FILED: NEW YORK COUNTY CLERK 05/18/ :20 PM INDEX NO /2016 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 05/18/2017

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1 SUPREME COURT OF THE STATE NEW YORK COUNTY OF NEW YORK NDIDI ONYECHIE INDEX NO /2016 Plaintiff, -against- NOTICE OF MOTION ADU MOTORS INC, IBRAHIM SHEHU. Defendant(s) PLEASE TAKE NOTICE, that upon the affirmation of Uzoma Eze, Esq., dated May 10, 2017, and upon all the papers herein, a motion will be made at New York County Supreme Court located at 60 Centre Street, New York, NY on May 31, 2017 at 9:30 o clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for an order granting Plaintiff s motion to restore this matter to the calendar, together with such other, further and different relief as this court deems just and proper. Plaintiff pleads to the court on the grounds that plaintiff s absence on the previous scheduled appearance days were excusable due to law office failure, as plaintiff counsel entered appearance on the day of the motion and then suffered an emergency that made him unavailable when the motion calendared as number 101 that day was called. In addition, plaintiff would also add that this case is meritorious to plaintiff as defendant s misconduct is causing Plaintiff severe and continuing damages. PLEASE TAKE FURTHER NOTICE that pursuant to CPLR 2214(b), answering papers, if any, are to be served on the undersigned at least seven (7) days prior to the return date of this application. Dated: Brooklyn, New York May 10, 2017 TO: IBRAHIM SHEHU 3213 Pine Heights Drive Unit 16 Atlanta, GA UZOMA ALEX EZE, ESQ. Attorney for Plaintiff 25 Bond Street, 2 nd Floor Brooklyn, New York of 8

2 44 Gaylord Cir, Willingboro, NJ Gwinnett Dr., Lawrenceville, GA of 8

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X NDIDI ONYECHIE V. Plaintiff, Index No /2016 AFFIRMATION ADU MOTORS INC., IBRAHIM SHEHU. Defendant X UZOMA EZE ESQ., an attorney duly licensed to practice law in the Courts of the State of New York, affirms the following under penalties of perjury based upon a review of the file and upon information and belief. 1. I m an attorney admitted to practice in the State of New York and am the attorney for the Plaintiff in this action. 2. I m familiar with the relevant facts and circumstances in this matter. 3. I submit this affirmation in support of the Plaintiff s motion pursuant to (CPLR 3404) to restore this matter to the calendar. 4. It is required that a motion to restore an action struck from any calendar be supported by a proper statement of readiness and by affidavits showing the merits of the action, the reasons for the acts or omissions which caused it to be struck from the calendar, and good cause why it should be restored (22 NYCRR 675.5[b]) 5. This matter was struck from the calendar because plaintiff failed to appear in court on April 20, 2017, and this matter was struck from the calendar on that day. 6. I move for this motion to be restored to the calendar due to the meritorious matter of this aforementioned case. To vacate the dismissal and restore the case to the 3 of 8

4 trial calendar, plaintiff has the burden of establishing merit, lack of prejudice to defendants and a reasonable excuse (see Horn v. Schneck Transp. Co., 65 A.D.2d 589, 409 N.Y.S.2d 256; Ruggiero v. Elbin Realty, 51 A.D.2d 1011, 380 N.Y.S.2d 773) 7. It is no fault of plaintiff Onyechie that she suffered loss from deceptive practices on the part of defendants. These practices caused much harm to plaintiff financial and mental well being. There is also no fault to plaintiff that his assigned counsel mistakenly failed to make the appearance on the scheduled date. 8. In this jurisdiction, the Courts grant motions to restore to calendar where, as here, there is no prejudice to the defendants and the motion to restore is made within a year of its dismissal from the calendar. See Lee v. Sierad, 157 A.D.2d 707, 549 N.Y.S.2d 807 N.Y.A.D. 2 Dept.,1990 ( Plaintiffs' motion to restore their action to trial calendar should have been granted since plaintiffs demonstrated existence of a meritorious cause of action and absence of undue prejudice to defendants. ) 9. It has been less than 1 year since this matter was struck from the calendar, and the motion must be made within one year of the adverse order (CPLR 3404). 10. In order to vacate the automatic dismissal of a case a plaintiff must show that he or she did not abandon the action (CPLR 3404). In the case of (Sheehan v. Hollywood, 112 AD2d 211 (2nd Dept. 1985)), the presumption of abandonment was adequately rebutted by the injured plaintiff's continuing surgical treatments and his attorney's ongoing efforts to acquire necessary documentation. 11. This is a contract case for fraud and deceptive business practices that was brought against said named defendants, where the plaintiff suffered damages as a result of 4 of 8

5 the defendants actions. These damages are permanent, as Plaintiff will continue to suffer financial harm. WHEREFORE, Plaintiff respectfully requests that the Honorable Court accept and grant his motion in its entirety and for such other and further relief as this Court deems just and proper. Dated: Brooklyn, New York May 10, 2017 UZOMA ALEX EZE, ESQ. Attorney for Plaintiff 25 Bond Street, 2 nd Floor Brooklyn, New York TO: IBRAHIM SHEHU 3213 Pine Heights Drive Unit 16 Atlanta, GA Gaylord Cir, Willingboro, NJ Gwinnett Dr., Lawrenceville, GA of 8

6 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X NDIDI ONYECHIE V. Plaintiff, Index No /2016 AFFIDAVIT ADU MOTORS INC., IBRAHIM SHEHU. Defendant X NDIDI ONYECHIE, being duly sworn, deposes and states under penalty of perjury of the laws of the United States: 1. That I am the plaintiff in the above references action and submit this affidavit in support of my motion to restore this matter to the calendar. 2. On the 6 th day of May 2016 defendant sold me an automobile for the price of $65. Shortly later the transaction was cancelled and defendant agreed to return the full amount. 3. After I retained legal counsel on September 21, 2016, defendant released $40,000 of the total amount owed to me. 4. As a result of the encounter and fraudulent business deal with defendant Ibrahim Shehu, I was deceived out of approximately $24,000. To this date I have not received the remaining amount owed to me. 5. My injuries are permanent in nature as my encounter with defendant left me with great financial strain. 6. These injuries interfere with my occupation and cause me much economic loss making it impossible for me to perform my job task and earn a living. 6 of 8

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8 State of New York County of Kings AFFIRMATION OF SERVICE ss.: I, the undersigned, an attorney duly admitted to practice in the State of New York, with offices at 25 Bond Street, 2 nd Floor, Brooklyn, New York, 11201, affirm as follows as under penalties of perjury: On May 10, 2017, I personally served the within Notice of Motion to Restore and Affirmation in Support /XX/ SERVICE BY FIRST CLASS MAIL: by delivering a copy to each of the following named defendant and defendants counsel at: IBRAHIM SHEHU 3213 Pine Heights Drive Unit 16 Atlanta, GA Gaylord Cir, Willingboro, NJ Gwinnett Dr., Lawrenceville, GA Dated: Brooklyn, New York May 10, UZOMA EZE, ESQ. 8 of 8