Taubman v Cohen

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Taubman v Cohen 2017 NY Slip Op 33081(U) March 30, 2017 Supreme Court, Rockland County Docket Number: 031417/2016 Judge: Thomas E. Walsh II Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ROCKLAND COUNTY CLERK 03/31/2017 02:47 PM INDEX NO. 031417/2016 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 03/31/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND -----~------------------------------------------------------------X ERIC TAUBMAN, WILLIAM LAND DEVELOPMENT, MAYER AND FIRST NATIONAL Plaintiff, DECISION AND ORDER -againstIndex No.031417/2016 (Motion #1) ZOHAR COHEN A/K/A ZOHAR ABIKZER A/K/A ZOHAR ABIKSER COHEN, THOMAS WILLIAMS, AND BRAFFITS MOUNTAIN DEVELOPMENT CORP. Defendant(s). ------------------------------------------------------------------X Thomas E. Walsh, II, J.S.c. The following motion for a Judgment a/k/a Judgment COHEN, pursuant in the amount other relief demanded 1, were considered of Default against the Defendant ZOHAR ABIKZER monetary papers, numbered in connection with Plaintiff's ZOHAR COHEN A/K/A ZOHAR ABIKZER to the Civil Practice Law and Rules section of $2,020,000.00 as well as the Declaratory for a Judgment in the complaint: NUMBERED PAPERS NOTICE OF MOTION/AFFIRMATION OF MICHAEL PREVITO, ESQ./ AFFIDAVIT OF ERIC TAUBMAN/EXHIBITS(1-14) 1 MEMORANDUM OF LAW IN SUPPORT OF DEFAULT JUDGMENT 2 AFFIRMATION OF REGINALD H. RUTISHAUSER, EXHIBITS (A-B) 3 Upon the foregoing Defendant ZOHAR Accordiing to Plaintiff commercial properties Plaintiffs in Tuxedo a development COHEN A/K/A TAUBMAN monies from a business ZOHAR ABIKZER the venture in exchange Park, New York. called Braffits ESQ. IN OPPOSITION/ papers, the Court now rules as follows: This is an action to recover and all began A/K/A Mountain between ZOHAR ABIKSER as a real estate for monies and the forfeiture Plaintiff venture of an investment avers that the business in the State of Utah. 1 1 of 4 investment Extensive venture Plaintiffs COHEN .. for three property of then rolled into litigation has occurred [*FILED: 2] ROCKLAND COUNTY CLERK 03/31/2017 02:47 PM NYSCEF DOC. NO. 133 INDEX NO. 031417/2016 RECEIVED NYSCEF: 03/31/2017 in this matter in New Jersey, in Federal Court, in Nassau County Supreme Court and in the instant action in Rockland County Supreme Court. Plaintiffs request a declaratory judgment granting them fifty (50%) ownership rights of Cohen Braffits Estates Development, LLC (hereinafter CBED) and the underlying property and a monetary judgment in the amount of $2,020,000.00. The action was commenced against Defendant ZOHAR COHENon October 15, 2015 by the filing of a Summons and Complaint in the County of Nassau (Index # 605266/15). The corporate Defendants were served through the Secretary of State of New York on August 24,2015 pursuant to Business Corporation Law 9306 and Defendant WILLIAMS was served on August 31, 2015. Affidavits of service (included with the moving papers) indicate that the Summons with Notice was served upon Defendant ZOHAR COHEN on September 3, 2015 pursuant to Civil Practice Law and Rules 9 308(4) (nail and mail). According to Plaintiff, a lawyer named George Cotz filed a Motion to Dismiss, which was originally rejected by the Clerk in Nassau County and was again filed on September 21, 2015.1 Plaintiff's counsel avers that Defendant has not answered, moved, requested an extension of time, or otherwise responded to Plaintiff's pleading. The time to appear and answer, then, has expired [CPLR 9 320(a)]. Therefore, the motion for default shall be granted. The Court will further note that Plaintiff gave notice of the instant application to Defendant, and although there are affidavits of service provided attesting to the fact that all Defendant received such notice, no opposition was received. Attorneys forthe Defendant CBEDoppose the default motion on the limited issue of any monetary or declaratory judgment because this is a multi-party litigation and the entry of judgment should be deferred