Preview
FILED: KINGS COUNTY CLERK 04/18/2023 02:00 PM INDEX NO. 518986/2021
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/18/2023
In the Matter of the Application of
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
:
:
:
AMERICAN EXPRESS NATIONAL BANK,
:
:
Plaintiff,
:
Index No. 518986/2021
:
-against-
:
Motion Seq. No. 001
:
VERA SHEKHETS a/k/a VERA L. SHEKHETS,
:
:
Defendant.
:
:
:
:
MEMORANDUM OF LAW
IN SUPPORT OF THE DEFENDANTS’ MOTION
PURSUANT TO CPLR §
TO DISMISS PLAINTIFF’S SECOND, THIRD AND 5015(a)4 FOURTH
CAUSES OF ACTION PURSUANT TO CPLR § 3211 (a)(1) AND (7)
k County, and entitled
Jay H. Katz, Esq.
Attorney for Defendants
450 Seventh Avenue
Suite 1308
New York, New York 10123
(917) 691-4952
jaykatzlaw@gmail.com
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................................................... ii1
PRELIMINARY STATEMENT ................................................................................................. 1
STATEMENT OF FACTS ........................................................................................................... 1
ARGUMENT ................................................................................................................................. 2
PURSUANT TO CPLR § 5015(a)(4),THE PLAINTIFF’S
DEFAULT JUDGMENT MUST
BE VACATED AND THE ACTION DISMISSED BECAUSE
PERSONAL JURISDICTION WAS NOT OBTAINED
OVER DEFENDANT BECAUSE THE DEFENDANT WAS
NEVER SERVED WITH PROCESS
CONCLUSION ............................................................................................................................. 7
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TABLE OF AUTHORITIES
STATUTES
CPLR 5015(a)(4), ........................................................................................................................... ii
CPLR§ 308(2), ............................................................................................................................ 2, 3
CASES
European Am. Bank & Trust Co. v. Serota, 661 N.Y.S.2d 282, 242 AD 2d 363 2nd Dept. 1997): 5
Johnson v. Deas, 819 N.Y.S 2d 751, 32 AD 3d 253 (1st Dept 2006) ........................................... 4, 6
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PRELIMINARY STATEMENT
This Memorandum of Law is submitted on behalf of named Defendant VERA
SHEKHETS aka VERA L. SHEKHETS (“Shekhets”) in support of Defendant’s Emergency
Order to Show Cause seeking to vacate the Default Judgment entered against her on March 11,
2022; and vacating and/or permanently staying the restraining notices served on TD Bank and
any other enforcement actions taken by Plaintiff unknown to Shekhets as of the date hereof.”) on
the ground that Defendant Shekhets was never served with process by the Plaintiff and thus the
Court has no personal jurisdiction over the Defendant.
STATEMENT OF FACTS
The Court is respectfully referred to the Affidavit of Defendant Shekhets sworn to on
April 14, 2023 in Support of the instant application for a statement of pertinent facts.
The Default Judgment against Shekhets and restraining notices served on TD Bank, as
well as any other enforcement actions taken by the Plaintiff must be vacated and/or permanently
stayed and this lawsuit dismissed because Shekhets was never served with the Summons and
Complaint. As such the Court lacked jurisdiction to enter the Default Judgment against Shekhets.
As detailed in the accompanying Shekhets Affidavit, according to the Affidavit of
Service filed by Plaintiff’s counsel, a Summons and Complaint was served pursuant to CPLR §
308(2), suitable age and discretion at an address in Brooklyn, New York. Ms. Shekhets’s
residence is in Hoboken, New Jersey and the Plaintiff’s counsel and its process server knew it.
Ms. Shekhets never knew about the lawsuit or the default judgment entered against her on March
11, 2022 until she received notice from TD Bank on or about March 29, 2023 that two personal
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accounts containing a little over $200.00combined, and one joint account with her husband
containing $40,506.67, were restrained.
