SUPREME COURT of the STATE of NEW YORK: 4 2 Se = & COUNTY of MONROE ae = ge a Z ox s DAVID F. GANTT & Plaintiff, ; 3 “vs ERNEST KENNEDY SUMMONS Index No.: -\ID2 \ Defendant, 4 ‘0 i To the above named defendant: ‘YOU ARE HEREBY SUMMONED and required to serve upon plaintiffs’ attomeys an answer to the complaint in this action within twenty days after the service of this summons, exclusive of the day of service or within thirty days after service is complete if this summons is not personally delivered to you within the State of New York. In case of you failure to answer, Judgment will be taken against you by default for the relief demanded in the complaint. Dated: Main St, Suite E. } Buffalo, New York 14214 315-289-8614 Trial is desired ‘The basis of venue designated above is that the above Defendant maintained their residence in the County of Monroe.SUPREME COURT of the STATE of NEW YORK: COUNTY of MONROE. ee DAVID F. GANTT Plaintiff, = ERNEST KENNEDY, COMPLAINT Index No \4}—-|O2 a | Defendant, — Plaintiff, David F. Gantt, by and through his attorney, Anthony L. Orphe, Esq., as and for a Complaint against the defendant alleges that at all time hereinafter mentioned: 1, Plaintiffs a resident of the County of Monroe, State of New York. 2, Defendant is, and at all times mentioned in this complaint a resident of Monroe County, State of New York. 3. __PlaintifE is the owner by adverse possession of real property located in Monroe County, State of New York and more specifically described as: 246 Lyndhurst St., Rochester, ‘New York 14205, 4. Plaintiff has possession of all real property described in paragraph 3 of this complaint by actual, open, hostile, continuous, exclusive possession, usually cultivated and improved, and protected by a substantial enclosure, 5. Plaintif’s possession has been actual, open, hostile, continuous, exclusive, usually cultivated and improved, and protected by a substantial enclosure since January 10, 1995, in excess of the 10-year period set forth in RPAPL art. 5. 6. Plaintiff has paid all taxes and assessments that have been levied or assessed against the real property described in paragraph 3 of this complaint during the 10-year period.WHEREFORE, plaintiff demands judgment against defendant as follows: 1 For judgment that plaintiff is the fee simple owner of all right, title, and interest in and to the described real property; For judgment that defendant does not have any right, title, estate, or interest in or lien on the described real Property; For such further relief as the court may deem proper. 2406 Main St,, Suite E. Buffalo, New York 14214. 315-289-8614A) Index No.l 4 O2% i SUPREME COURT OF THE STATE OF NEW YORK x COUNTY OF MONROE, DAVID F. GANTT. Plaintiff, noke, NOTICE OF MOTION FOR ORDER OF DEFAULT JUDGMENT AND AFFIRMATION -against- ERNEST KENNEDY. Defendant. x STATE OF NEW YORK ) COUNTY OF MONROE ) ss: ll move this Court located at GV E vehange £ New York, Pact 7 Hack cot fete dayst M ach 2015, 9230 er HON ANN MARIE TADD FO ae vf Judgment and for such other and further relief as this Court deems just and proper. PLEASE TAKE FURTHER NOTICE that pursuant to CPLR 2214(b), answering papers if any must be served on the undersigned no later than seven (7) days before the og pleadings and proceedings had herein, the PLAINTIFF Blvd.) 5k Floor, Motion s noticed to be heard, faultATTORNEY AFFIRMATION IS SUPPORT OF MOTION FOR DEFUALT JUDGMENT ANTHONY L. ORPHE’, an attorney duly admitted to practice before this Court, affirms the following under penalty of perjury: 1, Tam attomey for the Plaintiff in the above action, and make this affirmation based upon my own knowledge. This affirmation is respectfully submitted in support of Plaintiffs motion for Default Judgment, which should be granted pursuant to CPLR §3215(a) against non-appeating/responding defendant Ernest Kennedy. 2. ‘The defendant was served pursuant to the CPLR on December 3" 2014, which occurred less than one year prior to the application, 3. Defendant was served under §315, where the court may order service of a “summons by publication” 4. Defendant has failed to answer the summons and complaint. 5. Annexed hereto are the summons and complaint in this matter, affidavit of service, order granting service by publication, and memorandum of law in support of the motion for default judgment. 