Preview
FILED: GREENE COUNTY CLERK 03/18/2024 05:10 PM INDEX NO. EF2023-281
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/18/2024
Exhibit G
FILED: GREENE COUNTY CLERK 03/18/2024
01/24/2024 05:10
12:59 PM INDEX NO. EF2023-281
NYSCEF DOC. NO. 35
22 RECEIVED NYSCEF: 03/18/2024
01/24/2024
S'I'ATE OF NEW YORK
SUPREME C OURT GREENE COUNTY
WS AFTERMARKET SERVICES CORPORATION,
AND WARRANTY SOLUTIONS MANAGEMENT
CORPORATION,
Plaintills.
Decision & Order
-agalnst- Index No.: 8F2023-281
WE COVER THAT!, LAzuSSA ORTIS, d/bia WE
COVER THAT!, LARISSA ORTIS, in her individual
capacity, PETER SCHATZEL, in his individual capacity,
and REBECCA SCHATZEL, in her individual capacity,
Delendants.
Supreme Court, Greene County
Retum Date: November 3. 2023
Present: Hon. Sharon A. Graff" JSC
Appearances: Couch White, LLP
Attomeys for Plaintiffs
540 Broadway
Albany, New York 12201-2222
By: Donald J. Hillmann, Esq.
Charles G. Carlucccio, Esq.
Blake C. Saunders, Esq.
Graff, J.:
Plaintiffs commenced this action to recover $507,600.00 it paid in commissions to
defendants based upon allegedly fraudulently created agreements defendants claimed to have made
with eight automobile dealerships under which 980 protection plans were allegedly sold to clients
on behalf of plaintiffs. Defendants have not answered, and plaintiffs now move for a default
judgment. The motion is partially granted as discussed herein.
A party seeking default judgment must show that the defendants have been served, proof
oftheir default, andproofofthe facts of its claim (Dayc o Mechqnical Services v Toscani,94 AD3d
1214 [3d Dept 2012]). With respect to the third requirement, plaintiffs have met their burden by
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FILED: GREENE COUNTY CLERK 03/18/2024
01/24/2024 05:10
12:59 PM INDEX NO. EF2023-281
NYSCEF DOC. NO. 35
22 RECEIVED NYSCEF: 03/18/2024
01/24/2024
relying upon their verified complaint which adequately establishes the facts constituting their
claims. (CPLR $ 3215 tfl). Tuming to service, plaintiflfs' affrdavits of service upon the individual
defendants reflect that, after making unsuccessful attempts at personal delivery, the process server
resorted to the "affix and mail" method prescribed by CPLR $ 308 [4]. With respect to defendant
Rebecca Schatzel, the affidavit olservice demonstrates that service by the affix and mail method
was duly made, and the affirmation of plaintiffs' attomey establishes her default.
Plaintiffs' submissions with respect to the remaining individual defendants, namely,
Larissa Ortis and Peter Schatzel, are insufficient to support a finding of default. The affidavits of
service show that the pleadings were affixed to the respective defendants' residencer on May 18,
2023, and mailed to the same address on May 19,2023. However, to be valid, service by the "affix
and mail" method must be completed by the filing of the affrdavit of service within twenty days
from either the affixing or the mailing of the summons and complaint, whichever occurs later
(CPLR $ 308 t4]). Here, plaintiffs filed the affidavits of service on Larissa Ortis and Peter Schatzel
on June 21, 2023, and thus more than twenty days after both acts never completed. As such, the
thirty-day period to answer never began to mn with respect to defendants Larissa Ortis and Peter
Schatzel (CPLR $ 320 [a]) and they are not in default.
