Weintraub v Yarmish

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Weintraub v Yarmish 2020 NY Slip Op 34117(U) December 10, 2020 Supreme Court, Kings County Docket Number: 515541/17 Judge: Lawrence S. Knipel 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 12/14/2020 03:42 PM NYSCEF DOC. NO. 49 INDEX NO. 515541/2017 RECEIVED NYSCEF: 12/14/2020 At an IAS Term, Part 57 of the Supreme Court of the State of New Yorlc, held in and for the County of Kings, at the Courtl1ouse, at Civic Center, Brooklyn, New York, on the 10 111 day of December, 2020. PRESENT: HON. LAWRENCE KNIPEL, Justice. - - - --- -- --- - - -- --- - - - - - - - - -- -- - -- - - - -- -X ARI WEINTRAUB, botl1 individually and derivatively on behalf of ZAP CELLULAR, INC., A& Y SALES AND MARKETING, INC., M..-\ZAL TECH MEDIA, INC., Plaintiff, DECISION AND ORDER Index No. 515541/17 - against - JACOB YARMISH, ZAP CELLULAR, [NC., A& Y SALES AND MARKETING, INC., MAZAL TECH MEDIA, INC., EZ ROAMER LLC, Mot. Seq. No. 3 EMANUEL Y ARMJSH, CHANA Y ARMISH, MICI-IAEL Y ARMISH, TOPLINE CONTRACTING, INC., .lOHN DOES 1-100 and ABC COMPANIES 1-100 (said names being fictitious and presently unknown to plaintiff), Defendants. - - -- - - - - - - - - - - - - - - - - - - - - - -- -- - -- -X 'fhe following e-filed papers read herein: NYSCEF#: Notice of Motion, Affirmation, and Exhibits Annexed _ _ Affirmation in Oppositio11 - - - - - - - - - - - Reply Affi1mation - - - - - - - - - - - - - - 40-42 44 46 Upon the foregoing papers, plaintiff Ari Weintraub, both individually and derivatively on behalf of Zap Cellular, Inc., A&Y Sales and Marketing, Inc., Maza! Tech Media, Inc. (collectively, plaintiff), moves, in effect, for leave pursuant to CPLR 2221 ( e), to restore this action to active status and, upon granting such leave, granting him his prior motion in Seq. No. l which was for leave to enter a default judginent against seven of the nine named de fondants; to wit, Jacob Yarmish, Chana Yarmish, Emmanuel Yarmish, EZ Roamer LLC, Maze! Tech Media, Inc., Topline Contracting, Inc. and ZAP Cellular, Inc. (collectively, the 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 12/14/2020 03:42 PM NYSCEF DOC. NO. 49 INDEX NO. 515541/2017 RECEIVED NYSCEF: 12/14/2020 seven named defendants). The seven named defendants, together with the two additional named defendants, A& Y Sales and Marketing, Inc., and Michael Yarmish (collectively with the seven na1ned defendants. defendants), oppose plaintiffs motion. By sh01t-fo1m order, dated Nov. 27, 2018 (the prior order), the Court denied plaintiffs prior motion in Seq. No. l and granted the initial branch of defendants' prior cross motion in Seq. No. 2 to dismiss the complaint pursuant to CPLR 3211 (a) (4) because, at that titne, the claims herein had been raised as part of the action and third-party action then pending in the United States District Court for tl1e Eastern District ofNew York (the district court) under Docket No. I 5-CV-6723 (PKC) (VMS) (NYSCEF #39). The prior order did not address the alter11ative branch of defendants' prior cross inotion in Seq. No. 2 \Vhich was for leave to serve and file their joint answer in the form annexed thereto as Exhibit G (NYSCEF #33). Twenty-two months later, the district court, by Memorandum & Order, dated Sept. 30, 2020, dismissed, for lack of subject matter of jurisdiction, all of the claims which, before their dismissal by the prior order, had been at issue in this action (see ZAP Cellular, Inc. v Weintraub, 2020 WL 5820319 [ED NY 2020] [NYSCEF #42] (the district court's dismissal order). Although the instant n1otion is deno1ninated as one for leave "to restor[ e] this action to active status,'' it is, in effect, a motion for leave to renew. CPLR 2221 ( e), which does not hnpose a time limit for 1nalcing a inotion for leave to renew, allows the court to reconsider a prior order when new facts are presented which were 11ot offered on the prior inotion and which, when considered, would change the prior determination (see Glicksman v Board of Ed/Cent. School Bd. o/Comsewogue Union Free School Dist., 278 AD2d 364, 365 [2d Dept 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 12/14/2020 03:42 PM NYSCEF DOC. NO. 49 INDEX NO. 515541/2017 RECEIVED NYSCEF: 12/14/2020 2000]). The district court's dismissal order which was issued subsequent to the prior order in this action constitutes sufficient grot1nds for the vacatur of the prior order. Upon vacatur of the prior order, the Court denies the re1naining branch of plaintiffs 1notion which is for leave to enter a default judg1nent against the seven na1ned defendants and further grants the alternative branch of defendants' prior cross motion in Seq. No. 2 which was for leave to serve and file their joint answer. As defendants (including the seven na1ned defendants) den1onstrated in their prior cross 1notion, they had a reasonable excuse for their delay in ii1terposing an a11swer. Further, the record is bereft of any ev-idence of willfulness on defendants' part, or that they intended to abandon their defenses, or that plaintiff was prejudiced by the delay (see CPLR 3012 [d]; Federal National v Williams, 187 AD3d 991, 991-992 [2d Dept 2020]; Settles v One West Bank, 186 AD3d 1551, 1553 f2d Dept 2020]). Accordingly, based on the foregoing, it is ORDERED that plaintiffs motion in Seq. No. 3 is granted solely to the extent that, upon renewal: (I) the prior order, dated Nov. 27, 2018, is vacated, and (2) the alternative branch of defendants' prior cross 1notion in Seq. No. 2 which was for leave to file and serve their joint answer is granted; and the re1uai11der of plaintiffs motion in Seq. No. 3 is denied; a11d it is further ORDERED that plaintiffs counsel is directed to electronically serve a copy of this decision and order vvith notice of e11try on defendants' cou11sel and to electronically file an affidavit of service thereof with the Kings County Clerk; and it is further ORDERED that defendants shall file ahd serve their joint answer, substantially in the for1u ann-exed to their prior cross inotion in Seq. No. 2 as Exhibit G thereto, within 20 days 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 12/14/2020 03:42 PM INDEX NO. 515541/2017 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 12/14/2020 after electronic service oftl1is decision and order with notice of entry by plaintiffs counsel on defendants' co11nsel. This constit11tes the decision and order of the Court. /'\ / Jus ice Lawrence Knipe! 4 4 of 4

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