6. Plaintiff respectfully requests judgment by default in favor of Plaintiff (David F. Gantt) against Defendant (Emest Kennedy), and that Plaintiff is the owner in fee simple of the property at 246 Lyndhurst Ave., Rochester, New York 14205, 7. Judgment that defendant does not have any right, title, estate, or interest in or lien on the described real property. I declare under penalty of perjury that the foregoing is true and correct. Dated; January 8, 2015 2406 Main St., suite E Buffalo, N.Y. 14214 315-289-8614 | | 1SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE D4 Index No_ [Cf-H29 i DAVID F. GANTT. Plaintiff, MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT -against- ERNEST KENNEDY Defendant. x STATE OF NEW YORK ) COUNTY OF MONROE J ss: PLAINTIFF MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT PRELIMINARY STATEMENT Plaintiff respectfully submits this Memorandum of Law in support of his motion for entry of default judgment against non-appearing/responding defendant Emest Kennedy, pursuant to CPLR §3215(a). FACTUAL RECORD é The attached affidavits of service from the Democrat and Chronicle, and the ily Record, establish that the defendant was served pursuant to the CPLR on Deomigr “gan, 5 which occurred less than one year prior to the application. Defendant was serebingy §315, x 7 : o‘where the court may order service of a “summons by publication” in an action described in §314 if service cannot be made by another prescribed method with due diligence. Under §316, service is complete on the 28" day after the first day of publication. Due diligence in this matter is demonstrated by the affirmation of Anthony L. Orphe, Esq., and the attached exhibits. Anthony L. Orphe, Esq. attempted to perfect service by personal delivery to the defendant’s last known residence 15 St. Clair St. Rochester, New York 14611 on: Tuesday September 16, 2014 at approx. 3 p.m.; Wednesday September 17, 2014 at approx. 9 a.m.; and Thursday September 18, 2014 at approx. 12:00 p.m, Further, a true copy of the summons and complaint properly sealed affixed with first class postage and addressed to the Defendant in an official depository under exclusive care and custody of the U.S. Postal Service was mailed on September 23, 2014. The envelope was marked personal and confidential, and was also made by certified mail (#70131090000002461604).. ‘The defendant has failed to respond, and therefore is in default. PLAINTIFF IS ENTITLED TO JUDGEMENT BY DEFAULT Under CPLR §3215(a), if a defendant fails to appear or plead, a plaintiff may obtain default judgment. In this case, the Defendant was lawfully served by publication as demonstrated by the affidavits of service from the Democrat and Chronicle and the Daily Record. The defendant has not responded and is in default. The technical requirements under CPLR §3215 to obtain default judgment in New York are submission of the following: proof of service of the Summons and Complaint, proof of the claim and proof of default. CPLR §3215. The Plaintiff has submitted the requisite proof to obtain a default judgment, ‘The plaintiff has proved lawful service upon the defendant by publication set forth in the court order attached hereto. The Plaintiff has also submitted detailed 4proof of the claim via the attached complaint. These documents show that the Plaintiff is entitled to judgment for the adverse possession action detailed in the Complaint, CONLCUSION For the reasons and causes set forth in the Complaint, the affirmation submitted herewith, and in addition to any other relief the court deems just and reasonable, plaintiff respectfully requests: 1. Judgment by default in favor of Plaintiff (David F, Gantt) against Defendant (Emest Kennedy), and that Plaintiff is the owner in fee simple of the property at 246 Lyndhurst Ave., Rochester, New York 14205, 2. Judgment that defendant does not have any right, title, estate, or interest in or lien on the described real property. Respectfully submitted, Date: January 8, 2015SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE eee eeenereere ee x Index No Y= or | DAVID F. GANTT Plaintiff, MOTION FOR ORDER OF DEFAULT JUDGMENT -against- és ERNEST KENNEDY Defendant, ze x ag 8a STATE OF NEW YORK ) go COUNTY OF MONROE ) ss: = & 2 oe 22 PLAINTIFF MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT eR PRELIMINARY STATEMENT Plaintiff respectfully submits this Memorandum of Law in support of his motio1 60:6 Hd S- 9304! for entry of default judgment against non-appearing/responding defendant Emest Kennégly, AOA pursuant to CPLR §3215(). FACTUAL RECORD ‘The attached affidavits of service from the Democrat and Chronicle, and the Dailyis complete on the 28" day after the first day of publication. Due diligence in this matter is demonstrated by the affirmation of Anthony L.. Orphe, Esq., and the attached exhibits. Anthony L. Orphe, Esq. attempted to perfect service by personal delivery to the defendant's last known residence 15 St. Clair St. Rochester, New York 14611 on: Tuesday September 16, 2014 at approx. 