Nevertheless, the failure to file proof of service is a mere inegularity which may be
remedied by an order pursuant to CPLR $2004 (Haushecht v Ackerman,242 AD2d6O4,606[2"d
Dept. 1997]) and may be cured nunc pro tunc tnder CPLR 52001 where no substantial right ofa
party will be prejudiced. (CPLR $2001). Under the present circumstances, permitting plaintiffs to
cure the brief detay in filing the affidavit ofservice will simply correct an inegularity and will not
prejudice any substantial right ofthe defendants Larissa Ortis and Peter Schatzel. Plaintiffs' time
I Per the complaint, the residence address is also the defendants' business address.
2
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FILED: GREENE COUNTY CLERK 03/18/2024
01/24/2024 05:10
12:59 PM INDEX NO. EF2023-281
NYSCEF DOC. NO. 35
22 RECEIVED NYSCEF: 03/18/2024
01/24/2024
within which to file their affidavit of service is hereby extended, nunc pro tunc, to Jvne 22, 2023,
the date they were filed with the Clerk and the same shall be deemed timely filed. Defendants
Larissa Ortis and Peter Schatzel will have thirty days from the date of service ofthis 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 argue demonstrates tiat service was made upon the "Offrce of the New York State
Secretary of State, the authorized agent for service of process of We Cover That!", presumably
pursuant to the pertinent provisions ofeither the Business Corporation Law or the Limited Liability
Company Law. Ordinarily, "a process server's swom affidavit of service ... constitutes prima
facie evidence of proper service" (U.5. Bank Nat. Ass'n v Vanvliet,24 AD3d 906,908 [3d Dept
20051). The aforementioned rule assumes that the process server's affidavit contains a sufficient
factual recitation, i.e.,the name of the party served, and the date, time and place of service. Here,
the process server's affidavit is missing some ofthese essential facts. While the affrdavit of service
in question states that the process server served two copies ofthe summons and complaint on "Sue
Zouky, Business Document Spec. 2, a person of suitable age and discretion to accept service", it
does not set forth the address where this service occurred or otherwise identifr the recipient as a
"deputy" ofthe Secretary of State.2 Given these factual insufficiencies, the Court cannot conclude
that We Cover That! was sewed. Thus, the branch of the motion for a default judgment against it
is denied without prejudice.3
2As an aside, it is unclear from the caption and the pleadings whether We Cover That! is a
corporation, timited liability company, or other entity upon which service via the Secretary of
State is authorized.
I To the extent proper service was effectuated upon We Cover Thatl, the factual deficiencies
can be remedied by the filing of an amended affidavit of service.
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FILED: GREENE COUNTY CLERK 03/18/2024
01/24/2024 05:10
12:59 PM INDEX NO. EF2023-281
NYSCEF DOC. NO. 35
22 RECEIVED NYSCEF: 03/18/2024
01/24/2024
Accordingly, it is hereby
ORDERED that plaintiffs motion for a default judgment is granted solely as against
defendant Rebecca Schatzel, with an inquest to be scheduled at a later date, and denied as against
the remaining defendants; and it is further
ORDERED against defendants Larissa Ortis, individually and d/b/a We Cover That!, and
Peter Schatzel, individually and d/b/a We Cover That! is denied; and it is further
ORDERED that plaintiffs' time within which to file its affidavit of service upon
defendants Larissa Ortis and Peter Schatzel is extended, nunc pro tunc, to Iwrc 21,2023, and
the same are hereby deemed timely filed; and it is fuither
ORDERED that defendants Larissa Ortii's and Peter Schatzel's time to appear and answer the
complaint herein shall be 30 days from the date of service ofthis decision and order upon them, together
with notice of its entry. Said service shall be made by the methods authorized by CPLR $ 2103 [c].
This shall constitute the Decision and Order ofthe Court. The original Decision and Order
is being filed with the Greene County Clerk's Office via NYSCEF. The signing of this Decision
and Order shall not constitute entry or filing under CPLR $ 2220. Counsel is not relieved from
the applicable provisions of that rule regarding notice of entry.
SO ORDERED.
