Goldenberg v Friedman

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Goldenberg v Friedman 2018 NY Slip Op 33972(U) May 2, 2018 Supreme Court, Rockland County Docket Number: 034866/2016 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 05/04/2018 09:28 AM NYSCEF DOC. NO. 208 INDEX NO. 034866/2016 RECEIVED NYSCEF: 05/04/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ----------------------------------------------------------x Eugene Goldenberg, Universal Steeplejack Ma ste r Rigger, LLC and Seth Eisenberger Plaintiff(s) DECISION & ORDER -against- Chaim M. Friedman and Brewer Holdings, LLC, Index No. : 034866/2016 Motion # 8 - MG and MD DC - N Adj: 6/6/18 Defendant(s) ------------------------------------------------------------------x Th omas E. Walsh II, J.S.C. The following papers, num be red 1-4 - were cons idered in connection with Pla intiff Seth Eisenberger's Notice of Motion for an Order ( 1) granting a defau lt j udgment against Defendant Brewer Holdings, LLC for failure to timely answer the complaint, (2) granting Pla intiff Seth Eisen berger, Esq. a protective order and a reta in ing li en against all documents in his possession, (3) sanctioning Defendant's counsel or record Jeremy Rosenberg, Esq. for failure to appear before th is Court on March 1, 2018 as a schedu led court conference and ( 4) for such other and furt her rel ief as the Court deems just and equitable: NUMBERED PAPERS Notice of Motion ( Motion #8)/Affirmation of Seth Eisenberge r, Esq./ Exh ibi ts (A-B) 1 Affirmation of Michael P. O'Co nnor, Esq. in Opposition/Affidavit of Cha im Friedman/Exhibits (A- B) 2 Affirmation of Jeremy Rosenberg, Esq. 3 Affirmation of Seth Eisenberger, Esq in Rep ly 4 Plaintiff, pro se, Seth Eisenberger, Esq. ha s fil ed the instant motion seeking a default judgment against Brewer Holdings, LLC for the failure to respond. The action was commenced by the filin g of a Summons and Comp laint, filed with the Rockland County Clerk 1 of 4 [*FILED: 2] ROCKLAND COUNTY CLERK 05/04/2018 09:28 AM NYSCEF DOC. NO. 208 INDEX NO. 034866/2016 RECEIVED NYSCEF: 05/04/2018 on November 8, 2016. The affidavit of se rvice attests that the Defendant Brewer Holdings, LLC was served on November 9, 2016 by serv ing the Secretary of State. Defendant Chaim Friedman was served on December 8, 2016 pursuant to Civil Practice Law and Rules§ 308( 2) ( se rv ice of his son, Moshe). Defendants Friedman and Brewer Holdings, Inc. t hrou gh the ir then counsel, Jeremy Rosen berg, Esq. filed a pre-answer motio n to dismiss on January 24, 2017. 1 On Ma rch 30, 3017 Mr. Rosenberg subm itted a St ipu lation (Doc # 33) indicat ing that he was withdrawing the aforementioned pre answer motion to dismiss. Despite this withdrawal, no answer was filed by Mr. Rosenberg on beha lf of Defendants Friedman and Brewer Holdings, LLC. On April 21 , 201 7, Seth Eisenberger, Esq. filed an amended Complaint (Doc. # 34). Aga in, Jeremy Rosenberg, Esq . fi led a pre-answe r mot ion to dismiss on behalf of Defendants Friedman and Brewer Holdings, LLC. Whi le t he Cou rt's decision on Defendants motion to dismiss was pending extens ive discovery and resultant motion pract ice occurred. On Jan uary 5, 2018 the Court issued a Decision and Order addressing motions # 3 (the pre -answer motion to dis m iss fi led in June 2017) and the subsequent discovery compliance and re lated re lief motions (Motions# 4, 5 and 6). Seth Ei senberger, Esq . fi led a Notice of Entry on January 12, 2018. Neither Defendant Friedman o r Brewer Holdi ngs, LLC filed a timely answer after