FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018
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`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
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`INDEX NO. 510280/2016
`INDEX NO~ 510280/2016
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`
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`RaCaIVaD VYSCEF: 03/15/2018
`RECEIVED NYSCEF: 03/15/2018
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`
`
`(4
`the Supreme
`At an I.A.S. Trial Term, Part
`of
`Court of the State of New York, held in and for the
`County of Kings, at the Courthouse, located at
`
`20 [P
`
`Hon. ”/4 40V
`
`Justice
`
`Civic Center, Boroufiof
`
`of New York, on the
`
`ooklyn,
`day of
`
`ity and State
`
`a” W F) ALL .
`
`Plaintiff(s)
`
`I I
`Cal. No.
`Index No. 570 Zia/é
`
`- against -
`
`MM W5 W
`Defendant(s)
`W a) 64/‘6W
`
`The following papers numbered 1
`read on this motion
`to
`Notice of Motion- Order to Show Cause
`
`and Affidavits (Affirmations) Annexed
`Answering Affidavit (Afiirmation)
`Reply Affidavit (Affirmation)
`Affidavit (Affirmation)
`
`Pleadings - Exhibits
`Stipulations- Minutes
`Filed Papers
`
`Papers Numbered
`
`Wswwlsfwdkfieuw
`UWMWZS M
`Wkwsow Wagfiéoé—a
`
`v.
`
`For Clerks use only
`MG___
`MD.
`
`EJV-rcv 11—04
`
`Motion g. #
`00L
`
`lof 63
`1 of 63
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`

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`FILED: KINGS COUNTY CLERK 03/07/2018
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`W: COUNTY CLERK 03m-
`NYSCEF DOC. NO. 27
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`INDEX No. 510280/2016
`INDEX NO. 510280/2016
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`RECEIVED NYSCEF: 03/15/2018
`‘RfiCnIVaD NYSCEE: 03/15/2018
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`GE ”is;
`
`,
`
`‘ 2
`
`At Part 90,—Roem-4e4 ofthe Supreme
`Court of the State of New York, held
`
`@ PW‘A
`a {L G \D(l\ M K»; JSC—On the H
`SUPREMEMCOUISOFTHESTATEOFNEWYORK
`,
`U COUNTY OF KINGS
`m 4 I) w
`EMPIRE MERCHANTS, LLC.
`fl 1/
`Index N0.: 510280/16
`Plaintifi?
`
`inandfortheCountyofKingsat360
`
`Adams S eet, Brooklyn, New York,
`
`day ofDecember 2017.
`
`\ \g
`
`Z ~2
`
`-against-
`
`EMERGENCY
`ORDER TO SHOW CAUSE
`
`lOAK HAMPTONS, LLC and
`NEBYOU GUETANEH,
`
`Defendants.
`
`
`
`,
`
`Upon the annexed Affirmation of STEVEN J. CZIK, ESQ. dated December’lvfi’2017 and
`
`the Affidavit of NEBYOU GUETANEH, sworn to December 1%7 upon all the facts,
`pleadings and proceedings heretofore had herein,
`
`//
`
`LET the Plaintiff or its attorney(s) Show cause before one of the Judges of this Court at the
`
`Part 90, Room{(3%at the Supreme Court ofthe State ofNew York, County ofKings, located at
`/
`360 Adams Street, County ofKings, Brooklyn, New York, on they? day ofJanuary, 2018 at 9:30
`
`A.M., in the forenoon of that day, or as soon thereafter as counsel may be heard for a hearing on
`
`WHY an Order should not be entered herein: dement entered in
`this action against Defendant NEBYOU GUETANEH on March 10, 2017 herein; b) Restoring this
`
`action to the Court’s calendar and for such other and further relief as this Court deems just and
`
`proper.
`
`SUFFICIENT CAUSE THEREFORE APPEARING, IT IS HEREBY
`
`20f 63
`2 of 63
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`

