Preview
FILED: QUEENS COUNTY CLERK 07/24/2018 03:22 PM INDEX NO. 703501/2018
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/24/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
———————————- ——————X
----------------------------------------------------------------------X
YOUDHVIR GYANI
NOTICE OF DEFAULT
JUDGMENT
Plaintiff,
Index No.: 703501/18
-against-
VINEY KUMAR and THE CITY OF NEW YORK,
Defendants.
————————————- —————X
----------------------------------------------------------------------X
PLEASE TAKE NOTICE, that upon the annexed affirmation of DAVID
RESNICK, duly affirmed on July 18, 2018, together with the exhibits annexed thereto,
and upon all the pleadings and proceedings heretofore had herein, the undersigned will
move this Court at the QUEENS County Supreme Court courthouse located at 88-11
Sutphin Boulevard, Jamaica, NY 11435, on August 22, 2018, at 9:30 A.M., or as soon
thereafter as counsel can be heard for an Order, pursuant to CPLR §3215(a)(b), directing
that a Default Judgment be entered against Defendant THE CITY OF NEW YORK, or
in the alternative, setting this matter down for an inquest in favor of the Plaintiff(s),
assessing damages in a sum certain or for a sum which can, by computation, be made
attorneys'
certain, awarding costs, fees and sanctions to Plaintiffs attorneys, and for such
other and further relief as to this Court seems just and proper.
PLEASE TAKE FURTHER NOTICE, that answering affidavits, if any, are to
be served upon the undersigned within seven (7) days prior to the return date of the
within application.
Dated: New York, New York
July 18, 2018
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'
Yours, etc.
DAVID RESNICK
David Resnick & Associates, PC
Attorneys for Plaintiff
YOUDHVIR GYANI
450 Seventh Avenue, Suite 409
New York, NY 10123
(212)279-2000
TO: The City of New York
100 Church Street, 4th Floor
New York, NY 10007
Jeffrey Kim, P.C.
Attorney for Defendant(s)
Viney Kumar
42-40 Bell Boulevard
Suite 304
Bayside, NY 11361
(718) 428-4949
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
----------------------------------------------------------------------X
YOUDHVIR GYANI,
Plaintiff, AFFIRMATION
-against- Index No.: 703501/18
VINEY KUMAR and THE CITY OF NEW YORK,
Defendants.
----------------------------------------------------------------------X
DAVID RESNICK, an attorney at law, duly admitted to practice law before the Courts of
the State of New York, and a member of DAVID RESNICK & ASSOCIATES, P. C., attorneys
for Plaintiff herein, affirms the following to be true under the penalties of perjury.
Your affirmant, fully familiar with the facts and circumstances surrounding the within
issues, submits this affirmation in support of the within application for an Order, pursuant to
CPLR §3215(a)(b), directing that a default judgment be entered against the Defendant THE
CITY OF NEW YORK, or, in the alternative, setting this matter down for an inquest in favor of
the Plaintiff(s), assessing damages in a sum certain, or, for a sum which can, by computation, be
attorneys'
made certain, awarding costs, fees and sanctions to Plaintiffs attorneys, and for such
other and further relief which as to this Court seems just and proper.
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The within action was brought on behalf of Plaintiff, and involves a claim for the
grievous and permanent personal injuries suffered by the Plaintiff when he tripped and fell on the
25001
sidewalk in front of 8245 250 Street, Bellerose, NY in the County of Queens. Annexed hereto
"A"
and made a part hereof as Exhibit is a copy of Plaintiffs Summons and Verified Complaint.
The Summons and Verified Complaint were served on Defendant, THE CITY OF NEW
YORK and a copy of the Affidavit of Service thereof is annexed hereto and made a part hereof
as Exhibit "B".
CPLR § 3012(a) provides that:
§3012(a) Service of pleadings.
