Preview
FILED: NEW YORK COUNTY CLERK 10/25/2018 07:51 PM INDEX NO. 652333/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/25/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------- X
DirectMed Parts & Service, LLC., Index No.: 652333/18
Plaintiff,
AFFIRMATION IN
-against- OPPOSITION TO
PLAINTIFF'S MOTION
American Healthcare Technologies, Inc.,
Defendant.
________-_______________.. ....... ..
...-- X
Joseph A. Altman, Esq., an attorney duly admitted to practice before the
Courts of this State, affirms under the penalty of perjury as follows:
1. That your affiant is the Attorney for the Defendant, American Healthcare
Technologies, Inc., and as such is fully familiar with allof the facts and circumstances
had herein.
2. That this Affirmation is made in opposition to the Plaintiff's Motion.
3. That for the reasons set forth herein, the Plaintiff's motion must be denied.
4. That the Plaintiff's Motion must be denied, as to the Defendant, American
Healthcare Technologies, Inc., since the moving party, the Plaintiff, has not submitted
"proof of service of the summons and complaint, proof of the facts constituting the claim,
and proof of the defaulting party's default in answering or appearing (s_e_e CPLR 3215[f];
720)."
Allstate Ins. Co. v Austin, 48 AO3d 720, Atlantic Cas. Ins. Co. v RJNJ Services.
h 89 AD3d 649 (2nd Dept. 2011 ). In fact, the Plaintiff's complaint, which is not
annexed, is not even verified, since the purported verification is not notarized.
"proof"
5. The submitted in support of the complaint, based upon the
affirmation of the plaintiff's attorney, who claims no personal knowledge of the facts, is
without probative value. See Trawally v East Clarke Realty Corp., 92 AD3d 471 (1st
1 of 3
FILED: NEW YORK COUNTY CLERK 10/25/2018 07:51 PM INDEX NO. 652333/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/25/2018
Dept. 2012); Thelen LLP v Omni Contracting Co Inc., 79 AD3d 605 (1st Dept. 2010) /v
denied 17 NY3d 713 (2011). While an attorney's affirmation may serve as a vehicle to
introduce documentary evidence in support of the motion (see Alvarez v Prospect
Hospital, 68 NY2d 320 [1986]; Olan v Farrell Lines Inc.. 64 NY2d 1092 [1985]; Lewis v
Safety Discosal Svs. of Pa. Jric., 12 AD3d 324 [1st Dept. 2004]), with there nothing
herein being appended to this attorney's affirmation. More specifically, there is no
affidavit of someone with personal knowledge of the facts submitted and, with the
complaint being unverified, it does not establish any prima facie claim. While the
"quantum of proof necessary to support an application for a default judgment is not
exacting ...some firsthand confirmation of the facts forming the basis of the 'Claim must
proffered."
be Guzetti v City of New York, 32 AD3d 234,236 (1st Dept. 2006). The proof
submitted must establish a prima facie case. See Guzetti v City of New York, suora;
Silberstein v Presbyterian Hoso.. 95 AD2d 773 (2nd Dept. 1983). As such, "[w]here a
valid cause of action is not stated, the party moving for a default judgment is not entitled
default"
to the requested relief, even on Green v. Dolphy Constr. Co. Inc., 187 AD2d
635, 636 (2nd Dept. 1992). Nor is there proof of service of the Summons and
Complaint or instant motion upon Plaintiff as required by CPLR§3215(f),
CPLR§3215(g)(4)(i)(ii).
6. For these reasons, the Plaintiff's motion must be denied.
7. Next, the Plaintiff has not established that the process that was sent by
the Secretary of State was actually served upon the Defendant, see the Defendant's
Exhibit "A", since the receipt, as issued by the Secretary of State, is conspicuous by its
absence.
2 of 3
FILED: NEW YORK COUNTY CLERK 10/25/2018 07:51 PM INDEX NO. 652333/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/25/2018
WHEREFORE, itis respectfully requested that an Order be issued denying the
Plaintiffs motion.
