Preview
INDEX NO. 72451/2023
FILED: WESTCHESTER COUNTY CLERK 0170272024 11:49 AM
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/02/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
panna nanan enna enna nn nnn nnn nnn
CHRISTOPHER CUMMINGS
and ELIZABETH GERRARD,
Plaintiffs, INDEX NO. 72451 / 2023
-against-
PETER E. GUMPEL, TRUSTEE OF THE PETER E. GUMPEL
2020 REVOCABLE TRUST; OFFICE OF THE WESTCHESTER
COUNTY CLERK,
Defendants.
panna nanan enna enna nn nnn nnn nnn
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO EXTEND TIME TO SERVE
UNDER CPLR 306-B AND CPLR 2004
Law Office of Rajan Patel
Attorneys for Plaintiffs
Christopher Cummings and Elizabeth Gerrard
257 South Middletown Road, 24 Floor
Nanuet, NY 10954
Counsel and on the Memorandum: 845-735-2323
Rajan Patel, Esq.
January 2, 2024
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TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF AUTHORITIES i
PRELIMINARY STATEMENT
PROCEDURAL HISTORY
RELEVANT FACTUAL BACKGROUND
ARGUMENT
POINT I
Gumpel cannot be timely served as required by CPLR 306-b and CPLR 6512.
POINT II...
CPLR 306-b and CPLR 2004 permit the Court to extend Plaintiffs ‘ime to serve.
CONCLUSION
CERTIFICATION
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TABLE OF AUTHORITIES
Cases
A & J Concrete Corp. v Arker, 54 NY2d 870, 872 (1981).
Amerasia Bank v Saiko Enters., 263 AD2d 519, 520 (2d Dept 1999)...
Greene v Sal's Sunoco Serv. Sta., Inc., 161 AD2d 187 (1st Dept 1990)
Joseph II. v Luisa JJ., 201 AD3d 43, 48 (3d Dept 2021)
Luciano v Garvey Volkswagen, Inc., 131 AD2d 253, 255 (3d Dept 1987)
M iller v Stillwell Rd., Inc., 204 AD3d 662, 665 (2d Dept 2022)
Tewari v Tsoutsouras, 75 NY2d 1, 11-12 (1989)
Yen-Te Hsueh Chen v Geranium Dev. Corp., 243 AD2d 708, 709 (2d Dept 1997)
Statutes
CPLR 2004 1, 3,4
CPLR 306-b 1, 2,3,4,5
CPLR 6512 1, 2, 3,5
General Obligations Law § 5-1501
State Technology Law § 307
ii
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PRELIMINARY STATEMENT
Plaintiffs Christopher Cummings and Elizabeth Gerrard (“Plaintiffs”) seek 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 pursuant to CPLR 306-b and CPLR 2004. Gumpel
resides in Austria and must be served in accordance with the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “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.
PROCEDURAL HISTORY
Plaintiffs commenced this action by filing a Summons, Verified Complaint, and Notice of
Pendency on December 20, 2023. Neither of the two defendants in this action has been served with process
as of the date this motion is made.
RELEVANT FACTUAL BACKGROUND
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”). See Affirmation of Rajan Patel, Esq. (“Patel Aff.”) at Exhibits C and D.
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.
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
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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.
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
them for recording, stating that the POA was not eligible for remote notarization and needed a wet
signature.
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.
ARGUMENT
POINT I
Gumpel cannot be timely served as required by CPLR 306-b and CPLR 6512.
Gumpel is an attorney, registered in the State of New York but currently residing or doing business
in Austria. See Patel Aff. at Exhibit E.
An Attorney Detail Report from the website of the New York State Unified Court System, the
Deed, and the 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. See Patel Aff. at Exhibits C-F.
Because Gumpel resides in Austria, he must be served pursuant to the Convention.
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
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nation, which will then arrange for service of process on the named party in accordance with the internal
law of that country. Joseph Il. v Luisa JJ., 201 AD3d 43, 48 (3d Dept 2021).
“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 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.”).
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. See Patel Aff. at
Exhibit G.
POINT II
CPLR 306-b and CPLR 2004 permit the court
To extend Plaintiffs’ time to serve.
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 . . .”
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
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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.
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
Ss al's Sunoco Serv. Sta., Inc., 161 AD2d 187 (1st Dept 1990).
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.
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
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lien against Gumpel, or by an unscrupulous conveyance to an unwitting bona fide purchaser.
Consequently, extending Plaintiffs’ time to serve Gumpel would be an appropriate exercise of the Court’s
discretion.
