ORDER TO SHOW. NYCTL TRUST, and THE BANK OF NEW YORK MELLON as Collateral Agent and Custodian for CAUSE

Transcription

1 At Part of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, located at 360 Adams Street, Brooklyn, NY, on the day of April P R E S E N T: HON. Justice X NYCTL TRUST, and THE BANK OF NEW YORK MELLON as Collateral Agent and Custodian for the NYCTL Trust,, Plaintiff, INDEX l14 -against- ORDER TO SHOW CAUSE JOSEPH ZUCCARO, if living and if he/she be dead, any and all persons unknown to plaintiffs, claiming, or who may claim to have an interest in, or generally or specific lien upon the real property described in this action; such unknown persons being herein generally described and intended to be included in the following designation, namely, the wife, widow, husband, widower, heirs at law, next of kin, distributees, descendants, executors, administrators, devisees, legatees, creditors, trustees, committees, lienors, successors in interest and assignees of such deceased, any and all persons deriving interest in or lien upon, or title to said real property by, through or under 1 them, and their respective wives, widows, husbands, widowers, heirs at law, next of kin, distributees, descendants, executors, administrators, devisees, legatees, creditors, trustees, committees, lienors, successors in interest, and assigns, all of whom and whose names, except as stated, are unknown to plaintiffs, NEW YORK CITY

2 ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY PARKING VIOLATIONS BUREAU, PIERRE SYL VINCE and "JOI-IN DOE No. 1" through "JOHN DOE No. 100" inclusive, the names of the last 100 defendants being fictitious, the true names of said defendants being unknown to plaintiff, it being intended to designate fee owners, tenants or occupants of the liened premises and/or persons or parties having or claiming an interest in or a lien upon the liened premises, if the aforesaid individual defendants are living, and if any or all of said individual defendants be dead, their heirs at law, next of kin, distributees, executors, administrators, trustees, committees, devisees, legatees, and the assignees, lienors, creditors and successors in interest of them, and generally all persons having or claiming under, by, through, or against the said defendants named as a class, of any right, title, or interest in or lien upon the premises described in the complaint herein, Defendants X Upon the reading and filing of the annexed Affirmation, Affidavit and the Exhibits annexed thereto, and on all of the pleadings and proceedings had herein, and due deliberation having been had thereon and sufficient cause appearing therefore, LET the Plaintiff or their attorneys show cause before one of the Justices of this Court, at Part thereof, located at 360 Adams Street, Brooklyn, New York, room, in the County of Kings, City and State of New York, on the day of o', 2018, at 9:30 clock in the forenoon, or as soon thereafter as counsel can be heard, why and Order should not be made: (i) Vacating the Judgment entered herein on or about March 2, 2017 and dismissing the plaintiff's claims herein; and (ii) Vacating and setting aside the purported auction sale held on June 1, 2017; and

3 (iii) granting an award costs, attorneys' fees and sanctions in favor of Defendant and against the Plaintiff based upon Plaintif's vexatious and frivolous conduct; and (iv) for such other and further relief the Court deems just and proper. IT IS FURTHER ORDERED that, pending the hearing of this motion, the Plaintiff, their attorneys, agents, the Referee appointed herein, any Marshal or Sheriff within the City or State of New York and the purported purchaser of the subject premises are enjoined from taking action with respect to the enforcement of said judgment or further transferring or encumbering the subject premises. SUFFICIENT CAUSE APPEARING THEREFORE, LET personal service of a copy of this Order, together with the affidavit and exhibits annexed hereto on the on all parties entitle to notice on or before, 2018 be deemed good and sufficient service. ENTER J.S.C.

