AFFIDAVIT / ATTORNEY'S AFFIRMATION IN SUPPORT OF NOTIFICATION

AFFIDAVIT / ATTORNEY'S AFFIRMATION IN SUPPORT OF NOTIFICATION Instructions: Fill in the box below and the index number. Complete the blank spaces printed in bold below following the directions provided. Print and use black ink only. 'ft-" * ' *,*: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No. 22785 \Fttl In Name(s)\) /Petitioner (s) ASH BROKERAGE CORPORATION, VS. MOSHE LIBERMAN, BLACKSTONE GROUP BROKERAGE, LLC, METROPOLIS AGENCY, LLD, TZVI KATZ, YAAKOV ILOWITZ, HADASSAH ILOWITZ and SHAYA ILOWITZ, {Fill in Name(s)] Defertdant(s) / Respondents) STATE OF NEW YORK } COUNTY OF KINGS [insert County Where Signed] STEVEN J. WEISSLER, ESQ. [Your Name], being duly SWorn (an attorney admitted to practice in the State of New York, duly affirms under penalty of perjury, if attorney), Says;...... 26 COURT STREET, SUITE 1700 1. I reside at BROOKLYN, NEW YORK 11242 in the County of KINGS ce] and State of New York. 2. I am about to submit an order to show cause containing a stay and /or restraining Order for [Briefly describe the reasons why you want the Court to grant your request.] STAY THE ENFORCEMENT OF A DEFAULT JUDGMENT ORDER AND TO STAY THE EXECUTION OF THE JUDGMENT; and PURSUANT TO CPLR SECTION 2221 (d), GRANTING LEAVE TO REARGUE THE COURT'S DECISION GRANTING PLAINTIFF ' s MOTION FOR DEFAULT JUDGMENT and DENYING DEFENDANTS' CROSS-MOTION TO COMPEL PLAINTIFF'S ACCEPTANCE OF DEFENDANTS' VERIFIED ANSWER TO PLAINTIFF'S AMENDED COMPLAINT, UPON THE GROUNDS THAT THE COURT OVERLOOKED, MISAPPLIED and/or MISAPPREHENDED RELEVANT FACTS AND LAW, Page I of 2

FILL IN EITHER PARAGRAPH 3 or A.,, 4l / THE EX-PARTE OFFICE, ROOM 295 3: > I have notified my.opposition to appear in RartcTSf iflftd&soonojelk at 360 Adams Street, Brooklyn, NY, a) [WHEN DID YOU CALL OR FAX THEM?] *' On the 22nd Of NOVEMBER,2016 at 1:59 DAY MONTH TIME b) [WHAT NUMBER DW YOU DIAL?] - 285-0205 AREACODE- C) [DID YOU RECEIVE A RESPONSE?] CIRCLE ONE\(YE$/I NO [IF YES, WRITE RESPONSE HERE AND INCLUDE THE NAME OF THE PERSON WITH WHOM YOU SPOKE] I SPOKE WITH SANFORD F. YOUNG, ESQ., WHO TOLD ME THAT HE WILL BE THERE ON NOVEMBER 23,.2016 at 2:00 P.M. _. d) [WHEN DID YOUTELL THEM TO APPEAR IN COURT - Must be a specific time between^ a.m. - 12 p.m. or 2-3 p.m. (e.g. 10:40 a.m.)] On the 23rd of NOVEMBER, 20 16 at 2:00 DAY MONTH. TIME 4. I believe that there will be significant prejudice by giving notice because: [DETAIL REASONS] 5. Has a previous application been made for this relief? CIRCLE ONE: /^NcT) / YES [Ifyes, you must provide a description of where, when and by whom the request was made, the result, and if the application was unsuccessful, why you believe you are entitled to apply again. ] DATE : NOVEMBER PRESENCE OF A NOTARY PUBLIC, except attorneys] #< STEVEN J. WEISSLER, ESQ. [NOTARY PUBLIC] " [PRINT YOUR NAME]

