motion that has
not yet been fully briefed, Defendants are compelled to respond to the letter that was improperly
filed by Plaintiff earlier today (“Plaintiff’s Letter”; [DE 14]).
Specifically, Plaintiff’s Letter is an inappropriate attempt to sidestep motion practice and
the Letter is telling for what it is not. Initially, shortly after Defendants filed their motion to dismiss
(“Defendants’ Motion” [DE 7]), Plaintiff’s counsel e-mailed the undersigned and, without any
legal basis, insisted that Defendants were somehow in default in connection with Plaintiff’s motion
for summary judgment in lieu of complaint (“Plaintiff’s Motion”), notwithstanding that thirty days
has not yet even elapsed since Plaintiff’s Motion was filed with the Court (i.e., June 8, 2020). (See
Ex. A). When the undersigned pushed back on this issue, Plaintiff’s counsel sent bombastic e-
mails to the undersigned insisting that Defendants were somehow being unreasonable yet failed to
explain why Plaintiff failed to comply with the time strictures set forth in CPLR 3213.
Indeed, Plaintiff’s Letter shies away from this salient point as it does not provide any
explanation as to why Plaintiff filed Plaintiff’s Motion on June 8, 2020, with a response date of
June 29, 2020, and a return date of July 6, 2020. This is especially puzzling given that Plaintiff
knew (or should have known) that it was serving out of state defendants who would have, at
1
minimum, thirty days from the date that service is complete to appear in the matter. Thus, the
June 15th issuance of the index number does not explain Plaintiff’s failure to comply with the time
periods set forth in CPLR 3213 and CPLR 302 in the first instance, and as set forth more fully in
Defendants’ Motion, this is an incurable deficiency which deprives the Court of jurisdiction over
Defendants in this matter. See e.g., Alpine Capital Bank v. Estate of Eugenia S. Shiah, No.
656081/2019, 2020 N.Y. Misc. LEXIS 2137, at *5 (Sup. Ct. N.Y. Cty. May 20, 2020). Indeed, a
1
To that end, Defendants further note that as of today, July 2, 2020, four (4) days before the return date in Plaintiff’s
Motion, Plaintiff still has not filed an affidavit of service in connection with any of the Defendants.
Hon. Tanya R. Kennedy, J.S.C.
July 2, 2020
Page 2
CPLR 3213 motion is unlike any other motion as it is “a hybrid procedure incorporating certain
elements of [commencing] an action and certain elements of motion practice,” (see id.) and as
such, Plaintiff’s cited authority is inapposite as none of those cases involved a CPLR 3213 motion.
Additionally, Plaintiff’s contention that Defendants did not move to dismiss on any other
grounds aside from jurisdiction is misguided because the case law is clear that the Court must, in
the first instance, resolve the jurisdictional issue with regards to a CPLR 3213 motion. See
Goldstein v. Saltzman, No. 7854-06, 2006 N.Y. Misc. LEXIS 2553, at *7 (Sup. Ct. Nassau Cty
Sept. 21, 2006) (noting that a defendant that “appear[s] and contest[s] on the merits [a CPLR 3213
motion], the defendant waives any issue regarding the adequacy of the notice.”).
Moreover, Plaintiff’s Letter also seeks to improperly shift the burden for establishing
jurisdiction over Defendants by contending that Defendants should have contacted Plaintiff to
correct its facially deficient filing. See Adams v. McDaniel, No. 114905/2008, 2009 N.Y. Misc.
LEXIS 5829, at *25 (Jun. 3, 2009) (“When personal jurisdiction is contested, the plaintiff has the
burden of proving that the court has personal jurisdiction ‘based on specific facts set forth in the
record.’”). This is Plaintiff’s burden, however, and, as set forth more fully in Defendants’ Motion,
it has utterly failed to establish this Court’s jurisdiction over this matter.
Finally, Plaintiff’s brazen contention that the only possible ruling can be a dismissal
without prejudice puts the carts before the horse. Defendants’ Motion has not yet been fully
briefed, an affidavit of service has yet to be filed, and it is presumptuous for any party to state how
Your Honor would rule on any specific motion.
Thus, Defendants submit that the Court should disregard Plaintiff’s Letter, in its entirety.
Plaintiff’s opposition papers to Defendants’ Motion are presently due on July 17, 2020, and
Plaintiff can raise any arguments concerning jurisdiction in such papers, and/or file a cross-motion
seeking the relief set forth in Plaintiff’s Letter. That is the appropriate mechanism under the CPLR
for Plaintiff to seek such relief.
We thank the Court for its time and consideration.
Respectfully submitted,
/s/ Robert B. Volynsky
Encl.
cc: Ariel Bouskila, Esq.
EXHIBIT A
Robert Volynsky
From: Ariel Bouskila
Sent: Wednesday, July 1, 2020 8:56 PM
To: Robert Volynsky; Steven Berkovitch
Subject: Cedar v DPW
Robert,
Reaching out to you regarding the motion to dismiss you filed. In the first instance, you have not opposed my motion,
and the time to respond to my motion has passed so your client is in default.
If you would like to resolve your motion and resolve your clients default i can consent to an adjournment of the motion.
