throbber
FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`NYSC 3F DOC. NO.
`
`120
`NYSCEF DOC. NO. 120
`
`
` V3
`fiX NO.
`155301/20;
`INDEX NO. 155301/2015
`
`11/15/20'
` VYSC?F:
`
`
`
`
` *3
`
`RECEIVED NYSCEF: 11/15/2017
`
`EXHIBIT B
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF DOC. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`
`INDEX NO. 155301/2015
`\D‘X NO- 155301/201
`
`
`
`
`
`
`
`
`
`R*-C*- Vt) \IYSC'EF: 11/15/20'
`RECEIVED NYSCEF: 11/15/2017
`
`CIVIL COURT OF THE CITY OF NEW YORK
`COUNTY OF NEW YORK
`-----------------------------------------------------------------------X
`
`Index No.
`
`Community Preservation Neighborhood Inc.
`
`Petitioner,
`
`Order to Show
`Cause
`
`-against—
`
`El Pridian Corporation
`
`Respondent.
`_______________________________________________________________________X
`
`Upon reading the annexed affirmation of Anthony J. Auciello, Esq, affirmed on
`
`November 14, 2017, the annexed affidavits and upon the pleadings and all proceedings
`
`heretofore had herein: LET the petitioner show cause at a Special Term Part __ of this Court to
`
`be held in and for the County of New York at the Courthouse thereof, located at 111 Centre St,
`
`New York, New York, Part
`
`, Room
`
`
`
`, on
`
`, 2017, or as soon
`
`thereafter as counsel can be heard, vacating the default judgment, permitting respondent to file a
`
`late answer and transferring the case to Supreme Court to be consolidated with the three pending
`
`actions concerning the ownership of the premises 155301/2015; 153297/2014 and 153556/2015;
`
`and any further relief as the Court may deem just and proper. Let all proceedings on the part of
`
`the Petitioner under said default be stayed until a determination of this motiou to vacate the
`
`default judgment.
`
`ORDERED that pending the hearing and determination of this motion that any post
`
`judgement actions are stayed, including but not limited to entering into a tease, entering the
`
`premises, and performing any renovation or construction, and any further relief the court may
`
`deem just and proper.
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P I
`
`NYSC 3F
`DOC. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`
`155301/20;
`INDEX NO. 155301/2015
`“‘94 N0-
`11/15/20'
`
`
`
`
`
`
`
`RfiCfi VfiD VYSC?F:
`RECEIVED NYSCEF: 11/15/2017
`
`
`
`SUFFICIENT CAUSE APPEARING THEREFORE, let service of a copy of this Order
`
`by certified mail, return receipt requested, together with the papers upou which it is based, upon
`
`the attorney for the petitioner, on or before
`
`, 201 be deemed good and
`
`sufficient service.
`
`Signed this
`
`, 2017.
`
`
`
`J.C.C,
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF 30c. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`
`INDEX NO. 155301/2015
`\Di'x NO'
`l55301/20:—
`
`
`
`
`
`
`
`
`R«c« V«3 VYSCnF: 11/15/20'
`RECEIVED NYSCEF: 11/15/2017
`
`CIVIL COURT OF THE CITY OF NEW YORK
`COUNTY OF NEW YORK
`-----------------------------------------------------------------------X
`
`Index No.
`
`Community Preservation Neighborhood Inc.
`
`Petitioner,
`
`Affirmation In Support
`
`against"
`
`Et Pridian Corporation
`
`Respondent.
`_______________________________________________________________________X
`Anthony J. Auciello, Esq. an attorney duly admitted to practice before the Courts of the
`
`State ofNew York pursuant to CPLR 2106 affirms under the penalties of perjury:
`
`1.
`
`I am the attorney of record for Aviation Distributors, Inc, formed May 1945 (hereinafter
`
`“Aviation—1945"), Diane Haslett and Respondent Bi Pridian Corporation (hereinafter
`
`“Aviation—1945”) and I am fully familiar with the facts and circumstances of this action
`
`based upon a review of the case file and the investigation materials contained therein.
`
`2. We wouid first like to advise the Court that there are three actions pending in the Supreme
`
`Court New York County concerning the ownership of the premises known as 44 West 73"]
`
`Street, New York, NY Block: 1 125 Lot2160 (“The Premises”); 15530112015; 15329702014
`
`and 153556/2015.
