#cplr

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[news-24press]

FRITCH v. BRON IBNY 2264 LLC 1000 (2021)

Supreme Court, Suffolk County, New York.

Maureen FRITCH, Plaintiff, v. Igor BRON, Rita Bron, Richard Sajiun, Sajiun Electric, Inc., Joseph Fusco, G & G Electric Supply Co. Inc., Cristina Ciobanu, Howard Lindsay, Intake Electrical Contracting Corp., Yelena Plyumyanskaya, Arkadiy Berdichevskiy, Sergejs Berlevs, Roman Bodnarchuk, IBNY Management Inc., 2264 65th Street Properties, LLC & John Doe “1” Through John Doe “1000,” Defendants.

Index No. 605622-21

Decided: November 10, 2021

WELBY, BRADY & GREENBLATT, LLP, Attorneys for Plaintiff, 11 Martine Avenue, 15th Floor, White Plains, New York 10606 GLENN AGRE BERGMAN & FUENTES LLP, Attorneys for all named Defendants other than G & G Electric Supply Co. Inc. and Joseph Fusco, 55 Hudson Yards, 20th Floor, New York, New York 10001

It is,

ORDERED that this motion by the plaintiff for an order of attachment is denied.

The gravamen of the complaint is that the defendant Igor Bron, aided and abetted by the defendants Rita Bron, Richard Sajiun, and Sajiun Electric, Inc., diverted corporate assets and opportunities from E. Electrical Contracting, LLC (“EEC”), which is owned by the plaintiff (51%) and Mr. Bron (49%). The plaintiff's chief claims against the Brons, Richard Sajiun and Sajiun Electric, Inc., are for fraud and aiding and abetting fraud, for breach of fiduciary duty and aiding and abetting breach of fiduciary duty, and for unjust enrichment. The plaintiff moves for an order of attachment.

To obtain an order of attachment, the moving party must demonstrate through affidavit or other written evidence (1) the existence of a cause of action for a money judgment, (2) a probability of success on the merits, (3) the existence of one or more grounds enumerated in CPLR 6201, and (4) that the amount demanded from the defendant exceeds all counterclaims known to the plaintiff (see, CPLR 6212 [a]; Ford Motor Credit Co. v. Hickey Ford Sales, Inc., 62 N.Y.2d 291, 301, 476 N.Y.S.2d 791, 465 N.E.2d 330). Because attachment is a harsh remedy, CPLR 6201 is strictly construed in favor of those against whom it may be employed (651 Bay St., LLC v. Discenza, 189 A.D.3d 952, 953, 137 N.Y.S.3d 374; Sylmark Holdings Ltd. v. Silicone Zone Intern. Ltd., 5 Misc. 3d 285, 300-301, 783 N.Y.S.2d 758).

The plaintiff seeks an order of attachment against the defendant Richard Sajiun on the ground that he is a nondomiciliary residing in Florida. Pursuant to CPLR 6201 (1), a court may order an attachment when the defendant is a nondomiciliary residing without the state. This provision serves two independent purposes: (1) obtaining jurisdiction over a nonresident and (2) providing adequate security for a potential judgment against a nonresident when there is an identifiable risk that the defendant will not be able to satisfy any judgment (Id. at 301, 783 N.Y.S.2d 758). CPLR 6201 (1) is not available if the defendant is either a domiciliary or resident of New York (Rayo v. Vitale, 38 Misc. 3d 1211[a] at *9, 2012 WL 6869798). Thus, a nondomiciliary may contest his amenability to attachment by arguing that he maintains some sort of residence within New York (Id., citing Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C6201:1).

Richard Sajiun has submitted an affidavit in which he avers that he resides in Suffolk County and works in New York City. The record reflects that he was served in Hampton Bays, New York, and that he has appeared in the action. Thus, jurisdiction has been obtained over Mr. Sajiun, and first purpose of attachment has been satisfied (see Sylmark Holdings Ltd., supra). With respect to the second purpose, the plaintiff contends that the Sajiun residence was sold below market value and that Mr. Sajiun removed the proceeds of the sale from New York to Florida. The plaintiff's contention that the Sajiun residence was sold below market value is based on a Zillow listing (not a affidavit from a real-estate appraiser), which reveals that the property sold for $2,300,000 in June 2021, only 3% below its estimated value of $2,371,800. Moreover, the plaintiff's contention that Mr. Sajiun took the proceeds of the sale to Florida is based upon information and belief. That the affidavits in support of an attachment contain allegations raising a suspicion of an intent to defraud is not enough (651 Bay St., LLC, supra). The mere removal, assignment, or other disposition of property is not grounds for attachment (Id.). Accordingly, the plaintiff has failed to demonstrate a real identifiable risk that Richard Sajiun will be unable to satisfy any judgment obtained by her (see Sylmark Holdings Ltd., supra).

The plaintiff also seeks an order of attachment against the defendants Igor Bron, Rita Bron, Richard Sajiun, and Sajiun Electric, Inc., pursuant to CPLR 6201 (3). Under this provision, the plaintiff must demonstrate: (1) that the defendants have assigned, disposed of, encumbered or secreted their property or removed it from the state or are about to do any such acts and (2) that the defendants have acted or will act with the intent to defraud their creditors or to frustrate the enforcement of a judgment that may be rendered in the plaintiff's favor (Id. at 301, 783 N.Y.S.2d 758).

The plaintiff attempts to demonstrate the defendants’ fraudulent intent by relying on the same allegations as underlie the complaint. Proof that a defendant committed the underlying unlawful acts is not, by itself, sufficient to establish a ground for attachment (NV Petrus SA v. LPG Trading Corp., U.S. Dist. Ct., E.D. N.Y., Aug. 22, 2016, Kuo, MJ, 2016 WL 11469718 at *5), nor is the transfer of the Bron residence to a family trust in 2017, long before this action was commenced. As previously noted, the mere removal, assignment, or other disposition of property is not grounds for attachment (651 Bay St., LLC, supra), and there are reasons to transfer property to a family trust other than to defraud creditors or to frustrate the enforcement of a judgment. Moreover, the plaintiff's allegations of fraudulent concealment of assets are based on information and belief. As previously noted, allegations raising a suspicion of an intent to defraud are not enough (Id.). Vague and conclusory allegations without evidentiary facts are insufficient for prejudgment attachment (see Sylmark Holdings Ltd., supra at 302, 783 N.Y.S.2d 758). Accordingly, the court finds that the plaintiff has failed to establish that one or more grounds for attachment provided in CPLR 6201 exist.

