Rosenzweig v Gubner

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Rosenzweig v Gubner 2018 NY Slip Op 32393(U) September 26, 2018 Supreme Court, Kings County Docket Number: 522766/16 Judge: Debra Silber 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] KINGS COUNTY CLERK 09/26/2018 04:25 PM INDEX NO. 522766/2016 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 09/26/2018 SUPREME COURT OF THE STAtE OF NEW YORK COUNTY OF KINGS : PART 9 JOEL ROSENZWEIG and FAIGI~ ROSENZWEIG, DECISION I OR.DER Jl>laintiffs, ' -against- SIMON GUBNER a/k/a MOSHE GUBNER, 1225 50 1" STREET RESIDENCE ~RUST and 1225 50'" STREET LLC, Index No. 522t66/16 Motion Seq. No. 2, 3 Date Submitt~d: 7/26/18 Cal No. 47, 48! lf>etendants. i ~~~~~~~~~~~~--,~~~~~~~~x Recitation, as required by CPLR 2219(~, of the papers considered in the review of plaintiffs' motion for a default judgment and defendants' cross motion to dismiss. ! Papers! NYSCEF Doc. i 1 ! Notice of Motion, Affirmation and ~xhibits Annexed ......... . Notice of Cross Motion, Affirmatiorl and Exhibits .............. . Affirmation in Opposition and Reply ................................ .. 40-42 59-74 76-79 Upon the foregoing cited papers, the Decision/Order on these mdtions is i ! i ' as follows: This is a suit for wages by pjaintiffs, who claim they were home health;aides for Jacob (also know as Eugene) Gubiier, their grandfather/grandfather-in-law fqr three years commencing on or about Ap~il 1, 2010, without pay. The wage claims ~omprise the first four causes of action in th<i complaint. Plaintiffs also have claims in 1he complaint for imposition of a constrµctive trust (Fifth Cause of Action), unjust' enrichment (Sixth), and for breach (lf contract (Seventh). The premises at issue is a ' ' three-family house which was allegl;)dly owned by defendant 1225 50'" Street' ' Residence Trust in 2013 but was trknsferred to defendant 1225 50'" Street 1 of 12 L~C in 2015 [*FILED: 2] KINGS COUNTY CLERK 09/26/2018 04:25 PM NYSCEF DOC. NO. 80 INDEX NO. 522766/2016 RECEIVED NYSCEF: 09/26/2018 by Simon Gubner, who is alleged p have been the trustee of the trust. 1 Plaintiffs now seek a defaul\ judgment on the issue of liability, and an ,inquest on ! ! damages (although this is not men,ioned in the motion, which asks for the eotry of a ' ' 'i ; judgment), based upon defendant~' failure to answer the complaint. Defendants (all represented by one law firm) i oppo~e ' complaint or an extension of time the motion, and cross-move for i dismis~al of the ' tb answer. Defendants claim the action w$s started ! i ' ' in a failed attempt to stop a summi!iry holdover (eviction) proceeding in Housing Court, but the motion for a stay was deni~d. and all stays were lifted. A further atte~pt by i ! ' ·, plaintiffs to obtain a second Order phew Cause with a stay was declined by \he court, i and the action has been dormant since February 2017. It appears that plaintiffs were i ! ' evicted from the premises in the H¢using Court proceeding. Defendants contend in the ' ~otion that they reasonably believed the action had been abandoned. Now, served with a motion for a default judgment, defend~nts seek ' ' to dismiss the complaint in its entirety, pursuant to CPLR 3211 (a)(1), (5), (7).and (8). Defendants claim, with rega(d to CPLR 3211{a)(1), that documentary rvidence establishes their right to have the cpmplaint dismissed. With regard to ' (a)(5), defendants claim that CPL~ 3211 ' plainti~s' claims are barred by res judicata, colla,eral estoppel and by arbitration and award, to the extent the issues between Gubrner, the Trust and plaintiffs were resolved before a rabbinical court, that the plaintiffs' claims herein could have been raised and ' ' i ' ~djudicated in that arbitration proceeding,!and that the LLC is now the only owner of the premises and it did not enter into any agreement 'A copy of the deed is annexed as Exhibit L. It reflects that no consideiation was paid for this transfer of title in 2015.', Prior to this transfer, the trust was the titled owner since the year 2000 when Eugene Gubner as president of a corporation that ~ad owned it transferred