Weiss v North Shore Motor Group, Inc.

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Weiss v North Shore Motor Group, Inc. 2011 NY Slip Op 32488(U) September 13, 2011 Supreme Court, Nassau County Docket Number: 12622-10 Judge: Timothy S. Driscoll Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT- STATE OF NEW YORK SHORT FORM ORDER Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court ------------------------------------------------------------------- x MICHAEL S. WEISS and JONATHAN M. WEISS, Plaintiffs, TRIAL/IAS PART: 20 NASSAU COUNTY Index No: 12622- Motion Seq. No. Submission Date: 8/5/11 -against- NORTH SHORE MOTOR GROUP, INC., R.A. COHEN a/ka RICK COHEN, BANK OF AMERICA, DCFS USA LLC d/b/a MERCEDES-BENZ FINANCIAL, DAIMLER FINANCIAL SERVICES, DAIMLER FINANCIAL and/or DAIMLER TRUCK FINANCIAL, GENERA MOTORS ACCEPTANCE CORP. d/b/a GMAC FINANCIAL SERVICES, BMW FINANCIAL SERVICES NA, LLC d//a BMW BANK OF NORTH AMERICA and VW CREDIT, INC. d/b/a VOLKSWAGEN CREDIT, INC., AUDI FINANCIAL SERVICES and/or BENTLY FINANCIAL SERVICES, Defendants., CLEAN CORP. (NY), NSMG LLC, CDMS, INC., CORTNEY RHEN DUBIE, and KATHLEEN GIBSON HAMBURGER, Cross- Claim Defendants. ------------------------------------------------------------------- x [* 2] The following papers have been read on this motion: Notice of Motion, Affidavit in Support, Affirmation in Support and Exhibits............. Affirmation in Partial Opposition................ This matter is before the Cour for decision on the motion fied by Defendant BMW Financial Services NA , LLC on July 13 2011 and submitted on August 5 , 2011. For the reasons set fort below, the Cour grants the motion and refers the matter to an inquest on the issues of interest, costs , expenses and attorney s fees. BACKGROUND A. Relief Sought Defendant BMW Financial Services NA , LLC and its related entities BMW Ban of Nort America, Inc. and AlpheraFinancial Services (collectively "BMW FS" ) moves for an Order , pursuat to CPLR 93215 , awarding BMW FS judgment on its Verified Answer with Cross Claims, against the Defendants Nort Shore Motor Group Inc. ("Nort Shore ), R. Cohen a/a Rick Cohen (" Cohen ), and Rick Cohen d//a Clean Corp. (NY). (" Clean Corp. the alter ego of Cohen , on the First Cross Claim (breach of contract), Sixth Cross Claim (attorney s fees), Twelfth Cross Claim (bounced checks) and Thirteenth Cross Claim (closed accounts). Defendants VW Credit , Inc. d//a have submitted an affirmation in parial ambiguous " (McGovern Aff. at Volkswagen Credit, opposition on the Inc. and Audi Financial Services ground that the instat motion 3) as to which paries BMW FS seeks relief against , and it may be constred as seeking relief against VW Credit. In light of the Cour' s conclusion that the instant motion does not seek relief against VW , the Cour wil not fuher address VW' s parial opposition. B. The Parties ' History The paries ' history is set forth in a prior decision of the Cour dated September 13 , 2010 2010 Decision ) in which the Cour denied Plaintiffs ' application for injunctive relief , and the Cour incorporates the 2010 Decision herein by reference. As noted in the 2010 Decision , in the Complaint , Plaintiffs allege certain improprieties by Defendants in connection with Plaintiffs pp. [* 3] leasing and purchase of certin vehicles including but not limited to 1) submitting forged documents; and 2) entering into agreements , purortedly on behalf of Plaintiffs , without Plaintiffs ' consent or authority. The first through tenth causes of action are asserted against Defendants Cohen and North Shore only. declaratory judgment holding, In the eleventh cause of action , Plaintiffs seek a inter alia that there are no monies due and owing from Michael S. Weiss (" Michael" ) on the 2005 Mercedes. In the twelft declaratory judgment holding, cause of action , Plaintiffs seek a inter alia that Jonathan M. Weiss (" Jonathan ) is the lawfl owner of the 2010 Audi. BMW FS seeks judgment against Nort Shore , Cohen and Clean Corp. (" Cohen Defendants ) on the first , sixth, Co- twelft , and thirteenth cross- claims (Rosenberg Aff. in Supp. at 5). Those cross claims are contained in BMW FS' Verified Answer with