717 E. Tremont Ave, L.L.C. v Akuoko

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717 E. Tremont Ave, L.L.C. v Akuoko 2020 NY Slip Op 30104(U) January 9, 2020 Supreme Court, New York County Docket Number: 650134/2019 Judge: Debra A. James 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] NEW YORK COUNTY CLERK 01/13/2020 02:58 PM INDEX NO. 650134/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/13/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: IAS MOTION 59EFM PART HON. DEBRA A. JAMES Justice ---------------------------------------------------------------------------------X INDEX NO. 717 EAST TREMONT AVE, L.L.C., 650134/2019 MOTION DATE Plaintiff, 12/17/2019 MOTION SEQ. NO. 003 -vFORSTER AKUOKO and BEATRICE AKUOKO ORDER - INTERIM Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 16, 17, 18, 19, 20 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT ORDER Upon the foregoing documents, it is WHEREAS, this matter having come on before this court on December 17, 2019, on motion of the defendants Forster K. Akuoko and Beatrice defendants, Akuoko to vacate a default judgment arguing that this court lacks personal against jurisdiction over the defendants, and plaintiff having appeared by David Wood, Esq. and the defendants pro se having appeared, and, pursuant to CPLR to 4212, the court having on its own motion determined consider the appointment of a referee to hear and report, appearing to the court that an appointment is appropriate, and it it is now hereby ORDERED that a Judicial Hearing Officer ( "JHO") or Special Referee shall be designated to hear and report to this court on 650134/2019 717 EAST TREMONT AVE, L.L.C. vs. AKUOKO, FORSTER K Motion No. 003 1 of 4 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 01/13/2020 02:58 PM NYSCEF DOC. NO. 24 INDEX NO. 650134/2019 RECEIVED NYSCEF: 01/13/2020 the following individual issues of fact, which are hereby submitted to the JHO/Special Referee for such purpose: ( 1) issue whether the teenage son of defendants was served with process and whether such son was "a person of suitable age and discretion" pursuant to CPLR 308(2); and it is further ORDERED that the powers of the JHO/Special Referee shall not be limited beyond the limitations set forth in the CPLR unless otherwise indicated; and it is further ORDERED that this matter is hereby referred to the Special Referee Clerk (Room 119, 646-386-3028 or spref@nycourts.gov) for placement at the earliest possible date upon the calendar of the Special Referees Part (Part SRP), which, in accordance with the Rules of that Part (which are posted on the website of this court at www.nycourts.gov/supctmanh at the "References" link ) , assign this matter at the initial appearance to an shall available JHO/Special Referee to hear and report as specified above; and it is further ORDERED that counsel and defendants pro se shall immediately consult one another, with the assistance of the principal court attorney of IAS Part 59, and counsel for plaintiff shall, within 15 days from the date of this Order, submit to the Special Referee Clerk by fax (accessible at (212-401-9186) the or "References" e-mail link on containing all the information called for 650134/2019 717 EAST TREMONT AVE, L.L.C. vs. AKUOKO, FORSTER K Motion No. 003 2 of 4 an the Information court's Sheet website) therein and that, Page 2 of 4 as [*FILED: 3] NEW YORK COUNTY CLERK 01/13/2020 02:58 PM INDEX NO. 650134/2019 NYSCEF DOC. NO. 24 soon as RECEIVED NYSCEF: 01/13/2020 practical thereafter, the Special Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of the matter upon the calendar of the Special Referees Part; and it is further ORDERED that the parties shall appear for the reference hearing, including with all witnesses and evidence they seek to present, and shall be ready to proceed with the hearing, on the date fixed by the Special Referee Clerk for the initial appearance in the Special Referees Part, subject only to any adjournment that may be authorized by the Special Referees Part in accordance with the Rules of that Part; and it is further ORDERED that, except as otherwise directed by the assigned JHO/Special Referee for good cause shown, the trial of the issue(s) specified above shall proceed from day to day until completion and counsel must arrange their schedules and those of their witnesses accordingly; and it is further ORDERED that any motion to confirm or disaffirm the Report of the JHO/Special Referee shall be made within the time and in the manner specified in CPLR 4403 and Section 202.44 of the Uniform Rules for the Trial Courts; and it is further ORDERED that, unless otherwise directed by this court in any Order that may be issued together with this Order of Reference to Hear and Report, the issues presented in any motion identified in the first paragraph hereof shall be held 650134/2019 717 EAST TREMONT AVE, L.L.C. vs. AKUOKO, FORSTER K Motion No. 003 3 of 4 in abeyance pending Page 3 of4 [*FILED: 4] NEW YORK COUNTY CLERK 01/13/2020 02:58 PM INDEX NO. 650134/2019 NYSCEF DOC. NO. 24 submission RECEIVED NYSCEF: 01/13/2020 of the Report of the JHO/Special Referee and the determination of this court thereon; and it is further ORDERED that counsel are directed to appear in IAS Part 59, Room 331, 60 Centre Street, on April 21, 2020, 9:30 PM for preliminary conference. DECISION In his supporting affidavit, defendant Forster Akuoko raises an issue of fact whether his teenage son, with whom process was purportedly left, is "a person of suitable age and discretion" under CPLR 308(2), which must be resolved at an evidentiary hearing. See Chi v Miller, 63 Misc3d 354, 358-360 (Sup Ct. Queens Co. 2019). 1/9/2020 E DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED D A A. JA E , J.S.C. NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 650134/2019 717 EAST TREMONT AVE, L.L.C. vs. AKUOKO, FORSTER K Motion No. 003 4 of 4 D 0 OTHER REFERENCE Page 4 of4 a

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