Dated{\t^o*lZr,?tZ4
Catskilt, $,lewYork '
E R,
S ONA.G F J
Papers considered: Notice of Motion dated October 13,2023; Attomey Affirmation by Blake C.
Saunders dated October 13, 2023, with Exhibits A-F; and Memorandum of Law dated October 13,
2023.
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Preview
FILED: GREENE COUNTY CLERK 03/18/2024 05:10 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/18/2024 Exhibit G FILED: GREENE COUNTY CLERK 03/18/2024 01/24/2024 05:10 12:59 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 35 22 RECEIVED NYSCEF: 03/18/2024 01/24/2024 S'I'ATE OF NEW YORK SUPREME C OURT GREENE COUNTY WS AFTERMARKET SERVICES CORPORATION, AND WARRANTY SOLUTIONS MANAGEMENT CORPORATION, Plaintills. Decision & Order -agalnst- Index No.: 8F2023-281 WE COVER THAT!, LAzuSSA ORTIS, d/bia WE COVER THAT!, LARISSA ORTIS, in her individual capacity, PETER SCHATZEL, in his individual capacity, and REBECCA SCHATZEL, in her individual capacity, Delendants. Supreme Court, Greene County Retum Date: November 3. 2023 Present: Hon. Sharon A. Graff" JSC Appearances: Couch White, LLP Attomeys for Plaintiffs 540 Broadway Albany, New York 12201-2222 By: Donald J. Hillmann, Esq. Charles G. Carlucccio, Esq. Blake C. Saunders, Esq. Graff, J.: Plaintiffs commenced this action to recover $507,600.00 it paid in commissions to defendants based upon allegedly fraudulently created agreements defendants claimed to have made with eight automobile dealerships under which 980 protection plans were allegedly sold to clients on behalf of plaintiffs. Defendants have not answered, and plaintiffs now move for a default judgment. The motion is partially granted as discussed herein. A party seeking default judgment must show that the defendants have been served, proof oftheir default, andproofofthe facts of its claim (Dayc o Mechqnical Services v Toscani,94 AD3d 1214 [3d Dept 2012]). With respect to the third requirement, plaintiffs have met their burden by 1 1 of 4 FILED: GREENE COUNTY CLERK 03/18/2024 01/24/2024 05:10 12:59 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 35 22 RECEIVED NYSCEF: 03/18/2024 01/24/2024 relying upon their verified complaint which adequately establishes the facts constituting their claims. (CPLR $ 3215 tfl). Tuming to service, plaintiflfs' affrdavits of service upon the individual defendants reflect that, after making unsuccessful attempts at personal delivery, the process server resorted to the "affix and mail" method prescribed by CPLR $ 308 [4]. With respect to defendant Rebecca Schatzel, the affidavit olservice demonstrates that service by the affix and mail method was duly made, and the affirmation of plaintiffs' attomey establishes her default. Plaintiffs' submissions with respect to the remaining individual defendants, namely, Larissa Ortis and Peter Schatzel, are insufficient to support a finding of default. The affidavits of service show that the pleadings were affixed to the respective defendants' residencer on May 18, 2023, and mailed to the same address on May 19,2023. However, to be valid, service by the "affix and mail" method must be completed by the filing of the affrdavit of service within twenty days from either the affixing or the mailing of the summons and complaint, whichever occurs later (CPLR $ 308 t4]). Here, plaintiffs filed the affidavits of service on Larissa Ortis and Peter Schatzel on June 21, 2023, and thus more than twenty days after both acts never completed. As such, the thirty-day period to answer never began to mn with respect to defendants Larissa Ortis and Peter Schatzel (CPLR $ 320 [a]) and they are not in default. Nevertheless, the failure to file proof of service is a mere inegularity which may be remedied by an order pursuant to CPLR $2004 (Haushecht v Ackerman,242 AD2d6O4,606[2"d Dept. 1997]) and may be cured nunc pro tunc tnder CPLR 52001 where no substantial right ofa party will be prejudiced. (CPLR $2001). Under the present circumstances, permitting plaintiffs to cure the brief detay in filing the affidavit ofservice will simply correct an inegularity and will not prejudice any substantial right ofthe defendants Larissa Ortis and Peter Schatzel. Plaintiffs' time I Per the complaint, the residence address is also the defendants' business address. 