FILED: QUEENS COUNTY CLERK 05/19/ :21 PM INDEX NO /2015 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 05/19/2017

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1 CIVIL COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS NILUFAR CHOWDHURY, -against- EDITH CHESTER, and EJ & S CONTRACTING CORP., Plaintiff Defendants INDEX No.: /15 NOTICE OF MOTION TO RENEW MOTION FOR DEFAULT JUDGMENT AND SUMMARY JUDGMENT PLEASE TAKE NOTICE, that upon the affirmation of Supriya Kichloo, Esq., dated May 19, 2017, the affidavit of Plaintiff Nilufar Chowdhury sworn to on the 10 th day of January 2016, the Decision of Honorable Darrell L. Gavrin signed on December 23, 2016 and filed with the Queens County Clerk s office on January 24, 2017, and upon all the exhibits thereto, a motion for default pursuant to CPLR 3215 against Defendant EJ & S Contracting Corp. and for Summary Judgment against Defendant Edith Chester pursuant to CPLR 3212 will be made returnable in the Supreme Court of Queens County, located at Sutphin Boulevard, Jamaica, NY on June 20, 2017 in room 25 at 2:15 pm in the afternoon of that day, or soon thereafter as Counsel can be heard, for a default judgment and an inquest for damages. Pursuant to CPLR 2214(b), answering affidavits, if any are required to be served upon the undersigned at least seven (7) days before the return date of this motion. Dated: May 19, 2017 Forest Hills, NY Yours, etc. GORDON & GORDON, P.C. /s/ By: Supriya Kichloo, Esq. Attorneys for Plaintiff Queens Blvd, 6 th Floor Forest Hills, NY Tel: (718) of 6

2 To: Edith Chester th Place Jamaica, NY EJ & S Contracting Corp. 901 Newkirk Avenue Brooklyn, NY of 6

3 CIVIL COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS NILUFAR CHOWDHURY, -against- EDITH CHESTER, and EJ & S CONTRACTING CORP., Plaintiff Defendants INDEX No.: /15 AFFIRMATION IN SUPPORT SUPRIYA KICHLOO, Esq., an attorney duly admitted to practice law before the Courts of this State, duly affirms the following under the penalty of perjury: 1. I am an attorney at Gordon & Gordon, P.C., attorneys for the Plaintiff, Nilufar Chowdhury, and am fully familiar with the pertinent facts and circumstances of this action; 2. I submit this Affirmation in Support of Plaintiff s Motion seeking an Order pursuant to CPLR 3215 granting Plaintiff a Default Judgment against the Defendant, EJ & S Contracting Corp., as well as an Order pursuant to CPLR 3212 granting Plaintiff a Summary Judgment against Defendant, Edith Chester; and for setting this matter down for an Inquest to determine the damages caused by Defendants to the home of the Plaintiff as depicted in the photographs attached to the Plaintiff s affidavit and for such other relief as the Court deems just and proper. This is not the first-time Plaintiff is making the instant Motion for Default and Summary Judgment. The first time a mistake was made in the Notice of Motion incorrectly listing the time for 9:30 AM instead of 2:15 PM and the second time, the time was correctly stated as 2:15 pm but the Court s working copy had the time written in ink on white out, therefore it was rejected. On the third time this motion was brought, Judge Gavrin issued a decision dated December 23, 2016, ordering this motion to be made returnable in front of Judge Schulman in the trial 3 of 6

4 scheduling part in room 25 of the Supreme Court. Plaintiff s attorney refiled the motion but it was marked off on oral decision and a reason was not given. 3. Pursuant to CPLR 3215, when a Defendant has failed to appear or plead, the Plaintiff may seek a Default Judgment against him. CPLR 3215(1) provides that On any application for judgment by default, the applicant shall file proof of service of the summons and complaint and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party where a verified complaint has been served, it may be used as the affidavit of facts constituting the claim and the amount due; in such case, and affidavit as to the default shall be made by the party or the party s attorney 4. Here, the plaintiff filed a Summons and Verified Complaint on August 12, 2015 seeking damages for the N.Y. Administrative Code and trespass as depicted in the two photographs attached to the Plaintiff s affidavit of merit. 5. Defendant, EJ & S CONTRACTING CORP., was served with a Summons and Verified Complaint through the Secretary of State on September 8, 2015, attached hereto as Exhibit Defendant, Edith Chester was personally served with said Summons and Verified Complaint along with a Notice of Electronic Filing Availability through her daughter-inlaw, Esther Chester, on August 18, 2015, attached hereto as Exhibit Defendant, Edith Chester, then filed a letter as an Answer to the Plaintiff s Summons and Verified Complaint on September 18, 2015, attached hereto as Exhibit 4. Assuming arguendo, the Answer was filed by Edith Chester in an attempt to respond for and represent her own corporation, EJ & S Contracting Corp., it is an unsatisfactory and inappropriate responsive pleading on the basis that the Defendant, Edith Chester, cannot appear on behalf of the Defendant, EJ & S CONTRACTING CORP., and the corporation must have an attorney. Therefore, her answer is invalid and should be stricken from the record. 4 of 6

5 8. Subsequently, Plaintiff s attorneys sent Defendant, Edith Chester, a courtesy letter on November 16, 2015 that prompted the Defendant that she could not answer on behalf of Defendant, EJ & S CONTRACTING CORP., and that an extended period of time was awarded to her to allow for Defendant, EJ & S CONTRACTING CORP., to retain counsel before filing for a Default Judgment, attached hereto as Exhibit It has been more than 7 months since sending out a courtesy letter, and both Defendants have failed to appear or respond to this action. 10. Defendant Chester, the owner of the property stated an affirmative defense sounding as collateral estoppel, based upon an action previously commenced by the Plaintiff pro se in Supreme Court Queens County which was later transferred to Civil Court for the City of New York, Queens County, in her invalid Answer. Copies of all documents in my file relating to that action are included as Exhibit 6. Even if the Defendant s answer was not invalid, the affirmative defense of collateral estoppel is not a valid defense. 11. A review of Exhibit 6 reveals that the prior action was specific to the damages that were ongoing due to the permission granted to the underpinning of the foundation. This current action is for the encroachments depicted in the photographs attached to the Plaintiff s Affidavit of merit not for the soil and underpinning the occurred in the Plaintiff s basement. 12. Further, the damages in the current action are substantial in that the value of the Plaintiff s home has been severely reduced as a result of the construction trespassing upon the property. 13. Therefore, the instant action arises out of a different set of facts and circumstances and collateral estoppel does not apply and the instant action should be adjudicated on its own without the prior case s shadow. 14. Defendants have failed to answer or appear in the instant action even though they were properly served pursuant to CPLR of 6

6 15. As evidenced by the photographs attached to the plaintiff s affidavit of merit, the defendant s property is clearly encroaching on plaintiff s property and there is no genuine issue of fact that exists. Therefore, pursuant to CPLR 3212, summary judgment in the instant action should be granted against Defendant Edith Chester. WHEREFORE, Plaintiff prays that this Motion be granted in its entirety. Dated: May 19, 2017, Forest Hills, NY Yours, etc. GORDON & GORDON, P.C. /s/ By: Supriya Kichloo, Esq., Attorney for the Plaintiff Queens Boulevard, 6 th Floor Forest Hills, NY Tel: (718) Fax: (718) of 6