Teddy Volkswagen of the Bronx, LLC v. Demersky, No. 1:2019cv02337 - Document 118 (S.D.N.Y. 2022)
Court Description: MEMO ENDORSED ORDER granting 116 Motion for Judgment. ENDORSEMENT: SO ORDERED. (Signed by Judge Alison J. Nathan Sitting By Designation on 7/12/2022) (vfr) Transmission to Orders and Judgments Clerk for processing.
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Teddy Volkswagen of the Bronx, LLC v. Demersky Doc. 118 Case Case1:19-cv-02337-AJN-SN 1:19-cv-02337-AJN-SN Document Document118 116 Filed Filed07/12/22 06/22/22 Page Page11of of14 3 MILMAN LABUDA LAW GROUP PLLC 3000 MARCUS AVENUE SUITE 3W8 LAKE SUCCESS, NY 11042 _________ TELEPHONE (516) 328-8899 FACSIMILE (516) 328-0082 June 23, 2022 VIA ECF United States District Court Southern District of New York Attn: Hon. Alison J. Nathan, U.S.D.J. 40 Foley Square, Courtroom 906 New York, NY 10007-1312 Re: Teddy Volkswagen of the Bronx, LLC v. Phillip Demersky Case No.: 1:19-cv-2337 (AJN) (SN) Our File No.: 141-2019_______________________________ Dear Judge Nathan: This office represents the Plaintiff in the above-referenced case. Plaintiff Teddy Volkswagen of the Bronx, LLC (hereinafter “Plaintiff” or the “Dealership”) writes pursuant to this Court’s September 7, 2021 Order of discontinuance and the parties’ executed Settlement Agreement & Release (the “Agreement”) to respectfully, and regrettably, request judgment by confession against the Defendant Phillip Demersky (hereinafter “Defendant” or “Demersky”) in the amount of $27,500.00 due to Defendant’s abject failure to honor the Agreement. Relevant Factual Background and Procedural History On March 15, 2019, Plaintiff filed its complaint against Defendant arising out of various schemes Defendant engaged in to steal monies from the Plaintiff during the course of and after his employment with the Dealership ended. Following protracted discovery and motion practice, and immediately before a trial was scheduled to occur, the parties were able to reach a settlement on all issues. On July 21, 2021, Defendant signed the Agreement, which required him to pay the sum of $25,000.00 payable at $1,000.00 per month beginning on July 1, 2021. See ¶ 1(a) of the Agreement, annexed hereto with Defendant’s executed and notarized counterpart as Exhibit “A.”1 1 Because the agreement is confidential by its terms (¶ 6), the parties did not file the agreement with the Court, nor made it part of the public record. This Court, as a result, held in a September 7, 2021 Order that it will not retain jurisdiction to enforce the Agreement unless its terms are made part of the public record. See Docket Entry 112. Plaintiff respectfully notes that the confidentiality provision of the Agreement is carved out to permit the parties to enforce the terms of the Agreement. As such, now that the Agreement is part of the public record, Plaintiff respectfully requests that this Court retain jurisdiction to enforce it. Dockets.Justia.com Case Case1:19-cv-02337-AJN-SN 1:19-cv-02337-AJN-SN Document Document118 116 Filed Filed07/12/22 06/22/22 Page Page22of of14 3 The Agreement also provides that in the event that any of the settlement payments are not received by Plaintiff on the dates set forth in the Agreement, Plaintiff’s counsel shall notify Defendant’s counsel via email and – in the event Defendant fails to cure said late payment within five (5) business days from service of said notice – Defendant shall be held in default, rendering him liable for $37,500.00 less any monies theretofore