Preview
FILED: SCHENECTADY COUNTY CLERK 11/16/2023 04:04 PM INDEX NO. 2023-240
NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 11/16/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SCHENECTADY
--------------------------------------------------------------------------------x Index Number
Maria R Swiencicky, Mark R Ferran 2023-240
Plaintiffs,
-against-
PLAINTIFFS'
Westcor Land Title Insurance Company, Gifford Abstract Corp,
NOTICE OF REJECTION
Thomas A Gifford, JP Morgan Chase Bank, N.A, Keybank, Howard
OF NYSCEF e-filed PAPERS:
Hanna Real Estate Services, New York State Land Title Association,
NYSCEF Docs:
Whiteman Osterman & Hanna LLP, Wallens Gold & Mineaux LLP,
171 -176 (Chase)
Maritoni Carasig-Carlos, [et als.], Karen Deangelus, Kevin G
Caslin, Emily Perks-Quinlan, Neil Levine, Elizabeth H Prendergast,
And, Notice Pursuant to
John J Henry, Thomas L Bell, Christine Carletta, Robert J
22 NYCRR Part130-1.1(c) for
Heffernan, Tara MacNeill, Christine M Carsky, Michelle H
contents of NYSCEF Docs:
Wildgrube, Peter V Coffey, David W Feldman, Ashley Feldman,
171 -176 (Chase)
Ima Lyn Hoe (a fictitious name representing one or more Appellate
Law Clerk(s) Attorney(s) (Decision Clerk) working in the Third
And, Plaintiffs's Request for
Department in 2018-2019)
Consent to an Extension of Time
Defendants,
to Respond to NYSCEF 171 -
--------------------------------------------------------------------------------x
176 Motion (in present its form
or as-amended).
PLEASE TAKE NOTICE that PLAINFIFFS HEREBY REJECT THE MOTION PAPERS FILED
BY DEFENDANT CHASE (JP Morgan Chase Bank, N.A) AT NYSCEF 171, 172, 173, 174, 175 and
176, and that Plaintiffs Object to the untimelienesss of the same, to the maximum extent allowed by
the Law, based upon the fact that Chase's “CPLR 3211(a)(8)” objection to Service of Summons based
on “CPLR 306-B” is without merit as a matter of law, and Chase is apparently in DEFAULT without a
reasonable excuse.
PLEASE TAKE NOTICE of PLAINTIFFs’ REJECTION of DEFENDANT CHASE’s UNTIMELY
“CPLR 3211(a)” MOTION filed at NYSCEF 171 -176 on October 23, 2023.
GROUNDS FOR OBJECTION AND REJECTION of these efiled instruments ( NYSCEF Docs 3,
13, 14, 15, 16, 17, 22 and 30) includes CPLR 320(a) (prescribing 20 days of 30 days to respond to
Complaint absent reasonable excuse and absent request for extension of time).
PLEASE TAKE NOTICE pursuant to 22 NYCRR Part130-1.1(c) that the papers (NYSCEF Docs 172
(unsigned Affirmation attributed to Attorney Lim) and 175 (Memorandum of Law signed by Attorney
Lim) contain assertions made by Chase and Attorney Chong S. Lim that are or appear to be “frivolous”
within the meaning of 22 NYCRR Part130-1.1, and this Notice contains a presentation of adverse
controlling legal authority and/or documentary evidence directly contrary to such assertions.
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Dear Attorney Chong S. Lim, Esq of defendant CHASE.
I, Mark R. Ferran, have reviewed the untimely “CPLR 3211” Motion Papers that you filed on October
23, 2023 at NYSCEF 171 through 176. I see that you have purported to excuse the apparent lateness of
your “CPLR 3211” Pre-Answer Motion by including a purported “3211(a)(8)” Motion alleging: “No
affidavit for service for Chase was filed.” (unsigned Chong S. Lim Affirmation at NYSCEF 172, and
still unsigned as of today) [“Absent good cause shown, the court shall strike any unsigned paper if the
omission of the signature is not corrected promptly after being called to the attention of the attorney or
party.” 22 NYCRR Part 130]; and “Here, Plaintiffs filed this action through a summons on February
10, 2023, and later filed a Complaint on June 29, 2023, but there is no evidence to date that Plaintiffs
have properly served Chase.” [Attached is a contemporaneous AFFIDAVIT OF SERVICE notarized
on June 9, 2023 describing the service made upon CHASE by in-hand delivery to its Branch Manager
on June 7, 2023]
I have been ill for 2+ weeks (since October 24, 2023 with fever at 101°F until October 26, and then a
receding fever of up to 100°F during that next week) and Bronchitis (2 tests NEGATIVE for Covid19).
I did not eat at all for 2+ days October 24-26, 2023. Not sleeping well because of congestion and
unusually bad dreams. After the first week, I lost 12 pounds of body weight, and I was prescribed and
started taking Rx prescriptions for Doxycycline and Pregnezone to reduce/prevent pneumonia and
reduce inflammation, plus decongestants. I am still ill and very congested and I needed and obtained a
new Rx prescription for different antibiotics (Amoxicillin-Clav (2x, 10 Days)) on Nov. 9, 2023. And
Notice of Vacation: Both Plaintiffs have a pre-paid out-of-state timeshare-week annual family-vacation
booked for the whole next Week of Thanksgiving during which the Answering Papers currently fall due
(on Nov. 22, 2023) per your Notice of Motion. [Generally, among Americans, it is impolite to schedule
Answering Papers to fall Due within the week of any notorious school-calendar vacation weeks, such
as Thanksgiving or Christmas or New Years]
Pursuant to 22 NYCRR 202 8-a (a “motion may be adjourned on consent ... three times or for a
cumulative total of more than 60 days”) and ( https://ww2.nycourts.gov/courts/4jd/Essex/index.shtml
nycourts.gov/LegacyPDFS/courts/4jd/mt-rules/McGahay-Rules.pdf ) Judge’s Chamber’s Rules, I seek
2 WEEKS “adjourn[ment] on consent” of the pending October 23, 2023 motion at NYSCEF 171,
because of the above-stated circumstances and further because of the below review of caselaw relative
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to multiple apparently-frivolous arguments contained in your October 23, 2023 motion at NYSCEF
171, Plaintiffs request your consent to a Two Weeks Extension of Time to Respond (Adjournment
adding (at least) 2 weeks to the return date) to your October 23, 2023 motion at NYSCEF 171.
And, Plaintiffs further request that in the event of your future withdrawal and/or amending of your
October 23, 2023 motion papers at NYSCEF 171-176 that you shall prescribe (at least) three clear
weeks (including 15 non-holiday business days) for Plaintiffs to respond to such a
replacement/amended motion having a newly selected return date. (Thus the return date of the
replacement motion or amended notice of motion shall be at least 4 weeks after filing/service of such
amended notice of motion). And, please do not schedule a motion with the Answering Papers to fall
due within the weeks containing Christmas nor New Years Day.
Whereas, 22 NYCRR Part130-1.1(c) prescribes in pertinent part:
In determining whether the conduct undertaken was frivolous, the court shall consider, among
other issues the (1) circumstances under which the conduct took place, including the time
available for investigating the legal or factual basis of the conduct; and (2) whether or not the
conduct was continued when its lack of legal or factual basis was apparent, should have
been apparent, or was brought to the attention of counsel or the party.
Plaintiff’s 22 NYCRR Part130-1.1(c) Notice of Apparently-Frivolous Conduct:
I Plaintiff Mark R. Ferran consider the following listed and enumerated conduct within the October 23,
2023 motion at NYSCEF 171-176 to be frivolous conduct within the meaning of 22 NYCRR Part130-
1.1:
1) The unsigned Affirmation of Attorney Chong S. Lim.
2) The frivolous legal argument by Chase and Attorney Chong S. Lim that “CPLR 306-B” requires a
Plaintiff to “file” proof of service (e.g., Affidavit of Service) within the “120 days” prescribed in
“CPLR 306-B”. Cruz v. Integrated Health Admin Servs 56 Misc.3d 654 (Sup. Ct. 2017) illustrates that
an Attorney can be found liable for violation of 22 NYCRR Part130-1.1 for misrepresenting the “clear”
requirements of a “CPLR” section, where “the relevant New York State statute is crystal clear” and
where the false argument is based on “a deeply warped and thoroughly tortured analysis of a holding”
in an appellate case. This describes your misrepresentation of the requirements of “CPLR 306-B”.
3)-8):
[The signed MEMORANDUM OF LAW of CHASE and Chong S. Lim attempts to smuggle
unsworn/false factual statements (not also being asserted “under the penalties of perjury pursuant to
New York Civil Practice Law and Rules (“CPLR”) 2106” in the unsigned Affirmation of Chong S.
Lim), without prescribing a JURAT that Attorney Chong S. Lim is “under the penalties of perjury”.
The signed MEMORANDUM OF LAW of CHASE and Chong S. Lim should be rejected by the Court
Clerk because it introduces unsworn false factual assertions and contains NO JURAT that Attorney
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Chong S. Lim is “under the penalties of perjury”. The unsworn factual statements introduced in the
unsworn MEMORANDUM OF LAW include:]
3) The false/unsworn statement in the unsworn Memorandum of Law that: “Plaintiffs “fail[ed] to
effectuate service and obtain jurisdiction over Chase.”
4) The false/unsworn statements in the unsworn Memorandum of Law that: “Swien[ci]cky filed an
answer with numerous … counterclaimS….” (plural) “of Swien[ci]cky’s counterclaimS.” (plural);
“Swien[ci]cky’s counterclaimS and cross-claimS” (plural)
5) The false/unsworn statement in the unsworn Memorandum of Law “However, since the filing of the
Complaint, Plaintiffs have failed to file any affidavit of service to Chase.”
