Preview
FILED: GREENE COUNTY CLERK 03/18/2024 05:10 PM INDEX NO. EF2023-281
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/18/2024
Exhibit J
FILED: GREENE COUNTY CLERK 03/18/2024 05:10 PM INDEX NO. EF2023-281
NYSCEF DOC. NO. 38
25 RECEIVED NYSCEF: 03/18/2024
02/29/2024
BLAKE C. SAUNDERS , ESQ.
bsaunders@couchwhite.com 518.320.3403 direct 518.426.0376 fax
February 29, 2024
VIA NYSCEF
Hon. Sharon A. Graff, J.S.C.
Greene County Courthouse
320 Main Street
Catskill, New York 12414
Re: WS Aftermarket Services Corporation, and Warranty Solutions Management
Corporation, v. WE COVER THAT! et. al.
Greene County Index No.: EF2023-281
Dear Justice Graff:
Our office represents Plaintiffs WS Aftermarket Services Corporation, and Warranty
Solutions Management Corporation, with regard to the above referenced matter. As the Court is
aware, Plaintiffs filed a motion for a default judgment against Defendants on October 16, 2023.
In its Decision and Order dated January 24, 2024 (the “Order”), the Court Ordered that Defendants
Larissa Ortis and Peter Schatzel would have thirty days from the date of service of the Order to
appear and answer the Complaint herein. A copy of Plaintiffs’ notice of entry of the Order and the
corresponding affidavits of service, reflecting service upon Defendants on January 25, 2024, are
attached hereto.
As it stands, the time period specified in the Court’s Order lapsed as of February 29, 2024;
Ms. Ortis and Mr. Schatzel have not appeared or answered Plaintiff’s Complaint. Accordingly,
we respectfully request that the Court grant Plaintiff’s default motion against Ms. Ortis and Mr.
Schatzel and schedule an inquest hearing to assess the damages in this matter.
Should the Court have any questions or require anything further, please contact me.
Respectfully submitted,
Blake C. Saunders
Blake C. Saunders, Esq.
Attorney
BCS/gtz
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF GREENE
WS AFTERMARKET SERVICES CORPORATION,
AND WARRANTY SOLUTIONS MANAGEMENT
CORPORATION, NOTICE OF ENTRY
Plaintiffs, Index No.: EF2023-281
-against-
WE COVER THAT!, LARISSA ORTIS d/b/a WE
COVER THAT!, LARISSA ORTIS, in her individual
capacity, PETER SCHATZEL, in his individual
capacity, and REBECCA SCHATZEL, in her
individual capacity,
Defendants.
PLEASE TAKE NOTICE that the annexed Decision and Order of the Hon. Sharon A.
Graff, J.S.C., dated January 22, 2024; entered by the Clerk of the Greene County Supreme Court
using the NYSCEF system on January 24, 2024, is hereby served upon you, and was duly filed
and entered in the Greene County Clerk's Office on January 26, 2024, regarding the above-
referenced matter.
Dated: January 26, 2024
Albany, New York
COUCH WHITE, LLP
onald J. Hil , Esq.
Charles G. Carluccio, Esq.
Blake C. Saunders, Esq.
Attorneys for Plaintiffs
WS Aftermarket Services Corporation and
Warranty Solutions Management
Corporation
540 Broadway
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P.O. Box 22222
Albany, New York 12201-2222
Telephone: (518) 426-4600
TO: REBECCA SCHATZEL
152 Society Hill Road
Greenville, New York 12083
LARISSA ORTIS
59 Weed Road
Freehold, New York 12431
LARISSA ORTIS
d/b/a WE COVER THAT!
59 Weed Road
Freehold, New York 12431
PETER SCHATZEL
59 Weed Road
Freehold, New York 12431
WE COVER THAT!
59 Weed Road
Freehold, New York 12431
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STATE
S'I'ATE OF NEW YORK
SUPREME COURT
C OURT GREENE COUNTY
WS AFTERMARKET
AFTERMARKET SERVICES CORPORATION,
CORPORATION,
AND WARRANTY
WARRANTY SOLUTIONS
SOLUTIONS MANAGEMENT
CORPORATION,
CORPORATION,
Plaintills.