it to the trust. · · 2 2 of 12 [*FILED: 3] KINGS COUNTY CLERK 09/26/2018 04:25 PM NYSCEF DOC. NO. 80 INDEX NO. 522766/2016 RECEIVED NYSCEF: 09/26/2018 with plaintiffs and thus is an improper party. With regard to 3211 (a)(8), deferdants ' ' claim the court lacks personal juris8iction over defendant Gubner and that sarvice was ! ! not properly effectuated on the oth¢r defendants (the Trust and the LLC). Plaintiffs ' ' i i i ; i ' reply that the cross motion was fileiJ late with respect to plaintiffs' motion, !ha~ the motion to dismiss is untimely, that ~ervice on all defendants was properly effectuated and that defendants have failed to furnish a reasonable excuse for their defaiJI! or a i meritorious defense to their action. Discussion This action was commenced: on December 22, 2016, by the purchase pf an I . ' ; index number and e-filing a summO:ns and verified complaint. Service of the ~ummons i !, and complaint had not been effect~ated before plaintiffs' obtained an order tq show I ; cause on the same day, signed De4ember 22, 2016, which required service qfthe order to show cause and the papers on Which it was based upon defendants' (non~xistent) ' i ' attorney.' That motion (for a stay or the eviction proceeding) was opposed by defendants' counsel (then only representing defendant LLC, the entity that was the I ; petitioner in the eviction proceeding~ and was denied on January 5, 2017. Service of the summons and \complaint was then effectuated on defenqant Gubner and defendant Trust on January 31, 2017 by personal service on Gubner in Israel pursuant to CPLR §313, and the affidavit of service was e-filed on Febr~ary 23, ' ' i 'Until jurisdiction is obtained Qver a defendant by service of process of a summons with notice or a summons: and complaint, the party does not have ati attorney, and technically, a defendaht's attorney cannot make an appearance ,for the defendant in the action. Thus, the qrder to show cause, signed by another judge of this court, should have required that ser\lice include service of the summons and c,omplaint and be made upon the defendants by person.al service, as the order to show 6ause was apparently intended to commence this action. ' 3 3 of 12 [*FILED: 4] KINGS COUNTY CLERK 09/26/2018 04:25 PM NYSCEF DOC. NO. 80 INDEX NO. 522766/2016 RECEIVED NYSCEF: 09/26/2018 2017 as Doc. No. 34, Exhibit C to plaintiffs' second order to show cause, wh1ph the ' ' I ! court declined to sign. While the altidav'1t of service should have been filed Within 20 ' days of.service as a separate item,! not as an exhibit to a motion, the courf_h8s the ' . i ' discretion to consider it properly fil~d nunc pro tune and elects to do so. Furt~er, defendants haven't alleged any violation of the rules for service in Israel or i for in the Hague Convention on a~ provided ' th~iI Service Abroad of Judicial and Extrajudicial . i I ' ' Documents (Nov. 15, 1965, 20 U.S',T. 361, 658 U.N.T.S. 163). NY law (CPLR 2001) i' ; i ! permits the court to disregard a "te4hnical infirmity" (See Ruffin v Lion Corp., ~ 5 NY3d I : 578 [2010]). The filing of a docum~nt as an exhibit to a motion in the efile sy$tem I . instead of as a separate document lilied "affidavit of service" is a technical infirmity, as i ' is filing it three days late. Service of the summons and!, complaint in this action was effectuated ' qn ' defendant 1225 50'" Street LLC on February 6, 2017 by service on the Secrelary of ' State pursuant to Limited Liability Company Law §303, and the affidavit of se(Vice was e-filed on February 23, 2017 as 004. No. 34, Exhibit C to plaintiffs' second orqJerto show cause, which the court declin<ld to sign. While the affidavit of service sh~uld have ' been filed within 20 days of service Bnd as a separate item, not as an exhibit ~O a motion, the court has the discretion lo consider it properly filed nunc pro tune :ilnd elects to do so. Thus, to the extent plaintiffs' motion must establish service on the defendants . ' as a condition precedent to an ordei granting them a default as to liability as i ~pains! : defendants for failing to answer the complaint, the court finds that