`
`L4) This affirmation and supporting affidavits are giving in support of the within motion to
`
`vacate the default entered by Community Preservation Neighborhood, Inc., Petitioner and
`
`then to consolidate this action with the three in the Supreme Court.
`
`4. This office filed a summary judgment motion in the consolidated three actions seeking inter
`
`alia that Aviation—1945 is the OWner of the Premises and El Pridian is the leasee of the
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF DOC. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`
`INDEX NO. 155301/2015
`\D‘X NO- 155301/201
`
`
`
`
`
`
`
`
`R*-C*- Vt) \IYSC'EF:
`'l'l/lS/ZO'
`RECEIVED NYSCEF: 11/15/2017
`
`Premise and for the first time we learned that Petitioner had obtained a default against
`
`Respondent El Pridian. Community attached a Marshal’s notice to its opposition.
`
`5. Upon learning of the default we immediately filed an Order to Show Cause in the Supreme
`
`Court seeking to vacate the default and consolidate this action with the other actions.
`
`6. The Court granted the Order to show Cause and consolidated the actions. Attached hereto as
`
`Exhibit A is a copy of the Decision. Petitioner filed a motion to re~argue which is currently
`
`pending.
`
`7. The summary judgment motion was denied without prejudice. Attached hereto as Exhibit B
`
`is a copy of the Court’s Decision.
`
`8.
`
`It is requested that in the interests ofjustice that the Court vacate the default and permit the
`
`actions to be consolidated. Additionally, El Pridian never received any notice regarding this
`
`action and does have a meritorious defense. Petitioner is not the owner of the premises as
`
`stated in the petitioner and petitioner’s alleged deed states that it is subject to the lease held
`
`by Respondent. (See Exhibit L).
`
`9. All four cases concern the ownership of land and the lease of the building. It is the position
`
`of Aviation—1945, owned by Diane Haslett; that Aviation—1945 is the rightful owner of the
`
`land at the Premises and El Pridian, owned by Haslett, is the rightful leasee of the building
`
`and all other interests are void and/or fraudulent as detailed below.
`
`it). Aviation—1945 acquired the land at The Premises by deed from Marion R. Miller, dated
`
`December 31, 1976 and recorded on January 3, 1977 in the New York County Clerk’s office
`
`under Reel 387 Page 1485. The deed from 1976 has been pulled from ACRIS but was
`
`rerecorded under CRFNz2008000410976, attached hereto as Exhibit C is the ACRIS print
`
`out and the defendant Aviation—1945’s deed.
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF DOC. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`INDEX NO. 155301/2015
`W“ NO- 155301/203-
`
`
`
`
`
`
`
`
`
`R«.C~. V0
`\IYSC'EF:
`'l’l/‘lS/ZO'
`RECEIVED NYSCEF: 11/15/2017
`
`l 1. Marion R. Miller at the same time gave a lease to E1 Pridian. The lease is for 99 years;
`
`commencing on December 31, 1976 and terminating on December 31, 2075. The
`
`memorandum of lease was recorded on January 3, 1977 under Reel 387 Page 1483. Attached
`
`hereto as Exhibit D is a recorded memorandum of lease.
`
`12. Aviation-1945 was formed on May 15, 1945. Attached hereto as Exhibit E are copies of the
`
`Certificate of Incorporation. The original corporation was formed by Richard K. Benson,
`
`Milton Weir, and Edward Rowe.
`
`13. On or about December, 1945 the corporation was sold to the Haslett Family. Attached hereto
`
`as Exhibit F are copies of the stock certificates dated December, 1945, pages from the
`
`corporate book, corporate resolutions to Franklin National Bank dated April 1974, corporate
`
`resolutions to Merrill Lynch dated July, 1968, a promissory note executed by Defendant
`
`Aviation-1945, correspondence to and from Defendant Aviation—1945 from the Town of
`
`Hempstead, US T—Bills receipts, and the signature card from Franklin National Bank. All are
`
`dated in the 19505, 19605 and 19703.
