Preview
FILED: WESTCHESTER COUNTY CLERK 01/02/2024 11:49 AM INDEX NO. 72451/2023
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/02/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHSTER
----------------------------------------------------------------------X INDEX NO. 72451 / 2023
CHRISTOPHER CUMMINGS
and ELIZABETH GERRARD
AFFIRMATION IN SUPPORT
Plaintiffs, OF EX-PARTE MOTION TO
EXTEND TIME TO SERVE UNDER
-against- CPLR 306-B AND CPLR 2004
PETER E. GUMPEL, TRUSTEE OF THE PETER E.
GUMPEL 2020 REVOCABLE TRUST; OFFICE OF THE
WESTCHESTER COUNTY CLERK
Defendant.
----------------------------------------------------------------------X
RAJAN PATEL, an attorney admitted to practice in the Courts of the State of New York, affirms
the following under the penalties of perjury:
PRELIMINARY STATEMENT
1. I am the principal of the Law Office of Rajan Patel, counsel for plaintiffs Christopher
Cummings and Elizabeth Gerrard (“Plaintiffs”), and as such I am familiar with the facts and circumstances
described in this Affirmation. I submit this Affirmation pursuant to CPLR 2004 to extend the time to serve
defendant Peter E. Gumpel, Trustee of the Peter E. Gumpel 2020 Revocable Trust (“Gumpel”) and to
extend the efficacy of Plaintiffs’ Notice of Pendency.
2. Plaintiffs commenced this action by filing a Summons, Verified Complaint, and Notice of
Pendency on December 20, 2023. A true copy of the Summons and Verified Complaint (“Complaint”) is
annexed hereto as Exhibit A. A true copy of the Notice of Pendency (“LP”) is annexed hereto as Exhibit
B.
3. Gumpel resides in Austria and must be served pursuant to the Hague Convention on
the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the
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“Convention”). Service pursuant to the Convention is time consuming and cannot be completed within
30 days as required to preserve the efficacy of Plaintiffs’ LP pursuant to CPLR 6512, or within 120 days
as required by CPLR 306-b to avoid a potential dismissal of this action.
4. Because Plaintiffs’ pleadings have not yet been served on the only defendants in this action,
Gumpel and the Westchester County Clerk (joined solely because the relief sought involves an
order/judgment to record documents in the Westchester County Clerk’s office), Plaintiffs make this
motion ex parte.
RELEVANT FACTUAL BACKGROUND
5. Plaintiffs purchased residential real property known as 4 Braxmar Drive North, Harrison,
NY 10528 (“Property”) from Gumpel on June 6, 2023 for the sum of $960,000. In connection with the
purchase, Plaintiffs received a power-of-attorney appointing a fiduciary to execute documents required
for the sale on Gumpel’s behalf (“POA”), and a deed conveying the Property, signed by Gumpel’s
appointed agent (“Deed”). A true copy of the POA is annexed hereto as Exhibit C. A true copy of the
Deed is annexed hereto as Exhibit D.
6. At the time, Gumpel resided in Austria per his address on the Deed and POA, and the POA
was signed electronically and notarized by remote electronic notarization.
7. Although Plaintiffs were not personally aware when they received the POA, this manner
of execution is contrary to General Obligations Law § 5-1501 which bars the use of an electronic signature
on a power of attorney that is to be recorded under real property law, and State Technology Law § 307
which bars the use of an electronic signature on any document appointing a fiduciary of an individual’s
person or property, including powers of attorney.
8. The Deed and the POA (which had to be recorded together with the Deed) were submitted
for recording in the Westchester County Clerk’s Office. However, the Westchester County Clerk rejected
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them for recording, stating that the POA was not eligible for remote notarization and needed a wet
signature.
9. Since the Westchester County Clerk rejected the POA and Deed, Plaintiffs, through their
undersigned counsel, have made numerous unsuccessful attempts to arrange for Gumpel to directly
execute a replacement deed, along with the customary real estate transfer forms which must accompany
any deed submitted for recording. Consequently, Plaintiffs commenced this action to compel Gumpel to
execute a replacement deed and/or to establish their ownership of the Property in the records of the
Westchester County Clerk.
POINT I
GUMPEL CANNOT BE TIMELY SERVED AS REQUIRED BY CPLR 306-B AND 6512
10. Gumpel is an attorney, registered in the State of New York but currently residing or doing
business in Austria. A true copy of an Attorney Detail Report from the New York State Unified Court
System is annexed hereto as Exhibit E.
