Preview
FILED: NEW YORK COUNTY CLERK 01/29/2024 03:57 PM INDEX NO. 101474/2019
NYSCEF DOC. NO. 268 RECEIVED NYSCEF: 01/29/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
..---------------------------------------.._ __....___.....__.._______Ç
Magdalena Trzuskot (aka "Maggie Trzuskot") Index No. 101474/2019
Plaintiff,
AFFIRMATION IN SUPPORT OF
RE-NEWAL AND RE-ARGUMENT
OF DEFAULT APPLICATION
[On Motion #012 and re: Ex-Parte
Motion #011, Motion #009, and Motion
#010]
-against-
Carl Johann Johnson (personally, and as Interim
CEO of Bitt.com, Chief of Staff of Tzero.com, and
Executive/Special Assistant/Employee of Overstock.com,
Patrick Byrne, professionally as Former CEO of
Overstock.com/Overstock.com, Gabriel Abed
(as a Board Member of Bitt.com), Bitt.com, and tZERO.com.
Magdalena Trzuskot, pro se, not an attorney admitted to practice law before ANY courts in ANY
jurisdiction, affirms under penalty of perjury the following:
1. I am fully familiar with the facts and circumstances of this case.
2. I respectfully submit this affirmation in support of the relief I am seeking in my Notice of
Motion.
PROCEDURAL HISTORY OF APPLICATION FOR DEFAULT JUDGMENT
3. On August 24*, 2023, Plaintiff moved (Motion #009) the Court for default judgment
against bitt.com, tZERO.com and Overstock.com. See Exhibit A.
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4. This submission failed to include the required documentation in support of a default
judgment application. And as a result of Plaintiff overlooking the factual and legal
documents required, this Court also overlooked the relevant facts. Plaintiff mistakenly
thought NYSCEF Documentation already filed was sufficient.
5. On December 1", 2023, J.S.C. Hagler released his Decision and Order on that Motion and
denied default judgment. See Exhibit B.
6. Within 30 days of that Decision and Order, on December 22nd, 2023, Plaintiff noticed a
cross-motion for leave to renew/reargue THAT PRIOR motion for default judgment as
against all parties, however TZERO in particular. See Exhibit C.
7. However, Plaintiff, once again, failed to include all the required information and
documentation in support of a default judgment application for proper consideration as
against all parties.
8. Therefore, arguments with respect to Bitt.com, tZERO.com and Overstock.com for default
application are pursuant to leave to renew based upon new facts not covered in the prior
motions, and pursuant to leave to reargue.
9. The reason for this failure is I am inexperienced, not a licensed attorney, did not understand
procedural law clearly, and could not find any clear summary of the necessary documents
recently.1
required for a default application until
LEGAL SERVICE HISTORY ON CORPORATE ENTITIES
NY]2
1. Overstock.com, Inc. ("Overstock.com") [Authorized Foreign Corporation in
Checklist for Motion for Default Judgment - Hon. Ellen retrieved from
Tobin, A.J.S.C.,
https://www.nvcourts.gov/LegacyPDFS/COURTS/10JD/nassau/pdf/Tobinchklist.pdf.
2
See Exhibit E. for NY Department of State Entity Information, OVERSTOCK.COM, INC.
2
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10. On August 2, 2022, leave was granted to serve additional, new defendants by Judge Hagler
1"
on Motion #006. See Exhibit D. Plaintiff was to serve the supplemental summons and
Amended Complaint within 30 days after service of a copy of the Order with Notice of
Entry upon Overstock.com, Bitt.com, and Tzero.com.
1"
11. Process Service job completed in connection with OverstocAcom: Date legal process
service completed: August 10, 2022 upon Patrick Byrne, Former CEO, served via the
following method: personal residence, via posted copy of the same in a conspicuous place
after three attempted personal service, under CPLR Section 308(4)3. See Exhibit F.
12. Patrick Byrne appeared in the action via Counsel, and court dismissed him from this action
as a litigant in his personal capacity, albeit that remains an open issue as this case has not
been permanently resolved at yet.