For the reasons stated in the Shekhets Affidavit and this Memorandum of Law, it is
respectfully submitted that the default judgment against Shekhets must be vacated and this
lawsuit dismissed pursuant to CPLR § 5015(a)(4) The Defendant immediately contacted counsel
who accessed the NYSCEF system and obtained a copy of the default judgment and a purported
Affidavit of Service…
ARGUMENT
PURSUANT TO CPLR § 5015(a)(4),THE PLAINTIFF’S
DEFAULT JUDGMENT MUST
BE VACATED AND THE ACTION DISMISSED BECAUSE
PERSONAL JURISDICTION WAS NOT OBTAINED
OVER DEFENDANT BECAUSE THE DEFENDANT WAS
NEVER SERVED WITH PROCESS
This application to vacate the default judgment and ensuing enforcement action is made
pursuant to CPLR 5015(a)(4), which provides in pertinent part:
CPLR § 5015. Relief from judgment or order.
(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:….
4. lack of jurisdiction to render the judgment or order;….
The Affidavit of Service filed by Plaintiff in this case (Shekhets Aff.; Exhibit B
NYSCEF Doc. No. 3) states that service was purportedly effectuated on the Defendant Shekhets
by delivering the Summons and Complaint to an unidentified female “family member” of
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suitable age and discretion by delivery to what is purported to be the Defendant’s residence or
place of abode at 2421 Ocean Avenue, Apt. 7A Brooklyn, New York 11229.
CPLR§ 308(2), governs service of process by delivery to an individual of suitable of
discretion. The statute states in pertinent part that:
§ 308. Personal service upon a natural person. Personal service upon a
natural person shall be made by any of the following methods:…
2. by delivering the summons within the state to a person of suitable age
and discretion at the actual place of business, dwelling place or usual
place of abode of the person to be served and by either mailing the summons
to the person to be served at his or her last known residence or by
mailing the summons by first class mail to the person to be served at his or her
actual place of business in an envelope bearing the legend "personal and
confidential" and not indicating on the outside thereof, by return address or
otherwise, that the communication is from an attorney or concerns an action
against the person to be served, such delivery and mailing to be effected
within twenty days of each other; proof of such service shall be filed
with the clerk of the court designated in the summons within twenty days of
either such delivery or mailing, whichever is effected later; service shall be
complete ten days after such filing; proof of service shall identify such
person of suitable age and discretion and state the date, time and place of
service, except in matrimonial actions….
The accompanying Shekhets Affidavit in Support states and documents the irrefutable
fact that Defendant’s residence has been 1500 Hudson Street, Hoboken, New Jersey since at least
2019 to the present, not 2421 Ocean Avenue, Apt. 7A, Brooklyn, New York. In a prior, separate
lawsuit served only months earlier, the Plaintiff’s attorneys and their very same process server
had served Shekhets at her residence in Hoboken. Shekhets appeared, answered and asserted
defenses, including lack of jurisdiction in New York. Thus, the Plaintiff’s attorneys and their
process server had actual knowledge that Ms. Shekhets resides in Hoboken, New Jersey, not
Brooklyn, New York.
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The Shekhets affidavit submits the following dispositive documentary evidence
establishing her continuous actual residence in Hoboken, New Jersey:
a) The Defendant’s (and her then fiancé’s) lease, and
extension thereto, for the premises 1500 Hudson Street,
Apartment 7C, Hoboken New Jersey covering the period 2019
through September 1, 2021—in full force and effect on August
11, 2021, the date the Affidavit of Service alleges that Summons
and Complaint was purportedly delivered in Brooklyn. (See
Exhibit C);
b) From the separate prior lawsuit in this Court: the Affidavit
of Service on this Defendant on November 20, 2020 at 1500
Hudson Street, Apt. 7C, Hoboken, New Jersey (Exhibit E).
Plaintiff’s attorneys’ same process server delivered the papers and
Plaintiff’s attorneys’ filed that Affidavit of Service just eight
months prior to the attempted commencement of this case.
Defendant properly referred the matter to counsel and asserted
defenses in the matter;
c) the two pieces of correspondence dated March 21, 2023
from TD Bank addressed to the Defendant at her residence at 1500
Hudson Street, Apt. 7D1, Hoboken, New Jersey advising the
Defendant that two of her bank accounts and a separate joint
account with her husband, had been restrained (Exhibits F and G).
