FILED: ERIE COUNTY CLERK 07/22/2021 02:57 PM
`NYSCEF DOC. NO. 59
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`INDEX NO. 801838/2020
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`RECEIVED NYSCEF: 07/22/2021
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`v.
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`SIMPSON & BROWN, INC.
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`Defendant.
`_______________________________________________
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`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF ERIE
`________________________________________________
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`SAMUEL, SON & CO. (USA) INC.
`d/b/a ROLL FORM GROUP
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`Plaintiff,
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`ATTORNEY
`AFFIRMATION
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`Index No.: 801838/2020
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`I, Kristine N. Celeste, make this affirmation under penalty of perjury pursuant to CPLR
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`§ 2106 and declare the following to be true:
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`1.
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`I am an attorney at law duly admitted to practice in the State of New York with the
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`law firm of Duke Holzman Photiadis & Gresens LLP, attorneys for Plaintiff Samuel, Son & Co.
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`(USA) Inc. d/b/a Roll Form Group (“Plaintiff” or “Samuel”) in the above-captioned matter, and
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`am fully familiar with the facts set forth herein.
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`2.
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`I submit this affirmation in opposition to Defendant Simpson & Brown, Inc.’s
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`(“Simpson” or “Defendant”) Order to Show Cause seeking vacatur of the default order entered on
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`April 8, 2021 and default judgment signed and filed on April 9, 2021 (the “Default Order and
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`Judgment”).
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`3.
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`This Court should deny Defendant’s application in its entirety because process was
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`properly served on Defendant. As such, this Court has jurisdiction over Defendant and Defendant
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`has failed to establish excusable neglect to warrant vacatur of the Default Order and Judgment.
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`4.
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`On February 7, 2020, Plaintiff initiated the instant action via the filing of a
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`summons and complaint (the “Summons & Complaint”). Annexed hereto as Exhibit A is a true
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`and accurate copy of the Summons & Complaint.
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`1
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`1 of 3
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`NYSCEF DOC. NO. 59
`
`INDEX NO. 801838/2020
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`RECEIVED NYSCEF: 07/22/2021
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`SIMPSON & BROWN, INC.
`
`Defendant.
`_______________________________________________
`
`
`
`
`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF ERIE
`________________________________________________
`
`SAMUEL, SON & CO. (USA) INC.
`d/b/a ROLL FORM GROUP
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`
`ATTORNEY
`AFFIRMATION
`
`
`
`
`
`
`
`
`
`
`Index No.: 801838/2020
`
`
`
`
`
`I, Kristine N. Celeste, make this affirmation under penalty of perjury pursuant to CPLR
`
`§ 2106 and declare the following to be true:
`
`1.
`
`I am an attorney at law duly admitted to practice in the State of New York with the
`
`law firm of Duke Holzman Photiadis & Gresens LLP, attorneys for Plaintiff Samuel, Son & Co.
`
`(USA) Inc. d/b/a Roll Form Group (“Plaintiff” or “Samuel”) in the above-captioned matter, and
`
`am fully familiar with the facts set forth herein.
`
`2.
`
`I submit this affirmation in opposition to Defendant Simpson & Brown, Inc.’s
`
`(“Simpson” or “Defendant”) Order to Show Cause seeking vacatur of the default order entered on
`
`April 8, 2021 and default judgment signed and filed on April 9, 2021 (the “Default Order and
`
`Judgment”).
`
`3.
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`This Court should deny Defendant’s application in its entirety because process was
`
`properly served on Defendant. As such, this Court has jurisdiction over Defendant and Defendant
`
`has failed to establish excusable neglect to warrant vacatur of the Default Order and Judgment.
`
`4.
`
`On February 7, 2020, Plaintiff initiated the instant action via the filing of a
`
`summons and complaint (the “Summons & Complaint”). Annexed hereto as Exhibit A is a true
`
`and accurate copy of the Summons & Complaint.
