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`INDEX NO. 615602/2021
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NASSAU
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`In the Matter of the Application of
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`MICHAEL DIACK and PIPE DOCTOR PLUMBING,
`HEATING, AND AIR CONDITIONING, INC.
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`Petitioners,
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`For a Judgment Pursuant to Article 75 of the Civil
`Practice Laws and Rules
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`-against-
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` NAVIEN, INC.,
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`Respondent
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`Index No. _______________
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`VERIFIED PETITION
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`Petitioner Michael Diack (“Diack”) and Pipe Doctor Plumbing, Heating and Air
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`Conditioning, Inc. (“Pipe Doctor;” together with Diack, “Petitioners”), by and through their
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`undersigned counsel, respectfully submit the following Verified Petition pursuant to CPLR
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`7503(b) and other relevant provisions of the CPLR as follows:
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`FACTUAL BACKGROUND
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`A.
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`Parties
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`1.
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`Petitioner Diack is a Nassau County resident who does no business in the State of
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`California.
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`2.
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`He owns Pipe Doctor, a New York corporation incorporated in Nassau County
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`that provides plumbing services in New York. Pipe Doctor does no business in the State of
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`California. He started the business in Valley Stream, New York in 2009, which provides
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`plumbing services in Nassau County.
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`3.
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`Respondent Navien, Inc. (“Navien” or “Respondent”) is a California corporation
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`that produces and supplies tankless water heaters and boilers, including in the State of New York
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`through companies such as Pipe Doctor.
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`4.
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`Navien operates an installation, maintenance, and repair service network where
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`independent contractors may apply to become members and serve as Navien Service Specialists
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`installing and repairing Navien products in specific locales.
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`B.
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`Petitioner Pipe Doctor Becomes a Navien Service Specialist in 2014
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`5.
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`In or about 2014, Pipe Doctor applied to be listed as a “Navien Service Specialist”
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`in New York.
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`6.
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`A “Navien Service Specialist” is the term used by Navien for designated Navien
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`installation and repair providers in specified areas, in this case for Nassau and parts of Queens.
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`C.
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`There is No Arbitration Provision in the Navien Service Specialist Application
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`7.
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`Mr. Diack did not apply in my individual capacity to be a “Navian Service
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`Specialist” and did not submit any application requiring either party to sign or assent to
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`arbitration. Navien notably does not contend that there is any arbitration agreement in its
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`application to become a “Navien Service Specialist.”
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`8.
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`In 2019, Pipe Doctor renewed its application to be listed as a “Navien Service
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`Specialist,” and the renewal application form likewise did not contain or require either party to
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`sign an arbitration agreement. See Ex. A, Demand For Arbitration, Ex E, Renewal Application.
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`D.
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`In 2017, Pipe Doctor Enrolled in Navien’s Rewards Program
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`9.
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`In 2017, Pipe Doctor enrolled in the “Navien Rewards Program.” Under this
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`program, Navien provides reward points each time an installation contractor installs a Navien
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`product. Petitioners did not sign or agree to any arbitration agreement in connection with this
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`application.
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`E.
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`Petitioners Discover Serious Defects in Navien Products
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`10.
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`In or about early 2021, Mr. Diack discovered internal leakage of carbon monoxide
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`and combustion gasses inside the cabinet of multiple models of Navien systems even when
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`properly installed. In early 2021, Pipe Doctor IP Holdings Inc., which owns a YouTube channel
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`and is affiliated with Mr. Diack began alerting the public regarding these defects on its YouTube
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`Channel. All these videos were made and posted in the State of New York.
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`11.
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`Specifically, Mr. Diack saw an alarming failure rate in their products, creating
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`hazardous and unsafe conditions. The primary component called a “heat exchanger” started to
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`internally leak exhaust and combustion gases. Generally, the failure was diagnosed by Navien as
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`an installation defect or lack of proper maintenance, but in almost all cases Navien shipped out
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`replacement parts at no charge to the customer. In some cases, Navien approved the entire unit to
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`be replaced.
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`12.