The plaintiff has also failed to establish a probability of success on the merits of her claims, which is necessary to obtain an order of attachment. First, the plaintiff's allegations plead a wrong to EEC for which the plaintiff may sue derivatively, but not individually (see Abrams v. Donati, 66 N.Y.2d 951, 953, 498 N.Y.S.2d 782, 489 N.E.2d 751). Second, the fraud cause of action alleges Mr. Bron entered into certain agreements with the plaintiff without any intention of honoring them. A mere misrepresentation of an intent to perform under a contract is insufficient to sustain a cause of action to recover damages for fraud (Gorman v. Fowkes, 97 A.D.3d 726, 727, 949 N.Y.S.2d 96). Third, the breach-of-fiduciary-duty cause of action alleges that Mr. Bron breached his fiduciary duty to the plaintiff. However, as the managing member of EEC, it was the plaintiff who owed a fiduciary duty to Mr. Bron (see Kalikow v. Shalik, 43 Misc. 3d 817, 823-826, 986 N.Y.S.2d 762). Fourth, the existence of the EEC Operating and Amended Operating Agreements defeats the unjust-enrichment cause of action (Id. at 217). Finally, in the absence of viable fraud and breach-of-fiduciary-duty causes of action, the aiding-and-abetting causes of action fail. Accordingly, the motion is denied.

[undisputedlegal]

HOW CPLR 308 ENHANCES SERVICE OF PROCESS IN NEW YORK

Navigating New York’s service of process laws can be complex, but understanding CPLR 308 is crucial for successful legal proceedings. #ServiceOfProcess #CPLR308 #NewYorkLaw #LegalProceedings Our expert team at Undisputed Legal has extensive experience in leveraging CPLR 308 to ensure efficient and compliant service of process for our clients. #ProcessServing #LegalCompliance #LegalServices…

[law2justia]

Prejudgment Attachment Orders: High Stakes, Higher Burden

As part of their duties, Plaintiff was responsible for contract administration and other administrative tasks at EEC, while Mr. Bron was responsible for EEC’s field operations.

Third, the Court found that Plaintiff failed to establish her burden under CPLR § 6201 (3) that defendants Mr. Bron, Mrs. Bron, Mr. Sajiun and Sajiun Electric attempted to frustrate the enforcement of a judgment by disposing of secreted property.

Indeed, the Court noted that the transfer of the Bron residence to a family trust was in 2017, long before the commencement of the action. In addition, the Court acknowledged that many of Plaintiff’s allegations involving fraudulent concealment of assets were based on “information and belief,” which is insufficient to support a prejudgment attachment order.

[lexblogi]

Prejudgment Attachment Orders: High Stakes, Higher Burden

As a result, in March 2021, Plaintiff commenced an action to recover damages for fraud, aiding and abetting fraud, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, constructive trust, and unjust enrichment. Thereafter, Plaintiff brought a motion for a prejudgment attachment order under CPLR §§ 6201 (1) and (3), arguing (a) Mr. Sajiun was a nondomiciliary who resided in Florida; (b) there was substantial evidence that Mr. Bron, Mrs. Bron, Mr. Sajiun, and Sajiun Electric were hiding assets for the purpose of defrauding creditors and frustrating the enforceability of a judgment; and (c) that she has shown a probability of success on the merits. Justice Emerson rejected each of Plaintiff’s arguments.

Second, the Court rejected Plaintiff’s argument for a prejudgment attachment order against defendant Mr. Sajiun on the ground that he was a nondomiciliary residing in Florida because (a) Mr. Sajiun submitted an affidavit stating that he resided in Suffolk County and worked in New York City; and (b) the record reflected that Mr. Sajiun was served in Hampton Bays, New York. Moreover, the Court found that Plaintiff’s allegations that Mr. Sajiun sold his New York residence in June 2021 for the purpose of transferring the proceeds from New York to Florida, was not enough to support a prejudgment attachment order.

Third, the Court found that Plaintiff failed to establish her burden under CPLR § 6201 (3) that defendants Mr. Bron, Mrs. Bron, Mr. Sajiun and Sajiun Electric attempted to frustrate the enforcement of a judgment by disposing of secreted property. Indeed, the Court noted that the transfer of the Bron residence to a family trust was in 2017, long before the commencement of the action. In addition, the Court acknowledged that many of Plaintiff’s allegations involving fraudulent concealment of assets were based on “information and belief,” which is insufficient to support a prejudgment attachment order.

[ronaldweissspc]

REVIEW: HOW YOUNG IS TOO YOUNG FOR PURPOSES OF CPLR 308(2) SERVICE OF PROCESS?

American literary icon and humorist Mark Twain famously penned in the early 1900’s that “Age is an issue of mind over matter. If you don’t mind, it doesn’t matter.” This quote has been borrowed many times in the years that followed by famous athletes such as Satchel Paige and Muhammad Ali. Very cute Mr. Clemons, but sometimes the law does mind and sometimes age does matter. We know, for instance, that in the State of New York you must be 17 years old to operate a motor vehicle, 18 years old to get married without your parents’ permission and 21 years old to purchase alcohol. But how old do you have to be to properly accept service of process under Civil Practice Law and Rules (“CPLR”) Section 308(2)? More specifically- how young is too young to be considered of “suitable age” in New York? The answer might surprise you.

CPLR Section 308 directs the methods that personal jurisdiction can be obtained over an individual via service of process. CPLR 308(2) (informally referred to as “leave-and-mail”), states that “Personal service upon a natural person shall be made…by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law.”

The purpose of CPLR 308(2) is to discourage “sewer service”- the submission of a false affidavit of service- by giving process servers an alternative to the sometimes difficult task of making personal delivery to the Defendant. The leave-and-mail method requires no prerequisite of due diligence, nor is a Court order required (except in matrimonial actions. See N.Y. Dom. Rel. Law Section 232[a]). At the same time, the statute seeks to provide reasonable assurances that a Defendant will receive actual notice of the action. See Raschel v. Rish, 69 N.Y.2d 694 (Court of Appeals, 1986). Assuming the Plaintiff complies with the statutory requirements, service will be valid even when a Defendant does not actually receive the papers.

Whether a recipient of service of process qualifies as “a person of suitable age and discretion” is a case-specific inquiry. A useful test was stated by the court in City of New York v. Chemical Bank, 122 Misc.2d 104 (1983): “The person to whom delivery is made must objectively be of sufficient maturity, understanding and responsibility under the circumstances so as to be reasonably likely to convey the summons to the defendant.”

Spoiler alert! There appears to be no “bright-line” age below which a child is not a suitable person for service of process, even though “at some point a person should be deemed by the court, as a matter of law, to be too young to have a valid status as deliveree”. Room Additions v. Howard, 124 Misc 2d 19 (1984).

