FILED: KINGS COUNTY CLERK 07/24/ :07 PM INDEX NO /2017 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/24/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X SEMEN GUENDLER, - against - NATALIA GENDLER AKA NATALIA SHEVELEVA, Plaintiff, Index No.: /2017 AFFIRMATION IN REPLY (Motion Seq. #2) Defendants X Philip Gurevich, ESQ., an attorney admitted to practice before the Courts of the State of New York affirms the truth of the following under the penalty of perjury: 1. I am counsel for the Defendant, NATALIA GENDLER (hereinafter the Defendants ), herein and as such I am fully familiar with the facts and circumstances of this action based upon a review of the case file, materials contained therein and conversations with the Defendant. 2. This affirmation in reply is submitted in connection with the Plaintiff's Opposition to the Defendants Order to Show Cause to vacate the improperly filed and granted proposed default judgment. 3. First and foremost, it should be brought to the attention of this court that the improperly granted default order, has not yet been entered, as such vacating said default would in no way prejudice the Plaintiff, should this court choose to do so. 4. CPLR 3215(a) allows a party to seek a default judgment by application to the clerk if the claim is "for a sum certain or for a sum which can by computation be made certain." Gleich v. Gritsipis, 87 A.D.3d 216 (2d Dept. 2011). 1 of 8

2 5. Furthermore, pursuant CPLR 3215 in making the application for default judgment to the county clerk, a party is required to produce affidavits outlying the (1) of merits of the case, (2) the default, (3) the computation statement of the sum certain. Here, the failed to submit any of the above to the clerk. As such, the clerk s default was granted improperly and against contravening New York law. 6. Even assuming arguendo, that the clerk s default was properly entered, the default entered by the clerk is null and void as a matter of law. 7. Under New York Law, a clerk's judgment should not be entered where, as here, the amount of the judgment can be determined only by reference to extrinsic proof. ARROW FIN. SERVS., LLC v. Benjamin, 2017 NY Slip Op 27157, (see Stephan B. Gleich & Assoc. v Gritsipis, 87 A.D.3d 216, [2011]; see also Vinny Petulla Contr. Corp. v Ranieri, 94 AD3d 751 [2012]; Dante Piano Serv. Corp. v Haedrich, 42 Misc 3d 136[A], 2014 NY Slip Op 50125[U]). Generally, a judgment should be entered on application to the clerk only where "there can be no dispute as to the amount due" (Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 [1978]). 8. In the case at bar the amount claimed, is based on an allegation of damage prepared by the Plaintiff and as such reflects only opinion. The amount of damages is unliquidated and is not "a sum certain or one which by computation can be made certain". As was said in Geer, Du Bois & Co. v. Scott & Sons Co. 25 A D 2d 423, 424. Since the Clerk had no power to enter judgment the judgment thus entered was a nullity and the application to vacate the judgment and upon the default should have been granted unconditionally. Id. 9. Here, the amount of damages sought by Plaintiff in the within action is not a sum certain, nor is it a sum which can by computation be made certain. Id. It is an alleged debt 2 of 8

3 incurred by Plaintiff on a jointly-held credit card with Defendant. There is a dispute as to which charges should/could be attributed to which party. Hence the damage amount is an unliquidated amount and under the CPLR 3215 a default judgment cannot be entered by the Clerk. 10. The clerk lacked authority to enter the underlying judgment, rendering such judgment void ab initio (Geer, Du Bois & Co. V O.M. Scott & Sons Co., Inc., 25 A.D.2d 423; Gaynor & Bass v Arcadipane, 268 A.D.2d 296). 11. Furthermore, the Plaintiffs summons and complaint alleges two causes of action one for the alleged sum certain and one for defamation. The Appellate Division, Second Department, directly addressed the question of whether a clerk may enter a judgment pursuant to CPLR 3215 (a) when one or more causes of action in a plaintiff's pleading is for a sum certain and one or more other causes of action is not. It held, in Geer, Du Bois & Co. v Scott & Sons Co. (25 AD2d 423 [1966]), that a clerk is without authority to enter a judgment under such circumstances. Gleich v. Gritsipis, 87 AD 3d 216, (2d. Dept. 2011). 12. Plaintiff s Opposition to the within motion, the underlying unverified summons and complaint, the proposed order for default, or any other pleading(s) for relief, are devoid of a single affidavit or document executed by the Plaintiff himself. 13. Further, should this court find that the default was properly granted, your affirmant respectfully argues that under CPLR 5015 (a) to be granted, the moving party must establish both an excuse for the default and an affidavit of merit. 14. Submitted herein as is a copy of the Notarized Affidavit of Merit signed by Plaintiff Natalia Gendler. We respectfully submit that this exhibit sufficiently establishes the existence of a meritorious defense as dictated by CPLR 5015(a)(1). 3 of 8