3 p.m.; Wednesday September 17, 2014 at approx. 9 a.m,; and ‘Thursday September 18, 2014 at approx. 12:00 p.m, Further, a true copy of the summons and complaint properly sealed affixed with first class postage and addressed to the Defendant in an official depository under exclusive care and custody of the U.S, Postal Service was mailed on September 23, 2014, The envelope was marked personal and confidential, and was also made by certified mail (#70131090000002461604).. ‘The defendant has failed to respond, and therefore is in default. PLAINTIFF IS ENTITLED TO JUDGEMENT BY DEFAULT Under CPLR §3215(@), if'a defendant fails to appear or plead, a plaintiff may obtain default judgment. In this case, the Defendant was lawfully served by publication as demonstrated by the affidavits of service from the Democrat and Chronicle and the Daily Record. The defendant has not responded and is in default. ‘The technical requirements under CPLR §3215 to obtain default judgment in New Yorlk are submission of the following: proof of service of the Summons and Complaint, proof of the claim and proof of default. CPLR §3215. The Plaintiff has submitted the requisite proof to obtain a default judgment. The plaintiff has proved lawful service upon the defendant by publication set forth in the court order attached hereto, The Plaintiff has also submitted detailed proof of the claim via the attached complaint. These documents show that the Plaintiff is entitled to judgment for the adverse possession action detailed in the Complaint. 2CONLCUSION For the reasons and causes set forth in the Complaint, the affirmation submitted herewith, and in addition to any other relief the court deems just and reasonable, plaintiff respectfully requests: 1, Judgment by default in favor of Plaintiff (David F. Gantt) against Defendant (Emest Kennedy), and that Plaintiff is the owner in fee simple of the property at 246 Lyndhurst Ave., Rochester, New York 14205. 2, Judgment that defendant does not have any right, title, estate, or interest in or lien on the described real property. Respectfully submitted, Date: December 4, 2014 Buffalo, N.Y. 14214 315-289-8614SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE = x Index No. M- [024 | DAVID F, GANTT Plaintiff, ! | MOTION FOR SERVICE | BY PUBLICATION AND -against- AFFIRMATION | ERNEST KENNEDY Defendant, x STATE OF NEW YORK ) COUNTY OF MONROE dss: Pursuant to Section 315 of the Civil Practice Law and Rules, the plaintiff moves for service by publication. The [Link] the party to be served is unknown and cannot be ascertained by reasonable diligence, and cannot be served by any other prescribed method. The plaintiff respectfully requests that this court order service by publication for three successive weeks in the Daily Record, a newspaper of general circulation in the county where the | action is pending. | 1. Plaintifhas not hed any contact with the defendant since 1987, 2, Plaintiff has been searching for the defendant since 1988, | 3. The whereabouts of the defendant are unknown. Sei Wa 12 190 HORATTORNEY'S AFFRIMATION OF ATTEMPTED SERVICE Anthony L. Orphe, an attorney at law admitted to practice before this court, affirms as follows: 1 attempted to serve a true copy of the Summons and Complaint upon the defendant Emest Kennedy by: 1. Visiting the defendant's last known residence 15 St. Clair St. Rochester, New York 14611 on: Tuesday September 16, 2014 at approx. 3 pm.; Wednesday September 17, 2014 at approx. 9 a.m.; and Thursday September 18, 2014 at approx. 12:00 p.m. 2. Mailing a true copy of the summons and complaint properly sealed affixed with first class postage and addressed to the Defendant in an official depository under exclusive care and custody of the U.S. Postal Service on September 23, 2014. The envelope was marked personal and confidential, and was also made by certified mail (#70131090000002461604). Iwas unable, with due diligence to find the defendant to perfect service. The mailed copy of the summons and complaint was returned as not deliverable as addressed/ unable to forward, I contacted the last known associates of the defendant, but was unable to locate the defendant. I do not have a social security number or birthdate for the defendant in order to complete a driving abstract search or a military record search, The defendant does niot have any public records in Monroe County outside of the attached property deed. ‘The whereabouts of the defendant are unknown. : 7 I declare under penalty of perjury that the foregoing is true and correct. Dated: October 20, 2014 2406 Main St, suite B Buffalo, N.Y. 14214 315-289-8614