When the age issue has been raised, Courts have had no difficulty concluding that teens can qualify. See, e.g., Wells Fargo Bank, N.A. v. Riley, 23 Misc.3d 1107(A) (2009) (“It is settled that the person of suitable age need not be an adult. A responsible teenager, for example, will do. The criterion should be whether the person can be expected to advise the defendant of the service. (Siegel, New York Practice, Section 72 (2d Ed.)). Similarly, in Bossuk v. Steinberg, 8 N.Y.2d 916 (Court of Appeals, 1983), no one questioned that Defendant’s 14 and 15-year-old children were of suitable age and discretion. So to recap, teenagers in general are likely to qualify as being of “suitable age”, specifically 14- and 15-year-olds.

But what about younger teens? Well a judge in Queens County declared himself skeptical “that a 13-year-old is a person of suitable age and discretion upon whom a summons may be served” pursuant to CPLR 308(2), but also acknowledged (as previously mentioned) that no bright-line age cut-off applies.  “The Court stresses that it has a great deal of difficulty finding that a 13-year-old is a person of suitable age and discretion upon whom a summons may be served”. Choi Yim Chi v. Miller, 63 Misc.3d 354 (2019). Accordingly, the Judge ordered a traverse hearing at which the Plaintiff would have the burden of establishing by a preponderance of the evidence that Defendant’s 13-year-old daughter was “objectively … of sufficient maturity, understanding and responsibility under the circumstances so as to be reasonably likely to convey the summons to the defendant.” Id. at 359-60, 92 N.Y.S.3d at 565. So to recap, a 13-year-old is possibly of suitable age, if the Plaintiff can establish that the child is objectively of sufficient maturity, understanding and responsibility under the circumstances.

How about pre-teens? Well the youngest person to have been declared as “suitable” for purposes of service under the CPLR (in the reported decisions found by the Courts) appears to have been 12-year-old William Derrick Jr.. See Durham Productions Inc. V. Sterling Film, 537 F. Supp. 1241 (1982). (No showing was made that the child did not possess the intelligence to deliver the papers to his father and the Court refused to dismiss the claim on that ground.). So to recap, a 12-year-old also might possibly be of suitable age, depending on maturity, understanding, responsibility, etc.

Children under twelve, however, are not likely to pass the suitability test. See, e.g., Wells Fargo Bank Minnesota v. Roman, 10 Misc.3d 1075(A) (2006) (“There are minors and minors. Although the statute does not set a fixed minimum age, the court must strive to find meaning in every word contained in a statute. It must, therefore, presume that the inclusion of the word “age” was not without statutory intention, i.e., that at some point a person should be deemed by the court, as a matter of law, to be too young to have a valid status as deliveree.”). See Room Additions v. Howard, supra. (“Consequently, the court concludes that a ten year old is not of sufficient age and/or discretion to accept service on behalf of someone else..”) So to recap, 11-years-old and below are presumed as a matter of law not to be of suitable age, regardless of understanding or maturity.

In short, although there is still no “bright line” rule, the cutoff age appears to be 11. 11-years-old is too young (per case law) to be considered of “suitable age” in New York for 308(2) service of process purposes; 12-and-13-years old are possibly of suitable age (but may require a hearing to determine maturity, understanding and responsibility), and 14-and-15-years-old (and older) are generally acceptable.

There are situations, however, where municipalities have subverted the lack of a “bright line” rule by creating their own bright line rule, just to be safe. For instance, the Service of Civil Process General Orders provided by the Sheriff’s Office of Tompkins County, New York (effective August, 2020), defines “Suitable Age and Discretion” as “A person, at least sixteen (16) years of age, who understands the nature and purpose of the particular Order that is being served.” So if you find that your local government has taken it upon itself to clear up any ambiguities surrounding what is considered a “suitable age” for service of process, you should go with that definition.

As long as the person served is of “suitable age”, they need not be an authorized representative. In City of New York v. VJHC Development Corp., 125 A.D.3d 425 (1st Dept. 2015), the Plaintiff served process pursuant to CPLR 308(2). Defendants filed a Motion to Dismiss on the ground, inter alia, that Plaintiff failed to show that the person to whom delivery was made was “authorized” by the Defendant to accept process. Of course, no such showing is required. The issue under the statute is simply whether the person to whom delivery was made was of “suitable age and discretion,” an objective test that does not depend on authorization to accept service.

Of course, age is just half of the requirement under CPLR 308(2). Whether one upon whom service of process is made possesses adequate “discretion” under the statute (irrespective of age) is an entirely different analysis.

[nplegacy]

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Felix 'the face' .

[esqmelaw]

Tips for Conquering the New York State Courts Electronic Filing System (NYSCEF) – for Supreme Court

By: Kayla E. Bargeron June 13, 2017

1.     What documents do you need to e-file?

 In an action subject to mandatory e-filing, filing and service of all documents in the action must be done through the NYSCEF website.[1] All documents is understood to mean, any document that requires proof of service, and all documents that are filed with the court. All actions commenced in Supreme Court after August 31, 2015 are subject to mandatory e-filing except: matrimonial actions, election law proceedings, article 70 or 78 proceedings, mental hygiene law proceedings, specified residential foreclosure actions, and proceedings related to certain consumer credit transactions, all of which require consent to participate in electronic filing of documents.[2]

Unless your action fits into one of the delineated exceptions listed above, it is subject to mandatory e-filing and must be commenced by filing the initiating documents with the County Clerk through the NYSCEF website.[3] However, there are a few exceptions for commencing an action that would normally be subject to mandatory e-filing, where required by statute, or by court order. Furthermore, if you are having computer trouble and can establish in an affidavit that the statute of limitations for your action will expire that day or the next day, you may file hard copies of your initiating documents with a copy of your affidavit with the County Clerk in person.[4]

However, the general rule of thumb is that once an action is commenced, unless you are unable to access a computer or possess an inability to operate a computer,[5] all documents that would otherwise require proof of service or must be filed with the court, will have to be e-filed. Keep in mind, most if not all judges require working copies of motion papers, so make sure you always check the court and judge’s rules when e-filing a motion because most likely you must also file a hard copy with the Court before the return date. Instead of a traditional affidavit of service, you will attach a copy of the NYSCEF confirmation of filing notice for your motion.

2.     What happens if you properly e-file a document, but do not serve it otherwise?

The initiating documents, i.e. summons and complaint, petition, must be e-filed and served pursuant to the CPLR. But, unless statute, court order, or some other authority requires you to serve the document separately, any document filed after all parties appear, does not have to be served after it is e-filed. E-filing documents through the NYSCEF website constitutes service in all actions subject to e-filing.[6] All parties listed on the e-filing website will receive e-mail notifications when any changes are made to the case, via the NYSCEF website. For this reason, it is crucial to make sure that your contact information is up to date on the NYSCEF website, for all of your e-filing cases.