1"
13. Consequently, Plaintiff served the Amended Complaint on Overstock.com Head Office.
2""
14. Process Service job completed on Overstockcom: Date legal process service
completed against Overstock Head Office: September 21, 2022 via the following method:
on Tyler Montgomery, to a person of suitable age and discretion; person authorized to
accept service at Overstock.com Head Office in Utah; Pursuant to CPLR 311 (a)(1) "upon
any domestic of foreign corporation, to an officer, director, managing or general agent or
3
"where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the
door of either the actual place of business,
dwelling place or usual place of abode within the state of the person to be
served and by either mailing to such person at his or her last known residence or by mailing the
the summons
summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing
confidential"
the legend "personal and and not indicating on the outside thereof, by return address or otherwise, that
the communication is from an attorney or concerns an action against the person to be served, such affixing and
mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the
court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later;
service shall be complete ten days after such filing, except in matrimonial actions where service hereunder may be
made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-
law."
two of the domestic relations
3
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cashier or assistant cashier or to any other agent authorized by appointment or by law to
service." G..'
receive And CPLR 308(2)4. See Exhibit
3"'
15. Process Service job completed on Overstock.com: Plaintiff thereafter served the
Delaware Secretary of State. Date of legal process service completed: October 26, 2023.
Pursuant to NY Business Corporation law section 306 - Service on of State.
(b) Secretary
See Exhibit H.
4'"
16. Process Service job completed on Overstock.com: Plaintiff also served
Overstock.com's Registered Agent in Delaware. Date of legal process service completed:
October 25, 2023. Pursuant to NY Business Corporation law section 306 - Service of
(a)
process on a Registered Agent. See Exhibit I.
5'*
17. Process Service job completed on Overstock.com: Plaintiff also served
Overstock.com's local Registered Agent in Utah. Date of legal process service completed:
December 2023. Pursuant to NY Business Corporation law section 306 - Service
19, (a)
of process on a Registered Agent. See Exhibit J.
4
Personal service upon a natural person. Personal service upon a natural person shall be made by any of
the following methods: 2. by delivering the summons within the state to a person of suitable age and
discretion at the actual place of business, dwelling place or usual place of abode of the person to be served
and by either mailing the summons to the person to be served at his or her last known residence or by
mailing the summons by first
to the personclass mail
to be served at his or her actual place of business in
confidential"
an envelope bearing the legend "personal and and not indicating on the outside thereof, by
return address or otherwise, that the communication is from an attorney or concerns an action against the
person to be served, such delivery and mailing to be effected within twenty days of each other; proof of
such service shall be filed with the clerk of the court designated in the summons within twenty days of
either such delivery or mailing, whichever is effected later; service shall be complete ten days after such
filing; proof of service shall identify such person of suitable age and discretion and state the date, time and
place of service, except in matrimonial actions where service hereunder may be made pursuant to an order
made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic
relations law.
5 -
This process service comports with CPLR section 313 service without the state giving personal
jurisdiction.
4
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6'*
18. Process Service job completed on Overstock.com: Plaintiff also served Overstock.com
on an authorized person (Josh Poulsen) at actual place of business. Date of legal process
service completed: December 19, 2023. Pursuant to CPLR 311(a)(1). See Exhibit K.
7'"
19. Process Service job completed on Overstock.com: Plaintiff also served Overstock.com
via NY Secretary of State. Date of legal process service completed: January 22, 2024.
(b)- State.6
Pursuant to NY Business Corporation Law section306 Service on Secretary of
See Exhibit L.
NY]7
2. tZERO Group, Inc. ("tZERO.com") [Authorized Foreign Corporation in
1"
20. Process Service job completed on tZERO.com: Date legal process service completed:
August 11, 2022 at actual place of business upon authorized person to accept Kevin
Wilches. Pursuant to CPLR 311 (a)(1) "upon any domestic of foreign corporation, to an
officer, director, managing or general agent or cashier or assistant cashier or to any other
service."
agent authorized by appointment or by law to receive And See Exhibit N.
2""
21. Process Service job completed for tZERO.com: Plaintiff thereafter served the
Delaware Secretary of State. Date of legal process service completed: October 26, 20238.