. .. Service of an answer or reply shall be made within twenty days
after service of the pleading to which it responds. (Emphasis
added)
This Court's attention is respectfully directed to make note of the date on which Defendant, THE
CITY OF NEW YORK was properly served with the Summons and Verified Complaint, to wit:
March 12, 2018. More than 120 days have passed since said Defendant was served, and to date,
no appearance, answer or reply has been forthcoming either from the Defendant or its
representative.
The Defendant has failed, not only to make an appearance, but has also willfully and
deliberately neglected to request an extension of time to answer and/or make an appearance.
In addition, by letter dated May 25, 2018, your affirmant advised Defendant of its default,
requested that an answer be interposed to avoid a Default Judgment being entered and that the
summons and complaint be turned over to its insurance carrier. This letter was sent by certified
mail, return receipt requested and receipt thereof acknowledged by Defendant's signature. A
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copy of said letter, together with the signed return receipt is annexed hereto and made a part
hereof as Exhibit "C".
It isapparent that the Defendant will not proceed with its defense. In spite of the fact that
your affirmant's office has determined the Defendant herein to be the proper party to this action,
and has to this date proceeded in the prescribed manner to unveil its role and ultimate culpable
conduct in the events which led to the within accident, said Defendant has willfully and
deliberately failed to make an appearance and defend these claims asserted against him and,
therefore, has defaulted.
Thus, the Defendant's default herein has been intentional or willful on his part; designed
to prejudice or hamper Plaintiffs ability to litigate this action expeditiously. Plaintiff has a
meritorious cause of action and itis your affirmant's belief that sound public policy and judicial
equity mandates that the issues involved herein be decided on the merits.
In view of the foregoing, the within application is made pursuant to CPLR §3215(a),
which states:
§3215. Default judgment.
(a) Default and entry. When a defendant has failed to appear, plead or
proceed to trial of an action...., the plaintiff may seek a default judgment
against him. If the plaintiffs claim is for a certain sum or for a sum which
can by computation be made certain, application may be made to the clerk
within one year after the default. The clerk, upon submission of the
requisite proof, shall enter judgment for the amount demanded in the
complaint or stated in the notice service pursuant to subdivision (b) of rule
305, plus costs and interest... (Emphasis added)
For all of the foregoing reasons, it isrespectfully requested that in addition to the specific
attorneys'
relief sought herein, that costs, fees and sanctions be awarded to Plaintiffs attorneys,
3
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to be paid by Defendant due to its cavalier disregard exhibited herein, including the necessity of
the within application, in the event this Court sees fit not to enter a default judgment at this time.
No previous application for the relief sought herein has ever been made to this or any
other Court.
WHEREFORE, itis respectfully requested that an Order be entered, pursuant to CPLR
§3215(a)(b), directing that a default judgment be entered against the Defendant, THE CITY OF
NEW YORK herein or, in the alternative, setting this matter down for an inquest in favor of the
Plaintiff(s), assessing damages in a sum certain or for a sum which can, by computation, be made
attorneys'
certain, awarding costs, fees and sanctions to Plaintiffs attorneys, and for such other
and further relief as to this Court seems just and proper.
Dated: New York, New York
July 18, 2018
DAVID RESNl K
4
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
__..________________ ________ _______________________ ______ __-------------X
YOUDHVIR GYANI,
AFFIDAVIT OF MERIT
Plaintiff, Index No.: 703501/2018
-against-
VINEY KUMAR and THE CITY OF NEW YORK,
Defendants.
-----------------------------------------------------------------------X
STATE OF NEW YORK, COUNTY OF NEW YORK
YOUDHVIR GYANI, being duly sworn deposes that:
250th
I presently reside at 8329 Street, Bellerose, NY 11426. I
am the plaintiff in the above entitled matter and I am fully familiar with the facts and
circumstances herein set forth.
