TD Bank, N.A. v CC English, Inc.

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TD Bank, N.A. v CC English, Inc. 2019 NY Slip Op 33037(U) October 10, 2019 Supreme Court, New York County Docket Number: 655202/2018 Judge: Melissa A. Crane Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 10/11/2019 09:56 AM NYSCEF DOC. NO. 17 INDEX NO. 655202/2018 RECEIVED NYSCEF: 10/11/2019 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 15 PRESENT: ____ M~E~L=I~SS~A .......... A~.C~RA--.--N~E-Justice HON. MELISSA CRANE TD BANK, N.A., Plaintiff INDEX NO. 655202/2018 MOTION DATE MOTION SEQ. NO. 002 MOTION CAL. NO. -v- CC ENGLISH, INC. and KOT MAN CHENG, Defendants The following papers, numbered _to_ were read on this motion to/for_ _ _ _ _ _ __ ~ u .... PAPERS NUMBERED E-- rJ1 ~ Notice of Motion/Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits_________________________ Replying Affidavits_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _..___ _ _ _ _ __ ""'~ oz E-- .... ~~ ~§ ~o CROSS-MOTION: YES NO ~~ defendant, CC ENGLISH, INC, only. 1 Plaintiff demonstrates prima facie that defendant ~~ borrower owes plaintiff pursuant to the terms of a promissory note. Plaintiff has submitted i;.. proof of service of the summons with notice, proof of the facts constituting the claim, and proof Plaintiff moves pursuant to CPLR § 3215 to enter a default judgment against the i;.. i;.. ;;.. E-~o ~~ E-- u ~ ~ of defendant CC ENGLISH, INC's failure to answer or appear in this action. Defendant CC ~ ENGLISH, INC has not answered, or appeared in this action, and has not opposed plaintiffs rJ1 .... rJ1 ~ -.... --z rJ1 < u z rJ1 0 0 E-- < 0 ~ rJ1 ~ default motion. Accordingly, it is ORDERED that plaintiffs motion for default judgment against defendant, CC ENGLISH, INC, only, is granted without opposition; and it is further 1 Plaintiff did not move for a default judgment against the individual defendant Kot Man Cheng. In motion sequence 001, plaintiff moved to extend time to serve Cheng, and to serve Cheng by publication. Judge Crane granted that motion on July 23, 2019. At the time plaintiff made this default motion (motion sequence 002), service against Cheng was not yet complete. Under CPLR 316(c), service shall be complete on the twenty-first day after the first publication. 1 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 10/11/2019 09:56 AM NYSCEF DOC. NO. 17 INDEX NO. 655202/2018 RECEIVED NYSCEF: 10/11/2019 ORDERED that the Clerk is directed to enter judgment in favor of plaintiff in the sum of $35,000.00 with interest at a rate of9.74% from June 22, 2018, until entry of judgment, together with costs and disbursements, as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further ORDERED for judgment against defendant, CC ENGLISH, INC, only, restraining and enjoining CC English, Inc., its agents, employees, accountants, attorneys and such other persons acting at the direction of or on behalf of CC English, Inc., from selling, moving, liquidating, disposing or permitting the removal of the Collateral; and it is further ORDERED for judgment against defendant, CC ENGLISH, INC, only, compelling CC English, Inc., its agents, employees, accountants, attorneys and such other persons acting at the direction of or on behalf of CC English, Inc. to segregate in an account controlled by TD Bank, N.A. all proceeds of accounts receivable; and it is further ORDERED for judgment against defendant, CC ENGLISH, INC, only, compelling CC English, Inc., its agents, employees, accountants, attorneys and such other persons acting at the direction of or on behalf of CC English, Inc., to tum over to TD Bank, N.A., in its original form, all payments of accounts receivable now and hereafter received; and it is further ORDERED for judgment against defendant, CC ENGLISH, INC, only, compelling CC English, Inc., its agents, employees, accountants, attorneys and such other persons acting at the direction of or on behalf of CC English, Inc., to tum over to TD Bank, N.A., a statement setting forth the names and addresses of CC English, Inc.' s account debtors and the amount owed by each of them; and it is further ORDERED for judgment against defendant, CC ENGLISH, INC, only, compelling CC English, Inc., its agents, employees, accountants, attorneys and such other persons acting at the direction of or on behalf of CC English, Inc., to assemble and make the Collateral available or 2 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 10/11/2019 09:56 AM NYSCEF DOC. NO. 17 INDEX NO. 655202/2018 RECEIVED NYSCEF: 10/11/2019 deliver the Collateral to TD Bank, N.A. for inspection, appraisal and sale or other disposition pursuant to the Uniform Commercial Code in order to satisfy the amounts due to TD Bank, N.A.; and it is further ORDERED for judgment against defendant, CC ENGLISH, INC, only, authorizing TD Bank, N.A. to sell, liquidate, dispose of or retain the Collateral in a commercially reasonable manner, with the proceeds from same being applied first to the costs of such sale or other disposition, including reasonable attorneys' fees, and then in reduction of the amounts due TD Bank, N.A. from CC English, Inc.; and it is further ORDERED for judgment against defendant, CC ENGLISH, INC, only, ordering that the sheriff of any county of the State ofNew York wherein the Collateral is found, be directed to seize the Collateral at issue, and for the purpose, if the Collateral is not delivered to him or her, to break open, enter, and search for the Collateral in the place specified, and to hold the Collateral pursuant to C.P.L.R. § 7101, et al.; and it is further ORDERED for judgment against defendant, CC ENGLISH, INC, only, issuing a Writ of Replevin directed to the Sheriff or other lawfully authorized officers of New York County where the Collateral may be found and directing that such Sheriff or other officers to seize and/or take immediate possession of the Collateral and deliver same to T.D. Bank, N.A., the court- appointed receiver or other court- appointed agent, as this Court may direct; and it is further ORDERED for judgment against defendant, CC ENGLISH, INC, only, barring and foreclosing CC English, Inc. from all equity of redemption in and to the Collateral; and it is further ORDERED for judgment against defendant, CC ENGLISH, INC, only, directing that to the extent any of such Collateral has already been sold or otherwise liquidated, CC English, Inc. 3 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 10/11/2019 09:56 AM NYSCEF DOC. NO. 17 INDEX NO. 655202/2018 RECEIVED NYSCEF: 10/11/2019 account for the proceeds derived from such sale or liquidation and remit such proceeds to TD Bank, N.A.; and it is further ORDERED that the Clerk is directed to award the plaintiff attorney's fees in the sum of $2,587.50. DATED: J6-/IJ , 2019 ~ MELISSA A. CRANE, J.S.C 1 Check one;,JL.N:JNAL DISPOSITI~ 0NON-FINAL DISPOSITION Check if appropriate: MOTION IS: GRANTED 0DENIED 0 GRANTED IN PART 0 OTHER Check if appropriate: D DO NOT OS D REFERENCE D SETTLE ORDER D SUBMIT ORDER 0 FIDUCIARY APPOINTMENT HON. MELISSA A. CRANE J.S.C. 4 4 of 4

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