Preview
FILED: NASSAU COUNTY CLERK 05/16/2024 05:19 AM INDEX NO. 605068/2024
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/16/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
Index No.: 605068/2024
BYZFUNDER NY LLC D/B/A BYZFUNDER,
AFFIRMATION IN SUPPORT OF
Plaintiff, MOTION FOR SUMMARY
vs. JUDGMENT
PHILAGORILLA MOVERS, LLC D/B/A
PHILAGORILLA MOVERS AND CHRISTIAN H.
ZIEGLER III,
Defendants.
STATE OF NEW YORK )
)
COUNTY OF NASSAU )
YONATAN KLESTZICK, an attorney duly admitted to practice law in the State of
New York, affirms under the penalty of perjury the following:
1. I am a member of the law firm Lieberman and Klestzick, LLP, (“Counsel”) counsel for
the Plaintiff, BYZFUNDER NY LLC D/B/A BYZFUNDER (“Plaintiff”).
2. I submit this affirmation in support of Plaintiff’s motion for summary judgement
against PHILAGORILLA MOVERS, LLC D/B/A PHILAGORILLA MOVERS (“Company
Defendant”) and CHRISTIAN H. ZIEGLER III (“Guarantor”) as there are no issues of fact, in
that, the parties entered into an agreement (the “Agreement”), the Company Defendant breached
the Agreement, the Guarantor breached the guarantee, and Plaintiff is entitled to recovery of the
remaining balance, plus costs and disbursements.
3. This affirmation is based upon my personal knowledge of the facts, circumstances and
events which are the subject of this lawsuit, as well as, my personal review of the physical file
1 of 7
FILED: NASSAU COUNTY CLERK 05/16/2024 05:19 AM INDEX NO. 605068/2024
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/16/2024
maintained by Lieberman and Klestzick LLP in the regular course of business, which I
personally reviewed as well as the affidavit in support of summary judgment by Marshall
Rosenblum dated May 15, 2024, and my examination of the records of this court.
4. As a partner, I have personal knowledge of Lieberman and Klestzick LLP’s business
practices and procedures.
5. My job duties include reviewing Plaintiff's records when a merchant's account is in
default and authorizing the scope of the firm's collection efforts, including litigation.
6. Attached hereto, collectively as “Exhibit B”, is email correspondence containing the
Reconciliation Email, regarding the account of PHILAGORILLA MOVERS, LLC D/B/A
PHILAGORILLA MOVERS AND CHRISTIAN H. ZIEGLER III.
7. The Reconciliation Email records attached as “Exhibit B” are kept by Counsel in the
regular course of business.
8. It is the regular practice of Counsel for an employee or representative with knowledge of
the act, event, incident, order, transaction, invoice, condition, photo, video, recording, audio
recording, opinion, or diagnosis, to make the Reconciliation Email records, or to transmit
information thereof to be included in such Reconciliation Email records.
9. Said Reconciliation Email records were made at or near the time of occurrence of the
matters set forth by, or from information transmitted by, a person with knowledge of those matters.
10. I have personally obtained the copies of the Reconciliation Email attached hereto in
“Exhibit B” and compared them to the originals and they are true and complete copies of the
originals.
11. This affirmation, the annexed memorandum of law together with the exhibits annexed
thereto, are respectfully submitted in support of the instant motion for an order granting
-2-
2 of 7
FILED: NASSAU COUNTY CLERK 05/16/2024 05:19 AM INDEX NO. 605068/2024
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/16/2024
summary judgment in favor of Plaintiff.
THE PARTIES AGREEMENTS AND DEFENDANTS BREACH
12. On or about October 2, 2023, Plaintiff, Company Defendant and Guarantor entered into
an agreement (the “Agreement”) whereby Plaintiff agreed to buy $33,000.00 (“Purchase Amount”)
of Company Defendant’s future receivables for a sum of $25,000.00 (“Purchase Price”) with the
Purchase Amount to be remitted to Plaintiff from 7.57 percent of Company Defendant’s future
receivables. 1
13. In addition, Guarantor executed a guarantee of performance of all the representations,
warranties, and covenants made by the Company Defendant in the contract with Plaintiff. 2
14. The Agreement stipulates that Company Defendant and Guarantor consent that the
Agreement would be governed by the laws of the State of New York, that New York is the
“Acceptable Forum”, that the Acceptable Forum is convenient, that the parties are submitting to
the jurisdiction of the Acceptable Forum and that the parties waive any and all objections to
inconvenience of the jurisdiction or venue. 3
15. Company Defendant and Guarantor consented to service of process being sent by
Certified Mail Return Receipt. 4
16. Plaintiff honored its end of the bargain and paid Company Defendant the Purchase Price,
minus agreed to fees, for the future receivables.
