FILED: NEW YORK COUNTY CLERK 12/08/2014 06:46 PM INDEX NO. 152558/2013 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 12/08/2014 ATTORNEY AFFIRMATION
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------X BONNIE LOREN AND PROCESS STUDIO THEATRE, INC., Plaintiff, AFFIRMATION IN SUPPORT OF AMENDED MOTION FOR DEFAULT JUDGEMENT PURSUANT TO UNIFORM RULE 202.27 and/or CPLR 3215 CHURCH ST APARTMENT CORP. and LISA LIEBERT, -against- INDEX NO.: 152558/2013 Defendants. --------------------------------------------------------------------------X Hon. Peter H. Moulton COUNSEL: Richard Stephen Boatti, an attorney duly admitted to practice law before the courts of the State of New York, affirms the following to be true: 1. I am a member of the law firm Boatti PLLC, attorneys of record for Plaintiff BONNIE LOREN AND PROCESS STUDIO THEATRE, INC., hereinafter referred to as PLAINTIFF. I make this affirmation in support of Plaintiff s motion for default judgement pursuant to Uniform Rule 202.27 and/or CPLR 3215.
2. I am fully familiar with the facts and circumstances surrounding the above-captioned matter. PROCEDURAL HISTORY 3. This action was commenced by the filing of the Summons and Verified Complaint on or about March 20, 2013. A copy of the Summons and Complaint is attached hereto as Exhibit A. 4. Plaintiff brought this action for the damage sustained by Plaintiff s property due to negligence and breaches of the lease by the Plaintiff s landlord, Defendant CHURCH ST APARTMENT CORP. and as against Defendant LISA LIEBERT for assault and battery and false imprisonment and as an owner/officer/director of Defendant CHURCH ST. APARTMENT CORP. 5. Defendant LISA LIEBERT was served with the Summons and Complaint in this action but has not appeared, as the affidavit of service attached hereto as part of Exhibit B, attests to. 6. Defendant LISA LIEBERT is an attorney and should not be afforded the judicial leeway that typical pro se parties are often afforded. See Proof of Defendant LIEBERT s status as an attorney attached hereto as Exhibit G. 7. Counsel for Defendant CHURCH ST APARTMENT CORP. requested the preliminary conference in this action, and noticed all parties of the Preliminary Conference of the Conference s adjourned date to October 8, 2014. Copies of the request and notice and affidavit of service of the same are attached hereto as part of Exhibit B.
8. Defendant LISA LIEBERT did not appear at the Preliminary Conference in this action, as the Preliminary Conference Order shows, a copy of which attached hereto as Exhibit C. 9. Plaintiff now moves this Honorable Court for DEFAULT JUDGEMENT against Defendant LISA LIEBERT (hereinafter the Defaulting Defendant ) on the issues set forth herein. STANDARD OF REVIEW 10. The relevant part of Uniform Rule 202.27 states: At any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and enter an order as follows: (a) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest;; FACTS 11. In the present action, the Defaulting Defendant has failed to appear at this action s preliminary conference despite being served personally with the summons, complaint, exhibits, and served via first class mail of notice of the aforementioned preliminary conference. 12. The Defaulting Defendant s presence at the Preliminary Conference has not been excused. The Defaulting Defendants have been in default since October 8, 2014. 13. The Defaulting Defendant has not been an active-duty member of the Military during the times relevant to this action. See a copy of the Affidavit of Investigator that Defendant is not in Military Service, attached hereto as Exhibit
D. 14. The accompanying Affidavit of Plaintiff BONNIE LOREN AND PROCESS STUDIO THEATRE, INC., attached hereto as Exhibit E, sets forth the facts constituting the claim. 15. Plaintiff s current attorney in this action has taken this case on contingency. However, Plaintiff s attorneys have spent 21.84 hours on this action thus far, and our hourly rate at the time we commenced our representation of the Plaintiff was $250/hr. Under New York Law, attorneys fees are awarded not on contingency, but for market value of the actual work done, thus totaling $5,460.00. Additionally, the Plaintiff has accrued $568.50 in other costs in prosecuting this action from her current attorney. See affidavit of costs and work performed by Plaintiff s current Attorney, attached hereto as Exhibit F. WHEREFORE, Plaintiff BONNIE LOREN AND PROCESS STUDIO THEATRE, INC. respectfully requests this Honorable Court to: a. Issue JUDGEMENT in DEFAULT against Defendant LISA LIEBERT on the causes of action set forth in the Complaint, and shall recover of Defendants LISA LIEBERT whose address is 86 Dahlia Dr. Mastic Beach, NY 11951, the amount of $10,000,000.00, with statutory interest of 9% per annum thereupon, together with fees and costs from Plaintiff s attorney in the amount of $6,028.50 and that Plaintiff have execution therefor for the total amount of $10,096,028.50;; or in the alternative b. Setting this matter down for an INQUEST in favor of the Plaintiff,
assessing damages in a sum certain or for a sum which can by computation be made certain, and awarding costs with interest to Plaintiff and fees to Plaintiff s attorneys, and for such other relief as this Honorable Court deems just and proper. Dated: New York, New York December 8, 2014 Yours, Boatti PLLC Richard Stephen Boatti Boatti PLLC 44 Wall St., 12th Floor New York, NY 10007 (646) 481-4796 Attorneys for Plaintiff BONNIE LOREN AND PROCESS STUDIO THEATRE, INC.