`

`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03
`
` @2018
`
`3F DOC. NO.NYSC
`NYSCEF DOC. NO. 27
`27
`I
`l
`1
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`IND
`EX NO.
`510280/2016
`INDEX NO. 510280/2016
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` fiIV flD
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`03/15/2018
`RECEIVED NYSCEF: 03/15/2018
`
`gm]
`
`ORDERED, that pending the hearing of this motion, any and all proceedings on the part
`
`of the Plaintiff and any and all actions of any Marshall or Sheriff of the City of New York for the
`
`enforcement of said judgment,
`
`BE STAYED; and
`
`Let service of a copy of this Order together with the Affidavit upon which it is predicated
`(fl...
`
`
`’9
`
`December
`
`2017, shall be deemed good and sufficient
`
`Richard Klass, Esq., Attorney for Plaintiffyon or before
`aural Cl marflw I
`
`WW any?CAM“$33M
`goldfiw
`<in/
`
`10%
`
`
`
`75C
`Hon. Edgar G. Walker
`
`09 :8 m L- mam
`
`Fifi-313;!
`“831:3 M303 55””
`fl
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`3 of 63
`3 of 63
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`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018
`
`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
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`U
`'
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`.
`I
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`'
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`INDEX NO. 510280/2016
`INDEX NO~ “0280/2016
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`RECEIVED NYSCEF: 03/15/2018
`-R«.C«.Iv«.D \‘IYSCEF: 03/15/2018
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`
`
`I SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF KINGS
`
`EMPIRE MERCHANTS, LLC.
`
`Plaintiff,
`
`-against-
`
`IOAK HAMPTONS, LLC and
`
`NEBYOU GUETANEH,
`
`Defendants.
`
`Index N0.: 510280/16
`
`AFFIRMATION IN
`
`m
`
`STEVEN J. CZIK, ESQ, hereby affirms the following under penalties of perjury:
`.————-—'—'_____~__._...y..-..4..».. aw..."
`_/,_._
`
`1.
`
`I am a member of CZIK LAW PLLC, attorneys for NEBYOU GUETANEH
`
`(hereinafter “GUETANEH”), Defendant in this action, and as such am fully familiar with the facts
`
`and circumstances regarding this action.
`
`2.
`
`This Affirmation is submitted in support of Defendant’s instant Order to Show
`
`Cause seeking an Order: a) Vacating the Default Judgment obtained in this action against
`
`Defendant NEBYOU GUETANEH on March 10, 2017; b) Restoring this action to the Court’s
`
`calendar and for such other and further relief as this Court may deem just and proper.
`
`3.
`
`A Default Judgment based on non-appearance was entered against Defendant
`
`GUETANEH on March 10, 2017. However, that decision was entered solely due to Defendant’s
`
`failure to appear and or submit an Answer to the Complaint in this action. (A copy of the Default
`
`Judgment entered on March 10, 2017, is annexed hereto as Exhibit “A”).
`
`5.
`
`The Judgment entered against Defendant GUETANEH was only realized a few
`
`weeks ago upon MR. GUETANEH’S discovery that his bank account had been seized by a City
`
`Marshal.
`
`40f 63
`4 of 63
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`

`

`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018
`
`NYSCEF DOC. NO. 27
`’
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`NYSCEF DOC. NO. 27
`1
`1
`1
`
`INDEX NO. 510280/2016
`INDEX NO~ 510280/2016
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`
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`-R«C«IV«D vYSCEE: 03/15/2018
`RECEIVED NYSCEF: 03/15/2018
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`
`
`6.
`
`Defendant Guetaneh, as enumerated in his annexed Affidavit, has a justifiable
`
`excuse in defaulting in this matter, as the default was caused due to the fact that he was never
`
`served with the summons and complaint in this action and not through any fault of GUETANEH.
`
`7.
`
`Defendant GUETANEH maintains various meritorious defenses in this action,
`
`including, but not
`
`limited to, an illegible contract and incorrect amounts claimed. More
`
`significantly, GUETANEH is an improperly named party in this action that should bear no
`
`personal liability whatsoever, as any actions and or inactions alleged were perpetrated long after
`
`he resigned a principal of Defendant IOAK HAMPTONS, LLC on or about June 30, 2014, and
`
`as such should not subject him to any personal liability.
`
`8.
`
`As such, the Default Judgment filed against GUETANEH in this action must be
`
`vacated or GUETANEH shall be seriously prejudiced through no fault of his own.
`
`9.
`
`Plaintiff would not be prejudiced as judgment was incorrectly entered against
`
`want GUETANEH.
`
`10.
`
`One previous application has been made for the relief sought after herein by
`
`Plaintiff ProSe, which was denied due to defective service.
`
`WHEREFORE, Defendant NEBYOU GUETANEH kindly and respectfully requests an
`
`Order vacating the Default Judgment rendered by this Court on March 10, 2017, restoring this
`
`action to the Court’s trial calendar and for such other further relief as this Court may deem just
`
`and proper.
`
`Dated: New York, New York
`December 6, 2017
`
`/
`
`4”
`
`Steven J. Czik, Esq.
`CZIK LAW PLLC
`
`Attorneys for Defendant
`401 Greenwich Street
`
`New York, New York 10013
`tIL- We "/‘ML
`
`50f 63
`5 of 63
`
`

`

`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018
`
`NYSCEF DOC. NO. 27
`'
`NYSCEF DOC. NO. 27
`?
`$
`’
`
`INDEX NO. 510280/2016
`
`INDEX NO~ “0280/2016
`
`
`
`
`
`
`'RaCnIVaD fiYSCEF: 03/15/2018
`RECEIVED NYSCEF: 03/15/2018
`
`Index No.: 510280/16
`
`AFFIDAVIT IN SUPPORT
`
`SUPREME COURT OF THE STATE OF NEW YORK
` COUNTY OF KINGS
`
`EMPIRE MERCHANTS,
`
`Plaintiff
`
`-against-
`
`10AK HAMPTONS, LLC and
`NEBYOU GUETANEH,
`
`Defendants.
`
`
`SS.:
`
`) )
`
`STATE OF NEW YORK
`
`COUNTY OF NEW YORK )
`
`NEBYOU GUETANEH, being duly sworn depose and states:
`imDefendant in this action and as suchiamr‘r‘ifamiliar with the facts and
`
`1.
`
`circumstances regarding this action.
`
`2.
`
`This Affidavit is submitted in support of Defendant’s instant Order to Show
`
`Cause seeking an Order: a) Vacating the Default Judgment obtained in this action against
`
`Defendant NEBYOU GUETANEH on March 10, 2017; b) Restoring this action to the Court’s
`
`calendar and for such other and further relief as this Court may deem just and proper.
`
`3.
`
`I have read the annexed Affirmation of my attorney, Steven J. Czik, Esq., and find
`
`it to be true and accurate.
`
`4.
`
`A Default Judgment was entered against me on March 10, 2017. However, that
`
`decision was entered solely due to my failure to appear and or submit an Answer to the
`
`Complaint in this action.
`
`60f 63
`6 of 63
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`

