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FILED: KINGS COUNTY CLERK 04/28/2023 04:37 PM INDEX NO. 501589/2017
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/28/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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Alva DeFreitas and Leslie DeFreitas,
Plaintiffs,
Index No. 501589/2017
-against-
Nigel DeFreitas and Talitha DeFreitas,
Defendants.
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OPPOSITION TO TALITHA ANDREWS' CROSS MOTION AND IN FURTHER
SUPPORT OF NIGEL DEFREITAS' MOTION TO VACATE AND FOR SANCTIONS
Dated: New York, New York
April 28, 2023
By: s/ Jerry Boies
Jerry Boies
THE BOIES LAW FIRM, PLLC
535 Fifth Avenue, 4th Floor
New York, New York 10017
Tel: 212-729-0085
jboies@boieslaw.com
Attorneys for the Defendant Nigel DeFreitas
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Defendant Nigel DeFreitas (“Defendant Nigel”) 1 submits this opposition to Talitha
Andrews' (formerly known as Talitha DeFreitas) cross-motion, in further support of his motion to
vacate the sham judgment (NYSCEF Doc. No. 70) Mrs. Andrews obtained against him, and to
impose sanctions against Mrs. Andrews in terms of paying his attorney’s fees.
RELEVANT BACKGROUND
Plaintiffs brought this lawsuit against both Defendant Nigel and Mrs. Andrews claiming
that defendants are in default of the $67,122.36 loan agreement attached as Exhibit C in Defendant
Nigel’s initial moving papers to vacate Mrs. Andrews’ judgment.
As admitted by Mrs. Andrews in Paragraph 6 of her Affirmation in Opposition of Plaintiffs’
motion for Summary Judgment, which is attached as Exhibit A in Defendant Nigel’s initial moving
papers to vacate Mrs. Andrews’ judgment, on February 27, 2010, Mrs. Andrews signed a contract
to borrow $67,122.36 from Plaintiffs. Pursuant to the terms of the contract, Mrs. Andrews agreed
to pay Plaintiffs $500.00 per month until the entire $67,122.36 is paid back to Plaintiffs. See
Exhibit C for a copy of the executed agreement in Defendant Nigel’s initial moving papers to
vacate Mrs. Andrews’ judgment. Plaintiffs moved for summary judgment against Mrs. Andrews
and for default judgment against Defendant Nigel.
Mrs. Andrews then filed a crossclaim against Defendant Nigel for part of the $67,122.36
owed to Plaintiffs for indemnification based on a divorce stipulation of settlement entered into in
2014 between Defendant Nigel and Mrs. Andrews. (“Divorce Stipulation”).
The relevant terms of the Divorce Stipulation, which is annexed to Mrs. Andrews’ cross-
motion papers as Exhibit 1, provide:
1
We call Defendant Nigel DeFreitas by his first name to differentiate him from Plaintiffs.
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• “The parties acknowledge that they are jointly and severally liable for a debt in the
outstanding amount of $56,897.51 to the parents of the Plaintiff-Husband, Alva and
Leslie DeFreitas.”
• “The Wife shall be responsible for the $16,987.51 of credit card debt and shall hold
the husband harmless for all liability arising out of said debt. Husband shall be
responsible for the first $16,987.51 owed to the parents of the Plaintiff-Husband
Alva and Leslie DeFreitas. The parties shall each by jointly and severally liable for
one-half of the remaining $40,000.00. The Husband agrees to indemnify and hold
the Wife harmless from any judgment against her in excess of $20,000.00 in the
name of Alva and Leslie DeFreitas or their successors-in-interest.”
As provided Defendant Nigel’s affidavit annexed herein, Mrs. Andrews never served
Defendant Nigel with any answer, crossclaim complaint, motion papers, or any documents in this
case for that matter.
On September 19, 2017, this Court entered an Order (NYSCEF Doc. No. 19) stating that
“[a]ll parties are required to appear. If Defendant Talitha DeFreitas makes a motion, the motion
shall be returnable on October 25, 2017.” See Exhibit D for a Copy of the Order in Defendant
Nigel’s initial moving papers to vacate Mrs. Andrews’ judgment. Although Defendant Nigel did
not appear in this case, Mrs. Andrews, as an officer of this Court and an experienced attorney, did
not take any step to ensure that the non-appearing Defendant Nigel was informed of the Court
Order to appear.
Mrs. Andrews moved for default judgment on her crossclaim against Defendant Nigel. On
December 19, 2017, the Court granted Mrs. Andrews’ motion for default judgment on her
crossclaim.
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Again, Mrs. Andrews never served Defendant Nigel with Notice of Motion and Motion
papers. (See NYSCEF Docs. No. 20 through No. 23).
Notwithstanding the fact Defendant Nigel was not served with the motion papers, Mrs.
Andrews failed to notify the Court of the same, and Mrs. Andrews failed to inform the Court that
she was the only party in default, the Court found “pursuant to the parties-defendants’ divorce
stipulation of settlement, defendant Nigel DeFreitas is obligated to indemnify and hold harmless
defendant Talitha DeFreitas from any judgment in excess of $20,000.00 against her in the name
of the plaintiffs. See NYSCEF Doc. No. 24.
After further litigation relating to the amount Plaintiffs were entitled to from both Mrs.
Andrews and Defendant Nigel, on June 3, 2019, the Court entered a Second Amended Judgment
in favor of Plaintiffs against both Mrs. Andrews and Defendant Nigel in the sum of $57,122.36
with interest from September 1, 2011, in the amount of $39,700.00 for a total sum of $96,822.36
together with costs and disbursements in the sum of $626.00, totaling, the sum of $97,448.36, less
monies paid in the sum of $1,439.55, in all, totaling, the sum of $96,008.81. See NYSCEF Doc.