Pursuant to NY Business Corporation law section 306 - Service on of State
(b) Secretary
given tZERO is registered in NY. See Exhibit 0.
6
This additional service was completed should there be any issues with Delaware Secretary of State and
complete"
"service under BCL s. 306(b).
'
See Exhibit M for Department of State Division of Corporation, TZERO GROUP, INC.
8
Additional notice under CPLR 3215 (g)(4) (copy of summons and notice of service for authorized foreign
corp) served by BCL section 306.
5
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3''
22. Process Service completed for tZERO.com: Plaintiff also served tZERO.com's
Registered Agent in Delaware. Date of legal process service completed: October 25, 20239.
Pursuant to NY Business Corporation law section 306 - Service of process on a
(a)
Registered Agent. See Exhibit P. tZERO admitted to this legal process - upon its
Registered Agent in Delaware. See. Exhibit V.
4*
23. Process Service completed for tZERO.com: Plaintiff also served tZERO's last known
address via Mail. See Exhibit Q.
5*
24. Process service completed on tZERO.com: Plaintiff also served tZERO.com via NY
Secretary of State. Date of legal process service completed: January 22, 2024.10. Pursuant
- State."
to NY Business Corporation Law section 306 (b) Service on Secretary of S_ee
Exhibit R.
"Bitt.com"
3. Bitt Inc., [Unauthorized/Unregistered Foreign Corporation located in
Barbados]¹2
25. A Legal Process Server completed service upon Bitt.com on August 19, 2022 via DHL
shipment, registered mail re: service upon Gabriel Abed, Board Member and Bitt Inc. S_ee
Exhibit T.
9
Additional notice under CPLR 3215 (g)(4) (copy of summons and notice of service for authorized
foreign corp) served by BCL section 306.
l°
Additional notice under CPLR 3215 (g)(4) (copy of summons and notice of service for authorized
foreign corp) served by BCL section 306.
"
Should there be any issues with Delaware Secretary of State legal service. Presumably there is not.
2
Bitt.com or Bitt Inc. is NOT registered as a corporate entity under Utah Business Search, however, it is
Company"
registered as an "International Business as Bitt Inc. under Barbados Corporate Law. Its former
address was Suite 8, Hastings Plaza, Hastings, Christ Church, Barbados, and initial documents were
3d
served upon its current address: Floor, Cedar Court, Wildey Business Park, Wildey, Barbados. S_ee
Exhibit S.
6
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WHETHER DEFAULT JUDGMENT APPLICATION WAS BROUGHT WITHIN ONE
(1) YEAR OF WHEN AN ANSWER WAS DUE AND PROOF OF DEFAULT
26. Prior Default Judgment Application mistakenly claimed the default application was
brought after one year of when an answer was due as against some of the defendants. This
was a calculating error.
1" renewed/re-
27. The Default Judgment Application was brought on August 24"', 2023 and
applied on December 22, 2023, and is currently pending, as against tZERO.com, and other
defendants not noticed (i.e Overstock and Bitt).
1"
A. tZERO's Default of the Amended Complaint
L Under CPLR section 311(a)(1) [personal delivery to authorized to receive
service] and CPLR section 308(2) [recipient be a person of suitable age and
discretion at the defendant's actual place of business]
1"
28. tZERO.com's service (Exh. N) was completed via CPLR section 31 l(a)(1) on August
11, 2022. It was served personally upon a person authorized to accept and mailed to actual
place of business pursuant to Section 308(2).
1"
29. The Amended Complaint was served with the Summons.
30. Plaintiff uploaded/filed the Affidavit of Service to NYSCEF Septernber 8, 2022. Service
is deemed complete 10 days after filing proof of service. Service was completed September
19. 2022.
31. Pursuant to CPLR 3012 (c), tZERO had within 30 days to answer (after completed service),
so by October 19. 2022.
32. Pursuant to CPLR 3012 (d), tZERO did NOT seek an extension of time to appear or plead.
7
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33. Pursuant to CPLR 320(a), tZERO had 30 days after service was complete to appear or file
a motion which has the effect of extending the time to answer if the summons was served
pursuant to section 308(2). No motion was filed.