Plaintiffs,
Decision & Order
-against-
-agalnst- Index No.: 8F2023-281
EF2023-281
WE COVER THAT!, LARISSA
LAzuSSA ORTIS, d/b/a
d/bia WE
COVER THAT!, LARISSA ORTIS, in her individual
capacity, PETER
PETER SCHATZEL,
SCHATZEL, in his individual
individual capacity,
and REBECCA
REBECCA SCHATZEL, in her individual
individual capacity,
Defendants.
Delendants.
Supreme
Supreme Court, Greene County
Return
Retum Date:
Date: November
November 3,
3. 2023
Present:
Present: Hon. Sharon A. Graff,
Graff" JSC
Appearances:
Appearances: Couch White,
White, LLP
Attorneys
Attomeys for Plaintiffs
540 Broadway
Broadway
York 12201-2222
Albany, New York 12201-2222
By: Donald J. Hillmann,
By: Hillmann, Esq.
Charles
Charles G. Carlucccio, Esq.
Blake C. Saunders, Esq.
Graff, J.:
Plaintiffs commenced
Plaintiffs this action
commenced this to recover
action to recover $507,600.00 it paid
$507,600.00 it in commissions
paid in commissions to
defendants
defendants based upon allegedly
allegedly fraudulently
fraudulently created agreements
agreements defendants
defendants claimed to have made
with eight automobile
automobile dealerships
dealerships under which 980 protection plans were allegedly sold to clients
on plaintiffs. Defendants have not answered, and
on behalf of plaintiffs. plaintiffs now move
and plaintiffs move for aa default
judgment. The motion is partially granted as discussed herein.
herein.
A party seeking default judgment must show that the defendants have been served, proof
oftheir
of their default, and proof of the facts of its claim (Dayco
andproofofthe (Dayc o Mechanical
Mechqnical Services
Services v Toscani, 94 AD3d
Toscani,94
1214
1214 [3d
[3d Dept 2012]).
2012]). With respect to the third requirement.
requirement, plaintiffs have met their burden by
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relying upon
upon their
their verified complaint
complaint which adequately establishes the
the facts
facts constituting their
claims. (CPLR §$ 3215 [f]).
tfl). Turning
Tuming to service, plaintiflfs' affidavits
service, plaintiffs' affrdavits of service upon the individual
individual
defendants
defendants reflect that, after making
making unsuccessful
unsuccessful attempts at personal delivery, the process server
resorted to the "affix mail" method prescribed by CPLR §$ 308 [4].
"affix and mail" [4]. With respect to defendant
Rebecca Schatzel,
Schatzel, the affidavit of
olservice
service demonstrates
demonstrates that service
service by the affix and mail method
was duly made, and the affirmation
affirmation of plaintiffs' attorney
attomey establishes
establishes her default.
default.
Plaintiffs' submissions
Plaintiffs' with respect
submissions with to the
respect to the remaining
remaining individual
individual defendants,
defendants, namely,
Larissa Ortis and Peter Schatzel,
Schatzel, are insufficient
insufficient to support a finding of default.
default. The affidavits
affidavits of
service
service show that the pleadings were
v‘ ere affixed to the respective defendants' residence'
residencer on May
May 18.
18,
2023,
2023, and mailed to the same
same address
address on May 19,
19,2023.
2023. However,
However, to be valid, service "affix
service by the "affix
mail" method must be completed by the filing of the
and mail- the affidavit
affrdavit of service within twenty days
from either the
the affixing or the
the mailing of the
the summons and
and complaint, whichever occurs later
t4]). Here, plaintiffs fi
(CPLR §$ 308 [4]). led the affidavits
filed affidavits of service on Larissa
Larissa Ortis
Ortis and Peter Schatzel
on June 21, 2023,
2023, and
and thus more than twenty days after both acts never completed.
completed. As such, the
thirty-day period to answer never began to run
thirty-day mn with respect to defendants
defendants Larissa Ortis and Peter
[a]) and they are not in default.
