On July 17, 2019 a
Motion-Secondary
was filed
involving a dispute between
Liberty Mutual Insurance Company,
Lm General Insurance Company,
and
Acutus Rx, Llc,
Ak Global Supply Corp.,
Amro Care Pt, P.C.,
Ava Custom Supply Inc.,
Citimedical I, Pllc,
Harbor Medical Group Pc,
Kendon Thomas,
Lawrence Chiropractic Diagnostic Services,
Mauro Chiropractic P.C.,
Metro Pain Specialists Professional Corporation,
North Shore Home Care Services, Inc.,
Opus Psychological Services P.C.,
Prospect Chiropractic Pllc,
Si Acupuncture, Pc,
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 08/27/2020 12:36 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/27/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
BÈÏÜFÑÍÜTÜÄ IN ÖÖ AFFIRMATION IN REPLY
Plaintiff Adjourned Date: September 2020
18,
-against-
INDEX No: 654092/2019
KENDON THOMAS, ET AL
Defendant
..........._______-_ __________..............__________-.__________.________
David Landfair, an attorney duly admitted to practice law in the Courts of the State of New York,
affirms as follows under the penalty of perjury.
1. Counsel's claim that AK GLOBAL SUPPLY CORP. (hereinafter "Moving Defendant")
dawdled in filing an answer is simply false. Moving Defendant establishes by the affidavit of
its owner that it received the Summons and Complaiñt, for the first time, from the Secretary of
State on October 17, 2019. Moving Defendant thereafter filed its answer, through counsel, on
October 2019 - a mere eight days later.
25,
Service"
Plaintiff's "Addinonal Was Improper and Void
2. Plaintiff's alleged service of an additional copy of the summons and complaiñt on or about July
22, 2019, is irrelevant and undêññiñés Plaintiff's own motion. Pursuant to CPLR 3215(g)(4)(i),
"When a default judgment based upon non-appearance is sought against a . . . corporation
which has been served pursuant to paragraph (b) of section three hundred six of the business
corporation law, an affidavit shall be submitted that an additional service of the summons by
."
first class mail has been made upon the defendant. . . CPLR 3215(g)(4)(ii) provides further,
"The additional service of the summom by mail may be made simultaneously with or after the
service of the summons on the defendant corporation pursuant to paragraph (b) of section three
law."
hundred six of the business corporation
1 of 5
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NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/27/2020
Plaintiff's counsel admits in paragraphs 7 and 8 of his affirmation in oppasition to the cross-
3.
motion that Plaintiff failed to comply with CPLR 3215(g). He states that the service via
service,"
Secretary of State was made on July 29, 2019, but that the "additional which is
required by CPLR 3215(g) in order to enter a default judgment, was made on July 22, 2019.
Because the CPLR specifically requires that additional service be made contemporaneous with
or subsequent to service via the Secretary of State, Plaintiff has failed to make additional
service at all.
4. Although the statute states that non-receipt by a defendant should not preclude entry of default
judgment, that exception only applies where the Plaintiff properly serves the additional copy.
That did not occur in this case; Plaintiff may not be permitted to enter a default judgment
PLAINTIFF ACCEPTED THE ANSWER
5. The law is clear. "There was no default in answering, Plaintiff waived its objections to the
untimeliness of defendant's answer by serving a reply to the counterclaims after rejecting the
"
late answer and moving for a default judgment Rossini v Shelter Rock Bldrs
Excavating Corp
(1st defeñdañts'
LLC, 89 AD3d 467 Dept 2011). "Plaintiff's acceptance of answer, without
default."
objection, constituted a waiver of the late service and Pena-Vazquez v Beharry, 82
(1st
AD3d 649 Dept 2011). A plaintiff that receives an untimely answer and subsequently files a
reply to a counterclaim has waived its right to enter a default based on the untimely answer.
6. In this case, Moving Defendant ãñswcred, interposing a counterclaim, and served discovery
demands on October 25, 2019. NYSCEF Doc # 4-5. Plaintiff replied to the counterclaim on
November 13, 2019. NYSCEF Doc # 6. Plaintiff subsequently moved for default judgment
against Moving Defendant on July 14, 2020. NYSCEF Doc # 9.After that, Plaintiff responded
to Moving Defendant's discovery demands by mail by a document bearing an incorrect index
2 of 5
FILED: NEW YORK COUNTY CLERK 08/27/2020 12:36 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/27/2020
number, which Defendant rejected. Plaintiff protested that the index number was only
Moving
on the first page, NYSCEF Doc # 32, and then improperly e-filed another response to
wrong
Defendant's demands on NYSCEF, see Doc # 33-39. Moving Defendant objected to
Moving
this improper service of discovery responses pursuant to 22 NYCRR 202.5-b(j). NYSCEF Doc
# 40. Plaintiff stated by letter to the Court, NYSCEF Doc # 43, that the documents were
"accidentally"
e-filed and requested that they be removed. Although certain documents were
apparently removed because the e-filing system recognized that they contained confidential
personal information, the discovery responses remain e-filed as of the time of this writing.