`
`14. Additionally a newspaper article from the NY times in 1964 reports Mr. Elmer Haslett
`
`passing away and in the article it confirms that he was the father of Diane Haslett, President
`
`of Defendant Aviation—1945. Attached hereto as Exhibit G are c0pies of the newspaper
`
`archives and invoices from Aviation Distributors _ formed 1945.
`
`15. Attached as Exhibit H are copies of checks that the Aviation—1945 (by Diane Haslett) has
`
`been paying the real estate taxes. Checks are from 2006 forward and total $1 15,345 .64. The
`
`most recent ones are May, 2017 for $20,000.00 and October, 2017 for $35,915.34.
`
`16. Diane Haslett, President of Defendant Aviation—1945, was recently the subject of a Daily
`
`News article where she was negatively portrayed for owing back taxes at the Premises and
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF DOC. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`
`INDEX NO. 155301/2015
`
`\Dtx NO- 155301/201
`
`
`
`
`
`
`
`
`
`R*-C*- Vt) \IYSCEF:
`'l'l/lS/ZO'
`RECEIVED NYSCEF: 11/15/2017
`
`for having 20 NYC Department of Buildings violations. Attached hereto as Exhibit I is a
`
`copy of the newspaper article.
`
`17. El Pridian was dissolved by proclamation on March 31, 1982 and Aviation~1945 was
`
`dissolved by proclamation on March 27, 1979. Attached hereto as Exhibit J are the copies
`
`of the proclamation. Therefore, El Pridian and Aviation~1945 are now a de facto
`
`corporation.
`
`18. Therefore there is no dispute that Haslet is the owner of Aviation—1945 and El Pridian and
`
`further that Aviation owns the land at the Premises and El Pridian is the leasee of the
`
`building.
`
`19. The defendant John Zi was found guilty of grand larceny in the First degree and of offering a
`
`false instrument for recording in the first degree regarding the Premises and other properties
`
`in New York County. Attached hereto as Exhibit K are the Verdict Sheet from the criminai
`
`court case with the newspaper article in which Zi was indicted for steal five New York
`
`properties.
`
`20. Community in an attempt to swindle the property from Aviation~1 945, El Pridian and
`
`Haslett, sought out the Executor of the Estate of Marion R. Miller and purchased any interest
`
`the Estate may have in the Premises.
`
`21. Attached hereto as Exhibit L is the recorded deed that Executor Lois C. Voyticky gave to
`
`Community.
`
`22. The deed Specifically states in the transfer “To the extent owned by the Grantor and subject
`
`to the 99 years lease held by El Pridian Corporation.”
`
`23. Annexed hereto is the affidavit of Executor Lois C. Voyticky wherein she specifically states,
`
`that the Estate did not own the land at The Premises and that the only interest the Estate may
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF 30c. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`
`INDEX NO. 155301/2015
`\Dl'x NO'
`l55301/20:—
`
`
`
`
`
`
`
`
`
`R«c« V«3 uyscaF: 11/15/20'
`RECEIVED NYSCEF: 11/15/2017
`
`have is a remainder interest in the lease after the expiration of the 99 year leasa. Attached
`
`hereto as Exhibit M is the petition filed in Estate of Marion R. Miller. As seen no real estate
`
`is listed.
`
`24. Further Ms. Voyticky states that the Estate only sold its possible remainder interest in the
`
`lease after its expiration.
`
`25. It should be noted that the deed from Executor Lois C. Voyticky to Community is dated
`
`February 23, 2014 and the Petition filed by Community (Exhibit A) seeks rent from 2004 at
`
`$5,000.00 per month.
`
`26. There is not one document or any evidence whatsoever, stating that the rent is $5,000.00.
`
`Further there is nothing permitting Community to colieet rent or the like. The deed which
`
`Community relies on specifically states “To the extent owued by the Grantor and subject to
`
`the 99 years lease held by El Pridian Corporation.”
`
`27. The petition filed by Community makes material misrepresentations.
`
`In paragraph three
`
`Community states it is the owner since 1976 and the agreed rent was $5,000.00. Such
`
`misrepresentations violate Judiciary Law § 478. Attached hereto as Exhibit N is a cepy of
`
`the Lc‘k'lw Petition.
