Opinion
Civil Action 18-cv-02092(KMK)
08-11-2021
LEONARD M. EISENBERG and CAROL A. EISENBERG, Plaintiffs, v. PERMANENT MISSION OF EQUATORIAL GUINEA TO THE UNITED NATIONS, Defendant.
DEFAULT JUDGMENT
WHEREAS, the above action now pending in this Court was initially commenced by Plaintiffs in Supreme Court of the State of New York, County of Westchester and removed by Notice of Removal (Document #1) filed by counsel for the Defendant on March 8, 2018; and
WHEREAS, subsequent to Defendant's removal, Defendant challenged the subject matter jurisdiction of this Court alleging upon a 12(b)(1) Motion that Plaintiffs could not maintain this action based upon sovereign immunity; and
WHEREAS, said Motion came on to be heard before this Court on July 30, 2019 and the Court rendered a Decision and Order (Document No. 50) denying Defendant's subject matter challenge; and
WHEREAS, the Second Circuit Court of Appeals following an appeal by Defendant unanimously affirmed by Decision and Order dated October 20, 2020 the underlying July 30, 2019 Order of this Court; and
WHEREAS, following the above Plaintiffs filed discovery demands including a Notice of Intention to Inspect the Premises (Document No. 68) to access the property as well as an omnibus
WHEREAS, by Memo Endorsed letter dated November 12, 2020 (Document No, 67) the Court set a “hard deadline” on discovery establishing a cutoff date of January 31, 2021 stating an intention to impose sanctions based upon a failure to comply; and
WHEREAS, notwithstanding the above it became necessary for Plaintiffs' counsel to file a letter motion on January 6, 2021 to compel production; and
WHEREAS, the Court issued an Order on January 7, 2021 (Document No. 75) directing Defendant to respond by January 21, 2021 and a further Order was entered on January 14, 2021 (Document No. 78) granting a second letter motion seeking leave to file a default motion; and
WHEREAS, on January 27, 2021 the subject Default Motion (Document No. 79) was docketed returnable on February 19, 2021 and adjourned by first letter motion to March 19, 2021; and
WHEREAS, in response to the Plaintiffs' discovery applications and discovery notices, Defendant through counsel continued to improperly and unlawfully assert immunity notwithstanding the ruling of this Court and notwithstanding the affirmance of the ruling by the Second Circuit Court of Appeals; and
WHEREAS, by Memo Endorsed letter (Document No. 83) endorsed on April 6, 2021 the Honorable Court granted leave to Plaintiffs to submit a proposed order seeking default judgment;
NOW THEREFORE it is:
ORDERED, ADJUDGED and DECREED that the Plaintiffs do recover and have judgment for all relief requested in the underlying Complaint including and not limited to the within determination that the Defendant's actions that trespassed upon the property of the Plaintiffs were unlawful and that the Plaintiffs are entitled to a decree of this Court establishing Defendant's trespass and declaring Plaintiffs to be the lawful owners of all property deeded to them by deed dated August 11, 2008 free and clear of any claim, right, title or interest of the Defendant compelling Defendant to forthwith and immediately vacate and remove any and all encroachments and structures of any nature unlawfully trespassing upon the property of the Plaintiffs; and it is
ORDERED, ADJUDGED and DECREED that the Plaintiffs are entitled to compensatory damages as a result of Defendant's unjust occupancy, unjust encroachment and deliberate disregard for the property rights of the Plaintiffs; and it is
ORDERED, ADJUDGED and DECREED that Plaintiffs do hereby obtain a declaratory judgment and determination of this Court quieting the title to the property owned and deeded to the Plaintiffs by Deed dated August 11, 2008 extinguishing any and all unlawful claims of the Defendant to the subject property that was unlawfully occupied and trespassed upon; and it is
ORDERED, ADJUDGED and DECREED that the Defendant be hereby directed to fully comply with, adhere to and respect the boundary line demarcated on the Munson Company Survey dated November 2, 2016 which Survey was affixed as Exhibit “C” to the Plaintiffs' Complaint which Survey further depicted that the Defendant's barbecue area and chain link fence then encroached beyond the Defendant's boundary line separating the properties of the parties all as depicted on the Survey attached as Exhibit “C” to the Plaintiffs' Complaint and ancillary to the above, Defendant is hereby directed and enjoined to remove any encroachments that extend beyond said boundary line, quieting title to property owned by the Plaintiffs heretofore encroached upon by the Defendant; and it is
ORDERED, ADJUDGED and DECREED that the Plaintiffs do obtain an equitable decree, injunction and determination requiring Defendant to immediately cease the discharge of water from the property of the Defendant onto the property of the Plaintiffs and forthwith and immediately remove any unlawful concealed pipes now causing water to flow and discharge from the property of the Defendant onto the property of the Plaintiffs; XXXXX.