Strategic Funding Source, Inc. v Doppio, LLC
Annotate this CaseDecided on August 18, 2022
Supreme Court, New York County
Strategic Funding Source, Inc., Plaintiff,
against
Doppio, LLC, DOPPIO HUDSON STREET, LLC, TIMELESS HOSPITALITY GROUP, LLC, LOUIS BARRESI, and THOMAS PESCUMA, Defendants.
Index No. 653064/2016
Nikolaos D. Athanasopoulos, Esq., New York, NY, for plaintiff.
C.M. Fusco Law Group, P.C., Uniondale, NY (Carlo M. Fusco of counsel), for defendants.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 128, 129, 130, 131, 132, 133, 134 were read on this motion for DEFAULT JUDGMENT.
This is an action to collect on five merchant cash advance agreements entered into between plaintiff, Strategic Funding Source, Inc., and defendants Doppio, LLC, Doppio Hudson Street, LLC, and Timeless Hospitality Group, LLC, and guaranteed by defendants Louis Barresi and Thomas Pescuma. Plaintiff moves for default judgment against all parties under CPLR 3215.
This motion was submitted without opposition. After the return date passed, this court became aware that counsel for defendants had entered an appearance on the afternoon before the return date and sought at that point an adjournment of the motion—a request that was not addressed before the return date. This court therefore granted defendants leave to submit opposition papers after the return date, limited to the issue of damages. Defendants did so.
Plaintiff has submitted proof of service and defendants' defaults. It has also submitted proof of the facts constituting its claim, through an affidavit on personal knowledge from a representative of plaintiff, supported by the underlying contracts, ledgers, and demand letters. Plaintiff has therefore established prima facie its entitlement to a default judgment. The only remaining question is the proper amount of that judgment.
Plaintiff's motion papers claim entitlement to $58,446.73 from Doppio LLC, $93,925.53 from Doppio Hudson, and $152,372.26, jointly and severally, from Timeless Hospitality, Pescuma, and Barresi. (See NYSCEF No. 111 at ¶¶ 27-31 [affidavit in support of default judgment].) In opposition, defendant argues that under the terms of a settlement agreement with plaintiff, defendants' liability should be limited to no more than $71,320.53, none of which can be charged to Doppio Hudson. (See NYSCEF No. 129 at ¶¶ 9-12 [affidavit of Pescuma].) This court agrees with defendants in part—but only in part.
As of the date of the settlement, Doppio Hudson owed approximately $116,000 under the three cash-advance agreements to which it was a party.[FN1] (See NYSCEF No. 116 at 5 [ledger].) As plaintiff now concedes (see NYSCEF No. 133 at 2), it agreed to release Doppio Hudson's liability in exchange for a payment of $45,000. (NYSCEF No. 130.) It is undisputed that the $45,000 was paid as agreed. (See NYSCEF No. 116 at 5; NYSCEF No. 133 at ¶ 2.) As a result, plaintiff now has no claim against Doppio Hudson.
The letter from plaintiff that offered this $45,000 settlement, though, expressly cautioned that Timeless Hospitality—also a party to the agreements between plaintiff and Doppio Hudson—would still owe the remainder of the balance (which it stated to be $71.320.53), that the letter did not constitute a waiver of plaintiff's right to recover that sum, and that payment of the $45,000 "will constitute a release of [Doppio Hudson] only."[FN2] (NYSCEF No. 130.) Plaintiff therefore still has a claim against—and is entitled to default judgment against—the remaining defendants. That claim includes the $71,320.53 remaining after the settlement payment by Doppio Hudson; the balance owed by Doppio LLC under the two cash-advance [*2]agreements to which it was a party, $43,446.73 (see NYSCEF No. 116 at 2);[FN3] the $114,767.26 balance owed by Timeless Hospitality as a party to all five agreements; and the $7,500 in default-related charges to which plaintiff is entitled under each one of the five agreements.
Doppio Hudson owes nothing. Doppio LLC owes $58,446.73 ($43,446.73 in balance, plus $15,000 in default-related charges), plus interest. Timeless Hospitality owes $152,267.26 ($114,767.26 in balance, plus $37,500 in default-related charges), plus interest. Barresi and Pescuma, as guarantors of the five agreements, also owe $152,767.26, plus interest.
Accordingly, it is
ORDERED that the branch of plaintiff's motion seeking default judgment against defendant Doppio Hudson is denied, and the action is dismissed as against Doppio Hudson; and it is further
ORDERED that the branch of plaintiff's motion seeking default judgment against defendant Doppio LLC is granted, and plaintiff is awarded a judgment of $58,446.73, with interest running from January 29, 2016, plus costs and disbursements to be taxed by the clerk upon submission of an appropriate bill of costs; and it is further
ORDERED that the branch of plaintiff's motion seeking default judgment against Timeless Hospitality, Pescuma, and Barresi is granted; and plaintiff is awarded a judgment against those defendants, jointly and severally, in the amount of $152,767.26, with interest running from January 29, 2016, plus costs and disbursements to be taxed by the clerk upon submission of an appropriate bill of costs; and it is further
ORDERED that plaintiff serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk, which shall enter judgment accordingly.
8/18/202 Footnotes
Footnote 1:The ledger submitted by plaintiff on this motion gives a balance of $116,402.88. (NYSCEF No. 116 at 5.) The settlement letter relied on by defendants gives a balance of $116,320.53. (NYSCEF No. 130.)
Footnote 2:There is no indication in the letter than plaintiff also intended to release Doppio LLC from its obligations under its own two cash-advance agreements.
Footnote 3:For these purposes, this court uses the figure given in the settlement letter sent by plaintiff to Doppio Hudson, rather than the slightly higher figure appearing on the Doppio Hudson ledger submitted on this motion.
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