On July 27, 2017, I was a lawful pedestrian walking on the sidewalk in front of
250th
8245 Street, Bellerose, NY, in the County of Queens and was caused to trip and fall
due to the sidewalk being broken and misleveled. As a result of this incident, I suffered
severe injuries.
My attorneys have advised me that THE CITY OF NEW YORK may have been
responsible for maintaining the sidewalk where I fellin a reasonably safe
condition. However, my attorneys have also advised me that this Defendant has not
answered the summons and verified complaint, which was duly served on them
on or around March 12, 2018. More than 108 days have passed, and to date, no
appearance, answer or reply has been forthcoming from this defendant or their
representatives.
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Accordingly, I respectfully request that the Court enter an order directing that a
Default Judgment be entered against Defendant THE CITY OF NEW YORK.
Dated: New York, NY
July ~l, , 2018
l
x 0
YO HVIR GYANI
8 of 11
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State of New York, County of New York ss:
YOUDHVIR GYANI being duly sworn, says that she has read the foregoing
petition; that the same is true to his own knowledge, except as to those matters stated to
be alleged upon information and belief, and as to those matters he believes them to be
true.
X
YC JDHVIR GYAN ~ -
orn
~ggornto to be or me this
_
l>
day of , 2018
NOTARY PU 3IC
MICHELT.E RODRIGO
1( 'VANNA York
PublicState of New
Notary
No. 01RO6286668
in Kings County
Qualified
ll oI~ (
~ 0~
Commission Expires 29, 20
Expirus July 29 ]
9 of 11
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NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/24/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
X
--------------------------------------------------------------------------X
YOUDHVIR GYANI, AFFIDAVIT
OF SERVICE
Plaintiff,
-against-
Index #: 703501/2018
VINEY KUMAR and THE CITY OF NEW YORK,
Defendants.
X
--------------------------------------------------------------------------X
STATE OF NEW YORK )
SS.:
COUNTY OF NEW YORK )
Jovanna Rodrigo, being duly sworn, deposes and states:
I am not a party to the action, I reside in the State of New York, County of Kings, I am
over the age of eighteen (18) years.
On, July 8 l, , 2018 1 served the within Notice of Default Motion by depositing a
true copy thereof in a post-paid wrapper, in an official depository under the exclusive care and
custody of the U.S. Postal Service within New York State, addressed to each of the following
persons at the lastknown address set forth after each name:
TO: JEFFREY KIM, P.C. THE CITY OF NEW YORK
4th
Attorneys for Defendant 100 Church Street, FlOOr
VINEY KUMAR New York, NY 10007
42-40 Bell Boulevard, Suite 304
Bayside, New York 11361
Tel: (718) 428-4949
Jovanna Ro igo
S be o this
ay July 018
Notary Public - - -- --- -- -
ANNA BERUN
Commissioner of Deeds, City of New York
No. 2-13462
Cert Filedin Kings Cy 6tv
Expires o
10 of 11
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NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/24/2018
Index No.: 703501/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
YOUDHVIR GYANI,
Plaintiff,
-against-
VINEY KUMAR and THE CITY OF NEW YORK,
Defendants.
NOTICE OF DEFAULT MOTION
DAVID RESNICK & ASSOCIATES, P. C.
Attorney for Plaintiff
450 Seventh Avenue, Suite 409
New York, New York 10123
Tel: (212) 279-2000
TO: JEFFREY KIM, P.C.