No. 56 attached herein as Exhibit E. 2
On October 21, 2022, pursuant to Mrs. Andrews’ proposed judgment, the Court entered a
judgment in favor of Mrs. Andrews in the sum of $76,008.81, with interest paid above the
$20,000.000 in the sum of $18,259.80, for a total sum of $94,268.61. Mrs. Andrews filed her
Notice of Entry for aforementioned judgment on December 5, 2022. (See Exhibit F in Defendant
Nigel’s initial moving papers to vacate Mrs. Andrews’ judgment or NYSCEF Doc. No. 70).
2
Exhibit B (NYSCEF Doc. No. 27) was the first judgment, which was later amended by the Second Amended
Judgment (NYSCEF Doc. No. 56) attached herein as Exhibit E.
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All the while, Defendant Nigel no longer held an obligation to Plaintiffs or to Mrs. Andrews
because Defendant Nigel fully had satisfied his obligations since September 2016.
As provided in Defendant Nigel’s Affidavit attached herein in further support of his motion
to vacate the judgment and in opposition to Mrs. Andrews’ motion:
• On September 19, 2016, Plaintiffs Alva and Leslie DeFreitas and I agreed, in
satisfaction of the debt outlined in the Divorce Stipulation ($36,987.51), I executed
a deed to Real Property located at 413 North Grove Street, Valley Stream, NY
11581 that properly recorded in Nassau County Register of Deeds office on or about
October 18, 2016, to Alva DeFreitas. (See Exhibit G annexed herein for Copy of
the Recorded Instrument from Nassau County Clerk).
• Mrs. Andrews, on the other hand, breached that part of the Divorce Stipulation
when she failed to timely pay her $20,000.00 to Plaintiffs Alva and Leslie
DeFreitas.
• Had it not been for Mrs. Andrews’ breach of the contract with Plaintiffs Alva and
Leslie DeFreitas, this litigation would have never been ensued.
• Mrs. Andrews breached the terms of the contract with Plaintiffs Alva and Leslie
DeFreitas and the Divorce Stipulation as it relates to this case. Nonetheless, she
conveniently failed to point that to the Court.
ARGUMENT
Point I: Defendant Nigel's motion to vacate Mrs. Andrews’ judgment (NYSCEF Doc. No.
70) should be granted because his defense of accord and satisfaction has merit; and
because any interests, costs, or disbursements incurred in this case were as a result of Mrs.
Andrews’ breach of the contract with Plaintiffs Alva DeFreitas and Leslie DeFreitas
An executory accord, or “accord and satisfaction,” is a contract that provides for discharge
of prior existing obligations upon satisfaction of the newly bargained-for performance. Denburg
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v. Parker Chapin Flattau & Klimpl, 82 N.Y.2d 375, 383, 604 N.Y.S.2d 900, 624 N.E.2d 995
(1993); accord May Dep't Stores Co. v. Int'l Leasing Corp., 1 F.3d 138, 140 (2d Cir.1993); Koening
Iron Works, Inc., v. Sterling Factories, Inc., No. 89 Civ. 4257(THK), 1999 WL 178785, at *7–8
(S.D.N.Y. Mar.30, 1999). Such a contract is to be distinguished from a substitute agreement:
“Whereas an executory accord extinguishes a claimant's prior claims upon performance of the
accord, a substitute agreement extinguishes a claimant's prior claims upon execution of the
agreement.” Frank Felix Assocs. v. Austin Drugs, Inc., 111 F.3d 284, 287 n. 1 (2d Cir.1997);
Denburg, 82 N.Y.2d at 384, 604 N.Y.S.2d 900, 624 N.E.2d 995 (describing a substitute agreement
as “a new agreement, [that] though executory ... immediately discharge[s] the existing
obligation”). C3 Media & Mktg. Grp., LLC v. Firstgate Internet, Inc., 419 F. Supp. 2d 419, 433–
34 (S.D.N.Y. 2005).
Defendant Nigel is not liable for any interests, costs and disbursements per indemnification
because it is Mrs. Andrews that breached the agreement she had with both the Plaintiffs and
Defendant Nigel when she failed to timely pay Plaintiffs the $20,000.00, which resulted in this
litigation well after Defendant Nigel had satisfied his pro rata share of the debt assigned to him
pursuant to the Divorce Stipulation.
As stated above, the Divorce Stipulation requires the parties to split the $56,897.51 debt to
Plaintiffs Alva DeFreitas and Leslie DeFreitas as follows: Defendant Nigel would pay the first
$16,987.51 to Plaintiffs, Defendant Nigel and Mrs. Andrews would pay $20,000.00 each for the
remaining $40,000.00 debt. It was further noted that Defendant Nigel would indemnify Mrs.
Andrews for judgments above $20,000.00. The Divorce Stipulation does not contemplate and
Defendant Nigel did not expect that Mrs. Andrews would breach the contract with Plaintiffs. In
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other words, any allegation by Mrs. Andrews that Defendant Nigel owes her any fees, penalties,
arrears, interests, etc. is frivolous ab initio.
Defendant Nigel fully satisfied his debt obligation to Plaintiffs Alva DeFreitas and Leslie
DeFreitas on September 19, 2016, when he and Plaintiffs agreed that Defendant Nigel would
execute the deed for the Real Property located at 413 North Grove Street, Valley Stream, NY
11581, granting current and future interest in the property for full satisfaction of the $36,987.51
debt. See Exhibit G annexed herein for Copy of the Recorded Instrument from Nassau County
Clerk. Defendant Nigel’s contract with Plaintiffs Alva DeFreitas and Leslie DeFreitas for the full
satisfaction of the $36,987.51 debt does not extinguish Mrs. Andrews’ debt with Plaintiffs Alva
DeFreitas and Leslie DeFreitas. Therefore, Mrs. Andrews’s breach of the contract with Plaintiffs
is solely hers and hers only.