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`The real reason for these failures is that the screws that secure the heat exchanged
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`become loose and a gasket called the “exhaust packing ring” leaks gasses. The failure rate is very
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`high. 7 out of 10 service calls for Navien have the same exact failure: leaking exhaust gasses,
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`even in perfect installations and with the systems maintained annually.
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`13.
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`Navien has a history of product defects. For example, in 2018, Navien recalled
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`certain of its units because of excessive amounts of carbon monoxide leaking “posing a risk of
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`carbon monoxide poisoning to consumers.” See United States Consumer Product Safety
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`Commission, Navien Recalls Tankless Water Heaters and Boilers Due to Risk of Carbon
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`Monoxide Poisoning, available at: https://www.cpsc.gov/Recalls/2019/Navien-Recalls-Tankless-
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`Water-Heaters-and-Boilers-Due-to-Risk-of-Carbon-Monoxide-Poisoning
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`14.
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`Navien has also been sued for fatalities caused by carbon monoxide leaks. See
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`e.g., 10WBNS, Lawsuit Filed in Connection to Genoa Township Deaths Caused by Carbon
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`Monoxide from Water Heater, Sep. 8, 2020, available at:
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`https://www.10tv.com/article/news/local/lawsuit-filed-in-connection-to-genoa-township-deaths-
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`caused-by-carbon-monoxide-from-water-heater/530-d345bd42-cd57-48d1-969b-2c1771171be9
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`F.
`Respondent Commences an Unlawful Arbitration to Intimidate Petitioners and
`Suppress their Speech
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`15.
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`On or about July 16, 2021, Respondent commenced an arbitration against
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`Petitioner before JAMS. See Ex. A, Demand for Arbitration.
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`16.
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`In its arbitration demand, Respondent claimed that the alleged YouTube videos
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`were false and defamatory, and that upon information and belief, “starting in early 2021, one or
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`more persons began leaving door tags on the front doors of certain residences located in
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`Brooklyn, New York” that provided links to certain of the YouTube videos. Ex. A, Arbitration
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`Demand, ¶¶ 18-36. Respondent also alleged that its logo and trademarks were misused because
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`the YouTube videos contained images of its logos. Id., ¶¶ 27-28.
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`17.
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`The arbitration demand was served on both Mr. Diack and Pipe Doctor by email
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`and Fedex and did not contain any 20 day notice to seek a stay.
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`G.
`In Commencing An Arbitration, Respondent Provides No Signed Arbitration
`Agreement
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`18.
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`Respondent submitted no signed arbitration agreement in its arbitration demand
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`and has since failed to provide any signed arbitration agreement despite Petitioners’ repeated
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`demands.
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`19.
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`Instead, in its Arbitration Demand Navien claims that its “Navien Rewards
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`Program Terms and Conditions” contain an arbitration provision, but Navien only provided its
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`Terms and Conditions from 2021. Ex. A, Demand for Arbitration, Ex. C, Navien Rewards Terms
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`and Conditions. These attached Terms and Conditions are dated in 2021 and copyrighted as of
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`2021.
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`20.
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`Respondent also submitted its online form application for the “Navien Rewards
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`Program” from 2021, not 2017. Ex. A, Demand for Arbitration, Ex. B., Navien Rewards 2021
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`Application. Respondent submitted no evidence that Petitioners signed or accessed any online
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`application ever, let alone the nature of any terms in 2017.
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`21.
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`The single signed document that Respondent submitted was a 2019 Navien
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`Service Specialist Application on behalf of Petitioner Pipe Doctor that contains no arbitration
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`provision. See Ex. A, Arbitration Demand, Ex. E, Navien Service Specialist Application.
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`Only Pipe Doctor Was a Member of the Rewards Program
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`H.
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`22.
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`Navien’s own submission shows that only Pipe Doctor was a member of its
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`Navien Reward Program, not Mr. Diack, and thus only Pipe Doctor would be subject to any
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`arbitration agreement. See Ex. A, Demand for Arbitration, Ex. F, Rewards Program Account
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`Detail (showing that Pipe Doctor received Navien rewards).
