UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------------------x 

EZRA COHEN, Case No. 07 CIV 5834

JUDGE CASTEL

Plaintiff, 

NOTICE OF MOTION

-againstELIAS HOROWITZ, a/k/a AL HOROWITZ, a/k/a 

ALISHA E. HOROWITZ, a/k/a ALIASA HOROWITZ

a/k/a ELISHA HOROWITZ and SARAH WERZBERGER,

a/k/a CHAYA SARAH WERZBERGER,

Defendants

--------------------------------------------------------------------------x

PLEASE TAKE NOTICE that upon the annexed certification of 

Solomon Rosengarten, affirmed on the 25th day of October 2007, the 

undersigned will move this Court before the Hon. P. Kevin Castel, United 

States District Judge, at the courthouse, 500 Pearl Street, New York, New 

York, on the 5th day of November 2007, at 9:00 in the forenoon, or as soon 

as thereafter as counsel can be heard, for an order granting leave to amend 

the complaint and add an additional plaintiff, pursuant to Rules 12(a) and 21 

of the Federal Rules of Civil Procedure and for such other relief as to the 

court may seem just and proper.

____________________________

SOLOMON ROSENGARTEN (SR8050)

Attorney for Plaintiff

1704 Avenue M

Case 1:07-cv-05834-PKC Document 10 Filed 10/26/2007 Page 1 of 7
Brooklyn, New York 11230

(718) 627-4460

Case 1:07-cv-05834-PKC Document 10 Filed 10/26/2007 Page 2 of 7
UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------------------x 

EZRA COHEN, Case No. 07 CIV 

5834

 JUDGE CASTEL

 

Plaintiff, CERTIFICATION 

IN 

SUPPORT OF 

MOTION

-againstELIAS HOROWITZ, a/k/a AL HOROWITZ, a/k/a 

ALISHA E. HOROWITZ, a/k/a ALIASA HOROWITZ

a/k/a ELISHA HOROWITZ and SARAH WERZBERGER,

a/k/a CHAYA SARAH WERZBERGER,

Defendants

--------------------------------------------------------------------------x

 STATE OF NEW YORK

COUNTY OF KINGS

Solomon Rosengarten hereby certified as follows: 

1. I am the attorney for the plaintiff in the above-entitled matter, am fully 

familiar with the facts set forth herein and submit this certification in 

support of plaintiff’s motion to add another party plaintiff to this 

action and amend the complaint.

2. This is an action brought to recover an amount due from the defendant 

from the proceeds of an insurance policy which provided payment 

upon the marriage of the plaintiff’s son, David Cohen (Exhibit “A“).

3. The policy in question was obtained and paid for by the plaintiff Ezra 

Case 1:07-cv-05834-PKC Document 10 Filed 10/26/2007 Page 3 of 7
Cohen.

4. The beneficiary of the policy was Ezra Cohen’s son, David Cohen.

5. As set forth in the Amended Complaint herein, defendant issued 

checks to plaintiff Ezra Cohen in the amount owed, but those checks 

where dishonored (Exhibit “B”).

6. Since the checks in question where issued to him, he was named as the 

plaintiff in this action.

7. Moreover, the communications alleged in the complaint between the 

plaintiff’s agent and defendants were made on behalf of both David 

Cohen and Ezra Cohen.

8. Both Ezra Cohen and David Cohen reside in Mexico and do not speak 

English.

9. The communications with the undersigned with Ezra and David 

Cohen has been done through a friend of the Cohens, who is fluent in 

both English and Spanish, the latter being the language of the plaintiff 

Ezra Cohen and his son, David Cohen.

10. Subsequent to the filing of the complaint, the undersigned received a 

copy of the insurance policy which designated David Cohen as the 

beneficiary under the policy (Exhibit “A”).

11. The undersigned was not aware of that and this probably was due to a 

Case 1:07-cv-05834-PKC Document 10 Filed 10/26/2007 Page 4 of 7
failure of communication resulting from the fact that all 

communications between myself and the plaintiff was done through a 

translator intermediary and the fact that I had in my possession copies 

of the aforesaid dishonored checks.

12. Furthermore, I have received a clarification of the loss incurred by 

plaintiffs as a result of the loan obtained by them when the aforesaid 

checks were dishonored and the sum is less than was alleged in the 

Amended Complaint.

13. Under the circumstances, plaintiff should be permitted to add David 

Cohen as a party plaintiff as he is the beneficiary of the policy in 

question.

14. Ezra Cohen is also a proper plaintiff since defendants promised to pay 

to him the amount due on the policy and, in fact, issued checks to him, 

which were dishonored.

15. F.R.Civ.P 15(a) allows the Court to permit a party to amend a 

pleading by leave of court and “leave shall be freely given when 

justice so requires.”

16. In addition, F.R.Civ.P 21 provides that a party may be added on 

motion of any party. 

17. It is well settled that an amendment to a pleading should be permitted 

Case 1:07-cv-05834-PKC Document 10 Filed 10/26/2007 Page 5 of 7
if there is no prejudice to the opposing party.

18. In the instant case, the proposed addition to David Cohen as a plaintiff 

cannot be prejudicial to the defendants and the reduction of the sum 

demanded certainly cannot be prejudicial.. 

19. This action is at a very early stage and no discovery has yet been 

conducted except that the undersigned forwarded to counsel for 

defendant ELIAS HOROWITZ the disclosure required by F.R.Civ.P . 

26(a)(1).

20. Moreover, defendant WERZBERGER has not yet been served with the 

Amended Complaint

21. Furthermore, plaintiff can commence a separate action on behalf of 

David Cohen.

22. Moreover, if such an action were commenced it would no doubt be 

consolidated with the instant action.

23. 

24. Given the foregoing, the Court should grant plaintiff leave to add David 

Cohen as a plaintiff and to amend the complaint to include allegations 

made by him, as set forth in the proposed amended complaint annexed 

hereto as Exhibit “C”.

Dated: Brooklyn, New York

 October 26, 2007

Case 1:07-cv-05834-PKC Document 10 Filed 10/26/2007 Page 6 of 7
 

_________________________

 SOLOMON ROSENGARTEN 

Case 1:07-cv-05834-PKC Document 10 Filed 10/26/2007 Page 7 of 7