4 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X NYCTL TRUST, and THE BANK OF NEW YORK MELLON as Collateral Agent and Custodian for the NYCTL Trust,,, Plaintiff, INDEX l14 -against- AFFIRMATION JOSEPH ZUCCARO, if living and if he/she be dead, any and all persons unknown to plaintiffs, claiming, or who may claim to have an interest in, or generally or specific lien upon the real property described in this action; such unknown persons being herein generally described and intended to be included in the following designation, namely, the wife, widow, husband, widower, heirs at law, next of kin, distributees, descendants, executors, administrators, devisees, legatees, creditors, trustees, committees, lienors, successors in interest and assignees of such deceased, any and all persons deriving interest in or lien upon, or title to said real property by, through or under 1 them, and their respective wives, widows, husbands, widowers, heirs at law, next of kin, distributees, descendants, executors, administrators, devisees, legatees, creditors, trustees, committees, lienors, successors in interest, and assigns, all of whom and whose names, except as stated, are unknown to plaintiffs, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY PARKING VIOLATIONS BUREAU, PIERRE 1" SYL VINCE and "JOI-IN DOE No. through "JOHN DOE 100" No. inclusive, the names of the last 100 defendants being fictitious, the true names of said defendants being unknown to plaintiff, it being intended to designate fee owners, tenants or occupants of the liened premises and/or persons or parties having or claiming an interest in or a lien upon the liened premises, if the aforesaid individual defendants are living, and if any or all of said individual defendants be dead, their heirs at law, next of kin, distributees, executors, administrators, trustees, committees, devisees, legatees, and the assignees, lienors, creditors and successors in interest of them, and generally all persons having or claiming under, by, through, or against the said defendants named as a class, of any right,

5 title, or interest in or lien upon the premises described in the complaint herein, Defendants X PAUL CREINIS, an attorney duly admitted to practice before the Courts of New York State affirms the following pursuant to CPLR 2206: 1. I am the attorney for Defendant Zuccaro herein and, as such, am fully familiar with the facts and circumstances set forth herein. I make this Affirmation in support of the Defendant's motion for the relief requested in the annexed Order to Show Cause. 2. As an initial matter, CPLR 5015 provides: (a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or 2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404 ; or 3. fraud, misrepresentation, or other misconduct of an adverse party; or 4. lack of jurisdiction to render the judgment or order; or 5. reversal, modification or vacatur of a prior judgment or order upon which it is based.

6 PLAINTIFF FAILED TO PROPERLY SERVE JOSEPH ZUCCARO IN THIS MATTER RENDERING THE JUDGMENT HEREIN VOID AND DEFECTIVE AND, AS SUCH, THE JUDGMENT MUST BE VACATED 3. In that regard, It is well settled that strict compliance with the statutory requirements is necessary to "avoid generating collateral disputes," and to advance the goal of "[r]egularity of process, [and] certainty and reliability for all litigants and for the courts." Dorfman v. Leidner, 76 N.Y.2d 956, 957, 958, 563 N.Y.S.2d 723, 565 N.E.2d 472 (1990). 4. Where service has not been properly made, C.P.L.R. 5015(a)(4) requires that the judgment be unconditionally vacated with no further showing required from the Defendant. The Court has no discretion in the matter. The Court has no discretion in the matter. See Taylor v. Jones, 172 A.D.2d 745, 746, 569 N.Y.S.2d 131, 133 (2d Dep't 1991) ("in the event the Supreme Court ultimately determines that jurisdiction over the person of the defendant was not obtained, all of the proceedings would be rendered nullities and the defendant would be entitled to an unconditional vacatur of the default judgment"); Hitchcock v. Pyramid Cents. of Empire State Co., 151 (" A.D.2d 837, 839, 542 N.Y.S.2d 813, 815 (3d Dep't 1989) ("On a motion to vacate a judgment upon the ground of lack of jurisdiction pursuant to CPLR 5015(a)(4), the court is required to vacate the judgment absolutely and may not impose terms or conditions upon the vacatur."); Citibank, N.A. v. Keller, 133 A.D.2d 63, 64-65, 518 (" N.Y.S.2d 409, (2d Dep't 1987) ("If service had not been duly effected, the court would have no jurisdiction over the defendant and the default judgments would be nullities. Once a movant demonstrates the lack of jurisdiction, a default