6) The false/unsworn statement in the unsworn Memorandum of Law alleging “failure to serve
Chase ... within 120 of filing the Summons and Complaint.”
7) The false/unsworn statement in the unsworn Memorandum of Law alleging “there is no evidence to
date that Plaintiffs have properly served Chase.”
8) The false/unsworn statement in the unsworn Memorandum of Law alleging “no affidavit of service
has been filed for Chase.”
[Plaintiff’s 22 NYCRR Part130-1.1(c) Notice of Apparently-Frivolous Conduct continues as follows:]
9) In view of controlling legal authority of Negrin v. Norwest Mtge, 263 A.D.2d 39 (2nd Dept 1999)
(establishing the RE seller’s “private right of action” for “damages” for any breach of any requirement
prescribed in “RPL 274-A(1)”) to the contrary, most of your legal argument based upon the “petition”
remedy of “RPL 274-A(1)” being an exclusive remedy is without merit and is apparently-frivolous.
[The only part of your argument that possibly survives Negrin itself is your “standing” (of an RE
purchaser) argument. However even this “standing” argument is apparently-frivolous in view that the
Complaint pleads a claim by Swiencicky for Common Law “Indemnification” for Chase’s breach of a
legal duty to RE seller/mortgagor Prendergast, while you entirely ignore the doctrine of Common Law
Indemnification]
10) Upon information and belief, Chase’s argument about an RE purchaser’s “standing” to sue directly
for Chase’s breach of “RPL 274-A(1)” requirements is apparently-frivolous in view of the combination
of Negrin v. Norwest Mtge, 263 A.D.2d 39 (2nd Dept 1999) and Izzo v. Manhattan Med. Group, 164
A.D.2d 13 (1st Dept 1990) and Oja v. Grand Chapter of Theta Chi Fraternity, Inc., 257 A.D.2d 924 in
view of Grace v. Nappa, 46 N.Y.2d 560 and State Bank v. Fioravanti, 51 N.Y.2d 638 (1980).
11) Upon information and belief, Chase’s assertions that RE seller Prendergast’s “title was marketable”
and/or “that she was ready, willing and able to convey marketable title to Defendant Swiencicky” is
palpably frivolous on its face, being clearly contrary to controlling legal authority being concealed
from the court by Attorney Chong S. Lim, and is not supported by any findings or determinations
recited in the Appellate Division’s Decision at Prendergast v. Swiencicky 183 A.D.3d 945 (3rd Dept
2020). At pages 129-130 of the Complaint, Plaintiffs attached a copy of NY Jur 2nd “Real Property
Sales and Exchanges” §146 “Mortgages” which unambiguously recites the clearly established rule that
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the existence of an unpaid and unsatisfied “mortgage” renders the seller’s title “defective” and
“unmarketable” until a “Satisfaction” is obtained from the mortgagee in recordable form. Chase and
Attorney Chong S. Lim cites no controlling legal authority to the contrary and fails to disclose
controlling legal authority adverse to his false assertions. Cruz v. Integrated Health Admin Servs 56
Misc.3d 654 (Sup. Ct. 2017) illustrates that an Attorney can be found liable for violation of 22 NYCRR
Part130-1.1 for misrepresenting the clearly established rule established in “controlling legal authority”
while failing to cite or disclose the “controlling legal authority” that is “adverse” to the attorney’s false
argument, and where the attorney’s false argument is based on “a deeply warped and thoroughly
tortured analysis of a holding” in an appellate case. This describes your misrepresentation of the
requirements in the seller’s obligations to “convey marketable title” with respect to an unpaid existing
“mortgage”.
12) Upon information and belief, Chase’s argument that its assertion that RE seller Prendergast’s “title
was marketable” and/or “that she was ready, willing and able to convey marketable title to Defendant
Swiencicky” is in some way material and/or dispositive as to Chase’s liability for the contents of its
own “payoff letter” (and despite the fact that Chase admits that its “mortgage” EXISTED and was
UNPAID and UNSATISFIED and that Chase “issu[ed] a payoff letter, which was requested to pay off
the then-existing mortgage”) is apparently-frivolous.
13) Upon information and belief, something about Chase’s deliberate omission to mention any of
“insurable title”, “title report”, “Gifford”, “Westcor” “policy”, “11 NYCRR 35.7” or “NYS Ins. Law
6409(a)” (in view of Chase’s contentions about “Res Judicata” and “Collateral Estoppel” with respect
to “marketable title”) is apparently-frivolous. Upon information and belief, these omissions by Chase
are part of an attempt by Chase to evade the operation of the clearly-applicable “Preexisting Fraudulent
Scheme” and “New Evidence” exceptions to “Res Judicata” and “Collateral Estoppel”. Res Judicata
Fraudulent Scheme Exception:
“Even if the requirements for application of res judicata were met, the Court likely would deny
Defendants' motion, because ‘New York law provides that a plaintiff may attempt a collateral
attack on a judgment based on a demonstration that the prior judgment was procured by fraud.’
Weinberger, 994 F. Supp. at 421. Because Plaintiffs allege that the Defendants obtained the ...
judgment against them through their fraudulent scheme, their allegations fall within this
exception to res judicata.”
Michelo v. Nat'l Collegiate Student Loan Tr., 419 F. Supp. 3d 668 (USDC SDNY 2019)
14) Upon information and belief, Chase’s omission to acknowledge and discuss the applicability of the
“No Compulsory Counterclaims Rule” Doctrine confirmed in Paramount Pictures Corp. v. Allianz Risk
Transfer AG, 31 NY3d 64 (2018) (“absent the compulsory counterclaim rule, a pleader is never barred
by res judicata from suing independently on a claim that he refrained from pleading as a counterclaim
in a prior action”) to Chase’s “Res Judicata” argument is apparently-frivolous. Because New York
does not have a “compulsory counterclaim rule”, the Doctrine of “Res Judicata” applies strictly only to
the prior “plaintiff” (Prendergast) in the prior action, not to the prior-defendant (Swiencicky).
Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31 NY3d 64 (2018) Plaintiffs take the position
that pleading an Equitable Defense of Grounds For “Specific Performance” or “Rescission” relief
pleaded within an equitable RPAPL Article 15 counterclaim for Declaratory Relief is “discretionary”
and can be denied simply because the defendant has an “adequate remedy at law” and does not bar a
subsequent action at-law for legal “damages”. Where a “plaintiff” has previously sought only equitable
relief, “res judicata does not preclude a subsequent action for damages.” Jackson Trak Group, Inc. v.
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Mid States Port Auth., 242 Kan. 683, 692, 751 P.2d 122, 129 (1988). An exception to Res Judicata
exists where “the prior [counterclaim] involved only a request for declaratory relief.” Harborside
Refrigerated Servs. Inc. v. Vogel, 959 F.2d 368, 372 (2d Cir. 1992); see also id. at 373 (holding the
same). In such cases, “the preclusive effect of the declaratory judgment is limited to the subject matter
of the declaratory relief sought[, and t]he plaintiff or defendant may continue to pursue further
declaratory or coercive relief.” Id. At 372. In Paramount Pictures Corp. v. Allianz Risk Transfer AG,
31 NY3d 64 (2018), the Court confirmed that “our permissive counterclaim rule may save from the bar
of res judicata those claims for separate or different relief that could have been but were not interposed
[by the defendant] in the parties' prior action.” (quoting Henry Modell & Co. v. Minister, Elders &
Deacons of Ref. Pro.Dutch Church of City of N.Y., 68 N.Y.2d 456, 462 n. 2, [1986]).
15) The nonsensical assertions in the Memorandum of Law filed by Chase and attorney Chong S. Lim
that “there are no allegations of misconduct directed at Chase” and that “Plaintiff’s allegations against
Chase are non-existent” and “Plaintiff does not allege any conduct by Chase at all in the Complaint” is
false and frivolous.
Also, in the above respects, the filing of the Chase Motion constitutes at least probable FRIVOLOUS
CONDUCT at least probably violating 11 NYCRR Part130-1.1.
Re: “failure to serve Chase and to file the requisite affidavit of service within 120 [days, sic.] of filing
the Summons and Complaint. See CPLR § 306-b”
I take seriously the threat that implied in your Motion Papers (NYSCEF 171) that you will in some
improper manner convince an elected NY Judge that Chase is entitled to relief “pursuant to CPLR §
3211(a)(8) for failure to establish jurisdiction over the Chase” solely because YOU WROTE that “No
affidavit for service for Chase was filed.” on the theory of “failure to serve Chase and to file the
requisite affidavit of service within 120 [days, sic.] of filing the Summons and Complaint. See CPLR §
306-b”. Also, at NYSCEF 32 the Plaintiffs filed a “PROOF OF SERVICE” on June 26, 2023, beyond
the “120 days” prescribed in “CPLR 306-b” (for service made upon OTHER-than-CHASE defendants
“Prendergast,Henry,Wildgrube,DeAngelus,D.Feldman, Westcor” within 20 days prescribed in CPLR
308(2 and 4)). Therefore, I was otherwise forced to research your frivolous “CPLR 306-b” objection
that Plaintiffs did not file “requisite” Affidavits of Service within the “120 days” prescribed by “CPLR
306-b”.