`
`28. After this action was consolidated (Exhibit A), we filed an answer to the petition. Attached
`
`hereto as Exhibit 0 is a copy of the filed answer.
`
`29. In the interests ofjustice the action must be consolidated and any judgment vacated.
`
`30. Additionally, this application to vacate the default judgment is made pursuant to CPLR
`
`' 5015(a). New York courts are liberal in vacating default judgments, indicating a strong
`
`public policy in favor of resolving cases on the merits. See Balent v. Marine Midland Bank.
`
`N.A., 112 A.D.2d 1023, 493 N.Y.S.2d 20 (2nd Dept, 1985); Bishop v. Galasso, 67 A.D.2d
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF DOC. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`
`INDEX NO. 155301/2015
`
`Vim-X NO- 155301/201
`
`
`
`
`
`
`
`
`
`R*-C*- Vt) \IYSC'EF: 11/15/20'
`RECEIVED NYSCEF: 11/15/2017
`
`753, 412 N.Y.S.2d 215 (3rd Dept, 1979); Glass v. Janbach Properties, 73 A.D.2d 106, 425
`
`N.Y.S.2d 343 (2nd Dept, 1980); Fusco v. Malcolm, 50 A.D.2d 685, 375 N.Y.S.2d 412 (3rd
`
`Dept, 1975). This policy concern is especially significant in the case at bar.
`
`31. McKinney’s commentary to CPLR ' 3215 states that New York has a strong policy in favor
`
`of reaching results on the merits, and its natural concomitant is a policy against allowing
`
`defaults except in egregious circumstances. (See Commentary (3321524 on McKinney’s
`
`CPLR ' 3215.) Clearly, in the instant case, the alleged default on the part of Defendant would
`
`certainly qualify for vacature under the CPLR commentaries and common practices of this
`
`Court as stated above in the interests of equity and justice.
`
`32. The Court of Appeals has held that to vacate a default judgment the Defendant must meet the
`
`requirement of establishing a meritorious defense by a person of sufficient knowledge of the
`
`facts (see attached Affidavit of Merit). See Fidelity and Deposit Co. v. Arthur Andersen &
`
`Q94, 60 NY. 2d 693, 468 N.Y.S. 2d 464 (1983). It is the Defendant’s position that these
`
`requirements have been met.
`
`33. The petitioner’s entry of a default judgment has greatly prejudiced respondent as it had been
`
`deprived of its day in court.
`
`It is well—settled that a party should not be deprived of its day in
`
`court. See Paoli V. Sullcraft Mfg. Co., 104 AD. 2d 333, 479 N.Y.S. 2d 37 (1St Dept. 1984);
`
`also Moran v. Rynar,39 AD. 2d 718, 719, 332 N.Y.S. 2d 138 (2nd Dept. 1972). See also
`
`CPLR '2005, 3012 and 5015.
`
`34. It should he noted that Community was mailing documents in care of Richard W. Vogel, Esq.
`
`who passed away in 1978.
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF 30c. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`
`155301/20;
`INDEX NO. 155301/2015
`
`\D‘X NO-
`11/15/20'
`
`
`
`
`
`
`
`R«c« V«3 VYSCaF-
`RECEIVED NYSCEF: 11/15/2017
`
`35. Therefore it is requested that the defautt be vacated and the action consolidated with the
`
`Supreme Court actions.
`
`36. There has been no prior application for the relief requested herein.
`
`Dated:
`
`November 14, 2017
`
`Brooklyn, NY
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF DOC. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`
`INDEX NO. 155301/2015
`\D‘X NO- 155301/201
`
`
`
`
`
`
`
`
`
`R*-C*- Vt) \IYSC'EF: 11/15/20'
`RECEIVED NYSCEF: 11/15/2017
`
`CIVIL COURT OF THE CITY OF NEW YORK
`COUNTY OF NEW YORK
`----------------------------------------------------------------------- X
`
`Index No.
`
`Community Preservation Neighborhood Inc.
`
`Petitioner,
`
`AFFIDAVIT IN
`SUPPORT
`
`-against—
`
`El Pridian Corporation
`
`Respondent.
`_______________________________________________________________________X
`
`Diane Haslett, being duly sworn deposes and says:
`
`1.