`

`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018
`NYSCI
`NYSCEF DOC. NO. 27
`3F DOC. NO. 27
`,
`'
`‘
`
`INDEX NO. 510280/2016
`INDEX NO. 510280/2016
`
`
`
`
`
`'RaCfiIVaD fiYSCEF:
`03/15/2018
`RECEIVED NYSCEF: 03/15/2018
`
`5.
`
`The Judgment entered against me was only realized a few weeks ago upon my
`
`discovery that his bank account had been seized by a County Marshal.
`
`6.
`
`As enumerated above, I have a justifiable excuse in defaulting in this matter, as
`
`the default was caused due to the fact that I was never served with a Summons and Complaint in
`
`this action and not through any fault of my own.
`
`7.
`
`I maintain various meritorious defenses in this action, including, but not limited
`
`to, an illegible contract and incorrect amounts claimed. More significantly, I am an improperly
`
`named party in this action that should bear no personal liability whatsoever, as any actions and or
`
`inactions alleged were perpetrated long after I resigned a principal of Defendant IOAK
`
`HAMPTONS, LLC on or about June 30, 2014, and as such should I should not be subject to any
`
`personal liability.
`
`8.
`
`As such, the Default Judgment filed against me in this action must be vacated or I
`
`shall be seriously prejudiced through no fault of my own.
`
`9.
`
`Plaintiff would not be prejudiced as judgment was incorrectly entered against me.
`
`/0. One previous application has been made for the reliefsought after herein by
`
`Plaintiff ProSe, which was denied due to defective service.
`
`Based on the foregoing, I kindly and respectfully request an Order vacating the Default
`
`Judgment rendered by this Court on March 10, 2017, restoring this action to the Court’s trial
`
`/
`
`Sworn to before me this
`
`I O'L'day of December 2017
`
`OTAR
`
`IC
`
`7 of 63
`7 of 63
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`

`

`
`
`FILED: KINGS COUNTY CLERK 03/07/2018
`FI ED: KIGS COUNTY CLERK 03m2018
`NYSCEF DOC. NO. 27
`mgr-amnmmnes COUNTY CLERK 03 2017 10:02 AM
`
`
`'NYSCEF.DOC.. NO.
`8
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`INDEX NO. 510280/2016
`INDEX N0. 510280/2016
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`
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`RECEIVED NYSCEF: 03/15/2018
`'Rt-Ct-N-IINDBIGOEF-z Sim/218972018
`RECEIVED NYSCEF: 03/15/2017
`
`.
`
`
`
`,2'...-.....«..,-..pn...w...,.;w.....,....
`
`
`
`
`
`t
`
`%
`i
`
`i i
`
`i
`
`SUPREME COURT: STATE OF NEW YORK
`COUNTY 0,1“ KINGS
`
`~-~-—~-----——---~---------------------------X
`EMPIRE MERCHANTS, LLC,
`
`Plaintiff,
`
`- against -
`
`10AK HAMPTONS, LLC and
`NEBYOU GUETANEH ,
`Defendant(s).
`............................................ X
`
`Index No. 51028012016
`
`Judgment on Default
`Rendered in favor of
`Empire Merchants, LLC
`16 Bridgcwater Street
`Brooklyn, NY 11222
`
`Amount claimed in complaint: .....................
`Interest from September 30, 2015:
`
`Total: .....
`Costs by statute: ............................
`200.00
`Service of Summons and Complaint ............
`40.00
`Filing of Summons and Complaint: ............ 210.00
`Prospective Marshal's Fee: ..................
`40.00
`Total:
`
`$71,454.32 '"
`$ 6,536.58 ,
`$77,990.90 ’
`
`490.00
`$78,480.90
`
`2:5
`23
`3‘5 ,
`:1
`:2
`if;
`Z 335
`0 EEC;
`3,. 0:2
`E
`<3
`0
`1:.
`f3
`'3‘;
`
`STATE OF NEW YORK, COUNTY OF KINGS
`The undersigned, attorney at law of the State of New York, the attorney of record for the
`Plaintiff in the above-entitled action, states that the disbursements above specified have been or will
`necessarily be made or incurred therein and are reasonable in amount; that the time ofthe Defendant(s)
`to appear and answer herein has expired and that said Defendant(s) has/have not appeared and answered
`herein.
`
`-
`
`.
`
`'
`
`‘3
`"
`
`The undersigned affirms this statement to be true under the penalties of perjury.
`Dated: Brooklyn, New York
`October 5, 2016
`.
`.
`.
`3" M W
`"JUDGMENT entered on
`Service of the Summons and Complaint in this action on IOAK HAMPTONS, LLC and NEBYOU
`GUETANEH, Defendant(s) herein, having been completed on July 5, 2010, by:
`personal delivery thereof to Defendant(s) within the City of New York
`and more than 20 days have elapsed.
`filing on said day of proof of the service thereof by substituted service
`and more than 30 days have elapsed since the day of completion of
`service and the time of said Defendant(s) to appear and answer having
`expired, and the said Defendant(s) not having appeared and answered.
`
`CHARD A. KLASS, ESQ.
`
`2g
`
`NOW, On Motion of Richard A. Klass, 16 Court St., 28"I Floor, Brooklyn, NY 11241 attorney for
`Plaintiff, it is,
`ADJUDGED that EMPIRE MERCHANTS LLC Plaintiff, with offices located at 16 Bridgewatcr
`
`‘ Street, Brooklyn, NY 11222, recover of:
`®1OAK HA%PTONS2 LLC, Defendant, residing at 125 Tuckahoe Lane, Southampton, New York
`_1_L__968, an _ EBYOU GUETANEH, Defendant, residing at 213 West 136th Street New York, New
`York 100
`, the sum of $71,454.32 with interest of $5536.58, making a total of $77,990.90, together
`with $490 costs and disbursements, amounting toa total sum of $78 480.90, and that Plaintiff have
`WW”
`execution therefor.
`.
`-,
`
`‘6'00103‘0
`
`,.
`\
`
`hfifigg 3:,
`CL RK
`~
`@ \va/Qv
`[b 1 Of 1
`
`8 of 63
`
`(Smashing
`NANCYT. SUNSHINE
`Clerk
`
`

