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FILED: SUFFOLK COUNTY CLERK 10/31/2023 04:33 PM INDEX NO. 609772/2023
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/31/2023
STATE OF NEW YORK
COUNTY COURT, SUFFOLK COUNTY
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SAFEWAY CONSTRUCTION ENTERPRISES,
LLC, Index No.: 609772/2023
Plaintiff, PLAINTIFF’S
AFFIRMATION OF FACTS
- against -
MOTORING COMPANY OF THE HAMPTONS
LLC, and SALVATORE BIUNDO,
Defendants.
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STATE OF NEW YORK )
) SS.:
COUNTY OF WESTCHESTER )
WILLIAM MARSILLO, ESQ, an attorney in good standing duly admitted to practice
before the Courts of this State, affirms under penalty of perjury:
1. I am General Counsel for PrimeLine Utility Services, LLC, managing member of
Plaintiff, SAFEWAY CONSTRUCTION ENTERPRISES, LLC, and have personal knowledge
of the facts in this matter, including through discussions with Safeway personnel and review of
relevant documents. I respectfully submit this affirmation in support of Plaintiff’s motion for a
default judgment pursuant to CPLR 3215.
2. The parties executed an Agreement of Lease ("Lease"), dated January 19, 2022,
for yard space near the dealership located at 715 County Rd 39, Southampton, NY 11968
("Premises"). The lease was annexed as Exhibit A to the complaint in this matter and is found
ECF Doc. #3, which is incorporated by reference herein.
3. Defendant Biundo executed the lease as "Managing Member" of Defendant
Motoring Company of the Hamptons LLC (“MCH”).
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NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/31/2023
4. The initial term of the Lease was from February 1, 2022, through July 31, 2022.
However, Safeway continued to make rent payments extending the Lease through and including
November 30, 2022.
5. Safeway timely made all rent payments and otherwise complied with all of its
obligations under the Lease.
6. Pursuant to the Lease, Safeway paid MCH two months rent, totaling $12,000, "to
be held as security," and MCH was obligated to return the $12,000 security deposit "at the end of
the lease after inspection by landlord of the premises returned in suitable condition."
7. Safeway exited and surrendered the Premises in early November 2022, though it
had paid rent covering the entire month of November.
8. Defendant Biundo, on behalf of MCH, inspected the Premises in early November
2022 and agreed that the Premises were left in suitable condition per the Lease. Indeed, between
November 2022 and December 2022, Biundo repeatedly acknowledged and agreed in
discussions with Steve Cestaro, President of Safeway, that the Premises were left in suitable
condition per the Lease. Defendant Biundo assured Mr. Cestaro that he and MCH would return
the $12,000 deposit.
9. After further delay, in early January 2023, Safeway received what appeared to be partial
payment of the amount owed -- $6,000 of the $12,000 owed. Check Number 2057, dated January
4, 2023, and payable to Safeway, purported to be issued by MCH from an MCH bank account at
Dime Community Bank in the amount of $6,000. The Memo on the check provided "Return
Security Deposit - 715 County Red 39" and appears to be signed by Defendant Biundo. See
Exhibit B to Complaint, ECF Doc. #4.
10. Safeway attempted to deposit that check in the hope that progress had been made
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NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/31/2023
on the return of the full amount of the security deposit owed.
11. Unfortunately, soon after depositing the partial payment, Safeway's bank, Wells
Fargo, notified Safeway that the check for $6,000 was "being returned unpaid" due to "NSF -
Insuf Funds." See January 4 check for partial payment and the Wells Fargo notice, Exhibit B to
Complaint (ECF Doc. # 4).
12. Safeway again repeatedly tried to contact Defendants MCH and Biundo for
payment but have received no response. On January 26, 2023, by letter addressed to Defendant
Biundo as managing member of MCH, Safeway attempted yet again to receive payment of
$12,000 due and owing. Safeway asked MCH to respond by February 6, 2023.
13. MCH and Biundo have not responded to Safeway's January 26 letter, have not
responded to this lawsuit, and have not made any payments.
14. As a result, Defendants still owe Safeway $12,000, together with prejudgment
interest and costs of suit.
