Forest Walnut LLC v Abizker
2024 NY Slip Op 30380(U)
February 2, 2024
Supreme Court, New York County
Docket Number: Index No. 652514/2022
Judge: Nancy M. Bannon
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 652514/2022
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/02/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. NANCY M. BANNON PART 42
Justice
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INDEX NO. 652514/2022
FOREST WALNUT LLC and JACOB ADONI,
MOTION DATE 11/03/2023
Plaintiff,
MOTION SEQ. NO. 003
- V -
ZOHAR ABIZKER a/k/a Zahar Cohen a/k/a Zack Cohen,
SHEAR ABIZKER a/k/a Shear Cohen a/k/a Bonnie Kesler,
HARVEY J. LAWRENCE, OLD AMERICAN FINANCIAL, DECISION + ORDER ON
LP., and ALLIANCEBERNSTEIN HOLDING LP MOTION
Defendants.
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The following e-filed documents, listed by NYSCEF document number (Motion 003) 45, 46, 47, 48, 49,
50,51,52,53,54
were read on this motion to/for JUDGMENT - DEFAULT
In this breach of contract action, the plaintiffs allege that the defendants orally agreed to
supply them with 200 repossessed luxury automobiles, brands such as Bentley, Rolls Royce
and Ferrari, which the plaintiffs planned to sell for an estimated profit of $30 million. The
plaintiffs allege that they paid the defendants $125,000 as a down payment on the vehicles and
that the defendants never delivered any vehicle to them.
By an order dated November 22, 2022, the court granted an unopposed motion by
defendant Alliance Bernstein Holding LP to dismiss the complaint on the ground of failure to
state a cause of action (CPLR 3211 [a][7]) (MOT SEQ 001 ). By an order dated January 9, 2023,
the court denied a motion by the plaintiff to vacate its default on that motion. (MOT SEQ 002).
That decision was affirmed on appeal. See Forest Walnut LLC v Abizker, ----- AD3d ---- , 2024
NY Slip Op 0045) (1 st Dept. February 1, 2024).
The plaintiffs now move pursuant to CPLR 3215 for leave to enter a default judgment
against the remaining defendants, Zahar Abizker (a/k/a Zahar Cohen a/k/a Zack Cohen), Shear
Abizker (a/k/a Shear Cohen a/k/a Bonnie Kesler), Harvey J. Lawrence and Old American
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Motion No. 003
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NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/02/2024
Financial, LP. As against these defendants, the complaint includes causes of action entitled
breach of contract, declaratory judgment/specific performance, conversion/theft, and
fraud/scheme to defraud. In essence, the plaintiffs seek either the return of the purported
$125,000 deposit or delivery of the vehicles they were purportedly promised. The plaintiffs also
seek leave to amend the complaint to change the name of the corporate plaintiff to Forest
Walnut II LLC. No opposition is submitted. The motion is denied without prejudice.
"On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant
is required to submit proof of service of the summons and complaint, proof of the facts
constituting the claim, and proof of the defaulting party's default in answering or appearing (see
CPLR 3215[f]; Allstate Ins. Co. v Austin, 48 AD3d 720, 720)." Atlantic Cas. Ins. Co. v RJNJ
Services, Inc. 89 AD3d 649 (2 nd Dept. 2011). "CPLR 3215 does not contemplate that default
judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown.
Some proof of liability is also required to satisfy the court as to the prima facie validity of the
uncontested cause of action [see, 4 Weinstein-Korn-Miller, NY Civ Prac paras. 3215.22-
3215.27]." Joosten v Gale, 129 AD2d 531, 535 (1 st Dept 1987); see Martinez v Reiner, 104
AD3d 477, 478 (1 st Dept 2013); Beltre v Babu, 32 AD3d 722, 723 (1 st Dept 2006); Atlantic Cas.
Ins. Co. v RJNJ Services, Inc. 89 AD3d 649 (2 nd Dept. 2011). As such, "[w]here a valid cause of
action is not stated, the party moving for a default judgment is not entitled to the requested
relief, even on default." Green v Dolphy Constr. Co. Inc., 187 AD2d 635, 636 (2 nd Dept. 1992).