By bringing these matters that appear to me to be instances of your frivolous conduct to your attention
in this Notice, you now seem to have the opportunity to unilaterally-withdraw/amend (though I do not
consent to your withdraw/amend), but I do hope the result of this 11 NYCRR Part130-1.1(c) Notice of
probable-frivolous conduct will be to mitigate (reduce) the burden imposed upon me to respond in
Answering Papers to each and all the apparently-frivolous assertions contained in your pending
Motion. I reserve all rights to file motions for 11 NYCRR Part130-1.1 costs and/or sanctions due to the
apparently-frivolous assertions contained in your pending Motion. I reserve all rights to file a Motion
for Default Judgment against Chase in view of the frivolous nature of (and the frivolous previous
nondisclosure of) Chase’s purported “CPLR 306-B” objection to in personam jurisdiction.
But, I believe that your contention that “CPLR § 306-b” requires “file the requisite affidavit of service
within 120 [days] of filing the Summons and Complaint” is either delusional or is evidence of criminal
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intentions on your part. Nothing in “CPLR 306-b” nor in any caselaw purports to require that in 2023
any “Proof of Service” must be “filed” within the “120 days” prescribed in “CPLR 306-b”:
§ 306-b. Service of the summons and complaint, summons with notice, third-party summons
and complaint, or petition with a notice of petition or order to show cause. Service of the
summons and complaint, summons with notice, third-party summons and complaint, or petition
with a notice of petition or order to show cause shall be made within one hundred twenty
days after the commencement of the action or proceeding, provided that in an action or
proceeding, except a proceeding commenced under the election law, where the applicable
statute of limitations is four months or less, service shall be made not later than fifteen days
after the date on which the applicable statute of limitations expires. If service is not made upon
a defendant within the time provided in this section, the court, upon motion, shall dismiss the
action without prejudice as to that defendant, or upon good cause shown or in the interest of
justice, extend the time for service.
https://law.justia.com/codes/new-york/2022/cvp/article-3/306-b/
There is no mention at all in “CPLR 306-b” (2023) of “Proof of Service” (CPLR 306, 308(2,4)) nor
“Affidavit of Service”. “More particularly, effective January 1, 1998, CPLR 306-b has ‘eliminated
any mandatory filing of proof of service as part of the commencement procedure.’”
https://law.justia.com/cases/new-york/other-courts/2015/2015-ny-slip-op-50281-u.html
Your deceptive use of “See CPLR § 306-b” does not change what the statute currently says and does
not say. Your use of “See CPLR § 306-b” implies that you assert that the statute itself recites the
requirement that you describe, when it in fact does not.
And also nothing in “Zheleznyak v Gordon & Gordon, P.C., 175 A.D.3d 1360, 1361 (2d Dep’t 2019)”
(cited by you) purports to recognize or enforce an obligation of plaintiff to “file” anything much less
“proof of service” within the “120 days” prescribed in “CPLR 306-b”:
[T]he defendant Leslie Nizin moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the
complaint insofar as asserted against him on the ground of lack of personal jurisdiction..... The
plaintiff had failed to file with the clerk of the court an affidavit of service of the summons and
complaint as required by CPLR 308(4) [ Nail; and Mail Service]. ...
“While the failure to timely file an affidavit of service with the clerk of the court as required by
CPLR 308(4) may, in the absence of prejudice, be corrected by court order pursuant to CPLR
2004 ….
Zheleznyak v Gordon & Gordon, P.C., 175 A.D.3d 1360, 1361 (2d Dep’t 2019)
Nothing in the Zheleznyak court’s opinion identified a requirement in “CPLR 306-b” to file proof of
service within the “120 days” prescribed by “CPLR 306-b”.
Joffe opposed the plaintiffs' motion, arguing, among other things, that the plaintiffs failed to
file proof of service with the court in accordance with the time limitations imposed by
CPLR 308(2). …
CPLR 308(2) authorizes "[p]ersonal service upon a natural person... by delivering the summons
within the state to a person of suitable age and discretion at the actual place of business... of the
person to be served and... by mailing the summons by first class mail to the person to be served
at his or her actual place of business." CPLR 308(2) provides that "proof of such service shall
be filed with the clerk of the court designated in the summons within twenty days of either such
delivery or mailing, whichever is effected later."
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The failure to file timely proof of service does not constitute a jurisdictional defect (see
Weininger v Sassower, 204 A.D.2d 715, 716). Rather, "[t]he failure to file proof of service is a
procedural irregularity... that may be cured by motion or sua sponte by the court in its discretion
pursuant to CPLR 2004" (Khan v Hernandez, 122 A.D.3d 802, 803 [emphasis added]; see
Zheleznyak v Gordon & Gordon, P.C., 175 A.D.3d 1360; Deb v Hayut, 171 A.D.3d 862, 863;
Discover Bank v Eschwege, 71 A.D.3d 1413, 1414; Rosato v Ricciardi, 174 A.D.2d 937, 938;
Lancaster v Kindor, 98 A.D.2d 300, 307, affd 65 N.Y.2d 804).
Here, since the plaintiffs did not properly seek leave to excuse their failure to timely file
proof of service, and the Supreme Court did not grant them leave to file proof of service beyond
the statutory window (see CPLR 308[2]), the proof of service relating to Joffe was a nullity
(see Zheleznyak v Gordon & Gordon, P.C., 175 A.D.3d at 1361; Deb v Hayut, 171 A.D.3d at
863).
Chunyin Li v. Joffe, 2022 N.Y. Slip Op. 6227 (2 Dept 2022)
Thus, a reasonably literate person mentally fit to practice law would understand that the “statutory
window” being enforced in “Zheleznyak v Gordon & Gordon, P.C.” was the “20 days” prescribed in
“CPLR 308(4)” (or in CPLR 308(2)), NOT the “120 days” prescribed in “CPLR 306-b”.
The NYCourts.gov Brochure on Service of Process for Pro Se Litigants states:
TIMELINESS AND FILING PROOF OF SERVICE OF INITIATING PAPERS
... A summons with notice or summons and complaint must be served within 120 days of filing
with the County Clerk. If service is not made within these time limits, the action will be
dismissed upon a motion by the opposing party unless you can show good cause for the delay or
a reason the court should extend the time for service in the interest of justice (CPLR §306-b).
After service of process, the person who served the papers must fill out a statement, called an
affidavit of service, which is sworn to and signed in front of a notary public. .... If substituted
or nail and mail service were used, the affidavit of service must be filed with the County
Clerk within 20 days of the date of service. Although affidavits of service are not otherwise
required to be filed, courts generally require that they be submitted and/or filed to assure that
the Defendant has been given notice of the action or proceeding. Thus, filing affidavits of
service is recommended in all instances.
https://www.nycourts.gov/legacyPDFs/courts/6jd/forms/SRForms/servproc_howto.pdf
Also: Furuya v. Parry, 2019 NY Slip Opn. 31354(U)(Filing Affidavit of Service “50 Days” after CPLR
308(4) service is excused under CPLR 2001/2004. “CPLR 306-b and CPLR 3211(a)(8)” motion
denied.)
Your Motion papers contain no reference at all to “CPLR 308(4” [Nail; and Mail Service] nor CPLR
308(2) (substituted service) which both would require filing of the proof of service within “20 days”.
Nothing in your Motion Papers even suggests that the service was actually made or attempted upon
Chase involved “CPLR 308(4” [Nail; and Mail Service] or “CPLR 308(2)” [substituted service].
So, I am forced to wonder WHY you are making these patently frivolous arguments based on “See,
CPLR 306-b”. I have to wonder: Did you or someone else involved in this case bribe someone in the
NYS Courts, such as the current Judge’s Law Clerk, to deceive and manipulate the Judge to adopt this
frivolous “CPLR 306-b” argument? I was also forced to expend some time legal-researching your
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legal theory of “CPLR 306-b” only to return with more evidence to support my original conclusion that
you are delusional and dishonest like most of your peers.
The only case that I found that even assumes that “Proof of Service” must “technically” be “filed” in all
cases fails to identify any statute purporting to require such filing in all cases, and expressly
acknowledges that “effective January 1, 1998, CPLR 306-b has ‘eliminated any mandatory filing of
proof of service as part of the commencement procedure’” and concludes that any other failure to
file proof of service is “not jurisdictional”:
While it is undisputed that the originals of the foregoing proofs of service were not filed in the
Richmond County Clerk's Office, plaintiff maintains, by way of an excuse, that although service
upon GMQ "was proper", "[d]ue to a miscommunication between the process server and an
attorney previously employed with plaintiff's counsel's law firm, [certain...] original affidavits
of service were never filed with the Richmond County Clerk[]". For this reason, plaintiff has
cross moved for, inter alia, leave to file the original proofs of service nunc pro tunc as evidence
of its proper and timely service of process upon two of the named defendants, to wit, GMQ Inc.
and New York State Department of Taxation and Finance (see CPLR 306-b and CPLR 2001).
At the outset, it should be noted that defendant's misguided attempt to invalidate the
alleged service of process upon the secretary of state pursuant to BCL §306(b)(1) on the basis
of plaintiff's admitted failure to file proof of service is of no avail since such a defect is not
jurisdictional in nature (see e.g. Conde v Zaganjor, 66 AD3d 947) and may be corrected or
disregarded if no substantial right of a party will be prejudiced thereby (see CPLR 2001).
More particularly, effective January 1, 1998, CPLR 306-b has "eliminated any mandatory
filing of proof of service as part of the commencement procedure...[even though] some
statutes [i.e., CPLR 308(2,4)] require the filing of proof of service as a step in making service
complete'. Although not usually of jurisdictional magnitude, the completion' of service is
significant because a defendant's time to respond does not begin to run [if service by CPLR 308
2 or 4] until proof of service is complete. See CPLR 320(a) [“An appearance shall be made
within twenty days after service of the summons, except that if the summons was served on the
defendant by delivering it to an official of the state authorized to receive service in his behalf or
if it was served pursuant to section 303, subdivision two, three, four or five of section 308, or
sections 313, 314 or 315, the appearance shall be made within thirty days after service is
complete. ϔIf the complaint is not served with the summons, the time to appear may be extended
as provided in subdivision (b) of section 3012.].