Schatzel (CPLR §$ 320 [a])
the failure to
Nevertheless, the file proof
to file of service
proof of is aa mere
service is mere irregularity which may
inegularity which may be
remedied by an order pursuant to CPLR §2004 (Haushecht v Ackerman,
$2004 (Hausknecht 242 AD2d
Ackerman,242 604, 606 [2nd
AD2d6O4,606[2"d
1997]) and may be cured nunc pro tunc under
Dept. 1997]) tnder CPLR §2001 ofaa
52001 where no substantial right of
party will be prejudiced. $2001). Under the present circumstances, permitting
prejudiced. (CPLR §2001). permitting plaintiffs to
detay in filing the affidavit of
cure the brief delay ofservice inegularity and will not
an irregularity
service will simply correct an
ofthe
prejudice any substantial right of
prejudice the defendants Schatzel. Plaintiffs' time
defendants Larissa Ortis and Peter Schatzel.
residence address is also the defendants' business address.
'I Per the complaint, the residence address.
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within which to file their affidavit of service is hereby extended.
extended, nunc
nunc pro tunc, to June
Jvne 22,
22, 2023,
2023,
the date
date they were filed with the Clerk
Clerk and filed. Defendants
and the same shall be deemed timely filed.
Larissa Ortis and Peter Schatzel will have thirty days from the date of service ofthis
service of this decision and
order with notice of its entry within which to answer.
Next, with respect to service upon We Cover That! plaintiffs offer an affidavit of service
which they
which they argue
argue demonstrates tiat service was made upon the
demonstrates that "Offrce of the
the "Office York State
the New York
Secretary of State, the authorized agent for service
service of process of We Cover That!", presumably
pursuant to the pertinent provisions
pursuant provisions of either the Business
ofeither Business Corporation Law or the Limited
Corporation Law Limited Liability
Company Law. Ordinarily.
Company Law. Ordinarily, "a process server's sworn service ....
swom affidavit of service . . constitutes prima
(U.5. Bank Nat. Ass'n vv Vanvliet,
facie evidence of proper service" (U.S. 24 AD3d
Vanvliet,24 AD3d 906. 908 [3d
906,908 [3d Dept
2005]). assumes that the process server's affidavit contains a sufficient
20051). The aforementioned rule assumes
factual recitation, i.e., served, and the date, time and place of service.
the name of the party served,
i.e.,the service. Here,
affidavit is missing some
the process server's affidavit some of
ofthese facts. While the affidavit
these essential facts. affrdavit of service
in question states that the process server served two copies
copies of
ofthe summons and complaint
the summons complaint on "Sue
"Sue
Zouky, Business
Business Document discretion to accept service", it
Document Spec. 2, a person of suitable age and discretion
does not
not set identifr the recipient as a
set forth the address where this service occurred or otherwise identify
"deputy"
"deputy" of
ofthe State.2 Given these factual insufficiencies, the Court cannot conclude
the Secretary of State.2
Thus, the branch of the motion for a default judgment against it
sewed. Thus.
that We Cover That! was served.
is denied without prejudice.3
prejudice.3
22As an the pleadings whether
and the
an aside, it is unclear from the caption and We Cover That! is a
whether We
corporation, limited
timited liability company, or other entity upon which service
service via the Secretary of
State is authorized.
I To the extent proper Thatl, the factual deficiencies
upon We Cover That!,
proper service was effectuated upon deficiencies
can be remedied by the filing of an amended affidavit of service.
service.
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Accordingly,
Accordingly, it is hereby
ORDERED
ORDERED that
that plaintiffs motion for aa default judgment
motion for is granted
judgment is granted solely
solely as
as against
defendant Rebecca Schatzel,
Schatzel, with an inquest to be scheduled
scheduled at a later date, and denied as against
the remaining
remaining defendants; and it is further
ORDERED against defendants Larissa Ortis, individually and d/b/a We Cover That!, and
Peter Schatzel,
Schatzel, individually and d/b/a We Cover That! is denied; and it is further
ORDERED plaintiffs' time
that plaintiffs'
ORDERED that within which
time within to file
which to file its
its affidavit of service
affidavit of service upon
defendants
defendants Larissa Ortis and Peter to June
Peter Schatzel is extended, nunc pro tunc, to Iwrc 21, 2023, and
21,2023, and
the same are hereby deemed timely filed; and it is further
fuither
Ortii's and Peter
ORDERED that defendants Larissa Ortis's Peter Schatzel's time to appear
appear and answer the
ofthis
complaint herein shall be 30 days from the date of service of this decision and order upon them, together
entry. Said service shall be made by the methods authorized by CPLR §$ 2103 [c].
with notice of its entry. [c].
Decision and Order of
This shall constitute the Decision the Court.
ofthe Decision and Order
Court. The original Decision
NYSCEF. The signing of this Decision
is being filed with the Greene County Clerk's Office via NYSCEF. Decision
2220. Counsel is not relieved from
Order shall not constitute entry or filing under CPLR §$ 2220.
and Order
regarding notice of entry.
the applicable provisions of that rule regarding
SO ORDERED.
ORDERED.
Dated{\t^o*lZr,?tZ4
Dated:
ZDV I
Catskill, ew York '
Catskilt, $,lewYork
EWER,
E R,
'SHARON
S
itAAY-E,
ONA.G
A. GRA F,
F J
Papers considered: Notice of Motion dated October 13, 2023; Attorney
13,2023; Affirmation by Blake C.
Attomey Affirmation
Saunders dated October 13,
13, 2023, with Exhibits
Exhibits A-F; and Memorandum
Memorandum of Law dated October 13,
13,
2023.
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Exhibit B
Exhibit B
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF GREENE
WS AFTERMARKET SERVICES CORPORATION,
AND WARRANTY SOLUTIONS MANAGEMENT AFFIDAVIT OF SERVICE
CORPORATION,
Plaintiffs, Index No.: EF2023-281
- against -
WE COVER THAT!, LARISSA ORTIS d/b/a WE
COVER THAT!, LARISSA ORTIS, in her individual
capacity, PETER SCHATZEL, in his individual
capacity, and REBECCA SCHATZEL, in her
individual capacity,
Defendants.
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
I, Griffin T. Zeh, hereby certify that on January 25, 2024, I electronically filed the
foregoing within Notice of Entry of the Decision and Order of the Hon. Sharon A. Graff, J.S.C.,
dated January 22, 2024; with the Clerk of the Greene County Supreme Court using the NYSCEF
system, which sent notification of such filing and by depositing a true and correct copy of same,
properly enclosed in a post-paid wrapper, in the official depository maintained and exclusively
controlled by the United States Post Office at 540 Broadway, Albany, New York, directed to said
attorneys and/or said parties not appearing by attorneys at said addresses, those being the addresses
within the state designated for that purpose upon the last papers served in this action or the place
where the above then resided or kept offices, according to the best information which can be
conveniently obtained, upon the following:
TO: REBECCA SCHATZEL LARISSA ORTIS
152 Society Hill Road 59 Weed Road
Greenville, New York 12083 Freehold, New York 12431
LARISSA ORTIS WE COVER THAT!
d/b/a WE COVER THAT! 59 Weed Road
59 Weed Road Freehold, New York 12431
Freehold, New York 12431
PETER SCHATZEL
59 Weed Road
Freehold, New York 12431
10
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GR7 I.ZEH
Sworn to before me this
2.5114-day of January, 2024.
-rtyr..\
Notary Public
NICHOLAS BRADT
Notary Public, State of New York
Qualified in Schenectady Co., No. DIBRa258019 C) 8 °I'D() 3
Commission Expires:4334MT -
2
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Preview
FILED: GREENE COUNTY CLERK 03/18/2024 05:10 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/18/2024 Exhibit J FILED: GREENE COUNTY CLERK 03/18/2024 05:10 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 38 25 RECEIVED NYSCEF: 03/18/2024 02/29/2024 BLAKE C. SAUNDERS , ESQ. bsaunders@couchwhite.com 518.320.3403 direct 518.426.0376 fax February 29, 2024 VIA NYSCEF Hon. Sharon A. Graff, J.S.C. Greene County Courthouse 320 Main Street Catskill, New York 12414 Re: WS Aftermarket Services Corporation, and Warranty Solutions Management Corporation, v. WE COVER THAT! et. al. Greene County Index No.: EF2023-281 Dear Justice Graff: Our office represents Plaintiffs WS Aftermarket Services Corporation, and Warranty Solutions Management Corporation, with regard to the above referenced matter. As the Court is aware, Plaintiffs filed a motion for a default judgment against Defendants on October 16, 2023. In its Decision and Order dated January 24, 2024 (the “Order”), the Court Ordered that Defendants Larissa Ortis and Peter Schatzel would have thirty days from the date of service of the Order to appear and answer the Complaint herein. A copy of Plaintiffs’ notice of entry of the Order and the corresponding affidavits of service, reflecting service upon Defendants on January 25, 2024, are attached hereto. As it stands, the time period specified in the Court’s Order lapsed as of February 29, 2024; Ms. Ortis and Mr. Schatzel have not appeared or answered Plaintiff’s Complaint. Accordingly, we respectfully request that the Court grant Plaintiff’s default motion against Ms. Ortis and Mr. Schatzel and schedule an inquest hearing to assess the damages in this matter. Should the Court have any questions or require anything further, please contact me. Respectfully submitted, Blake C. Saunders Blake C. Saunders, Esq. Attorney BCS/gtz 1 of 11 FILED: GREENE COUNTY CLERK 03/18/2024 05:10 PM | NDEX NO. INDEX NO. EF2023-281 EF2023- 281 NYSCEF DOC. NYSCEF DOC. NO. NO 38 25 25 RECEI VED NYSCEF: RECEIVED NYSCEF: 03/18/2024 02/ 29/ 2024 02/29/2024 Exhibit A Exhibit A 2 of 2 of 11 FILED: GREENE COUNTY CLERK 03/18/2024 05:10 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 38 23 25 RECEIVED NYSCEF: 03/18/2024 01/26/2024 02/29/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF GREENE WS AFTERMARKET SERVICES CORPORATION, AND WARRANTY SOLUTIONS MANAGEMENT CORPORATION, NOTICE OF ENTRY Plaintiffs, Index No.: EF2023-281 -against- WE COVER THAT!, LARISSA ORTIS d/b/a WE COVER THAT!, LARISSA ORTIS, in her individual capacity, PETER SCHATZEL, in his individual capacity, and REBECCA SCHATZEL, in her individual capacity, Defendants. PLEASE TAKE NOTICE that the annexed Decision and Order of the Hon. Sharon A. Graff, J.S.C., dated January 22, 2024; entered by the Clerk of the Greene County Supreme Court using the NYSCEF system on January 24, 2024, is hereby served upon you, and was duly filed and entered in the Greene County Clerk's Office on January 26, 2024, regarding the above- referenced matter. Dated: January 26, 2024 Albany, New York COUCH WHITE, LLP onald J. Hil , Esq. Charles G. Carluccio, Esq. Blake C. Saunders, Esq. Attorneys for Plaintiffs WS Aftermarket Services Corporation and Warranty Solutions Management Corporation 540 Broadway 31 of of 11 6 FILED: GREENE COUNTY CLERK 03/18/2024 05:10 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 38 23 25 RECEIVED NYSCEF: 03/18/2024 01/26/2024 02/29/2024 P.O. Box 22222 Albany, New York 12201-2222 Telephone: (518) 426-4600 TO: REBECCA SCHATZEL 152 Society Hill Road Greenville, New York 12083 LARISSA ORTIS 59 Weed Road Freehold, New York 12431 LARISSA ORTIS d/b/a WE COVER THAT! 59 Weed Road Freehold, New York 12431 PETER SCHATZEL 59 Weed Road Freehold, New York 12431 WE COVER THAT! 59 Weed Road Freehold, New York 12431 42 of of 11 6 FILED: GREENE COUNTY CLERK 03/18/2024 01/24/2024 05:10 12:59 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 38 22 23 25 RECEIVED NYSCEF: 03/18/2024 01/24/2024 01/26/2024 02/29/2024 STATE S'I'ATE OF NEW YORK SUPREME COURT C OURT GREENE COUNTY WS AFTERMARKET AFTERMARKET SERVICES CORPORATION, CORPORATION, AND WARRANTY WARRANTY SOLUTIONS SOLUTIONS MANAGEMENT CORPORATION, CORPORATION, Plaintills. Plaintiffs, Decision & Order -against- -agalnst- Index No.: 8F2023-281 EF2023-281 WE COVER THAT!, LARISSA LAzuSSA ORTIS, d/b/a d/bia WE COVER THAT!, LARISSA ORTIS, in her individual capacity, PETER PETER SCHATZEL, SCHATZEL, in his individual individual capacity, and REBECCA REBECCA SCHATZEL, in her individual individual capacity, Defendants. Delendants. Supreme Supreme Court, Greene County Return Retum Date: Date: November November 3, 3. 2023 Present: Present: Hon. Sharon A. Graff, Graff" JSC Appearances: Appearances: Couch White, White, LLP Attorneys Attomeys for Plaintiffs 540 Broadway Broadway York 12201-2222 Albany, New York 12201-2222 By: Donald J. Hillmann, By: Hillmann, Esq. Charles Charles G. Carlucccio, Esq. Blake C. Saunders, Esq. Graff, J.: Plaintiffs commenced Plaintiffs this action commenced this to recover action to recover $507,600.00 it paid $507,600.00 it in commissions paid in commissions to defendants defendants based upon allegedly allegedly fraudulently fraudulently created agreements agreements defendants defendants claimed to have made with eight automobile automobile dealerships dealerships under which 980 protection plans were allegedly sold to clients on plaintiffs. Defendants have not answered, and on behalf of plaintiffs. plaintiffs now move and plaintiffs move for aa default judgment. The motion is partially granted as discussed herein. herein. A party seeking default judgment must show that the defendants have been served, proof oftheir of their default, and proof of the facts of its claim (Dayco andproofofthe (Dayc o Mechanical Mechqnical Services Services v Toscani, 94 AD3d Toscani,94 1214 1214 [3d [3d Dept 2012]). 2012]). With respect to the third requirement. requirement, plaintiffs have met their burden by 11 53 1 of of 11 4 6 FILED: GREENE COUNTY CLERK 03/18/2024 01/24/2024 05:10 12:59 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 38 22 23 25 RECEIVED NYSCEF: 03/18/2024 01/24/2024 01/26/2024 02/29/2024 relying upon upon their their verified complaint complaint which adequately establishes the the facts facts constituting their claims. (CPLR §$ 3215 [f]). tfl). Turning Tuming to service, plaintiflfs' affidavits service, plaintiffs' affrdavits of service upon the individual individual defendants defendants reflect that, after making making unsuccessful unsuccessful attempts at personal delivery, the process server resorted to the "affix mail" method prescribed by CPLR §$ 308 [4]. "affix and mail" [4]. With respect to defendant Rebecca Schatzel, Schatzel, the affidavit of olservice service demonstrates demonstrates that service service by the affix and mail method was duly made, and the affirmation affirmation of plaintiffs' attorney attomey establishes establishes her default. default. Plaintiffs' submissions Plaintiffs' with respect submissions with to the respect to the remaining remaining individual individual defendants, defendants, namely, Larissa Ortis and Peter Schatzel, Schatzel, are insufficient insufficient to support a finding of default. default. The affidavits affidavits of service service show that the pleadings were v‘ ere affixed to the respective defendants' residence' residencer on May May 18. 18, 2023, 2023, and mailed to the same same address address on May 19, 19,2023. 2023. However, However, to be valid, service "affix service by the "affix mail" method must be completed by the filing of the and mail- the affidavit affrdavit of service within twenty days from either the the affixing or the the mailing of the the summons and and complaint, whichever occurs later t4]). Here, plaintiffs fi (CPLR §$ 308 [4]). led the affidavits filed affidavits of service on Larissa Larissa Ortis Ortis and Peter Schatzel on June 21, 2023, 2023, and and thus more than twenty days after both acts never completed. completed. As such, the thirty-day period to answer never began to run thirty-day mn with respect to defendants defendants Larissa Ortis and Peter [a]) and they are not in default. Schatzel (CPLR §$ 320 [a]) the failure to Nevertheless, the file proof to file of service proof of is aa mere service is mere irregularity which may inegularity which may be remedied by an order pursuant to CPLR §2004 (Haushecht v Ackerman, $2004 (Hausknecht 242 AD2d Ackerman,242 604, 606 [2nd AD2d6O4,606[2"d 1997]) and may be cured nunc pro tunc under Dept. 1997]) tnder CPLR §2001 ofaa 52001 where no substantial right of party will be prejudiced. $2001). Under the present circumstances, permitting prejudiced. (CPLR §2001). permitting plaintiffs to detay in filing the affidavit of cure the brief delay ofservice inegularity and will not an irregularity service will simply correct an ofthe prejudice any substantial right of prejudice the defendants Schatzel. Plaintiffs' time defendants Larissa Ortis and Peter Schatzel. residence address is also the defendants' business address. 'I Per the complaint, the residence address. 2 64 2 of of 11 4 6 FILED: GREENE COUNTY CLERK 03/18/2024 01/24/2024 05:10 12:59 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 38 22 23 25 RECEIVED NYSCEF: 03/18/2024 01/24/2024 01/26/2024 02/29/2024 within which to file their affidavit of service is hereby extended. extended, nunc nunc pro tunc, to June Jvne 22, 22, 2023, 2023, the date date they were filed with the Clerk Clerk and filed. Defendants and the same shall be deemed timely filed. Larissa Ortis and Peter Schatzel will have thirty days from the date of service ofthis service of this decision and order with notice of its entry within which to answer. Next, with respect to service upon We Cover That! plaintiffs offer an affidavit of service which they which they argue argue demonstrates tiat service was made upon the demonstrates that "Offrce of the the "Office York State the New York Secretary of State, the authorized agent for service service of process of We Cover That!", presumably pursuant to the pertinent provisions pursuant provisions of either the Business ofeither Business Corporation Law or the Limited Corporation Law Limited Liability Company Law. Ordinarily. Company Law. Ordinarily, "a process server's sworn service .... swom affidavit of service . . constitutes prima (U.5. Bank Nat. Ass'n vv Vanvliet, facie evidence of proper service" (U.S. 24 AD3d Vanvliet,24 AD3d 906. 908 [3d 906,908 [3d Dept 2005]). assumes that the process server's affidavit contains a sufficient 20051). The aforementioned rule assumes factual recitation, i.e., served, and the date, time and place of service. the name of the party served, i.e.,the service. Here, affidavit is missing some the process server's affidavit some of ofthese facts. While the affidavit these essential facts. affrdavit of service in question states that the process server served two copies copies of ofthe summons and complaint the summons complaint on "Sue "Sue Zouky, Business Business Document discretion to accept service", it Document Spec. 2, a person of suitable age and discretion does not not set identifr the recipient as a set forth the address where this service occurred or otherwise identify "deputy" "deputy" of ofthe State.2 Given these factual insufficiencies, the Court cannot conclude the Secretary of State.2 Thus, the branch of the motion for a default judgment against it sewed. Thus. that We Cover That! was served. is denied without prejudice.3 prejudice.3 22As an the pleadings whether and the an aside, it is unclear from the caption and We Cover That! is a whether We corporation, limited timited liability company, or other entity upon which service service via the Secretary of State is authorized. I To the extent proper Thatl, the factual deficiencies upon We Cover That!, proper service was effectuated upon deficiencies can be remedied by the filing of an amended affidavit of service. service. 33 75 3 of of 11 4 6 FILED: GREENE COUNTY CLERK 03/18/2024 01/24/2024 05:10 12:59 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 38 22 23 25 RECEIVED NYSCEF: 03/18/2024 01/24/2024 01/26/2024 02/29/2024 Accordingly, Accordingly, it is hereby ORDERED ORDERED that that plaintiffs motion for aa default judgment motion for is granted judgment is granted solely solely as as against defendant Rebecca Schatzel, Schatzel, with an inquest to be scheduled scheduled at a later date, and denied as against the remaining remaining defendants; and it is further ORDERED against defendants Larissa Ortis, individually and d/b/a We Cover That!, and Peter Schatzel, Schatzel, individually and d/b/a We Cover That! is denied; and it is further ORDERED plaintiffs' time that plaintiffs' ORDERED that within which time within to file which to file its its affidavit of service affidavit of service upon defendants defendants Larissa Ortis and Peter to June Peter Schatzel is extended, nunc pro tunc, to Iwrc 21, 2023, and 21,2023, and the same are hereby deemed timely filed; and it is further fuither Ortii's and Peter ORDERED that defendants Larissa Ortis's Peter Schatzel's time to appear appear and answer the ofthis complaint herein shall be 30 days from the date of service of this decision and order upon them, together entry. Said service shall be made by the methods authorized by CPLR §$ 2103 [c]. with notice of its entry. [c]. Decision and Order of This shall constitute the Decision the Court. ofthe Decision and Order Court. The original Decision NYSCEF. The signing of this Decision is being filed with the Greene County Clerk's Office via NYSCEF. Decision 2220. Counsel is not relieved from Order shall not constitute entry or filing under CPLR §$ 2220. and Order regarding notice of entry. the applicable provisions of that rule regarding SO ORDERED. ORDERED. Dated{\t^o*lZr,?tZ4 Dated: ZDV I Catskill, ew York ' Catskilt, $,lewYork EWER, E R, 'SHARON S itAAY-E, ONA.G A. GRA F, F J Papers considered: Notice of Motion dated October 13, 2023; Attorney 13,2023; Affirmation by Blake C. Attomey Affirmation Saunders dated October 13, 13, 2023, with Exhibits Exhibits A-F; and Memorandum Memorandum of Law dated October 13, 13, 2023. 4 86 4 of of 11 4 6 FILED: GREENE COUNTY CLERK 03/18/2024 05:10 PM | NDEX NO. INDEX NO. EF2023-281 EF2023- 281 NYSCEF DOC. NYSCEF DOC. NO. NO 38 25 25 RECEI VED NYSCEF: RECEIVED NYSCEF: 03/18/2024 02/ 29/ 2024 02/29/2024 Exhibit B Exhibit B 9 of 9 of 11 FILED: GREENE COUNTY CLERK 03/18/2024 05:10 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 38 24 25 RECEIVED NYSCEF: 03/18/2024 01/25/2024 02/29/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF GREENE WS AFTERMARKET SERVICES CORPORATION, AND WARRANTY SOLUTIONS MANAGEMENT AFFIDAVIT OF SERVICE CORPORATION, Plaintiffs, Index No.: EF2023-281 - against - WE COVER THAT!, LARISSA ORTIS d/b/a WE COVER THAT!, LARISSA ORTIS, in her individual capacity, PETER SCHATZEL, in his individual capacity, and REBECCA SCHATZEL, in her individual capacity, Defendants. STATE OF NEW YORK ) ) ss.: COUNTY OF ALBANY ) I, Griffin T. Zeh, hereby certify that on January 25, 2024, I electronically filed the foregoing within Notice of Entry of the Decision and Order of the Hon. Sharon A. Graff, J.S.C., dated January 22, 2024; with the Clerk of the Greene County Supreme Court using the NYSCEF system, which sent notification of such filing and by depositing a true and correct copy of same, properly enclosed in a post-paid wrapper, in the official depository maintained and exclusively controlled by the United States Post Office at 540 Broadway, Albany, New York, directed to said attorneys and/or said parties not appearing by attorneys at said addresses, those being the addresses within the state designated for that purpose upon the last papers served in this action or the place where the above then resided or kept offices, according to the best information which can be conveniently obtained, upon the following: TO: REBECCA SCHATZEL LARISSA ORTIS 152 Society Hill Road 59 Weed Road Greenville, New York 12083 Freehold, New York 12431 LARISSA ORTIS WE COVER THAT! d/b/a WE COVER THAT! 59 Weed Road 59 Weed Road Freehold, New York 12431 Freehold, New York 12431 PETER SCHATZEL 59 Weed Road Freehold, New York 12431 10 1 of 11 2 FILED: GREENE COUNTY CLERK 03/18/2024 05:10 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 38 24 25 RECEIVED NYSCEF: 03/18/2024 01/25/2024 02/29/2024 GR7 I.ZEH Sworn to before me this 2.5114-day of January, 2024. -rtyr..\ Notary Public NICHOLAS BRADT Notary Public, State of New York Qualified in Schenectady Co., No. DIBRa258019 C) 8 °I'D() 3 Commission Expires:4334MT - 2 11 2 of 11 2