Dated: Tarrytown, New York
October 27, 2023
______________________________________
WILLIAM MARSILLO, ESQ
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FILED: SUFFOLK COUNTY CLERK 10/31/2023 04:33 PM INDEX NO. 609772/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/31/2023 STATE OF NEW YORK COUNTY COURT, SUFFOLK COUNTY ------------------------------------------------------------x SAFEWAY CONSTRUCTION ENTERPRISES, LLC, Index No.: 609772/2023 Plaintiff, PLAINTIFF’S AFFIRMATION OF FACTS - against - MOTORING COMPANY OF THE HAMPTONS LLC, and SALVATORE BIUNDO, Defendants. -------------------------------------------------------------x STATE OF NEW YORK ) ) SS.: COUNTY OF WESTCHESTER ) WILLIAM MARSILLO, ESQ, an attorney in good standing duly admitted to practice before the Courts of this State, affirms under penalty of perjury: 1. I am General Counsel for PrimeLine Utility Services, LLC, managing member of Plaintiff, SAFEWAY CONSTRUCTION ENTERPRISES, LLC, and have personal knowledge of the facts in this matter, including through discussions with Safeway personnel and review of relevant documents. I respectfully submit this affirmation in support of Plaintiff’s motion for a default judgment pursuant to CPLR 3215. 2. The parties executed an Agreement of Lease ("Lease"), dated January 19, 2022, for yard space near the dealership located at 715 County Rd 39, Southampton, NY 11968 ("Premises"). The lease was annexed as Exhibit A to the complaint in this matter and is found ECF Doc. #3, which is incorporated by reference herein. 3. Defendant Biundo executed the lease as "Managing Member" of Defendant Motoring Company of the Hamptons LLC (“MCH”). 1 of 3 FILED: SUFFOLK COUNTY CLERK 10/31/2023 04:33 PM INDEX NO. 609772/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/31/2023 4. The initial term of the Lease was from February 1, 2022, through July 31, 2022. However, Safeway continued to make rent payments extending the Lease through and including November 30, 2022. 5. Safeway timely made all rent payments and otherwise complied with all of its obligations under the Lease. 6. Pursuant to the Lease, Safeway paid MCH two months rent, totaling $12,000, "to be held as security," and MCH was obligated to return the $12,000 security deposit "at the end of the lease after inspection by landlord of the premises returned in suitable condition." 7. Safeway exited and surrendered the Premises in early November 2022, though it had paid rent covering the entire month of November. 8. Defendant Biundo, on behalf of MCH, inspected the Premises in early November 2022 and agreed that the Premises were left in suitable condition per the Lease. Indeed, between November 2022 and December 2022, Biundo repeatedly acknowledged and agreed in discussions with Steve Cestaro, President of Safeway, that the Premises were left in suitable condition per the Lease. Defendant Biundo assured Mr. Cestaro that he and MCH would return the $12,000 deposit. 9. After further delay, in early January 2023, Safeway received what appeared to be partial payment of the amount owed -- $6,000 of the $12,000 owed. Check Number 2057, dated January 4, 2023, and payable to Safeway, purported to be issued by MCH from an MCH bank account at Dime Community Bank in the amount of $6,000. The Memo on the check provided "Return Security Deposit - 715 County Red 39" and appears to be signed by Defendant Biundo. See Exhibit B to Complaint, ECF Doc. #4. 10. Safeway attempted to deposit that check in the hope that progress had been made 2 of 3 FILED: SUFFOLK COUNTY CLERK 10/31/2023 04:33 PM INDEX NO. 609772/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/31/2023 on the return of the full amount of the security deposit owed. 11. Unfortunately, soon after depositing the partial payment, Safeway's bank, Wells Fargo, notified Safeway that the check for $6,000 was "being returned unpaid" due to "NSF - Insuf Funds." See January 4 check for partial payment and the Wells Fargo notice, Exhibit B to Complaint (ECF Doc. # 4). 12. Safeway again repeatedly tried to contact Defendants MCH and Biundo for payment but have received no response. On January 26, 2023, by letter addressed to Defendant Biundo as managing member of MCH, Safeway attempted yet again to receive payment of $12,000 due and owing. Safeway asked MCH to respond by February 6, 2023. 13. MCH and Biundo have not responded to Safeway's January 26 letter, have not responded to this lawsuit, and have not made any payments. 14. As a result, Defendants still owe Safeway $12,000, together with prejudgment interest and costs of suit. Dated: Tarrytown, New York October 27, 2023 ______________________________________ WILLIAM MARSILLO, ESQ 3 of 3