12/15/09: Defendant’s Motion to Dismiss with Prejudice

Comes now, Defendant, [redacted]  and moves pursuant to NY C.P.L.R. Article 22 § 3211 and NY C.P.L.R. Article 3 § 306 b & 308, to dismiss plaintiff’s Complaint for insufficiency of process.

This motion is supported by my exhibits:

Exhibit A: [Exhibit of service from the plaintiff’s Attorney.]
Exhibit B: [Exhibit of Baker Declaration, Exhibit B.]
Exhibit C, [Exhibit of The Honorable Ann Pfau, Chief Administrative Judge of the New York State Unified Court System, verified petition page 7, #35, #36]

DECLARATION

1) I am [redacted] and I am the defendant in this action, and I declare under penalty of perjury that the following is true and accurate to the best of my knowledge.

2) Defendant can not afford to hire an attorney to represent his self in this case and is representing his self.

3) On 10/05/2009 Rondout Legal Service, or its servers, prepared affidavit of service representing that, when the server used nail-and-mail service, the server confirmed with The Defendant’s Land Lady, a 2nd Floor neighbor of the address to which the summons and complaint was affixed that: (i) the address was in fact the address of the named defendant, and (ii) the named defendant was not in military service.

4) I received the affidavit of service from the plaintiff’s attorney, Cohen and Slamowitz. [Exhibit A]

5) In this affidavit of service, the process server Mark McCumber with Rondout, states that he served me on 10/03/09 by posting the summons and complaint at my door.

6) However, the summons and complaint were not posted at my door until 10/10/09.

7) Processes server Mark McCumber, also stated that he mailed the summons and complaint to my address on 10/07/09

8) I never received this mailing.

9) On 11/06/2009, Representative Christine Baker, contacted the plaintiff’s Attorney, David Robinson, by fax and explained that the affidavit of service contained false statements. [Exhibit B, fax]

10) I received no response from Attorney David Robinson or anyone else from Cohen & Slamowitz.

11) According to my representative, Christine Baker, she called Cohen & Slamowitz on 11-23-2009 and spoke with Lisa D’Alessio, a manager, and she stated that the false information on the affidavit of service was irrelevant as I had received the complaint and summons.
[Baker Declaration, Exhibit B]

12) Mr. Baker also requested copies of all correspondence mailed to Cohen & Slamowitz by FDRS, the company I had been paying to eliminate my debts including the Citibank account. [Baker Declaration, Exhibit B]

13) To date received no response from Cohen & Slamowitz.

14) In July 2009, the NY Supreme Court ordered over 100,000 default judgments against consumers vacated and/or restitution paid because the process servers routinely falsified the dates and means of service.

15) Plaintiff’s attorneys Cohen & Slamowitz was one of the respondents named in the 7/21/09 Supreme Court Order to Show Cause. [Exhibit C]

16) My exhibits are true copies of the originals or were obtained at the websites identified on the exhibits.


CONCLUSION

The Honorable Ann Pfau, Chief Administrative Judge of the New York State Unified Court System, wrote in the verified petition on Page 7 #35 & #36. “Affidavits of service swear to the truthfulness of the information contained therein. Persons who are sued and the courts rely on the presumption that the affidavits are truthful. They all must be able to rely on the truthfulness of the affidavits for the courts to render decisions in those disputes, leaving no question as to the validity and fairness of those decisions. The integrity of the court system depends upon the confidence of the litigants and public that courts provide justice, and there can be no such confidence when there is doubt whether parties received proper notice to appear in court to be heard in the underlying case. When false affidavits of service are relied upon to form the basis of a default judgment, a defendant is deprived of his or her opportunity to appear to answer the summons and complaint, and to prevent a wrongful default judgment. The harm to such defendants is substantial, becoming subject to judgments to which they had no opportunity to be heard and to present any cognizable defense, and suffering the significant collateral consequences of having judgments entered against them. And the courts will be burdened by service litigation as the parties dispute the validity of the service in contesting the legality of default judgment.” [Exhibit C, page 7]

To my knowledge, Cohen & Slamowitz has done nothing to determine why the affidavit of service was falsified.

RELIEF SOUGHT

Wherefore, the Defendant [redacted] asks this court to dismiss this case with prejudice and for all other proper relief.

Dated this 14th day of December, 2009.

[Defendant’s name and address redacted]


This motion was returned to the Defendant TWICE because he did not properly notice the motion. So it was filed on 12-15-09, 1-15-10 and FINALLY filed on 1-26-10.



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