the defend~nts were served and affidavits of service wer~ filed. Addressing the defendants' c!aim pursuant to CPLR 3211(a)(8) first, th<i court does not find that service was improper as movants allege. The affidavit of NQrman· ' 4 4 of 12 [*FILED: 5] KINGS COUNTY CLERK 09/26/2018 04:25 PM NYSCEF DOC. NO. 80 INDEX NO. 522766/2016 RECEIVED NYSCEF: 09/26/2018 Eisen dated April 24, 2018 submitted in opposition to the motion, which aver~ that he is ' ' ' the sole managing member of the LLC and he knows the LLC was not serve~' because ! ! he did ·not receive it is insufficient. !A process server's affidavit of service on ihe New ' ' York Secretary of State for a New york Limited Liability Company pursuant tt limited Liability Company Law §303 is a r~buttable presumption of proper service. To raise an ' ' I i ~earing with regard to the service of proc~ss, Mr. issue of fact and obtain a traverse ' ' Eisen would have had to have swa·rn to specific facts in his affidavit to rebut the ! statements in the process server's ~ffidavit (see Bennett v Patel Catskills, LLC, i ' ' AD3d 458 [2d Dept 2014]), which 120 ! ' ~e does not do. I . Next, with regard to service on Mr. Gubner and the Trust, notwithstanding the i ' i i fact that Simon/Moshe Gubner clai(ns through his attorney that he resides ou't of the ' ' United States, there is nothing in ' th~ motion papers that supports this claim. Mr. Eisen's statement in his affidavit th~! he knows Mr. Gubner lives in Israel, is df no help in the matter. A person may have more than one residence. While the contract with plaintiffs [Exhibit G] which, as to its ~ubstance, is not in admissible form, as discussed ' ' below, has an address for Gubner ih Israel, it also describes him as the "Landlord" of ' the subject premises in Brooklyn, aod the "landlord is the trustee and manag~r of the entity and every decision with respect to the entity's assets is in control of the •landlord alone." The deed annexed as Exhibit L states that Gubner lived at the subject premises ' ' in 2015 when he signed it as the Tr~stee. In any event, the court clearly has l,ong arm i : jurisdiction over him based upon his transaction of business in the State of N~w York with plaintiffs, which is the subject of the action (see Kreutterv McFadden Oiiborp., 71 NY2d 460, 467 [1988]; Lebel v Telltj, 272 AD2d 103, 103-04 [1st Dept 2000] ["CPLR 302 (a) (1) provides that a court ma~ exercise personal jurisdiction over a 5 5 of 12 [*FILED: 6] KINGS COUNTY CLERK 09/26/2018 04:25 PM NYSCEF DOC. NO. 80 INDEX NO. 522766/2016 RECEIVED NYSCEF: 09/26/2018 non-domiciliary who, in person or through an agent, transacts any business IA(lthin the ' ' ' ' I ! State provided that the cause of acttion arises out of the transaction of business"]). ' ' Lastly, defendants' claim thai service was improper as only one copy d,f the i I i ; summons ei.nd complaint were serv$d on Mr. Gubner, when he was served bqth as an individual and as the trustee of the Trust, is unavailing. (see Rasche/ v Rish, 69 NY2d i ' 694, 696-97 [1986] (holding that "th~ guiding principle must be one of notice "'asonably I i ' ' calculated, under all the circumstan'pes, to apprise interested parties of the pSndency of I I i the action and afford them an oppoitunity to present their objections," quoting:, Mullane v I I ' : Central Hanover Bank & Trust Co., ~39 US 306, 70 S. Ct. 652, 94 L. Ed. 865 t1950]). !, : : ' ; The court finds that service Qf process was proper, and defendants shQuld have i !, answered the complaint. A motion lor a default judgment must be made withih a year I of the expiration of defendants' ; tim~,' to answer the complaint. CPLR 3215(c), Here, ' plaintiffs' motion for a default judgment was filed on March 8, 2018 and thus was filed ! exactly a year after defendant LLC's time to .answer had elapsed, Despite the fact that the eras~ motion may have been served late, cau~ing plaintiffs to request an adjournment pf their motion in order to oppose it, plaintiffs had ' ' ample time to oppose it and were nqt prejudiced (see Bakare v Kakouras, 110 AD3d 1 838, 839 [2d Dept 2013] ["Contrary t6 the