11. The Attorney Detail Report, Deed, and POA list his address as Prinz Eugen Str 46/15, A-
1040, Vienna, Austria. Current tax bills for the Property are addressed to Gumpel in Austria as well. A
true copy of a bill for 2023 School Tax addressed to Gumpel is annexed hereto as Exhibit F.
12. Because Gumpel resides in Austria, he must be served pursuant to the Convention.
13. The Convention is an international treaty governing service of judicial documents
between the countries that are its signatories. It provides for process to be sent to a central authority in
the foreign nation, which will then arrange for service of process on the named party in accordance with
the internal law of that country. Joseph II. v Luisa JJ., 201 AD3d 43, 48 (3d Dept 2021).
14. “Where service of process is made in a foreign country that is a signatory of the Hague
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
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Matters, compliance with the procedures of the Hague Convention is mandatory in State court proceedings
. . .” Amerasia Bank v Saiko Enters., 263 AD2d 519, 520 (2d Dept 1999); see also Luciano v Garvey
Volkswagen, Inc., 131 AD2d 253, 255 (3d Dept 1987) (“The Convention indisputably provides the
mandatory methods of service . . . an attempt to serve documents abroad must comply with the
Convention.”).
15. According to Plaintiffs’ process server DGR Legal, service in Austria under the Convention
takes a minimum of four (4) months or longer to complete and its status cannot be tracked. A defendant
may even respond to the summons and complaint before the foreign authority returns proof of service,
which may be in its official language and require translation into English before filing in court. A true
copy of correspondence from DGR Legal to this office providing details about service in accordance with
the Convention is annexed hereto as Exhibit G.
POINT II
CPLR 306-B AND CPLR 2004
PERMIT THE COURT TO EXTEND PLAINTIFFS’ TIME TO SERVE
16. CPLR 6512 states that a “notice of pendency is effective only if, within thirty days after
filing, a summons is served upon the defendant . . .” CPLR 306-b requires Plaintiffs to serve their
summons and complaint “within one hundred twenty days after the commencement of the action or
proceeding . . . If service is not made upon a defendant within the time provided in this section, the court,
upon motion, shall dismiss the action without prejudice as to that defendant . . .”
17. Because the Complaint and LP were filed on December 20, 2023, CPLR 6512 requires
Gumpel to be served by January 19, 2024 in order to preserve the efficacy of the LP, and CPLR 306-b
requires Gumpel to be served by April 18, 2024 in order to comply with CPLR 306-b. As evidenced by
DGR Legal, service on Gumpel within this time frame is virtually impossible.
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18. Fortunately, CPLR 306-b empowers the Court to extend the time to serve upon good cause
shown or in the interest of justice. And CPLR 2004 grants the Court discretion to “extend the time fixed
by any statute, rule, or order for doing any act, upon such terms as may be just and upon good cause shown,
whether the application for extension is made before or after the expiration of the time fixed.” The Court
may consider factors such as the length of the delay, the reason for the delay, and whether the opposing
party has been prejudiced. Tewari v Tsoutsouras, 75 NY2d 1, 11-12 (1989). Where the delay in service
of a complaint is not willful or lengthy, and did not prejudice the defendant, granting an extension is not
an abuse of the Court’s discretion. A & J Concrete Corp. v Arker, 54 NY2d 870, 872 (1981); Greene v
Sal's Sunoco Serv. Sta., Inc., 161 AD2d 187 (1st Dept 1990).
19. The circumstances described above support extending the time to serve Gumpel. The
pleadings were submitted to DGR for service on December 20, 2023, the same day they were filed. Any
delay will result from the lengthy time to serve under the Convention, not any willful conduct by Plaintiffs.
And Gumpel will not be prejudiced by a delay since he is the only substantive defendant and this action
will not progress before the Court has obtained jurisdiction over him.
20. By contrast, Plaintiffs face significant prejudice if they are not granted an extension of time
to serve. The New York Recording Act (RPL 290, et seq.) protects a good faith purchaser or encumbrancer
for value from a prior unrecorded interest in real property, provided the purchaser/encumbrancer lacked
notice and recorded first. Miller v Stillwell Rd., Inc., 204 AD3d 662, 665 (2d Dept 2022); Yen-Te Hsueh
Chen v Geranium Dev. Corp., 243 AD2d 708, 709 (2d Dept 1997). Plaintiffs’ deed is currently
unrecorded. They are relying upon the recorded LP to provide notice to the world of their interest in the
Property. If Plaintiffs’ LP is invalidated for failure to timely serve Gumpel, or their action is dismissed,
even without prejudice, their ownership of the Property could be compromised by an intervening recorded
lien against Gumpel, or by an unscrupulous conveyance to an unwitting bona fide purchaser.
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Consequently, extending Plaintiffs’ time to serve Gumpel would be an appropriate exercise of the Court’s
discretion.
CONCLUSION
21. Gumpel, the chief defendant in this action, resides in Austria requiring time consuming
service under the Convention that will almost certainly take longer than the 30 or 120 days required by
CPLR 6512 and CPLR 306-b. Plaintiffs have promptly submitted their pleadings for service, Gumpel will
not be prejudiced by any delay since this action cannot proceed without jurisdiction over him, and absent
an extension of time to serve, Plaintiffs’ ownership of the Property could be jeopardized by an intervening
lien or bona fide purchaser. Consequently, Plaintiffs respectfully request that the Court grant their motion
to extend their time to serve Gumpel under both CPLR 6512 and CPLR 306-b to August 31, 2024, subject
to further extension on motion.
Law Office of Rajan Patel
January 2, 2024 s/ Rajan Patel
Nanuet, New York By: Rajan Patel, Esq.
Attorneys for Plaintiffs
Christopher Cummings & Elizabeth Gerrard
257 South Middletown Road, 2nd Floor
Nanuet, NY 10954
Tel. 845-735-2323
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CERTIFICATION
I hereby certify that, based on the word count of the word-processing system used to prepare the foregoing
document, the total number of words in the document (1,660) complies with the word count limit set forth
in the Uniform Civil Rules for the Supreme Court and the County Court, Rule 202.8-b, exclusive of the
caption, table of contents, table of authorities and signature blocks.
Law Office of Rajan Patel
January 2, 2024 s/ Rajan Patel
Nanuet, New York By: Rajan Patel, Esq.
Attorneys for Plaintiffs
Christopher Cummings & Elizabeth Gerrard
257 South Middletown Road, 2nd Floor
Nanuet, NY 10954
Tel. 845-735-2323
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Preview
FILED: WESTCHESTER COUNTY CLERK 01/02/2024 11:49 AM INDEX NO. 72451/2023 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/02/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHSTER ----------------------------------------------------------------------X INDEX NO. 72451 / 2023 CHRISTOPHER CUMMINGS and ELIZABETH GERRARD AFFIRMATION IN SUPPORT Plaintiffs, OF EX-PARTE MOTION TO EXTEND TIME TO SERVE UNDER -against- CPLR 306-B AND CPLR 2004 PETER E. GUMPEL, TRUSTEE OF THE PETER E. GUMPEL 2020 REVOCABLE TRUST; OFFICE OF THE WESTCHESTER COUNTY CLERK Defendant. ----------------------------------------------------------------------X RAJAN PATEL, an attorney admitted to practice in the Courts of the State of New York, affirms the following under the penalties of perjury: PRELIMINARY STATEMENT 1. I am the principal of the Law Office of Rajan Patel, counsel for plaintiffs Christopher Cummings and Elizabeth Gerrard (“Plaintiffs”), and as such I am familiar with the facts and circumstances described in this Affirmation. I submit this Affirmation pursuant to CPLR 2004 to extend the time to serve defendant Peter E. Gumpel, Trustee of the Peter E. Gumpel 2020 Revocable Trust (“Gumpel”) and to extend the efficacy of Plaintiffs’ Notice of Pendency. 2. Plaintiffs commenced this action by filing a Summons, Verified Complaint, and Notice of Pendency on December 20, 2023. A true copy of the Summons and Verified Complaint (“Complaint”) is annexed hereto as Exhibit A. A true copy of the Notice of Pendency (“LP”) is annexed hereto as Exhibit B. 3. Gumpel resides in Austria and must be served pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Page 1 of 7 1 of 7 FILED: WESTCHESTER COUNTY CLERK 01/02/2024 11:49 AM INDEX NO. 72451/2023 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/02/2024 “Convention”). Service pursuant to the Convention is time consuming and cannot be completed within 30 days as required to preserve the efficacy of Plaintiffs’ LP pursuant to CPLR 6512, or within 120 days as required by CPLR 306-b to avoid a potential dismissal of this action. 4. Because Plaintiffs’ pleadings have not yet been served on the only defendants in this action, Gumpel and the Westchester County Clerk (joined solely because the relief sought involves an order/judgment to record documents in the Westchester County Clerk’s office), Plaintiffs make this motion ex parte. RELEVANT FACTUAL BACKGROUND 5. Plaintiffs purchased residential real property known as 4 Braxmar Drive North, Harrison, NY 10528 (“Property”) from Gumpel on June 6, 2023 for the sum of $960,000. In connection with the purchase, Plaintiffs received a power-of-attorney appointing a fiduciary to execute documents required for the sale on Gumpel’s behalf (“POA”), and a deed conveying the Property, signed by Gumpel’s appointed agent (“Deed”). A true copy of the POA is annexed hereto as Exhibit C. A true copy of the Deed is annexed hereto as Exhibit D. 6. At the time, Gumpel resided in Austria per his address on the Deed and POA, and the POA was signed electronically and notarized by remote electronic notarization. 