[
https://law.justia.com/codes/new-york/2022/cvp/article-3/303/
https://law.justia.com/codes/new-york/2022/cvp/article-3/306/
https://law.justia.com/codes/new-york/2022/cvp/article-3/308/
https://law.justia.com/codes/new-york/2022/cvp/article-3/315/
https://law.justia.com/codes/new-york/2022/cvp/article-3/314/
https://law.justia.com/codes/new-york/2022/cvp/article-3/315/
https://law.justia.com/codes/new-york/2022/cvp/article-30/3012/
https://codes.findlaw.com/ny/business-corporation-law/bsc-sect-306/
]
Thus, where the filing of proof of service is a prerequisite to the completion of service,[FN2
[Footnote 2: In any event, this is not the case here, where GMQ was served by the personal
delivery of process to the Secretary of State, as this defendant's agent, and, as such, "[s]ervice
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of process on such corporation [was] complete when the secretary of state [was] so served"
( BCL §306(b)(1), emphasis added).]] a delay in filing will postpone the running of defendant's
response time. Because the failure to timely file proof of service in such cases is almost always
a mere irregularity, however, permission for a tardy filing nunc pro tunc' is almost certain
to be granted by the court. (Alexander, Practice Commentaries, Cons Laws of NY, Book7B,
C306:1, p 103, [citations omitted]).
Consonant with the foregoing, it is the opinion of this Court that plaintiff's delay in filing
these proofs of service is a mere procedural irregularity, and may be corrected by an order of
this Court permitting the belated filing, nunc pro tunc (see Pipinias v J. Sackaris & Sons, Inc.,
116 AD3d 749, 752-753; Discover Bank v Eschwege, 71 AD3d 1413, 1414), or disregarded
entirely (see CPLR 2001; see also CPLR 2004 [extensions of time generally]).
As for the merits of the moving defendant's challenge to the service of process, it is well settled
that in order to rebut plaintiff's prima facie evidence that GMQ was properly served with
process pursuant to CPLR 311(a)(1) and BCL §306(b)(1), said defendant was required to come
forward with a sworn denial containing detailed and probative facts sufficient to overcome
the affidavit of service and create a triable issue of fact (see U.S. Bank N. A. v Losner, __ AD3d
__, 2015 NY Slip Op 00869; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344; accord
Rosario v Beverly Rd. Realty Co., 38 AD3d 875). Here, GMQ's unsubstantiated and
conclusory assertions that (1) "it was never served with a summons and complaint in this
action", and (2) its offices were not located at the registered address on file with the Secretary of
State at the time of service (i.e., in December of 2010), are legally insufficient to rebut the
contents of plaintiff's affidavit of service and raise triable issues of fact regarding the
regularity of service. In this regard, the moving defendant's alleged failure to receive a copy of
the summons and complaint from the Secretary of State was caused by its unexplained and
admitted failure to inform the Secretary of State of its current address for seven or more years
(see Gershman v Midtown Moving & Stor., Inc., 123 AD3d 974, 975; Cruz v Keter Residence,
LLC, 115 AD3d 700, 701; Sussman v Jo-Realty Corp., 99 AD3d 787,788).
Thus, this Court may reject GMQ's jurisdictional challenge without conducting a traverse
hearing (see Mortgage Electronic Registration Systems, Inc. v Losco, __ AD3d __, 2015 NY
Slip Op 01250; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984; NYCTL
2009-A Trust v Tsafatinos, 101 AD3d 1092, 1093-1094; cf. Machovec v Svoboda, 120 AD3d
772, 774).
Accordingly, it is
ORDERED, that the motion of defendant GMQ, Inc. for dismissal of the complaint as against it
is denied in its entirety; and it is further
ORDERED, that plaintiff's cross motion is granted solely to extend nunc pro tunc [*3]its time to
file proofs of service upon defendants GMQ, Inc. and, without opposition, the New York State
Department of Taxation and Finance nunc pro tunc; and it is further
https://law.justia.com/cases/new-york/other-courts/2015/2015-ny-slip-op-50281-u.html
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In my opinion, the above verbose Decision should have simply acknowledged that the service
complained of was proven to be valid during the CPLR 3211 Motion and that the CPLR did not require
that plaintiff to previously “file proof of service” at any time until a motion particularly required
production of proof of service to be filed, such as a CPLR § 3215 Motion to Default, or a CPLR §
3211(a)(8) motion purporting to challenge in personam Jurisdiction. The Richmond County court’s
Order purporting to grant an extension of Plaintiff’s “time to file proofs of service upon defendants” is
entirely superfluous in the total absence of that court identifying any applicable statute that purports to
prescribe or limit such time in the factual circumstances of that case [and in view of “Footnote 2: In
any event, this is not the case here, where GMQ was served by the personal delivery of process” ].
In any event, that Richmond County Decision completely negates your theory that “CPLR 306-b”
requires the plaintiff to file of Proof of Service within the “120 Days” prescribed in CPLR 306-b.
Quote: “effective January 1,: 1998, CPLR 306-b has "eliminated any mandatory filing of proof of
service as part of the commencement procedure”. The year “1998” happened 25 years ago! See,
e.g., Parris v. Hirtenfield, 2005 NYS Spli Opn. 50726(U) comparing pre-1998 CPLR 306-b(a)
(requiring “proof of service” to be filed within “120 days”) with post-1998 CPLR 306-b (not requiring
proof of service to be filed within 120 days) How could you possibly honestly believe in 2023 that
TODAY “CPLR 306-b” includes a mandatory filing of proof of service as part of the commencement
procedure??? How can the Courts in good conscience allow someone who wrote on paper in 2023 that
“CPLR 306-b” requires plaintiff to “file” his proof of service within “120 days” to practice law? You
are not “practicing law”. You are practicing lies.
Please find enclosed the contemporaneous AFFIDAVIT OF SERVICE executed by the Process
Server Rose on June 9, 2023 for Summons with Notice Served upon CHASE on June 7, 2023. If
this June 9, 2023 AFFIDAVIT OF SERVICE is “FILED” by NYSCEF, does that filing negate all of
your “CPLR § 3211(a)(8)” objections to in personam “jurisdiction over the Chase”? Or, do you intend
to SPRING some additional theory and a different “CPLR § 3211(a)(8)” objection in your Reply
Memorandum? I must insist that you fully disclose all “CPLR § 3211(a)(8)” objections and theories
that you imagine Chase may have in view of the contents of June 9, 2023 AFFIDAVIT OF SERVICE
transmitted to you herewith.
Your October 23, 2023 Affirmation (unsigned) and Memorandum (signed) are entirely SILENT as to
HOW DID CHASE BECOME AWARE OF THE PENDENCY OF THIS ACTION. I imaging that you
must have seen an email or a letter or envelope passed along from the Branch Manager JILL
ANNUNZIATO, (her business card states she is "VICE PRESIDENT" "BRANCH MANAGER") at
Chase Branch at 416 Balltown Rd, "Schenectady", NY 12304 describing the physical delivery made
in-hand to her on June 7, 2023. I imagine that you personally spoke to Branch Manager JILL
ANNUNZIATO and that in your discussion of Service of Process with her you were unable to identify
any flaw in the service actually made upon CHASE on June 7, 2023, which is why you have not
included any Affidavit of Branch Manager JILL ANNUNZIATO in your silly “CPLR 3211(a)(8)”
motion papers. Your omission to include a purported “CPLR 306-B” motion in your Notice of Motion
implies that you were consciously aware on October 23, 2023 that Plaintiffs DID IN FACT make a
valid SERVICE upon CHASE within the “120 Days” prescribed in “CPLR 306-B”. [If you honestly
believed that you could prove a “CPLR 306-B” motion to dismiss based on “120 Days” prescribed in
“CPLR 306-B” then you could try to “withdraw” your untimely Oct 23, 2023 Notice of “CPLR
3211(a)” Motion and refile only a timely “CPLR 306-B” motion without repeating your current big
load of frivolous arguments. I will not consent to that attempted withdrawal, for procedural reasons
that are probably beyond your ability to comprehend. The Judicial Admissions you already made in the
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Oct 23, 2023 Motion will still be binding: E.g., Chase “issu[ed] a payoff letter, which was requested
to pay off the then-existing mortgage” upon property of “Elizabeth H. Prendergast”]
Were you aware when you filed your “CPLR § 3211(a)(8)” Motion that CHASE had in fact been
served in the manner and at the time that you now see recited in within the enclosed June 9, 2023
AFFIDAVIT OF SERVICE? I so, then why does your Memorandum broadly state that “there is no
evidence to date that Plaintiffs have properly served Chase” when you yourself probably saw such
evidence in the form of a transmittal letter or an email from Branch Manager JILL ANNUNZIATO?
