FILED NEW YORK COUNTY CLERK 09/16/2016 1014 AM INDEX NO. 653264/2016 NYSCEF DOC. NO. 18 RECEIVED NYSCEF 09/16/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------- X CM Growth Capital Partners, L.P., Plaintiff, -against- Lawrence Penn, III; Altura Ewers a/k/a Altura St. Michael Ewers a/k/a St. Michael Altura Ewers; Camelot Acquisitions Secondary Opportunities Management, LLC; Ssecurion, LLC; The Camelot Group International; A Bighouse Photography and Film Studio LLC; and Camelot Acquisitions Secondary Opportunities G.P., LLC, Defendants. -------------------------------------------------------------- X Index No. 653264/2016 AFFIRMATION OF FRANCIS C. HEALY IN SUPPORT OF EX PARTE APPLICATION FOR ALTERNATE SERVICE ON DEFENDANTS ALTURA EWERS, SSECURION LLC, AND A BIGHOUSE PHOTOGRAPHY AND FILM STUDIO LLC OR, IN THE ALTERNATIVE, TO EXTEND THE TIME TO EFFECT SERVICE I, Francis C. Healy, an attorney duly licensed to practice law before the Courts of the State of New York, affirm the truth of the following statements under penalty of perjury 1. I am a special counsel with the law firm of Stroock & Stroock & Lavan LLP, attorneys for Plaintiff CM Growth Capital Partners, L.P. in the above-captioned matter. I am familiar with the facts discussed herein. I am submitting this Affirmation in support of Plaintiff s Ex Parte Application for Alternate Service on Defendants Altura Ewers, Ssecurion, LLC, and A Bighouse Photography and Film Studio LLC (the Application ). 2. By this Application, Plaintiff seeks leave to serve the summons and complaint in the above-captioned action, as well as other documents, on Defendants Altura Ewers a/k/a Altura St. Michael Ewers a/k/a St. Michael Altura Ewers ( Ewers ), Ssecurion, LLC ( Ssecurion ), and A Bighouse Photography and Film Studio LLC ( Bighouse, collectively the Ewers Defendants ) via alternate means pursuant to New York Civil Practice Law and Rules 308(5) and 311-a(b). Specifically, Plaintiff seeks permission to serve Jeff H. Stern, Esq., ( Stern ) who, 1 of 7
upon information and belief, currently represents Ewers in his unrelated, pending lawsuit against the City of New York. 1 3. Service by alternate means is necessary because, despite Plaintiff s diligent efforts, Plaintiff has been unable to locate a viable address for any of the Ewers Defendants. As Plaintiff cannot determine where the Ewers Defendants are currently residing or working, service by CPLR 308(1), (2), or (4) and 311-a(a) is impracticable. See Franklin v. Winard, 189 A.D.2d 717, 717, (1st Dep t 1993) (holding that plaintiff had shown that service by ordinary means was impracticable by demonstrating that her efforts to obtain information regarding the appellant's current residence or place of abode through ordinary means had proven ineffectual ). Furthermore, as Ewers is sole owner and manager of Ssecurion and Bighouse, serving Ewers will effect service upon Ssecurion and Bighouse. See CPLR 311-a(a)(i), (a)(ii). 4. In the alternative, if this Court does not believe service upon Stern will be effective as to the Ewers Defendants, Plaintiff requests that this court extend the time to serve the Ewers Defendants pursuant to CPLR 306-b. BACKGROUND 5. The above-captioned action arose out of Defendant Lawrence Penn III s ( Penn ) theft of over $9 million from the Plaintiff. See generally Summons and Complaint ( Complaint ), NYSCEF Doc No. 1, attached hereto as Exhibit 1. Penn controlled Defendants Camelot Acquisitions Secondary Opportunities Management, LLC and Camelot Acquisitions Secondary Opportunities G.P., LLC (collectively, the Penn Entities ), Plaintiff s former 1 Altura St. Michael Ewers v. The City of New York, et al., Bronx County Supreme Court, Index No. 304972-2015. -2-2 of 7
investment manager and former general partner, respectively. Complaint 2. Penn used his control over the Penn Entities to misappropriate $9.3 million from the Plaintiff. Id. 6. Ewers is a college acquaintance of Penn. Id. 3. Penn and Ewers conspired together in order to effectuate the theft and misappropriation of Plaintiff s funds. Id. On March 16, 2015, Ewers pled guilty to Grand Larceny in the First Degree, Money Laundering in the First Degree, and Falsifying Business Records in the First Degree for his role in the theft of Plaintiff s property. Id. 5, 6; Transcript of Ewers December 18, 2014 Plea Allocution Hearing, 2214-21, a copy of which is attached hereto as Exhibit 2. 7. Ssecurion and Bighouse are limited liability companies owned and controlled by Ewers. Complaint 16, 20. Penn used his authority over the Penn Entities to cause the Plaintiff to purchase fictitious services from Ssecurion. Id. 2, 3. Ewers then used his control over Ssecurion to reroute that money back to other entities controlled by Penn, occasionally routing the money through Bighouse as well. Id. 26. 8. As both Ssecurion and Bighouse are owned and controlled by Ewers, service upon both can be effectuated by serving Ewers himself, pursuant to CPLR 311-a(a)(i) or (a)(ii). ATTEMPTS TO CONTACT THE EWERS DEFENDANTS 9. The Complaint was filed on June 20, 2016. 10. I have personally made numerous attempts to contact Ewers or his representatives in order to serve him with the summons and complaint in the above-captioned action. 11. On August 8, 2016, I called Ewers at (917) 564-5221, a contact number provided by Ewers in a letter to United States District Judge Caproni of the United States District Court for the Southern District of New York, filed on November 13, 2015 in the currently-pending SEC proceeding against Penn and the Penn Entities (the SEC Letter ). A copy of the SEC -3-3 of 7