Cross Claims (Ex. 3 to Rosenberg Aff. in Supp. ) and allege as follows: First Cross Claim This cross claim is based on breach of contract , specifically Motor Vehicle Lease Agreements and/or Motor Vehicle Retail Instalment Purchase Agreements (" Agreements (Exs. Al through A6 of Verified Answer with Cross Claims), by North Shore , Cohen and Clean Corp. who received the vehicles ("Vehicles ) that are the subject of the Agreements and failed to make payments for those Vehicles pursuant to the terms of the Agreements. The sum $491 028.18 , plus interest , is due and owing to BMW FS. Sixth Cross Claim BMW FS seeks Attorney s Fees , pursuant to the terms of the Agreements , incured by BMW FS in connection with its exercise of its rights and remedies under the Agreements in light of the default of North Shore , Cohen and Clean Corp. Twelft Cross Claim This cross claim is based on North Shore , Cohen and Clean Corp. s delivery of checks in the sum of $201 424.31 (Exs. C1 through C9 of Verified Answer with Cross Claims) to BMW FS which presented those checks were payment, which payment was dishonored. Notice of presentment and refusal of payment was given to North Shore , Cohen and Clean Corp. The sum of $201 424. , plus interest , is due and owing to BMW FS. [* 4] Thirteenth Cross Claim This cross claim is based on Nort Shore , Cohen and Clean s delivery of checks in the sum of$194 881.98 (Exs. D1 through D6 of Verified Answer with Cross Claims) to BMW which presented the checks for payment, which payment was refused because the checks were drawn on closed accounts. Notice of presentment, dishonor and refusal of payment was given to Nort Shore , Cohen and Clean Corp. The sum of$194 881.98 , plus interest , is due and owing to BMW FS. David Belu (" Belu ), the National Collections Manager for BMW FS , affirms the trth of the allegations in the Answer with Cross Claims , and provides documentation (Ex. 1 to Belu Aff. in Supp. ) in support of movant' s request for damages in the sum of$491 028. 18 as a result of the Cohen Defendants ' failure to make payment under the Agreements. Counsel for BMW FS affirms that BMW FS served and filed its Verified Answer with Cross Claims on or about December 16 2010 and that the Cohen Co- Defendants failed to appear, answer or otherwse move with respect to BMW FS' Verified Answer with Cross Claims. An additional copy of the Verified Answer with Cross Claims was mailed to the Cohen Co- Defendants on or about May 27 2011 , pursuant to CPLR 9 3215, as reflected by the documentation provided (Ex. 4 to Rosenberg Aff. in Supp. BMW FS requests judgment 1) on its First Cross Claim in the sum of $491 , 028. , plus interest, costs , expenses and attorney s fees , 2) on its Sixth Cross Claim for attorney s fees representing 10% of the amount due and payable under the Agreements , pursuant to paragraph 16 of the Agreements, as well as costs and expenses , 3) on its Twelft . $201 Cross Claim in the sum of 424.31, plus interest , and 4) on its Thirteenth Cross Claim in the sum of $194 881. , plus interest , costs , expenses and attorney s fees C. The Paries ' Positions BMW FS submits that it has demonstrated its right to the requested relief by presenting 1) proof of service of its Answer with Cross Claims on the Defendants and Cross Claim Defendants against whom they seek relief, 2) proof of the claims , 3) the default of the Cohen CoDefendants , and 4) the amount due. The Cohen Co- Defendants have not answered or moved in this action with respect to the Answer , or submitted any response to BOA' s motion. '. [* 5] RULING OF THE COURT Default Judgment CPLR 9 3215(a) permits a par to seek a default judgment against a Defendant who fails to make an appearance. The moving par must present proof of service of the sumons and the complaint , affidavits setting forth the facts constituting the claim , the default , and the amount Allstate Ins. Co. due. CPLR 93215 (t); par must v. Gale 129 AD. 2d B. Austin 48 AD. 3d 720 (2d Dept. 2008). The moving Joosten showing of a cause of action against the defaulting par. prima facie make a v. 531 (lst Dept. 1987). Counsel Fees Attorneys fees may be awarded pursuant to the terms of a