How do you justify the making the false and misleading statements about “failure to serve Chase” if
you were actually aware of the service that was actually made upon Branch Manager JILL
ANNUNZIATO on June 7, 2023 and if you have no objections to the MANNER of such actual Service
as to CHASE?? Absent any explanation, I interpret your false assertion that “there is no evidence to
date” of service upon Chase as an attempt to Deceive the Court in violation of NYS Judiciary Law
487
“(b) Certification. By signing a paper, an attorney or party certifies that, to the best of that
person's knowledge, information and belief, formed after an inquiry reasonable under the
circumstances, (1) the presentation of the paper or the contentions therein are not frivolous as
defined in section 130-1.1(c)”
and a violation of 22 NYCRR Part 130, and a violation of the NYS Professional Rules, particularly:
A lawyer or law firm shall not: (a) violate or attempt to violate the Rules of Professional
Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b)
engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or
fitness as a lawyer; (c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e)
state or imply an ability: (1) to influence improperly or upon irrelevant grounds any tribunal,
legislative body or public official; or (2) to achieve results
Preview
FILED: SCHENECTADY COUNTY CLERK 11/16/2023 04:04 PM INDEX NO. 2023-240 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 11/16/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SCHENECTADY --------------------------------------------------------------------------------x Index Number Maria R Swiencicky, Mark R Ferran 2023-240 Plaintiffs, -against- PLAINTIFFS' Westcor Land Title Insurance Company, Gifford Abstract Corp, NOTICE OF REJECTION Thomas A Gifford, JP Morgan Chase Bank, N.A, Keybank, Howard OF NYSCEF e-filed PAPERS: Hanna Real Estate Services, New York State Land Title Association, NYSCEF Docs: Whiteman Osterman & Hanna LLP, Wallens Gold & Mineaux LLP, 171 -176 (Chase) Maritoni Carasig-Carlos, [et als.], Karen Deangelus, Kevin G Caslin, Emily Perks-Quinlan, Neil Levine, Elizabeth H Prendergast, And, Notice Pursuant to John J Henry, Thomas L Bell, Christine Carletta, Robert J 22 NYCRR Part130-1.1(c) for Heffernan, Tara MacNeill, Christine M Carsky, Michelle H contents of NYSCEF Docs: Wildgrube, Peter V Coffey, David W Feldman, Ashley Feldman, 171 -176 (Chase) Ima Lyn Hoe (a fictitious name representing one or more Appellate Law Clerk(s) Attorney(s) (Decision Clerk) working in the Third And, Plaintiffs's Request for Department in 2018-2019) Consent to an Extension of Time Defendants, to Respond to NYSCEF 171 - --------------------------------------------------------------------------------x 176 Motion (in present its form or as-amended). PLEASE TAKE NOTICE that PLAINFIFFS HEREBY REJECT THE MOTION PAPERS FILED BY DEFENDANT CHASE (JP Morgan Chase Bank, N.A) AT NYSCEF 171, 172, 173, 174, 175 and 176, and that Plaintiffs Object to the untimelienesss of the same, to the maximum extent allowed by the Law, based upon the fact that Chase's “CPLR 3211(a)(8)” objection to Service of Summons based on “CPLR 306-B” is without merit as a matter of law, and Chase is apparently in DEFAULT without a reasonable excuse. PLEASE TAKE NOTICE of PLAINTIFFs’ REJECTION of DEFENDANT CHASE’s UNTIMELY “CPLR 3211(a)” MOTION filed at NYSCEF 171 -176 on October 23, 2023. GROUNDS FOR OBJECTION AND REJECTION of these efiled instruments ( NYSCEF Docs 3, 13, 14, 15, 16, 17, 22 and 30) includes CPLR 320(a) (prescribing 20 days of 30 days to respond to Complaint absent reasonable excuse and absent request for extension of time). PLEASE TAKE NOTICE pursuant to 22 NYCRR Part130-1.1(c) that the papers (NYSCEF Docs 172 (unsigned Affirmation attributed to Attorney Lim) and 175 (Memorandum of Law signed by Attorney Lim) contain assertions made by Chase and Attorney Chong S. Lim that are or appear to be “frivolous” within the meaning of 22 NYCRR Part130-1.1, and this Notice contains a presentation of adverse controlling legal authority and/or documentary evidence directly contrary to such assertions. 1 1 of 73 FILED: SCHENECTADY COUNTY CLERK 11/16/2023 04:04 PM INDEX NO. 2023-240 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 11/16/2023 Dear Attorney Chong S. Lim, Esq of defendant CHASE. I, Mark R. Ferran, have reviewed the untimely “CPLR 3211” Motion Papers that you filed on October 23, 2023 at NYSCEF 171 through 176. I see that you have purported to excuse the apparent lateness of your “CPLR 3211” Pre-Answer Motion by including a purported “3211(a)(8)” Motion alleging: “No affidavit for service for Chase was filed.” (unsigned Chong S. Lim Affirmation at NYSCEF 172, and still unsigned as of today) [“Absent good cause shown, the court shall strike any unsigned paper if the omission of the signature is not corrected promptly after being called to the attention of the attorney or party.” 22 NYCRR Part 130]; and “Here, Plaintiffs filed this action through a summons on February 10, 2023, and later filed a Complaint on June 29, 2023, but there is no evidence to date that Plaintiffs have properly served Chase.” [Attached is a contemporaneous AFFIDAVIT OF SERVICE notarized on June 9, 2023 describing the service made upon CHASE by in-hand delivery to its Branch Manager on June 7, 2023] I have been ill for 2+ weeks (since October 24, 2023 with fever at 101°F until October 26, and then a receding fever of up to 100°F during that next week) and Bronchitis (2 tests NEGATIVE for Covid19). I did not eat at all for 2+ days October 24-26, 2023. Not sleeping well because of congestion and unusually bad dreams. After the first week, I lost 12 pounds of body weight, and I was prescribed and started taking Rx prescriptions for Doxycycline and Pregnezone to reduce/prevent pneumonia and reduce inflammation, plus decongestants. I am still ill and very congested and I needed and obtained a new Rx prescription for different antibiotics (Amoxicillin-Clav (2x, 10 Days)) on Nov. 9, 2023. And Notice of Vacation: Both Plaintiffs have a pre-paid out-of-state timeshare-week annual family-vacation booked for the whole next Week of Thanksgiving during which the Answering Papers currently fall due (on Nov. 22, 2023) per your Notice of Motion. [Generally, among Americans, it is impolite to schedule Answering Papers to fall Due within the week of any notorious school-calendar vacation weeks, such as Thanksgiving or Christmas or New Years] Pursuant to 22 NYCRR 202 8-a (a “motion may be adjourned on consent ... three times or for a cumulative total of more than 60 days”) and ( https://ww2.nycourts.gov/courts/4jd/Essex/index.shtml nycourts.gov/LegacyPDFS/courts/4jd/mt-rules/McGahay-Rules.pdf ) Judge’s Chamber’s Rules, I seek 2 WEEKS “adjourn[ment] on consent” of the pending October 23, 2023 motion at NYSCEF 171, because of the above-stated circumstances and further because of the below review of caselaw relative 2 2 of 73 FILED: SCHENECTADY COUNTY CLERK 11/16/2023 04:04 PM INDEX NO. 2023-240 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 11/16/2023 to multiple apparently-frivolous arguments contained in your October 23, 2023 motion at NYSCEF 171, Plaintiffs request your consent to a Two Weeks Extension of Time to Respond (Adjournment adding (at least) 2 weeks to the return date) to your October 23, 2023 motion at NYSCEF 171. And, Plaintiffs further request that in the event of your future withdrawal and/or amending of your October 23, 2023 motion papers at NYSCEF 171-176 that you shall prescribe (at least) three clear weeks (including 15 non-holiday business days) for Plaintiffs to respond to such a replacement/amended motion having a newly selected return date. (Thus the return date of the replacement motion or amended notice of motion shall be at least 4 weeks after filing/service of such amended notice of motion). And, please do not schedule a motion with the Answering Papers to fall due within the weeks containing Christmas nor New Years Day. Whereas, 22 NYCRR Part130-1.1(c) prescribes in pertinent part: In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the (1) circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party. Plaintiff’s 22 NYCRR Part130-1.1(c) Notice of Apparently-Frivolous Conduct: I Plaintiff Mark R. Ferran consider the following listed and enumerated conduct within the October 23, 2023 motion at NYSCEF 171-176 to be frivolous conduct within the meaning of 22 NYCRR Part130- 1.1: 1) The unsigned Affirmation of Attorney Chong S. Lim. 2) The frivolous legal argument by Chase and Attorney Chong S. Lim that “CPLR 306-B” requires a Plaintiff to “file” proof of service (e.g., Affidavit of Service) within the “120 days” prescribed in “CPLR 306-B”. Cruz v. Integrated Health Admin Servs 56 Misc.3d 654 (Sup. Ct. 2017) illustrates that an Attorney can be found liable for violation of 22 NYCRR Part130-1.1 for misrepresenting the “clear” requirements of a “CPLR” section, where “the relevant New York State statute is crystal clear” and where the false argument is based on “a deeply warped and thoroughly tortured analysis of a holding” in an appellate case. This describes your misrepresentation of the requirements of “CPLR 306-B”. 3)-8): [The signed MEMORANDUM OF LAW of CHASE and Chong S. Lim attempts to smuggle unsworn/false factual statements (not also being asserted “under the penalties of perjury pursuant to New York Civil Practice Law and Rules (“CPLR”) 2106” in the unsigned Affirmation of Chong S. Lim), without prescribing a JURAT that Attorney Chong S. Lim is “under the penalties of perjury”. The signed MEMORANDUM OF LAW of CHASE and Chong S. Lim should be rejected by the Court Clerk because it introduces unsworn false factual assertions and contains NO JURAT that Attorney 3 3 of 73 FILED: SCHENECTADY COUNTY CLERK 11/16/2023 04:04 PM INDEX NO. 2023-240 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 11/16/2023 Chong S. Lim is “under the penalties of perjury”. The unsworn factual statements introduced in the unsworn MEMORANDUM OF LAW include:] 3) The false/unsworn statement in the unsworn Memorandum of Law that: “Plaintiffs “fail[ed] to effectuate service and obtain jurisdiction over Chase.” 