the filing of the Notice of Entry. Defendants hired attorney Michael O'Connor, who filed a Notice of Appearance on their beha lf on January 31, 20 18. In a separate Decision the Court has already addressed the issues that Attorney O'Connor encoun tered in obta ining consent of Jeremy Rosenbe rg, Esq. to withdraw as counsel for Defendants Friedman and Brewer Holdings, LLC. The Cou rt in it's Decision relieved Jeremy Rosenberg, Esq. and granted Michael O'Connor's application ton t o appear on beha lf of the Defendants. I n that same Decision the Court denied the Defendants application to extend time to file an answer. Therefore, as the Defendants Friedman and Brewer Ho fdings, LLC have failed to timely file an answer, the Plaint iff Seth Eisenberger has sought a defau lt j udgment. 1 The Court notes that despite the filing of a motion to dismiss by Jeremy Rosenberg, Esq. on January 24, 2017, Mr. Rosenberg did not file a otice of Appearance on behalf of the Defendants. 2 2 of 4 [*FILED: 3] ROCKLAND COUNTY CLERK 05/04/2018 09:28 AM NYSCEF DOC. NO. 208 INDEX NO. 034866/2016 RECEIVED NYSCEF: 05/04/2018 In op position Defendants assert that Plai ntiff Eisenberger's application for a default j udgm ent is "un necessary" and "redu nda nt. " Further, Defendants su bm it t hat their m otio n to extend time was pend ing at the tim e that Pla intiff filed the instant motion. Upon conside ration of t he arguments ra ised by the pa rties and the Court's den ia l of the Defendant's motion to extend time to fil e an answer (Motion # 7) whi ch is being issued sim ultaneously, the Pla intiff's motion for a default judgme nt is granted. As to Plaintiff's motion fo r protective, the Court first notes t hat Set h Eisenberger, Esq . was previously disqualified from representing the Plaintiffs. In his instant application he argues th at t he documents sought by Defendants are communications between plaintiffs and their at torneys in which they assisted in t he instan t liti gation and the "underlying litigat ion ." Th e Plaintiff, Mr. Eisenge rger is attempting to invoke t he attorney-cli ent privi lege as to these documents on behalf of the other Plaintiffs, for whom he was disqualified from representing. As such, Plaint iff Eisenberge r's app lication is denied as improper. The Court has also considered Pl aintiff Ei sen berg er's application to sanction t he Defendant's former attorney, Jeremy Rosenberg, Esq. for fa ilu re to appear on March 1, 2018 at a scheduled court conference an d in the Court's discretion that applicat ion is also den ied . Upon the foregoing papers, ORDERED that Plaintiff's Not ice of Motion (Motion #8) is granted in part and denied in part con sistent with the Court's Decision; and it is further ORDERED that the pa rt ies are to appea r for a previou sly schedu led appearance on WEDNESDAY JUNE 6 , 2018 at 9:30 a .m. Th e forego ing constitutes the Deci si on and Ord er of this Court on Motion #8 . Dated: New ~New York May ~2018 Justice of the Supreme Court 3 3 of 4 [*FILED: 4] ROCKLAND COUNTY CLERK 05/04/2018 09:28 AM NYSCEF DOC. NO. 208 INDEX NO. 034866/2016 RECEIVED NYSCEF: 05/04/2018 TO: MARKJ. KURZMANN, ESQ. Attorney for Plaintiffs (via e-file) SETH EISENBERGER, ESQ. Plaintiff, Pro Se (via e-file) MICHAEL P. O'CONNOR, ESQ. LAW OFFICES OF MICHAEL P. O'CONNOR, Esq. Incoming Attorney for Defendants FRIEDMAN and BREWER HOLDINGS, LLC (via e-fi le) JEREMY ROSENBERG, ESQ. Outgo ing Attorney fo r Defendants FRIEDMAN and BREWER HOLDINGS, LLC (via c-ti le) 4 4 of 4

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