`

`FILED: KINGS COUNTY CLERK 03/07/2018
`Y CLERK 03
`FILED: KINGS COUNT
`@2018
`
`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
`
`
`
`INDEX NO .
`5
`10280/2016
`INDEX NO. 510280/2016
`
`
`
`
`
`3F:
`03/15/2018
`RECEIVED NYSCEF: 03/15/2018
`4.1V:
`.D \IYSCI
`l
`l
`0
`I
`
`Index No. .' 510280/ 16
`
`SUPREME COURT OF THE STATE OF NEW YORK
`_w_______
`
`EMPIRE MERCHANTS, LLC.
`
`Plaintiff;
`
`-against—
`
`IOAK HAMPTONS, LLC and
`
`NEBYOU GUETANEH,
`
`Defendants.
`
`
`
`ORDER TO SHOW CAUSE, AFFIRMATION IN SUPPORT AND
`AFFIDAVIT IN SUPPORT
`
`
`
`CZ IK LAW PLLC
`
`Attorneys for Defendant
`401 Greenwich Street
`
`New York, New York 10013
`(212) 413-4462
`
`
`
`Dated: December 10, 2017
`
`90f 63
`9 of 63
`
`

`

`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED. KINGS COUNTY CLERK 03m
`NYSCEE Doc. NO. 27
`r
`.
`NYSCEF DOC. NO. 27
`
`INDEX NO. 510280/2016
`ENDEX NO~ 510280/2016
`
`
`
`
`
`R«C«IV«D VYSCEF: 03/15/2018
`RECEIVED NYSCEF: 03/15/2018
`
`r 'SUPREME COURT OF THE STATE OF NEW YORK
`‘
`- COUNTY OF KINGS
`EMPIRE MERCHANTS, LLC.
`
`Plaintiff,
`
`{
`
`<5_-
`
`,.
`
`".
`Ky}
`
`-against—
`
`IOAK HAMPTONS, LLC and
`NEBYOU GUETANEH,
`
`Index N0.: 510280/16
`
`AFFIRMATION OF NOTICE
`
`Defendants.
`
`
`
`rSteven J. Czik, Esq, an attorney duly admitted to practice before the Courts of this State, hereby
`
`affirms the truth of the following, under penalties of perjury:
`/’fi~7‘“
`
`1.
`
`I am a member of CZIK LAW PLLC, attorneys for Defendant NEBYOU GUETANEH.
`
`2. At approximately 2:56 PM on December 10, 2017, I sent, via electronic mail to
`
`richklass@courtstreetlaw.com and at approximately 3:40 via facsimile to (718) 643-9788, the Notification
`
`Letter and Order to Show Cause annexed hereto to Plaintiff s counsel Richard a Klass, Esq. which seeks a
`
`stay of all judgment enforcement proceedings, thereby notifying Plaintiff that Defendant, through his
`
`attorneys, will appear in the Supreme Court of the State of New York, County of Kings, located at 360
`
`Adams Street, Brooklyn, New York, at the Ex Parte Clerk’s office in Room 295 on Monday, December 11,
`
`2017 at between 1130.AM. - 12P. M. to submit the instant Order to Show Cause and that soon thereafter,
`/.............m,
`we expect to pick up the Order to Show Cause for submission to Judge Walker at 360 Adams Street, Part
`
`90, Room 424. During our last conversation Mr. KlaSs clearly indicated to me that he had no objection and
`1
`
`would not be submitting any Opposition to Mr. Guetaneh’s request for a stay and that neither he, nor any
`
`counsel would appear on Plaintif‘s behalf.
`
`Dated: New York, New York
`
`December 10, 2017 /
`
`€%<%é%;”........
`
`Steven J. Czik, Esq.
`Czik Law PLLC
`
`Attorneys for Defendants
`401 Greenwich Street
`
`New York, New York 10013
`Tel.: 212.412.4462
`
`10 Of 63
`10 of 63
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`