contract only to an extent that is reasonable and waranted for services actually rendered. Kamco Supply Corp. v. Annex Contracting Inc. 261 AD. 2d 363 (2d Dept. 1999). Provisions or stipulations in contracts for payment of attorneys ' fees in the event it is necessar to resort to aid of counsel for enforcement Roe or collection are valid and enforceable. v. Westchester Pisani 58 A. v. Smith 278 N. Y. 364 (1938); National Bank of 2d 597 (2d Dept. 1977). The amount of attorneys ' fees awarded pursuant to a contractul provision is withn the SO/Bluestar, LLC cour' s sound discretion , based upon such factors as time and labor required. v. 33 AD.3d 986 (2d Dept. 2006); Canarsie Hotel Corp. Dept. 1985). Legal fees are awarded on a sumarly. See Simoni v. quantum meruit Matter ofUry, 108 A.D. 2d 816 (2d basis and canot be determined Time-Line, Ltd 272 AD. 2d 537 (2d Dept. 2000); Borg v. Belair Ridge Development Corp. 270 A. D. 2d 377 (2d Dept. 2000). When the cour is not provided with sufficient information to make an informed assessment of the value of the legal services , a hearng must be held. Bankers Fed Sav. Bank v. OffW. Broadway Developers 224 A. 2d 376 (1st Dept. 1996). C. Application of these Principles to the Instant Action The Cour grants BMW FS' motion , based on the Cour' s conclusion that 1) BOA has provided proof of service of its Verified Answer with Cross Claims , 2) the documentation submitted demonstrates BMW FS' entitlement to judgment; and 3) the paries against whom [* 6] BMW FS seeks judgment have defaulted in this action. The Cour determines , however , that it canot base a counsel fee award on the record before it and , accordingly, refers this matter to an inquest on the issues of interest, costs expenses and attorney s fees. In light of the foregoing, it is hereby ORDERED that the motion ofBMW Financial Services NA , LLC and its related entities BMW Ban of North America, Inc. and Alphera Financial Services for a default judgment against Nort d//a Clean Corp. Shore Motor Group, Inc. , R.A. Cohen a/a Rick Cohen and Rick Cohen NY is granted; and it is fuer ORDERED that BMW Financial Services NA , LLC and its related entities BMW Ban of Nort America, Inc. and Alphera Financial Services Plaintiff have judgment against Nort Shore Motor Group, Inc. , R. A. Cohen a/a Rick Cohen and Rick Cohen d//a 1) on its First Cross Claim in the sum of$491 028. Clean Corp. , plus interest , costs , and expenses to be determined at an inquest, 2) on its Sixth Cross Claim for attorney s fees, to be determined at an inquest, 3) on its Twelft Cross Claim in the sum of $201, 424.31 , plus interest, costs and expenses to be determined at an inquest, and 4) on its Thirteenth Cross Claim in the sum of $194 881. , plus interest, costs and expenses to be determined at an inquest; and it is ORDERED that this matter is respectfully referred to Special Referee Fran fuer N. Schellace (Room 060 , Special 2 Courroom , Lower Level) to hear and determine all issues relating to the computation of interest , costs , expenses and attorney s fees on October 20 2011 at 9:30 a. ; and it is fuer ORDERED that BMW Financial Services NA , LLC and its related entities BMW Ban of North America, Inc. and Alphera Financial Services shall serve upon Nort Shore Motor Group, Inc. , R. A. Cohen a/a Rick Cohen and Rick Cohen d//a Clean Corp. NY , by regular mail , a copy of this Order with Notice of Entr, a Notice of Inquest or a Note oflssue and shall pay the appropriate filing fees on or before October 6 , 2011; and it is fuher ORDERED that the County Clerk , Nassau County is directed to enter a judgment in favor of BMW Financial Services NA , LLC and its related entities BMW Ban of Nort America, Inc. and Alphera Financial Services and against Nort Shore Motor Group, Inc. , R.A. Cohen a/a Rick Cohen and Rick Cohen d//a Clean Corp. NY , in accordance with the decision [* 7] of the Special Referee. All matters not decided herein are hereby denied. This constitutes the decision and order of the Cour. DATED: Mineola, NY September 13 2011 HON. TIMOTHY S. DR) COLL lS. ENTFI:ED SEP 19 2011 NASSAU COUNTY COUNTY CLERK' S OFFICE

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