34. Therefore, tZERO defaulted.
35. On August 24*, 2023, Plaintiff moved the Court for default judgment (first) application,
tZERO.com.1³
which was brought within 1 year of when an answer was due from
II. Under BCL Section 306 (a)(b)(1)(2)(d)
2nd - 3rd -
36. Further, tZERO.com's (EXh. O Delaware Secretary), (Exh. P Delaware
4* -
Registered Agent) and (Exh. Q Last Known Address) services were completed
under BCL section 306 on October 26, 2023.
1"
37. Plaintiff served the required documents pertaining to the Amended Complaint only;
again.
38. Notices included a Notice of Default pursuant to CPLR section 3215 (g) (4)(i)(ii), which
states that a default judgment is sought against a corporation that has been served pursuant
to BCL section 306 (b) initially. Plaintiff misunderstood/was confused by this language,
such that she simply re-served the initial summons and notices, plus the additional Notice
under CPLR 3215 (g)(4)(i)(ii) upon the secretary of state, registered agent, and by first
class mail on corporation's last known address. Hence, this additional service was
Plaintiff's notice to tZERO.com that she was holding them in default under section
13
The first application incorrectly and mistakenly claimed the default was brought past a year of
when an answer was due.
8
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311(a)(1) and potentially under section 306(b) if a default application was to be denied
2nd
and/or subsequently renewed while Plaintiff sought a stay of service of the Amended
Complaint pending the outcome of the default application.
39. tZERO.com was served by its Delaware Registered Agent, which served them on
November 1, 2023. as their proof shows.
40. On November 6. 2023, Plaintiff uploaded/filed all 3 affidavits of service to NYSCEF.
41. The Secretary of State was served on October 26. 2023, so service was completed then,
and tZERO had until November 25. 2023 to serve an answer.
42. Pursuant to CPLR3012 (c), tZERO had within 30 days to answer (after completed service).
43. Even 30 days from their Registered Agent's service would have resulted in an answer being
due on or about December 4. 2023.
44. tZERO.com filed their Notice of Motion on December
Preview
FILED: NEW YORK COUNTY CLERK 01/29/2024 03:57 PM INDEX NO. 101474/2019 NYSCEF DOC. NO. 268 RECEIVED NYSCEF: 01/29/2024 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ..---------------------------------------.._ __....___.....__.._______Ç Magdalena Trzuskot (aka "Maggie Trzuskot") Index No. 101474/2019 Plaintiff, AFFIRMATION IN SUPPORT OF RE-NEWAL AND RE-ARGUMENT OF DEFAULT APPLICATION [On Motion #012 and re: Ex-Parte Motion #011, Motion #009, and Motion #010] -against- Carl Johann Johnson (personally, and as Interim CEO of Bitt.com, Chief of Staff of Tzero.com, and Executive/Special Assistant/Employee of Overstock.com, Patrick Byrne, professionally as Former CEO of Overstock.com/Overstock.com, Gabriel Abed (as a Board Member of Bitt.com), Bitt.com, and tZERO.com. Magdalena Trzuskot, pro se, not an attorney admitted to practice law before ANY courts in ANY jurisdiction, affirms under penalty of perjury the following: 1. I am fully familiar with the facts and circumstances of this case. 2. I respectfully submit this affirmation in support of the relief I am seeking in my Notice of Motion. PROCEDURAL HISTORY OF APPLICATION FOR DEFAULT JUDGMENT 3. On August 24*, 2023, Plaintiff moved (Motion #009) the Court for default judgment against bitt.com, tZERO.com and Overstock.com. See Exhibit A. 1 of 29 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:57 PM INDEX NO. 101474/2019 NYSCEF DOC. NO. 268 RECEIVED NYSCEF: 01/29/2024 4. This submission failed to include the required documentation in support of a default judgment application. And as a result of Plaintiff overlooking the factual and legal documents required, this Court also overlooked the relevant facts. Plaintiff mistakenly thought NYSCEF Documentation already filed was sufficient. 5. On December 1", 2023, J.S.C. Hagler released his Decision and Order on that Motion and denied default judgment. See Exhibit B. 6. Within 30 days of that Decision and Order, on December 22nd, 2023, Plaintiff noticed a cross-motion for leave to renew/reargue THAT PRIOR motion for default judgment as against all parties, however TZERO in particular. See Exhibit C. 7. However, Plaintiff, once again, failed to include all the required information and documentation in support of a default judgment application for proper consideration as against all parties. 