FILED: NEW YORK COUNTY CLERK 07/18/2016 02:16 PM INDEX NO. 652605/2016 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/20/2016 SUPREME DAVID COURT B. ROSENBAUM, OF THE STATE an OF attorney NEW YORK duly admitted to practice law before the COUNTY OF NEW YORK Courts X of the State of New York, hereby affirms the truth Index of No. the 652605/2016 following pursuant to WOOSTER 76, LLC, CPLR 2106: Plaintiff, 1. I am member of AFFIRMATION IN -against- SUPPORT OF EX, attorneys for plaintiff FLATIRON REAL PARTE ESTATE ORDER ADVISORS, FOR LLC, SOHO ARTS CLUB LLC and HARIF GUZMAN, ALTERNATIVE ( Plaintiff ), and I am fully familiar with the facts set forth SERVICE herein. Defendants. X 2. This affirmation is submitted in support of Plaintiff s motion seeking an Order: DAVID R. BRODY, an attorney duly admitted to practice law in the State of New York, hereby affirms (a) under pursuant penalty of to perjury CPLR as follows: 3215, entering a default judgment in favor of 1. I am ELEVATORS, a member of Borah, LLC ( NY Goldstein, Electric ) Altschuler, and, NEW Nahins YORK & Goidel, CITY P.C., ELECTRIC attorneys for Wooster 76, LLC follows: ( Plaintiff ), and I am fully familiar with the facts and circumstances set forth herein. i. On the Second Cause of Action awarding Plaintiff damages as 2. I make this affirmation in support of Plaintiff s motion for an Order: (a) pursuant against to NY CPLR Electric 311(b), in the sum granting of $270,000.00; leave to allow Plaintiff to serve Harif Guzman by electronic mail at iii. Guzman s On the Sixth Cause known of Action e-mail awarding Plaintiff address judgment as (info@harifguzman.com); against NYC Elevator and directing it to comply with the agreement (b) pursuant to CPLR 308(5), granting leave to allow iv. Plaintiff On the to Seventh serve Guzman Cause to of electronically Action awarding serve Plaintiff Harif judgment as Guzman against at NY Guzman s Electric directing personal it Instagram to comply account with the agreement (@harifguzman); between the and parties; (b) (c) granting such Plaintiff other and extension further relief of time in Plaintiff s to serve favor Harif as the Court deems Guzman just of and ninety proper. (90) days from the signing of this Order; and Service, and Notice (d) Pursuant granting such to CPLR other and 3215(g) further are relief annexed as this hereto Court deems as Exhibits A, B just and proper. A copy of the Summons & Complaint is annexed as Exhibit A. 1 of 7
DAVID 3. Despite B. ROSENBAUM, good faith efforts an attorney and due diligence, duly admitted Plaintiff to practice has been law unable before to serve the Courts Defendant of Harif the State Guzman of New pursuant York, to CPLR hereby 308. affirms In order the truth for Plaintiff of the following to have its pursuant day in court, to CPLR this Court 2106: should grant Plaintiff s ex parte motion for alternative service. 1. I am member of BACKGROUND GOIDEL, A. The P.C., Parties attorneys for plaintiff FLATIRON REAL ESTATE ADVISORS, LLC, ( Plaintiff ), 4. and Plaintiff I am is fully a domestic familiar limited with the liability facts set company forth herein. organized and existing pursuant to the laws 2. of the This State affirmation of New York, is submitted with offices in support at 25 Howard of Plaintiff s Street, 2nd motion Floor, seeking New York, an New Order: York 10013. 5. Plaintiff (a) pursuant is the to owner-landlord CPLR 3215, of the entering building a located default at 76 judgment Wooster in Street, favor New of York, New York 10013 ELEVATORS, (the Building ). LLC ( NY Electric ) and, NEW YORK CITY ELECTRIC 6. Defendant follows: Soho Arts Club LLC ( Soho ) is a domestic limited liability company organized and existing pursuant i. On the to the Second laws of Cause the State of Action of New awarding York with Plaintiff offices at damages the Building. as 7. Defendant Harif Guzman ( Guzman ) is the guarantor with last known addresses of 76 Wooster Street, New against York, New NY York Electric 10013, in the and sum 401 of Greenbrook $270,000.00; Road, North Plainfield, New Jersey 07063. iii. On the Sixth Cause of Action awarding Plaintiff judgment as B. Relevant Facts against NYC Elevator directing it to comply with the agreement 8. On August iv. On 8, 2014, the Seventh Defendants Cause Soho of and