until trial or following trial among the non-defaulting parties. Defendant CBEDavers that the request that Plaintiff has made is prejudicial to them as they have appeared and answered and controverted material allegations of Plaintiff's complaint and Plaintiffs counsel indicates that the September 21,2015 motion was "rejected," but it is unclear by whom. A motion that was rejected appears as Doc. #9 in the NYSCEF system, but there is no document to view and the status section states "Returned for Correction." The subsequent document (#10) is a Memorandum of Law in Support of the Motion to Dismiss and was filed September 21,2015. Documents #5 through 7 in the NYSCEF system to have been deleted and state "error" under the status section. I 2 2 of 4 [*FILED: 3] ROCKLAND COUNTY CLERK 03/31/2017 02:47 PM NYSCEF DOC. NO. 133 INDEX NO. 031417/2016 RECEIVED NYSCEF: 03/31/2017 have also raised counterclaims to which the granting of a monetary judgment or a declaratory judgment would effect. Specifically, Defendant CBED argues that Plaintiff's request is premature and improperly requests a declaratory judgment that the Plaintiffs own fifty percent (50%) of CBEDor direct fifty percent (50%). Pursuant to Civil Practice Law and Rules 9 3125(d)where one party in a multi- party litigation has defaulted, the Court can defer the entry of judgment on liability and damages to until the time of or following the trial or other disposition of the action against the defendants who have answered. The default itself concedes liability, but not damages, which allows the defaulter the right to contest atthe damages trial. Since the defaulting defendants may have a continuing interest in the case despite their default, they must be notified about the default order pursuant to Civil Practice Law and Rules 9 3125(d). However, since the party defaulted service cannot be made by mailing the order, and must be served on the defaulter in the same manner as a summons. Nonetheless, the statute allows the court to relieve the plaintiff of that obligation and direct the manner of service. Based on the foregoing, Plaintiff's motion for default against Defendant ZOHAR COHENA/K/A ZOHARABIKZER A/K/A ZOHARABIKSERCOHENis granted as to the default and deferred as to the monetary judgment and declaratory judgment. be deferred to the time of trial between the non-defaulting The issue of damages will Defendants and the Plaintiff. Plaintiff is directed to serve Defendant ZOHAR COHENA/K/A ZOHAR ABIKZER A/K/A ZOHAR ABIKSERCOHENwith the instant Decision and Order of this Court pursuant to Civil Practice Law and Rules 9 308(1), (2) or (4) at all known addresses for the Defendant. Accordingly, it is hereby ORDERED that Plaintiff's Notice of Motion for an Order pursuant to CPLR 9 3215 is granted in part and denied in part; and it is further ORDERED that the determination of the amount of damages and a declaratory judgment are deferred until the time of trial between the Plaintiffs and the non-defaulting Defendants; and it is further ORDERED that Plaintiff shall serve Defendant ZOHAR COHEN A/K/A ZOHAR ABIKZERA/K/A ZOHARABIKSER COHENwith the instant Decision and Order pursuant to Civil 3 3 of 4 [*FILED: 4] ROCKLAND COUNTY CLERK 03/31/2017 02:47 PM NYSCEF DOC. NO. 133 INDEX NO. 031417/2016 RECEIVED NYSCEF: 03/31/2017 Practice Law and Rules 9 308(1), service for same and the certified (2) or (4). Plaintiff is to provide the Court with receipt cards may be e-filed through Affidavits the NYSCEF system within ten (10) days of service. The foregoing constitutes the Decision and Order of this Court on Motion #1. Dated: New c)~ew York . March , 2017 HON. THOMAS E. WALSH, II Justice of the Supreme Court To: MICHAEL PREVITO, ESQ. Attorney for Plaintiff (via e-file) KANTROWITZ GOLDHAMMER and GRAIFMAN Attorney for CBED (via e-file) ZOHAR COHEN Defendant 29 Dolson Road Monsey, New York 10952 ZOHAR COHEN 180 Franklin Turnpike Mahwah, New Jersey 07430 RIKER, DANZIG, SHERE (via e-file) 4 4of 4 of

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