`

`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018
`
`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
`.
`.
`
`'
`
`' CZIK LAW me
`401 Gree‘nwich Street
`New York, New York 10013
`T: (212) 413-4462 0 F: (212) 226-7555 0 E: info@cziklaw.com
`
`INDEX NO. 510280/2016
`'
`INDEX NO~ “0280/2016
`
`
`
`
`
`RaCaIVfiD VYSCEF: 03/15/2018
`RECEIVED NYSCEF: 03/15/2018
`
`
`
`Direct Email: Steven@cziklaw.com
`
`December 10, 2017
`
`Via Email: richklass
`
`
`Richard Klass, Esq.
`16 Court Street, 28th Floor
`Brooklyn, New York 11241
`
`courtstreetlaw.c0m and Facsimile: 718 643-9788
`
`
`Re:
`
`Empire Merchants v. Nebyou Guetaneh
`Index No.: 510280/16
`
`Our File Number: 2K13Sl 121C
`
`Dear Mr. Klass,
`
`Please be advised that at between 11:30AM. - 12PM on Monday, December 10,
`2017, a member of our firm will be appearing at the New York Supreme Court, Kings
`County, 360 Adams Street, Brooklyn, New York, at the Ex Parte clerk’s office in Room
`295,
`to present the attached Order to Show Cause seeking to vacate judgment and
`containing a request for a stay ofjudgment enforcement proceedings in the above captioned
`action. Shortly thereafter, we expect to pick up the Order to submit to Judge Walker for
`signature in Part 90, Room 424.
`
`SJC: hfs
`2K1$1121C.L2
`
`Very truly yours,
`
`
`0 ”cs/{,3
`Steven J. Czik
`
`11 of 63
`11 of 63
`
`

`

`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018
`
`NYSCEF DOC. NO. 27
`.
`.
`NYSCEF DOC. NO. 27
`r
`‘0
`it
`
`INDEX NO. 510280/2016
`INDEX NO~ “0280/2016
`
`
`
`
`
`RaCaIVfiD VYSCEF: 03/15/2018
`RECEIVED NYSCEF: 03/15/2018
`
`
`
`At Part 90, Room 424 of the Supreme
`Court of the State of New York, held
`in and for the County of Kings at 360
`Adams Street, Brooklyn, New York,
`on the 11th day of December 2017.
`
`Index No.: 510280/16
`
`EMERGENCY
`
`ORDER TO SHOW CAUSE
`
`SUPREME COURT OF THE STATE OF NEW YORK
` COUNTY OF KINGS
`
`EMPIRE MERCHANTS, LLC.
`
`Plaintiffi
`
`-against-
`
`IOAK HAMPTONS, LLC and
`NEBYOU GUETANEH,
`
`Defendants.
`
`
`Upon the annexed Affirmation of STEVEN J. CZIK, ESQ., dated December 10, 2017, and
`
`the Affidavit of NEBYOU GUETANEH, sworn to December 10, 2017, upon all the facts,
`
`pleadings and proceedings heretofore had herein,
`
`LET the Plaintiff or its attorney(s) show cause before one of the Judges of this Court at the
`
`Part 90, Room 277 at the Supreme Court of the State of New York, County of Kings, located at
`
`360 Adams Street, County of Kings, Brooklyn, New York, on the 5th day of January, 2018 at 9:30
`
`A.M., in the forenoon of that day, or as soon thereafter as counsel may be heard for a hearing on
`
`WHY an Order should not be entered herein: a) Vacating the Default Judgment entered in
`
`this action against Defendant NEBYOU GUETANEH on March 10, 2017 herein; b) Restoring this
`
`action to the Court’s calendar and for such other and further relief as this Court deems just and
`
`proper.
`
`SUFFICIENT CAUSE THEREFORE APPEARING, IT IS HEREBY
`
`12 of 63
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`