Action Guzman awarding (collectively Plaintiff Defendants ) judgment as executed a written lease agreement between the whereby parties; Plaintiff leased the second and third floors of the Building (the Subject (b) granting Premises ) such other to Defendants and further for a relief term commencing Plaintiff s on favor August as the 15, Court 2014, and ending on August 31, 2017 (the Lease ). Service, 9. and Notice In conjunction Pursuant with to the CPLR Lease, 3215(g) Guzman are executed annexed a hereto guaranty as whereby Exhibits he A, agreed B to be personally liable for payment of performance of Soho s obligations under the Lease (the Guaranty ). 2 2 of 7
DAVID 10. Soho B. ROSENBAUM, defaulted on the an Lease, attorney owing duly a total admitted sum to of practice $135,777.58 law in before rent and the Courts additional of rent the due State through of New and York, including hereby May affirms 1, 2016. the truth of the following pursuant to CPLR 2106: 11. On May 13, 2016, Plaintiff commenced this action by filing with the Supreme Court, New 1. York I am County, member a Summons of and Verified Complaint, dated May 12, 2016, NAHINS as against & GOIDEL, Soho and Guzman P.C., attorneys seeking to for recover plaintiff $135,777.58 FLATIRON in unpaid REAL rent ESTATE due (Exhibit ADVISORS, A). LLC, ( Plaintiff ), 12. and On May I am 26, fully 2016, familiar Soho with and the Guzman facts were set forth evicted herein. from the Subject Premises and Plaintiff 2. obtained This legal affirmation possession is in submitted a separate summary in support proceeding. of Plaintiff s motion seeking an Order: 13. Plaintiff was able to properly serve the Summons and Complaint on Soho by way of the New York (a) Secretary pursuant of State. to CPLR Plaintiff 3215, seeks entering alternative a service default on judgment Guzman because in favor it was of not able to effectuate ELEVATORS, service on Guzman LLC ( NY because Electric ) he is not and, at his NEW last known YORK address, CITY ELECTRIC and he did not leave a forwarding follows: address. C. Attempted Service i. On of the Guzman Second Cause of Action awarding Plaintiff damages as 14. Prior to attempting service on Guzman, we conducted a public database search to determine Guzman s whereabouts. against NY Electric in the sum of $270,000.00; 15. On May iii. 17, On 2016, the at Sixth 4:59 P.M., Cause Plaintiff of Action attempted awarding to serve Plaintiff Guzman judgment a true copy as against NYC Elevator directing it to comply with the agreement of the Summons and Verified between Complaint the parties; with Notice of Commencement of Action Subject to Mandatory Electronic iv. Filing On at the 401 Seventh Greenbrook Cause Road, of Action North Plainfield, awarding Plaintiff New Jersey judgment 07063, as an address obtained by conducting between an Accurint the parties; search on Guzman (Exhibit B). 16. (b) The granting Accurint report such other does not and give further any other relief current in Plaintiff s address for favor Guzman, as the and Court since we already evicted Soho and Guzman from their last known address, attempting service there Service, would have and been Notice pointless. Pursuant to CPLR 3215(g) are annexed hereto as Exhibits A, B 3 3 of 7
DAVID 17. Service B. ROSENBAUM, upon Guzman an was attorney not completed duly admitted as the process to practice server, law Nuno before Veiga, the Courts swears: of the State of New York, hereby affirms the truth of the following pursuant to CPLR 2106: I ATTEMPTED SERVICE ON 5/17/16@ 4:59PM THERE ARE 2 BUSINESSES AT THIS LOCATION AS PER JOANNE 1. I MERRIGAN am member AT of THE DAY CARE CENTER AT THIS LOCATION[,] ENTITY IS UNKNOWN. THE OTHER, BUSINESS attorneys IS for A plaintiff CHURCH FLATIRON AND REAL AS PER ESTATE URSULA ADVISORS, LLC, CARGILL[,] ENTITY IS UNKNOWN. ( Plaintiff ), and I am fully familiar with the facts set forth herein. (Exhibit C). 2. This affirmation is submitted in support of Plaintiff s motion seeking an 18. On May 25, 2016, Plaintiff requested a search for Guzman s forwarding or Order: additional addresses from the United States Postal Service ( USPS ). (a) pursuant to CPLR 3215, entering a default judgment in favor of 19. On Plaintiff June 8, 2016, and the against USPS responded Defendants that Guzman NEW moved YORK without ELECTRIC providing & a ELEVATORS, LLC ( NY Electric ) and, NEW YORK CITY ELECTRIC forwarding address &(Exhibit ELEVATOR D). LLC ( NYC Elevator ) (collectively, Defendants ) as follows: 20. Plaintiff s efforts to serve Guzman at his last known address has been i. On the Second Cause of Action awarding Plaintiff damages as unsuccessful. 