7. Plaintiff s insistence that Moving Defendant is in default, while responding to Moving
Defendant's counter-claims and repeatedly serving responses to Moving Defendant's discovery
demands, reveals that this action is indistinguishable from the First Department cases in which
the Appellate Division held that other plaintiffs had waived their objections to untimely
answers.
Defendants' "disingenuous"
8. Plaintiff s counsel repeatedly refers to Moving arguments as in
opposition, see paragraphs 10, 11, 14, yet he himself claims, disingenuously, that "no court rule
performed."
requires that [a rejection of a late answer] be Paragraph 19. Counsel has clearly
neglected to refer to the case law cited in Moving Defendant's cross-motion. Moreover, his
repeated improper service of responses - confidential
discovery including electronically filing
personal information in violation of explicit court rules - while a default
quixotically pursuing
judgment belies his belief in the merit of his own motion.
3 of 5
FILED: NEW YORK COUNTY CLERK 08/27/2020 12:36 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/27/2020
itis requested that Plaintiffs motion be that the cross-
WHEREFORE, respectfully denied;
motion of Defendant AK GLOBAL SUPPLY, INC. be granted; and that defendant AK GLOBAL
SUPPLY, INC. be awarded such other and further relief as this Court deems just and proper.
Dated: August 27, 2020 KOPELEVICH & FELDSHEROVA, P.C.
Attomeys for Defendants
AK GLOBAL SUPPLY IN
241 37th Stree , uit 39
Brooklyn, NY 1 32
718-332-0577
/
By:
David L df i
4 of 5
FILED: NEW YORK COUNTY CLERK 08/27/2020 12:36 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/27/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK Index No.: 654092/2019
LIBERTY MUTUAL INS. CO.
Plaintiff,
-against-
KENDON THOMAS, ET AL.,
Defendant
AFFIRMATION INREPLY
KOPELEVICH & FELDSHEROVA, P.C.
Attomeys for Defendants
AK GLOBAL SUPPLY INC
241 37th Street, Suite B439
Brooklyn, NY 11232
718-332-0577
Pursuant to 22 NYCRR 130-1.1, the undersigñed, an sticmay duly admitted to practice in the courts of New
York State, certifies that, upon information and belief and reasonable inquiry, th .^ñticñs coütsiñed in the
annexed documents are not frivolous.
Dated: August 27, 2020 Signature: ..............
..... ... ...................................
Print Signer's Name: David Landfair
TO:
BURKE CONWAY & STIEFELD
VIA NYSCEF
5 of 5
Preview
FILED: NEW YORK COUNTY CLERK 08/27/2020 12:36 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/27/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK BÈÏÜFÑÍÜTÜÄ IN ÖÖ AFFIRMATION IN REPLY Plaintiff Adjourned Date: September 2020 18, -against- INDEX No: 654092/2019 KENDON THOMAS, ET AL Defendant ..........._______-_ __________..............__________-.__________.________ David Landfair, an attorney duly admitted to practice law in the Courts of the State of New York, affirms as follows under the penalty of perjury. 1. Counsel's claim that AK GLOBAL SUPPLY CORP. (hereinafter "Moving Defendant") dawdled in filing an answer is simply false. Moving Defendant establishes by the affidavit of its owner that it received the Summons and Complaiñt, for the first time, from the Secretary of State on October 17, 2019. Moving Defendant thereafter filed its answer, through counsel, on October 2019 - a mere eight days later. 25, Service" Plaintiff's "Addinonal Was Improper and Void 2. Plaintiff's alleged service of an additional copy of the summons and complaiñt on or about July 22, 2019, is irrelevant and undêññiñés Plaintiff's own motion. Pursuant to CPLR 3215(g)(4)(i), "When a default judgment based upon non-appearance is sought against a . . . corporation which has been served pursuant to paragraph (b) of section three hundred six of the business corporation law, an affidavit shall be submitted that an additional service of the summons by ." first class mail has been made upon the defendant. . . CPLR 3215(g)(4)(ii) provides further, "The additional service of the summom by mail may be made simultaneously with or after the service of the summons on the defendant corporation pursuant to paragraph (b) of section three law." hundred six of the business corporation 1 of 5 FILED: NEW YORK COUNTY CLERK 08/27/2020 12:36 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/27/2020 Plaintiff's counsel admits in paragraphs 7 and 8 of his affirmation in oppasition to the cross- 3. motion that Plaintiff failed to comply with CPLR 3215(g). He states that the service via service," Secretary of State was made on July 29, 2019, but that the "additional which is required by CPLR 3215(g) in order to enter a default judgment, was made on July 22, 2019. Because the CPLR specifically requires that additional