`

`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018
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`NYSCEF DOC. NO. 27
`.
`.
`NYSCEF DOC. NO. 27
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`‘I
`C
`v
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`INDEX NO. 510280/2016
`INDEX NO~ “0280/2016
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`
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`R«C«Iv«n VYSCEF: 03/15/2018
`RECEIVED NYSCEF: 03/15/2018
`
`
`
`ORDERED, that pending the hearing of this motion, any and all proceedings on the part
`
`of the Plaintiff and any and all actions of any Marshall or Sheriff of the City of New York for the
`
`enforcement of said judgment,
`
`BE STAYED; and
`
`Let service of a copy of this Order together with the Affidavit upon which it is predicated
`
`Via First Class Mail and Electronic Mail to Richard Klass, Esq., Attorney for Plaintiff, on or before
`
`December 18, 2017, shall be deemed good and sufficient.
`
`Dated: December 1 1, 2017
`
`JUDGE OF THE SUPREME COURT
`
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`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018
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`NYSCEF DOC. NO. 27
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`NYSCEF DOC. NO. 27
`b
`i
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`v
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`INDEX NO. 510280/2016
`INDEX NO~ “0280/2016
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`RaCaIVaD VYSCEF: 03/15/2018
`RECEIVED NYSCEF: 03/15/2018
`
`
`
`- Steven Czik
`
`a F
`
`rom:
`
`Steven Czik
`
`Sent:
`To:
`
`Subject:
`Attachments:
`
`Sunday, December 10, 2017 3:29 PM
`'Richard Klass'
`
`RE: 510280/2016 (Empire Merchants, LLC - v. — 10ak Hamptons, LLC et al)
`Letter of Notice2.pdf; OSC.pdf
`
`Letter of Notice attached here as well,
`
`Best regards,
`
`Steven J. Czik
`
`CZIK LAW PLLC
`401 Greenwich Street
`New York New York 10013
`
`T: 212.413.4462 | F: 212.226.7555
`steven@cziklaw.com
`
`Real Estate | Landlord—Tenant | Contracts | NY Nightlife Law | Copyrights &Trademarks
`| Internet 85 Media l Entertainment | Insurance | All Start-Ups
`
`ATTENTION: This e-mail, and any attachments to it, may contain PRIVILEGED AND CONFIDENTIAL INFORMATION intended
`only for the use of the addressee. If you are not the intended recipient, or an agent or employee responsible for delivering this e-mail to
`the intended recipient, you are hereby notified that any dissemination or copying of this e-mail, or the information contained therein, is
`strictly prohibited and you must not review, transmit, convert to hard copy, copy, use or disseminate this e-mail or any attachments to
`it. If you have received this e-mail in error, please immediately notify us by return e—mail or by telephone at 212.413.4462 and delete
`this e-mail from your computer.
`DISCLAIMER: The transmission or receipt of this e-mail, and any attachments, in and of itself, does not, and is not intended to, create
`an attorney-client relationship with Czik Law PLLC or any of its attorneys. The sending of an e-mail to Czik Law PLLC or any of its
`attorneys does not create an attomey-client relationship. In the event and to the extent that an addressee named herein is not an
`existing client of Czik Law PLLC please note that the contents of this e-mail and any attachments are not legal advice and should not
`be used as such.
`
`NOTICEzlf this e-mail contains a forwarded message or is a reply to a prior message, some or all of the contents of this message or
`any attachments may not have been produced by Czik Law PLLC. Although Czik Law PLLC attempts to sweep e-mail and
`attachments for viruses, it does not guarantee that either are Virus-free and accepts no liability for any damage sustained as a result of
`Viruses. This notice is automatically appended to each e-mail message leaving Czik Law PLLC.
`
`From: Steven Czik
`
`Sent: Sunday, December 10, 2017 2:56 PM
`To: 'Richard Klass' <richklass@courtstreetlaw.com>
`
`Subject: RE: 510280/2016 (Empire Merchants, LLC - v. - 10ak Hamptons, LLC et al)
`
`Need to refile the attached Emergency OSC seeking a stay tomorrow due to an error in my papers Friday. Have an
`appearance in NY County so will be arriving to ExParte Clerk about 11:30am-12pm. Just required to give you notice
`again. Please confirm if you will be appearing to oppose our application.
`
`Best regards,
`
`Steven J. Czik
`
`CZIK LAW PLLC
`401 Greenwich Street
`
`14 of 63
`14 of 63
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`

`

`FILED: KINGS COUNTY CLERK 03/07/2018
`—EH-
`
`NYSCEF DOC. NO. 27
`NYSCEF SGFjCF RESUIT Repor
`. MFP
`.
`
`.
`
`
`EX NO. 510280/2016
`INDEX NO. 510280/2016
`
`IND-
`
`
`RECEIVED NYSCEF: 03/15/2018
`wean/{g KgfitERVEsa/zom
`.
`.
`.
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`03]
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`12/10/2017 16:36
`,01
`
`Job No.: 111834
`
`Tota1 Time: 0°01'09"
`
`Page: 003
`
`Complete
`
`Document:
`
`doc11183420171210163122
`
`
`
`
`
`
`
`CZ IK LAW PLLC
`401 Greenwich Street
`New York, New York 10013
`T: (212) 413—4462 0 F: (212) 226-7555 0 E: inf0@c2.iklaw.oom
`
`Direct Email: Steven@cziklaw.com
`
`December 10, 2017
`
`courtstreetlaw.com and Facsimile: 718 643-9788
`
`
`
`Via Email: richklass
`Richard Klass, Esq.
`16 Court Street, 28‘“ Floor
`Brooklyn, New York 11241
`
`Re:
`
`Empire Merchants v. Nebyou Guetaneh
`Index No.: 510280/16
`
`Our File Number: 2K1351121C
`
`Dear Mr. Klass,
`
`
`
`Please be advised that at between 11:30A.Mfi- 12PM on Monday, December 10,
`2017, a member of our finn will be appearing at the New York Supreme Court, Kings
`
`(hung: @150 Adam‘sgttpe’r Brnokhm MID-mVfirJr mmpwmamamnnm
`
`Resolution/ECM
`ResuTt
`Type
`Times
`Date and Time Destination
`12/10/17 16:32 17186439788
`0°01'09" FAX
`0K
`200x100 Norma1/On
`
`No.
`
`001
`
`————__—.._______________—
`
`1
`15 of 63
`15 of 63
`
`[ N431X02077 ]
`
`

