Plaintiff. Defendants. UPON READING the annexed Affidavit of Bruce A. Hubbard, duly affirmed and

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 17 SANTANDER BANK, N. A. F/K/A SOVEREIGN BANK,N.A. F/K/A SOVEREIGN BANK, Index No /2015 Plaintiff -against- ORDER TO SHOW CAUSE BRUCE A. HUBBARD, P. C. AND BRUCE A. HUBBARD Defendants. UPON READING the annexed Affidavit of Bruce A. Hubbard, duly affirmed and notarized on September 23, 2016 and the annexed exhibits hereto and upon all prior pleadings and proceedings had herein, LET Plaintiff or their attorneys show cause at Part 17 of this Court to be held at the Supreme Court, New York County, at the Courthouse located at 60 Centre Street, New York, New York Room 335, on the day of, 2016 at 9:30 o'clock in the forenoon of that day, or as soon thereafter as counsel may be heard, WHY an Order should not be made and entered herein: (a) granting to Defendants relief from the Default Summary Judgment for nonappearance and no opposition, and restoring this summary proceeding to the calendar pursuant to Rule 5015 (a) (1) of the Civic Practice Law and Rules due to excusable default, no opposition and non-appearance. ORDERED, that service of a copy of this Order to Show Cause and the pleadings upon which it is issued upon Plaintiff be made via on or before the day of, 2016, be deemed good and sufficient service.

2 Enter: J. S. C. 2

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 17 SANTANDER BANK, N. A. F/K/A SOVEREIGN BANK,N.A. F/K/A SOVEREIGN BANK, Index No /2015 -against- Plaintiff AFFIDAVIT IN SUPPORT OF MOTION BRUCE A. HUBBARD, P. C. AND BRUCE A. HUBBARD Defendants. STATE OF NEW YORK ) ) SS.: COUNTY OF NEW YORK ) BRUCE A. HUBBARD, an individual over the age of eighteen (18) years of age and an attorney duly admitted to practice before the Bar of the highest Court of the State of New York, and in good standing, deposes and states as follows: 1. I am an attorney duly licensed to practice law in the Courts of the State of New York and I am the principal of Bruce A. Hubbard, P.C., one of the two Defendants herein. I submit this affidavit in support of the Defendants' Order to Show Cause seeking relief from the Default Summary Judgment Order for no opposition and non-appearance, and restoring this summary proceeding to the calendar pursuant to Rule 5015 (a) (1) of the Civic Practice Law and Rules due to excusable default, no opposition and non-appearance. 2. Defendants filed a Verified Answer to the Summons and Complaint with an Affirmative Defense dated April 30, 2015 and served the same on Plaintiff on May 8, A copy is attached hereto as Exhibit A.

4 3 Thereafter, I never received either by hard copy nor by efiie notice any of the filings, pleadings nor motions filed by Plaintiff. I next received on September 22, 2016 (yesterday) by regular mail a copy of the Notice of Entry, dated September 14, 2016, the Order and Judgment dated September 8, 2016 and the Decision and Order granting summary judgment dated September 8, Defendants utilized the services of United Process Service to efile their Verified Answer, serve the same and file the Authorization and Consent with the New York County Efile Office. After receipt of the Notice of Entry it was determined after contacting New York County Efile Office that United Process Service had committed two (2) errors in making the efiling. They had first, listed me as counsel for the Plaintiff in error and not for the Defendants and second they had listed my address incorrectly as "brucehubbardpc(a).msn.com" and not correctly as bruceahubbardpc(g),msn.com. Due to both of these errors, only discovered today, I never received any of the pleadings filed by Plaintiff. 5. After filing several motions with no response from Defendants, Plaintiff never contacted Defendants nor apprised them of the pleadings. 6. Neither the Court nor the Efile Office ever notified Defendants for a period of over one (1) year, despite having received their Verified Answer with their correct contact information and correct address, that no counsel for Defendants was listed and no documents were being forwarded to Defendants by Plaintiff also continued to utilize an old address for Defendants listed as 99 Park Avenue, New York, New York after being notified in Defendants' Verified Answer that 2

5 as of January 1, 2014, Defendants had moved to 260 Madison Avenue, l?"" Floor, New York, New York Defendants have never had the opportunity to respond to Plaintiffs pleadings and to defend his position with respect to the actions taken by Plaintiff with respect to the debt incurred have made no prior application for the relief sought herein. WHEREFORE, Defendants request that relief be granted from the Default Summary Judgment for no opposition and non-appearance; and that this summary proceeding be restored to the calendar pursuant to Rule 5015 (a) (1) of the Civic Practice Law and Rules due to excusable default, no opposition and non-appearance, together with such other relief as the Court may deem just, equitable and appropriate. Bruce A. Hubbard Dated: New York, New York September 23,2016 State of New York County of Ne)AL5(ork )):ss Jhis, day of September, 2016 Notary Public My Commission Expires: TARA M. BONILLA Notary P^'^'^^'p^t^g^vTir Qualified in Queens ttoynty Commission Expires-i^piAi- 3