Mrs. Andrews in her affidavit opposing this motion acknowledged that the judgment was
against her and Defendant Nigel, "joint and severally, for outstanding amounts owed on that loan.”
The outstanding amount, at that time, was $56,987.51, as acknowledged by Mrs. Andrews in her
affidavit. The fact that loan amount ballooned to $96,822.36 was of no fault of Defendant Nigel
and instead was directly linked to the deliberate delinquency of Mrs. Andrews.
The Divorce Stipulation did not grant Mrs. Andrews a "get out of debt free card" nor did it
encourage her intentional defaulting of the loan. Mrs. Andrews should have been motivated to
repay the loan within a reasonable time after the parties agreed to settle the debt in their Divorce
Stipulation. However, Mrs. Andrews decided not to repay the loan in 2014, 2015, or 2016, thus
triggering the breach of contract that solely caused by Mrs. Andrews. Mrs. Andrews should not be
allowed to unilaterally breach the contract with Plaintiffs, then turn around and obtain a judgment
for interests, costs and disbursements, which directly flow from her breach. In other words, Mrs.
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Andrews must come to Court with clean hands to obtain the relief she sought in her proposed
judgment and ultimately judgment (Exhibit F or NYSCEF Doc. No. 70). Therefore, Defendant
Nigel’s motion to vacate the judgment should be granted and Mrs. Andrews’ cross-motion must
be denied in its entirety.
Point II: Mrs. Andrews' judgment for indemnification should be vacated for a lack
of notice under CPLR Rule 317 and Defendant Nigel has a Meritorious Defense
Under CPLR 5051(a), a court may relieve a defendant from a judgment “upon such terms
as may be just,” upon the grounds of lack of jurisdiction to render a judgment, under CPLR
5051(a)(4), or upon a finding of excusable default, under CPLR 5051(a)(1), “if such motion is
made within one year” of entry of judgment or “order” by the moving party.
CPLR 317 provides, in pertinent part, a person who is not served by personal delivery or
through an agent (CPLR 318) and who does not appear “may be allowed to defend the action
within one year after he obtains knowledge of entry of the judgment, but in no event more than
five years after such entry.” CPLR 317.
CPLR 3215 provides, among others, “when a default judgment based upon nonappearance
is sought against a natural person in an action based upon nonpayment of a contractual obligation
an affidavit shall be submitted that additional notice has been given by or on behalf of the plaintiffs
at least twenty days before the entry of such judgment, by mailing a copy of the summons by first-
class mail to the defendant at his place of residence in an envelope bearing the legend ‘personal
and confidential’ and not indicating on the outside of the envelope that the communication is from
an attorney or concerns an alleged debt….”
First, Mrs. Andrews filed her Notice of Entry of Judgment against Defendant Nigel on
December 5, 2022. Defendant Nigel’s motion to vacate the judgment under CPLR 317 was filed
on January 4, 2023. Therefore, Defendant Nigel’s motion to vacate the judgment under was proper
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and timely. See Eastern Alloys, Inc. v Gleason Sec. Service, Inc., 133 A.D.2d 806, 520 N.Y.S.2d
186, 1987 N.Y. App. Div. LEXIS 51845 (N.Y. App. Div. 2d Dep't 1987). (Court properly granted
defendant’s motion to vacate default under CPLR 317 within one year of entry of judgment since
neither defendant nor its agent personally received notice of summons in time to defend and
defendant had meritorious defense; even though fault for not having received summons delivered
to Secretary of State was defendant’s for not having updated its address on file, failure was not
shown to have been intentional). The Affidavit submitted by the Defendant Nigel herein
established that Mrs. Andrews did not serve Defendant Nigel any papers in this case and Defendant
Nigel has meritorious defense as set forth below. Therefore, CPLR 317 permitted vacatur of the
judgment. See Arabesque Recs. LLC v Capacity LLC, 45 A.D.3d 404, 846 N.Y.S.2d 43, 2007 N.Y.
App. Div. LEXIS 11775 (N.Y. App. Div. 1st Dep't 2007).
Further, this Court lacks jurisdiction to render the judgment against Defendant Nigel as to
Mrs. Andrews’ judgment. Defendant Nigel was never served with any court documents by Mrs.
Andrews—not her answer, crossclaims, motion papers, or proposed judgments, etc. Mrs. Andrews
is an attorney barred in the State of New York for at least 17 years. She should have known that
giving Defendant Nigel an opportunity to be heard given the fact Mrs. Andrews was attempting to
obtain a judgment based on the differently theory of liability than what the Plaintiffs brought this
lawsuit under, namely indemnification.
Additionally, Mrs. Andrews should not have obtained a judgment without an inquest
hearing because her judgment was not for a sum certain. Defendant Nigel, as provided Paragraphs
14 and 15 of the attached Affidavit in Support of this Motion, would have been able to show that
Mrs. Andrews breached the part of the divorce settlement agreement when she failed to timely pay
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the $20,000.00 to Plaintiffs. Further, had it not been for Mrs. Andrews’ breach of the contract with
the Plaintiffs, the litigation would have never been ensued.