paid by Defendant. See ¶ 7 of the Agreement. The Agreement also provides that an affidavit of confession of judgment is appended to it, is incorporated by reference therein, shall be held in escrow by Plaintiff’s counsel and not released unless there is a default under the Agreement and Defendant fails to cure within the time required. Id. The Agreement also provides, inter alia, that this Court shall retain jurisdiction to enforce the terms of the Agreement. Id. Although Plaintiff has paid $10,000.00 towards the Agreement, every single one of his payments were late. See copy of spreadsheet listing each payment’s due date the amount, the date received,2 and notes concerning how late each payment was made as of June 15, 2022 annexed hereto as Exhibit “B.” In fact, the “earliest” payment Defendant ever made was twelve (12) days late. Despite this, Plaintiff has held off from issuing any notices of default. However, Defendant’s May 1, 2022 and June 1, 2022 payments are late and have not been paid to date despite Plaintiff’s issuance of a notice of default on June 15, 2022. See copy of Plaintiff’s notice of default pursuant to the Agreement annexed hereto as Exhibit “C.” By the terms of the Agreement, Defendant had five (5) business days – until Wednesday, June 22, 2022 – to cure and has failed to do so. Accordingly, Plaintiff respectfully requests judgment by confession in the amount of $27,500.00. See copy of executed and notarized confession of judgment annexed hereto as Exhibit “D.” SO ORDERED Plaintiff thanks this Court for its time and attention to this case. Dated: Lake Success, New York June 23, 2022 Respectfully submitted, MILMAN LABUDA LAW GROUP PLLC Sitting by Designation 7/12/2022 /s/ Emanuel Kataev, Esq._________________ Emanuel Kataev, Esq. 3000 Marcus Avenue, Suite 3W8 Lake Success, NY 11042-1073 (516) 328-8899 (office) (516) 303-1395 (direct dial) (516) 328-0082 (facsimile) emanuel@mllaborlaw.com 2 The date received is based on the date the payment was deposited in Plaintiff’s bank account; the actual date payment was received was never more than one to two (1-2) days prior. 2 Case Case1:19-cv-02337-AJN-SN 1:19-cv-02337-AJN-SN Document Document118 116 Filed Filed07/12/22 06/22/22 Page Page33of of14 3 VIA ECF Ranni Law Firm Attn: Joseph J. Ranni, Esq. 148 North Main Street Florida, NY 10921-1101 joeranni@rannilaw.com Attorneys for Defendant 3 Case Case 1:19-cv-02337-AJN-SN 1:19-cv-02337-AJN-SN Document Document 116-1 118 Filed Filed07/12/22 06/22/22 Page Page4 1ofof147 Case Case 1:19-cv-02337-AJN-SN 1:19-cv-02337-AJN-SN Document Document 116-1 118 Filed Filed07/12/22 06/22/22 Page Page5 2ofof147 Case Case 1:19-cv-02337-AJN-SN 1:19-cv-02337-AJN-SN Document Document 116-1 118 Filed Filed07/12/22 06/22/22 Page Page6 3ofof147 Case Case 1:19-cv-02337-AJN-SN 1:19-cv-02337-AJN-SN Document Document 116-1 118 Filed Filed07/12/22 06/22/22 Page Page7 4ofof147 Case Case 1:19-cv-02337-AJN-SN 1:19-cv-02337-AJN-SN Document Document 116-1 118 Filed Filed07/12/22 06/22/22 Page Page8 5ofof147 Case Case 1:19-cv-02337-AJN-SN 1:19-cv-02337-AJN-SN Document Document 116-1 118 Filed Filed07/12/22 06/22/22 Page Page9 6ofof147 Case Case 1:19-cv-02337-AJN-SN 1:19-cv-02337-AJN-SN Document Document 118 116-1Filed Filed 07/12/22 06/22/22Page Page 107ofof14 7 Case Case 1:19-cv-02337-AJN-SN 1:19-cv-02337-AJN-SN Document Document 118 116-2Filed Filed 07/12/22 06/22/22Page Page 111ofof14 1 Date Due 7/ 1/ 2021 8/ 1/ 2021 9/ 1/ 2021 10/ 1/ 2021 11/ 1/ 2021 12/ 1/ 2021 1/ 1/ 2022 2/ 