service be made contemporaneous with or subsequent to service via the Secretary of State, Plaintiff has failed to make additional service at all. 4. Although the statute states that non-receipt by a defendant should not preclude entry of default judgment, that exception only applies where the Plaintiff properly serves the additional copy. That did not occur in this case; Plaintiff may not be permitted to enter a default judgment PLAINTIFF ACCEPTED THE ANSWER 5. The law is clear. "There was no default in answering, Plaintiff waived its objections to the untimeliness of defendant's answer by serving a reply to the counterclaims after rejecting the " late answer and moving for a default judgment Rossini v Shelter Rock Bldrs Excavating Corp (1st defeñdañts' LLC, 89 AD3d 467 Dept 2011). "Plaintiff's acceptance of answer, without default." objection, constituted a waiver of the late service and Pena-Vazquez v Beharry, 82 (1st AD3d 649 Dept 2011). A plaintiff that receives an untimely answer and subsequently files a reply to a counterclaim has waived its right to enter a default based on the untimely answer. 6. In this case, Moving Defendant ãñswcred, interposing a counterclaim, and served discovery demands on October 25, 2019. NYSCEF Doc # 4-5. Plaintiff replied to the counterclaim on November 13, 2019. NYSCEF Doc # 6. Plaintiff subsequently moved for default judgment against Moving Defendant on July 14, 2020. NYSCEF Doc # 9.After that, Plaintiff responded to Moving Defendant's discovery demands by mail by a document bearing an incorrect index 2 of 5 FILED: NEW YORK COUNTY CLERK 08/27/2020 12:36 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/27/2020 number, which Defendant rejected. Plaintiff protested that the index number was only Moving on the first page, NYSCEF Doc # 32, and then improperly e-filed another response to wrong Defendant's demands on NYSCEF, see Doc # 33-39. Moving Defendant objected to Moving this improper service of discovery responses pursuant to 22 NYCRR 202.5-b(j). NYSCEF Doc # 40. Plaintiff stated by letter to the Court, NYSCEF Doc # 43, that the documents were "accidentally" e-filed and requested that they be removed. Although certain documents were apparently removed because the e-filing system recognized that they contained confidential personal information, the discovery responses remain e-filed as of the time of this writing. 7. Plaintiff s insistence that Moving Defendant is in default, while responding to Moving Defendant's counter-claims and repeatedly serving responses to Moving Defendant's discovery demands, reveals that this action is indistinguishable from the First Department cases in which the Appellate Division held that other plaintiffs had waived their objections to untimely answers. Defendants' "disingenuous" 8. Plaintiff s counsel repeatedly refers to Moving arguments as in opposition, see paragraphs 10, 11, 14, yet he himself claims, disingenuously, that "no court rule performed." requires that [a rejection of a late answer] be Paragraph 19. Counsel has clearly neglected to refer to the case law cited in Moving Defendant's cross-motion. Moreover, his repeated improper service of responses - confidential discovery including electronically filing personal information in violation of explicit court rules - while a default quixotically pursuing judgment belies his belief in the merit of his own motion. 3 of 5 FILED: NEW YORK COUNTY CLERK 08/27/2020 12:36 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/27/2020 itis requested that Plaintiffs motion be that the cross- WHEREFORE, respectfully denied; motion of Defendant AK GLOBAL SUPPLY, INC. be granted; and that defendant AK GLOBAL SUPPLY, INC. be awarded such other and further relief as this Court deems just and proper. Dated: August 27, 2020 KOPELEVICH & FELDSHEROVA, P.C. Attomeys for Defendants AK GLOBAL SUPPLY IN 241 37th Stree , uit 39 Brooklyn, NY 1 32 718-332-0577 / By: David L df i 4 of 5 FILED: NEW YORK COUNTY CLERK 08/27/2020 12:36 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/27/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No.: 654092/2019 LIBERTY MUTUAL INS. CO. Plaintiff, -against- KENDON THOMAS, ET AL., Defendant AFFIRMATION INREPLY KOPELEVICH & FELDSHEROVA, P.C. Attomeys for Defendants AK GLOBAL SUPPLY INC 241 37th Street, Suite B439 Brooklyn, NY 11232 718-332-0577 Pursuant to 22 NYCRR 130-1.1, the undersigñed, an sticmay duly admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, th .^ñticñs coütsiñed in the annexed documents are not frivolous. Dated: August 27, 2020 Signature: .............. ..... ... ................................... Print Signer's Name: David Landfair TO: BURKE CONWAY & STIEFELD VIA NYSCEF 5 of 5