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`THE COURT SHOULD STAY THE ARBITRATION AND ENJOIN RESPONDENT
`FROM PROCEEDING WITH THE ARBITRATION
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`CPLR 7503(b) provides in relevant part that “a party who has not participated in
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`23.
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`the arbitration and who has not made or been served with an application to compel arbitration,
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`may apply to stay arbitration on the ground that a valid agreement was not made . . .
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`24.
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`“[W]here the application for a stay is made on the ground that no agreement to
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`arbitrate exists, it may be entertained notwithstanding the fact that the stay was sought after the
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`20-day period had elapsed.” Matarasso v Cont. Cas. Co., 56 N.Y.2d 264, 267 (1982). See also
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`id. (“[W]e cannot impute to the Legislature an intent to bind persons to the arbitral process by
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`their mere inaction for 20 days where no agreement to arbitrate has ever been made.”); Matter of
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`Pictet Funds (Europe) S.A. v Emerging Mgrs. Group, L.P., 147 AD3d 669, 670 (1st Dep’t 2017)
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`(“Because there was no agreement to arbitrate EMG’s claim, the CPLR 7503(c) deadline is not a
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`bar to Pictet’s petition for a stay.”)
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`25.
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`Furthermore, and in any event, Respondent’s demand for arbitration did not
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`contain a 20-day notice under CPLR 7503(c). Accordingly, for this additional reason Petitioner
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`is not time-limited in seeking a stay. Cooper v Bruckner, 21 A.D.3d 758, 760 (1st Dep’t 2005)
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`(omission of 20 day notice “rendered the demand ineffective to preclude [][Petitioners] from
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`raising threshold issues after the 20-day limit.”) (citing Matter of Blamowski, 91 N.Y.2d 190,
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`195 (1997)). Nor was the demand for arbitration “served in the same manner as a summons or by
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`registered or certified mail, return receipt requested[,]” CPLR 7503(c), but only by email and
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`Fedex. Diack Affirm., ¶ 18. State Farm Mut. Auto. Ins. Co. v Szwec, 36 AD2d 863, 863-864 (2d
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`Dep’t 1971)(demand “was served by regular mail, in contravention of CPLR 7503. In view of
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`this fact, the demand for arbitration dated April 6, 1970 could not serve to preclude petitioner for
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`having failed to move for a stay within 10 days after receipt of the demand.”) (citations omitted);
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`Govt. Empls. Ins. Co. v Tech. Ins. Co., Inc., 2015 NY Slip Op 31851[U], *3 (N.Y. Co. 2015) (“In
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`the present case, respondent failed to comply with the service requirements of CPLR § 7503(c)
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`and, as such, petitioner is not bound by the 20-day time limit.”).
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`26.
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`Petitioners have not participated in the arbitration, attended any of the arbitration
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`hearings, participated in the selection of an arbitrator, or paid any fees. Blamowski, 91 N.Y.2d at
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`195 (“It is uncontroverted that Munson did not attend any of the arbitration hearings, did not
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`participate in the selection of an arbitrator, and explicitly expressed its refusal to pay any part of
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`the fees associated with the arbitration. These acts and omissions adequately evidence Munson's
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`nonparticipation in the arbitration.”).
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`27.
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`New York Courts have the power to stay out-of-state court proceedings, let alone
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`arbitrations held by national arbitration organizations such as JAMS. PromoFone, Inc. v PCC
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`Mgt., 224 A.D.2d 259, 260 (1st Dep’t 1996) (“The IAS Court also properly enjoined the
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`California litigation pending outcome of the New York arbitration.”). Federal courts likewise
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`“routinely enjoin out-of-state arbitrations.” Goldman, Sachs & Co. v Golden Empire Schs. Fin.
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`Auth., 764 F.3d 210, 214 (2d Cir 2014).
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`28.
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` With respect to a preliminary injunction, “the applicant must prove three things,
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`namely: (1) the likelihood of ultimate success on the merits, (2) irreparable injury absent the
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`granting of the preliminary injunction, and (3) that the equities are balanced in his favor.”
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`McLaughlin, Piven, Vogel, Inc. v W. J. Nolan & Co., 114 A.D.2d 165, 172-173 (2d Dep’t 1986)
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`(citations omitted). “As to the likelihood of success on the merits, a prima facie showing of a
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`right to relief is sufficient; actual proof of the case should be left to further court proceedings . .
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`.” McLaughlin., 114 A.D.2d at 172-173 (citing Gambar Enters., Inc. v Kelly Servs., Inc., 69
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`A.D.2d 297, 306 (4th Dep’t 1979); See also Schlosser v United Presbyt. Home, Inc., 56 A.D.2d
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`615, 615 (2d Dep’t 1977).
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`29.
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`“The second element of proof required for a preliminary injunction is proof that
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`irreparable injury will occur if the relief is denied. Irreparable injury, for purposes of equity, has
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`been held to mean any injury for which money damages are insufficient.” McLaughlin., 114
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`A.D.2d at 174 (citation omitted).
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`30.
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`Finally, “[i]t must be shown that the irreparable injury to be sustained is more
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`burdensome [to the plaintiff] than the harm caused to defendant through imposition of the
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`injunction.” Id. (quoting Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 70 AD2d
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`1021, 1022 (3d Dep’t 1979).
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`Respondent Cannot Be Forced to Arbitrate Without an Agreement and the Burden to
`Show the Existence of An Agreement is on Respondent
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`31.
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`“Arbitration is essentially a creature of contract, a contract in which the parties
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`themselves charter a private tribunal for the resolution of their disputes.” Wolf v Wahba, 164
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`A.D.3d 1405, 1407 (2d Dep’t 2018). Under both New York and federal law, a party will not be
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`forced to arbitration if there is no arbitration agreement. Scotti, 63 Misc 3d at 849 (“It is well
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`settled that ‘[a] party to an agreement may not be compelled to arbitrate its dispute with another
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`unless the evidence establishes the parties' clear, explicit and unequivocal agreement to
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`arbitrate.’”) (quoting God’s Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6
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`N.Y.3d 371, 374 (2006)); Opals on Ice Lingerie, Designs by Bernadette, Inc. v Bodylines Inc.,
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`320 F.3d 362, 369 (2d Cir. 2003) (“[T]he law still requires that parties actually agree to
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`arbitration before it will order them to arbitrate a dispute.”).
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`32.
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`Under New York and federal law, it is the Court itself that must determine
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`whether an arbitration agreement actually exists. Ferrarella v Godt, 131 A.D.3d 563, 565 (2d
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`Dep’t 2015) (“The threshold issue of whether there is a valid agreement to arbitrate is for
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`the courts.”); Zachman v Hudson, 2021 US Dist LEXIS 53322, at *9-10 (S.D.N.Y. Mar. 22,
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`2021) (“Because plaintiff directly challenges the very existence of an agreement to arbitrate, the
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`Court—not an arbitrator—must decide whether a valid arbitration agreement exists.”) (quoting
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`Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 530 (2019).
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`33.
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`Under both New York and federal law, the party asserting the existence of the
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`agreement bears the burden of proving its existence. Dreyfuss v eTelecare Global Solutions-US,
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`Inc., 2008 US Dist LEXIS 96945, at *8 (S.D.N.Y. Nov. 14, 2008) (“Defendant bears the burden
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`of proving that such an agreement exists.”); Eiseman Levine Lehrhaupt & Kakoyiannis, P.C. v
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`Torino Jewelers, Ltd., 44 A.D.3d 581, 583 (1st Dep’t 2007) (“The proponent of arbitration has
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`the burden of demonstrating that the parties agreed to arbitrate the dispute at issue.” ).
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`34.