Initially, the court notes that the plaintiffs concede that the motion is untimely as to
defendant Zahar Abizker. The action was commenced on July 21, 2022. This motion was filed
on September 13, 2023. The affidavits of service submitted show that defendant Zahar Abizker
was served on July 21, 2022, Shear Abizker was served on September 28, 2022, Old American
Financial LP was served on September 15, 2022, and Harvey Lawrence was served on
September 22, 2022. CPLR 3215( c) requires that any motion for a default judgment be made
within one year of the alleged default and that any untimely motion be denied, and the complaint
be dismissed as abandoned, upon motion or the court's own motion, absent "sufficient cause"
shown. See Seide v Calderon, 126 AD3d 417 (1st Dept. 2015); Diaz v Perez, 113 AD3d 421 (1st
Dept. 2014); Utak v Commerce Bank, Inc., 88 AD3d 522 (1 st Dept. 2011). The plaintiffs allege
law office failure in that due to file storage issues, counsel overlooked the fact that Zahar
Abikzer was served the same day the action was commenced and mistakenly believed that he
was served about the same time as the other defendants in September 2022, making the
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motion untimely as to him. Under the circumstances, and considering that the plaintiffs detailed
the law office failure, the delay was short and the motion is unopposed, the court finds sufficient
cause and deems the motion timely as to defendant Zahar Abizker. See CPLR 2004.
On the merits, the plaintiffs submit the complaint, verified by plaintiff Jacob Adoni, an
affidavit of Adoni, an affirmation of counsel, what appears to be heavily redacted results of an
on-line skip trace service concerning defendants Shear Abizker and Zahar Abizker, bank
records of an account held in the name of Forest Walnut II LLC at People's United Bank,
various text messages and e-mails between Adoni and unidentified persons, a photo of part of a
document listing what appears to be feature or options on a vehicle with a "suggested retail
price of $537,330.00", a photo of several unidentified luxury vehicles parked in a garage, a
photo of three vehicles parked near a playground, and a close-up photo of a key fob allegedly
sent to Adoni by an unnamed defendants. No memorandum of law is submitted. The plaintiff's
submissions fall far short of establishing any cause of action against any defendant.
While Adoni alleges that he wired two payments, $50,000 and $75,000, to a defendant in
connection with the agreement, the bank records do not establish that. One transaction on
November 10, 2020, is indicated as a $50,000 "wire xfr out domestic" and another transaction
on March 26, 2021, is indicated as a $75,000 "wire xfr out domestic" with no further detail. Nor
does Adoni establish or identify the person or entity to whom these funds were sent.
Photographs of vehicles or key fobs have no evidentiary value. The text messages, which
identify only a "Bonnie Kessler'', and a partial photo of an options list are equally valueless on
the motion. No explanation of the skip tracing exhibit is proffered. Since counsel claims no
personal knowledge of the underlying facts, the affirmation of the plaintiff's counsel is without
probative value or evidentiary significance on this motion. See Zuckerman v City of New York,
49 NY2d 557 (1980); Trawally v East Clarke Realty Corp., 92 AD3d 471 (1 st Dept. 2012).
Thus, even assuming the plaintiffs have submitted sufficient proof of service of the
summons and complaint and proof of the remaining defendants' default, it has failed to submit
sufficient proof of the facts constituting the claims as against those defendants. See CPLR
3215(f). While the plaintiffs may have been improperly relieved of $125,000 with false promises,
they have not met their burden of proof on this motion. However, since the defects can be
cured, denial of the motion is without prejudice to renewal on proper papers within 30 days.
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Motion No. 003
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The plaintiffs' application to amend is also denied for failure of proof.
Accordingly, upon the foregoing papers, it is
ORDERED that the plaintiff's motion is denied without prejudice to renewal on proper
papers within 30 days of the date of this order.
This constitutes the Decision and Order of the court.
2/2/2024
DATE NANCY M. BANNON, J.S.C.
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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Motion No. 003
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