2/19/10: Cohen & Slamowitz “Affirmation in Opposition”

INSTEAD of conducting an INVESTIGATION with regards to the service issues, Cohen & Slamowitz attorney CAROL VAN HOUTEN, ESQ. apparently did NOTHING whatsoever but submit the SAME false affidavit and complain about my attempts to resolve the issues.

Obviously, complaints with the NY Bar and with AG Cuomo are next and maybe we can finally find an attorney for my client to sue for FDCPA and possibly NY state law violations.

CAROL VAN HOUTEN, ESQ., an attorney duly admitted to the practice of law in all the Courts of the State of New York, hereby affirms pursuant to CPLR § 2106 and under penalties of perjury that:

1. I am an associate attorney with the Law Offices of Cohen & Siamowitz, LLP, attorneys for CITIBANK (SOUTH DAKOTA), N.A. (hereinafter the “Plaintiff”) herein, and as such I am fully familiar with the facts and circumstances of this case, and the proceedings heretofore had herein.

2. Plaintiff submits this Affirmation in Opposition to the Notice of Motion of [redacted] (hereinafter the “Defendant”) returnable February 23,2010, which seeks to dismiss with prejudice Plaintiff’s Complaint for lack of jurisdiction.

3. This Court should not grant the instant motion because it is premature. Moreover, there is no basis of dismissal of Plaintiffs Complaint with prejudice.

4. Plaintiff respectfully submits that even if Defendant was to prevail in demonstrating to the Court, by a preponderance of the evidence, that service was not properly effected upon him, it does not entitle him to a judgment dismissing Plaintiff’s case on its merits. A judgment resulting from the grant of a motion to dismiss is not res judicata of the entire merits of the case. David D. Siegel, New York Practice §276 (4’h ed. 2005). Plaintiff also submits that Defendant should not be afforded the requested relief simply because of his “pro-se” status. A self-represented litigant acquires no greater rights than any other litigant. Greenfield v. Gluck, 2003 N.Y. Slip Op. 50729(u), 2003WL 1961333 (App.Term 2d & II ‘h Jud. Dists. 2003), Roundtree v. Singh, 143 AD.2d 995, 533 N.Y.S.2d 609 (2nd Dept. 1988) (Court refused to order new trial to afford pro se litigant additional opportunity to establish her damages for injury to property).

5. Notwithstanding the aforementioned, this action was commenced by Plaintiff in an effort to collect monies owed by Defendant as further detailed in the Complaint. Copies of the Summons and Complaint are annexed hereto as Exhibit “A”.  A copy of the Affidavit of Service of the process server (hereinafter the “Affidavit of Service”) is annexed hereto as Exhibit “B”.

6. As set forth in the Affidavit of Service, the Defendant was properly served in strict accordance with the directives of CPLR § 308(4).

7. In the instant motion, Defendant admits to having been served the Summons and Complaint but claims the Affidavit of Service contains incorrect information. Plaintiff submits that this statement is patently untrue.

8. In the Affidavit in Support of the instant motion, Defendant alleges he never received the process mailed to him and further claims that process was posted on his door on October 10,2009, and not October 3,2009 as is sworn to in the Affidavit of Service. Plaintiff respectfully points out that Defendant fails to offer any proof in evidentiary form to support this allegation. Instead, Defendant merely makes a vague, conclusory statement as to when he allegedly received process with no facts to substantiate the allegation. In Nat’l Recovery Systems, as Assignee of Boulevard Casino Corp., N.V. dba Crystal Casino v. Weiss, 226 A.D.2d proper 289,641 N.Y.S.2d 296 (1″ Dept. 1996), the Appellate Division held that the defendant failed to raise any genuine dispute as to proper service inasmuch as he did not substantiate his assertion with facts. Plaintiff respectfully submits the process server’s Affidavit constitutes prima facie
evidence of proper service and the movant’s conclusory denial of receipt of the summons and
complaint is insufficient to raise any issue of fact. Sando Realty Corp. v. Aris, 209 A.D.2d 682, 619 N.Y.S.2d 140 (2d Dept. 1994).

9. Indeed, inasmuch as Defendant merely denies proper service and does not present a question of fact to warrant a full evidentiary hearing, Plaintiff respectfully submits that Defendant is not even entitled to a traverse hearing. Fed. Nat’! Mortgage Ass’n v. Rick Mar Construction Corp., 138 Misc.2d 316,322,523 N.Y.S.2d 963 (N.Y. Sup. Ct. 1988) (holding that in the absence of issue of fact as to whether debtors were personally served, debtors were not
entitled to hearing on validity of service of process). If, however, the Court deems there to be an issue of fact as to proper service on the Defendant, Plaintiff is entitled to a traverse hearing.

10. Defendant’s conclusory denial of receiving process on the date sworn to in the Affidavit of Service raises no issue of fact and, as such, Defendant is not entitled to a dismissal of Plaintiff’s action.

Defendant’s “Representative” not Authorized to Represent Legal Interests

11. Plaintiff respectfully points out that, upon information and belief, Defendant’s “representative”, Christine Baker (“Baker”) is not an attorney. Despite this fact, Baker appears to be representing the legal interests of Defendant. Indeed, Baker states that she has “been attempting to resolve the issues raised in the complaint with the Plaintiff’s attorneys ..,
and I subsequently discovered the discrepancies between the affidavit of service and the actual service.” See Declaration of Christine Baker in Support of Defendant’s Motion to Dismiss ¶ 2. Baker further proceeds to request an extension of time to answer Plaintiff’s complaint and make discovery demands to Plaintiff on behalf of Defendant.

12. Although Defendant provided Baker a limited power of attorney, Baker has no authorization to legally represent Defendant. In Whitehead v. Town House Equities, Ltd., 8 AD3d 369, 777 N.Y.S.2d 917 (2nd Dept. 2004), the Appellate Division stated: “A person not licensed to practice law in the State ofNew York pursuant to the Judiciary Law may not
appear pro-se in court on behalf of a litigant as attorney-in-fact pursuant to a power of attorney. A person who does so has unlawfully engaged in the unauthorized practice oflaw.”

13. As Baker is not an attorney, and as such not authorized to legally represent Defendant, Plaintiff respectfully submits that it was not improper of Plaintiff’s counsel to avoid with her the discussion of Defendant’s legal issues.

14. Lastly, it should be noted that Defendant blatantly attempts to curry favor with the court by exploiting, to his advantage, a recent case brought against Plaintiff’s counsel’s office. Defendant misconstrues the allegations brought against the collection firms named in that action and mistakenly believes that case is relevant to the instant case. Plaintiff respectfully notes that the case mentioned by Defendant pertains to a specific process server’s alleged false affidavits of service and is not in any way relevant to the instant matter.

WHEREFORE, Plaintiff respectfully requests that: 1) the Defendant’s motion seeking to dismiss Plaintiffs Complaint with prejudice should be denied on the grounds that it is premature and Defendant fails to raise any issue of fact as to improper service; 2) the costs and expenses of defending against said motion should be awarded Plaintiff; and 5) (sic) the Plaintiff be granted such other, further and different relief as this Court may deem just and proper.

Dated: Woodbury, New York
February 19,2010

Attorneys for Plaintiff
199 Crossways Park Drive
Woodbury, New York 11797-2016
(516) 364-6006

TO: [redacted]
Defendant Pro Se


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