Dated: Bronx, New ork
OctoberA, 2018
Joseph A. Altman, Esq.
3 of 3
Preview
FILED: NEW YORK COUNTY CLERK 10/25/2018 07:51 PM INDEX NO. 652333/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/25/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------- X DirectMed Parts & Service, LLC., Index No.: 652333/18 Plaintiff, AFFIRMATION IN -against- OPPOSITION TO PLAINTIFF'S MOTION American Healthcare Technologies, Inc., Defendant. ________-_______________.. ....... .. ...-- X Joseph A. Altman, Esq., an attorney duly admitted to practice before the Courts of this State, affirms under the penalty of perjury as follows: 1. That your affiant is the Attorney for the Defendant, American Healthcare Technologies, Inc., and as such is fully familiar with allof the facts and circumstances had herein. 2. That this Affirmation is made in opposition to the Plaintiff's Motion. 3. That for the reasons set forth herein, the Plaintiff's motion must be denied. 4. That the Plaintiff's Motion must be denied, as to the Defendant, American Healthcare Technologies, Inc., since the moving party, the Plaintiff, has not submitted "proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing (s_e_e CPLR 3215[f]; 720)." Allstate Ins. Co. v Austin, 48 AO3d 720, Atlantic Cas. Ins. Co. v RJNJ Services. h 89 AD3d 649 (2nd Dept. 2011 ). In fact, the Plaintiff's complaint, which is not annexed, is not even verified, since the purported verification is not notarized. "proof" 5. The submitted in support of the complaint, based upon the affirmation of the plaintiff's attorney, who claims no personal knowledge of the facts, is without probative value. See Trawally v East Clarke Realty Corp., 92 AD3d 471 (1st 1 of 3 FILED: NEW YORK COUNTY CLERK 10/25/2018 07:51 PM INDEX NO. 652333/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/25/2018 Dept. 2012); Thelen LLP v Omni Contracting Co Inc., 79 AD3d 605 (1st Dept. 2010) /v denied 17 NY3d 713 (2011). While an attorney's affirmation may serve as a vehicle to introduce documentary evidence in support of the motion (see Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Olan v Farrell Lines Inc.. 64 NY2d 1092 [1985]; Lewis v Safety Discosal Svs. of Pa. Jric., 12 AD3d 324 [1st Dept. 2004]), with there nothing herein being appended to this attorney's affirmation. More specifically, there is no affidavit of someone with personal knowledge of the facts submitted and, with the complaint being unverified, it does not establish any prima facie claim. While the "quantum of proof necessary to support an application for a default judgment is not exacting ...some firsthand confirmation of the facts forming the basis of the 'Claim must proffered." be Guzetti v City of New York, 32 AD3d 234,236 (1st Dept. 2006). The proof submitted must establish a prima facie case. See Guzetti v City of New York, suora; Silberstein v Presbyterian Hoso.. 95 AD2d 773 (2nd Dept. 1983). As such, "[w]here a valid cause of action is not stated, the party moving for a default judgment is not entitled default" to the requested relief, even on Green v. Dolphy Constr. Co. Inc., 187 AD2d 635, 636 (2nd Dept. 1992). Nor is there proof of service of the Summons and Complaint or instant motion upon Plaintiff as required by CPLR§3215(f), CPLR§3215(g)(4)(i)(ii). 6. For these reasons, the Plaintiff's motion must be denied. 7. Next, the Plaintiff has not established that the process that was sent by the Secretary of State was actually served upon the Defendant, see the Defendant's Exhibit "A", since the receipt, as issued by the Secretary of State, is conspicuous by its absence. 2 of 3 FILED: NEW YORK COUNTY CLERK 10/25/2018 07:51 PM INDEX NO. 652333/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/25/2018 WHEREFORE, itis respectfully requested that an Order be issued denying the Plaintiffs motion. Dated: Bronx, New ork OctoberA, 2018 Joseph A. Altman, Esq. 3 of 3