Corst v. Mushailov (2026)

Case details
Full caption
City of New York v. Isak MUSHAILOV and Levsho Kukuliyeva
Country
United States
Jurisdiction
New York (NY)
Court
New York Court of Appeals
Decided
2026
Disposition
Motion Granted
Corst v. Mushailov, Slip Copy (2026)88 Misc.3d 1210(A), 247 N.Y.S.3d 627, 2026 N.Y. Slip Op. 50071(U) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.188 Misc.3d 1210(A)Unreported Disposition(The decision is referenced in the New York Supplement.)This opinion is uncorrected and will not be published in the printed Official Reports.Civil Court, City of New York,Kings County.Irine CORST, Plaintiff(s),v.Isak MUSHAILOV and Levsho Kukuliyeva, Defendant(s).Index No. CV-008160-24/KI|Decided on January 15, 2026Editor's Note: This document contains discussion of unverified citations, likely generated by AI tools used by a party orcounsel. These citations are not attributable to the Court. The unverified citations have been preserved as part of the officialrecord, but links are unavailable.Attorneys and Law FirmsAttorneys for plaintiff, Erin P. Schutzer, Esq., The Schutzer Group, PLLC, 330 Seventh Ave, 19th FL, New York, New York10001, Tel. (212) 714-0700Attorneys for defendant, Migir Ilganayev, Esq., Ilganayev Law Firm, PLLC, 139 Fulton Street Suite 801, New York, New York10038-2594, Tel. (646) 396-8050OpinionRena Malik, J.*1 Recitation, as required by CPLR 2219 (a), of the papers considered on this motion:Papers NumberedNotice of Motion, Atty Aff, Party Aff & Exs A-C 1-3Aff in Opp & Exs A-E1 4Reply Aff & Exs A-C 5Letter dated 10/16/25 to the Court and opposing counsel from plaintiff's counsel Eric P. Schutzer, Esq.2 6Upon the foregoing papers, defendants move to dismiss the complaint pursuant to CPLR 3211 (a) (8) or alternatively leaveto file and serve an answer.I. Procedural History
Corst v. Mushailov, Slip Copy (2026)88 Misc.3d 1210(A), 247 N.Y.S.3d 627, 2026 N.Y. Slip Op. 50071(U) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2Plaintiff commenced the instant action on April 18, 2024 seeking $19,800.00 in rent arrears pursuant to a lease entered into onor about April 1, 2022, alleging that defendants-tenants breached the lease by failing to pay rent beginning on or about January1, 2023 through November 1, 2023 (compl at ¶¶ 6, 10, 12). Plaintiff's proof of service of the summons and complaint was filedon June 4, 2024. The process server's affidavit states that defendant Isak Mushailov (Isak) was served by delivering processon May 25, 2024 upon “JOHN DOE (REFUSED NAME), CO-OCCUPANT” at 2900 Ocean Avenue in Brooklyn, New Yorkand by mailing process to the same address on May 29, 2024. After service was complete upon filing the proof of service onJune 14, 2024 (see CPLR 308 [2]), the time within which defendant was to answer or appear expired on or about July 14, 2024.Defendant Levsho (Levsho) Kukuliyeva was served in the same way.Plaintiff filed a motion for leave to enter default judgment on or about September 5, 2024, which was denied without prejudice bydecision and order entered December 11, 2024 for failing to provide a legible lease (motions sequence no. 001). An affirmationof service indicates that plaintiff's counsel served a copy of the decision with notice of entry on December 23, 2024 to defendantIsak at 505 Elmwood Avenue in Brooklyn and to Levsho at 2157 E 24th Street in Brooklyn.Plaintiff moved again for leave to enter default judgment on or about January 2, 2025, which was granted on defendants’ defaultby decision and order entered January 22, 2025 (motion sequence no 002). The order directed plaintiff to file a notice of inquestto proceed to an assessment of damages, and plaintiff filed said notice of inquest on January 27, 2025. The record containsaffirmation of service by mail to defendants of the notice of entry of the second order granting default judgment and notice ofinquest at the same addresses (Elmwood Avenue and E 24th Street, respectively) on January 24, 2025.On February 18, 2025, defendants moved to vacate the order granting default judgment as to liability, staying all inquests,and directing plaintiff to serve defendants with the complaint (motion sequence no 003). Defendants allege that they “hadno idea that this lawsuit was ever filed against [them]. Plaintiff never served [them], never sent a courtesy copy by email,nothing” (defendants’ aff dated 2/6/25 at 4). Defendants further allege that they first learned of this case when “[their] parentsreceived a copy of a document called Notice of Entry and Notice of Inquest at their respective homes” (id. at 8 [emphasisremoved]). Defendants claimed that plaintiff knows the defendants’ new address and allegedly said she will sue them at thataddress but did not and instead served papers to their parents’ homes (id. at 9).*2 Defendants’ motion was granted on consent by decision and order entered May 19, 2025 (Holaman, J.), without mentioningany specific branch(es) of the requested relief. The court's decision and order scheduled a pre-trial conference on July 16, 2025,notwithstanding that issue had never been joined.On July 16, 2025, the parties appeared for the pre-trial conference where the matter appeared to have been conferenced witha court attorney and the parties engaged in settlement discussions. The Court (Holaman, J.) issued a discovery order for theparties to exchange discovery by August 30, 2025, again notwithstanding that issue had not yet been joined, and adjourned thematter to September 30, 2025. By separate decision and order entered on the same day, the Court directed that “Within 30 daysof the date of this decision (August 15, 2025) the Defendants must file an Answer with the Court” in defendants’ respectiveindividual names and mail a copy of the same to plaintiff's counsel.On August 14, 2025, before the Court's deadline, Migir Ilganayev, Esq. of Ilganayev Law Firm PLLC filed a notice of appearanceon behalf of defendants and made the instant motion to dismiss based on lack of personal jurisdiction (motion sequence no 004).Plaintiff opposed the motion, arguing that defendants waived objections to service of process and/or personal jurisdiction by (1)making a motion for affirmative relief, referring to motion sequence no 003; (2) defendant Isak's appearance in court on July16, 2025; and (3) defendants’ counsel's filing of a notice of appearance without any limiting language or contesting jurisdiction.II. Plaintiff's Counsel's Affirmation in Opposition with Invalid Legal Authority.All but one of the caselaw citations plaintiff's counsel cited in opposition to the motion were defective, which included:
Corst v. Mushailov, Slip Copy (2026)88 Misc.3d 1210(A), 247 N.Y.S.3d 627, 2026 N.Y. Slip Op. 50071(U) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3• The putative case citation “Matter of Polizzi v Polizzi, 226 AD2d 581 (2d Dept 1996)” leads to a different matter entitledEpes v Healey that stands for a different proposition than what counsel argues in his affirmation;• Wells Fargo Bank, N.A. v Estwick, 160 AD3d 911 (2d Dept 2018) does not stand for the proposition stated;• The putative case citation “Matter of Knapp v Knapp, 225 AD2d 1010 (4th Dept 1996)” leads to a different matter entitledOrange Steel Erectors v Newburgh Steel Products Inc. that stands for a different proposition than what counsel argues inhis affirmation;• The putative case citation “Matter of Negron v St. Charles Hosp. & Rehab. Ctr., 121 AD3d 1427 (2d Dept 2014)” leads toa matter entitled People v Rojas, which stands for a completely different proposition than argued in counsel's affirmationIn attempting to locate these cases, the Court will note that it could not find any matter with the case name “Knapp” issued bythe 4th Department in 1996, nor any matter with the case name “Negron” issued by the 2d Department in 2014.At oral argument on the motion, plaintiff's counsel claimed “there was a typo” and/or an “error” in the papers. Counsel requestedan opportunity to submit “corrected” papers, which the Court rejected. The Court stated on the record that it was inclined todisregard plaintiff's papers in their entirety for lack of any proper legal support for the arguments made. Two days later, counselemailed a letter to chambers and opposing counsel apologizing for the submission, which is annexed at the end of this decisionand order. In light of the correspondence, the Court will consider plaintiff's affirmation in opposition in rendering this decision,and the arguments made therein, but will rely only on defendants’ legal authority as well as the Court's own research.3*3 III. Defendants’ Appearance & Potential Waiver of Personal JurisdictionA defendant appears in a matter “by serving an answer or a notice of appearance, or by making a motion which has the effect ofextending the time to answer” (CPLR 320 [a]). Here, it is undisputed that defendants never served an answer. Defense counseldid file a notice of appearance but, contrary to plaintiff's contentions, the failure to reference an objection to personal jurisdictionin said notice does not necessarily confer personal jurisdiction — defendants would still have to make a proper motion if itwished to contest personal jurisdiction (see Vincent C. Alexander Practice Commentaries, McKinnys Cons Laws of NY, Book7B, C320:3 [2023] [“The inclusion of personal jurisdiction objections in a notice of appearance does nothing to preserve thoseobjections. CPLR 320(b) and 3211(e) are the exclusive means, i.e., such objections are waived if not included in a timely answeror a CPLR 3211(a)(8) motion to dismiss”]).Here, plaintiff argues that defendants consented to jurisdiction by making a motion for affirmative relief and/or otherwiseappeared informally. The Court finds that a formal appearance had been made when defendants made “a motion which had theeffect of extending the time to answer” (CPLR 320 [a]). However, that is not necessarily the equivalent of conferring personaljurisdiction. CPLR 320 (b) provides:When appearance confers personal jurisdiction, generally. Subject to the provisions of subdivision (c) [which are notapplicable here], an appearance of the defendant is equivalent to personal service of the summons upon him, unless anobjection to jurisdiction under paragraph eight of subdivision (a) of rule 3211 is asserted by motion or in the answer asprovided in rule 3211.(see alsoTravelon, Inc. v Maekitan, 215 AD3d 710, 712 [2d Dept 2023]).Defendants’ motion was granted on consent of plaintiff but the decision did not mention or address every branch of the reliefsought. One part of the motion sought an order directing plaintiff to serve the complaint upon defendants because defendantsalleged they were never served with process — and if such relief was granted “on consent” then why is there nothing in the recorddemonstrating such service? As the motion papers clearly raised the issue of personal jurisdiction due to lack of proper serviceof process, and given the possibility that the complaint has, still, never been properly served, the Court finds that defendants’objection to jurisdiction had been preserved and effectively never decided.
Corst v. Mushailov, Slip Copy (2026)88 Misc.3d 1210(A), 247 N.Y.S.3d 627, 2026 N.Y. Slip Op. 50071(U) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.4The Court further finds that the time to answer or move had been extended when the Court, the last court appearance on July16, 2025, gave defendants an extension of time to answer until August 15, 2025. Therefore, this motion to dismiss in lieu offiling an answer, made on August 14, 2025, is timely pursuant to the Court's order as well as CPLR 3211 (e) (cf.Travelon, Inc. vMaekitan, 215 AD3d 710, 713—14 [2d Dept 2023] [corporate officer's affidavit on behalf of corporate defendant in oppositionto a motion for preliminary injunction constituted appearance on behalf of corporation; corporate defendant was found in defaultby failing “to serve and file an answer within 20 days of its informal appearance or move pursuant to CPLR 3211 (a) (8) todismiss the complaint” on personal jurisdiction grounds]).*4 IV. Merits of Defendants’ Motion to Dismiss (3211 [a][8]).Defendants’ affidavit in support of the motion states that defendants had resided at 2900 Ocean Avenue until November 27, 2023when Isak and his wife Levsho vacated and surrendered possession (Isak aff at 2-3). Plaintiff acknowledged that defendantsleft the unit (id. at 3; ex C) and defendants allege that plaintiff and her counsel knew of defendants’ current address (id. at 8-9).Nevertheless, plaintiff allegedly served defendants in May 2024 at their former address, over seven months after they vacatedthe unit. The manner of service attempted here via CPLR 308 (2) requires “delivering the summons within the state to a personof suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served”and mailing the summons “at his or her last known residence” or “his or her actual place of business.” “[S]ervice of processupon a natural person must be made in strict compliance with the methods of service set forth in CPLR 308” (Everbank v Kelly,203 AD3d 138, 142-48 [2d Dept 2022]). “[A]n acceptance of service by a person of suitable age and discretion is invalid if theservice address is not, in fact, the defendant's actual place of business, dwelling place, or usual place of abode” (id. at 147).Here it is undisputed that 2900 Ocean Avenue was neither defendants’ dwelling place, usual place of abode, nor actual placeof business. Plaintiff said nothing substantive in opposition to the contrary.Accordingly, the Court finds that personal jurisdiction does not lie against defendants, and the default should be vacated withoutthe necessity of a traverse hearing (seeSchurr v Fillebrown, 146 AD2d 623, 623-24 [2d Dept 1989]; Silvering v Sunrise FamilyMed., P.C., 161 AD3d 1021, 1022-23 [2d Dept 2018]; see, e.g., New York State Higher Educ. Servs. Corp. v Perchik, 207AD2d 1040 [4th Dept 1994]; Design Dev. NYC, Inc. v Goldstein, 2019 NY Slip Op 30854[U], *1-3 [Sup Ct, NY County 2019];Cohen, DPM v Sumba 2021 WL 2891550 [Sup Ct, NY County 2021]).V. ConclusionIt is hereby ORDERED that defendants’ motion to dismiss is granted and the Clerk is directed to enter judgment in defendants’favor dismissing the complaint.This constitutes the decision and order of the Court.All CitationsSlip Copy, 88 Misc.3d 1210(A), 247 N.Y.S.3d 627 (Table), 2026 WL 218058, 2026 N.Y. Slip Op. 50071(U)Footnotes1The exhibits are not tabbed or separately labeled.2Annexed to this decision and order.
Corst v. Mushailov, Slip Copy (2026)88 Misc.3d 1210(A), 247 N.Y.S.3d 627, 2026 N.Y. Slip Op. 50071(U) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.53While not specifically acknowledged in the letter, these “hallucinated” cases appear to have been generated with the use of an artificialintelligence program. The Court accepts counsel's apology as he conceded to the lack of proper review of papers prepared by anotherperson in his office and stated that he will implement additional internal review procedures for filing papers with the Court.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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