`
`I am the sole shareholder and President E1 Pridian Aviation Distributors, 1110., formed May
`
`1945 (hereinafter “Aviation~1945”) and El Pridian Corporation and I am fully familiar with
`
`the facts and circumstances of this action.
`
`2.
`
`I would iike to advise the Court that there are three actions pending in the Supreme Court
`
`New York County concerning the ownership of the premises known as 44 West 73rd Street,
`
`New York, NY Block:1 125 Lot:i60 (“The Premises”); 155301/2015; 15329712014 and
`
`153556/2015.
`
`La.) This supporting affidavit are giving in support of the within motion seeking to vacate the
`
`defaultjudgment that was entered by petitioner on restoring the case to active status, and then
`
`joining this case with the Open cases.
`
`4. All four cases concern the ownership of land and the lease of the building.
`
`It is the position
`
`of Aviation—1945, owned by Diane Haslett; that Aviation—1945 is the rightful owner of the
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF 30c. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`
`INDEX NO. 155301/2015
`VT'X NO'
`l55301/20:—
`
`
`
`
`
`
`
`
`R«c« V«3 yyscaF: 11/15/20'
`RECEIVED NYSCEF: 11/15/2017
`
`land at the Premises and Bi Pridian, owned by Haslett, is the rightful leasee of the building
`
`and all other interests are void and/or fraudulent as detailed below.
`
`5. The first time I learned of the default in this action is when we filed for summaryjudgment in
`
`the Supreme Court actions and Community filed its opposition.
`
`In its opposition it attached
`
`a Marshal’s notice.
`
`6. Upon learning of the default we immediately filed an Order to Show Cause in the Supreme
`
`Court seeking to vacate the default and consolidate this action with the other actions.
`
`7. The Court granted the Order to show Cause and consolidated the actions. Attached hereto as
`
`Exhibit A is a copy of the Decision. Petitioner filed a motion to re—argue which is currently
`
`pending.
`
`8. The summaryjudgrnent motion was denied without prejudice. Attached hereto as Exhibit B
`
`is a copy of the Court’s Decision.
`
`9.
`
`it is requested that in the interests ofjustice that the Court vacate the default and permit the
`
`actions to be consolidated.
`
`10. Additionally, I never received any notice regarding this action and I have a meritorious
`
`defense. Petitioner is not the owner of the premises as stated in the petitioner and petitioner’s
`
`alleged deed states that it is subject to the leaSe held by Respondent. (See Exhibit L).
`
`11. It should be noted that Community was mailing documents in care of Richard W. Vogel, Esq.
`
`who passed away in 1978.
`
`12. Aviation—1945 acquired the land at The Premises by deed from Marion R. Miller, dated
`
`December 31, 1976 and recorded on January 3, 1977 in the New York County Clerk’s office
`
`under Reel 387 Page 1485. The deed from 1976 has been pulled from ACRIS but was
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF DOC. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`
`INDEX NO. 155301/2015
`“‘94 NO- 155301/201
`
`
`
`
`
`
`
`
`
`R*-C*- Vt) \IYSC'EF: 11/15/20'
`RECEIVED NYSCEF: 11/15/2017
`
`rerecorded under CRFN22008000410976, attached hereto as Exhibit C is the ACRIS print
`
`out and the defendant Aviation—1945’s deed.
`
`13. Marion R. Miller at the same time gave a tease to E1 Pridian. The lease is for 99 years;
`
`commencing on December 31, 1976 and terminating on December 31, 2075. The
`
`memorandum of lease was recorded on January 3, 1977 under Reel 387 Page 1483. Attached
`
`hereto as Exhibit D is a recorded memorandum of lease.
`
`14. Aviation~1945 was formed on May 15, 1945. Attached hereto as Exhibit E are copies of the
`
`Certificate of incorporation. The original corporation was formed by Richard K. Benson,
`
`Milton Weir, and Edward Rowe.