defendants' contention, the Supreme Court providently exercised its discretion ih accepting the plaintiffs' untimely opposition ' ' 1 papers., since the defendants were n ot prejudiced thereby"]; Mughal v Rajput, i ~06 ' AD3d 886, 887 [2d Dept 2013] ["Although the affidavit was not timely submitted, the plaintiffs had an opportunity to respohd to it, and were not prejudiced thereby"]). However, the defendants' cro$s motion to dismiss, which seeks relief pwsuant to CPLR 3211, which is a pre-answer r111otion, is untimely because it was not broYght 6 6 of 12 [*FILED: 7] KINGS COUNTY CLERK 09/26/2018 04:25 PM NYSCEF DOC. NO. 80 INDEX NO. 522766/2016 RECEIVED NYSCEF: 09/26/2018 within the time in which a responsiye pleading was due (see CPLR 3211[e]; fee Portilla ' ' I ! ' v Law Offices of Arcia & Flanagan,! 125 AD3d 956, 956-57 [2d Dept 2015] ("$upreme ' Court properly denied, as untimelyJ that branch of the appellants' motion whi~h was to ! ! ·, •i I ! ' dismiss the complaint pursuant to !pPLR 3211 (a)(1) insofar as asserted agar~st them, ' as it was not made within the time period in which the appellants were required to serve i an answer (see CPLR 3211 [e]), a~d no extension of time to make the motio~ was i I requested by the appellants or gra~ted by the court"]). ' I i i i I ' At the same time, given the i;trong public policy of disposing of cases ~n the merits, defendants have shown an ~xcusable law office failure in not timely irlterposing i an answer, based upon their belief !hat once defendant LLC had evicted the plaintiffs i '! I ; from the house, since they heard n~thing further from the plaintiffs, that this ~ction had I been abandoned by the plaintiffs. .~ ~urther, defendants have made a sufficient showing ' I ' ! of a meritorious defense by providir\g an affidavit of a member of the defenda'nt LLC, as ' well as the written contract betwee~ plaintiffs and Gubner and the arbitration award from the rabbinical court, which, while not in admissible form, are sufficient to!raise a I ' meritorious defense to the plaintiffs,': action and support the granting of the ' br~nch of the ' motion which asks for permission to answer the complaint. Indeed, the appel!ate courts routinely hold that a court's failure to consider a late motion to vacate a default on its merits is an abuse of judicial discretion, if a reasonable excuse for the default ',is : ! provided along with "a showing of a ;potentially meritorious defense" (see i Fefi~ v ' Thomas R. Stachecki Gen. Contracting, LLC, 107 AD3d 664, 666 [2d Dept 20;13]); CPLR 2005. Accordingly, the courti has determined that the defendants' moti6n should be considered on the merits in spite 'of it being untimely. CPLR 2004. With regard to defendants' cl~im that the complaint should be dismisse~ 7 7 of 12 [*FILED: 8] KINGS COUNTY CLERK 09/26/2018 04:25 PM NYSCEF DOC. NO. 80 INDEX NO. 522766/2016 RECEIVED NYSCEF: 09/26/2018 pursuant to 3211 (a)(1), based on ~ocumentary evidence, there is no docum~ntary ' ' I ! evidence annexed to the motion. lths black letter law that documentary evidehce must ' both qualify as documentary eviden',ce and be submitted in admissible form. i f- motion ! to dismiss a complaint pursuant to Cf:PLR 3211 (a)(1) will be granted if the "dopumentary i ; evidence resolves all factual issuesjas a matter of law, and conclusively disptjses of the plaintiff's claim" (Fortis Fin. Servs. ~ Fimat Futures ' USA, 290 AD2d 383, 383 ~2002] I ; ' ' [internal quotation marks omitted]; ~ee also Fontanetta v John Doe 1, 73 AD3tJ 78, 85 [2010]; Siegel, Practice Commenta~ies, McKinney's Cons Laws of NY, Boak ~B, CPLR I : C3211: 10, at 21-22). Documents wnere the contents are "essentially undeniable" !! include judicial records, mortgages, !deeds, contracts and other written agreen!lents ' ; i !, (Fontanetta, 73 AD3d at 84-85). La~tly, a complaint containing factual claims !flatly ' ' contradicted by documentary eviderlce should be dismissed (Well v Yeshiva Rambam, . 