17. Payments were initially made pursuant to the agreement but promptly stopped on or
before January 19, 2024, thereby breaching the Agreement. 5
1
See the Agreement annexed hereto as “Exhibit A”.
2
See the Agreement annexed hereto as “Exhibit A”.
3
See Exhibit “A” Page 4 at Paragraph 4.6.
4
See Exhibit “A” page 4 paragraph 4.6.
5
See the Pay Run annexed hereto as “Exhibit C”.
-3-
3 of 7
FILED: NASSAU COUNTY CLERK 05/16/2024 05:19 AM INDEX NO. 605068/2024
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/16/2024
18. On or about February 7, 2024, Plaintiff contacted Defendant and requested reconciliation,
specifically the last three months of Defendants bank statements, pursuant to the Agreement. 6
19. Defendant has yet to provide the specific documents requested by Plaintiff to conduct a
reconciliation thus breaching the Agreement.
20. On or before February 13, 2024, Company Defendant defaulted under the terms of the
Agreement by breaching its representations and warranties to Plaintiff thereunder and by failing
to properly direct payments to Plaintiff.
21. Upon information and belief, Company Defendant is still open and in business and
Plaintiff has not received any Receivables from Company Defendant since January 19, 2024.
22. As of the date of this affirmation, Company Defendant has made payments totaling
$12,571.52 leaving a balance of $20,428.48 of the purchase amount owed to Plaintiff.
23. Company Defendant owes Plaintiff $2,500.00 for a Default Fee under the Agreement. 7
24. Company Defendant owes Plaintiff $50.00 for Returned Item fees under the Agreement. 8
25. By reason of the foregoing, Plaintiff has been damaged by Company Defendant’s breach
of the Agreement in the sum of $22,978.48.
26. Guarantor has failed to perform the guarantee as guarantor failed to remit the $22,978.48
owed to Plaintiff pursuant to the Agreement.
PROCEDURAL HISTORY
27. On or about March 25, 2024, Plaintiff commenced this action by filing a Summons and
6
See the reconciliation email annexed hereto as “Exhibit B”.
7
See Exhibit A page 7 paragraph D.
8
See Exhibit A page 7 paragraph C.
-4-
4 of 7
FILED: NASSAU COUNTY CLERK 05/16/2024 05:19 AM INDEX NO. 605068/2024
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/16/2024
verified Complaint. 9
28. On or about March 25, 2024, Plaintiff properly served Company Defendant and
Guarantor (together, the “Defendants”) pursuant to the Agreement, by certified mail return receipt,
and proof of service thereof was filed on or about April 2, 2024. 10 11
29. On or about April 18, 2024, Defendants filed an Answer. 12
30. Plaintiff waives attorney fees solely for the application of the instant motion for summary
judgment and retains its ability to request attorney fees on future applications to the Court.
CONCLUSION
31. As demonstrated above, there remains a balance due and owing to Plaintiff pursuant to
the Agreement of $22,978.48 with interest thereon from February 13, 2024, plus costs and
disbursements.
32. This motion is not being made more than 120 days after the filing of a note of issue.
33. No prior application was made for this relief.
34. Plaintiff waives attorney fees solely for the application of the instant motion for summary
judgment and retains its right to renew its application for attorney fees on future applications to
the Court.
WHEREFORE, I respectfully request for the reasons explained in the accompanying
memorandum of law that the Court grant summary judgment and direct the entry of judgment
against the Defendants PHILAGORILLA MOVERS, LLC D/B/A PHILAGORILLA MOVERS
AND CHRISTIAN H. ZIEGLER III, jointly and severally, in the sum of $22,978.48 with interest
9
See Summons and verified Complaint annexed hereto as Exhibit “D”.
10
See Exhibit “A” page 4 paragraph 4.6.
11
See Proof of Service annexed hereto as Exhibit “E”.
12
See a copy of the answer annexed hereto as Exhibit “F”.
-5-
5 of 7
FILED: NASSAU COUNTY CLERK 05/16/2024 05:19 AM INDEX NO. 605068/2024
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/16/2024
thereon from February 13, 2024, plus costs and disbursements in addition to any sum the court
deems just and proper.
Dated: May 16, 2024 Respectfully submitted,
Nassau County, New York
By: ________________________
Yonatan Klestzick, Esq.
