Dlugash v Polonia Towers LLC

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Dlugash v Polonia Towers LLC 2021 NY Slip Op 32553(U) December 2, 2021 Supreme Court, New York County Docket Number: Index No. 653540/2020 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. [* 1] INDEX NO. 653540/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 12/02/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA JAMES Justice ----------------------------------------------------------------- ----------------X ALAN DLUGASH, Plaintiff, 59 653540/2020 INDEX NO. MOTION DATE 11/30/2021 MOTION SEQ. NO. 004 005 006 - V - POLONIA TOWERS LLC,GERARDO SANCHEZ, and FREDERICK CAINS, ESQ., DECISION + ORDER ON MOTION Defendants. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 78, 82, 83, 84, 85, 86, 87, 89, 90 were read on this motion to/for REARGUMENT/RECONSIDERATION The following e-filed documents, listed by NYSCEF document number (Motion 005) 92, 93, 94 were read on this motion to/for REARGUMENT/RECONSIDERATION The following e-filed documents, listed by NYSCEF document number (Motion 006) 95, 96, 97, 98, 99, 100,101,102,103,104,105,106,107,108 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD. ORDER Upon the foregoing documents, it is ORDERED that the motions of defendant Gerardo Sanchez (motion sequence numbers 004 and 005) for leave to reargue/renew the motion to vacate his default in answering the complaint and to disqualify Kaitlin Doran, Esq., as attorney for plaintiff and the cross motion of the plaintiff for sanctions against defendant Gerardo Sanchez (motion sequence number 004) are denied; and it is further ORDERED that the motion to vacate the default in answering the complaint of defendant Frederick Cains, Esq. 653540/2020 DLUGASH, ALAN vs. POLONIA TOWERS LLC Motion No. 004 005 006 1 of 7 (motion Page 1 of 7 [* 2] INDEX NO. 653540/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 12/02/2021 sequence number 006) is held in abeyance and the issue of whether the summons and complaint were properly served upon such defendant is referred to a Special Referee to hear and report pursuant to CPLR 4320; and it is further This matter November 30, Esq. and 2021, the having come on before this court on on motion of the defendant Frederick Cains, plaintiff Alan Dlugash having appeared by Kaitlin S. Doran, Esq., Esq.; the defendant Frederick Cains, Esq., having appeared by pro se; and the defendant Gerardo Sanchez, having appeared prose, pursuant to CPLR 4212, the court having on its own motion determined to consider the appointment of a referee to hear and report, and it appearing to the court that an appointment on consent is appropriate, 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 the following individual issues of fact, which are hereby submitted to the JHO/Special Referee for such purpose: the issue of whether personal defendant Frederick Cains, is, jurisdiction was Esq. obtained over pursuant to CPLR 308(2), the issue whether service of that process was effectuated upon defendant Frederick Cains, Esq. by deliver of the summons and complaint L. by purportedly residence of process named server "Elardo John Gomez", at Hudak the upon actual a doorman, place of defendant Frederick Cains, Esq.; and it is further 653540/2020 DLUGASH, ALAN vs. POLONIA TOWERS LLC Motion No. 004 005 006 2 of 7 Page 2 of 7 [* 3] INDEX NO. 653540/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 12/02/2021 ORDERED that the powers of the JHO/Special Referee shall not be limited beyond the limitations set forth in the CPLR; and it is further ORDERED that this matter is hereby referred to the Special Referee Clerk (Room 119, 64 6-3 8 6-3 02 8 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 for the plaintiff and prose defendant Frederick Cains, Esq. shall immediately consult with each other, (and may submit the standard request for conference form [59nyef@nycourts.gov] principal counsel court and attorney convene to for plaintiff shall, the with Stacy Osborne, undersigned), within fifteen and (15) Esq., thereafter, days from the service of this order with notice of entry, submit to the Special Referee Clerk by fax (212-401-9186) or e-mail an Information Sheet (accessible at containing all soon as the the practical "References" link on information called for thereafter, the Special the court's website) therein and that, Referee Clerk as shall advise counsel for the plaintiff and pro se defendant Frederick 653540/2020 DLUGASH, ALAN vs. POLONIA TOWERS LLC Motion No. 004 005 006 3 of 7 Page 3 of 7 [* 4] INDEX NO. 653540/2020 NYSCEF DOC. NO. 112 Cains, RECEIVED NYSCEF: 12/02/2021 Esq. 