Motion-Secondary: Peter Stern, Express Trade Capital, Inc. v. Oleg Ardachev, Air Cargo Services, Llc, Delex Inc., Delex Air Cargo Llc. (Delaware), Delex Air Cargo Llc. (Washington)

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                                FILED:         NEW     YORK       COUNTY        CLERK        08/04/2015             10:20        AM                 INDEX    NO.   653476/2013
   NYSCEF     DOC.   NO.   62                                                                                 RECEIVED      NYSCEF:     08/04/2015




                  SUPREME COURT OF THE STATE OF NEW YORK
                  COUNTY OF NEW YORK
                  ------------------------------------------------------------------------X
                  PETER STERN and EXPRESS TRADE CAPITAL, INC.

                                                                        Plaintiffs,                 Index No.    653476/2013
                  -against-
                                                                                          ATTORNEY’S AFFIRMATION
                                                                                          IN SUPPORT OF MOTION
                                                                                          TO DISMISS

                  OLEG ARDACHEV, AIR CARGO SERVICES L.L.C.,
                  DELEX INC., DELEX AIR CARGO, LLC, a Delaware
                  limited liability company, and DELEX AIR CARGO, LLC.
                  a Washington limited liability company.
                                                                        Defendants.
                  ------------------------------------------------------------------------X

                  Robert Bondar, Esq., an attorney at law duly admitted to practice before the Courts in the State

                  of New York, hereby affirms the following to be true under the penalties of perjury:


                       1.   I am the attorney for the Defendants OLEG ARDACHEV, AIR CARGO SERVICES

                           L.L.C., DELEX INC., and DELEX AIR CARGO, LLC (collectively, the “Defendants”) .

                       2.   As such, I am familiar with the facts and circumstances underlying this cause of action

                           based upon communications with the Defendants and review of the contents of the file

                           kept and maintained by the undersigned’s office.

                       3.   I submit this affirmation in support of Defendants’ motion to dismiss Plaintiffs’

                           complaint on the grounds that Plaintiffs had failed to appear for two consecutive

                           compliance conferences in this action without any notice, justification, or excuse.

                       4.   The Preliminary Conference order stated that the Compliance Conference “shall be held

                           on July 13, 2015”. Exhibit A. D

                       5.   On July 13, 2015, Defendants appeared for Compliance Conference represented by

                           Michelle Davison, Esq. Plaintiff did not appear. According to Ms. Davison, “compliance

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                           conference was adjourned to August 3, 2015 at 11:00am as opposing counsel claimed to

                           be unaware of the date of this conference and did not appear.” Exhibit B.

                       6.   On August 3, 2015, Plaintiffs appeared for the adjourned Compliance Conference.

                           Exhibit C. Defendants again failed to appear, although they were notified of the return

                           date just three weeks prior of the adjournment, which happened as a result of their prior

                           failure to appear.

                       7.   On August 3, 2015, the Court issued an order granting Defendants leave to file the instant

                           motion “based on plaintiffs’ non-appearances” (plural). Exhibit D.

                       8.   The First Department upheld the trial court’s order striking the party’ pleadings under

                           the very similar circumstances as here, in Yong Gon Cha v. Warwick Hotel, 272 A.D.2d

                           154 (1 Dept. 1984). The court affirmed the order and stated “Third-party defendant's

                           motion to vacate the April 15, 1999 order, striking its answer and sanctioning its

                           attorneys upon its failure to appear at a third compliance conference, was properly denied

                           for failure to show a reasonable excuse for such failure to appear, or for its failure to

                           appear at the second compliance conference that ended with an order conditionally

                           striking its answer”.

                       9.   Accordingly, the Defendants’ motion to dismiss Plaintiff’s complaint should be granted.

                       DATED:        Brooklyn, New York                                   Respectfully submitted,
                                     November 11, 2013
                                                                                          By: /s/ Robert Bondar
                                                                                          Robert Bondar, Esq.
                                                                                          Attorney for Defendants
                                                                                          28 Dooley Street, 3rd floor
                                                                                          Brooklyn, New York 11235
                                                                                          Telephone (347) 462-3262



                  	
  

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