7 judgment must be unconditionally vacated."); Shaw v. Shaw, 97 A.D.2d 403, 404, 467 N.Y.S.2d 231, 233 (2d Dep't 1983); see also, e.g., 2837 Bailey Corp. v. Gould, (" 143 A.D.2d 523, , 533 N.Y.S.2d 34, 35 (4th Dep't 1988) ("Absent proper service to achieve jurisdiction, [a] default judgment is a nullity and must be vacated."); Ariowitsch v. Johnson, 114 A.D.2d 184, , 498 N.Y.S.2d 891, (" 893 (3d Dep't 1986) ("[T]he issue of whether a defendant has a meritorious defense is irrelevant to the question of whether a judgment should be vacated for lack of jurisdiction."); OSCAR G. CHASE, NEW YORK CIVIL PRACTICE: CPLR para ("No issue of discretion arises in such an application; a judgment or order granted in the absence of jurisdiction over the defendant is a nullity which must be set aside unconditionally."). 5. Here, Plaintiff admittedly never personally served Joseph Zuccaro but rather sought an Order appointing a Guardian ad litem and permitting substitute service upon him which, as demonstrated below, was void and of no effect. As such the Default Judgment herein (Exhibit A) must be vacated. THE COURT'S APRIL 22, 2015 ORDER APPOINTING A GUARDIAN AD LITEM AND PERMITTING SUBSTITUTE SERVICE WAS DEFECTIVE, VOID AND OF NO EFFECT REQUIRING THE JUDGMENT HEREIN BE VACATED FOR THESE REASONS AS WELL 6. Significantly, not only was Joseph Zuccaro never personally served in this action and jurisdiction over him never obtained but the Court's April 22, 2015 Order (Exhibit B) appointing a Guardian ad litem and the motion upon which it was based are defective on their face rendering the Judgment and any proceedings based thereon void and of no effect.

8 7. As an initial matter, Plaintiff's motion seeking the appointment of a Guardian ad litem failed to demonstrate that Plaintiff diligently attempted to serve Mr. Zuccaro. 8. For example, Plaintiff's process server states that she could not conduct certain searches for the Defendant because she did not have a Social Security number. Yet Plaintiff's process server then contradicts her prior statements and states that she was able to locate two separate Social Security numbers for Joseph Zuccaro but never conducted any searches using that information. (Exhibit C). Additionally, Plaintiff's process server concedes that she located Joseph Zuccaro's work address which is only a matter of yards from the subject property but admits she never visited those premises in an attempt to serve him. Rather she claims to have called the business on the telephone receiving no response. (Exhibit C). Clearly, the process server's attempts to locate Joseph Zuccaro cannot be viewed as diligent by any means. 9. Moreover, the April 22, 2015 Order is void and defective on its face in any event and never became effective rendering the Judgment herein void for this reason as well. 10.In that regard, the Order purports to appoint Jacob Gold, Esq. at 1313 East 15* Street, Brooklyn NY as the Guardian ad litem for Joseph Zuccaro. (Exhibit B). 11.Significantly, a search of the New York State attorney registration database reveals one attorney named Jacob Gold who was admitted to the New York State Bar in the year 1926 and is deceased. (Exhibit D). Indeed not only is Mr. Gold deceased but given the year of his admission to the Bar Mr. Gold would logically be

9 approximately 115 years old at the time the Order was entered by the Court if he wasn't and undoubtedly unable to accept this appointment. 12.Moreover, while an independent inquiry revealed that there is a Jacob Gold located at the address indicated in the Order, Mr. Gold is a real estate professional and not an attorney clearly not qualified or authorized to act as a Guardian ad litem pursuant to the Judiciary law and Rules of the Chief Judge. 13.Thus, the April 22, 2015 was undoubtedly defective and void rendering all proceedings based thereon and the Judgment herein void as well. THE APRIL 22, 2015 ORDER WAS NOT ONLY VOID AND DEFECTIVE BUT NEVER TOOK EFFECT IN ANY EVENT 14.Moreover, even if the April 22, 205 Order was not defective and void, which it is, that Order never became effective in any event. 15.In that regard, CPLR 1202(c) states: "(c) Consent. No order appointing a guardian ad litem shall be effective until a written consent of the proposed guardian has been submitted to the court together with an affidavit stating facts showing his ability to answer for any damage sustained by his negligence or misconduct." 16.Here, it cannot be disputed that the purported Guardian ad litem proposed in the April 22, 2015 Order never submitted a written consent to the appointment pursuant to CPLR 1202(c) for the obvious reasons set forth above. As such that Order never became effective and no further action against Joseph Zuccaro was authorized or proper. 17.Indeed, CPLR 1203 states: "No judgment by default may be entered against an infant or a person judicially declared to be incompetent unless his representative

10 appeared in the action or twenty days have expired since appointment of a guardian ad litem for him. No default judgment may be entered against an adult incapable of adequately protecting his rights for whom a guardian ad litem has been appointed unless twenty days have expired since the appointment." 18.Thus, since the April 22, 2015 Order was not only void and defective and also could never have taken effect by virtue of the lack of compliance with CPLR 1202(c) no default judgment against Joseph Zuccaro could be entered pursuant to CPLR 1203 as the time to enter a default judgment against Joseph Zuccaro never began to run requiring that the Judgment herein be vacated for this reason as well. NOT ONLY WAS THE APRIL 22, 2015 ORDER VOID AND DEFECTIVE BUT THE PLAINTIFF ALSO FAILED TO COMPLY WITH its TERMS 19.Additionally, the Plaintiff failed to comply with the defective and void April 22, 2015 Order which required that the Plaintiff file and serve the Supplemental Summons and Complaint herein on the Guardian ad litem and also by Publication within thirty (30) days of the date of entry of that Order, May 12, 2015, yet the Plaintiff failed to file the Supplemental Summons and Complaint until July 17, 2015 and publish the same until August 2015 both of which were well after thirty(30) days from the date of its entry. 20.Accordingly, service of the Supplemental Service of the Amended Summons and Complaint was never completed as required by the defective April 22, 2015 Order in any event also requiring the Judgment herein to be vacated. 21.Indeed, to permit the Plaintiff to disregard a compulsory provision of this Court's Order would render the Court Orders meaningless and conflicts with the i.e.- well-

11 established principles of the Courts of this State which mandate strict compliance with Court Orders. 22.While late filings are admittedly not jurisdictional in nature, and ordinarily can be cured by order of the court allowing the filings nunc pro tune, that is not the case where, like here, such relief would be to a defendants prejudice by placing the defendant in default as of a date prior to the order permitting the late filing, and gives effect to a default judgment that was otherwise a nullity prior to that time. See Rosato v Ricciardi, 174 AD2d 937, 938 (3d Dept 1991). As the court observed in Rosato: "By granting plaintiff relief nunc pro tune Supreme Court not only gave plaintiff a remedy, but made that relief retroactive to defendants' prejudice by placing defendants in default as of a date prior to the order. It also gave effect to a default judgment which prior thereto was a nullity requiring vacatur... Accordingly, the default judgment should have been vacated, plaintiff granted permission to file the proof of service pursuant to CPLR 2001 and defendants given an opportunity to answer." 23. Additionally, Plaintiff failed to properly serve the Guardian ad litem with the Amended Summons and Complaint insofar as the file is totally devoid of any affidavit of service personally serving the same upon him as required by CPLR For these reasons as well the Judgment and all proceedings and actions taken thereon must be vacated as well. 25.Although not required, as demonstrated by the accompanying Affidavit the Defendant also has meritorious defenses to this action.

12 AN AWARD OF COSTS, SANCTIONS AND ATTORNEY'S FEES IS APPROPRIATE N.Y.C.R.R permits the Court to award costs in the form of reimbursement for actual expenses reasonably incurred and reasonable fees resulting from frivolous conduct in any civil action. In addition to, or in lieu of, awarding costs, the court may impose financial sanctions. Costs and sanctions may be imposed against the client, the attorney or any combination thereof. See 22 N.Y.C.R.R Conduct is "frivolous" if, inter alia: (1) it is completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law (objective bad faith); or (2) it is undertaken primarily to delay or prolong the resolution of the litigation or to harass or maliciously injure another... Id. 28. In determining whether the conduct undertaken was frivolous, the court must consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent or should have been apparent to counsel. /d. 29. As demonstrated above, the Plaintiff's claims are patently frivolous. 30. Accordingly, an award of costs, fees and sanctions against the Petitioner including reasonable attorney's fees is appropriate and necessary.

13 31. No prior application for the relief requested has been made. Dated: April 2018 /s/ PAUL CREINIS ESQ.