3.     What happens if you e-file the wrong document into a case, file a document into the wrong case, or label a document with the wrong title?

Mistakes are bound to happen at some point, but fear not, they are fairly easy to fix. If you e-file the wrong document into a case, a simple call to the County Clerk will fix all of your problems. The Clerk can return the document for correction, and you will have the ability to log back into your NYSCEF account, access the case in question, scroll down to the line number that was wrong, and click the bright red button that says “file corrected document.”

If you file a document into the wrong case, it is also fixed by a call to the County Clerk. In this situation they will delete the wrongly filed documents and it will result in the number for that document being struck from the case, and will appear with a line crossing it out. For example, if document number 28 was filed incorrectly, document 28 will still show up, but it will be crossed out and no party will be able to access copies of that document. The subsequently filed documents in that case will then be filed as document number 29.

If you label a document with the wrong title, the solution is even simpler, but it still involves a phone call to the County Clerk. In this situation, the Clerk can actually go into the document and correct the label for you.

Keep in mind that most, if not all, of the County Clerk’s offices have e-filing departments, so the quickest way for you to solve your minor errors is to contact the County Clerk’s e-filing department.

4.     What happens if you properly serve a document, but forget to e-file it?

To avoid having to deal with this problem, it is good practice to always e-file documents first. The moment they are completed, e-file them, and then if you do desire to provide courtesy copies to your adversary, you may, but you will not have to worry about service issues after the documents are e-filed. It is unclear how the Court’s will handle this situation. However, it will depend on what the document is. For example, you must e-file the summons and complaint before you serve it because the action does not commence until e-filing. Furthermore, you must e-file proof of service of the summons and complaint timely after service of the documents, as required by the CPLR. If you forget to e-file your proof of service, you must ask the court, upon motion, for leave to file it late. If you serve, but fail to file other documents, such as motions, as soon as you realize this happened, e-file the motion papers and an affidavit of service. Next, try to see if your adversary will stipulate to having received the documents. There are two ways the courts can handle this situation; either permitting you to proceed as originally planned on your chosen return date, or adjourning the motion out based upon when it was actually e-filed to ensure that your adversary had proper notice and is not prejudiced in any way.

5.     Finally, remember that all documents that you e-file must be redacted for personal information, including birth dates and social security numbers.[7]

In the event that you forget to redact a document that contains sensitive information, don’t worry, if you call the e-filing Clerk and notify them that the document contains sensitive information, they can either mark the document returned for correction and permit you to upload a redacted document, or they can mark the document for restricted access.

Be careful when e-filing documents and make sure to redact or check the box when you are e-filing that says the document contains sensitive information. Courts take this very seriously; failing to properly protect client’s information can result in sanctions.  

I hope this helps you in your practice. I am a student at Brooklyn Law School and these are merely my observations based on my experiences. Nothing in this article should be construed as legal advice, please seek legal counsel before relying on any of this information.

[1] Administrative Order of the Chief Administrative Judge of the Courts AO/145/15, August 31, 2015; Uniform Civil Rules for the Supreme and County Courts Section 202.5-bb.

[2] A full description of the exceptions to mandatory e-filing can be found within the Uniform Civil Rules for the Supreme and County Courts Section 202.5-bb(a)(2)(i-vi).

[3] Uniform Civil Rules for the Supreme and County Courts Section 202.5-bb(b)(1).

[4] Uniform Civil Rules for the Supreme and County Courts Section 202.5-bb(b)(2).

[5] Uniform Civil Rules for the Supreme and County Courts Section 202.5-bb(e)(2) provides an option for represented parties to opt-out to mandatory e-filing if the attorney can show good cause, or that they lack the knowledge to operate computers, or do not have access to a computer.

[6] Uniform Civil Rules for the Supreme and County Courts Section 202.5-bb(c)(1).

[7] Uniform Civil Rules for the Supreme and County Courts Section 202.5(e).

[trustka]

Insync litigation support

The documentary evidence must utterly refute the factual allegations in the complaint, resolve all factual issues as a matter of law and conclusively dispose of the claims at issue (Yue Fung USA Enters., Inc. A complaint may be dismissed based upon documentary evidence, pursuant to CPLR 3211(a)(1), only if the factual allegations contained in the complaint are definitively contradicted by the evidence submitted or if the evidence conclusively establishes a defense (Yew Prospect v Szulman, 305 AD2d 588 Sta-Brite Servs., Inc. The complaint asserts a cause of action for negligence and a cause of action for breach of contract.ĭefendant contends that documentary evidence directly contradicts the allegations of plaintiffs' complaint. The complaint concludes that plaintiffs have been damaged because the underlying action could not be pursued due to the expiration of the statute of limitations after inSync failed to make service. The complaint further alleges that inSync accepted the job, but failed to serve the papers as requested and never had any further communication with Agulnick. al., Supreme Court, Queens County, Index Number 703219/2014 (the underlying action). The complaint alleges that Agulnick engaged InSync to serve a summons and complaint on behalf of Butler upon two of the defendants in Butler v the City of New York, Koledin, et. Plaintiffs commenced this action with the electronic filing of a summons and complaint on December 18, 2015. Plaintiffs, Deshon Butler (Butler) and Peter M. Notice of Motion, Affidavits (Affirmations), Exhibits Annexed 1ĭefendant, inSync Litigation Support, LLC (inSync), moves for an order, pursuant to CPLR 3211(a)(1) and (7), dismissing the complaint. The following papers were read on this motion: Papers Numbered InSync Litigation Support, LLC, Defendant(s). This opinion is uncorrected and will not be published in the printed Official Reports.ĭeshon Butler and Peter M. Learn more about our capabilities in Risk Transformation.Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. Overall risk rating, based on our self-assessment of your regulatory risk.Where relevant, benchmarking data to call out leading or lagging behaviours.Actionable insights based on our engagement and industry expertise.Whichever service or support we deliver, we will provide you with a report that presents a meaningful view of your organisation’s regulatory posture and the measures required to safeguard your business. Leverage our broad experience to optimise the brand and reputation impacts of the process.Provide a level of independence and confidence in the eventual outcome.Provide effective challenge, where necessary, to your internal teams and datasets to ensure a validated, verifiable and defensible outcome you can stand behind.Provide board/executive level insights to progress/risks/issues as they evolve during a review.Cost-effectively manage the documentary/evidence based demands of such reviews (using dedicated document management system and tools we can provide, if needed).Use existing regulatory protocols, standards and advisories to ensure responses are fully aligned and reflect regulator expectations.Prepare for and lead/coordinate the response to ensure your business remains focused.Whether it be ASIC, APRA, ACCC, AUSTRAC, or any other regulator or Statutory Authority, our proven experience combined with effective methodologies, tools and techniques, means we can work quickly with your existing resources to provide an optimal response that doesn’t grind the business to a halt. Whether the review is industry-wide or targeting you alone, we have the breadth and depth to quickly resource your needs and provide meaningful, intelligent thinking around the response/engagement strategy and approach. These same skills and experiences are invaluable when responding to unplanned regulatory or government intervention or inquiry where time is of the essence and there is no time for learning curves or familiarisation. Our team have deep practical experience setting up, managing and transforming regulatory compliance regimes and the role they play in supporting an organisation’s ‘ticket to play’. Whether you are responding to regulators, litigation lawyers, or disgruntled shareholders, or dealing with Enforceable Undertakings, Class Actions, a Regulatory ‘Requirements’ Letter, or a government-initiated inquiry, additional skilled resources can be critical to the quality of your outcome. Unplanned regulatory intervention or inquiry can really stretch a business and sometimes a helping hand or fresh set of eyes can help you effectively manage through the process.