`
`15. On or about December, 1945 the corporation was sold to the Haslett Family. Attached hereto
`
`as Exhibit F are copies of the stock certificates dated December, 1945, pages from the
`
`corporate book, corporate resolutions to Franklin National Bank dated April 1974, corporate
`
`resolutions to Merrill Lynch dated July, 1968, a promissory note executed by Defendant
`
`Aviation-1945, correSpondenee to and from Defendant Aviation—1945 from the Town of
`
`Hempstead, US T—Bills receipts, and the signature card from Franklin National Bank. All are
`
`dated in the 19505, 19603 and 19705.
`
`16. Additionally a newspaper article from the NY times in 1964 reports Mr. Eimer Haslett, the
`
`father of Diane Haslett, passing away and in the article it confirms that he was the President
`
`of Aviation~1945. Attached hereto as Exhibit G are copies of the newspaper archives and
`
`invoices from Aviation Distributors — formed 1945.
`
`17. Attached as Exhibit H are copies of checks that the Aviation-1945 (by Diane Haslett) has
`
`been paying the real estate taxes. Checks are from 2006 forward and total $115,345.64. The
`
`most recent ones are May, 2017 for $20,000.00 and October, 2017 for $35,915.34.
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF 30c. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`INDEX NO. 155301/2015
`\Dl'x NO'
`l55301/20:—
`
`
`
`
`
`
`
`
`RsCs Vs) VYSCsF: 11/15/20'
`RECEIVED NYSCEF: 11/15/2017
`
`l8. Diane Haslett, President of Defendant Aviation~l945 and El Pridian, was recently the subject
`
`of a Daily News article where she was negatively portrayed for owing back taxes at the
`
`Premises and for having 20 NYC Department of Buildings violations. Attached hereto as
`
`Exhibit I is a copy of the newspaper article.
`
`19. El Pridian was dissolved by proclamation on March 31, 1982 and Aviation—1945 was
`
`dissoiVed by proclamation on March 27', 1979. Attached hereto as Exhibit J are the copies
`
`of the proclamation. Therefore, El Pridian and Aviation-1945 are now a de facto
`
`corporation.
`
`20. Therefore there is no dispute that Haslet is the owner of Aviation-1945 and El Pridian and
`
`further that Aviation owns the land at the Premises and El Pridian is the leasee of the
`
`building.
`
`21. The defendant John Zi was found guiity of grand larceny in the First degree and of offering a
`
`false instrument for recording in the first degree regarding the Premises and other properties
`
`in New York County. Attached hereto as Exhibit K are the Verdict Sheet from the criminal
`
`court case with the newspaper article in which Zi was indicted or stealing five New York
`
`properties.
`
`22. Community in an attempt to swindle the property from Aviation—1945, El Pridian and
`
`Haslett, sought out the Executor of the Estate of Marion R. Miller and purchased any interest
`
`the Estate may have in the Premises.
`
`23. Attached hereto as Exhibit L is the recorded deed that Executor Lois C. Voyticky gave to
`
`Community.
`
`24. The deed Specifically states in the transfer “To the extent owned by the Grantor and subject
`
`to the 99 years lease held by El Pridian Corporation."
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF DOC. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`
`INDEX NO. 155301/2015
`\Dtx NO- 155301/201
`
`
`
`
`
`
`
`
`R*-C*- Vt) \IYSCEF:
`'l'l/lS/ZO'
`RECEIVED NYSCEF: 11/15/2017
`
`25. Annexed hereto is the affidavit of Executor Lois C. Voyticky wherein she specil‘icaily states,
`
`that the Estate did not own the land at The Premises and that the only interest the Estate may
`
`have is a remainder interest in the lease alter the expiration of the 99 year lease. Attached
`
`hereto as Exhibit M is the petition filed in Estate of Marion R. Miller. As seen no real estate
`
`is listed.
`
`26. Further Ms. Voyticky states that the Estate only sold its possible remainder interest in the
`
`lease after its expiration.
`
`27. it should be noted that the deed from Executor Lois C. Voyticky to Community is dated
`
`February 23, 2014 and the Petition filed by Community (Exhibit A) seeks rent from 2004 at
`
`$5,000.00 per month.
`
`28. There is not one document or any evidence whatsoever, stating that the rent is $5,000.00.
`
`Further there is nothing permitting Community to collect rent or the like. The deed which
`
`Community relies 0n specifically states “To the extent owned by the Grantor and subject to
`
`the 99 years lease held by El Pridian Corporation.”