4 15. New York courts have applied CPLR 5015 (a)(1), requiring the party seeking to be relieved of its default to demonstrate a reasonable excuse which may, in appropriate circumstances, be premised on law office failure (see Matter of Gibson [Motor Veh. Acc. Indem. Corp.], 45 AD2d 678, 356 NYS2d 77 [1974]) and a potentially meritorious claim (see Miller v Mack, 90 AD3d 1003, 934 NYS2d 841 [2011];Matter of Macias v Motor Veh. Acc. Indem. Corp., 10 AD3d at 397); CPLR 2005 (law office failure can excuse a default). 16. Over the past 3 months I have had a series of medical issues as that have led to my office not being able to timely respond to the underlying action. It is respectfully submitted that Defendant s failure to appear was totally inadvertent. Since having been retained as Defendant s counsel, my office has diligently pursued the prosecution of this matter. However, when I phoned Plaintiff s counsel in order to see an extension of time to answer, the request was denied. 19. It is respectfully submitted that there was no intentional wrongdoing on the part of your affirmant nor by anyone in our law office. The instant case has been faithfully prosecuted since its inception and all previous Court Orders have been duly complied with. 17. Finally, the personal service of the summons and complaint, and the timeliness which Plaintiff s counsel claims, is questionable at best and fraudulent at worst. 18. Plaintiff s Exhibit A as affidavit of personal service asserts that David Feldman, a licensed process server, served the Defendant in the above-captioned matter describing the person as Female, Age 51-65, weighing approximately lbs, height with black hair. See Defendant s Exhibit A. 4 of 8

5 19. However, the Plaintiff s counsel acting as the process server, attaches his affidavit of service, as Exhibit B, in which he describes the Defendant as, Female, age 45-50, weighing lbs, height , dirty blond hair. See Defendant s Exhibit B. 20. Furthermore, Plaintiff s misleadingly asserts that the Defendant had over two months since the initial service of the summons and complaint. Which service is he referring to? The 130lb, 5 3 female brunette, or the 180lb, 5 8 female blond? 21. Pursuant to CPLR 308 personal service is complete ten (10) after filing proof of service with the county clerk. 22. Plaintiff s counsel is mistaken as to when service was complete, when in reality Defendant e-filed a pre-answer motion pursuant to CPLR 3211 on May 9, 2017, a mere three (3) days late and again in a rush,,due to Plaintiff not extending the courtesy of extending the Defendant time to file a response. WHEREFORE, I respectfully request that the Court grant the relief requested in the present Motion in its entirety together with such other, further, and different relief as the Court may deem just and proper. Dated: July 24, 2017 Brooklyn, NY By: Philip Gurevich, Esq. Attorney for Defendant 3079 Brighton 13 th Street Brooklyn, New York (718) of 8

6 NOTARIZED AFFIDAVIT OF MERIT SIGNED BY PLAINTIFF NATALIA GENDLER [THIS PAGE INTENTIONALLY LEFT BLANK] 6 of 8

7 AFFIRMATION OF SERVICE STATE OF NEW YORK ) ) ss.: COUNTY OF KINGS ) PHILIPP GUREVICH, ESQ., an attorney duly admitted to practice law in the State of New York affirms the truth of the following under penalty of perjury: I am not a party to the action, am over the age of eighteen (18) years and I reside in County of Kings, State and City of New York. That on July 24v, 2017, I served the within REPLY by electronic filing a true copy thereof with the New York State Court e-filing system, addressed to each of the following persons at the last known address set forth after each name: STEVEN YUNIVER Dated: Brooklyn, New York July 24, 2017 PHILIPP GUREVICH, ESQ. 7 of 8

8 Index No /2017 SUPREME COURT OF THE STATE NEW YORK COUNTY OF KINGS SEMEN GUENDLER, - against - NATALIA GENDLER AKA NATALIA SHEVELEVA, Plaintiff, Defendant. REPLY AFFIRMATION PHILIP GUREVICH Attorney at Law 3079 BRIGHTON 13TH STREET BROOKLYN, NY (718) of 8

FILED: KINGS COUNTY CLERK 06/07/ :36 PM INDEX NO /2016 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 06/07/2017

FILED: KINGS COUNTY CLERK 06/07/ :36 PM INDEX NO /2016 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 06/07/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------------------X OKSANA O. TUMAN, -against- Plaintiff, SUNSET BOYZ CORPORATION and MERCEDES