All Points Capital Corp. v 60 Greenwich LLC

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All Points Capital Corp. v 60 Greenwich LLC 2014 NY Slip Op 30249(U) January 27, 2014 Supreme Court, New York County Docket Number: 651882/2010 Judge: Barbara R. Kapnick Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. .,,,,---: r [*FILED: NEW YORK COUNTY CLERK 01/28/2014 1] INDEX NO. 651882/2010 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 01/28/2014 ~----- TE OFNEW~O"RK - ~ .. -~E COURT OF THE ST~ ~suPRE NEW YORK COUNTY PAR~ PRESENT: Justice -Index Number: 651882/2010 INDEX N O . - - - - - ALL POINTS CAPITAL CORP. MOTION DATE _ _ __ VS. 60 GREENWICH LLC MOTION SEQ. NO. - - - SEQUENCE NUMBER : 002 _,.o-..v_A_c_A_TE_D_EF_A_U~L-T_Ju_o_G_M_E_N_T~........~~---~~__.;;J___ The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - Notice of Motion!Order to Show Cause - Affidavits - Exhibits Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s)._ _ _ _ __ I No(s). - - - - - 1No(s). - - - - - - Upon the foregoing papers, it is ordered that this motion is w u i= (/) ::> .., MOTION IS DECIDED IN ACCORDANC~ ,!-"~~1 ACCOMPANYING MEMORAi~DUM DECi~ION 0 l- o w 0::: 0::: w LL. w 0::: >- Ui :I z LL. (/) ::> 0 I- < u w w 0::: ~ (!) w z (/) ~ 0::: - - 0 w ...J (/) ...J < 0 u LL. z~ 0 Ii= 0::: 0 0 :!: LL. 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ ~/ ~ ~SE DISPOSED 0 0 GRANTED ~NIED SETTLE ORDER 0DONOTPOST ,J.S.C. TI"-Nort=F1NYAsPos1T10N 0 GRANTED IN PART 0 0 OOTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IA PART 39 ---------------------------------------x ALL POINTS CAPITAL CORP., DECISION/ORDER Index No. 651882/10 Mot. Seq. No. 002 Plaintiff, - against 60 GREENWICH LLC, SASHA MUNIAK, SERVICES MANGIA, INC., 74 SEVENTH, LLC, MANGIA 23R 0 STREET LLC, MANGIA WALL LLC and MANGIA 57, INC., Defendants. ---------------------------------------x BARBARA R. KAPNICK, J.: Defendants move by Order to Show Cause: 1) pursuant to CPLR 2004, which to make payment in granting them an extension of time in the sum of $11, 922 which was due on October 10, 2013 under the Stipulation of Settlement, so-ordered by this Court on April 22, 2011, and reinstating the said Stipulation; and 2) pursuant judgment to entered CPLR 5015 (a) (1), herein on vacating November 7, and discharging the 2013, reinstating the Stipulation of Settlement, and allowing defendants one business day in which to make the aforementioned payment of $11,922. The Court signed the Order to Show Cause on November 14, 2013 containing a Temporary Restraining Order ("TRO") pending the hearing of the motion, staying plaintiff from taking any action to enforce or collect upon the judgment, on condition that defendants post an undertaking in the amount of $60,000. Cause was argued on December 4, pending a decision on the motion. 2013, The Order to Show and the TRO was continued [* 3] The Stipulation of Settlement entered into by the parties in this action on April 22, 2011 provides for 59 monthly payments of $11,922 each, payable on the 10th day of each month commencing May 10, 2011, plus a balloon payment due on April 10, 2016. There is no dispute that the defendants made the first 29 payments, totaling $345,738. Defendants admit that they failed to make the payment due on October 10, 2013, and were then served with a Notice of Default dated October 15, 2013 and given 10 days to cure. Defendant Sasha Muniak ("Muniak") says he asked his attorney on October 21, 2013 to contact plaintiff's attorney to request an extra few days to make the payment based on a serious cash flow problem, but "got nowhere," so he hand-delivered a check to plaintiff's counsel on Friday, October 2 5, 2013, which was returned for insufficient funds, allegedly due to a bank error. The official bank check which was delivered to plaintiff's counsel as a replacement check on November 8, 2013 was rejected and returned on November 12, 2013, a judgment having already been entered on November 7, 2013 in the sum of $1,113,880.88. Defendant Muniak states that he believes they "complied with the letter during the and cure spirit period of the stipulation and promptly by offering official bank check for the returned check once that [their] tendering to 2 substitute [they] bank had returned the check in error. payment an found out In any event [* 4] [he] believe [s] (Muniak Aff. ~ that the interests of justice should prevail·" 14.) In opposition, plaintiff argues that this is not the first time defendants have been late in making payment 1 but rather that this is defendants' ninth default in making timely payment in the past year. In paragraph 10 of the Stipulation of Settlement, defendants expressly waived "any and all rights to take an appeal [or] to make an application to the court whether by motion, letter or otherwise ." and also waived "any and all rights to object to the entry of judgment in the event of a default as provided at paragraph '5'" 1 of the Stipulation. 1 Paragraph 5 provides as follows: In the event Defendants fail to make any of the aforesaid payments by the dates provided herein, (or should any of said payments be returned for insufficient funds) and should said Defendants fail to cure the default upon written notice as set forth in paragraph "4" above, or should there be a third default in any twelve month period, then pursuant to CPLR § 3215(i), Plaintiff shall have the following rights: (a) to enter judgment against the Defendants, 60 GREENWICH LLC, SASHA MUNIAK, SERVICES MANGIA, INC., 74 SEVENTH, LLC, MANGIA 23R 0 STREET LLC, MANGIA WALL LLC, and MANGIA 57, INC., pursuant to CPLR 3215 (i) for the principal amount of $805,182.34, plus interest at the· default rate of 18% per annum from November 6, 2009, plus attorneys' fees in the sum of $70,316.50, and costs and disbursements of $3,986.16, and statutory costs and fees giving credit for any payments received under this Stipulation of Settlement; and to take all steps permitted by law to enforce said judgment; and (b) to enforce its rights as a secured creditor. 3 [* 5] Moreover, paragraph 4 (b) of the Stipulation provides that defendants "shall be allowed only two events of default in any of in any twelve month period and be entitled to an the payments . opportunity to cure only two defaults in any twelve month period." Since this was at least defendants' ninth default in the past twelve months, cure. Thus, defendants were not entitled to an opportunity to whether or not defendants' check was returned for insufficient funds in error, is to no avail. Moreover, paragraph 5, quoted supra, provides that the plaintiff had the right to enter judgment "should there be a third default in any twelve month period." It is well established that "[s]tipulations of settlement are favored by the courts and not lightly cast aside." Hallock v State of New York, 64 NY2d 224, 230 (1984). Thus, it is not for this Court to rewrite the settlement terms or to give defendants an additional opportunity to cure their defaults in violation of the express terms of the Stipulation of Settlement. Accordingly, herein, this based on the facts and circumstances presented Court is compelled to 4 deny defendants' motion to [* 6] vacate the judgment entered on November 7, '2013. give defendants November 7, credit for any additional Plaintiff shall payments made 2013. The temporary restraining order is hereby vacated. This constitutes the decision and order of this Court. Dated: Januaryc;J7, BA~ICK 2014 J.S.C. 5 since

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