`
`29. The petition filed by Community makes material misrepresentations.
`
`In paragraph three
`
`Community states it is the owner since 1976 and the agreed rent was $5,000.00. Attached
`
`hereto as Exhibit N is a copy of the L851“ Petition.
`
`30. After this action was consolidated (Exhibit A), we filed an answer to the petition. Attached
`
`hereto as Exhibit 0 is a copy of the filed answer.
`
`31. In the interests ofj ustice the action must be consolidated and anyjudgrnent vacated.
`
`32. Additionally, this application to vacate the default judgment is made pursuant to CPLR
`
`' 5015(21). New York courts are liberal in vacating defauit judgments, indicating a strong
`
`public policy in favor of resolving cases on the merits. See Balent v. Marine Midland Bank,
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF 30c. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`INDEX NO. 155301/2015
`\Di'x NO'
`l55301/20:—
`
`
`
`
`
`
`
`
`
`R«c« V«3 vyscaF: 11/15/20'
`RECEIVED NYSCEF: 11/15/2017
`
`.A., 112 A.D.2d 1023, 493 N.Y.S.2d 20 (2nd Dept, 1985); Bishop v. Galasso, 67 A.D.2d
`
`753, 412 N.Y.S.2d 215 (3rd Dept, 1979); Glass v. .lanbaeh Properties, 73 A.D.2d 106, 425
`
`N.Y.S.2d 343 (2nd Dept, 1980); Fusco v. Malcolm, 50 A.D.2d 685, 375 N.Y.S.2d 412 (3rd
`
`Dept, 1975). This policy concern is especially significant in the case at bar.
`
`33. McKinney’s commentary to CPLR ‘ 3215 states that New York has a strong policy in favor
`
`of reaching results on the merits, and its natural concomitant is a policy against allowing
`
`defaults except in egregious circumstances. (See Commentary C3215:24 on MeKinney‘s
`
`CPLR ' 3215.) Ciearly, in the instant case, the alleged default on the part of Defendant would
`
`certainly qualify for vacature under the CPLR commentaries and common practices of this
`
`Court as stated above in the interests of equity and justice.
`
`34. The Court of Appeals has held that to vacate a default judgment the Defendant must meet the
`
`requirement of establishing a meritorious defense by a person of sufficient knowledge of the
`
`facts (see attached Affidavit of Merit). See Fidelijgndflposit Co. v. Arthur Andersen &
`
`Q94, 60 NY. 2d 693, 468 N.Y.S. 2d 464 (1983). It is the Defendant’s position that these
`
`requirements have been met.
`
`35. The petitioner‘s entry of a defaultjudgment has greatly prejudiced respondent as it had been
`
`deprived of its day in court.
`
`It is well—settled that a party should not be deprived of its day in
`
`court. See Paoli v. Sullcrafi Mfg. Co., 104 AD. 2d 333, 479 N.Y.S. 2d 37 (1St Dept. 1984);
`
`also Moran v. Rynar,39 AD. 2d 718, 719, 332 N.Y.S. 2d 138 (2” Dept. 1972). See also
`
`CPLR '2005, 3012 and 5015.
`
`36. There has been no previous application has been made for the relief requested herein.
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/15/2017 02:21 PM
`FILED: NEW YORK COUNTY CLERK 11m2017 02:21 P l
`
`
`NYSCEF 30c. NO. 120
`NYSCEF DOC. NO. 120
`
`
`
`
`155301/20;
`INDEX NO. 155301/2015
`
`\D‘X NO-
`11/15/20'
`
`
`
`
`
`
`
`R«c« V«3 VYSC?F:
`RECEIVED NYSCEF: 11/15/2017
`
`WHEREFORE, your deponent respectfully requests that this motion be granted and any such
`
`further reiief as this Court seems just, proper, and equitable.
`
`
`
`DIANE ASLETT
`
`Sworn to before me this
`
`
`
`9m: ‘1: hemqej 3ande “Ussszwwog
`ll‘iUl‘lDQ 35m}; u;
`-
`. pagnen
`sue
`rumenvzo '05; O
`A MEN #3 areas 'ouqnd below
`O'HBEOQV T ANOHLNV
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket