`NYSCEF DOC. NO. 66
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`INDEX NO. 801838/2020
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`RECEIVED NYSCEF: 07/22/2021
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`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF ERIE
`__________________________________________
`SAMUEL, SON & CO. (USA) INC. d/b/a ROLL
`FORM GROUP,
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`-against-
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`SIMPSON & BROWN GROUP, INC.
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`Defendant.
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`__________________________________________
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`Plaintiff,
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`Index No.: 801838/2020
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`AFFIRMATION OF ROBERT C. CARBONE
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`ROBERT C. CARBONE, an attorney duly admitted to practice law in the State of New
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`York, pursuant to CPLR Rule 2106, affirms under penalty of perjury:
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`1.
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`I am an attorney associated with the law firm Duke Holzman Photiadis &
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`Gresens, LLP, attorneys for Plaintiff, Samuel, Son & Co. (USA) Inc. d/b/a Roll Form Group
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`(“Samuel”), in the within action and, as such, I am fully familiar with the facts and
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`circumstances set forth herein and I am competent to testify as to these matters.
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`2.
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`I submit this Affirmation in Opposition to Defendant’s Order to Show Cause
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`Seeking (I) Vacatur of Default Judgment and (II) Dismissal of Complaint.
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`3.
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`Upon information and belief, Defendant, Simpson & Brown Group, Inc., is a
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`foreign business corporation organized and existing under the laws of New Jersey that is
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`authorized to do business in New York State. A true and correct report of from the New York
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`Department of State’s web site concerning Defendant’s entity status is attached herewith and
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`made a part hereof as Exhibit A.
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`1 of 2
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`FILED: ERIE COUNTY CLERK 07/22/2021 02:57 PM
`NYSCEF DOC. NO. 66
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`INDEX NO. 801838/2020
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`RECEIVED NYSCEF: 07/22/2021
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`4.
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`A true and correct excerpt from a LinkedIn web site associated with a person
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`named Whitney Fox identified as an employee of Defendant is attached herewith and made a
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`part hereof as Exhibit B. Exhibit B was accessed and captured on July 19, 2021.
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`5.
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`A true and correct copy of Executive Order 107 signed on March 21, 2020 by
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`Governor Philip D. Murphy of the State of New Jersey is attached herewith and made a part
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`hereof as Exhibit C. Paragraphs 2 and 26 of the Exhibit C implement the stay-at-home order in
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`New Jersey effective as of 9:00pm on March 21, 2020 that led to business closures.
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`6.
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`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 Plaintiff; (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/ Robert C. Carbone .
`Robert C. Carbone
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`2 of 2
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