[undisputedlegal]

Navigating New York's service of process laws can be complex, but understanding CPLR 308 is crucial for successful legal proceedings. #ServiceOfProcess #CPLR308 #NewYorkLaw #LegalProceedings

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[runpogorun]

Show Me Your Scars

Here is my DDE 2021 New Year’s Day fic @daredevilexchange (a few days late, shhh) for @matt-murdok. Sorry it was late, but I hope it was worth the wait!

This is set in that horrible time after season 2, when Matt and Foggy aren't on good terms. Matt is working with the Defenders. @metaderivative and @iheartallthethings were amazing with their help on this fic.

Read it here, or over on AO3.

Enjoy!

_____

Foggy doesn't bother to announce his arrival with a knock. If Matt is conscious, he'll have heard Foggy long before he slid his key into the door. If Matt hasn't heard him… well, Foggy isn't letting himself think about unconsciousness, or worse. 

It's dark in Matt’s entryway, of course, vague blotches of colour mottling the cavern that Matt uses as a lounge. Foggy drops his keys and a sigh on the side table, and flicks on the hall light. He can see a tuft of dark hair at the end of the couch, and his back is thankful he won't be scraping Matt off the floor. 

"What are you doing here, Foggy?" Matt's coherent, even. Wonders will never cease.

"You know, it's great being wanted." Foggy nearly turns on his heel to leave, but he doesn't. Instead, he takes slow, deliberate steps, as he moves away from the warm light of the hall and towards the purplish billboard-lit gloom of the lounge. "It makes my day. Or, whatever you call this sort of time."

Matt grunts but doesn't turn his head to track Foggy as he ambles over to perch on the edge of the coffee table. Matt's half-sitting, stretched out full length. His eyes are closed, and he looks pinched, in pain, even as the lights dance across his face. Foggy can’t identify any visible injuries. "There's no reason for you to be here," Matt says.

"That's where you're wrong." Foggy waits, but Matt gives him nothing more, so he sighs. Matt seems to make him sigh more and more these days. He decides to stick to fact. "Jones told me you might need a welfare check."

Matt shakes his head slightly without opening his eyes, so Foggy stops trying. He stands, walks to the kitchen and fills a glass with water, snagging a bottle of pills from the shelf on his way back. He puts the glass on the coffee table, where Matt can reach it easily, and shakes the bottle before throwing it on Matt's stomach. "Ibuprofen." Matt opens his eyes, picks up the bottle and runs his fingers over the braille label, like he doesn't believe Foggy and needs to confirm for himself. 

Foggy thrusts his hands in his pockets and watches as Matt twists the cap off the bottle with some difficulty, and shakes out two capsules. He swallows the pills, then reaches out, groping for the glass, but his aim’s off. He must be feeling pretty bad. Foggy takes Matt’s flailing hand and guides it to the glass. 

“Thanks,” Matt says, grudging. Foggy knows how much Matt hates feeling helpless, so he shrugs. Matt drains the glass, and manages to get it back on the coffee table without smashing it. “I’m fine, really.”

“Yeah, sure,” Foggy says.  Matt really does look miserable. He has dark circles under his eyes, and his breaths come short. Foggy casts about and spots a blanket hanging over the back of one of the armchairs. He picks it up, shakes it out, spreads it over Matt. God, he hates this asshole. “Ribs?”

Matt nods, curtly, then says, “You don’t need to stay.”

“Oh, I know.” Foggy paces over to the window and looks through one of the grimy panes, down into the darkened alley, still with the heavy humidity of summer, then back over his shoulder. “Want to tell me what happened tonight?”

“C’mon, Foggy. What do you want here?” Matt squirms slightly, pulling the blanket around himself.

“Whatever. I’ll get out of your hair.” Foggy turns and leans against the brickwork, holds up a finger. “Just tell me one thing.”

Matt raises a questioning brow, as his hands squeeze the blanket.

“What’s CPLR 3211?” Foggy asks.

Matt frowns in confusion. “What?”

“You heard me. CPLR 3211. What is it? What’s it for?” 

“Motion to dismiss?” Matt replies. “Or is this something cryptic?”

Foggy relaxes and wanders closer to Matt. “Nah, you got it right. I’m just testing your lucidity.” Testing that Matt’s safe to be on his own.

“With my knowledge of New York’s consolidated laws?”

“It’s not something you’d forget easily.”

Matt concedes the point by tilting his head. “So now you  want me to dismiss you?”

“Don’t imagine you’re the one calling the shots, here.” Foggy stands where he is, studying Matt’s face while he tries to decide between coffee, alcohol, and the door. “You know it would be an enormous pain in my ass if you died, right?” Foggy asks. “So I need you to promise that if I leave you won’t die.”

“I will never die,” Matt quotes, the corner of his mouth quirking.

Foggy snorts, suddenly on the edge of laughter. "Yeah. Okay, Gary." He sobers, looking again at Matt’s taut face. “Don’t lie to me. Are you going to be okay if I leave you alone?”

“I told you, I’m fine.”

Foggy nods absently. “Gary was a better actor than you.” He doesn’t really believe Matt’s ‘fine,’ but Matt also doesn’t look like he’s lining up to shuffle off this mortal coil. “You want any help getting in bed?”

Matt closes his eyes again, shakes his head. “I’m here for the night.” 

“Need the bathroom?”

“Foggy. I’m not an invalid.”

“Okay.” Foggy nods. “Okay. See you, man.”

Matt says nothing as Foggy walks away. It’s for the best, really.