300 AD2d 580, 581 [2002]; ' Kennet~ R. v Roman Catholic Diocese of Brook/y~, 229 ' AD2d 159, 162 [1997], cert. deniedp22 US 967 [1997]). With regard to defendants' cl~im that the complaint should be dismissep pursuant to 3211 (a)(5), arbitration a~d award, collateral estoppel and res judicata (the categories in this statute which are d,laimed in the motion), there is no evidenc~ in admissible form annexed to the motibn which makes a prima facie case for diS:missal. The foreign language documents upbn which defendants rely are not translated in ' ' accordance with CPLR 2101 (b), instjtar as the translator's affidavit is attached': i ' separately from the translations and cioes not identify what document was translated nor does it set forth the translator's q,ualifications (see Rosenberg v Piller, 116 AD3d 1 1023, 1025-26 [2d Dept 2014]). Thu~, defendants have failed to present admissible evidence in support of their claim un~er CPLR 3211 (a)(5). 8 8 of 12 [*FILED: 9] KINGS COUNTY CLERK 09/26/2018 04:25 PM NYSCEF DOC. NO. 80 INDEX NO. 522766/2016 RECEIVED NYSCEF: 09/26/2018 In determining a motion to ~1smiss pursuant to CPLR 3211 (a)(7), the court's role 1 ' ' is ordinarily limited to determining Whether the complaint states a cause of a¢tion. I ! ' Frank v Daimler Chrysler Corp., 2~2 AD2d 118 [1 ' 1 Dept 2002]. On such a '11otion, the i ; I' ; i ' court must accept as true the factu~I allegations of the complaint and accord!the plaintiff all favorable inferences whjch may be drawn therefrom. Dunleavy v Hilton Hall Apartments Co., LLC, 14 AD3d 47~, 480 [2" Dept 2005]. See also Leon v Martinez, 84 I i ! ! i ' NY2d 83, 87-88; Guggenheimer v',Ginzburg, 43 NY2d 268, 275; Dye v Catholic Med. i Ctr. of Brooklyn & Queens, 273 A02d 193 [2d Dept 2000]. i The standard of review on aimotion pursuant to CPLR 3211 (a)(7) is not whether ! : ! the party has artfully drafted the pl~ading, "but whether deeming the pleading to allege ! ' I ' ' ' whatever can be reasonably implie~ from its statements, a cause of action c~n be sustained." Offen v lntercontinent~/ Hotels Group, 2010 NY Misc. LEXIS 251 '8 [Sup Ct 1 ; ' NY Co 2010] quoting Slendig, Inc. VThorn Rock Realty Co., ' 163 AD2d 46 [1F' Dept i 1990]; See also Leviton Manufactufing Co., Inc. v Blumberg, 242 AD2d 205 [J" Dept 1997]; Feinberg v Bache Halsey St~art, 61 AD2d 135, 137-138 [1'1 Dept 197~]; ' Edwards v Codd, 59 AD2d 148, 14$ [1" Dept 1977]. If the plaintiff can succekd upon any reasonable view of the allegatiqns, the complaint may not be dismissed. ,Dunleavy i ' v Hilton Hall Apartments Co. LLC, 14 AD3d 479, 480 [2d Dept 2005]; Board 6f Educ. of i ' City School Dist. of City of New RoJhelle v County of Westchester, 282 AD2d; 561, 562. The role of the court is to "determint;> only whether the facts as alleged fit within any cognizable legal theory" Dee v Rakower, 2013 NY Slip Op 07443 (2d Dept), citing Leon v Martinez, 84 NY2d 83 at 87 (1994). Finally, when considering a motion to dismiss for failure to state a cause of action, th~ pleadings must be liberally construed. Offen v Intercontinental Hotels Group, 2010iNY Misc LEXIS 2518. 9 9 of 12 [*FILED: 10] KINGS COUNTY CLERK 09/26/2018 04:25 PM NYSCEF DOC. NO. 80 INDEX NO. 522766/2016 RECEIVED NYSCEF: 09/26/2018 Herein, plaintiffs assert sever causes of action in the complaint, and t~e court . ' I ! will address them individually with regard to whether each states a cause of ~ction. It is ' noted that while Mr. Eisen as man~ging member of the defendant LLC contends it I ; never entered into any agreementsiwith plaintiffs, for the purposes of a 3211 I ~a)(7) ; ' motion, the pleadings, which allegel plaintiffs were employed by the defendanis ! (collectively), are deemed true • (se~I Miglino v Bally Total Fitness of Greater Af1. Y., Inc., i I 20 NY3d 342, 351 [2013] ["we mus\' accept facts alleged as true and interprej' them in I the light most favorable to plaintiff"j). ', The first four causes of actior are plaintiffs' wage claims. The first is tilled i ' "minimum wage," the second "overtime," the third "spread of hours under the NY Labor i . i i I i Law" and the fourth "failure to provi~e payroll notices under the NY Labor La,Y." Counsel's affirmation does not add/ess these claims, nor does Mr. Eisen's ! a~idavit. ' Therefore, these four causes