Klee v First Capital Real Estate Advisors, LP

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Klee v First Capital Real Estate Advisors, LP 2021 NY Slip Op 32827(U) December 29, 2021 Supreme Court, New York County Docket Number: Index No. 652188/2020 Judge: Louis L. Nock 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 12/30/2021 03:11 PM NYSCEF DOC. NO. 31 INDEX NO. 652188/2020 RECEIVED NYSCEF: 12/30/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. LOUIS NOCK 38M Justice --------------------X RICHARD KLEE, INDEX NO. MOTION DATE 652188/2020 11/16/2021 Plaintiff, 002 MOTION SEQ. NO. - V- FIRST CAPITAL REAL ESTATE ADVISORS, LP, FIRST CAPITAL MASTER ADVISOR, LLC,FC-REI GP, LLC,FIRST CAPITAL REAL ESTATE INVESTMENTS, LLC,SUNEET SINGAL, XYZ CORPORATIONS #1-5, JOHN DOES #1-5, DECISION + ORDER ON MOTION Defendant. -----------------,---X The following e-filed documents, listed by NYSCEF document number {Motion 002) 17, 18, 19, 20, 21, 22,23,24,25,26,27,28,29, 30 were read on this motion to/for JUDGMENT - MONEY Upon the foregoing documents, plaintiff's motion for entry of a default judgment is granted without opposition and for the reasons set forth in the motion, in accord with the attached order. 12/29/2021 DATE CHECK ONE: CASE DISPOSED GRANTED • DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 652188/2020 KLEE, RICHARD vs. FIRST CAPITAL REAL ESTATE Motion No. 002 1 of 6 • • OTHER REFERENCE Page 1 of 1 [*FILED: 2] NEW YORK COUNTY CLERK 12/30/2021 03:11 PM NYSCEF DOC. NO. 31 INDEX NO. 652188/2020 RECEIVED NYSCEF: 12/30/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------- X Hon. Louis L. Nock, J.S.C. RICHARD KLEE, Index No. 652188 / 2020 Plaintiff, vs. DECISION AND ORDER FIRST CAPITAL REAL ESTATE ADVISORS, LP, FIRST CAPITAL MASTER ADVISOR, LLC, FC-REI GP, LLC, FIRST CAPITAL REAL ESTATE INVESTMENTS, LLC, SUNEET SINGAL, XYZ CORPORATIONS #1-5, and JOHN DOES #1-5, (Motion Sequence No. 002) Defendants. ---------------------------------------------- X The following e-filed documents, listed by NYSCEF document number 5, 6, 7, 8, 9, 10, 11, 12, and 13 (Motion Seq. 001) were read on this motion to/for this motion for summary judgment and default judgment. The following read on plaintiff's motion for judgment in relation to allegedly unpaid wages of $189,423.08 with causes of action for (i) breach of contract, (ii) violation of New York State Minimum Wage Law, (iii) unjust enrichment, (iv) quantum meruit, and (v) attorney's fees. A summons and complaint were filed on June 2, 2020. First Capital Master Advisor, LLC ("FCMA") was served via Limited Liability Company Law 303 on September 1, 2020. (See Affirmation of Matthew Walters dated November 16, 2021 [the "Walters Aff."]). First Capital Real Estate Advisors LP ("FCREA") was served per Partnership Law 121-109 on September 1, 2020. (See Id.). 2 of 6 [*FILED: 3] NEW YORK COUNTY CLERK 12/30/2021 03:11 PM NYSCEF DOC. NO. 31 INDEX NO. 652188/2020 RECEIVED NYSCEF: 12/30/2021 Notices of appearance for Suneet Singal ("Singal") and FCREA have been filed. (See NYSCEF Doc. No. 3). Plaintiff moves for a default judgment pursuant to CPLR § 3212 against FCMA. Although Plaintiff presents an affidavit of service demonstrating FCMA was served, (see Walters Aff., Ex. B), FCMA has not answered or otherwise appeared in this action and their time to do so has expired. Plaintiff has submitted proof of compliance with the requirements set forth in CPLR § 3215(g)(3) and CPLR 3215(g)(4), (see Walters Aff., Ex. I), and an affidavit of service demonstrating that First Capital Master Advisor LLC were both served with a copy of this motion and supporting papers. In support of its motion, Plaintiff has submitted an affidavit attesting that the allegations in the complaint are truthful and further describing Defendants' liability. (See Affidavit of Richard Klee dated November 8, 2021 [the "Klee Aff."]). According to Plaintiff, "[he] was employed by Defendants from October 15, 2018 until [he] resigned [his] position on November 29, 2019. As of the date of [his] resignation [he] was owed $189,423.08 in compensation due to [him], including inter alia unpaid hourly wages and earned/vested bonuses plus 300 shares of stock." (See Id. at fl 6-7). Plaintiff's affidavit, based on his personal knowledge, constitutes admissible proof of the facts constituting his claim sufficient to grant a judgment in default against the non-appearing Defendant First Capital Master Advisors LLC. (See Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70 [2003]). This Court previously denied Plaintiffs motion for a judgment in default against FCMA with leave to renew because Plaintiff had not supplied the Court with a copy of his employment agreement with FCMA (see Decision and Order of Hon. Louis L. Nock, J.S.C. dated October 4, 3 of 6 [*FILED: 4] NEW YORK COUNTY CLERK 12/30/2021 03:11 PM NYSCEF DOC. NO. 31 INDEX NO. 652188/2020 RECEIVED NYSCEF: 12/30/2021 2021)(NYSCEF Doc. No. 16). Plaintiff now cured that deficiency by attaching a copy of his employment agreement to his affidavit in support of this motion. Having established the statutory requisites, Plaintiff