Opinion
Index No. 652395/2023 MOTION SEQ. No. 001
12-08-2023
69 SECOND AVENUE LLC, Plaintiff, v. VANESSA REALTY CORP, and SHLOMO MISHKIT, Defendants.
Unpublished Opinion
PRESENT: HON. DEBRA A. JAMES Justice.
ORDER-RESETTLED/CORRECTED AMENDED (MOTION RELATED)
DEBRA A. JAMES, JUDGE.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 were read on this motion to/for JUDGMENT-DEFAULT.
ORDER
Upon the foregoing documents, it is
ORDERED that the Order of December 8, 2023, resolving motion sequence 001 in this action is VACATED, RESETTLED, AND CORRECTED pursuant to CPLR § 5019(a) [see Kiker v. Nassau County, 85 N.Y.2d 879 (1995)] as follows:
ORDER
Upon the foregoing documents, it is
ORDERED that the cross motion of defendant SHLOMO MISHKIT to dismiss the complaint pursuant to CPLR 3211(a)(4) is DENIED, as premature, with leave to either side to move with respect to such affirmative defense alleged in defendant Mishkit's Answer; and it is further
ORDERED that to the extent that it seeks a default judgment against VANESSA REALTY CORP, the motion of plaintiff is GRANTED, without opposition; and it is further
ORDERED that defendant VANESSA REALTY CORP is liable on the complaint alleging fraudulent conveyance and an inquest on damages shall take place upon the disposition of this action against the remaining defendant; and it is further
ORDERED that plaintiff shall file a note of issue and certificate of readiness for the foregoing inquest and pay the proper fees to place this action on the appropriate trial calendar for such assessment, within thirty (30) days of the disposition against the remaining defendant; and it is further
ORDERED that to the extent that it seeks a default judgment against defendant SHLOMO MISHKIT, the motion of plaintiff is DENIED; and it is further
ORDERED that plaintiff is directed to accept the Answer of defendant SHLOMO MISHKIT filed on August 29, 2023 (NYSCEEF Document No 15); and it is further
ORDERED that plaintiff shall file a Reply to the counterclaim interposed in such Answer, within thirty (30) days of service of a copy of this Order with notice of entry; and it is further
ORDERED that counsel are directed to post on NYSCEF a proposed preliminary discovery conference order or competing preliminary discovery conference order(s) at least two days before February 1, 2024, on which date counsel shall appear via Microsoft Teams, unless such appearance be waived by the court.
DECISION
This court rejects plaintiff's argument that service of process on a person abroad under the Hague Convention does not implicate the proof of service requirements of CPLR § 308(2).
Article 6 of the Hague Convention provides, in part, that the Central Authority shall complete a certificate in the form of the model annexed to the present Convention, and the "certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered." The affidavits of service originally filed in this action did not indicate on what day the summons and complaint were served. Plaintiffs subsequently filed unsworn affidavits of service, which contained the date, but did not explain the change in the affidavits. Plaintiffs never submitted any certificate.Marcus v. Five J Jewelers Precious Metals Industry Ltd, 2002 NY Slip Op 50269(U), *2 (Sup Court, NY Co, Ramos, J.) Therefore, defendant Mishkit's Answer, which was served a mere seven days after plaintiff filed proof of service, was timely.
An evidentiary hearing is required with respect to damages to be assessed on the fraudulent conveyance claim(s) against defaulting defendant Vanessa Realty Corp. See Gutierrez v. Bernard, 267 A.D.2d 65 (1st Dept 1999).