of action may not be dismissed as defendants do not ! make a prima facie case in their motion papers. I The fifth cause of action is for the imposition of a constructive trust. "T~e I equitable remedy of a constructive trust may be imposed when property has ~een ' acquired in such circumstances that the holder of the legal title may not in goqd conscience retain the beneficial intefest. The elements of a cause of action to! impose a constructive trust are (1) the existenbe of a confidential or fiduciary relationship. (2) a promise, (3) a transfer in reliance th~reon, and (4) unjust enrichment." i (See qee v ' Rakower, 112 AD3d 204, 206 [2d D!=pt 2013].) This cause of action must be tjismissed as the complaint fails to allege these elements. Plaintiffs claim in their compl~int that they were of the belief that if they .lived with and cared for their grandfather for t~e rest of his life, they would be entitled to !'receive 10 10 of 12 [*FILED: 11] KINGS COUNTY CLERK 09/26/2018 04:25 PM NYSCEF DOC. NO. 80 INDEX NO. 522766/2016 RECEIVED NYSCEF: 09/26/2018 title to the apartment." However, th!'ir 2010 written agreement [Exhibit G] wit~ Mr. .' ' ' ' ' . Gubner specifically states that title tb the property is held by a trust set up by i Eugene/Jacob Gubner, and that th~y will be tenants and employees and will have no ' claim to ownership of this three-family house. Further, there is no such thing ~s title to ' I' . '' ' . an apartment in a property that is n~t a condominium. Finally, while the papers to not specify what the trust provided with jregard to who was entitled to the property! when I Jacob/Eugene Gubner died, any ' ' or'!'I representation to plaintiffs could not ' ha~e I modified the trust agreement or the ;contract. i The Sixth Cause of Action is for unjust enrichment. The motion is devqid of any i : mention of this claim. The Seventh ;jCause of Action is for breach of contract.·! i' Defendants claim, in their attorneys! affirmation, that these issues were all resolved by '' the rabbinical court and the '' plaintiff~' time to move tp vacate that decision has passed. This is addressed above in the disc~ssion concerning the branch of the motioh under ! ' ' CPLR 3211 (a)(5). However, couns,el does not address the breach of contract claim except to claim it was decided by th~ rabbinical court. Thus, viewing the caus!O of . ' action in the light most favorable to plaintiffs, it may not be dismissed. ' The branch of the cross moti9n which seeks permission to serve and ti\e an 1 answer to the complaint is granted. This is an action seeking monetary damages only, as the court has herein dismissed the plaintiffs' equitable claim for the imposition df a ' constructive trust, and the delay caJsed by defendants in failing to answer the! i : complaint has not been shown to have caused plaintiffs any prejudice (see Fe/ix v Thomas R. Stachecki Gen. Contrac4ing, LLC, 107 AD3d 664, 666 [2d Dept 2oh3]); Fried v Jacob Holding, Inc., 110 AD$d . 56, 60 [2d Dept 2013]; Smith v Waldbaum's . Supennarket, Inc., 99 AD2d 530 [2di Dept 1984]; see also Ippolito v TJC Dev.,! LLC, 83 ' . 11 11 of 12 [*FILED: 12] KINGS COUNTY CLERK 09/26/2018 04:25 PM NYSCEF DOC. NO. 80 INDEX NO. 522766/2016 RECEIVED NYSCEF: 09/26/2018 AD3d 57, 71-72 [2d Dept 2011]). Accordingly, it is ORDERED that plaintiffs' m~tion for a default judgment is denied, and. it is further ! ! ORDERED that the defendarts' cross motion is granted to the extent 1hat the , I ; i ' plaintiffs' Fifth Cause of Action is di~missed and defendants' time to interpose an answer is extended to the date whi~h is 30 days after service of a copy of thiJ order I with notice of entry, and it is further!' I ' ORDERED that the parties ~erein shall appear in the Intake Part for a I Preliminary Conference on Novemijer 14, 2018 at 9:30 a.m. However, no cohference i shall be held if defendants have not, served and filed an answer to the complfiint. . i This shall constitute the deci~ion and order of the court. i Dated: September 26, 2018 ENTER: Hon. Debra Silber, J.~.C. 12 ,-_-. _____ --- 12 of 12

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