is entitled to a judgment in default and an inquest on damages as to the non-appearing Defendant FCMA. As noted above, Singal and FCREA have appeared in this case. (See NYSCEF Doc. No. 3). In his affidavit, Plaintiff states that "[a]fter they were served with a copy of the summons and complaint, Defendants SUNEET SINGAL and FIRST CAPITAL REAL ESTATE ADVISORS, LP ... entered into a settlement agreement whereby [Suneet] SINGAL and the [First Capital Real Estate] ADVISOR[s, LP] agreed to pay the sum of $161,538 in settlement of the claims asserted in the Complaint against them (but not in settlement of any claims against the other Defendants). The Settlement Agreement provided that this Court would be the appropriate venue for the adjudication of claims arising out of the Settlement Agreement." (See Klee Aff. at n 16-22). Plaintiff submits the fully-executed settlement agreement, (see Klee Aff., Ex. F), and the required Notice to Cure sent by his attorney. (See Walters Aff., Ex. H). The Settlement Agreement provided that Singal and FCREA were required to pay $115,174 on or before March 31, 2021 and, if they failed to do so, that the entire settlement sum of $161,538 would accelerate and come due unless they timely cured their default. (See Settlement Agreement, Klee Aff., Ex. F at Tl{ 13-14). The Settlement Agreement also provided that Plaintiff could recover attorneys' fees, costs, and disbursements in the event of a default, including fees incurred in collecting attorneys' fees (e.g., "fees on fees"). (See Id. at <J[ 21). As set forth in Plaintiffs affidavit, Defendants Singal and FCREA failed to make any payment under the settlement agreement and thereafter failed to cure their default despite being 4 of 6 [*FILED: 5] NEW YORK COUNTY CLERK 12/30/2021 03:11 PM NYSCEF DOC. NO. 31 INDEX NO. 652188/2020 RECEIVED NYSCEF: 12/30/2021 sent the requisite notice to cure, as required by Paragraph 4(b) of the settlement agreement. (See NYSCEF Doc. No. 5 at «)[118-20). Pursuant to CPLR § 3215(i)(l), after commencement of an action, if a stipulation of settlement is made for a sum certain and there is a subsequent failure to comply with the stipulation, plaintiff is entitled to judgment on the stipulation. Plaintiff has adequately demonstrated that to be the case here as to Defendants Singal and FCREA. This Court previously denied Plaintiffs motion for a judgment in default against FCREA and Singal with leave to renew because Plaintiff - and not Plaintiffs attorney - submitted the requisite Notice to Cure when it was his attorney who had emailed it. (See Decision and Order of Hon. Louis L. Nock, J.S.C. dated October 4, 2021)(NYSCEF Doc. No. 16). Plaintiff's attorney now cured that deficiency by authenticating and attaching a copy of the emailed Notice to Cure to his affirmation. As a result of the foregoing, Plaintiff's motion is granted and it is hereby ORDERED that judgment in default is granted in favor of Plaintiff and against Defendant FCMA; and it is further ORDERED that this matter is referred to a special referee and that an inquest shall be held before a special referee to hear, determine, and fix the quantum of damages due to Plaintiff from Defendant FCMA and that the special referee shall issue a report thereon; and it is further ORDERED that judgment is granted in favor of Plaintiff and against Defendants Singal and FCREA for the sum of $161,538; and it is further ORDERED that this matter is referred to a special referee and that an inquest shall be ~ s ~~\.fl.... held before the special referee to hear and determine the quantum ot'attorneys' fees, costs, and disbursements (including "fees on fees") to be assessed against Defendants Singal and FCREA 5 of 6 [*FILED: 6] NEW YORK COUNTY CLERK 12/30/2021 03:11 PM NYSCEF DOC. NO. 31 INDEX NO. 652188/2020 RECEIVED NYSCEF: 12/30/2021 and to hear, determine, and fix the total amount of damages ($161,538 plus the assessed attorneys' fees, costs, and disbursements) due to Plaintiff and that the special referee shall issue a report thereon; and it is further ORDERED that the Clerk of the Court is directed to enter money judgments in favor of Plaintiff and against Defendants FCMA, FCREA, and Singal in accordance with the determination(s) and report(s) of the aforementioned special referee(s) without necessity of further application; and it is further ORDERED that, within 14 days hereof, that Plaintiff shall serve a copy of this Order with Notice of Entry shall on Defendants by mailing a copy hereof the last known address of Defendant FCMA and by filing same on NYSCEF (which shall be deemed good service on Defendants Singal and FCREA); and it is further ORDERED that Plaintiff shall cause a copy of this order, with notice of entry and proof of service as set forth hereinabove, to be filed with the Special Referee Clerk (Room 119M, 646386-3028, or spref@nycourts.gov) to arrange a date for a reference to hold an inquest and determine and fix damages as set forth hereinabove pursuant to CPLR 4317. SO ORDERED on this 2~ay of ~~ 2021. . :HON. LOUIS L. NOCK . 6 of 6 J,$.C.

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