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`This burden applies to opposing a special proceeding pursuant to Article 75 to
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`stay arbitration. Matter of Katz v Alpert, 68 A.D.3d 640, 641 (1st Dep’t 2009) (holding that
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`respondents in special proceeding to stay arbitration “failed to meet their burden to show that
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`petitioners had agreed to arbitrate the dispute at issue. Indeed, petitioners were not parties to the
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`1964 agreement, nor did they agree to arbitrate these claims in some other agreement.”).
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`There is No Arbitration Agreement
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`35.
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`Here, there is no arbitration agreement, and Navien has not demonstrated the
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`existence of any such agreement. Furthermore, even assuming arguendo that Petitioners had
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`accessed an online application in 2017, and the application did contain Terms of Use with an
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`arbitration provision, Respondent did not demonstrate that a valid contract was ever formed, or
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`there was any assent to such Terms of Use in its online application.
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`36.
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`“State law principles of contract formation govern the arbitrability question.”
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`Nicosia v Amazon.com, Inc., 834 F3d 220, 231 (2d Cir 2016). (“It is a basic tenet of contract law
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`that, in order to be binding, a contract requires a “meeting of the minds” and “a manifestation of
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`mutual assent.”). Starke v Squaretrade, Inc., 913 F.3d 279, 288-289 (2d Cir. 2019)
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`(citing Express Indus. & Terminal Corp. v. N.Y. Dep't of Transp., 93 N.Y.2d 584, 589 (N.Y.
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`1999)). “The manifestation of mutual assent must be sufficiently definite to assure that the
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`parties are truly in agreement with respect to all material terms.” Starke, 913 F.3d at 289.
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`37.
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`“In the context of web-based contracts, [][courts] look to the design and content
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`of the relevant interface to determine if the contract terms were presented to the offeree in way
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`that would put her on inquiry notice of such terms.” Id. (citing Nguyen v. Barnes & Noble Inc.,
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`763 F.3d 1171, 1177 (9th Cir. 2014)(“Where the link to a website’s terms of use is buried at the
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`bottom of the page or tucked away in obscure corners of the website where users are unlikely to
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`see it, courts have refused to enforce the [] agreement.”).
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`38.
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`Respondent provided no information as to the format of the online application that
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`Petitioner allegedly accessed in 2017, what Terms of Use, if any, were in effect in 2017, how its
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`Terms of Use were situated on the website, whether Petitioner would have notice of them, the
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`manner in which it would be asked to assent to them, or any facts that that might enable the
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`Court to assess whether there was any mutual assent.
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`39.
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`Petitioners are New York residents with no connection to California and who but
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`for this non-existent arbitration agreement cannot even be sued in the California courts. The
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`alleged wrongful conduct—issuing allegedly defamatory videos, allegedly misusing trademarks
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`in those videos, and allegedly placing brochures in front of Navien’s Brooklyn customer’s homes
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`with links to those videos—all purportedly occurred in New York State. Absent this alleged, and
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`wholly unsubstantiated, arbitration agreement, there is no basis for Respondents to haul to
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`arbitration in California New York residents, with no connection to that state, and whose alleged
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`wrongful conduct occurred in the State of New York.
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`40.
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`The “mere posting of information or advertisements on an Internet website does
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`not confer nationwide personal jurisdiction.” Remick v. Manfredy 238 F.3d 248, 259, fn. 3 (3d
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`Cir. 2001); Burdick v Superior Ct., 233 Cal App 4th 8, 26, 183 Cal Rptr 3d 1, 13 (2015)
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`(“Plaintiffs did not produce evidence to show the allegedly defamatory Facebook posting, which
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`concerned critics of a product sold in all 50 states, substantially connected Burdick to
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`California.”); Senese v Hindle, 2011 US Dist LEXIS 116797, at *52 (E.D.N.Y. Sep. 9, 2011)
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`(RJD)). Furthermore, “the formation of a contract with a nonresident defendant is not, standing
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`alone, sufficient to create jurisdiction.” Salesforce.com, Inc. v GEA, Inc., 2019 US Dist LEXIS
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`136745, at *8 (N.D. Cal. Aug. 13, 2019).
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`Being Unlawfully Forced into Arbitration is Irreparable Injury
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`41.