Here, Defendant Shekhets has gone far beyond a mere “nonconclusory” affidavit in
rebuttal or perfunctory but merely sufficient submission, but rather establishing the total lack of
service by irrefutable documentary evidence. There is no bona fide question or factual issue as to
the defective service and the lack of issue as to that incontrovertible fact.
1
The Shekhets Affidavit states that she moved to the apartment next door beginning on September 1, 2021, when
the lease and extension for 7C expired.
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Since process was not served pursuant to CPLR§ 308(2), the Court lacked jurisdiction
over the Defendant to enter the Default Judgment which must be vacated and the ensuing
restraints and any other enforcement actions, vacated and/or permanently stayed.
In Johnson v. Deas, 819 N.Y.S 2d 751, 32 AD 3d 253 (1st Dept 2006), under similar
circumstances the affidavit of service stated that the Summons and Complaint was delivered to a
person of suitable age and discretion—a “relative”—at what the affidavit of service incorrectly
alleged was "’defendant's actual dwelling house—usual place of abode’….”.
In Johnson, Ibid., the Court held that:
…the process server's affidavit constitutes prima facie
evidence of proper service pursuant to CPLR 308 (2),
defendant rebutted this presumption with facts
demonstrating that process could not have been effected at
the address specified in the affidavit of service
(see European Am. Bank & Trust Co. v Serota, 242 AD2d
363 [1997]).
As such, as in this case, the ground for the vacatur of the purported default judgment and
restraining notice(s) is lack of personal jurisdiction, as stated in European Am. Bank & Trust Co.
v. Serota, 661 N.Y.S.2d 282, 242 AD 2d 363 2nd Dept. 1997):
… because the ground for vacatur asserted by the defendant
was lack of personal jurisdiction, he need not demonstrate
a reasonable excuse for his default or a meritorious
defense. [citation omitted]. In support of his motion, the
defendant submitted an affidavit in which he stated, inter
alia, that his residence for the previous three years was not
the address at which the plaintiff attempted to serve him. If
true, the plaintiff's service would be ineffective and the
court would lack personal jurisdiction over the defendant.
Hence, as a matter of law, since the Plaintiff failed to serve the Defendant pursuant to
CPLR § 308(2), delivering process to a person of suitable age and discretion at the Defendant’s
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residence or abode and the Court lacked personal jurisdiction over Ms. Shekhets to enter a
default judgment against her and the default judgment must be vacated and all actions taken
thereafter, including the restraints served on TD Bank vacated and permanently stayed.
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CONCLUSION
In conclusion, for the reasons set forth herein, and in the accompanying Affidavit in
Support of Vera L. Shekhets, it is respectfully submitted that since service of process was never
effectuated on the Defendant, the Court never obtained personal jurisdiction over Defendant
Shekhets.
Therefore the instant application should be granted and the case must be dismissed for
lack of personal jurisdiction over the defendant, the default judgment obtained against the
Defendant must be vacated, all restraints of Defendant’s bank accounts at TD Bank and any
other restraints or other enforcement of the default judgment together with the costs and
disbursements of this application and such other and further relief as the Court deems just and
proper. for an Order granting Leave to Re-Argue Defendant’s Motion to Dismiss must be
granted
Dated: New York, New York
April 16, 2023
____________________________
Jay H. Katz, Esq.
Attorney for Defendant
450 Seventh Avenue
Suite 1308
New York, New York 10123
(917) 691-4952
jaykatzkaw@gmail.com
1651 Words
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CERTIFICATION BY COUNSEL OF WORD COUNT
I, Jay H. Katz, am the attorney for the named defendant.
I hereby certify that the document to which this Certification is attached contains 1,651
words excluding the parts of the document that are exempted by PART 202. Uniform Civil Rules
For The Supreme Court & The County Court, Section 202 8-b.
Dated: New York, New York
April 16, 2023
________________________________
Jay H. Katz, Esq.