`
`
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`1
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`1 of 3
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`FILED: ERIE COUNTY CLERK 07/22/2021 02:57 PM
`NYSCEF DOC. NO. 59
`
`INDEX NO. 801838/2020
`
`RECEIVED NYSCEF: 07/22/2021
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`5.
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`Following filing of the Summons and Complaint, Plaintiff engaged the company
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`Action Subpoena to serve process on Defendant.
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`6.
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`On February 21, 2020, Plaintiff served Defendant via personal service by Todd
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`Bank at Defendant’s offices in Cranford, New Jersey. Annexed hereto as Exhibit B is a true and
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`accurate copy of the affidavit of service for the Summons & Complaint.
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`7.
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`On February 24, 2020, Plaintiff mailed the second service letter to Defendant’s
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`offices in Cranford, New Jersey pursuant to CPLR § 3215(g). Annexed hereto as Exhibit C is a
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`true and accurate copy of the affidavit of service for the CPLR § 3215(g) second service letter.
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`8.
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`Defendant defaulted by failing to answer the Summons and Complaint or otherwise
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`appear in the instant action since at least March 15, 2020.
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`9.
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`On February 9, 2021, Plaintiff moved for a default judgment to be entered against
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`Defendant by filing a Notice of Motion, Affirmation and Proposed Order and Judgment (the
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`“Motion Papers”).
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`10.
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`On February 10, 2021, Plaintiff mailed a copy of the Motion Papers to Defendant’s
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`offices in Cranford, New Jersey, together with correspondence notifying Defendant that the motion
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`was returnable on April 8, 2021. Annexed hereto as Exhibit D and Exhibit E, respectively, are
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`true and accurate copies of the affidavit of mailing for the Motion Papers and counsel’s letter
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`notifying Defendant of the motion’s return date.
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`11.
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`On April 8, 2021, this Court entered an Order and Judgment granting Plaintiff
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`judgment by default against Defendant.
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`12.
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`On April 9, 2021, the Statement of Judgment against Defendant was filed in the
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`Erie County Clerk’s Office.
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`2
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`2 of 3
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`FILED: ERIE COUNTY CLERK 07/22/2021 02:57 PM
`NYSCEF DOC. NO. 59
`
`INDEX NO. 801838/2020
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`RECEIVED NYSCEF: 07/22/2021
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`13.
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`On April 12, 2021, Plaintiff mailed a copy of the notices of entry of the Default
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`Order and Judgment to Defendant’s offices in Cranford, New Jersey. Annexed hereto as Exhibit
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`F is a true and accurate copy of the affidavit of mailing for the notices of entry of the Default Order
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`and Judgment.
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`14.
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`Based on the above, Plaintiff properly served Defendant with process and provided
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`additional notice of the instant action by no less than three separate mailings to the Defendant
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`between February 2020 and April 2021. Accordingly, this Court has jurisdiction over Defendant
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`and Defendant has failed to establish excusable neglect sufficient to warrant vacatur of the Default
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`Order and Judgment.
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`15. WHEREFORE, Samuel respectfully requests that: (1) Defendant’s application for
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`vacatur of the default judgment be DENIED in its entirety or, in the alternative, that the default
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`judgment be upheld in part as to the principal amount due and owing to Samuel; (2) in the event
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`the Court determines that a question of fact exists concerning the validity of service upon
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`Defendant that an evidentiary hearing be scheduled by the Court; (3) the temporary restraining
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`order granted pursuant to the Court’s Order to Show Cause dated July 15, 2021 [Doc. No. 57] be
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`dissolved in its entirety; (4) Defendant’s Motion to Dismiss pursuant to CPLR § 3211(a)(8) be
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`denied; and (5) the Court grant such further and other relief as the Court deems just and proper.
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`Dated: Buffalo, New York
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`July 22, 2021
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`/s/ Kristine N. Celeste
`Kristine N. Celeste, Esq.
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`3
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`3 of 3
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