21. However, ii. we On know the that Third Guzman Cause has of Instagram Action awarding and e-mail Plaintiff accounts damages (Exhibit E). as against NY Electric in the sum of $270,000.00; CPLR 308 s PRESCRIBED METHODS OF SERVICE iii. On the COULD Sixth NOT Cause BE of MADE Action ON awarding GUZMAN Plaintiff judgment as DESPITE against NYC PLAINTIFF S Elevator directing DUE DILIGENCE it to comply with the agreement 22. CPLR 308(5) explicitly authorizes an improvised method of service pursuant to iv. On the Seventh Cause of Action awarding Plaintiff judgment as an ex parte order when service against by normal NY Electric means directing is impracticable: it to comply with the agreement Personal service upon a natural person shall be made by any of the (b) following granting methods: such other and further relief in Plaintiff s favor as the Court * * * Service, and Notice 5. in such Pursuant a manner to CPLR as the 3215(g) court, upon are annexed motion without hereto notice, as Exhibits A, B directs, if service is impracticable under paragraphs one, two and four of this section. 4 4 of 7
DAVID 23. Due B. ROSENBAUM, process does not an require attorney the impossible; duly admitted rather, to practice a court utilizes law before a test the of Courts reasonableness of the under State the of New circumstances York, hereby to determine affirms whether truth service of the pursuant following to section pursuant 308(5) to CPLR is appropriate. 2106: See Dobkin v. Chapman, 21 N.Y.2d 490 (1968). 1. 24. I Court-ordered am member service of under section 308(5) is permissible where NAHINS a sufficient & GOIDEL, showing is made, P.C., despite attorneys diligent for efforts, plaintiff that FLATIRON such service REAL would ESTATE be futile so ADVISORS, long as the plaintiff LLC, ( Plaintiff ), demonstrates factually and I am that fully conventional familiar with service the facts cannot set be forth made. herein. See Liebeskind v. Liebeskind, 86 A.D.2d 2. 207 This (1st Dep t affirmation 1982), aff d, is submitted 58 N.Y.2d in 858 support (1983); of Saulo Plaintiff s v. Nuomi, motion 119 seeking A.D.2d 657 an (2d Order: Dep t 1986); Markoff v. South Cmty. Hosp., 91 A.D.2d 1064 (2d Dep t 1983). 25. New (a) pursuant York courts to CPLR have found 3215, that, entering where a plaintiff a default has judgment no street address in favor for of a defendant that could ELEVATORS, constitute a viable LLC last ( NY known Electric ) address, and, a NEW plaintiff YORK was CITY permitted ELECTRIC to effect service via a social follows: media website. See Baidoo v. Blood-Dzraku, 2015 N.Y. Slip Op. 25096, 48 Misc. 3d 309, 315 16 (Sup. i. On Ct., the N.Y. Second Cnty. Cause Mar. 27, of 2015) Action (service awarding by Facebook Plaintiff message). damages as 26. The Accurint search (Exhibit B) for Guzman reveals that his last known address prior to the Subject Premises, against from NY which Electric he was in the evicted, sum of was $270,000.00; 401 Greenbrook Road, North Plainfield, New Jersey iii. 07063. On the However, Sixth Cause the individual of Action who awarding answered the Plaintiff door at judgment this address as against NYC Elevator directing it to comply with the agreement stated that Guzman did not between live there the and parties; that he was not known to have lived there. 27. No other iv. recent On the addresses Seventh for Cause Guzman of could Action be awarding found. Plaintiff judgment as 28. On May 26, between 2016, I the conducted parties; a review of Guzman s personally maintained Instagram page (b) (https://www.instagram.com/harifguzman/), granting such other and further relief Plaintiff s which webpage favor as reveals the Court that Guzman personally maintains and regularly posts content on his account (Exhibit E). Service, 29. and Notice Guzman Pursuant also operates to CPLR and maintains 3215(g) are a website annexed at http://www.harifguzman.com, hereto as Exhibits A, B which website contains an e-mail address to be used to contact Guzman (info@harifguzman.com). 5 5 of 7