Attorney for Defendant
450 Seventh Avenue
Suite 1308
New York, New York 10123
(917) 691-4952
jaykatzkaw@gmail.com
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Preview
FILED: KINGS COUNTY CLERK 04/18/2023 02:00 PM INDEX NO. 518986/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/18/2023 In the Matter of the Application of SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : : : AMERICAN EXPRESS NATIONAL BANK, : : Plaintiff, : Index No. 518986/2021 : -against- : Motion Seq. No. 001 : VERA SHEKHETS a/k/a VERA L. SHEKHETS, : : Defendant. : : : : MEMORANDUM OF LAW IN SUPPORT OF THE DEFENDANTS’ MOTION PURSUANT TO CPLR § TO DISMISS PLAINTIFF’S SECOND, THIRD AND 5015(a)4 FOURTH CAUSES OF ACTION PURSUANT TO CPLR § 3211 (a)(1) AND (7) k County, and entitled Jay H. Katz, Esq. Attorney for Defendants 450 Seventh Avenue Suite 1308 New York, New York 10123 (917) 691-4952 jaykatzlaw@gmail.com ii 1 of 11 FILED: KINGS COUNTY CLERK 04/18/2023 02:00 PM INDEX NO. 518986/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/18/2023 TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................................................... ii1 PRELIMINARY STATEMENT ................................................................................................. 1 STATEMENT OF FACTS ........................................................................................................... 1 ARGUMENT ................................................................................................................................. 2 PURSUANT TO CPLR § 5015(a)(4),THE PLAINTIFF’S DEFAULT JUDGMENT MUST BE VACATED AND THE ACTION DISMISSED BECAUSE PERSONAL JURISDICTION WAS NOT OBTAINED OVER DEFENDANT BECAUSE THE DEFENDANT WAS NEVER SERVED WITH PROCESS CONCLUSION ............................................................................................................................. 7 i 2 of 11 FILED: KINGS COUNTY CLERK 04/18/2023 02:00 PM INDEX NO. 518986/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/18/2023 TABLE OF AUTHORITIES STATUTES CPLR 5015(a)(4), ........................................................................................................................... ii CPLR§ 308(2), ............................................................................................................................ 2, 3 CASES European Am. Bank & Trust Co. v. Serota, 661 N.Y.S.2d 282, 242 AD 2d 363 2nd Dept. 1997): 5 Johnson v. Deas, 819 N.Y.S 2d 751, 32 AD 3d 253 (1st Dept 2006) ........................................... 4, 6 ii 3 of 11 FILED: KINGS COUNTY CLERK 04/18/2023 02:00 PM INDEX NO. 518986/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/18/2023 PRELIMINARY STATEMENT This Memorandum of Law is submitted on behalf of named Defendant VERA SHEKHETS aka VERA L. SHEKHETS (“Shekhets”) in support of Defendant’s Emergency Order to Show Cause seeking to vacate the Default Judgment entered against her on March 11, 2022; and vacating and/or permanently staying the restraining notices served on TD Bank and any other enforcement actions taken by Plaintiff unknown to Shekhets as of the date hereof.”) on the ground that Defendant Shekhets was never served with process by the Plaintiff and thus the Court has no personal jurisdiction over the Defendant. STATEMENT OF FACTS The Court is respectfully referred to the Affidavit of Defendant Shekhets sworn to on April 14, 2023 in Support of the instant application for a statement of pertinent facts. The Default Judgment against Shekhets and restraining notices served on TD Bank, as well as any other enforcement actions taken by the Plaintiff must be vacated and/or permanently stayed and this lawsuit dismissed because Shekhets was never served with the Summons and Complaint. As such the Court lacked jurisdiction to enter the Default Judgment against Shekhets. As detailed in the accompanying Shekhets Affidavit, according to the Affidavit of Service filed by Plaintiff’s counsel, a Summons and Complaint was served pursuant to CPLR § 308(2), suitable age and discretion at an address in Brooklyn, New York. Ms. Shekhets’s residence is in Hoboken, New Jersey and the Plaintiff’s counsel and its process server knew it. Ms. Shekhets never knew about the lawsuit or the default judgment entered against her on March 11, 2022 until she received notice from TD Bank on or about March 29, 2023 that two personal 4 of 11 FILED: KINGS COUNTY CLERK 04/18/2023 02:00 PM INDEX NO. 