‐Ariel
‐‐
Berkovitch & Bouskila, PLLC
80 Broad St. Suite 3303
New York, New York 10004
(212) 729‐1477
1
Preview
July 2, 2020 Via NYSCEF Hon. Tanya R. Kennedy, J.S.C. IAS Part 63 60 Centre Street, Courtroom 321 New York, New York 10007 Re: Cedar Advance LLC v. DPW Holdings, Inc., et al. – Index No. 154031/2020 Dear Judge Kennedy: This firm represents Defendants DPW Holdings Inc., DPW Ventures Inc., Digital Farms Inc., Power-Plus Technical Distributors LLC, Coolisys Technologies Inc., I.AM Inc., Microphase Corporation, and Milton C. Ault, III (collectively, “Defendants”) in the above-referenced matter. Although Defendants do not wish to engage in a letter campaign concerning a motion that has not yet been fully briefed, Defendants are compelled to respond to the letter that was improperly filed by Plaintiff earlier today (“Plaintiff’s Letter”; [DE 14]). Specifically, Plaintiff’s Letter is an inappropriate attempt to sidestep motion practice and the Letter is telling for what it is not. Initially, shortly after Defendants filed their motion to dismiss (“Defendants’ Motion” [DE 7]), Plaintiff’s counsel e-mailed the undersigned and, without any legal basis, insisted that Defendants were somehow in default in connection with Plaintiff’s motion for summary judgment in lieu of complaint (“Plaintiff’s Motion”), notwithstanding that thirty days has not yet even elapsed since Plaintiff’s Motion was filed with the Court (i.e., June 8, 2020). (See Ex. A). When the undersigned pushed back on this issue, Plaintiff’s counsel sent bombastic e- mails to the undersigned insisting that Defendants were somehow being unreasonable yet failed to explain why Plaintiff failed to comply with the time strictures set forth in CPLR 3213. Indeed, Plaintiff’s Letter shies away from this salient point as it does not provide any explanation as to why Plaintiff filed Plaintiff’s Motion on June 8, 2020, with a response date of June 29, 2020, and a return date of July 6, 2020. This is especially puzzling given that Plaintiff knew (or should have known) that it was serving out of state defendants who would have, at 1 minimum, thirty days from the date that service is complete to appear in the matter. Thus, the June 15th issuance of the index number does not explain Plaintiff’s failure to comply with the time periods set forth in CPLR 3213 and CPLR 302 in the first instance, and as set forth more fully in Defendants’ Motion, this is an incurable deficiency which deprives the Court of jurisdiction over Defendants in this matter. See e.g., Alpine Capital Bank v. Estate of Eugenia S. Shiah, No. 656081/2019, 2020 N.Y. Misc. LEXIS 2137, at *5 (Sup. Ct. N.Y. Cty. May 20, 2020). Indeed, a 1 To that end, Defendants further note that as of today, July 2, 2020, four (4) days before the return date in Plaintiff’s Motion, Plaintiff still has not filed an affidavit of service in connection with any of the Defendants. Hon. Tanya R. Kennedy, J.S.C. July 2, 2020 Page 2 CPLR 3213 motion is unlike any other motion as it is “a hybrid procedure incorporating certain elements of [commencing] an action and certain elements of motion practice,” (see id.) and as such, Plaintiff’s cited authority is inapposite as none of those cases involved a CPLR 3213 motion. Additionally, Plaintiff’s contention that Defendants did not move to dismiss on any other grounds aside from jurisdiction is misguided because the case law is clear that the Court must, in the first instance, resolve the jurisdictional issue with regards to a CPLR 3213 motion. See Goldstein v. Saltzman, No. 7854-06, 2006 N.Y. Misc. LEXIS 2553, at *7 (Sup. Ct. Nassau Cty Sept. 21, 2006) (noting that a defendant that “appear[s] and contest[s] on the merits [a CPLR 3213 motion], the defendant waives any issue regarding the adequacy of the notice.”). Moreover, Plaintiff’s Letter also seeks to improperly shift the burden for establishing jurisdiction over Defendants by contending that Defendants should have contacted Plaintiff to correct its facially deficient filing. See Adams v. McDaniel, No. 114905/2008, 2009 N.Y. Misc. LEXIS 5829, at *25 (Jun. 3, 2009) (“When personal jurisdiction is contested, the plaintiff has the burden of proving that the court has personal jurisdiction ‘based on specific facts set forth in the record.’”). This is Plaintiff’s burden, however, and, as set forth more fully in Defendants’ Motion, it has utterly failed to establish this Court’s jurisdiction over this matter. Finally, Plaintiff’s brazen contention that the only possible ruling can be a dismissal without prejudice puts the carts before the horse. Defendants’ Motion has not yet been fully briefed, an affidavit of service has yet to be filed, and it is presumptuous for any party to state how Your Honor would rule on any specific motion. Thus, Defendants submit that the Court should disregard Plaintiff’s Letter, in its entirety. Plaintiff’s opposition papers to Defendants’ Motion are presently due on July 17, 2020, and Plaintiff can raise any arguments concerning jurisdiction in such papers, and/or file a cross-motion seeking the relief set forth in Plaintiff’s Letter. That is the appropriate mechanism under the CPLR for Plaintiff to seek such relief. We thank the Court for its time and consideration. Respectfully submitted, /s/ Robert B. Volynsky Encl. cc: Ariel Bouskila, Esq. EXHIBIT A Robert Volynsky From: Ariel Bouskila Sent: Wednesday, July 1, 2020 8:56 PM To: Robert Volynsky; Steven Berkovitch Subject: Cedar v DPW Robert, Reaching out to you regarding the motion to dismiss you filed. In the first instance, you have not opposed my motion, and the time to respond to my motion has passed so your client is in default. If you would like to resolve your motion and resolve your clients default i can consent to an adjournment of the motion. ‐Ariel ‐‐ Berkovitch & Bouskila, PLLC 80 Broad St. Suite 3303 New York, New York 10004 (212) 729‐1477 1