1/ 2022 3/ 1/ 2022 4/ 1/ 2022 5/ 1/ 2022 6/ 1/ 2022 7/ 1/ 2022 8/ 1/ 2022 9/ 1/ 2022 10/ 1/ 2022 11/ 1/ 2022 12/ 1/ 2022 1/ 1/ 2023 2/ 1/ 2023 3/ 1/ 2023 4/ 1/ 2023 5/ 1/ 2023 6/ 1/ 2023 7/ 1/ 2023 Amount Date Received $ 1,000.00 8/ 1/ 2021 $ 1,000.00 8/ 25/ 2021 $ 1,000.00 9/ 13/ 2021 $ 1,000.00 11/ 18/ 2021 $ 1,000.00 12/ 14/ 2021 $ 1,000.00 12/ 14/ 2021 $ 1,000.00 1/ 21/ 2022 $ 1,000.00 3/ 7/ 2022 $ 1,000.00 4/ 12/ 2022 $ 1,000.00 4/ 19/ 2022 $ 1,000.00 NOT RECEI VED $ 1,000.00 NOT RECEI VED $ 1,000.00 $ 1,000.00 $ 1,000.00 $ 1,000.00 $ 1,000.00 $ 1,000.00 $ 1,000.00 $ 1,000.00 $ 1,000.00 $ 1,000.00 $ 1,000.00 $ 1,000.00 $ 1,000.00 Notes Thirty-one (31) days late Twenty-four (24) days late Twelve (12) days late Forty-eight (48) days late Forty-three (43) days late Thirteen (13) days late Twenty (20) days late Thirty-four (24) days late Forty-two (42) days late Eighteen (18) days late Forty-five (45) days late, and counting Fourteen (14) days late, and counting Case Case 1:19-cv-02337-AJN-SN 1:19-cv-02337-AJN-SN Document Document 118 116-3Filed Filed 07/12/22 06/22/22Page Page 121ofof14 1 From: To: Subject: Date: Attachments: Emanuel Kataev Joe Ranni Re: Teddy Volkswagen of the Bronx, LLC v. Demersky; Case No.: 1:19-cv-02337 (AJN) (SN). Wednesday, June 15, 2022 5:03:00 PM Defendant Demersky executed Settlement Agreement and release 072121.pdf 2022-06-15 Demersky Spreadsheet of Settlement Payments.pdf Mr. Ranni: This office represents the Plaintiff in the above-referenced case. I write in accordance with ¶ 7 of Defendant’s executed counterpart to the attached Settlement Agreement & Release (hereinafter the “Agreement”) to provide you notice that the Defendant has failed to make payments by the dates set forth in the Agreement. Specifically, payment for the May 1, 2022 installment is currently forty-five (45) days late, and counting, and payment for the June 1, 2022 installment is currently fourteen (14) days late, and counting. In the event your client fails to cure these breaches of the Agreement within five (5) business days, i.e., Wednesday, June 22, 2022, an application for a default pursuant to the Agreement and Defendant’s executed confession of judgment shall be made to the Court consistent with the Agreement. This is the first of four available notices of default under the Agreement. I note, in addition, that your client’s payment history in this case has been abhorrent, as set forth in the attached spreadsheet. The same will be noted to the Court in Plaintiff’s anticipated application next Wednesday absent a timely cure. Be guided accordingly, Emanuel Kataev, Esq. Associate Milman Labuda Law Group PLLC 3000 Marcus Avenue, Suite 3W8 Lake Success, NY 11042-1073 (516) 328-8899 (office) (516) 303-1395 (direct dial) (516) 328-0082 (facsimile) emanuel@mllaborlaw.com This message and its attachments may contain confidential information that is legally privileged. I f you are not the intended recipient, you are hereby notified that any printing, copying, forwarding, or saving of this message is strictly prohibited. I f you have received this email in error, please notify the sender immediately and delete the message and any attachment from your system. Case Case 1:19-cv-02337-AJN-SN 1:19-cv-02337-AJN-SN Document Document 118 116-4Filed Filed 07/12/22 06/22/22Page Page 131ofof14 2 Case Case 1:19-cv-02337-AJN-SN 1:19-cv-02337-AJN-SN Document Document 118 116-4Filed Filed 07/12/22 06/22/22Page Page 142ofof14 2
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