CPLR 3215(b) permits trial court to conduct fact-finding hearing prior to rendering default
judgment, thus assisting in making default judgments less susceptible to attack under CPLR 317
or CLS CPLR § 5015(a)(4) for lack of jurisdiction or presence of meritorious defense. Dyno v
Rose, 260 A.D.2d 694, 687 N.Y.S.2d 497, 1999 N.Y. App. Div. LEXIS 3299 (N.Y. App. Div. 3d
Dep't 1999), app. denied, 94 N.Y.2d 753, 700 N.Y.S.2d 426, 722 N.E.2d 506, 1999 N.Y. LEXIS
3681 (N.Y. 1999), app. dismissed, 94 N.Y.2d 869, 705 N.Y.S.2d 1, 726 N.E.2d 478, 2000 N.Y.
LEXIS 17 (N.Y. 2000). See Gardner v Another Phyllis's, Inc., 216 A.D.2d 620, 627 N.Y.S.2d 582,
1995 N.Y. App. Div. LEXIS 5860 (N.Y. App. Div. 3d Dep't 1995). (The court did not err in
granting defendant’s motion to vacate default judgment despite its failure to show reasonable
excuse for default, where court considered defendant’s motion under CPLR 317 on basis that
defendant did not receive actual notice of pending action, and defendant adequately demonstrated
meritorious defense).
Alternatively, Defendant Nigel has assumed since September 19, 2016, that because he
satisfied his financial commitment, that any non-payment issue regarding the loan was between
Plaintiffs and Mrs. Andrews. Consequently, Mrs. Andrews’ judgment must be vacated.
Point III: The Court should deny Mrs. Andrews Motion for Attorneys' fees and instead
Defendant Nigel should be awarded attorneys' fees for having to defend a meritless claim
considering he has satisfied his debt obligation
Under 22 N.Y.C.R.R. 130-1.1(a), the court, in its discretion, may award to any party or
attorney in any civil action or proceeding before the court, except where prohibited by law, costs
in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's
fees, resulting from frivolous conduct as defined in this Part.
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Under 22 NYCRR 130-1.1(c), a conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable
argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or
to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
22 N.Y.C.R.R. 130-1.1(c).
Defendant Nigel should be awarded attorneys' fees for defending against this meritless
claim that was called into play by the sole defaulting actions of Mrs. Andrews who ran up the debt
by incurring interest and fees and disregarding her obligation to repay. She is now attempting to
leave the bill with someone else. Defendant Nigel has not misrepresented his financial obligation
nor Mrs. Andrews’ obligation under the terms of their Divorce Stipulation. Furthermore,
Defendant Nigel's use of the terms "first $20,000.00" is not an attempt to mislead the Court.
Instead, it is factual considering Defendant Nigel's obligation was satisfied in full with the transfer
of interest in real property, thus making the actual transfer of funds, "the first $20,000.00" an
accurate description. Furthermore, Defendant Nigel did not withhold evidence.
Mrs. Andrews' failure to provide proper notice to Defendant Nigel and continuation to
concoct legal theory is merely prolonging this litigation on a debt that she has failed to satisfy
warrants sanctions. Mrs. Andrews has no basis for bringing this action against Defendant Nigel.
Mrs. Andrews’ action is solely designed to harass and maliciously injure Defendant Nigel.
Awarding Defendant Nigel fair and reasonable attorneys' fees is proper, especially when Mrs.
Andrews is an attorney. Therefore, Defendant Nigel respectfully asks that the Court awards him
his attorney’s, costs, and disbursements.
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Point IV – Mrs. Andrews Provides no basis to Release the Funds in Escrow
As Mrs. Andrews refers in her papers, through the Gold Law Firm PC, she is currently
holding of $86,074.09 in escrow for the benefits of Defendant Nigel based on her baseless
indemnification judgment. Mrs. Andrews’ request that the funds in escrow be distributed should
be denied. Mrs. Andrews provides no basis for distributing the funds in escrow. It is axiomatic that
funds shall remain in escrow pending a determination of such motion and, if such motion is
granted, pending a determination of that appeal. Maple Med., LLP v. Scott, 191 A.D.3d 81, 138
N.Y.S.3d 61, 79 (2020), aff'd sub nom. Columbia Mem'l Hosp. v. Hinds, 38 N.Y.3d 253, 192
N.E.3d 1128 (2022). By keeping the funds in escrow, Mrs. Andrews cannot show that she will be
irreparably damaged. The funds are not going anywhere. In fact, given the fact Mrs. Andrews’
claim for indemnification is frivolous, we ask that the Court orders Mrs. Andrews to release the
funds immediately.
CONCLUSION
For the foregoing reasons, Mrs. Andrews’ judgment (NYSCEF Doc. No. 70) must be
vacated, Mrs. Andrews’ cross-motion should be denied, and sanctions in terms of attorney’s fees
must imposed on Mrs. Andrews for forcing Defendant Nigel to defend a frivolous lawsuit when
she breached the agreement she had with both the Plaintiffs and Defendant Nigel by not timely
paying Plaintiffs the $20,000.00.