8. Therefore, arguments with respect to Bitt.com, tZERO.com and Overstock.com for default application are pursuant to leave to renew based upon new facts not covered in the prior motions, and pursuant to leave to reargue. 9. The reason for this failure is I am inexperienced, not a licensed attorney, did not understand procedural law clearly, and could not find any clear summary of the necessary documents recently.1 required for a default application until LEGAL SERVICE HISTORY ON CORPORATE ENTITIES NY]2 1. Overstock.com, Inc. ("Overstock.com") [Authorized Foreign Corporation in Checklist for Motion for Default Judgment - Hon. Ellen retrieved from Tobin, A.J.S.C., https://www.nvcourts.gov/LegacyPDFS/COURTS/10JD/nassau/pdf/Tobinchklist.pdf. 2 See Exhibit E. for NY Department of State Entity Information, OVERSTOCK.COM, INC. 2 2 of 29 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:57 PM INDEX NO. 101474/2019 NYSCEF DOC. NO. 268 RECEIVED NYSCEF: 01/29/2024 10. On August 2, 2022, leave was granted to serve additional, new defendants by Judge Hagler 1" on Motion #006. See Exhibit D. Plaintiff was to serve the supplemental summons and Amended Complaint within 30 days after service of a copy of the Order with Notice of Entry upon Overstock.com, Bitt.com, and Tzero.com. 1" 11. Process Service job completed in connection with OverstocAcom: Date legal process service completed: August 10, 2022 upon Patrick Byrne, Former CEO, served via the following method: personal residence, via posted copy of the same in a conspicuous place after three attempted personal service, under CPLR Section 308(4)3. See Exhibit F. 12. Patrick Byrne appeared in the action via Counsel, and court dismissed him from this action as a litigant in his personal capacity, albeit that remains an open issue as this case has not been permanently resolved at yet. 1" 13. Consequently, Plaintiff served the Amended Complaint on Overstock.com Head Office. 2"" 14. Process Service job completed on Overstockcom: Date legal process service completed against Overstock Head Office: September 21, 2022 via the following method: on Tyler Montgomery, to a person of suitable age and discretion; person authorized to accept service at Overstock.com Head Office in Utah; Pursuant to CPLR 311 (a)(1) "upon any domestic of foreign corporation, to an officer, director, managing or general agent or 3 "where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing to such person at his or her last known residence or by mailing the the summons summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing confidential" the legend "personal and and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty- law." two of the domestic relations 3 3 of 29 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:57 PM INDEX NO. 101474/2019 NYSCEF DOC. NO. 268 RECEIVED NYSCEF: 01/29/2024 cashier or assistant cashier or to any other agent authorized by appointment or by law to service." G..' receive And CPLR 308(2)4. See Exhibit 3"' 15. Process Service job completed on Overstock.com: Plaintiff thereafter served the Delaware Secretary of State. Date of legal process service completed: October 26, 2023. Pursuant to NY Business Corporation law section 306 - Service on of State. (b) Secretary See Exhibit H. 4'" 16. Process Service job completed on Overstock.com: Plaintiff also served Overstock.com's Registered Agent in Delaware. Date of legal process service completed: October 25, 2023. Pursuant to NY Business Corporation law section 306 - Service of (a) process on a Registered Agent. See Exhibit I. 5'* 17. Process Service job completed on Overstock.com: Plaintiff also served Overstock.com's local Registered Agent in Utah. Date of legal process service completed: December 2023. Pursuant to NY Business Corporation law section 306 - Service 19, (a) of process on a Registered Agent. See Exhibit J. 4 Personal service upon a natural person. Personal service upon a natural person shall be made by any of the following methods: 2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first to the personclass mail to be served at his or her actual place of business in confidential" an envelope bearing the legend "personal and and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law. 5 - This process service comports with CPLR section 313 service without the state giving personal jurisdiction. 