`

`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018
`
`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
`I
`3'
`
`510280/2016
`INDEX NO. 510280/2016
`INDEX NO.
`
`
`
`
`
`RaCaIVaD VYSCEF: 03/15/2018
`RECEIVED NYSCEF: 03/15/2018
`
`» SUPREME COURT:*»STATE~OF NEW YORK
`’ COUNTY OF KINGS
`
`-
`
`'
`
`-
`
`___________‘-_-_____-----——-_; _________________X
`
`EMPIRE MERCHANTS, LLC,
`
`Index No. 510280/2016
`
`- against -
`
`Plaintiff,
`
`IOAK HAMPTONS, LLC and
`NEBYOU GUETANEH,
`Defendants.
`
`AFFIRMATION IN
`OPPOSITION
`
`X \X
`Q
`\ \
`\’
`
`----------------------------------------------X
`
`a,
`CD
`RICHARD KLASS, ESQ., an attorney duly admitted to practice in the courts
`:1
`:V iof the State of New York, affirms the following to be true under the penalties of
`’J
`1.4.)
`"7“”
`7"?
`peljury:
`
`
`
`;‘
`
`1.
`
`That your affirmant is the attorney for Plaintiff, and as such, is fully
`
`familiar with the facts and circumstances of this case.
`
`2.
`
`This affirrnation is made in opposition to the Order to Show Cause of
`
`Defendant Nebyou Guetaneh, to vacate the Judgment entered by this Court on March
`
`10, 2017, in the amount of $78,480.90.
`
`BACKGROUND OF THE JUDGMENT
`
`3.
`
`This action was commenced by the filing of the Summons dated June
`
`17, 2016. Service of the Summons and Complaint was effectuated upon Defendants
`
`as follows: as to IOak Hamptons LLC, via service upon the NYS Secretary of State;
`
`and as to Nebyou Guetaneh, via service upon a co—tenant at the residential address.
`
`The residential address for Mr. Guetaneh was verified through his NYS Department
`
`of Motor Vehicles license. Copies of the Summons and Complaint, with the Affidavit
`
`of Service and DMV license verification are annexed hereto as Exhibit A.
`
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`

`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018
`
`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
`
`INDEX NO. 510280/2016
`INDEX NO~ 510280/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 03/15/2018
`RECEIVED NYSCEF: 03/15/2018
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`
`
`«Qounsel for Defendant Nebyou Guetaneh contacted-«your affirmant about " a
`~ 4.-
`settling the debt and entered in a stipulation extending his time to answer up to
`
`August 25, 2016. A copy of the stipulation with Jason Barth, Esq., is annexed hereto
`
`as Exhibit B.
`
`5.
`
`After Defendants defaulted in answering or appearing in this action,
`
`Plaintiff submitted for entry ofjudgment. Copies of the Judgment, Plaintiff’s
`
`Affidavit, Attorney’s Affirmation, and nonmilitary service affidavit are annexed
`
`hereto as Exhibit C.
`
`6.
`
`Defendant Nebyou Guetaneh is liable to Plaintiff inasmuch as he
`
`executed a personal guaranty in favor of Plaintiff on the account of IOak Hamptons,
`
`LLC. A copy of the payment agreement & personal guaranty (S SN redacted) is
`
`annexed hereto as Exhibit D.
`
`7.
`
`The personal guaranty specifically states that: “I hereby jointly and
`
`severally unconditionally guarantee the payment of all sums that become due to
`
`either Empire, Peerless and/or Charmer by the Licensee [lOak Hamptons LLC].”
`
`8.
`
`The personal guaranty further specifically states that: “I shall remain
`
`liable and continue to guarantee the debts of the Licensee [lOak Hamptons LLC]
`
`until five days after I deliver written notice by certified mail or overnight carrier to
`the Distributor [Empire Merchants LLC] that I have severed my relationship with the
`
`Licensee and no longer wish to guaranty its debts.”
`
`9.
`
`In his Affidavit dated December 10, 2017, Defendant does not allege
`
`that he provided any notice to Plaintiff of his retraction of his personal guaranty.
`
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`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018
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`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
`I
`.-
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`INDEX NO. 510280/2016
`INDEX NO~ 510280/2016
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`RaCaIVaD VYSCEF: 03/15/2018
`RECEIVED NYSCEF: 03/15/2018
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`‘
`
`-
`
`,
`
`10.. Further, in Defendant’s-Affidavit, he states that the amounts claimed are '
`
`‘
`
`,
`
`~
`
`-
`
`incorrect; yet, he fails to explain how or why. This is the case despite your affirmant
`
`having sent to Defendant’s counsel, at his request, copies of the statement and invoices
`
`for his review prior to the instant motion. See, Exhibit E.
`
`11. As more fully illustrated in the annexed Memorandum of Law, Defendant
`
`has not asserted either an excusable default or meritorious defense to this action.
`
`" WWHEREFORE, it is respectfully requestedthat this Court deny Defendant’s
`
`Order to Show Cause, and for such other and further relief as this Court deems just
`
`and proper.
`
`Affirmed: Brooklyn, New York
`January 9, 2018
`
`
`
`RICHARD A. KLASS, ESQ.
`
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`