14 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X NYCTL TRUST, and THE BANK OF NEW YORK MELLON as Collateral Agent and Custodian for the NYCTL Trust,, Plaintiff, INDEX l14 -against- AFFIDAVIT JOSEPH ZUCCARO, if living and if he/she be dead, any and all persons unknown to plaintiffs, claiming, or who may claim to have an interest in, or generally or specific lien upon the real property described in this action; such unknown persons being herein generally described and intended to be included in the following designation, namely, the wife, widow, husband, widower, heirs at law, next of kin, distributees, descendants, executors, administrators, devisees, legatees, creditors, trustees, committees, lienors, successors in interest and assignees of such deceased, any and all persons deriving interest in or lien upon, or title to said real property by, through or under 1 them, and their respective wives, widows, husbands, widowers, heirs at law, next of kin, distributees, descendants, executors, administrators, devisees, legatees, creditors, trustees, committees, lienors, successors in interest, and assigns, all of whom and whose names, except as stated, are unknown to plaintiffs, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY PARKING VIOLATIONS BUREAU, PIERRE 1" SYL VINCE and "JOI-IN DOE No. through "JOHN DOE 100" No. inclusive, the names of the last 100 defendants being fictitious, the true names of said defendants being unknown to plaintiff, it being intended to designate fee owners, tenants or occupants of the liened premises and/or persons or parties having or claiming an interest in or a lien upon the liened premises, if the aforesaid individual defendants are living, and if any or all of said individual defendants be dead, their heirs at law, next of kin, distributees, executors, administrators, trustees, committees, devisees, legatees, and the assignees, lienors, creditors and successors in interest of them, and generally all persons having or claiming under, by, through, or against the said defendants named as a class, of any right, title, or interest in or lien upon the premises described in

15 the complaint herein, oefendants X STATE OF NEW YORK ) COUNTY OF KINGS ) JOSEPH ZUCCARO, being duly sworn, deposes and says: 1. I am a Defendant herein and, as such, am fully familiar with the facts and circumstances set forth herein. I make this affidavit in support of the instant motion by Order to Show Cause for an Order, among other things, vacating the Default Judgment entered herein against me and dismissing the instant action for lack of personal jurisdiction. 2. As demonstrated below and in the accompanying affirmation, insofar as I was never properly served with the Summons and Complaint herein the default judgment entered against me must be vacated and this matter should be dismissed. Moreover, notwithstanding the foregoing, I also have meritorious defenses herein, thus, the default judgment herein must be vacated on these grounds as well. 3. As an initial matter, I recently became aware that a default judgment was entered against me when I was notified by a third party that my property was transferred pursuant to an auction sale purportedly held in this matter. 4. In addition to never being properly served with the Summons and Complaint, I also never received any additional notice of this action, which I am advised is

16 required by statute, nor did I ever receive any notice of any scheduled Court dates or auction sale. 5. Had I known I certainly would have contacted my attorney and done something to protect my interests as I have every intent of defending this action. 6. Additionally, the fact is I also have meritorious defenses to the Plaintiff's claims. 7. Among other things, I was never served, the Plaintiff has failed to properly credit my account with payments I made pursuant to agreement with the Plaintiff and has purported to charge me with excessive legal fees which they are not authorized to do, the Plaintiff does not properly identify the property in its papers. 8. Accordingly, as demonstrated above and in the accompanying affirmation and exhibits, the default judgment entered against me herein should and must be vacated. Moreover, the Petitioner's complaint should be dismissed or, alternatively, if not dismissed I should we granted leave to appear and defend this action. 9. No prior application for the relief requested herein has been made. WHEREFORE, it is respectfully requested that the instant application be granted in its entirety. /s/ JOSEPH ZUCCARO Sworn to before me this day of 2018 /s/ NOTARY

17 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X NYCTL TRUST, and THE BANK OF NEW YORK MELLON as Collateral Agent and Custodian for the NYCTL Trust,, Plaintiff, INDEX l14 -against- JOSEPH ZUCCARO, if living and if he/she be dead, any and all persons unknown to plaintiffs, claiming, or who may claim to have an interest in, or generally or specific lien upon the real property described in this action; such unknown persons being herein generally described and intended to be included in the following designation, namely, the wife, widow, husband, widower, heirs at law, next of kin, distributees, descendants, executors, administrators, devisees, legatees, creditors, trustees, committees, lienors, successors in interest and assignees of such deceased, any and all persons deriving interest in or lien upon, or title to said real property by, through or under 1 them, and their respective wives, widows, husbands, widowers, heirs at law, next of kin, distributees, descendants, executors, administrators, devisees, legatees, creditors, trustees, committees, lienors, successors in interest, and assigns, all of whom and whose names, except as stated, are unknown to plaintiffs, etal. Defendants X ORDER TO SHOW CAUSE PAUL CREINIS ESQ. Attorney for Joseph Zuccaro 186 Montague Street 4" Floor Brooklyn, NY 11201