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` “A party that has not agreed to arbitrate a dispute will suffer irreparable harm if it
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`is forced to submit to arbitration.” Guzman v. First Chinese Presbyterian Cmty, 2020 NYLJ
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`LEXIS 147, *7 (N.Y. Co. 2020) (quoting Int'l. Trust Co. of Bermuda, Ltd. v. Fahnestock & Co.,
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`Inc., 1995 U.S. Dist. LEXIS 15050, 1995 WL 606275 at *3 (S.D.N.Y. 1995)).
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`42.
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`This is because “if the arbitration is not enjoined and plaintiffs choose to
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`participate, they will have waived their objections to the [a]rbitration. On the other hand,
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`if plaintiffs refuse to arbitrate, the claims against them may be adjudicated in their absence, and
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`any award would be subject to 'very limited review' by this Court.” Hichez v United Jewish
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`Council of the E. Side, 2020 NY Slip Op 31676[U], *8 (N.Y. Co. 2020) (internal citations,
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`quotations, and brackets omitted). Furthermore, “[a]rbitrators are not bound by rules of law and
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`their decisions are essentially final.” Aimcee Wholesale Corp. v Tomar Prods., Inc., 21 N.Y.2d
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`621, 626 (1968).
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`43.
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`A first hearing before JAMS is scheduled for December 17, 2021, see Diack
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`Affirm. ¶ 25, and if Petitioners fail to appear they can be held in default in the unlawful
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`arbitration. On other hand, if Petitioners do appear at that conference, they can lose the right to
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`proceed with this application because they may be deemed to have waived their right to seek this
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`stay. This would render this motion moot before it can ever be heard.
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`44.
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`Petitioners thus face immediate, irreparable injury if an interim stay and an
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`injunction is not issued pending the hearing of this application.
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`RECEIVED NYSCEF: 12/14/2021
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`The Equities Weigh in Petitioners’ Favor
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`45.
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`The equities weigh in Petitioner’s favor because an injunction and interim stay
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`will merely allow the Court to adjudicate whether an agreement exists and will not harm
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`Respondent, who can proceed with the arbitration should the Court determines that there is an
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`existing arbitration agreement. On the other hand, absent injunctive relief, Petitioner will lose its
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`rights in court forever.
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`FIRST CAUSE OF ACTION
`(Interim and Permanent Stay of Arbitration)
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`Petitioners repeat each of the preceding allegations as if fully set forth herein.
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`Petitioners are likely to succeed on the merits as there is no arbitration agreement
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`46.
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`47.
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`and Respondent submitted no signed arbitration agreement in its arbitration demand and has
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`since failed to provide any signed arbitration agreement despite Petitioners’ repeated demands.
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`48.
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`Petitioners have not participated in any arbitration and have repeatedly informed
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`Respondent that its arbitration is unlawful.
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`49.
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`Petitioners have steadfastly objected to the arbitration and refused to participate.
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`Annexed hereto as Exhibit B are emails in which Petitioners object to the arbitration and state
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`that they have no intention to participate.
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`50.
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` Petitioners did not participate in selecting an arbitrator and refused to pay any
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`arbitration fees.
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`51.
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`The first hearing is scheduled for December 17, 2021, and if Petitioners fail to
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`appear, they may lose on default in the arbitration.
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`52.
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`The Court should enter a judgment permanently enjoining and staying the
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`Respondent from proceeding with the pending arbitration.
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`FILED: NASSAU COUNTY CLERK 12/14/2021 11:56 AM
`NYSCEF DOC. NO. 1
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`INDEX NO. 615602/2021
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`RECEIVED NYSCEF: 12/14/2021
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`SECOND CAUSE OF ACTION
`(Injunction Barring Respondent from Proceeding with the Arbitration)
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`Petitioners repeat each of the preceding allegations as if fully set forth herein.
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`53.
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`54.
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`The Court should issue an injunction barring Respondent from proceeding with
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`the arbitration.
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`55.
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`Petitioners are likely to succeed on the merits as there is no arbitration agreement.