7. Although Plaintiffs were not personally aware when they received the POA, this manner of execution is contrary to General Obligations Law § 5-1501 which bars the use of an electronic signature on a power of attorney that is to be recorded under real property law, and State Technology Law § 307 which bars the use of an electronic signature on any document appointing a fiduciary of an individual’s person or property, including powers of attorney. 8. The Deed and the POA (which had to be recorded together with the Deed) were submitted for recording in the Westchester County Clerk’s Office. However, the Westchester County Clerk rejected Page 2 of 7 2 of 7 FILED: WESTCHESTER COUNTY CLERK 01/02/2024 11:49 AM INDEX NO. 72451/2023 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/02/2024 them for recording, stating that the POA was not eligible for remote notarization and needed a wet signature. 9. Since the Westchester County Clerk rejected the POA and Deed, Plaintiffs, through their undersigned counsel, have made numerous unsuccessful attempts to arrange for Gumpel to directly execute a replacement deed, along with the customary real estate transfer forms which must accompany any deed submitted for recording. Consequently, Plaintiffs commenced this action to compel Gumpel to execute a replacement deed and/or to establish their ownership of the Property in the records of the Westchester County Clerk. POINT I GUMPEL CANNOT BE TIMELY SERVED AS REQUIRED BY CPLR 306-B AND 6512 10. Gumpel is an attorney, registered in the State of New York but currently residing or doing business in Austria. A true copy of an Attorney Detail Report from the New York State Unified Court System is annexed hereto as Exhibit E. 11. The Attorney Detail Report, Deed, and POA list his address as Prinz Eugen Str 46/15, A- 1040, Vienna, Austria. Current tax bills for the Property are addressed to Gumpel in Austria as well. A true copy of a bill for 2023 School Tax addressed to Gumpel is annexed hereto as Exhibit F. 12. Because Gumpel resides in Austria, he must be served pursuant to the Convention. 13. The Convention is an international treaty governing service of judicial documents between the countries that are its signatories. It provides for process to be sent to a central authority in the foreign nation, which will then arrange for service of process on the named party in accordance with the internal law of that country. Joseph II. v Luisa JJ., 201 AD3d 43, 48 (3d Dept 2021). 14. “Where service of process is made in a foreign country that is a signatory of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Page 3 of 7 3 of 7 FILED: WESTCHESTER COUNTY CLERK 01/02/2024 11:49 AM INDEX NO. 72451/2023 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/02/2024 Matters, compliance with the procedures of the Hague Convention is mandatory in State court proceedings . . .” Amerasia Bank v Saiko Enters., 263 AD2d 519, 520 (2d Dept 1999); see also Luciano v Garvey Volkswagen, Inc., 131 AD2d 253, 255 (3d Dept 1987) (“The Convention indisputably provides the mandatory methods of service . . . an attempt to serve documents abroad must comply with the Convention.”). 15. According to Plaintiffs’ process server DGR Legal, service in Austria under the Convention takes a minimum of four (4) months or longer to complete and its status cannot be tracked. A defendant may even respond to the summons and complaint before the foreign authority returns proof of service, which may be in its official language and require translation into English before filing in court. A true copy of correspondence from DGR Legal to this office providing details about service in accordance with the Convention is annexed hereto as Exhibit G. POINT II CPLR 306-B AND CPLR 2004 PERMIT THE COURT TO EXTEND PLAINTIFFS’ TIME TO SERVE 16. CPLR 6512 states that a “notice of pendency is effective only if, within thirty days after filing, a summons is served upon the defendant . . .” CPLR 306-b requires Plaintiffs to serve their summons and complaint “within one hundred twenty days after the commencement of the action or proceeding . . . If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant . . .” 