Dated: New York, New York Respectfully Submitted,
April 28, 2023
By: s/ Jerry Boies
Jerry Boies
THE BOIES LAW FIRM, PLLC
535 Fifth Avenue, 4th Floor
New York, New York 10017
Tel: 212-729-0085
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jboies@boieslaw.com
Attorneys for the Defendant Nigel DeFreitas
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Preview
FILED: KINGS COUNTY CLERK 04/28/2023 04:37 PM INDEX NO. 501589/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------X Alva DeFreitas and Leslie DeFreitas, Plaintiffs, Index No. 501589/2017 -against- Nigel DeFreitas and Talitha DeFreitas, Defendants. -----------------------------------------------------------------------X OPPOSITION TO TALITHA ANDREWS' CROSS MOTION AND IN FURTHER SUPPORT OF NIGEL DEFREITAS' MOTION TO VACATE AND FOR SANCTIONS Dated: New York, New York April 28, 2023 By: s/ Jerry Boies Jerry Boies THE BOIES LAW FIRM, PLLC 535 Fifth Avenue, 4th Floor New York, New York 10017 Tel: 212-729-0085 jboies@boieslaw.com Attorneys for the Defendant Nigel DeFreitas 1 of 13 FILED: KINGS COUNTY CLERK 04/28/2023 04:37 PM INDEX NO. 501589/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/28/2023 Defendant Nigel DeFreitas (“Defendant Nigel”) 1 submits this opposition to Talitha Andrews' (formerly known as Talitha DeFreitas) cross-motion, in further support of his motion to vacate the sham judgment (NYSCEF Doc. No. 70) Mrs. Andrews obtained against him, and to impose sanctions against Mrs. Andrews in terms of paying his attorney’s fees. RELEVANT BACKGROUND Plaintiffs brought this lawsuit against both Defendant Nigel and Mrs. Andrews claiming that defendants are in default of the $67,122.36 loan agreement attached as Exhibit C in Defendant Nigel’s initial moving papers to vacate Mrs. Andrews’ judgment. As admitted by Mrs. Andrews in Paragraph 6 of her Affirmation in Opposition of Plaintiffs’ motion for Summary Judgment, which is attached as Exhibit A in Defendant Nigel’s initial moving papers to vacate Mrs. Andrews’ judgment, on February 27, 2010, Mrs. Andrews signed a contract to borrow $67,122.36 from Plaintiffs. Pursuant to the terms of the contract, Mrs. Andrews agreed to pay Plaintiffs $500.00 per month until the entire $67,122.36 is paid back to Plaintiffs. See Exhibit C for a copy of the executed agreement in Defendant Nigel’s initial moving papers to vacate Mrs. Andrews’ judgment. Plaintiffs moved for summary judgment against Mrs. Andrews and for default judgment against Defendant Nigel. Mrs. Andrews then filed a crossclaim against Defendant Nigel for part of the $67,122.36 owed to Plaintiffs for indemnification based on a divorce stipulation of settlement entered into in 2014 between Defendant Nigel and Mrs. Andrews. (“Divorce Stipulation”). The relevant terms of the Divorce Stipulation, which is annexed to Mrs. Andrews’ cross- motion papers as Exhibit 1, provide: 1 We call Defendant Nigel DeFreitas by his first name to differentiate him from Plaintiffs. 1 2 of 13 FILED: KINGS COUNTY CLERK 04/28/2023 04:37 PM INDEX NO. 501589/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/28/2023 • “The parties acknowledge that they are jointly and severally liable for a debt in the outstanding amount of $56,897.51 to the parents of the Plaintiff-Husband, Alva and Leslie DeFreitas.” • “The Wife shall be responsible for the $16,987.51 of credit card debt and shall hold the husband harmless for all liability arising out of said debt. Husband shall be responsible for the first $16,987.51 owed to the parents of the Plaintiff-Husband Alva and Leslie DeFreitas. The parties shall each by jointly and severally liable for one-half of the remaining $40,000.00. The Husband agrees to indemnify and hold the Wife harmless from any judgment against her in excess of $20,000.00 in the name of Alva and Leslie DeFreitas or their successors-in-interest.” As provided Defendant Nigel’s affidavit annexed herein, Mrs. Andrews never served Defendant Nigel with any answer, crossclaim complaint, motion papers, or any documents in this case for that matter. On September 19, 2017, this Court entered an Order (NYSCEF Doc. No. 19) stating that “[a]ll parties are required to appear. If Defendant Talitha DeFreitas makes a motion, the motion shall be returnable on October 25, 2017.” See Exhibit D for a Copy of the Order in Defendant Nigel’s initial moving papers to vacate Mrs. Andrews’ judgment. Although Defendant Nigel did not appear in this case, Mrs. Andrews, as an officer of this Court and an experienced attorney, did not take any step to ensure that the non-appearing Defendant Nigel was informed of the Court Order to appear. Mrs. Andrews moved for default judgment on her crossclaim against Defendant Nigel. On December 19, 2017, the Court granted Mrs. Andrews’ motion for default judgment on her crossclaim. 2 3 of 13 FILED: KINGS COUNTY CLERK 04/28/2023 04:37 PM INDEX NO. 501589/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/28/2023 Again, Mrs. Andrews never served Defendant Nigel with Notice of Motion and Motion papers. (See NYSCEF Docs. No. 20 through No. 23). Notwithstanding the fact Defendant Nigel was not served with the motion papers, Mrs. Andrews failed to notify the Court of the same, and Mrs. Andrews failed to inform the Court that she was the only party in default, the Court found “pursuant to the parties-defendants’ divorce stipulation of settlement, defendant Nigel DeFreitas is obligated to indemnify and hold harmless defendant Talitha DeFreitas from any judgment in excess of $20,000.00 against her in the name of the plaintiffs. See NYSCEF Doc. No. 24. After further litigation relating to the amount Plaintiffs were entitled to from both