At an IAS 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, New York, on the day of November, 2016. PRESENT: HON. Justice ASH BROKERAGE CORPORATION, Plaintiff, Index No. 22785/2012 -against- ORDER TO SHOW CAUSE MOSHE LIEBERMAN, BLACKSTONE GROUP BROKERAGE, LLC, METROPOLIS AGENCY, LLC, TZVI KATZ, YAAKOV ILOWITZ, HADASSAH ILOWITZ, and SHAYA ILOWITZ, Defendants, Upon the annexed Affirmation of MARK A. LONGO, ESQ. dated the 23rd day of November, 2016, and upon all the pleadings and proceedings heretofore had herein, together with the Exhibits annexed thereto. LET all the parties herein and their respective attorneys Show Cause at an I.A.S. Part of the Supreme Court of the State of New York, County of Kings, at the Courthouse located at 360 Adams Street, Brooklyn, New York, on the day of,2016 at 9:30 o'clock in the forenoon of that day or at such time thereafter as counsel can be heard, WHY an Order should not be made and entered herein;

1. Pursuant to CPLR 222 l(d), granting leave to reargue the Court's decision which granted plaintiffs motion for default judgment and denied the defendants' cross-motion to compel plaintiffs acceptance of defendants' Verified Answer to plaintiffs Amended Complaint, upon the grounds that the Court overlooked, misapplied and/or misapprehended relevant facts and law; and, in the event that such leave is granted that such re-argument then and there proceed; and 2. Upon re-argument, denying plaintiffs motion for default judgment in all respects; and 3. Upon re-argument, granting the defendants' cross-motion to compel plaintiffs acceptance of defendants' Verified Answer to plaintiffs Amended Complaint; and 4. Upon re-argument vacating the Default Judgment Order of the Court dated November 16, 2016, which awarded the plaintiff the sum of $602,144.30, with interest, from February 28, 2012; and 5. Upon re-argument, vacating and setting aside the above Order on the grounds that there exists a valid excuse for the default herein under CPLR 5015(a)(l); and 6. Upon re-argument, directing the office of the Sheriff to stay the execution of the judgment with interest; and; 7. Upon re-argument, directing the law offices of SANFORD F. YOUNG, P.C., to accept an Answer to Amended Complaint interposed on behalf of the defendants within twenty (20) days after the determination of this application; and 8. For such other, further and different relief which to this Court seems just and proper under the circumstances. SUFFICIENT REASON APPEARING THEREFORE, it is

ORDERED, that pending the hearing and determination of this application, that all parties herein and their respective attorneys, and all other parties acting through them and in their behalf, be stayed from taking any further steps or proceedings herein, and it is further ORDERED, that pending the hearing and determination of this application, that the office of the Sheriff be temporarily restrained from the execution of the Judgment with interest; and it is further ORDERED, that sufficient cause having been shown herein, LET service of a copy of this Order to Show Cause, together with the papers upon which it is granted, be served upon: SANFORD F. YOUNG, P.C,, with offices located at 225 Broadway, Suite 2008, New York, New York 10007; and upon the Office of the Sheriff, Law Enforcement Bureau, with offices located at 66 John Street, 13th Floor, New York, New York 10038, by Certified Mail - Return Receipt Requested, on or before the day of,2016. be deemed good and sufficient service. ENTER J.S.C. Our File No. B8120

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _ x ASH BROKERAGE CORPORATION, Plaintiff, Index No. 22785/2012 -against- AFFIRMATION IN SUPPORT MOSHE LIEBERMAN, BLACKSTONE GROUP BROKERAGE, LLC, METROPOLIS AGENCY, LLC, TZVI KATZ, YAAKOV ILOWITZ, HADASSAH ILOWITZ, and SHAYA ILOWITZ, Defendants, - -x MARK A. LONGO, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the truth of the following under the penalty of perjury as follows: I am a member of the law firm of LONGO & D'APICE, ESQS., Trial Counsel to LIPSIUS-BENHAIM LAW, LLP, as attorneys for the defendants, MOSHE LIEBERMAN, BLACKSTONE GROUP BROKERAGE, LLC, METROPOLIS AGENCY, LLC, TZVI KATZ, YAAKOV ILOWITZ, HADASSAH ILOWITZ, and SHAYA ILOWITZ. I am fully familiar with the facts and circumstances surrounding this matter. This familiarity is based upon an examination of the file maintained by the law offices of LIPSIUS-BENHAIM LAW, LLP. This Affirmation is respectfully submitted in support of the instant Order to Show Cause which seeks an Order: 1. Pursuant to CPLR 2221(d), granting leave to reargue the Court's decision which 4

granted plaintiffs motion for default judgment and denied the defendants' cross-motion to compel plaintiffs acceptance of defendants' Verified Answer to plaintiffs Amended Complaint, upon the grounds that the Court overlooked, misapplied and/or misapprehended relevant facts and law; and, in the event that such leave is granted that such re-argument then and there proceed; and 2. Upon re-argument, denying plaintiffs motion for default judgment in all respects; and 3. Upon re-argument, granting the defendants' cross-motion to compel plaintiffs acceptance of defendants' Verified Answer to plaintiffs Amended Complaint; and 4. Upon re-argument vacating the Default Judgment Order of the Court dated November 16, 2016, which awarded the plaintiff the sum of $602,144.30, with interest, from February 28, 2012; and 5. Upon re-argument, vacating and setting aside the above Order on the grounds that there exists a valid excuse for the default herein under CPLR 5015(a)(l); and 6. Upon re-argument, directing the office of the Sheriff to stay the execution of the judgment with interest; and; 7. Upon re-argument, directing the law offices of SANFORD F. YOUNG, P.C., to accept an Answer to Amended Complaint interposed on behalf of the defendants within twenty (20) days after the determination of this application; and 8. For such other, further and different relief which to this Court seems just and proper under the circumstances. STATEMENT OF FACTS This is action to recover monetary damages arising at the result of a dispute concerning the

plaintiffs claim that they are entitled to the return of an alleged commission for a rescinded life insurance policy following the death of an individual HENRY CHERA who died on October 6, 2008. More specifically, HENRY CHERA signed an application for a life insurance policy for which the plaintiff ASH BROKERAGE CORPORATION (hereinafter referred to as "ASH") received a commission in the amount of $602,144.30. Thereafter, on August 1,2008, the plaintiff ASH allegedly paid to the defendants the sum of $460,159.23, as their commission out of the $602,144.30 obtained by the plaintiff from AXA EQUITABLE LIFE INSURANCE COMPANY (hereinafter referred to as "AXA"). Finally, on February 28, 2012, the plaintiff ASH entered into a Commission Recovery Agreement with AXA to return and pay the sum of $602,144.30 without interest based upon the rescission of the life insurance policy issued to HENRY CHERA. PROCEDURAL HISTORY Action was commenced by the service of a Summons and Complaint dated November 28, 2012, a copy of which is attached as Exhibit "A". Issue was joined as to the defendants MOSHE LIEBERMAN, BLACKSTONE GROUP BROKERAGE, LLC, METROPOLIS AGENCY, LLC; and TZVI KATZ, by service of their Answer dated February 15, 2013, a copy of which is attached as Exhibit "B". A Preliminary Conference was held on September 23, 2013 at which time the Court issued a Preliminary Conference Order, a copy of which is attached as Exhibit "C". Another Preliminary Conference was held on October 1, 2014 at which time the Court issued an Order which is attached as Exhibit "D". Following the Examinations Before Trial of all parties including the deposition of YAAKOV ILOWITZ who was not named in the Summons and Complaint, counsel for the 6

plaintiff served a motion for leave to serve a Supplemental Summons and an Amended Complaint to name YAAKOV ILOWITZ, HADASSAH 1LOWITZ, and SHAYA ILOWITZ as additional defendants. Such motion was based upon new information learned at the deposition of YAAKOV ILOWITZ who disclosed that he had a ninety-five (95%) percent interest and that HADASSAH ILOWITZ had a five (5%) percent in the corporate defendants. On October 29, 2015, the Hon. Carolyn E. Demarest issued an Order which granted the plaintiffs motion thereby allowing the plaintiff to serve and file an Amended Complaint. The Order directed that additional parties are to be served within thirty (30) days but is silent as to when or if an Answer is to be served. A copy of the Order of Justice Demarest is attached as Exhibit "E". On January 11, 2016, counsel for the defendants served a motion to dismiss the plaintiffs Amended Complaint in lieu of an Answer to the Amended Complaint which resulted in the Order of the Hon. Sylvia G. Ash dated July 28, 2016, a copy of which is attached as Exhibit "F", which denied the defendants' motion as to YAAKOV ILOWITZ and HADASSAH ILOWITZ and granted the motion as to SHAYA ILOWITZ. On September 23,2016, the plaintiff served a motion for an Order pursuant to CPLR 3215 directing entry of a default judgment against all of the defendants except SHAYA ILOWITZ jointly and severally in the amount of $602,144.30 with interest from February 28, 2012, or, in the alternative declaring defendants other than SHAYA ILOWITZ in default and directing an Inquest to assess damages. A copy of the plaintiffs motion without Exhibits is attached as Exhibit "G". On October 31, 2016, counsel for the defendants served an Affirmation in Opposition 7

including a proposed Answer to Amended Complaint which is collectively attached as Exhibit "H". On November 14,2016, counsel for the defendants served a cross-motion to compel plaintiffs acceptance of the defendants' Verified Answer to plaintiffs Amended Complaint including the Affirmation of defendants' counsel IRA S. LIPSIUS, ESQ., in opposition to the plaintiffs motion for default and in support of the cross-motion to compel acceptance of defendants' Answer, a copy of which is attached as Exhibit "I". On November 16, 2016, the Hon. Sylvia Ash issued an Order which grants the plaintiffs motion for a default judgment and which directs the Clerk to enter judgment on the First Cause of Action against defendants MOSHE LIEBERMAN, BLACKSTONE GROUP BROKERAGE, LLC, METROPOLIS AGENCY, LLC, TZVI KATZ, YAAKOV ILOWITZ, and HADASSAH ILOWITZ, jointly and severally for the sum of $602,144.30 with interest from February 28, 2012 and have execution thereof. In addition, the Order denied the defendants' cross-motion and noted the dismissal as to SHAYA ILOWITZ. The Order of Justice Ash is silent as to the reason or rationale for the granting of the plaintiffs motion for default and for the denial of the defendants' cross-motion to compel the acceptance of an Answer to the Amended Complaint. LEGAL ARGUMENT The defendants seek an Order, pursuant to CPLR 222 l(d), granting leave to reargue the Court's decision dated November 16, 2016 which granted plaintiffs motion for default judgment and denied the defendants' cross-motion to compel the acceptance of the defendants' Answer to Amended Complaint, upon the grounds that the Court overlooked, misapplied and/or misapprehended relevant facts and law; and, in the event that such leave is granted that such 8

re-argument then and there proceed; and upon re-argument, deny the plaintiffs motion for default judgment in all respects; and grant the defendants' cross-motion to compel the plaintiff to accept an Answer to the plaintiffs Amended Complaint within twenty (20) days following the determination of this Order to Show Cause. Rule 2221 (d) of the Civil Practice Law and Rules provides in part as follows: "A motion for leave to reargue: "1. Shall be identified specifically as such; "2. Shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and "3. Shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals". CPLR 2221(d) (Consol. 2006). At the outset, it is respectfully submitted that the instant motion was timely served within thirty (30) days after the issuance of the Order by the Hon. Sylvia Ash dated November 16, 2016. Pursuant to CPLR 222 l(d), a Motion for leave to Reargue shall be identified as such and shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and shall be made within thirty (30) days after service of a copy of the Order determining the prior motion and written notice of its entry. It is respectfully submitted that the defendants are not offering any new evidence herein but rather upon reargument the defendants wish to address facts and law apparently overlooked or misapprehended in deciding the motion and cross-motion. 9

Pursuant to CPLR 2221, a party may serve a Motion for leave to Reargue or to Renew a prior Motion which must be made to the Judge who signed the original Order. A motion to Reargue is based on no new proof but rather seeks to convince the Judge that he/she was wrong and should change his/her mind whereas a Motion to Renew is based on new or additional proof not used upon the original motion. See Siegel, New York Practice 254, pp 313 and 314. A Motion to Reargue, directed to the sound discretion of the Court, must demonstrate that the court overlooked, misapplied or misapprehended the relevant facts or law. (See CPLR 222l(d) (2); Spa Realty Associates v. Spring Associates, 213 A.D.2d 781, 783, 623 N.Y.S.2d 22 (3rd Dept., 1995); Grassel v. Albany Medical Center Hosp.. 223 A.D.2d 803, 806, 636N.Y.S.2d 154 (3rd Dept., 1996). Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided. Folev v. Roche, 68 A.D.2d 558, 567, 418 N.Y.S.2d 588 (1st Dept., 1979, h. Denied 56 N.Y.2d 507, 453 N.Y.S.2d 1025, 438 N.E.2d 1147). A Motion to Reargue is addressed to the discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason improperly decided the prior motion. Skorr v. Skoor Steel Co.. Inc.. 8 Misc.3d 1021, 803 N.Y.S.2d 21 (N.Y.Supp. 2005). The purpose of a motion for reargument is to afford a party an opportunity to demonstrate that the court overlooked or misapprehended the law or facts pertinent to the original motion (see CPLR2221[d] [2]; Andrea vs. du Pont de Nemours & Co.. 289 A.D.2d 1039, 1040-1041 [2001]; Folev v.roche, 68 A.D.2d 558, 567 [1979]; American Trading Co. v. Fish. 87 Misc.2d 193, 195 [1975]). 10

The purpose of Rule 2221 is "to prevent inconsistent decisions by Justices of coordinate jurisdiction". Folev v. Roche, 68 A.D.2d 558, 567, 418 N.Y.S.2d 588 (1st Dept, 1979). To effectuate this purpose, a party may move for a reargument to establish that a court overlooked or misapprehended relevant facts or misapplied a controlling principle of law. Michael v. Communication Workers of America. 495 N.Y.S.2d 569 (Sup. 1985); Foley. 418 N.Y.S.2d at 593; Hill v. Edelman. 92 Misc.2d 484, 401 N.Y.S.2d 697 (Sup. 1977). Upon reargument, the defendants seek to vacate and set aside the Order of Justice Ash dated November 16, 2016 (Exhibit "J", attached) on the grounds that there exists a valid excuse for the default herein and the defendants have a meritorious defense under CPLR 5015(a)(l). It is respectfully submitted that this court apparently overlooked the Memorandum of Law submitted by the defendants which was attached to the defendants' cross-motion to compel the acceptance of an Answer to the Amended Complaint (Exhibit "I") which recites the strong public policy in the State of New York which favors the resolution of matters on the merits. Rule 5015(a)(l) governing excused Default Judgments applies in the present case since the defendants have (a) a reasonable excuse for default; (b) are making the Motion within one (1) year after learning of the Default Judgment; and (c) have properly presented an Affidavit of Merit. Generally, the determination of a Motion to be relieved of a default lies within the sound discretion of the Court. IJ Handa. PC v. Imperato. 159 A.D.2d 484 (2nd Dept., 1990). Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits. Harcztark v. Drive Variety. Inc. 21 A.D.3d 876 (2nd

Dept, 2005). It is further respectfully submitted that the facts clearly indicate that the Default and Inquest herein were not willful and that the plaintiffs would in no way be prejudiced by the relief requested herein. Pirdy v. Kutsher's Inc.. 97 A.D.2d 752 (2nd Dept., 1983). As such, there is no reason why the strong preference to resolve cases on their merits and the liberal policy to open Defaults in the furtherance of justice should not be followed with respect to this action. J.W. Mays Inc. v. Adsco Distributors Inc., 79 A.D.2d 673 (2nd Dept., 1980); 38 Holding Corp. v. City of New York, A.D.2d 486 (1st Dept., 1992). Pursuant to CPLR 3012(d), the Court may, upon the application of any party, "extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default". This section of the CPLR does not require a showing of a meritorious defense. See Kremer v. Kremer. 150 A.D.2d 759, 542 N.Y.S.2d 24 (2nd Dept., 1989); Chine v. China. 125 A.D.2d 934, 510 N.Y.S.2d 934 (4th Dept., 1986); citing Shure v. Village of Westhampton Beach, 121 A.D.2d 887, 503 N.Y.S.2d 802 (1st Dept, 1986); Continental Casualty Co. v. Cozzolino Constr. Corp., 120 A.D.2d 779, 501 N.Y.S.2d 513 (3rd Dept, 1986); Mufalli v. Ford Motor Co., 105 A.D.2d 642, 644, 481 N.Y.S.2d 703, 704 (1st Dept., 1984). In fact, there is a strong public policy in the State of New York in favor of resolving cases on the merits and not on default See Balint v. Marine Midland Bank. 112 A.D.2d 1023,493N.Y.S.2d21 (2nd Dept, 1985). The law favors the resolution of cases on the merits, and therefore, Courts are generally liberal in opening defaults. See Bishop v. Galasso. 67 A.D.2d 753, 412 N.Y.S.2d 214 (3rd Dept, 1979). It is the general policy of the Courts in the State of New York to permit actions to be 12

determined by trial on the merits wherever possible, and therefore, a liberal policy is adopted with respect to opening defaults in the interest of justice so that all parties may have their day in Court to litigate the issues. See Cappell v. RKO Stanley Warner Theaters Ins., 61 A.D.2d 936, 403 N.Y.S.2d 31 (1st Dept, 1978). The Second Department reiterated this long-held policy in Simpson v. City of New York, stating that "actions should be resolved on their merits wherever possible ", 10 A.D.3d 601, 781 N.Y.S.2d 683 (2nd Dept., 2004). It is well settled that a Default Judgment may be denied if it is demonstrated that there is both a reasonable excuse for the default and a meritorious defense. Fidelity and Deposit Co. v. Arthur Anderson. 60 N.Y.2d 693, 455 N.E.2d 1259, 468 N.Y.S.2d 464 (1983); Fierro v. Fierro. 211 A.D.2d 676, 621 N.Y.S.2d 630 (2nd Dept., 1995); Capitol Distributors Corp. v. Church Avenue Wine, 204 A.D.2d 588, 612 N.Y.S.2d 618 (2nd Dept, 1994); Price v. Salvo, 203 A.D.2d 349,610N.Y.S.2d81 (2nd Dept., 1994). InGendojoian v. Heaps. 186 A.D.2d534, 588N.Y.S.2d (2nd Dept., 1992), the Second Department held that "[t]he disposition of controversies on the merits is favored and, in furtherance of that policy, a default will be vacated upon a proper showing of a meritorious defense and an excusable default". Lastly, it has long been the policy of this State that the resolution of lawsuits should be on the merits (see generally, Smithtown General Hosp. v. Allstate Insurance Co., Ill 382, 489 N.Y.S.2d 590 A.D.2d (1985); Glass v. Janback Proa. 73 A.D.2d 106, 425 N.Y.S.2d 343). It is further respectfully submitted that this Court should vacate the Default Judgment Order dated November 16, 2016, to permit the defendants to dispute the plaintiffs conclusions as to damages. If this Court should uphold the default, the defendants are still entitled to defend on the 13

issue of damages. A default entered against a defendant is not an admission of plaintiff s conclusion as to damages. Rokina Optical Co. Inc. v. Camera King Inc., 63 N.Y.2d 728 (1984). Even if a motion to vacate a default is denied, a defendant is entitled to appear at an Inquest and defend the issue of damages. Krauss Bros, v. LV Hoffman & Co.. Inc.. 98 AD2d 692 (1st Dept 1984). It is respectfully submitted that the defendants have both an adequate excuse for their default and a meritorious defense. This is not a lawsuit in its infancy where a plaintiff seeks to take a default based on a failure to answer a Complaint. To the contrary, the lawsuit herein was commenced by the service of a Summons and Complaint almost four (4) years ago related to a life insurance policy issued more than eight (8) years ago for an individual who died approximately eight (8) years ago. There is no escaping the fact that an Answer to the original Complaint was served on February 15, 2013, which was approximately three and one-half (3 Vz) years ago. As this Court is well aware, there was protracted litigation including depositions in advance of the service of an Amended Complaint which added two (2) defendants, one of whom, YAAKOV ILOWITZ, was deposed before he was named as an additional defendant. On a motion to vacate a default judgment in an action in its infancy, it is not unusual to expect a defaulting defendant to submit an Affirmation or Affidavit demonstrating a meritorious defense and a reasonable excuse for the failure to timely answer because in that instance no Answer was served. However, this is not a default situation where no Answer was served. To the contrary, in this instance, an Answer was served over three (3) years ago which contains 14

denials of the claims by the plaintiff of fraud, breach of contract, unjust enrichment and negligence. This lawsuit is in its late stages of litigation after the completion of depositions. In addition, there is no secret that the defendants have asserted the defense of plaintiff s unclean hands. It is respectfully submitted that it is absurd for the plaintiff herein to imply that there is no meritorious defense after the passage of years of litigation. The defendants have repeatedly denied the claims of misrepresentation, conspiracy, and fraud. The defendants have earned their commissions and there was no scheme to defraud the plaintiff ASH. This Court cannot ignore the defendants' prior motion to dismiss the Amended Complaint in lieu of the service of an Answer to Amended Complaint. Although Your Honor denied the motion, Your Honor's decision dated July 28, 2016 recognized the claims by the plaintiff and the defenses by the defendants. In fact, the Affirmation of YAAKOV ILOWITZ, dated January 11, 2016 which was attached to the defendants' motion to dismiss the Amended Complaint and which is attached as Exhibit "G" to the plaintiffs motion for default sets forth the defendants' meritorious defense. A copy of the Affirmation of YAAKOV ILOWITZ dated January 11, 2016 which sets forth a meritorious defense is again attached herein as Exhibit "K". It appears that the Affirmation of YAAKOV ILOWITZ was inadvertently overlooked in granting the motion for default and in denying the defendants' cross-motion to compel. In his Affirmation, YAAKOV ILOWITZ identifies himself as a member of the defendants BLACKSTONE GROUP BROKERAGE, LLC a/k/a METROPOLIS AGENCY, LLC and he states that as far back as March, 2007, the plaintiff ASH was aware of his involvement with 15

BLACKSTONE GROUP BROKERAGE and with the transactions which are the subject matter this lawsuit. Furthermore, YAAKOV ILOWITZ states that as far back as March, 2007, the plaintiff ASH communicated with YAAKOV ILOWITZ and took direction from YAAKOV ILOWITZ concerning BLACKSTONE and the transactions that are the subject of this lawsuit. YAAKOV ILOWITZ went so far as to state that he is in possession of information concerning plaintiff ASH's involvement in STOLI policies and that YAAKOV ILOWITZ would use such information in his defense to show ASH's unclean hands including ASH's illegal activities involving life insurance companies. Without attaching the transcripts of the depositions already held and all of the motions already held, it is clear that the defendants have viable defenses and that there are questions of fact which should be decided by the trier of the facts rather than summarily decided on a motion for default. As is seen in the attached Affirmation of YAAKOV ILOWITZ, the plaintiff ASH is guilty of unclean hands in making misrepresentations to the life insurance company AXA and in misleading the life insurance company AXA for his own material gain. It is respectfully submitted that the language of the First Cause of Action alleged in the Amended Complaint in and of itself is misleading and contains a material misrepresentation. The plaintiff ASH alleges in the First Cause of Action of the Amended Complaint that he incurred a loss in the amount of $602,144.30, when such is not the case. A simple comparison of the First Cause of Action in the original Complaint with the Third Cause of Action in the Amended Complaint reveals that they are both causes of action for alleged breach of contract for the amount of $460,159.23, which is the amount of the commission which the plaintiff ASH

allegedly paid to the defendants. Conspicuously absent from the plaintiffs motion for default is any mention of the fact that the plaintiff ASH received a commission from AXA in the amount of $602,144.30, out of which he gave $460,159.23 to the defendants leaving the plaintiff ASH with $141,985.07 for merely processing an application for life insurance. In fact, by reason of his own unclean hands, the plaintiff at the most lost $460,159.23 rather than $602,144.30. In addition, the plaintiff signed the Commission Recovery Agreement with AXA which limited the amount to be returned by him to AXA at $602,144.30. The plaintiff ASH cannot dispute that he received $602,144.30 from AXA and gave the amount of $460,159.23 to the defendants after keeping $141,985.07 for himself. On this basis alone, the Order of Default which directs the defendants to pay the sum of $602,144.30, plus interest, is in error. To award any amount above $460,159.23 would amount to unjust enrichment to the plaintiff. This is not to say that upon reargument the plaintiff should be awarded $460,159.23 but rather to demonstrate that there are issues of fact to be decided by the trier of the fact and that the defendants should not be denied their day in Court simply because there was a misunderstanding with their attorneys about representation for the purpose of an appearance and Answer to the Amended Complaint. As and for an additional excuse, other than the maturity of this lawsuit, is the misunderstanding and miscommunication between the defendants and their counsel. As demonstrated in the Affirmation of IRA S. LIPSIUS, ESQ., attached as Exhibit "H", after the Order of Justice Ash dated July 28, 2016 which denied the defendants' motion to dismiss the 17

Amended Complaint, he was unable to make contact or meet with the defendants and the defendants apparently did not receive his e-mail advising them of the need to confer and respond the Amended Complaint. In addition, as stated by IRA LIPSIUS, ESQ., his office was not retained to Answer the Amended Complaint and therefore unable to Answer the Amended Complaint until he was formally retained to do so on November 13, 2016. This court is respectfully reminded of the strong public policy in the State of New York which favors the resolution of lawsuits on the merits rather than upon mere formalities. Public policy dictates that this lawsuit should be resolved on the merits regardless of the differences between the parties and their attorneys. Rather than argue the merits, counsel for the plaintiff is focusing on the defendants' failure to timely Answer the Amended Complaint. Counsel for the plaintiff would have this Court ignore the prior Answer and years of contentious litigation which was close to trial readiness. All discovery was essentially complete with the exception of a deposition of HADASSAH ILOWITZ who owned a mere five (5%) percent in the corporate defendants. The Amended Complaint is filled with references to facts "as revealed in discovery". This Court should not lose sight of the ultimate goal of a fair and just outcome for all of the parties. This court cannot and should not simply disregard the long history of this litigation and all that has transpired over the past four (4) years. In the interests of justice, this court should exercise its discretion to not only allow reargument of the motion for default judgment and the cross-motion to compel but also upon reargument this court should permit the defendants to serve an Answer to Amended Complaint 18