DAVID 30. On B. May ROSENBAUM, 26, 2016, I conducted an attorney an duly independent admitted electronic to practice mail law verification before the to Courts confirm of the the e-mail State address of New obtained York, for hereby Guzman affirms was valid the (Exhibit truth of F). the The following independent pursuant e-mail to verification CPLR 2106: service verifies an e-mail address by connecting to the user s e-mail server and simulates 1. a message I am being member sent to of the specified address. GOIDEL, 31. P.C., Since attorneys Guzman s for current plaintiff address FLATIRON of residence REAL and ESTATE place of business ADVISORS, are currently LLC, unknown, ( Plaintiff ), Plaintiff and I has am reason fully familiar to believe with that the Guzman facts set can forth be directly herein. contacted by both e-mail and Instagram 2. direct This affirmation message. is submitted in support of Plaintiff s motion seeking an Order: 32. No previous application has been made for the relief requested herein. WHEREFORE, (a) pursuant Plaintiff to CPLR respectfully 3215, requests entering and Order: a default judgment in favor of (a) ELEVATORS, pursuant to LLC CPLR ( NY Electric ) 311(b), granting and, NEW leave YORK to allow CITY ELECTRIC & ELEVATOR Plaintiff to serve LLC ( NYC Harif Guzman Elevator ) by (collectively, electronic mail Defendants ) at as follows: Guzman s known e-mail address (info@harifguzman.com); and i. On the Second Cause of Action awarding Plaintiff damages as (b) pursuant against to NYC CPLR Elevator 308(5), in the granting sum of leave $270,000.00; to allow Plaintiff to serve Guzman to electronically serve Harif Guzman ii. On the at Third Guzman s Cause personal of Action Instagram awarding Plaintiff account damages as (@harifguzman); against NY Electric and in the sum of $270,000.00; (c) iii. granting On the Plaintiff Sixth an Cause extension of Action of time awarding to serve Plaintiff Harif judgment as Guzman against of ninety NYC (90) Elevator days from directing the signing it to comply of this Order; with the agreement and (d) iv. granting On the such Seventh other and Cause further of relief Action as awarding this Court Plaintiff deems judgment as just against and proper. NY Electric directing it to comply with the agreement Dated: New York, New York July 15, (b) 2016 granting such other and further relief in Plaintiff s favor as the Court Service, and Notice Pursuant to CPLR 3215(g) DAVID are annexed R. BRODY hereto as Exhibits A, B 6 6 of 7
SUPREME DAVID COURT B. ROSENBAUM, OF THE STATE an OF attorney NEW YORK duly admitted to practice law before the COUNTY OF NEW YORK Courts X of the State of New York, hereby affirms the truth Index of No. the 652605/2016 following pursuant to WOOSTER 76, LLC, CPLR 2106: Plaintiff, 1. I am member of RULE 130 -against- AFFIRMATION, attorneys for plaintiff FLATIRON REAL ESTATE ADVISORS, LLC, SOHO ARTS CLUB LLC and HARIF GUZMAN, ( Plaintiff ), and I am fully familiar with the facts set forth herein. Defendants. X 2. This affirmation is submitted in support of Plaintiff s motion seeking an Order: DAVID R. BRODY, an attorney duly admitted to practice law in the State of New York, hereby affirms (a) pursuant under penalty to CPLR of perjury 3215, as follows: entering a default judgment in favor of 1. I am ELEVATORS, a member of Borah, LLC ( NY Goldstein, Electric ) Altschuler, and, NEW Nahins YORK & Goidel, CITY P.C., ELECTRIC attorneys for Plaintiff. follows: 2. I hereby i. certify On the that, Second to my knowledge, Cause of Action information, awarding and belief, Plaintiff formed damages after as an inquiry reasonable under the circumstances, the presentation of the attached papers and the contentions therein are not against frivolous NY as Electric defined by in the 22 NYCRR sum of $270,000.00; 130-1.1(c). iii. On the Sixth Cause of Action awarding Plaintiff judgment as Dated: New York, New York against NYC Elevator directing it to comply with the agreement July 15, 2016 iv. On the Seventh Cause of Action awarding Plaintiff judgment as DAVID R. BRODY (b) granting such other and further relief in Plaintiff s favor as the Court Service, and Notice Pursuant to CPLR 3215(g) are annexed hereto as Exhibits A, B 7 7 of 7