Letter is attached hereto as Exhibit 3. I reached the voice mailbox, but was unable to leave a message because the mailbox was full. 12. On the same date, I called Stern, the listed attorney for Ewers in his lawsuit against the City of New York. A copy of the complaint in Altura St. Michael Ewers v. The City of New York, et al. is attached as Exhibit 4. I left a message, but have not heard back from him. 13. On August 11, 2016, I called Ewers again at the same number I had tried previously. I reached his voice mailbox, and left a message asking him or his counsel, if any, to contact me. I have not yet heard back from him. 14. On August 11, 2016, I emailed Ewers at altura.ewers@gmail.com, an email address provided by Ewers in the SEC Letter. I attached a copy of the summons and complaint, and asked him to contact me or provide me with his counsel s contact information. A copy of the August 11, 2016 email to Ewers is attached hereto as Exhibit 5. I have not yet received any reply. 15. On September 12, 2016, I sent a letter to Stern via overnight delivery to the address he has registered with the Appellate Division of the Supreme Court of the State of New York, asking him to contact me. A copy of the September 12, 2016 letter to Stern is attached hereto as Exhibit 6. I have not yet received any reply. ATTEMPTS TO SERVE THE EWERS DEFENDANTS 16. In addition to my attempts to contact Ewers directly, I have made numerous attempts to affect service on Ewers at addresses where he purportedly resides or is employed. 17. Ewers listed his address as 411 Convent Ave, New York, New York, 10031 in the SEC Letter. On August 1, 2016, Thomas Bobe attempted to personally serve him at that address. Upon arriving, he was informed by the building s doorman that Ewers had since moved from -4-4 of 7
that address. A copy of the affidavit of service from Thomas Bobe, dated August 30, 2016, is attached hereto as Exhibit 7. 18. In a declaration of service submitted by the SEC in its litigation against Penn and Ewers, the SEC listed a second New York City address for Ewers 449 E. 14th St., Apt 4F-E, New York, New York, 10009. 19. On August 3, 2016, Avatar Neal attempted to personally serve Ewers at that address. Upon arriving, he was informed by the occupant of that address, Mr. Rubenstein, that Ewers did not reside at that address. A copy of the affidavit of service from Avatar Neal, dated August 31, 2016, is attached hereto as Exhibit 8. 20. Upon information and belief, credit header databases list Ewers most recent address as 1255 Taylor Street, Apt. 7, San Francisco, California, 94108. An abstract of an incarceration record for Ewers from February, 2014 also listed the same address as Ewers place of residence. 21. On August 10, 2016, Nate Freed attempted to personally serve Ewers at that San Francisco address. Upon arriving, he was informed by the resident of that apartment that she had never heard of Ewers. A copy of the affidavit of service from Nate Freed, dated August 26, 2016, is attached hereto as Exhibit 9. 22. Upon information and belief, on April 1, 2016, Ewers applied for, and received, a Florida driver s license using an address of 821 E. 145th Avenue, Tampa, Florida, 33613. 23. On August 12, 2016, Linda Martin attempted to personally serve Ewers at that Tampa address. Upon arriving, she was informed by the residents of that address that Ewers did not reside there. A copy of the affidavit of service from Nate Freed, dated August 17, 2016, is attached hereto as Exhibit 10. -5-5 of 7
24. A Facebook page, believed to belong to Ewers, currently lists his residence as Berlin, Germany. That page is located at https//www.facebook.com/mr.alewers. SERVICE UPON STERN WILL LIKELY BE EFFECTUAL 25. Stern currently represents Ewers in a separate legal proceeding, Altura St. Michael Ewers v. The City of New York, et al., Bronx County Supreme Court, Index No. 304972-2015, and is presumably in contact with Ewers. A review of the docket of that case shows that the case is still ongoing, and that Stern has not withdrawn from his representation. A copy of the current docket is attached hereto as Exhibit 11. 26. Numerous courts have found that service upon a party s attorney is an acceptable means of service under CPLR 308(5) (and, therefore, CPLR 311-a(b)) and is adequate to apprise [the party] of the action if service upon the party would be impracticable otherwise. Born To Build, LLC v. Saleh, 139 A.D.3d 654, 656 (2d Dep t 2016). See also Franklin, 189 A.D.2d at 717; Kelly v. Lewis, 220 A.D.2d 485, 486 (2d Dep t 1995); Vincent C. Alexander, Practice Commentaries, McKinney s Cons Laws of NY, CPLR 311-a. ALTERNATIVELY, THIS COURT SHOULD EXTEND THE TIME TO SERVE THE EWERS DEFENDANTS 27. In the alternative, if this court determines that service upon Stern would not be effective as to the Ewers Defendants, we request that the time by which Plaintiff may serve the Ewers Defendants be extended pursuant to CPLR 306-b. 28. CPLR 306-b requires plaintiffs to serve defendants within 120 days of the filing of the complaint. 29. As the Complaint was filed on June 20, 2016, CPLR 306-b requires Plaintiff to serve the Ewers Defendants by October 16, 2016, which is approximately one month away. -6-6 of 7
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