2 2 of 4 FILED: GREENE COUNTY CLERK 03/18/2024 01/24/2024 05:10 12:59 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 35 22 RECEIVED NYSCEF: 03/18/2024 01/24/2024 within which to file their affidavit of service is hereby extended, nunc pro tunc, to Jvne 22, 2023, the date they were filed with the Clerk and the same shall be deemed timely filed. Defendants Larissa Ortis and Peter Schatzel will have thirty days from the date of service ofthis 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 argue demonstrates tiat service was made upon the "Offrce of the New York State Secretary of State, the authorized agent for service of process of We Cover That!", presumably pursuant to the pertinent provisions ofeither the Business Corporation Law or the Limited Liability Company Law. Ordinarily, "a process server's swom affidavit of service ... constitutes prima facie evidence of proper service" (U.5. Bank Nat. Ass'n v Vanvliet,24 AD3d 906,908 [3d Dept 20051). The aforementioned rule assumes that the process server's affidavit contains a sufficient factual recitation, i.e.,the name of the party served, and the date, time and place of service. Here, the process server's affidavit is missing some ofthese essential facts. While the affrdavit of service in question states that the process server served two copies ofthe summons and complaint on "Sue Zouky, Business Document Spec. 2, a person of suitable age and discretion to accept service", it does not set forth the address where this service occurred or otherwise identifr the recipient as a "deputy" ofthe Secretary of State.2 Given these factual insufficiencies, the Court cannot conclude that We Cover That! was sewed. Thus, the branch of the motion for a default judgment against it is denied without prejudice.3 2As an aside, it is unclear from the caption and the pleadings whether We Cover That! is a corporation, timited liability company, or other entity upon which service via the Secretary of State is authorized. I To the extent proper service was effectuated upon We Cover Thatl, the factual deficiencies can be remedied by the filing of an amended affidavit of service. 3 3 of 4 FILED: GREENE COUNTY CLERK 03/18/2024 01/24/2024 05:10 12:59 PM INDEX NO. EF2023-281 NYSCEF DOC. NO. 35 22 RECEIVED NYSCEF: 03/18/2024 01/24/2024 Accordingly, it is hereby ORDERED that plaintiffs motion for a default judgment is granted solely as against defendant Rebecca Schatzel, with an inquest to be scheduled at a later date, and denied as against the remaining defendants; and it is further ORDERED against defendants Larissa Ortis, individually and d/b/a We Cover That!, and Peter Schatzel, individually and d/b/a We Cover That! is denied; and it is further ORDERED that plaintiffs' time within which to file its affidavit of service upon defendants Larissa Ortis and Peter Schatzel is extended, nunc pro tunc, to Iwrc 21,2023, and the same are hereby deemed timely filed; and it is fuither ORDERED that defendants Larissa Ortii's and Peter Schatzel's time to appear and answer the complaint herein shall be 30 days from the date of service ofthis decision and order upon them, together with notice of its entry. Said service shall be made by the methods authorized by CPLR $ 2103 [c]. This shall constitute the Decision and Order ofthe Court. The original Decision and Order is being filed with the Greene County Clerk's Office via NYSCEF. The signing of this Decision and Order shall not constitute entry or filing under CPLR $ 2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry. SO ORDERED. Dated{\t^o*lZr,?tZ4 Catskilt, $,lewYork ' E R, S ONA.G F J Papers considered: Notice of Motion dated October 13,2023; Attomey Affirmation by Blake C. Saunders dated October 13, 2023, with Exhibits A-F; and Memorandum of Law dated October 13, 2023. 4 4 of 4