4 4 of 29 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:57 PM INDEX NO. 101474/2019 NYSCEF DOC. NO. 268 RECEIVED NYSCEF: 01/29/2024 6'* 18. Process Service job completed on Overstock.com: Plaintiff also served Overstock.com on an authorized person (Josh Poulsen) at actual place of business. Date of legal process service completed: December 19, 2023. Pursuant to CPLR 311(a)(1). See Exhibit K. 7'" 19. Process Service job completed on Overstock.com: Plaintiff also served Overstock.com via NY Secretary of State. Date of legal process service completed: January 22, 2024. (b)- State.6 Pursuant to NY Business Corporation Law section306 Service on Secretary of See Exhibit L. NY]7 2. tZERO Group, Inc. ("tZERO.com") [Authorized Foreign Corporation in 1" 20. Process Service job completed on tZERO.com: Date legal process service completed: August 11, 2022 at actual place of business upon authorized person to accept Kevin Wilches. Pursuant to CPLR 311 (a)(1) "upon any domestic of foreign corporation, to an officer, director, managing or general agent or cashier or assistant cashier or to any other service." agent authorized by appointment or by law to receive And See Exhibit N. 2"" 21. Process Service job completed for tZERO.com: Plaintiff thereafter served the Delaware Secretary of State. Date of legal process service completed: October 26, 20238. Pursuant to NY Business Corporation law section 306 - Service on of State (b) Secretary given tZERO is registered in NY. See Exhibit 0. 6 This additional service was completed should there be any issues with Delaware Secretary of State and complete" "service under BCL s. 306(b). ' See Exhibit M for Department of State Division of Corporation, TZERO GROUP, INC. 8 Additional notice under CPLR 3215 (g)(4) (copy of summons and notice of service for authorized foreign corp) served by BCL section 306. 5 5 of 29 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:57 PM INDEX NO. 101474/2019 NYSCEF DOC. NO. 268 RECEIVED NYSCEF: 01/29/2024 3'' 22. Process Service completed for tZERO.com: Plaintiff also served tZERO.com's Registered Agent in Delaware. Date of legal process service completed: October 25, 20239. Pursuant to NY Business Corporation law section 306 - Service of process on a (a) Registered Agent. See Exhibit P. tZERO admitted to this legal process - upon its Registered Agent in Delaware. See. Exhibit V. 4* 23. Process Service completed for tZERO.com: Plaintiff also served tZERO's last known address via Mail. See Exhibit Q. 5* 24. Process service completed on tZERO.com: Plaintiff also served tZERO.com via NY Secretary of State. Date of legal process service completed: January 22, 2024.10. Pursuant - State." to NY Business Corporation Law section 306 (b) Service on Secretary of S_ee Exhibit R. "Bitt.com" 3. Bitt Inc., [Unauthorized/Unregistered Foreign Corporation located in Barbados]¹2 25. A Legal Process Server completed service upon Bitt.com on August 19, 2022 via DHL shipment, registered mail re: service upon Gabriel Abed, Board Member and Bitt Inc. S_ee Exhibit T. 9 Additional notice under CPLR 3215 (g)(4) (copy of summons and notice of service for authorized foreign corp) served by BCL section 306. l° Additional notice under CPLR 3215 (g)(4) (copy of summons and notice of service for authorized foreign corp) served by BCL section 306. " Should there be any issues with Delaware Secretary of State legal service. Presumably there is not. 2 Bitt.com or Bitt Inc. is NOT registered as a corporate entity under Utah Business Search, however, it is Company" registered as an "International Business as Bitt Inc. under Barbados Corporate Law. Its former address was Suite 8, Hastings Plaza, Hastings, Christ Church, Barbados, and initial documents were 3d served upon its current address: Floor, Cedar Court, Wildey Business Park, Wildey, Barbados. S_ee Exhibit S. 6 6 of 29 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:57 PM INDEX NO. 101474/2019 NYSCEF DOC. NO. 268 RECEIVED NYSCEF: 01/29/2024 WHETHER DEFAULT JUDGMENT APPLICATION WAS BROUGHT WITHIN ONE (1) YEAR OF WHEN AN ANSWER WAS DUE AND PROOF OF DEFAULT 26. Prior Default Judgment Application mistakenly claimed the default application was brought after one year of when an answer was due as against some of the defendants. This was a calculating error. 