_____

He spots them, a  week or so later, walking towards him on the opposite side of the street. Matt’s grinning like an idiot, and Jess is trying to hide her own smile, looking at him with fondness. Foggy’s glad they’re working together, he really is. Matt needs someone looking out for him, and Foggy appreciates the sporadic texts she sends him. Matt’s even holding her elbow, the way he used to hold Foggy’s. 

Foggy readjusts the strap of his briefcase where it’s suddenly cutting into his shoulder. Because he can’t tear his eyes away he sees Matt’s smile falter, his head tilt, and because Jess is looking right at Matt she catches it, too. She tenses, scans the street as Matt shakes his head slightly and mutters something. Jess relaxes, turns her head to look across the street just as they draw level and locks eyes with Foggy, raising her brows. Foggy half-smiles then looks away and carries on with his journey. He can’t let this derail him. He has clients to meet, a reputation as a capable lawyer to uphold. He even manages to whistle.

And if Karen can’t meet him for drinks that night, and he spends the night crying into his whisky glass alone in his apartment, no one needs to know.

The next day he gets a text.

Sort your shit out

I’m not the one with the shit, he replies.

Then he adds, Thanks for texting last week. 

Jess replies surprisingly quickly. He was pissed at me

He’s an asshole

Agreed

Keep him alive, please, Jones

Jess doesn’t reply to that one.

_____

Foggy sees Matt in other places. At the courthouse, in a cafe. He can’t help but scan him for injuries, knowing that his heart’s pitter-pattering in his chest betrays his concern, and finding no new injuries, subsequent relief. Or pulling at the sight of a poorly-masked limp, a black eye not-so-hidden by dark glasses.

When Foggy sees Matt unexpectedly, he tries to feel revulsion, but he can’t. Instead, being close to Matt Murdock summons pain, and frustration, and despair.  The feeling swirl and threaten to drown him, and he waits for them to coalesce into a single entity, something he can name and vanquish. He expects it to be disgust, loathing, or even hatred, but that hasn't happened yet. And Foggy can’t work out why. So he learns that after he sees Matt he’ll lose his appetite, that his breath will catch, that his body will worry.

There’s something else that he feels, in the centre of his chest, but he stubbornly refuses to name it. All the time and betrayal hasn’t weathered away its rough edges, and it has a habit of spiking him at the most inconvenient times. It would bring him to his knees, if he let it.

Matt always plays their encounters perfectly straight, never betraying what he might be reading from Foggy’s traitorous body, never straying from polite yet distant when they need to interact.

Foggy knows there’s chatter at the courthouse - What happened to Nelson and Murdock? They  were practically married, and now I never see them together. 

Foggy lived through the past months, but he doesn’t know, either. He doesn’t know how they ended up here, and if they can ever get to a new place.

_____

The next time Jess contacts him, she calls. At the panic in her voice he bolts out of his warm bed. Foggy has never heard her panic before.

When he arrives at Matt’s apartment his hands are shaking and he struggles to slide his key into the lock, but before he can manage it the door swings open, revealing a broad chest, clad in a hoodie flecked with bullet holes. Luke nods and steps aside wordlessly as Foggy pushes past him, searching for Matt. 

All the lights are on, which isn’t saying a lot. The poor lighting casts deep shadows, appropriate for a man with too many dark secrets. Foggy has eyes only for Matt, stretched out on the couch again, bare to the waist and with an arcing red line of sutures across his chest. His breathing is so shallow that for a moment Foggy fears the worst. Matt’s deathly pale, his lashes dark against his cheek, and gives no sign whatsoever that he’s clocked Foggy’s arrival. The bright splash of red on the floor paints a picture in crimson that takes Foggy back to another night, another pool of blood. Foggy feels his legs weaken underneath him.

Foggy turns to look at Claire, where she’s kneeling beside the coffee table, cleaning up her supplies. Surgical instruments clatter into a plastic box, alongside the once-sterile wrappings of her surgical kit and little suture packets. It’s less tidy than usual, as though Claire was rushing. Claire’s hands are shaking, and her movements are jerky. She looks like she’s gone beyond her standard frustration, like she’s been grappling with fear.

Claire glances at him, then back at her work. “If Danny hadn’t got here quickly….” Claire cuts herself off and swallows hard, composes herself. “There’s only so much I can do like this.” She gestures angrily and shakily at her supplies, at Matt’s prone form, and throws bloody swabs into the box. “This isn’t an operating theatre.”

Foggy lets out a long, shuddering breath. “Thank you, Claire,” he says. He knows it’s inadequate, that it doesn’t even begin to cover what happened here tonight or any of the other nights before.  . 

Claire pauses, her tidying finished, and there’s a stillness to her. It’s like the night has drawn in, circling the three of them in a hideous diorama. Foggy feels himself frozen and watches as Claire looks at Matt, still as death. She shakes her head minutely, then slowly rises to her feet.

Jess is suddenly there, holding a cup of coffee in Claire’s direction, and the moment passes. Claire takes the cup with resigned relief, and Foggy shivers in surprise. He hadn’t noticed Jess at all. He looks over and sees Danny slumped at the dining table, chopsticks in hand and an empty take-out container beside him.

“Drink that, and I’ll take you home,” Jess tells Claire, then looks at Luke. “You’re in charge of Fisty.” Luke nods, and wanders over to Danny, poking him in the side with a finger.

“Ow!” Danny yelps, and stands up stiffly.

“Quit being so dramatic,” Jess grouses.

“It takes a lot of energy to channel my Qi like that-” Danny begins, but Luke picks him up and hefts him over a shoulder. Danny protests briefly, pounding ineffectually against Luke’s back, then gives up, sagging in defeat. Luke nods at Foggy, and makes for the roof access stairs, disappearing up them more quickly and quietly than a man his size should be able to.

Claire knocks her coffee back, and discards the cup on the table, looks hard at Foggy. “You need to stay with him.”

Foggy nods. “How long will he be like this?”

She shrugs. “He’s lost a lot of blood. Danny’s fist is kinda miraculous, but I think it has limits.”

“Just tell me what I need to know. Please.”

Claire and Jess exchange a look, and Jess clears her throat. “Luke and Danny were working together, Matt and I were doing a different area. Matt got cut bad. It was deep,” Jess supplies. “We were close so I called the others then got him here, and Claire met us, but…” Her already-pale skin turns whiter still, and she swallows hard.

“Luke and Danny showed up when we needed them to,” Claire says. She looks again at Matt, and he watches her watching Matt. “He’s going to need to rest for a few days,” Claire says.

Foggy laughs mirthlessly. “Have you met Matt?” he asks.

“He might not have any choice this time. Keep him warm, make him drink and eat. Call me only if you need to. You know the drill.”