4) The false/unsworn statements in the unsworn Memorandum of Law that: “Swien[ci]cky filed an answer with numerous … counterclaimS….” (plural) “of Swien[ci]cky’s counterclaimS.” (plural); “Swien[ci]cky’s counterclaimS and cross-claimS” (plural) 5) The false/unsworn statement in the unsworn Memorandum of Law “However, since the filing of the Complaint, Plaintiffs have failed to file any affidavit of service to Chase.” 6) The false/unsworn statement in the unsworn Memorandum of Law alleging “failure to serve Chase ... within 120 of filing the Summons and Complaint.” 7) The false/unsworn statement in the unsworn Memorandum of Law alleging “there is no evidence to date that Plaintiffs have properly served Chase.” 8) The false/unsworn statement in the unsworn Memorandum of Law alleging “no affidavit of service has been filed for Chase.” [Plaintiff’s 22 NYCRR Part130-1.1(c) Notice of Apparently-Frivolous Conduct continues as follows:] 9) In view of controlling legal authority of Negrin v. Norwest Mtge, 263 A.D.2d 39 (2nd Dept 1999) (establishing the RE seller’s “private right of action” for “damages” for any breach of any requirement prescribed in “RPL 274-A(1)”) to the contrary, most of your legal argument based upon the “petition” remedy of “RPL 274-A(1)” being an exclusive remedy is without merit and is apparently-frivolous. [The only part of your argument that possibly survives Negrin itself is your “standing” (of an RE purchaser) argument. However even this “standing” argument is apparently-frivolous in view that the Complaint pleads a claim by Swiencicky for Common Law “Indemnification” for Chase’s breach of a legal duty to RE seller/mortgagor Prendergast, while you entirely ignore the doctrine of Common Law Indemnification] 10) Upon information and belief, Chase’s argument about an RE purchaser’s “standing” to sue directly for Chase’s breach of “RPL 274-A(1)” requirements is apparently-frivolous in view of the combination of Negrin v. Norwest Mtge, 263 A.D.2d 39 (2nd Dept 1999) and Izzo v. Manhattan Med. Group, 164 A.D.2d 13 (1st Dept 1990) and Oja v. Grand Chapter of Theta Chi Fraternity, Inc., 257 A.D.2d 924 in view of Grace v. Nappa, 46 N.Y.2d 560 and State Bank v. Fioravanti, 51 N.Y.2d 638 (1980). 11) Upon information and belief, Chase’s assertions that RE seller Prendergast’s “title was marketable” and/or “that she was ready, willing and able to convey marketable title to Defendant Swiencicky” is palpably frivolous on its face, being clearly contrary to controlling legal authority being concealed from the court by Attorney Chong S. Lim, and is not supported by any findings or determinations recited in the Appellate Division’s Decision at Prendergast v. Swiencicky 183 A.D.3d 945 (3rd Dept 2020). At pages 129-130 of the Complaint, Plaintiffs attached a copy of NY Jur 2nd “Real Property Sales and Exchanges” §146 “Mortgages” which unambiguously recites the clearly established rule that 4 4 of 73 FILED: SCHENECTADY COUNTY CLERK 11/16/2023 04:04 PM INDEX NO. 2023-240 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 11/16/2023 the existence of an unpaid and unsatisfied “mortgage” renders the seller’s title “defective” and “unmarketable” until a “Satisfaction” is obtained from the mortgagee in recordable form. Chase and Attorney Chong S. Lim cites no controlling legal authority to the contrary and fails to disclose controlling legal authority adverse to his false assertions. Cruz v. Integrated Health Admin Servs 56 Misc.3d 654 (Sup. Ct. 2017) illustrates that an Attorney can be found liable for violation of 22 NYCRR Part130-1.1 for misrepresenting the clearly established rule established in “controlling legal authority” while failing to cite or disclose the “controlling legal authority” that is “adverse” to the attorney’s false argument, and where the attorney’s false argument is based on “a deeply warped and thoroughly tortured analysis of a holding” in an appellate case. This describes your misrepresentation of the requirements in the seller’s obligations to “convey marketable title” with respect to an unpaid existing “mortgage”. 12) Upon information and belief, Chase’s argument that its assertion that RE seller Prendergast’s “title was marketable” and/or “that she was ready, willing and able to convey marketable title to Defendant Swiencicky” is in some way material and/or dispositive as to Chase’s liability for the contents of its own “payoff letter” (and despite the fact that Chase admits that its “mortgage” EXISTED and was UNPAID and UNSATISFIED and that Chase “issu[ed] a payoff letter, which was requested to pay off the then-existing mortgage”) is apparently-frivolous. 13) Upon information and belief, something about Chase’s deliberate omission to mention any of “insurable title”, “title report”, “Gifford”, “Westcor” “policy”, “11 NYCRR 35.7” or “NYS Ins. Law 6409(a)” (in view of Chase’s contentions about “Res Judicata” and “Collateral Estoppel” with respect to “marketable title”) is apparently-frivolous. Upon information and belief, these omissions by Chase are part of an attempt by Chase to evade the operation of the clearly-applicable “Preexisting Fraudulent Scheme” and “New Evidence” exceptions to “Res Judicata” and “Collateral Estoppel”. Res Judicata Fraudulent Scheme Exception: “Even if the requirements for application of res judicata were met, the Court likely would deny Defendants' motion, because ‘New York law provides that a plaintiff may attempt a collateral attack on a judgment based on a demonstration that the prior judgment was procured by fraud.’ Weinberger, 994 F. Supp. at 421. Because Plaintiffs allege that the Defendants obtained the ... judgment against them through their fraudulent scheme, their allegations fall within this exception to res judicata.” Michelo v. Nat'l Collegiate Student Loan Tr., 419 F. Supp. 3d 668 (USDC SDNY 2019) 14) Upon information and belief, Chase’s omission to acknowledge and discuss the applicability of the “No Compulsory Counterclaims Rule” Doctrine confirmed in Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31 NY3d 64 (2018) (“absent the compulsory counterclaim rule, a pleader is never barred by res judicata from suing independently on a claim that he refrained from pleading as a counterclaim in a prior action”) to Chase’s “Res Judicata” argument is apparently-frivolous. Because New York does not have a “compulsory counterclaim rule”, the Doctrine of “Res Judicata” applies strictly only to the prior “plaintiff” (Prendergast) in the prior action, not to the prior-defendant (Swiencicky). Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31 NY3d 64 (2018) Plaintiffs take the position that pleading an Equitable Defense of Grounds For “Specific Performance” or “Rescission” relief pleaded within an equitable RPAPL Article 15 counterclaim for Declaratory Relief is “discretionary” and can be denied simply because the defendant has an “adequate remedy at law” and does not bar a subsequent action at-law for legal “damages”. Where a “plaintiff” has previously sought only equitable relief, “res judicata does not preclude a subsequent action for damages.” Jackson Trak Group, Inc. v. 5 5 of 73 FILED: SCHENECTADY COUNTY CLERK 11/16/2023 04:04 PM INDEX NO. 2023-240 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 11/16/2023 Mid States Port Auth., 242 Kan. 683, 692, 751 P.2d 122, 129 (1988). An exception to Res Judicata exists where “the prior [counterclaim] involved only a request for declaratory relief.” Harborside Refrigerated Servs. Inc. v. Vogel, 959 F.2d 368, 372 (2d Cir. 1992); see also id. at 373 (holding the same). In such cases, “the preclusive effect of the declaratory judgment is limited to the subject matter of the declaratory relief sought[, and t]he plaintiff or defendant may continue to pursue further declaratory or coercive relief.” Id. At 372. In Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31 NY3d 64 (2018), the Court confirmed that “our permissive counterclaim rule may save from the bar of res judicata those claims for separate or different relief that could have been but were not interposed [by the defendant] in the parties' prior action.” (quoting Henry Modell & Co. v. Minister, Elders & Deacons of Ref. Pro.Dutch Church of City of N.Y., 68 N.Y.2d 456, 462 n. 2, [1986]). 15) The nonsensical assertions in the Memorandum of Law filed by Chase and attorney Chong S. Lim that “there are no allegations of misconduct directed at Chase” and that “Plaintiff’s allegations against Chase are non-existent” and “Plaintiff does not allege any conduct by Chase at all in the Complaint” is false and frivolous. Also, in the above respects, the filing of the Chase Motion constitutes at least probable FRIVOLOUS CONDUCT at least probably violating 11 NYCRR Part130-1.1. Re: “failure to serve Chase and to file the requisite affidavit of service within 120 [days, sic.] of filing the Summons and Complaint. See CPLR § 306-b” I take seriously the threat that implied in your Motion Papers (NYSCEF 171) that you will in some improper manner convince an elected NY Judge that Chase is entitled to relief “pursuant to CPLR § 3211(a)(8) for failure to establish jurisdiction over the Chase” solely because YOU WROTE that “No affidavit for service for Chase was filed.” on the theory of “failure to serve Chase and to file the requisite affidavit of service within 120 [days, sic.] of filing the Summons and Complaint. See CPLR § 306-b”. Also, at NYSCEF 32 the Plaintiffs filed a “PROOF OF SERVICE” on June 26, 2023, beyond the “120 days” prescribed in “CPLR 306-b” (for service made upon OTHER-than-CHASE defendants “Prendergast,Henry,Wildgrube,DeAngelus,D.Feldman, Westcor” within 20 days prescribed in CPLR 308(2 and 4)). Therefore, I was otherwise forced to research your frivolous “CPLR 306-b” objection that Plaintiffs did not file “requisite” Affidavits of Service within the “120 days” prescribed by “CPLR 306-b”. By bringing these matters that appear to me to be instances of your frivolous conduct to your attention in this Notice, you now seem to have the opportunity to unilaterally-withdraw/amend (though I do not consent to your withdraw/amend), but I do hope the result of this 11 NYCRR Part130-1.1(c) Notice of probable-frivolous conduct will be to mitigate (reduce) the burden imposed upon me to respond in Answering Papers