1" renewed/re- 27. The Default Judgment Application was brought on August 24"', 2023 and applied on December 22, 2023, and is currently pending, as against tZERO.com, and other defendants not noticed (i.e Overstock and Bitt). 1" A. tZERO's Default of the Amended Complaint L Under CPLR section 311(a)(1) [personal delivery to authorized to receive service] and CPLR section 308(2) [recipient be a person of suitable age and discretion at the defendant's actual place of business] 1" 28. tZERO.com's service (Exh. N) was completed via CPLR section 31 l(a)(1) on August 11, 2022. It was served personally upon a person authorized to accept and mailed to actual place of business pursuant to Section 308(2). 1" 29. The Amended Complaint was served with the Summons. 30. Plaintiff uploaded/filed the Affidavit of Service to NYSCEF Septernber 8, 2022. Service is deemed complete 10 days after filing proof of service. Service was completed September 19. 2022. 31. Pursuant to CPLR 3012 (c), tZERO had within 30 days to answer (after completed service), so by October 19. 2022. 32. Pursuant to CPLR 3012 (d), tZERO did NOT seek an extension of time to appear or plead. 7 7 of 29 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:57 PM INDEX NO. 101474/2019 NYSCEF DOC. NO. 268 RECEIVED NYSCEF: 01/29/2024 33. Pursuant to CPLR 320(a), tZERO had 30 days after service was complete to appear or file a motion which has the effect of extending the time to answer if the summons was served pursuant to section 308(2). No motion was filed. 34. Therefore, tZERO defaulted. 35. On August 24*, 2023, Plaintiff moved the Court for default judgment (first) application, tZERO.com.1³ which was brought within 1 year of when an answer was due from II. Under BCL Section 306 (a)(b)(1)(2)(d) 2nd - 3rd - 36. Further, tZERO.com's (EXh. O Delaware Secretary), (Exh. P Delaware 4* - Registered Agent) and (Exh. Q Last Known Address) services were completed under BCL section 306 on October 26, 2023. 1" 37. Plaintiff served the required documents pertaining to the Amended Complaint only; again. 38. Notices included a Notice of Default pursuant to CPLR section 3215 (g) (4)(i)(ii), which states that a default judgment is sought against a corporation that has been served pursuant to BCL section 306 (b) initially. Plaintiff misunderstood/was confused by this language, such that she simply re-served the initial summons and notices, plus the additional Notice under CPLR 3215 (g)(4)(i)(ii) upon the secretary of state, registered agent, and by first class mail on corporation's last known address. Hence, this additional service was Plaintiff's notice to tZERO.com that she was holding them in default under section 13 The first application incorrectly and mistakenly claimed the default was brought past a year of when an answer was due. 8 8 of 29 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:57 PM INDEX NO. 101474/2019 NYSCEF DOC. NO. 268 RECEIVED NYSCEF: 01/29/2024 311(a)(1) and potentially under section 306(b) if a default application was to be denied 2nd and/or subsequently renewed while Plaintiff sought a stay of service of the Amended Complaint pending the outcome of the default application. 39. tZERO.com was served by its Delaware Registered Agent, which served them on November 1, 2023. as their proof shows. 40. On November 6. 2023, Plaintiff uploaded/filed all 3 affidavits of service to NYSCEF. 41. The Secretary of State was served on October 26. 2023, so service was completed then, and tZERO had until November 25. 2023 to serve an answer. 42. Pursuant to CPLR3012 (c), tZERO had within 30 days to answer (after completed service). 43. Even 30 days from their Registered Agent's service would have resulted in an answer being due on or about December 4. 2023. 44. tZERO.com filed their Notice of Motion on December