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Plaintiff,
SUR-REPLY
V.
Defendants.
Pursuant to CPLR 2106, and under penalty of petjury Michael Jablonski, Esq., affinns the
following;
1. Affibrmant is an attorney with Woods Oviatt Oilman LLP the attorneys of record for
Motion for Order of Reference" of Defendant Michael Krichevsky ("Defendant") and in further
support ofPlaintiffs pending Motion for an Order of Reference ("Plaintiffs Motion"),and in further
Motion"). Leave for Defendant to serve additional Opposition to Plaintiffs Motion, as well as for
Plaintiffto file a Sur-Reply thereto, was granted orally by this Court on November 13,2017.
3. Defendant, to the best of Plaintiffs counsel's ability to discern, alleges that Plaintiff
has not responded to various discovery demands including but not limited to requests for
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documentary proof of the existence of the Plaintiff and that therefore Plaintiff is not entitled to an
dated October 31, 2017, Defendant is in default in Answering the Complaint and the issue has not
been joined. See AfjSrmation in Opposition of Michael Jablonski, Esq. dated October 31, 2017,
5. It remains that Defendant has not alleged a reasonable excuse for his failure to file a
timely Answer, as is required to vacate his default. Eaton v. Equitable Life Assurance Soc.. 56
N.Y.2d 900, 906, 438 N.E.2d 1119,1122,453 N.Y.S.2d 404,407,1982 N.Y. LEXIS 3505, *11-
12(1982).
6. A defaulting party is deemed to have admitted all allegations in the Complaint. See
8. "It is incumbent on the party seeking disclosure to demonstrate that the method of
discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to
lead to the discovery of information bearing on the claims r...l."Crazvtown Furniture. Inc. v
Brooklyn Union Gas Co.. 150 AD2d 420,421 (2d Dep't 1989).
9. That none of the disclosure requested by Defendant goes to the merits of the
instant motion, which is simply whether Plaintiff has demonstrated a prima facie case for
foreclosure and whether Defendant was in default in timely Answering the Complaint. See
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10. Furthermore, the sufficiency of Plaintiffs motion for a defaultjudgment pursuant to
CPLR 3215 is to be judged at the time the motion was submitted, which predated the sejrvice of any
discovery demands by Defendant. See State of NY v Williams. 26 Misc 3d 743, 749 (Sup Ct,
11. That Plaintiff has met its burden pursuant to CPLR 3215(f). See Plaintiffs
Affirmation of Regularity at Exhibits A and J. "The standard ofproof is not stringent, amounting
only to some firsthand confirmation ofthe facts." Feffer v. Malneso. 210 AD2d 60,61 (1st Dep't
1994).
12. Based on the foregoing, in light of Defendant's default and his failure to allege a
reasonable excuse for failing to submit a timely Answer,the relief requested by Plaintiff should not
13. Furthermore, U.S. Bank National Association does in fact exist, as does the Trust for
which it acts as Trustee. See Plaintiffs Affirmation of Regularity at Exhibit P, previously filed
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=100&output=xml.
14. That the various defenses alleged by Defendant in his additional Opposition have
15. That Plaintifif and its counsel categorically denies the remaining allegations,
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16. Based on the foregoing, Plaintiffs Motion must be granted, in its entirety, and
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