Mrs. Andrews and Defendant Nigel, on June 3, 2019, the Court entered a Second Amended Judgment in favor of Plaintiffs against both Mrs. Andrews and Defendant Nigel in the sum of $57,122.36 with interest from September 1, 2011, in the amount of $39,700.00 for a total sum of $96,822.36 together with costs and disbursements in the sum of $626.00, totaling, the sum of $97,448.36, less monies paid in the sum of $1,439.55, in all, totaling, the sum of $96,008.81. See NYSCEF Doc. No. 56 attached herein as Exhibit E. 2 On October 21, 2022, pursuant to Mrs. Andrews’ proposed judgment, the Court entered a judgment in favor of Mrs. Andrews in the sum of $76,008.81, with interest paid above the $20,000.000 in the sum of $18,259.80, for a total sum of $94,268.61. Mrs. Andrews filed her Notice of Entry for aforementioned judgment on December 5, 2022. (See Exhibit F in Defendant Nigel’s initial moving papers to vacate Mrs. Andrews’ judgment or NYSCEF Doc. No. 70). 2 Exhibit B (NYSCEF Doc. No. 27) was the first judgment, which was later amended by the Second Amended Judgment (NYSCEF Doc. No. 56) attached herein as Exhibit E. 3 4 of 13 FILED: KINGS COUNTY CLERK 04/28/2023 04:37 PM INDEX NO. 501589/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/28/2023 All the while, Defendant Nigel no longer held an obligation to Plaintiffs or to Mrs. Andrews because Defendant Nigel fully had satisfied his obligations since September 2016. As provided in Defendant Nigel’s Affidavit attached herein in further support of his motion to vacate the judgment and in opposition to Mrs. Andrews’ motion: • On September 19, 2016, Plaintiffs Alva and Leslie DeFreitas and I agreed, in satisfaction of the debt outlined in the Divorce Stipulation ($36,987.51), I executed a deed to Real Property located at 413 North Grove Street, Valley Stream, NY 11581 that properly recorded in Nassau County Register of Deeds office on or about October 18, 2016, to Alva DeFreitas. (See Exhibit G annexed herein for Copy of the Recorded Instrument from Nassau County Clerk). • Mrs. Andrews, on the other hand, breached that part of the Divorce Stipulation when she failed to timely pay her $20,000.00 to Plaintiffs Alva and Leslie DeFreitas. • Had it not been for Mrs. Andrews’ breach of the contract with Plaintiffs Alva and Leslie DeFreitas, this litigation would have never been ensued. • Mrs. Andrews breached the terms of the contract with Plaintiffs Alva and Leslie DeFreitas and the Divorce Stipulation as it relates to this case. Nonetheless, she conveniently failed to point that to the Court. ARGUMENT Point I: Defendant Nigel's motion to vacate Mrs. Andrews’ judgment (NYSCEF Doc. No. 70) should be granted because his defense of accord and satisfaction has merit; and because any interests, costs, or disbursements incurred in this case were as a result of Mrs. Andrews’ breach of the contract with Plaintiffs Alva DeFreitas and Leslie DeFreitas An executory accord, or “accord and satisfaction,” is a contract that provides for discharge of prior existing obligations upon satisfaction of the newly bargained-for performance. Denburg 4 5 of 13 FILED: KINGS COUNTY CLERK 04/28/2023 04:37 PM INDEX NO. 501589/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/28/2023 v. Parker Chapin Flattau & Klimpl, 82 N.Y.2d 375, 383, 604 N.Y.S.2d 900, 624 N.E.2d 995 (1993); accord May Dep't Stores Co. v. Int'l Leasing Corp., 1 F.3d 138, 140 (2d Cir.1993); Koening Iron Works, Inc., v. Sterling Factories, Inc., No. 89 Civ. 4257(THK), 1999 WL 178785, at *7–8 (S.D.N.Y. Mar.30, 1999). Such a contract is to be distinguished from a substitute agreement: “Whereas an executory accord extinguishes a claimant's prior claims upon performance of the accord, a substitute agreement extinguishes a claimant's prior claims upon execution of the agreement.” Frank Felix Assocs. v. Austin Drugs, Inc., 111 F.3d 284, 287 n. 1 (2d Cir.1997); Denburg, 82 N.Y.2d at 384, 604 N.Y.S.2d 900, 624 N.E.2d 995 (describing a substitute agreement as “a new agreement, [that] though executory ... immediately discharge[s] the existing obligation”). C3 Media & Mktg. Grp., LLC v. Firstgate Internet, Inc., 419 F. Supp. 2d 419, 433– 34 (S.D.N.Y. 2005). Defendant Nigel is not liable for any interests, costs and disbursements per indemnification because it is Mrs. Andrews that breached the agreement she had with both the Plaintiffs and Defendant Nigel when she failed to timely pay Plaintiffs the $20,000.00, which resulted in this litigation well after Defendant Nigel had satisfied his pro rata share of the debt assigned to him pursuant to the Divorce Stipulation. As stated above, the Divorce Stipulation requires the parties to split the $56,897.51 debt to Plaintiffs Alva DeFreitas and Leslie DeFreitas as follows: Defendant Nigel would pay the first $16,987.51 to Plaintiffs, Defendant Nigel and Mrs. Andrews would pay $20,000.00 each for the remaining $40,000.00 debt. It was further noted that Defendant Nigel would indemnify Mrs. Andrews for judgments above $20,000.00. The Divorce Stipulation does not contemplate and Defendant Nigel did not expect that Mrs. Andrews would breach the contract with Plaintiffs. In 5 6 of 13 FILED: KINGS COUNTY CLERK 04/28/2023 04:37 PM INDEX NO. 501589/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/28/2023 other words, any allegation by Mrs. Andrews that Defendant Nigel owes her any fees, penalties, arrears, interests, etc. is frivolous ab initio. Defendant Nigel fully satisfied his debt obligation to Plaintiffs Alva DeFreitas and Leslie DeFreitas on September 19, 2016, when he and Plaintiffs agreed that Defendant Nigel would execute the deed for the Real Property located at 413 North Grove