to each and all the apparently-frivolous assertions contained in your pending Motion. I reserve all rights to file motions for 11 NYCRR Part130-1.1 costs and/or sanctions due to the apparently-frivolous assertions contained in your pending Motion. I reserve all rights to file a Motion for Default Judgment against Chase in view of the frivolous nature of (and the frivolous previous nondisclosure of) Chase’s purported “CPLR 306-B” objection to in personam jurisdiction. But, I believe that your contention that “CPLR § 306-b” requires “file the requisite affidavit of service within 120 [days] of filing the Summons and Complaint” is either delusional or is evidence of criminal 6 6 of 73 FILED: SCHENECTADY COUNTY CLERK 11/16/2023 04:04 PM INDEX NO. 2023-240 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 11/16/2023 intentions on your part. Nothing in “CPLR 306-b” nor in any caselaw purports to require that in 2023 any “Proof of Service” must be “filed” within the “120 days” prescribed in “CPLR 306-b”: § 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the commencement of the action or proceeding, provided that in an action or proceeding, except a proceeding commenced under the election law, where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service. https://law.justia.com/codes/new-york/2022/cvp/article-3/306-b/ There is no mention at all in “CPLR 306-b” (2023) of “Proof of Service” (CPLR 306, 308(2,4)) nor “Affidavit of Service”. “More particularly, effective January 1, 1998, CPLR 306-b has ‘eliminated any mandatory filing of proof of service as part of the commencement procedure.’” https://law.justia.com/cases/new-york/other-courts/2015/2015-ny-slip-op-50281-u.html Your deceptive use of “See CPLR § 306-b” does not change what the statute currently says and does not say. Your use of “See CPLR § 306-b” implies that you assert that the statute itself recites the requirement that you describe, when it in fact does not. And also nothing in “Zheleznyak v Gordon & Gordon, P.C., 175 A.D.3d 1360, 1361 (2d Dep’t 2019)” (cited by you) purports to recognize or enforce an obligation of plaintiff to “file” anything much less “proof of service” within the “120 days” prescribed in “CPLR 306-b”: [T]he defendant Leslie Nizin moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him on the ground of lack of personal jurisdiction..... The plaintiff had failed to file with the clerk of the court an affidavit of service of the summons and complaint as required by CPLR 308(4) [ Nail; and Mail Service]. ... “While the failure to timely file an affidavit of service with the clerk of the court as required by CPLR 308(4) may, in the absence of prejudice, be corrected by court order pursuant to CPLR 2004 …. Zheleznyak v Gordon & Gordon, P.C., 175 A.D.3d 1360, 1361 (2d Dep’t 2019) Nothing in the Zheleznyak court’s opinion identified a requirement in “CPLR 306-b” to file proof of service within the “120 days” prescribed by “CPLR 306-b”. Joffe opposed the plaintiffs' motion, arguing, among other things, that the plaintiffs failed to file proof of service with the court in accordance with the time limitations imposed by CPLR 308(2). … CPLR 308(2) authorizes "[p]ersonal service upon a natural person... by delivering the summons within the state to a person of suitable age and discretion at the actual place of business... of the person to be served and... by mailing the summons by first class mail to the person to be served at his or her actual place of business." CPLR 308(2) provides that "proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later." 7 7 of 73 FILED: SCHENECTADY COUNTY CLERK 11/16/2023 04:04 PM INDEX NO. 2023-240 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 11/16/2023 The failure to file timely proof of service does not constitute a jurisdictional defect (see Weininger v Sassower, 204 A.D.2d 715, 716). Rather, "[t]he failure to file proof of service is a procedural irregularity... that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004" (Khan v Hernandez, 122 A.D.3d 802, 803 [emphasis added]; see Zheleznyak v Gordon & Gordon, P.C., 175 A.D.3d 1360; Deb v Hayut, 171 A.D.3d 862, 863; Discover Bank v Eschwege, 71 A.D.3d 1413, 1414; Rosato v Ricciardi, 174 A.D.2d 937, 938; Lancaster v Kindor, 98 A.D.2d 300, 307, affd 65 N.Y.2d 804). Here, since the plaintiffs did not properly seek leave to excuse their failure to timely file proof of service, and the Supreme Court did not grant them leave to file proof of service beyond the statutory window (see CPLR 308[2]), the proof of service relating to Joffe was a nullity (see Zheleznyak v Gordon & Gordon, P.C., 175 A.D.3d at 1361; Deb v Hayut, 171 A.D.3d at 863). Chunyin Li v. Joffe, 2022 N.Y. Slip Op. 6227 (2 Dept 2022) Thus, a reasonably literate person mentally fit to practice law would understand that the “statutory window” being enforced in “Zheleznyak v Gordon & Gordon, P.C.” was the “20 days” prescribed in “CPLR 308(4)” (or in CPLR 308(2)), NOT the “120 days” prescribed in “CPLR 306-b”. The NYCourts.gov Brochure on Service of Process for Pro Se Litigants states: TIMELINESS AND FILING PROOF OF SERVICE OF INITIATING PAPERS ... A summons with notice or summons and complaint must be served within 120 days of filing with the County Clerk. If service is not made within these time limits, the action will be dismissed upon a motion by the opposing party unless you can show good cause for the delay or a reason the court should extend the time for service in the interest of justice (CPLR §306-b). After service of process, the person who served the papers must fill out a statement, called an affidavit of service, which is sworn to and signed in front of a notary public. .... If substituted or nail and mail service were used, the affidavit of service must be filed with the County Clerk within 20 days of the date of service. Although affidavits of service are not otherwise required to be filed, courts generally require that they be submitted and/or filed to assure that the Defendant has been given notice of the action or proceeding. Thus, filing affidavits of service is recommended in all instances. https://www.nycourts.gov/legacyPDFs/courts/6jd/forms/SRForms/servproc_howto.pdf Also: Furuya v. Parry, 2019 NY Slip Opn. 31354(U)(Filing Affidavit of Service “50 Days” after CPLR 308(4) service is excused under CPLR 2001/2004. “CPLR 306-b and CPLR 3211(a)(8)” motion denied.) Your Motion papers contain no reference at all to “CPLR 308(4” [Nail; and Mail Service] nor CPLR 308(2) (substituted service) which both would require filing of the proof of service within “20 days”. Nothing in your Motion Papers even suggests that the service was actually made or attempted upon Chase involved “CPLR 308(4” [Nail; and Mail Service] or “CPLR 308(2)” [substituted service]. So, I am forced to wonder WHY you are making these patently frivolous arguments based on “See, CPLR 306-b”. I have to wonder: Did you or someone else involved in this case bribe someone in the NYS Courts, such as the current Judge’s Law Clerk, to deceive and manipulate the Judge to adopt this frivolous “CPLR 306-b” argument? I was also forced to expend some time legal-researching your 8 8 of 73 FILED: SCHENECTADY COUNTY CLERK 11/16/2023 04:04 PM INDEX NO. 2023-240 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 11/16/2023 legal theory of “CPLR 306-b” only to return with more evidence to support my original conclusion that you are delusional and dishonest like most of your peers. The only case that I found that even assumes that “Proof of Service” must “technically” be “filed” in all cases fails to identify any statute purporting to require such filing in all cases, and expressly acknowledges that “effective January 1, 1998, CPLR 306-b has ‘eliminated any mandatory filing of proof of service as part of the commencement procedure’” and concludes that any other failure to file proof of service is “not jurisdictional”: While it is undisputed that the originals of the foregoing proofs of service were not filed in the Richmond County Clerk's Office, plaintiff maintains, by way of an excuse, that although service upon GMQ "was proper", "[d]ue to a miscommunication between the process server and an attorney previously employed with plaintiff's counsel's law firm, [certain...] original affidavits of service were never filed with the Richmond County Clerk[]". For this reason, plaintiff has cross moved for, inter alia, leave to file the original proofs of service nunc pro tunc as evidence of its proper and timely service of process upon two of the named defendants, to wit, GMQ Inc. and New York State Department of Taxation and Finance (see CPLR 306-b and CPLR 2001). At the outset, it should be noted that defendant's misguided attempt to invalidate the alleged service of process upon the secretary of state pursuant to BCL §306(b)(1) on the basis of plaintiff's admitted failure to file proof of service is of no avail since such a defect is not jurisdictional in nature (see e.g. Conde v Zaganjor, 66 AD3d 947) and may be corrected or disregarded if no substantial right of a party will be prejudiced thereby (see CPLR 2001). More particularly, effective January 1, 1998, CPLR 306-b has "eliminated any mandatory filing of proof of service as part of the commencement procedure...[even though] some statutes [i.e., CPLR 308(2,4)] require the filing of proof of service as a step in making service complete'. Although not usually of jurisdictional magnitude, the completion' of service is significant because a defendant's time to respond does not begin to run [if service by CPLR 308 2 or 4] until proof of service is complete. See CPLR 320(a) [“An appearance shall be made within twenty days after service of the summons, except that if the summons was served on the defendant by delivering it to an official of the state authorized to receive service in his behalf or if it was served pursuant to section 303, subdivision two, three, four or five of section 308, or sections 313, 314 or 315, the appearance shall be made within thirty days after service is complete. ϔIf the complaint is not served with the summons, the time to appear may be extended as provided in subdivision (b) of section 3012.]