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, 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 submission paragraph of the hereof Report shall of the be held in JHO/Special abeyance Referee pending and the determination of this court thereon; and it is further ORDERED that any motion to confirm or disaffirm the Report of the Special Referee shall be made, by show cause order, within the time and in the manner specified in CPLR 4403 and Section 202.44 of the Uniform Rules of the Trial Courts, and 653540/2020 DLUGASH, ALAN vs. POLONIA TOWERS LLC Motion No. 004 005 006 4 of 7 Page 4 of 7 [* 5] INDEX NO. 653540/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 12/02/2021 further proceedings with respect to the motion of defendant Frederick Cains, Esq., pursuant to CPLR 5015(a) (1), shall be heard with respect to such motion seeking vacatur with the oral argument on the motion to confirm or disaffirm; and it is further ORDERED that upon filing of the standard request for conference form (59nyef@nycourts.gov), counsel for plaintiff and the prose defendants Cains and Sanchez themselves are directed to appear for oral argument via Microsoft Teams, no less than two days and not more than five days before the return date specified in the show cause order to confirm the Report of the Special Referee with respect to the traverse hearing; and it is further ORDERED that oral argument on the application to confirm/disaffirm the Report of the Special Referee, as well as continued oral argument on the application of defendant Cains to vacate his default shall proceed on such return date. DECISION With respect to reargument of his prior motion to vacate his default, to date, defendant Sanchez has not offered any excuse, let alone a reasonable one, for his failure to answer the complaint within the time frame set forth in the Stipulation dated November 18, 2020, which was signed, on his behalf, by his then attorney J. R. Skrabanek, Esq. 653540/2020 DLUGASH, ALAN vs. POLONIA TOWERS LLC Motion No. 004 005 006 5 of 7 Page 5 of 7 [* 6] INDEX NO. 653540/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 12/02/2021 As for renewal, this court credits the statements in the affirmation in opposition of plaintiff's counsel dated September 10, 2021, that all times she affixed her signature to all affirmations that she docketed in this case. She is correct that electronic signatures are permitted under CPLR 2016. Martin v Portexit Corp, 98 AD3d 63, See 65-66 (1st Dept 2012). Therefore, contrary to defendant Sanchez's contention, this court was correct to consider same. However, there being no grounds to sanction defendant Sanchez, plaintiff's cross motion in that regard shall be denied. On his motion to vacate the default judgment entered against him, defendant Cains, Esq., argues that this court lacks subject matter jurisdiction as the real estate in question is located in Orange, not New York County. In support, moving defendant Cains cites Katzen v Central Park Towers, Inc., 207 Misc 181 (Sup Ct Bronx County). Assuming for the purpose of argument at this juncture that the instant dispute concerns adjudication of an interest in real property, moving defendant misreads such decision. In Katzen, the trial court granted defendants motion to change the place of trial (i.e., venue) pursuant to section 183 of the Civil Practice Act (now CPLR § 507) . The issue of venue does not implicate the subject matter jurisdiction of this court. See Shonting v Facilities Development Corporation, 223 AD2d 587 653540/2020 DLUGASH, ALAN vs. POLONIA TOWERS LLC Motion No. 004 005 006 6 of 7 (2d Dept 1996). Page 6 of 7 [* 7] INDEX NO. 653540/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 12/02/2021 However, this court determines that defendant Cains has raised an issue of fact with respect to whether this court has Contrary to plaintiff's personal jurisdiction over him. argument, NYCTL 1998-1 Trust & The Bank of New York v Rabinowitz, 7 AD3d 459 (1 st Dept 2004), supports defendant Cain's position. In NYCTL 1998-1 Trust, the court found that defendant's statements that there was no male named Randy Rabinowitz at his residence and that he knew of no person in the residence fitting the description contained in the affidavit were sufficient to refute the prima facie evidence of proper service by way of the affidavit of the process server submitted by plaintiff. So too here, the statement under oath of defendant Cains that there was no doorman named "Elardo Gomez" working at his residence on the date and time in question is no mere conclusory denial of receipt, but raises an issue of fact as to the veracity of the affidavit of the process server. Therefore, the "threshold issue of personal service" must be resolved "with a traverse hearing". NYCTL 1998-1 Trust, 7 AD3d at 460. J)- ~ ,d - } ~ 20211202140608DJAMESC6BDE138C2C647089BBA36FA27AD31BA 12/2/2021 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: DEBRA JAMES, J.S.C. ~ CASE DISPOSED GRANTED • NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 653540/2020 DLUGASH, ALAN vs. POLONIA TOWERS LLC Motion No. 004 005 006 7 of 7 • 0 OTHER REFERENCE Page 7 of 7

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