Street, Valley Stream, NY 11581, granting current and future interest in the property for full satisfaction of the $36,987.51 debt. See Exhibit G annexed herein for Copy of the Recorded Instrument from Nassau County Clerk. Defendant Nigel’s contract with Plaintiffs Alva DeFreitas and Leslie DeFreitas for the full satisfaction of the $36,987.51 debt does not extinguish Mrs. Andrews’ debt with Plaintiffs Alva DeFreitas and Leslie DeFreitas. Therefore, Mrs. Andrews’s breach of the contract with Plaintiffs is solely hers and hers only. Mrs. Andrews in her affidavit opposing this motion acknowledged that the judgment was against her and Defendant Nigel, "joint and severally, for outstanding amounts owed on that loan.” The outstanding amount, at that time, was $56,987.51, as acknowledged by Mrs. Andrews in her affidavit. The fact that loan amount ballooned to $96,822.36 was of no fault of Defendant Nigel and instead was directly linked to the deliberate delinquency of Mrs. Andrews. The Divorce Stipulation did not grant Mrs. Andrews a "get out of debt free card" nor did it encourage her intentional defaulting of the loan. Mrs. Andrews should have been motivated to repay the loan within a reasonable time after the parties agreed to settle the debt in their Divorce Stipulation. However, Mrs. Andrews decided not to repay the loan in 2014, 2015, or 2016, thus triggering the breach of contract that solely caused by Mrs. Andrews. Mrs. Andrews should not be allowed to unilaterally breach the contract with Plaintiffs, then turn around and obtain a judgment for interests, costs and disbursements, which directly flow from her breach. In other words, Mrs. 6 7 of 13 FILED: KINGS COUNTY CLERK 04/28/2023 04:37 PM INDEX NO. 501589/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/28/2023 Andrews must come to Court with clean hands to obtain the relief she sought in her proposed judgment and ultimately judgment (Exhibit F or NYSCEF Doc. No. 70). Therefore, Defendant Nigel’s motion to vacate the judgment should be granted and Mrs. Andrews’ cross-motion must be denied in its entirety. Point II: Mrs. Andrews' judgment for indemnification should be vacated for a lack of notice under CPLR Rule 317 and Defendant Nigel has a Meritorious Defense Under CPLR 5051(a), a court may relieve a defendant from a judgment “upon such terms as may be just,” upon the grounds of lack of jurisdiction to render a judgment, under CPLR 5051(a)(4), or upon a finding of excusable default, under CPLR 5051(a)(1), “if such motion is made within one year” of entry of judgment or “order” by the moving party. CPLR 317 provides, in pertinent part, a person who is not served by personal delivery or through an agent (CPLR 318) and who does not appear “may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry.” CPLR 317. CPLR 3215 provides, among others, “when a default judgment based upon nonappearance is sought against a natural person in an action based upon nonpayment of a contractual obligation an affidavit shall be submitted that additional notice has been given by or on behalf of the plaintiffs at least twenty days before the entry of such judgment, by mailing a copy of the summons by first- class mail to the defendant at his place of residence in an envelope bearing the legend ‘personal and confidential’ and not indicating on the outside of the envelope that the communication is from an attorney or concerns an alleged debt….” First, Mrs. Andrews filed her Notice of Entry of Judgment against Defendant Nigel on December 5, 2022. Defendant Nigel’s motion to vacate the judgment under CPLR 317 was filed on January 4, 2023. Therefore, Defendant Nigel’s motion to vacate the judgment under was proper 7 8 of 13 FILED: KINGS COUNTY CLERK 04/28/2023 04:37 PM INDEX NO. 501589/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/28/2023 and timely. See Eastern Alloys, Inc. v Gleason Sec. Service, Inc., 133 A.D.2d 806, 520 N.Y.S.2d 186, 1987 N.Y. App. Div. LEXIS 51845 (N.Y. App. Div. 2d Dep't 1987). (Court properly granted defendant’s motion to vacate default under CPLR 317 within one year of entry of judgment since neither defendant nor its agent personally received notice of summons in time to defend and defendant had meritorious defense; even though fault for not having received summons delivered to Secretary of State was defendant’s for not having updated its address on file, failure was not shown to have been intentional). The Affidavit submitted by the Defendant Nigel herein established that Mrs. Andrews did not serve Defendant Nigel any papers in this case and Defendant Nigel has meritorious defense as set forth below. Therefore, CPLR 317 permitted vacatur of the judgment. See Arabesque Recs. LLC v Capacity LLC, 45 A.D.3d 404, 846 N.Y.S.2d 43, 2007 N.Y. App. Div. LEXIS 11775 (N.Y. App. Div. 1st Dep't 2007). Further, this Court lacks jurisdiction to render the judgment against Defendant Nigel as to Mrs. Andrews’ judgment. Defendant Nigel was never served with any court documents by Mrs. Andrews—not her answer, crossclaims, motion papers, or proposed judgments, etc. Mrs. Andrews is an attorney barred in the State of New York for at least 17 years. She should have known that giving Defendant Nigel an opportunity to be heard given the fact Mrs. Andrews was attempting to obtain a judgment based on the differently theory of liability than what the Plaintiffs brought this lawsuit under, namely indemnification. Additionally, Mrs. Andrews should not have obtained a judgment without an inquest hearing because her judgment was not for a sum certain. Defendant Nigel, as provided Paragraphs 14 and 15 of the attached Affidavit in Support of this Motion, would have