17. Because the Complaint and LP were filed on December 20, 2023, CPLR 6512 requires Gumpel to be served by January 19, 2024 in order to preserve the efficacy of the LP, and CPLR 306-b requires Gumpel to be served by April 18, 2024 in order to comply with CPLR 306-b. As evidenced by DGR Legal, service on Gumpel within this time frame is virtually impossible. Page 4 of 7 4 of 7 FILED: WESTCHESTER COUNTY CLERK 01/02/2024 11:49 AM INDEX NO. 72451/2023 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/02/2024 18. Fortunately, CPLR 306-b empowers the Court to extend the time to serve upon good cause shown or in the interest of justice. And CPLR 2004 grants the Court discretion to “extend the time fixed by any statute, rule, or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” The Court may consider factors such as the length of the delay, the reason for the delay, and whether the opposing party has been prejudiced. Tewari v Tsoutsouras, 75 NY2d 1, 11-12 (1989). Where the delay in service of a complaint is not willful or lengthy, and did not prejudice the defendant, granting an extension is not an abuse of the Court’s discretion. A & J Concrete Corp. v Arker, 54 NY2d 870, 872 (1981); Greene v Sal's Sunoco Serv. Sta., Inc., 161 AD2d 187 (1st Dept 1990). 19. The circumstances described above support extending the time to serve Gumpel. The pleadings were submitted to DGR for service on December 20, 2023, the same day they were filed. Any delay will result from the lengthy time to serve under the Convention, not any willful conduct by Plaintiffs. And Gumpel will not be prejudiced by a delay since he is the only substantive defendant and this action will not progress before the Court has obtained jurisdiction over him. 20. By contrast, Plaintiffs face significant prejudice if they are not granted an extension of time to serve. The New York Recording Act (RPL 290, et seq.) protects a good faith purchaser or encumbrancer for value from a prior unrecorded interest in real property, provided the purchaser/encumbrancer lacked notice and recorded first. Miller v Stillwell Rd., Inc., 204 AD3d 662, 665 (2d Dept 2022); Yen-Te Hsueh Chen v Geranium Dev. Corp., 243 AD2d 708, 709 (2d Dept 1997). Plaintiffs’ deed is currently unrecorded. They are relying upon the recorded LP to provide notice to the world of their interest in the Property. If Plaintiffs’ LP is invalidated for failure to timely serve Gumpel, or their action is dismissed, even without prejudice, their ownership of the Property could be compromised by an intervening recorded lien against Gumpel, or by an unscrupulous conveyance to an unwitting bona fide purchaser. Page 5 of 7 5 of 7 FILED: WESTCHESTER COUNTY CLERK 01/02/2024 11:49 AM INDEX NO. 72451/2023 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/02/2024 Consequently, extending Plaintiffs’ time to serve Gumpel would be an appropriate exercise of the Court’s discretion. CONCLUSION 21. Gumpel, the chief defendant in this action, resides in Austria requiring time consuming service under the Convention that will almost certainly take longer than the 30 or 120 days required by CPLR 6512 and CPLR 306-b. Plaintiffs have promptly submitted their pleadings for service, Gumpel will not be prejudiced by any delay since this action cannot proceed without jurisdiction over him, and absent an extension of time to serve, Plaintiffs’ ownership of the Property could be jeopardized by an intervening lien or bona fide purchaser. Consequently, Plaintiffs respectfully request that the Court grant their motion to extend their time to serve Gumpel under both CPLR 6512 and CPLR 306-b to August 31, 2024, subject to further extension on motion. Law Office of Rajan Patel January 2, 2024 s/ Rajan Patel Nanuet, New York By: Rajan Patel, Esq. Attorneys for Plaintiffs Christopher Cummings & Elizabeth Gerrard 257 South Middletown Road, 2nd Floor Nanuet, NY 10954 Tel. 845-735-2323 Page 6 of 7 6 of 7 FILED: WESTCHESTER COUNTY CLERK 01/02/2024 11:49 AM INDEX NO. 72451/2023 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/02/2024 CERTIFICATION I hereby certify that, based on the word count of the word-processing system used to prepare the foregoing document, the total number of words in the document (1,660) complies with the word count limit set forth in the Uniform Civil Rules for the Supreme Court and the County Court, Rule 202.8-b, exclusive of the caption, table of contents, table of authorities and signature blocks. Law Office of Rajan Patel January 2, 2024 s/ Rajan Patel Nanuet, New York By: Rajan Patel, Esq. Attorneys for Plaintiffs Christopher Cummings & Elizabeth Gerrard 257 South Middletown Road, 2nd Floor Nanuet, NY 10954 Tel. 845-735-2323 Page 7 of 7 7 of 7