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`Furthermore, Respondent submitted no signed arbitration agreement in its arbitration demand
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`and has since failed to provide any signed arbitration agreement despite Petitioners’ repeated
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`demands.
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`56.
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`A first hearing before JAMS is scheduled for December 17, 2021, and if
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`Petitioners fail to appear they can be held in default in the unlawful arbitration. On other hand, if
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`Petitioners do appear at that conference, they can lose the right to proceed with this application
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`because they may be deemed to have waived their right to seek this stay or any other judicial
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`relief.
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`57.
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`Thus, Petitioners face immediate, irreparable injury if an interim and permanent
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`stay and injunction is not issued pending the hearing of this application.
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`58.
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`The equities weigh in Petitioner’s favor because an injunction will merely allow
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`the Court to adjudicate whether an agreement exists; should the Court find an agreement exists,
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`Respondent will be free to pursue arbitration at that time. In other words, Respondent faces no
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`harm from an injunction. On the other hand, Petitioner stands to lose its rights forever absent
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`injunctive relief.
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`13 of 16
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`FILED: NASSAU COUNTY CLERK 12/14/2021 11:56 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 615602/2021
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`RECEIVED NYSCEF: 12/14/2021
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`CLAIMS FOR RELEIF
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`WHEREFORE, Petitioners request that the Court enter a judgment against Respondent as
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`follows:
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`(1) On the First Cause of Action, issuing a judgment staying the arbitration commenced by
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`Respondent against Petitioners;
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`(2) On the Second Cause of Action, issuing a judgment enjoining Respondent from
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`proceeding with arbitration against Petitioners;
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`(3) Awarding Petitioners theirs costs, including attorney’s fees, and granting such other and
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`further relief the Court deems just and proper.
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`Dated: Brooklyn, New York
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`December 12, 2021
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`LAW OFFICE OF ALLEN
`SCHWARTZ, ESQ.
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`____/s/________________________
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`Allen Schwartz, Esq.
`2635 Nostrand Ave, 4E
`Brooklyn, New York, 11210
`347-460-5379
`allen@allenschwatrtzlaw.com
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`Counsel for Petitioners
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`14
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`14 of 16
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`FILED: NASSAU COUNTY CLERK 12/14/2021 11:56 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 615602/2021
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`RECEIVED NYSCEF: 12/14/2021
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`VERIFICATION
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`ss.:
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`
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`STATE OF NEW YORK
`COUNTY OF NASSAU
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`
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`follows under penalty of perjury:
`I am a Petitioner in the above-captioned action. I have read the foregoing Verified
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`Petition and know the contents thereof; the same is true to my own knowledge except as to the
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`matters therein stated to be alleged on information and belief and as to those matters I believe it
`to be true. The grounds
`of my belief
`as to all matters
`not stated
`upon my own knowledge
`and
`belief
`is my review
`of the records
`which I maintain
`with regard
`to this case.
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`
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`Michael Diack, who does not swear for religious reasons, being duly deposed, affirms as
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`• A. �
`/'/',,,.-z�
`
`
`
`Michael Diack
`
`
`Affirmed to before me this
`\ '7 day of '!)ec t� � 2021
`l
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`I' • ===-> A
`
`NBiARY PUBLIC
`
`GARY GREENSEICH
` York
`Notary Public, State of
`No. 01GR6174
`Qualified in Nas�au County
`commission Expires t � \ 1 ( U 1.,r �
`
`3N9e5w
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`15 of 16
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`FILED: NASSAU COUNTY CLERK 12/14/2021 11:56 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 615602/2021
`
`RECEIVED NYSCEF: 12/14/2021
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`WORD COUNT CERTIFICATION
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`Allen Schwartz, Esq., hereby certifies that this document contains 3,723 words, exclusive
`of the caption, and signature block, and that it complies with the relevant word count limits. I
`relied on the word processing system used to create this document to ascertain the word count.
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`By:_______/s/________________
`Allen Schwartz, Esq.
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`16 of 16
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