Attorneys for Defendant
VINEY KUMAR
42-40 Bell BOulevard, Suite 304
Bayside, New York 11361
Tel: (718) 428-4949
THE CITY OF NEW YORK
4th
100 Church Street, FlOOr
New York, NY 10007
11 of 11
Preview
FILED: QUEENS COUNTY CLERK 07/24/2018 03:22 PM INDEX NO. 703501/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/24/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ———————————- ——————X ----------------------------------------------------------------------X YOUDHVIR GYANI NOTICE OF DEFAULT JUDGMENT Plaintiff, Index No.: 703501/18 -against- VINEY KUMAR and THE CITY OF NEW YORK, Defendants. ————————————- —————X ----------------------------------------------------------------------X PLEASE TAKE NOTICE, that upon the annexed affirmation of DAVID RESNICK, duly affirmed on July 18, 2018, together with the exhibits annexed thereto, and upon all the pleadings and proceedings heretofore had herein, the undersigned will move this Court at the QUEENS County Supreme Court courthouse located at 88-11 Sutphin Boulevard, Jamaica, NY 11435, on August 22, 2018, at 9:30 A.M., or as soon thereafter as counsel can be heard for an Order, pursuant to CPLR §3215(a)(b), directing that a Default Judgment be entered against Defendant THE CITY OF NEW YORK, or in the alternative, setting this matter down for an inquest in favor of the Plaintiff(s), assessing damages in a sum certain or for a sum which can, by computation, be made attorneys' certain, awarding costs, fees and sanctions to Plaintiffs attorneys, and for such other and further relief as to this Court seems just and proper. PLEASE TAKE FURTHER NOTICE, that answering affidavits, if any, are to be served upon the undersigned within seven (7) days prior to the return date of the within application. Dated: New York, New York July 18, 2018 1 of 11 FILED: QUEENS COUNTY CLERK 07/24/2018 03:22 PM INDEX NO. 703501/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/24/2018 ' Yours, etc. DAVID RESNICK David Resnick & Associates, PC Attorneys for Plaintiff YOUDHVIR GYANI 450 Seventh Avenue, Suite 409 New York, NY 10123 (212)279-2000 TO: The City of New York 100 Church Street, 4th Floor New York, NY 10007 Jeffrey Kim, P.C. Attorney for Defendant(s) Viney Kumar 42-40 Bell Boulevard Suite 304 Bayside, NY 11361 (718) 428-4949 2 of 11 FILED: QUEENS COUNTY CLERK 07/24/2018 03:22 PM INDEX NO. 703501/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/24/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ----------------------------------------------------------------------X YOUDHVIR GYANI, Plaintiff, AFFIRMATION -against- Index No.: 703501/18 VINEY KUMAR and THE CITY OF NEW YORK, Defendants. ----------------------------------------------------------------------X DAVID RESNICK, an attorney at law, duly admitted to practice law before the Courts of the State of New York, and a member of DAVID RESNICK & ASSOCIATES, P. C., attorneys for Plaintiff herein, affirms the following to be true under the penalties of perjury. Your affirmant, fully familiar with the facts and circumstances surrounding the within issues, submits this affirmation in support of the within application for an Order, pursuant to CPLR §3215(a)(b), directing that a default judgment be entered against the Defendant THE CITY OF NEW YORK, or, in the alternative, setting this matter down for an inquest in favor of the Plaintiff(s), assessing damages in a sum certain, or, for a sum which can, by computation, be attorneys' made certain, awarding costs, fees and sanctions to Plaintiffs attorneys, and for such other and further relief which as to this Court seems just and proper. 3 of 11 FILED: QUEENS COUNTY CLERK 07/24/2018 03:22 PM INDEX NO. 703501/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/24/2018 The within action was brought on behalf of Plaintiff, and involves a claim for the grievous and permanent personal injuries suffered by the Plaintiff when he tripped and fell on the 25001 sidewalk in front of 8245 250 Street, Bellerose, NY in the County of Queens. Annexed hereto "A" and made a part hereof as Exhibit is a copy of Plaintiffs Summons and Verified Complaint. The Summons and Verified Complaint were served on Defendant, THE CITY OF NEW YORK and a copy of the Affidavit of Service thereof is annexed hereto and