Foggy nods, following Claire and Jess with his eyes as they disappear around the corner. The front door opens and closes, and Foggy is alone with Matt. He rubs his arms, feeling the sudden chill of fall, and looks down at the person he once called his best friend. Matt’s still unconscious, and he looks cold. 

In Matt’s room Foggy digs out socks, sweats, and a hoodie, and the soft blanket Matt keeps at the end of his bed. He spreads the blanket over Matt, and piles the clothing on the coffee table. Foggy allows himself another look at Matt’s face, and he feels the spiky thing flip over in his chest. He tucks in the edges of the blanket, to keep Matt warm, and goes to make himself a coffee.

Foggy’s left a few magazines and a couple of novels at Matt’s apartment, and they’re still in a small, neat pile on the bottom shelf of the bookcase. He retrieves his old, dog-eared copy of Pride and Prejudice, and sits down in the armchair closest to the window. From here the billboard lights Matt’s face, and Foggy can look up every few pages to check that Matt’s still breathing.

Foggy sets the book aside and stretches, and walks over to stand above Matt. Matt’s skin in waxy, but his breathing is smoother, a little deeper. Foggy should be angry at Matt, but he’s just sad, worried and lonely. He wants his best friend back.

Foggy sinks slowly to his knees and reaches up a hand to stroke back Matt’s hair. His skin is clammy, which Foggy remembers tends to happen when someone nearly bleeds out. His stomach twists again with fear for Matt, and for a fleeting moment Foggy imagines a world without Matt in it. It’s a dark place. But Matt is here and breathing. Foggy finds himself leaning in and pressing a gentle kiss to Matt’s forehead. 

Because this is Foggy’s life, Matt chooses this moment to stir and groan, and Foggy jumps back.

“Jess?” Matt asks, eyes pinching tightly.

“Sorry, man, it’s just me.”

“Fog?” Matt croaks, uncertain. “I can’t, I’m not.” He swallows and his eyes open, roving aimlessly and frantically as he brings one hand to the wound on his side. Foggy’s seen Matt’s eyes wander like this before, when he’s disoriented, so he grabs for Matt’s clammy hand and gives it a squeeze. Matt holds on tight, a drowning man clutching a lifering, and the lost look fades from his face. He clears his throat. “When did you get here?”

“A while ago. Jess called me.”

Matt closes his eyes again. “Claire was here.”

“She was.”

“She stitched me up.”

“Ye-es. And I think that, maybe, Danny did the magic healing glowing fist thing? Claire seemed kinda upset.”

“Because Danny took over?”

“More like…” Foggy swallows, fighting down an edge of panic. “She nearly lost you.”

“Oh. Mmm.” Matt pauses, like he’s taking stock of his body. “That tracks.” His tone lacks inflection.

“How do you feel?”

“Fine.”

“Oh fuck you, Murdock.” That earns him a half-smile. “You thirsty?” Foggy asks, reaching for casual, but falling wide of the mark.

Matt swallows, with effort, and licks his lips. “Um. Yes.”

Foggy lets go, and doesn’t miss that Matt flexes his hand, like he hadn’t realised they were still holding each other, before slipping it under the blanket. 

In the kitchen, he fills the electric kettle and puts it on to boil for tea, then retrieves a bottle of water from the fridge. There’s not much food on hand, looks like Danny got to the leftovers, but at least there’s bread for a sandwich.

“It’s late, Foggy. Go home to bed.”

Foggy aggressively ignores this, setting out two mugs with tea bags, and retrieving milk and sugar. He starts slapping together two PB&Js, and finds half a block of dark chocolate in the usual spot. The jug clicks off, and he fills the mugs. The familiarity of the task is soothing, distracting. Matt doesn’t seem to be as aware of Foggy’s movements as he usually is, and he hasn’t tried to sit up. 

As the tea bags steep, Foggy prepares himself for the conversation he knows is coming. He has to be the instigator. 

Tea bags out, Foggy adds milk and honey. Matt doesn’t like his tea sweet, but he gets less choice on a night when he nearly died. Foggy he tucks the water bottle under his arm, picks up the plate of sandwiches and chocolate, and carries Matt’s mug over to the lounge. “You need one of those lap trays they make for old people.”

Matt groans as he pushes himself up into a sitting position. Foggy stuffs a piece of chocolate at Matt’s mouth and he makes a face, but takes it without protest. The blanket has slipped down, and goosebumps stipple Matt’s chest, his nipples standing out, hard. Foggy hands Matt the hoodie and Matt takes it with surprise, running his hands over it to orient himself before slowly and painfully pulling it on and lifting the hood up over his head.

“Drink your tea,” Foggy says, and goes back to collect his own. He snags the whisky bottle and pours a hefty tot into his cup before returning to sit in one of Matt’s armchairs.

“Do I get some of that?” Matt asks. 

“Maybe when you’ve got your blood volume up again.”

Matt’s surprisingly tractable, eating his sandwiches without complaint. Of course, it’s not particularly reassuring because Foggy knows it means that Matt’s got to be feeling terrible. 

They sit in relative silence, Matt seemingly focused on drinking his tea without spilling it, until Foggy realises it’s past 5am. He pulls himself out of the airchair and goes to switch on Matt’s espresso machine. 

When Foggy moves away, Matt reaches for the rest of his clothing. Foggy lurks in the kitchen while Matt dresses slowly, awkwardly, dropping his pants and kicking them under the coffee table. Foggy’s seen this enough times to know better than to offer help. Matt pulls on one sock then sits back, panting. Foggy despairs for Matt and his abysmal sense of self-worth. He wishes he could love Matt into healing, but he knows it doesn’t work like that. When Matt stands to pull up his sweatpants he sways slightly and clutches the back of the couch for balance. Foggy looks away, attends to the coffee, makes his own Irish.

Foggy puts Matt’s coffee on the coffee table in front of him, although Matt’s lying down and doesn’t reach for the cup. Foggy sits down again in the armchair, balancing his mug as he leans back, and fixes Matt with a stare he hopes Matt can feel. 

“So.”

“So. You heading out?” 

“I’m here to look after you,” Foggy says.

Matt scowls a little. “Don’t you have work?”

“It’s Saturday.” Foggy spreads his hands wide, like a magician presenting his trick. “I can stay all weekend.”

Matt makes a noise of frustration. “Just go, Foggy.”

“No can do. I’m staying.”

“You’ve left before.”

Foggy feels a stab of anger. “Because you told me to. You made it very clear that you didn’t want me around again.”

Matt’s jaw tenses, and Foggy takes a deep breath, willing himself to regain some calmness. When he speaks again, he’s proud that his voice doesn’t shake.

“We’ve already been through this, and I have no interest in doing it again.” He takes another breath. “You matter to me, Matt. Once upon a time I met this cool guy and we became friends and spent tons of time together. I even started a business with him.”