518986/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/18/2023 accounts containing a little over $200.00combined, and one joint account with her husband containing $40,506.67, were restrained. For the reasons stated in the Shekhets Affidavit and this Memorandum of Law, it is respectfully submitted that the default judgment against Shekhets must be vacated and this lawsuit dismissed pursuant to CPLR § 5015(a)(4) The Defendant immediately contacted counsel who accessed the NYSCEF system and obtained a copy of the default judgment and a purported Affidavit of Service… ARGUMENT PURSUANT TO CPLR § 5015(a)(4),THE PLAINTIFF’S DEFAULT JUDGMENT MUST BE VACATED AND THE ACTION DISMISSED BECAUSE PERSONAL JURISDICTION WAS NOT OBTAINED OVER DEFENDANT BECAUSE THE DEFENDANT WAS NEVER SERVED WITH PROCESS This application to vacate the default judgment and ensuing enforcement action is made pursuant to CPLR 5015(a)(4), which provides in pertinent part: CPLR § 5015. Relief from judgment or order. (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:…. 4. lack of jurisdiction to render the judgment or order;…. The Affidavit of Service filed by Plaintiff in this case (Shekhets Aff.; Exhibit B NYSCEF Doc. No. 3) states that service was purportedly effectuated on the Defendant Shekhets by delivering the Summons and Complaint to an unidentified female “family member” of -2- 5 of 11 FILED: KINGS COUNTY CLERK 04/18/2023 02:00 PM INDEX NO. 518986/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/18/2023 suitable age and discretion by delivery to what is purported to be the Defendant’s residence or place of abode at 2421 Ocean Avenue, Apt. 7A Brooklyn, New York 11229. CPLR§ 308(2), governs service of process by delivery to an individual of suitable of discretion. The statute states in pertinent part that: § 308. Personal service upon a natural person. Personal service upon a natural person shall be made by any of the following methods:… 2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions…. The accompanying Shekhets Affidavit in Support states and documents the irrefutable fact that Defendant’s residence has been 1500 Hudson Street, Hoboken, New Jersey since at least 2019 to the present, not 2421 Ocean Avenue, Apt. 7A, Brooklyn, New York. In a prior, separate lawsuit served only months earlier, the Plaintiff’s attorneys and their very same process server had served Shekhets at her residence in Hoboken. Shekhets appeared, answered and asserted defenses, including lack of jurisdiction in New York. Thus, the Plaintiff’s attorneys and their process server had actual knowledge that Ms. Shekhets resides in Hoboken, New Jersey, not Brooklyn, New York. -3- 6 of 11 FILED: KINGS COUNTY CLERK 04/18/2023 02:00 PM INDEX NO. 518986/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/18/2023 The Shekhets affidavit submits the following dispositive documentary evidence establishing her continuous actual residence in Hoboken, New Jersey: a) The Defendant’s (and her then fiancé’s) lease, and extension thereto, for the premises 1500 Hudson Street, Apartment 7C, Hoboken New Jersey covering the period 2019 through September 1, 2021—in full force and effect on August 11, 2021, the date the Affidavit of Service alleges that Summons and Complaint was purportedly delivered in Brooklyn. (See Exhibit C); b) From the separate prior lawsuit in this Court: the Affidavit of Service on this Defendant on November 20, 2020 at 1500 Hudson Street, Apt. 7C, Hoboken, New Jersey (Exhibit E). Plaintiff’s attorneys’ same process server delivered the papers and Plaintiff’s attorneys’ filed that Affidavit of Service just eight months prior to the attempted commencement of this case. Defendant properly referred the matter to counsel and asserted defenses in the matter; c) the two pieces of correspondence dated March 21, 2023 from TD Bank addressed to the Defendant at her residence at 1500 Hudson Street, Apt. 7D1, Hoboken, New Jersey advising the Defendant that two of her bank accounts and a separate joint account with her husband, had been restrained (Exhibits F and G). Here, Defendant Shekhets has gone far beyond a mere “nonconclusory” affidavit in rebuttal or perfunctory but merely sufficient submission, but rather establishing the total lack of service by irrefutable documentary evidence. There is no bona fide question or factual issue as to the defective service and the lack of issue as to that incontrovertible fact. 1 The Shekhets Affidavit states that she moved to the apartment next door beginning on September 1, 2021, when the lease and extension for 7C expired. -4- 7 of 11 FILED: KINGS COUNTY CLERK 04/18/2023 02:00 PM INDEX NO. 518986/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/18/2023 Since process was not served pursuant to CPLR§ 308(2), the Court lacked jurisdiction over the Defendant to enter the Default Judgment which must be vacated and the ensuing restraints and any other enforcement actions, vacated and/or permanently stayed. In Johnson v. Deas, 819 N.Y.S 2d 751, 32 AD 3d 253 (1st Dept 2006), under similar circumstances the affidavit of service stated that the Summons and Complaint was delivered to a person of suitable age and discretion—a “relative”—at what the affidavit of service incorrectly alleged was "’defendant's actual dwelling house—usual place of abode’….”. In Johnson, Ibid., the Court held that: …the process server's affidavit constitutes prima facie evidence of proper service pursuant to CPLR 308 (2), defendant rebutted this presumption with facts demonstrating that process could not have been effected at the address specified in the affidavit of service (see European Am. Bank & Trust Co. v Serota, 242 AD2d 363 [1997]). As such, as in this case, the ground for the vacatur of the purported default judgment and restraining notice(s) is lack of personal jurisdiction, as stated in European Am. Bank & Trust Co. v. Serota, 661 N.Y.S.2d 282, 242 AD 2d 363 2nd Dept. 1997): … because the ground for vacatur asserted by the defendant was lack of personal jurisdiction, he need not demonstrate a reasonable excuse for his default or a meritorious defense. [citation omitted]. In support of his motion, the defendant submitted an affidavit in which he stated, inter alia, that his residence for the previous three years was not the address at which the plaintiff attempted to serve him. If true, the plaintiff's service would be ineffective and the court would lack personal jurisdiction over the defendant. Hence, as a matter of law, since the Plaintiff failed to serve the Defendant pursuant to CPLR § 308(2), delivering process to a person of suitable age and discretion at the Defendant’s -5- 8 of 11 FILED: KINGS COUNTY CLERK 04/18/2023 02:00 PM INDEX NO. 518986/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/18/2023 residence or abode and the Court lacked personal jurisdiction over Ms. Shekhets to enter a default judgment against her and the default judgment must be vacated and all actions taken thereafter, including the restraints served on TD Bank vacated and permanently stayed. -6- 9 of 11 FILED: KINGS COUNTY CLERK 04/18/2023 02:00 PM INDEX NO. 518986/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/18/2023 CONCLUSION In conclusion, for the reasons set forth herein, and in the accompanying Affidavit in Support of Vera L. Shekhets, it is respectfully submitted that since service of process was never effectuated on the Defendant, the Court never obtained personal jurisdiction over Defendant Shekhets. Therefore the instant application should be granted and the case must be dismissed for lack of personal jurisdiction over the defendant, the default judgment obtained against the Defendant must be vacated, all restraints of Defendant’s bank accounts at TD Bank and any other restraints or other enforcement of the default judgment together with the costs and disbursements of this application and such other and further relief as the Court deems just and proper. for an Order granting Leave to Re-Argue Defendant’s Motion to Dismiss must be granted Dated: New York, New York April 16, 2023 ____________________________ Jay H. Katz, Esq. Attorney for Defendant 450 Seventh Avenue Suite 1308 New York, New York 10123 (917) 691-4952 jaykatzkaw@gmail.com 1651 Words -7- 10 of 11 FILED: KINGS COUNTY CLERK 04/18/2023 02:00 PM INDEX NO. 518986/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/18/2023 CERTIFICATION BY COUNSEL OF WORD COUNT I, Jay H. Katz, am the attorney for the named defendant. I hereby certify that the document to which this Certification is attached contains 1,651 words excluding the parts of the document that are exempted by PART 202. Uniform Civil Rules For The Supreme Court & The County Court, Section 202 8-b. Dated: New York, New York April 16, 2023 ________________________________ Jay H. Katz, Esq. Attorney for Defendant 450 Seventh Avenue Suite 1308 New York, New York 10123 (917) 691-4952 jaykatzkaw@gmail.com -8- 11 of 11