6 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 17 SANTANDER BANK, N. A. F/K/A SOVEREIGN BANK,N.A. F/K/A SOVEREIGN BANK, Index No /2015 Plaintiff -against- ORDER BRUCE A. HUBBARD, P. C. AND BRUCE A. HUBBARD Defendants. This action having been commenced on March 31, 2015 by the filing of the Summons and Complaint on March 31, 2015 and Defendants having filed their Verified Answer and Affirmative Defense on April 30, 2015, Defendants request the opportunity to respond to the Motion for Summary Judgment that they first learned of yesterday. Defendants now request that relief be granted from the Default Summary Judgment for no opposition and non-appearance and that this summary proceeding be restored to the calendar pursuant to Rule 5015 (a) (1) of the Civic Practice Law and Rules due to excusable default and non-appearance. ORDERED, ADJUDGED AND DECREED that the Decision and Order of Summary Judgment on Default is re-opened and this summary proceeding is restored to the calendar. Dated: New York, New York, 2016 SO ORDERED: Justice Supreme Court 4

7 EHIBIT A

8 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SANTANDER BANK, N. A. f/k/a SOVEREIGN BANK, N. A. f/k/a SOVEREIGN BANK, Plaintiff, -against- Index No /2015 ANSWER BRUCE A. HUBBARD, P. C. and BRUCE A. HUBBARD, Defendants. BRUCE A. HUBBARD, P.C. and BRUCE A. HUBBARD, Defendants, as and for their Answer to the Verified Complaint, respectfully allege, upon information and belief as follows: 1. Deny each and every specific allegation contained in Paragraphs Numbered 2, 4, 7. 8, 9, 10, 11,12.13,14,15,16,17,18,19,20,21,22,23,24,25,26, and 27of the Verified Complaint. 2. Admit each and every specific allegation contained in Paragraphs Numbered 3, 5, 22 and 25 of the Verified Complaint. 3. Do not have sufficient knowledge or information to form a belief of the truth or accuracy of the allegations made in Paragraph Numbered 1 of the Verified Complaint. AS AND FOR A FIRST AND COMPLETE AFFIRMATION DEFENSE DEFENDANTS ALLEGE AS FOLLOWS: 4. Defendants, Bruce A. Hubbard, P. C. and Bruce A. Hubbard have never been personally served as required by law with copies of the Summons and Verified Complaint. Bruce A. Hubbard, P. C. received a "forwarded by mail" copy of the Summons and Complaint

9 from a previous address that is currently incorrect on April 28, 2015; and Bruce A. Hubbard received a copy mailed not from the Plaintiffs law firm but from Suite Vesey Street, New York. New York at his residence in Connecticut on April 29, No personal service was ever effected upon either Defendant. WHEREAS, based upon the foregoing. Defendants demand the dismissal of the Verified Complaint and such other and further relief as to this Court seems sufficient and proper. Dated: New York, New York April 30, 2015 BRUCE A. HUBBARD, P.C. BRUCE A. HUBBARD By: C-iSi^ BRUCE A. HUBBARD Principal of Bruce A. Hubbard, P. C To: Platzer. Swegold, Levine, Goldberg, Katz 8L Jaslow, LLP 475 Park Avenue South New York, New York (212) el'oxf'hjplal/.erlavv.com Attn.: Evan H. Fox, Esq. By: BRUCE A. HUBBARD, Individual 260 Madison Avenue, 17* Floor New York, New York (212) Fax: (212) bruceahubbardpc@msn.com

10 VERIFICATION SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SANTANDER BANK, N. A. f/k/a SOVEREIGN BANK, N. A. f/k/a SOVEREIGN BANK, Plaintiff, Index No /2015 -against- BRUCE A. HUBBARD, P. C. and BRUCE A. HUBBARD, Defendants. STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) BRUCE A. HUBBARD, being first duly sworn, deposes and says: 1. I am the Principal of the Defendant, Bruce A. Hubbard, P. C. and the individual Defendant, Bruce A. Hubbard in the above-referenced civil action. 2. I have read the foregoing Answer and Affirmative Defense and am fully familiar with all of the facts and circumstances regarding this controversy know of my own personal knowledge that the allegations included in the Answer and Affirmative Defense are true, except as to those matters therein alleged upon information and belief, and as to those matters I believe them to be true.

11 Dated: New York, New York April 30, 2015 Sworn to before me this (? day of /H^^, 2015 Bruce A. Hubbard Notary Public WOtiiy ft«2'"'"-''l''"'<'*y<"'',-7 O

12 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SANTANDER BANK, N. A. f/k/a SOVEREIGN BANK, N. A. f/k/a SOVEREIGN BANK, Plaintiff, -against- Index No /2015 AFFIDAVIT OF SERVICE BRUCE A. HUBBARD, P. C. and BRUCE A. HUBBARD, Defendants. State of New York ) ) ss: County of New York ) being first duly sworn, deposes and says: I am not a party to the action, am over 18 years of age and reside in. On May, 2015, I served a true copy of the Answer by depositing a true copy thereof enclosed in a post-paid wrapper, in an official depository imder the exclusive care and custody of the U.S. Postal Service within New York State, addressed to each of the following person: Platzer, Swegold, Levine, Goldberg, Katz & Jaslow, LLP 475 Park Avenue South New York, New York Attention: Evan H. Fox, Esq. Sworn to before me this day of May, 2015 NOTARY PUBLIC