“And then you found out he wasn’t who you thought he was,” Matt says, with a wide, dismissive gesture.

“Yeah, and it sucked.” Foggy looks down at the hands in his lap and realises he’s wringing them. 

“So why are you still here? I thought we were done.” 

Foggy looks up at that. “I’m not done.” 

“Foggy. I feel like shit. I don’t want to do this now.” Matt does look like shit, but that’s not the point here.

“Yea, well, you never want to talk about it on the rare day you’re uninjured, so...”

“So drop it.” Matt’s face is blank, emotion masked, facing the wall in front of him, not Foggy.

“Stop pushing me away, Matt”

A flicker of anger crosses Matt’s face. “You’re only here out of a misplaced sense of loyalty.”

“Misplaced? Matt. Why can’t you accept that I want to be here?”

“Because you don’t. Because I’m...”

“What?” 

Matt closes his eyes and tips his head back, inhales like he’s praying for strength.  Then he straightens, facing Foggy head on. “I’m not worth it.”

“This again. You must think I’m a poor judge of character.”

“Maybe when it comes to me,” Matt says, nodding.

“You’re such a selfish asshole.”

Matt nods again, agreeing, which is frankly irritating. “Also, I’m not. Not. I…”

“Not what, Matt? Reliable? A good decorator? Because I already knew that.”

“I’m not.” Matt stops again, takes a deep breath. “It’s not you, it’s me. You know that. I’m just…” Matt still can’t finish the thought.

“Are you trying to say that you’re not likable? Because I think you know that’s not true. You’re… magnetic.”

“Until people find out who I really am.”

Fogy shuffles forward in his seat and rests his elbows on his knees, leaning towards Matt. “Matt, I need you to listen to what I’m about to say. Okay? You have inherent worth as a human, and you matter to me, very much. And that isn’t contingent on us getting along all the time, or you avoiding injury, although I’d really prefer it if you didn’t get hurt. So stop trying to push me away, because I like things a lot better when we aren’t fighting. Or we can squabble, but it’s not the end of the world.”

Matt’s averted his face, away from Foggy and the billboard. He bites his lower lip and shakes his head slightly, and doesn’t reply.

“I love you, man,” Foggy says. “And it hurts seeing you be self-destructive. But that doesn’t stop me loving you.”

Matt squeezes his eyes shut, and Foggy sees a glistening tear slide down the curve of his cheek. Matt’s jaw works, and Foggy waits him out, giving him time to speak.

“There’s a difference between what you tell me I should know, and what I believe,” Matt finally says.

Foggy hates everyone who has left Matt over the years. But he can’t hate Matt.

“You’re so smart, Matt, but you don’t understand feelings at all.”

Suddenly the space between them yawns, impossibly far, and Foggy has to bridge it. In a rush, he stands and moves to sit beside Matt on the couch, and he reaches across Matt’s lap to pick up his left hand from where it’s balled in a fist on his thigh, forcing Matt to turn his shoulders towards Foggy. 

Foggy looks at Matt’s hand. The knuckles are bruised, of course, but it’s the same hand that he’s seen reading, skimming over surfaces in a real or feigned search for information, the same hand that’s so often held firmly but lightly to Foggy’s elbow.

Gently, Foggy unfurls Matt’s fingers, spreading them wide and lifting Matt’s hand to press against the centre of Foggy’s chest, with his own hand spread above it.

The rest of Matt unfurls along with his hand, softening and reaching towards Foggy.

Foggy watches as the lines of tension in Matt’s face ease, and he seems to tune in to the beat of Foggy’s heart. The spiky thing in the middle of Foggy’s chest warms and pulses and softens, and Foggy finally lets himself name it - it is love. Foggy’s love for Matt. And Matt Murdock might be clever with words and stupid with emotions, but no one feels the world the way Matt does.

Foggy leans forward and kisses Matt’s forehead again, gentle and warm, then presses his forehead to Matt’s.

“I’m tired, Foggy.”

Foggy murmurs in agreement. “I know. So am I. And I miss you.”

Matt reaches with his other hand to cup Foggy’s shoulder, a finger playing over the scar under the sleeve of Foggy’s sweater.

Foggy kisses Matt’s forehead again, then pulls back slightly. “You haven’t touched that scar before, have you?” Foggy asks. Matt pulls his hand away, like he’s just realised what he’s doing, and shakes his head, frowning. “It’s okay.” Foggy has to release Matt’s other hand, but he shrugs his left arm out of its sleeve and pulls the bottom edge of his sweater up so that his entire arm and half his torso are bare. “Feel away.”

Cautiously, Matt reaches out with his right hand and touches one fingertip with unerring accuracy, exactly where the bullet left its mark. Foggy watches as fleeting emotions chase each other across Matt’s face. “I’m sorry I didn’t visit you in the hospital,” Matt says. He presses his palm flat over the scar for a moment, lifting his hand away only to press a kiss of his own to Foggy’s skin, to his scar. Foggy shivers.

Matt’s hand moves again, sensitive fingertips trailing from Foggy’s arm across to his chest and grazing a nipple. He pauses, all five fingertips there with the lightest of touches over Foggy’s heart, before his hand spreads out. Foggy feels the contact like it’s a brand.

Foggy lifts his right hand. He has to unzip Matt’s hoody, but then he’s pressing his own hand over Matt’s heart, and confusion, joy and hope are chasing each other across Matt’s face.

Matt leans forward and kisses Foggy on the lips. It’s sweet and gentle, but when Matt presses in more firmly Foggy moves back.

Matt doesn’t look like he’s about to jump out the window, but he does look uncertain. “You don’t want...?” Matt asks.

“Oh, I do. You have no idea. But you’re hurt and tired and you have a very soft bed in the next room, and maybe we’ve done enough talking for now.”

“Want to spoon?” Matt asks, and the hope on his face nearly breaks Foggy’s heart.

“Yes I do, my spoony little friend. And we can talk later.”

Matt smiles, and it’s like seeing the sun burst over rain-drenched lands that had almost forgotten a sun existed. “Later.” And Foggy takes Matt’s hand in his, helps him carefully to his feet, and leads him to bed.

[photoyagetv]

The Garabit bridge / Le pont de Garabit France . . #insta #instagood #instagram #instagramers #instaphoto #instadaily #instamoment #picoftheday #photo #photooftheday #photography #photographer #photographydaily #travel #travelphotography #travelblogger #travelgram #love #beautiful #happy #likeforlikes #likeforfollow #like4likes #film #france #tourism #tourist #architecture #architecturephotography #architect (à Viaduc de Garabit) https://www.instagram.com/p/CPLr-fOHmVU/?utm_medium=tumblr

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