been able to show that Mrs. Andrews breached the part of the divorce settlement agreement when she failed to timely pay 8 9 of 13 FILED: KINGS COUNTY CLERK 04/28/2023 04:37 PM INDEX NO. 501589/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/28/2023 the $20,000.00 to Plaintiffs. Further, had it not been for Mrs. Andrews’ breach of the contract with the Plaintiffs, the litigation would have never been ensued. CPLR 3215(b) permits trial court to conduct fact-finding hearing prior to rendering default judgment, thus assisting in making default judgments less susceptible to attack under CPLR 317 or CLS CPLR § 5015(a)(4) for lack of jurisdiction or presence of meritorious defense. Dyno v Rose, 260 A.D.2d 694, 687 N.Y.S.2d 497, 1999 N.Y. App. Div. LEXIS 3299 (N.Y. App. Div. 3d Dep't 1999), app. denied, 94 N.Y.2d 753, 700 N.Y.S.2d 426, 722 N.E.2d 506, 1999 N.Y. LEXIS 3681 (N.Y. 1999), app. dismissed, 94 N.Y.2d 869, 705 N.Y.S.2d 1, 726 N.E.2d 478, 2000 N.Y. LEXIS 17 (N.Y. 2000). See Gardner v Another Phyllis's, Inc., 216 A.D.2d 620, 627 N.Y.S.2d 582, 1995 N.Y. App. Div. LEXIS 5860 (N.Y. App. Div. 3d Dep't 1995). (The court did not err in granting defendant’s motion to vacate default judgment despite its failure to show reasonable excuse for default, where court considered defendant’s motion under CPLR 317 on basis that defendant did not receive actual notice of pending action, and defendant adequately demonstrated meritorious defense). Alternatively, Defendant Nigel has assumed since September 19, 2016, that because he satisfied his financial commitment, that any non-payment issue regarding the loan was between Plaintiffs and Mrs. Andrews. Consequently, Mrs. Andrews’ judgment must be vacated. Point III: The Court should deny Mrs. Andrews Motion for Attorneys' fees and instead Defendant Nigel should be awarded attorneys' fees for having to defend a meritless claim considering he has satisfied his debt obligation Under 22 N.Y.C.R.R. 130-1.1(a), the court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. 9 10 of 13 FILED: KINGS COUNTY CLERK 04/28/2023 04:37 PM INDEX NO. 501589/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/28/2023 Under 22 NYCRR 130-1.1(c), a conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. 22 N.Y.C.R.R. 130-1.1(c). Defendant Nigel should be awarded attorneys' fees for defending against this meritless claim that was called into play by the sole defaulting actions of Mrs. Andrews who ran up the debt by incurring interest and fees and disregarding her obligation to repay. She is now attempting to leave the bill with someone else. Defendant Nigel has not misrepresented his financial obligation nor Mrs. Andrews’ obligation under the terms of their Divorce Stipulation. Furthermore, Defendant Nigel's use of the terms "first $20,000.00" is not an attempt to mislead the Court. Instead, it is factual considering Defendant Nigel's obligation was satisfied in full with the transfer of interest in real property, thus making the actual transfer of funds, "the first $20,000.00" an accurate description. Furthermore, Defendant Nigel did not withhold evidence. Mrs. Andrews' failure to provide proper notice to Defendant Nigel and continuation to concoct legal theory is merely prolonging this litigation on a debt that she has failed to satisfy warrants sanctions. Mrs. Andrews has no basis for bringing this action against Defendant Nigel. Mrs. Andrews’ action is solely designed to harass and maliciously injure Defendant Nigel. Awarding Defendant Nigel fair and reasonable attorneys' fees is proper, especially when Mrs. Andrews is an attorney. Therefore, Defendant Nigel respectfully asks that the Court awards him his attorney’s, costs, and disbursements. 10 11 of 13 FILED: KINGS COUNTY CLERK 04/28/2023 04:37 PM INDEX NO. 501589/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/28/2023 Point IV – Mrs. Andrews Provides no basis to Release the Funds in Escrow As Mrs. Andrews refers in her papers, through the Gold Law Firm PC, she is currently holding of $86,074.09 in escrow for the benefits of Defendant Nigel based on her baseless indemnification judgment. Mrs. Andrews’ request that the funds in escrow be distributed should be denied. Mrs. Andrews provides no basis for distributing the funds in escrow. It is axiomatic that funds shall remain in escrow pending a determination of such motion and, if such motion is granted, pending a determination of that appeal. Maple Med., LLP v. Scott, 191 A.D.3d 81, 138 N.Y.S.3d 61, 79 (2020), aff'd sub nom. Columbia Mem'l Hosp. v. Hinds, 38 N.Y.3d 253, 192 N.E.3d 1128 (2022). By keeping the funds in escrow, Mrs. Andrews cannot show that she will be irreparably damaged. The funds are not going anywhere. In fact, given the fact Mrs. Andrews’ claim for indemnification is frivolous, we ask that the Court orders Mrs. Andrews to release the funds immediately. CONCLUSION For the foregoing reasons, Mrs. Andrews’ judgment (NYSCEF Doc. No. 70) must be vacated, Mrs. Andrews’ cross-motion should be denied, and sanctions in terms of attorney’s fees must imposed on Mrs. Andrews for forcing Defendant Nigel to defend a frivolous lawsuit when she breached the agreement she had with both the Plaintiffs and Defendant Nigel by not timely paying Plaintiffs the $20,000.00. Dated: New York, New York Respectfully Submitted, April 28, 2023 By: s/ Jerry Boies Jerry Boies THE BOIES LAW FIRM, PLLC 535 Fifth Avenue, 4th Floor New York, New York 10017 Tel: 212-729-0085 11 12 of 13 FILED: KINGS COUNTY CLERK 04/28/2023 04:37 PM INDEX NO. 501589/2017 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/28/2023 jboies@boieslaw.com Attorneys for the Defendant Nigel DeFreitas 12 13 of 13