within a specific period of time upon such conditions as to this Court may seem just and proper under the circumstances. Pursuant to CPLR 5015(a)(l), this Court has the discretion to vacate a default judgment upon specified conditions. Whatever bitter differences there may be between the parties and for that matter their counsel should be set aside and the focus should be on a just result based on the facts and the applicable law rather than a ministerial error that can easily be cured by the service of an Answer to the Amended Complaint. Certainly, the facts have been revealed in the course of discovery so that there can be no claim of prejudice in allowing the defendants to serve an Answer to Amended Complaint. Where, as here, the defendants testified at their depositions that they did not knowingly submit fraudulent and misleading information, this Court should, at the very least, allow this matter to proceed to trial and to not deprive the defendants of their day in court. On the basis of the foregoing, this court should grant reargument of the plaintiffs motion for default judgment and the defendants' cross-motion to compel the acceptance of an Answer to Amended Complaint which resulted in the Order dated November 16, 2016 and upon reargument, this Court should vacate the Default Judgment Order and allow the defendants to serve an Answer to Amended Complaint upon such conditions as to the Court may seem just and proper under the circumstances. No previous application for the relief sought herein has heretofore been made. WHEREFORE, your affirmant respectfully prays that the instant Order to Show Cause seeking leave to reargue the Court's decision be granted in all respects and upon reargument this 19

Court should vacate the Default Judgment Order and allow the defendants to serve an Answer to the plaintiffs Amended Complaint within twenty (20) days after the determination of this application and for such other, further and different relief as to this Court seems just and proper under the circumstances. The signature certifies that to the best of the certifier's knowledge the statements in these papers are correct and not frivolous, pursuant to Rule 130-1.1 (a). Dated: Brooklyn, New York November 23, 2016 MARK A. LONGO 20

EXHIBIT "A"

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ASH BROKERAGE CORPORATION, Plaintiff, Plaintiffs business is at 7609 Wj Ft. Wayne, Indiana rr^tp -against- MOSHE LIEBERMAN; BLACKSTONE GROUP BROKERAGE, LLC; METROPOLIS AGENCY LLC; and TZVI KATZ, Defendants. To the above-named Defendants: Plaintiff of designates KINGS COUNTY as the place of trial The basis for the choice of venue is Def Lieberman's residence & Blackstone /Metropolis1 place of business YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a copy of your answer on the Plaintiffs Attorneys within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your feilure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. Dated: New York, New York November 28,2012 LAW OFFICES OF Atlorneys for PlaintH 225 Broadway^Mte 2008 New York, New York 10007 (212)227-9755 ' F. YOUNG, P.C. x. o -e ro CD x o^ rn-v. Defendant's Address: Moshc Licbcrman: 2814 Avenue N, Brooklyn, NY 11210 Metropolis Agency LLC: 1 Avenue F, Brooklyn, NY 11218 Blacksfonc Group Brokerage, LLC: c/o Moshe Ueberman, 2814 Avenue N, Brooklyn NY 11210 Tzvi Ka tz: 1117b Beach 12(tl Street, Far Rockaway, Queens, New York 11691

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ASH BROKERAGE CORPORATION, -against- Plaintiff, MOSHE LEEBERMAN; BLACKSTONE GROUP BROKERAGE, LLC; METROPOLIS AGENCY LLC; andtzvikatz, Index No. VERIFIEDCOMPLAINT Defendants. Plaintiff ASH BROKERAGE CORPORATION, by its attorneys, the LAW OFFICES OF SANFORD F. YOUNG, P.C., alleges as its Verified Complaint against Defendants the following: ALLEGATIONS APPLICABLE TO ALL CAUSES OF ACTION The Parties 1. At ail times mentioned herein, Plaintiff ASH BROKERAGE CORPORATION [hereinafter referred to as "ASH"] has been and is a corporation organized and existing under the Laws of Indiana. 2. Upon information and belief, Defendant MOSHE LIEBERMAN has been and is an individual residing at 2814 Avenue N, Brooklyn, New York 11210.