CONCLUSION
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, 2" Floor
Nanuet, NY 10954
Tel. 845-735-2323
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CERTIFICATION
Thereby 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 (1,490) 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, 2" Floor
Nanuet, NY 10954
Tel. 845-735-2323
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Preview
INDEX NO. 72451/2023 FILED: WESTCHESTER COUNTY CLERK 0170272024 11:49 AM NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/02/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER panna nanan enna enna nn nnn nnn nnn CHRISTOPHER CUMMINGS and ELIZABETH GERRARD, Plaintiffs, INDEX NO. 72451 / 2023 -against- PETER E. GUMPEL, TRUSTEE OF THE PETER E. GUMPEL 2020 REVOCABLE TRUST; OFFICE OF THE WESTCHESTER COUNTY CLERK, Defendants. panna nanan enna enna nn nnn nnn nnn MEMORANDUM OF LAW IN SUPPORT OF MOTION TO EXTEND TIME TO SERVE UNDER CPLR 306-B AND CPLR 2004 Law Office of Rajan Patel Attorneys for Plaintiffs Christopher Cummings and Elizabeth Gerrard 257 South Middletown Road, 24 Floor Nanuet, NY 10954 Counsel and on the Memorandum: 845-735-2323 Rajan Patel, Esq. January 2, 2024 lof 9 INDEX NO. 72451/2023 FILED: WESTCHESTER COUNTY CLERK 0170272024 11:49 AM NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/02/2024 TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES i PRELIMINARY STATEMENT PROCEDURAL HISTORY RELEVANT FACTUAL BACKGROUND ARGUMENT POINT I Gumpel cannot be timely served as required by CPLR 306-b and CPLR 6512. POINT II... CPLR 306-b and CPLR 2004 permit the Court to extend Plaintiffs ‘ime to serve. CONCLUSION CERTIFICATION 2 0f 9 INDEX NO. 72451/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/02/2024 TABLE OF AUTHORITIES Cases A & J Concrete Corp. v Arker, 54 NY2d 870, 872 (1981). Amerasia Bank v Saiko Enters., 263 AD2d 519, 520 (2d Dept 1999)... Greene v Sal's Sunoco Serv. Sta., Inc., 161 AD2d 187 (1st Dept 1990) Joseph II. v Luisa JJ., 201 AD3d 43, 48 (3d Dept 2021) Luciano v Garvey Volkswagen, Inc., 131 AD2d 253, 255 (3d Dept 1987) M iller v Stillwell Rd., Inc., 204 AD3d 662, 665 (2d Dept 2022) Tewari v Tsoutsouras, 75 NY2d 1, 11-12 (1989) Yen-Te Hsueh Chen v Geranium Dev. Corp., 243 AD2d 708, 709 (2d Dept 1997) Statutes CPLR 2004 1, 3,4 CPLR 306-b 1, 2,3,4,5 CPLR 6512 1, 2, 3,5 General Obligations Law § 5-1501 State Technology Law § 307 ii 3 0f 9 INDEX NO. 72451/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/02/2024 PRELIMINARY STATEMENT Plaintiffs Christopher Cummings and Elizabeth Gerrard (“Plaintiffs”) seek 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 pursuant to CPLR 306-b and CPLR 2004. Gumpel resides in Austria and must be served in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “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. PROCEDURAL HISTORY Plaintiffs commenced this action by filing a Summons, Verified Complaint, and Notice of Pendency on December 20, 2023. Neither of the two defendants in this action has been served with process as of the date this motion is made. RELEVANT FACTUAL BACKGROUND 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”). See Affirmation of Rajan Patel, Esq. (“Patel Aff.”) at Exhibits C and D. 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. 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 Page 1 of 6 40f 9 INDEX NO. 72451/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/02/2024 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. 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 them for recording, stating that the POA was not eligible for remote notarization and needed a wet signature. 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. ARGUMENT POINT I Gumpel cannot be timely served as required by CPLR 306-b and CPLR 6512. Gumpel is an attorney, registered in the State of New York but currently residing or doing business in Austria. See Patel Aff. at Exhibit E. An Attorney Detail Report from the website of the New York State Unified Court System, the Deed, and the 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. See Patel Aff. at Exhibits C-F. Because Gumpel resides in Austria, he must be served pursuant to the Convention. 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 Page 2 of 6 5 of 9 INDEX NO. 72451/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/02/2024 nation, which will then arrange for service of process on the named party in accordance with the internal law of that country. Joseph Il. v Luisa JJ., 201 AD3d 43, 48 (3d Dept 2021). “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 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.”). 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. See Patel Aff. at Exhibit G. POINT II CPLR 306-b and CPLR 2004 permit the court To extend Plaintiffs’ time to serve. 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 . . .” 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 Page 3 of 6 6 of 9 INDEX NO. 72451/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/02/2024 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. 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 Ss al's Sunoco Serv. Sta., Inc., 161 AD2d 187 (1st Dept 1990). 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. 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 Page 4 of 6 7 of 9 INDEX NO. 72451/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/02/2024 lien against Gumpel, or by an unscrupulous conveyance to an unwitting bona fide purchaser. Consequently, extending Plaintiffs’ time to serve Gumpel would be an appropriate exercise of the Court’s discretion. CONCLUSION 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, 2" Floor Nanuet, NY 10954 Tel. 845-735-2323 Page 5 of 6 8 of 9 INDEX NO. 72451/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/02/2024 CERTIFICATION Thereby 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 (1,490) 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, 2" Floor Nanuet, NY 10954 Tel. 845-735-2323 Page 6 of 6 9 of 9