. [ https://law.justia.com/codes/new-york/2022/cvp/article-3/303/ https://law.justia.com/codes/new-york/2022/cvp/article-3/306/ https://law.justia.com/codes/new-york/2022/cvp/article-3/308/ https://law.justia.com/codes/new-york/2022/cvp/article-3/315/ https://law.justia.com/codes/new-york/2022/cvp/article-3/314/ https://law.justia.com/codes/new-york/2022/cvp/article-3/315/ https://law.justia.com/codes/new-york/2022/cvp/article-30/3012/ https://codes.findlaw.com/ny/business-corporation-law/bsc-sect-306/ ] Thus, where the filing of proof of service is a prerequisite to the completion of service,[FN2 [Footnote 2: In any event, this is not the case here, where GMQ was served by the personal delivery of process to the Secretary of State, as this defendant's agent, and, as such, "[s]ervice 9 9 of 73 FILED: SCHENECTADY COUNTY CLERK 11/16/2023 04:04 PM INDEX NO. 2023-240 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 11/16/2023 of process on such corporation [was] complete when the secretary of state [was] so served" ( BCL §306(b)(1), emphasis added).]] a delay in filing will postpone the running of defendant's response time. Because the failure to timely file proof of service in such cases is almost always a mere irregularity, however, permission for a tardy filing nunc pro tunc' is almost certain to be granted by the court. (Alexander, Practice Commentaries, Cons Laws of NY, Book7B, C306:1, p 103, [citations omitted]). Consonant with the foregoing, it is the opinion of this Court that plaintiff's delay in filing these proofs of service is a mere procedural irregularity, and may be corrected by an order of this Court permitting the belated filing, nunc pro tunc (see Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 752-753; Discover Bank v Eschwege, 71 AD3d 1413, 1414), or disregarded entirely (see CPLR 2001; see also CPLR 2004 [extensions of time generally]). As for the merits of the moving defendant's challenge to the service of process, it is well settled that in order to rebut plaintiff's prima facie evidence that GMQ was properly served with process pursuant to CPLR 311(a)(1) and BCL §306(b)(1), said defendant was required to come forward with a sworn denial containing detailed and probative facts sufficient to overcome the affidavit of service and create a triable issue of fact (see U.S. Bank N. A. v Losner, __ AD3d __, 2015 NY Slip Op 00869; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344; accord Rosario v Beverly Rd. Realty Co., 38 AD3d 875). Here, GMQ's unsubstantiated and conclusory assertions that (1) "it was never served with a summons and complaint in this action", and (2) its offices were not located at the registered address on file with the Secretary of State at the time of service (i.e., in December of 2010), are legally insufficient to rebut the contents of plaintiff's affidavit of service and raise triable issues of fact regarding the regularity of service. In this regard, the moving defendant's alleged failure to receive a copy of the summons and complaint from the Secretary of State was caused by its unexplained and admitted failure to inform the Secretary of State of its current address for seven or more years (see Gershman v Midtown Moving & Stor., Inc., 123 AD3d 974, 975; Cruz v Keter Residence, LLC, 115 AD3d 700, 701; Sussman v Jo-Realty Corp., 99 AD3d 787,788). Thus, this Court may reject GMQ's jurisdictional challenge without conducting a traverse hearing (see Mortgage Electronic Registration Systems, Inc. v Losco, __ AD3d __, 2015 NY Slip Op 01250; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984; NYCTL 2009-A Trust v Tsafatinos, 101 AD3d 1092, 1093-1094; cf. Machovec v Svoboda, 120 AD3d 772, 774). Accordingly, it is ORDERED, that the motion of defendant GMQ, Inc. for dismissal of the complaint as against it is denied in its entirety; and it is further ORDERED, that plaintiff's cross motion is granted solely to extend nunc pro tunc [*3]its time to file proofs of service upon defendants GMQ, Inc. and, without opposition, the New York State Department of Taxation and Finance nunc pro tunc; and it is further https://law.justia.com/cases/new-york/other-courts/2015/2015-ny-slip-op-50281-u.html 10 10 of 73 FILED: SCHENECTADY COUNTY CLERK 11/16/2023 04:04 PM INDEX NO. 2023-240 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 11/16/2023 In my opinion, the above verbose Decision should have simply acknowledged that the service complained of was proven to be valid during the CPLR 3211 Motion and that the CPLR did not require that plaintiff to previously “file proof of service” at any time until a motion particularly required production of proof of service to be filed, such as a CPLR § 3215 Motion to Default, or a CPLR § 3211(a)(8) motion purporting to challenge in personam Jurisdiction. The Richmond County court’s Order purporting to grant an extension of Plaintiff’s “time to file proofs of service upon defendants” is entirely superfluous in the total absence of that court identifying any applicable statute that purports to prescribe or limit such time in the factual circumstances of that case [and in view of “Footnote 2: In any event, this is not the case here, where GMQ was served by the personal delivery of process” ]. In any event, that Richmond County Decision completely negates your theory that “CPLR 306-b” requires the plaintiff to file of Proof of Service within the “120 Days” prescribed in CPLR 306-b. Quote: “effective January 1,: 1998, CPLR 306-b has "eliminated any mandatory filing of proof of service as part of the commencement procedure”. The year “1998” happened 25 years ago! See, e.g., Parris v. Hirtenfield, 2005 NYS Spli Opn. 50726(U) comparing pre-1998 CPLR 306-b(a) (requiring “proof of service” to be filed within “120 days”) with post-1998 CPLR 306-b (not requiring proof of service to be filed within 120 days) How could you possibly honestly believe in 2023 that TODAY “CPLR 306-b” includes a mandatory filing of proof of service as part of the commencement procedure??? How can the Courts in good conscience allow someone who wrote on paper in 2023 that “CPLR 306-b” requires plaintiff to “file” his proof of service within “120 days” to practice law? You are not “practicing law”. You are practicing lies. Please find enclosed the contemporaneous AFFIDAVIT OF SERVICE executed by the Process Server Rose on June 9, 2023 for Summons with Notice Served upon CHASE on June 7, 2023. If this June 9, 2023 AFFIDAVIT OF SERVICE is “FILED” by NYSCEF, does that filing negate all of your “CPLR § 3211(a)(8)” objections to in personam “jurisdiction over the Chase”? Or, do you intend to SPRING some additional theory and a different “CPLR § 3211(a)(8)” objection in your Reply Memorandum? I must insist that you fully disclose all “CPLR § 3211(a)(8)” objections and theories that you imagine Chase may have in view of the contents of June 9, 2023 AFFIDAVIT OF SERVICE transmitted to you herewith. Your October 23, 2023 Affirmation (unsigned) and Memorandum (signed) are entirely SILENT as to HOW DID CHASE BECOME AWARE OF THE PENDENCY OF THIS ACTION. I imaging that you must have seen an email or a letter or envelope passed along from the Branch Manager JILL ANNUNZIATO, (her business card states she is "VICE PRESIDENT" "BRANCH MANAGER") at Chase Branch at 416 Balltown Rd, "Schenectady", NY 12304 describing the physical delivery made in-hand to her on June 7, 2023. I imagine that you personally spoke to Branch Manager JILL ANNUNZIATO and that in your discussion of Service of Process with her you were unable to identify any flaw in the service actually made upon CHASE on June 7, 2023, which is why you have not included any Affidavit of Branch Manager JILL ANNUNZIATO in your silly “CPLR 3211(a)(8)” motion papers. Your omission to include a purported “CPLR 306-B” motion in your Notice of Motion implies that you were consciously aware on October 23, 2023 that Plaintiffs DID IN FACT make a valid SERVICE upon CHASE within the “120 Days” prescribed in “CPLR 306-B”. [If you honestly believed that you could prove a “CPLR 306-B” motion to dismiss based on “120 Days” prescribed in “CPLR 306-B” then you could try to “withdraw” your untimely Oct 23, 2023 Notice of “CPLR 3211(a)” Motion and refile only a timely “CPLR 306-B” motion without repeating your current big load of frivolous arguments. I will not consent to that attempted withdrawal, for procedural reasons that are probably beyond your ability to comprehend. The Judicial Admissions you already made in the 11 11 of 73 FILED: SCHENECTADY COUNTY CLERK 11/16/2023 04:04 PM INDEX NO. 2023-240 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 11/16/2023 Oct 23, 2023 Motion will still be binding: E.g., Chase “issu[ed] a payoff letter, which was requested to pay off the then-existing mortgage” upon property of “Elizabeth H. Prendergast”] Were you aware when you filed your “CPLR § 3211(a)(8)” Motion that CHASE had in fact been served in the manner and at the time that you now see recited in within the enclosed June 9, 2023 AFFIDAVIT OF SERVICE? I so, then why does your Memorandum broadly state that “there is no evidence to date that Plaintiffs have properly served Chase” when you yourself probably saw such evidence in the form of a transmittal letter or an email from Branch Manager JILL ANNUNZIATO? How do you justify the making the false and misleading statements about “failure to serve Chase” if you were actually aware of the service that was actually made upon Branch Manager JILL ANNUNZIATO on June 7, 2023 and if you have no objections to the MANNER of such actual Service as to CHASE?? Absent any explanation, I interpret your false assertion that “there is no evidence to date” of service upon Chase as an attempt to Deceive the Court in violation of NYS Judiciary Law 487 “(b) Certification. By signing a paper, an attorney or party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, (1) the presentation of the paper or the contentions therein are not frivolous as defined in section 130-1.1(c)” and a violation of 22 NYCRR Part 130, and a violation of the NYS Professional Rules, particularly: A lawyer or law firm shall not: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability: (1) to influence improperly or upon irrelevant grounds any tribunal, legislative body or public official; or (2) to achieve results