`

`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018
`
`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
`V
`
`INDEX NO. 510280/2016
`INDEX NO~ 510280/2016
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`
`
`
`
`RaCaIVaD VYSCEF: 03/15/2018
`RECEIVED NYSCEF: 03/15/2018
`
`
`
`SUPREME COURT: STATE-OF NEW YORK
`
`COUNTY OF KINGS
`
`_____-_' _______________________________________X
`
`EMPIRE MERCHANTS, LLC,
`
`Index No. 510280/2016
`
`- against -
`
`Plaintiff,
`
`IOAK HAMPTONS, LLC and
`NEBYOU GUETANEH,
`
`______________________________________________X
`
`Defendants.
`
`ARGUMENT
`
`MEMORANDUM
`OF LAW
`
`This Memorandum of Law is submitted by Plaintiff in opposition of the instant
`
`Order to Show Cause of Defendant Nebyou Guetaneh to vacate the Judgment of this
`
`Court. For the reasons set forth below, Defendant’s motion should be denied and the
`
`Judgment entered herein should remain valid and enforceable.
`
`
`POINT I
`
`DEFENDANT HAS UTTERLY FAILED TO ESTABLISH
`
`EXCUSABLE DEFAULT AND MERITORIOUS DEFENSE
`
`It is axiomatic that, in order to vacate its default, a defendant is required to
`
`demonstrate a reasonable excuse for its failure to appear or answer in an action, as
`
`well as the existence of a meritorious defense to the action. See, CPLR 5015(a); QRT
`
`Associates, Inc. v. Mouzouris, 40 AD3d 326 [1 Dept. 2007]; Weekes v. Karayianakis,
`
`304 AD2d 561; Capitol Distributors Corp. v Church Ave. Wine & Liq., Inc., 204
`
`19 of 63
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`

`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018 I
`
`NYSCI
`3F DOC. NO. 27
`NYSCEF DOC. NO. 27
`!
`
`INDEX NO. 510280/2016
`INDEX NO' 510280/2016
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`
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`R«.C«.IV«.D \IYSCEF: 03/15/2018
`RECEIVED NYSCEF: 03/15/2018
`
`AD2d 588’, 589- [2 Dept. 1994] (“To vacate a default, the movant- must‘establish that ,
`
`the default was excusable and that there is a good and meritorious defense to the
`
`action”).
`
`In support of his claim of a reasonable excuse for failing to appear or answer
`
`the action, the defendant seems to assert that he did not receive notice of the action.
`
`However, serVice of the Summons and Complaint in this action was proper, and
`
`Defendant’s counsel contacted your affirmant and appeared on his behalf.
`
`The Second Department held, in HSBC Bank USA, Nat. Ass ’n v
`
`Wider, 101 AD3d 683 [2 Dept. 2012], that, “In order to vacate his default in
`
`answering the complaint, the appellant (hereinafter the homeowner) was
`
`required to demonstrate a reasonable excuse for his failure to serve an
`
`answer and a potentially meritorious defense (see CPLR 5015[a]; Ateres
`
`Hasofrim, Inc. v. Kralik, 78 A.D.3d 1091, 1091, 911 N.Y.S.2d 648; Bank of
`
`NY. v. Lagakos, 27 A.D.3d 678, 678, 810 N.Y.S.2d 923). While the
`
`Supreme Court has the discretion to accept law office failure as a reasonable
`
`excuse, the excuse must be supported by detailed allegations of fact
`
`explaining the law office failure (see Cantor v. Flores, 94 A.D.3d 936, 936—
`
`937, 943 N.Y.S.2d 138).” Here, Defendant does not offer any explanation
`
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`FILED: KINGS COUNTY CLERK 03/07/2018
`FILED: KINGS COUNTY CLERK 03m2018
`
`NYSCI
`3F DOC. NO. 27
`NYSCEF DOC. NO. 27
`I
`)
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`INDEX NO. 510280/2016
`INDEX NO~ 510280/2016
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`
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`R«.C«.IV«.D \IYSCEF: 03/15/2018
`RECEIVED NYSCEF: 03/15/2018
`
`
`
`~ for his attorney’s failure to timely answer the complaint despiteflhaving'
`
`stipulated to answer by August 25, 2016.
`
`While CPLR 5015(a) vests this Court with discretionary power to relieve a
`
`party of his default, where there is a lack of good faith or the moving party’s claim is
`
`of dubious merit, this Court’s direction should not be exercised. See, e.g. Greenwich
`
`Savings Bank v. JAJ Carpet Mart, Inc., 126 AD2d 451 [1 Dept. 1987].
`
`In order to demonstrate a meritorious defense, a party must submit an affidavit
`
`from an individual with knowledge of the facts (see, e.g., Mitchell v. Mid—Hudson
`
`Medical Associates, 213 A.D.2d 932, 624 N.Y.S.2d 70; Hunter v. Enquirer/Star,
`
`Inc., 210 A.D.2d 32, 33, 619 N.Y.S.2d 268; Beverage Distributors ofNevada v.
`
`Schenley Industries, 155 A.D.2d 356, 547 N.Y.S.2d 323). The affidavit submitted
`
`from such individual must make sufficient factual allegations; it must do more than
`
`merely make conclusory allegations or “vague assertion[s]” (National Recovery
`
`Systems v. Weiss, 226 A.D.2d 289, 290, 641 N.Y.S.2d 296; Halali v. Gabbay,
`
`supra ). Peacock v Kalikow, 239 AD2d 188, 190 [lst Dept 1997].
`
`Concerning the