made a part hereof as Exhibit "B". CPLR § 3012(a) provides that: §3012(a) Service of pleadings. . .. Service of an answer or reply shall be made within twenty days after service of the pleading to which it responds. (Emphasis added) This Court's attention is respectfully directed to make note of the date on which Defendant, THE CITY OF NEW YORK was properly served with the Summons and Verified Complaint, to wit: March 12, 2018. More than 120 days have passed since said Defendant was served, and to date, no appearance, answer or reply has been forthcoming either from the Defendant or its representative. The Defendant has failed, not only to make an appearance, but has also willfully and deliberately neglected to request an extension of time to answer and/or make an appearance. In addition, by letter dated May 25, 2018, your affirmant advised Defendant of its default, requested that an answer be interposed to avoid a Default Judgment being entered and that the summons and complaint be turned over to its insurance carrier. This letter was sent by certified mail, return receipt requested and receipt thereof acknowledged by Defendant's signature. A 4 of 11 FILED: QUEENS COUNTY CLERK 07/24/2018 03:22 PM INDEX NO. 703501/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/24/2018 copy of said letter, together with the signed return receipt is annexed hereto and made a part hereof as Exhibit "C". It isapparent that the Defendant will not proceed with its defense. In spite of the fact that your affirmant's office has determined the Defendant herein to be the proper party to this action, and has to this date proceeded in the prescribed manner to unveil its role and ultimate culpable conduct in the events which led to the within accident, said Defendant has willfully and deliberately failed to make an appearance and defend these claims asserted against him and, therefore, has defaulted. Thus, the Defendant's default herein has been intentional or willful on his part; designed to prejudice or hamper Plaintiffs ability to litigate this action expeditiously. Plaintiff has a meritorious cause of action and itis your affirmant's belief that sound public policy and judicial equity mandates that the issues involved herein be decided on the merits. In view of the foregoing, the within application is made pursuant to CPLR §3215(a), which states: §3215. Default judgment. (a) Default and entry. When a defendant has failed to appear, plead or proceed to trial of an action...., the plaintiff may seek a default judgment against him. If the plaintiffs claim is for a certain sum or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default. The clerk, upon submission of the requisite proof, shall enter judgment for the amount demanded in the complaint or stated in the notice service pursuant to subdivision (b) of rule 305, plus costs and interest... (Emphasis added) For all of the foregoing reasons, it isrespectfully requested that in addition to the specific attorneys' relief sought herein, that costs, fees and sanctions be awarded to Plaintiffs attorneys, 3 5 of 11 FILED: QUEENS COUNTY CLERK 07/24/2018 03:22 PM INDEX NO. 703501/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/24/2018 to be paid by Defendant due to its cavalier disregard exhibited herein, including the necessity of the within application, in the event this Court sees fit not to enter a default judgment at this time. No previous application for the relief sought herein has ever been made to this or any other Court. WHEREFORE, itis respectfully requested that an Order be entered, pursuant to CPLR §3215(a)(b), directing that a default judgment be entered against the Defendant, THE CITY OF NEW YORK herein or, in the alternative, setting this matter down for an inquest in favor of the Plaintiff(s), assessing damages in a sum certain or for a sum which can, by computation, be made attorneys' certain, awarding costs, fees and sanctions to Plaintiffs attorneys, and for such other and further relief as to this Court seems just and proper. Dated: New York, New York July 18, 2018 DAVID RESNl K 4 6 of 11 FILED: QUEENS COUNTY CLERK 07/24/2018 03:22 PM INDEX NO. 703501/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/24/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS __..________________ ________ _______________________ ______ __-------------X YOUDHVIR GYANI, AFFIDAVIT OF MERIT Plaintiff, Index No.: 703501/2018 -against- VINEY KUMAR and THE CITY OF NEW YORK, Defendants. -----------------------------------------------------------------------X STATE OF NEW YORK, COUNTY OF NEW YORK YOUDHVIR GYANI, being duly sworn deposes that: 250th I presently reside at 8329 Street, Bellerose, NY 11426. I am the plaintiff in the above entitled matter and I am fully familiar with the facts and circumstances herein set forth. On July 27, 2017, I was a lawful pedestrian walking on the sidewalk in front of 250th 8245 Street, Bellerose, NY, in the County of Queens and was caused to trip and fall due to the sidewalk being broken and misleveled. As a result of this incident, I suffered severe injuries. My attorneys have advised me that THE CITY OF NEW YORK may have been responsible for maintaining the sidewalk where I fellin a reasonably safe condition. However, my attorneys have also advised me that this Defendant has not answered the summons and verified complaint, which was duly served on them on or around March 12, 2018. More than 108 days have passed, and to date, no appearance, answer or reply has been forthcoming from this defendant or their representatives. 7 of 11 FILED: QUEENS COUNTY CLERK 07/24/2018 03:22 PM INDEX NO. 703501/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/24/2018 Accordingly, I respectfully request that the Court enter an order directing that a Default Judgment be entered against Defendant THE CITY OF NEW YORK. Dated: New York, NY July ~l, , 2018 l x 0 YO HVIR GYANI 8 of 11 FILED: QUEENS COUNTY CLERK 07/24/2018 03:22 PM INDEX NO. 703501/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/24/2018 State of New York, County of New York ss: YOUDHVIR GYANI being duly sworn, says that she has read the foregoing petition; that the same is true to his own knowledge, except as to those matters stated to be alleged upon information and belief, and as to those matters he believes them to be true. X YC JDHVIR GYAN ~ - orn ~ggornto to be or me this _ l> day of , 2018 NOTARY PU 3IC MICHELT.E RODRIGO 1( 'VANNA York PublicState of New Notary No. 01RO6286668 in Kings County Qualified ll oI~ ( ~ 0~ Commission Expires 29, 20 Expirus July 29 ] 9 of 11 FILED: QUEENS COUNTY CLERK 07/24/2018 03:22 PM INDEX NO. 703501/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/24/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS X --------------------------------------------------------------------------X YOUDHVIR GYANI, AFFIDAVIT OF SERVICE Plaintiff, -against- Index #: 703501/2018 VINEY KUMAR and THE CITY OF NEW YORK, Defendants. X --------------------------------------------------------------------------X STATE OF NEW YORK ) SS.: COUNTY OF NEW YORK ) Jovanna Rodrigo, being duly sworn, deposes and states: I am not a party to the action, I reside in the State of New York, County of Kings, I am over the age of eighteen (18) years. On, July 8 l, , 2018 1 served the within Notice of Default Motion by depositing a true copy thereof in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to each of the following persons at the lastknown address set forth after each name: TO: JEFFREY KIM, P.C. THE CITY OF NEW YORK 4th Attorneys for Defendant 100 Church Street, FlOOr VINEY KUMAR New York, NY 10007 42-40 Bell Boulevard, Suite 304 Bayside, New York 11361 Tel: (718) 428-4949 Jovanna Ro igo S be o this ay July 018 Notary Public - - -- --- -- - ANNA BERUN Commissioner of Deeds, City of New York No. 2-13462 Cert Filedin Kings Cy 6tv Expires o 10 of 11 FILED: QUEENS COUNTY CLERK 07/24/2018 03:22 PM INDEX NO. 703501/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/24/2018 Index No.: 703501/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS YOUDHVIR GYANI, Plaintiff, -against- VINEY KUMAR and THE CITY OF NEW YORK, Defendants. NOTICE OF DEFAULT MOTION DAVID RESNICK & ASSOCIATES, P. C. Attorney for Plaintiff 450 Seventh Avenue, Suite 409 New York, New York 10123 Tel: (212) 279-2000 TO: JEFFREY KIM, P.C. Attorneys for Defendant VINEY KUMAR 42-40 Bell BOulevard, Suite 304 Bayside, New York 11361 Tel: (718) 428-4949 THE CITY OF NEW YORK 4th 100 Church Street, FlOOr New York, NY 10007 11 of 11