Lieberman and Klestzick, LLP
Attorneys for Plaintiff
381 Sunrise Hwy, 3rd Floor
Lynbrook, NY 11563
P: 516-900-6720
Email: Yklestzick@landklegal.com
-6-
6 of 7
FILED: NASSAU COUNTY CLERK 05/16/2024 05:19 AM INDEX NO. 605068/2024
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/16/2024
WORD COUNT CERTIFICATION
I hereby certify pursuant to part 202.8-b of the Uniform Civil Rules for the Supreme Court
& the County Court that this document according to the word count tool on Microsoft Word, the
total number of words in this document is 1212, consistent with the rule that (i) affidavits,
affirmations, briefs and memoranda of law in chief be limited to 7,000 words each; (ii) reply
affidavits, affirmations, and memoranda be no more than 4,200 words, and do not contain any
arguments that do not respond or relate to those made in the memoranda in chief.
Dated: May 16, 2024 Respectfully submitted,
Nassau County, New York
By: ________________________
Yonatan Klestzick, Esq.
Lieberman and Klestzick, LLP
Attorneys for Plaintiff
381 Sunrise Hwy, 3rd Floor
Lynbrook, NY 11563
P: 516-900-6720
Email: Yklestzick@landklegal.com
-7-
7 of 7
Preview
FILED: NASSAU COUNTY CLERK 05/16/2024 05:19 AM INDEX NO. 605068/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Index No.: 605068/2024 BYZFUNDER NY LLC D/B/A BYZFUNDER, AFFIRMATION IN SUPPORT OF Plaintiff, MOTION FOR SUMMARY vs. JUDGMENT PHILAGORILLA MOVERS, LLC D/B/A PHILAGORILLA MOVERS AND CHRISTIAN H. ZIEGLER III, Defendants. STATE OF NEW YORK ) ) COUNTY OF NASSAU ) YONATAN KLESTZICK, an attorney duly admitted to practice law in the State of New York, affirms under the penalty of perjury the following: 1. I am a member of the law firm Lieberman and Klestzick, LLP, (“Counsel”) counsel for the Plaintiff, BYZFUNDER NY LLC D/B/A BYZFUNDER (“Plaintiff”). 2. I submit this affirmation in support of Plaintiff’s motion for summary judgement against PHILAGORILLA MOVERS, LLC D/B/A PHILAGORILLA MOVERS (“Company Defendant”) and CHRISTIAN H. ZIEGLER III (“Guarantor”) as there are no issues of fact, in that, the parties entered into an agreement (the “Agreement”), the Company Defendant breached the Agreement, the Guarantor breached the guarantee, and Plaintiff is entitled to recovery of the remaining balance, plus costs and disbursements. 3. This affirmation is based upon my personal knowledge of the facts, circumstances and events which are the subject of this lawsuit, as well as, my personal review of the physical file 1 of 7 FILED: NASSAU COUNTY CLERK 05/16/2024 05:19 AM INDEX NO. 605068/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/16/2024 maintained by Lieberman and Klestzick LLP in the regular course of business, which I personally reviewed as well as the affidavit in support of summary judgment by Marshall Rosenblum dated May 15, 2024, and my examination of the records of this court. 4. As a partner, I have personal knowledge of Lieberman and Klestzick LLP’s business practices and procedures. 5. My job duties include reviewing Plaintiff's records when a merchant's account is in default and authorizing the scope of the firm's collection efforts, including litigation. 6. Attached hereto, collectively as “Exhibit B”, is email correspondence containing the Reconciliation Email, regarding the account of PHILAGORILLA MOVERS, LLC D/B/A PHILAGORILLA MOVERS AND CHRISTIAN H. ZIEGLER III. 7. The Reconciliation Email records attached as “Exhibit B” are kept by Counsel in the regular course of business. 8. It is the regular practice of Counsel for an employee or representative with knowledge of the act, event, incident, order, transaction, invoice, condition, photo, video, recording, audio recording, opinion, or diagnosis, to make the Reconciliation Email records, or to transmit information thereof to be included in such Reconciliation Email records. 9. Said Reconciliation Email records were made at or near the time of occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters. 10. I have personally obtained the copies of the Reconciliation Email attached hereto in “Exhibit B” and compared them to the originals and they are true and complete copies of the originals. 11. This affirmation, the annexed memorandum of law together with the exhibits annexed thereto, are respectfully submitted in support of the instant motion for an order granting -2- 2 of 7 FILED: NASSAU COUNTY CLERK 05/16/2024 05:19 AM INDEX NO. 605068/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/16/2024 summary judgment in favor of Plaintiff. THE PARTIES AGREEMENTS AND DEFENDANTS BREACH 12. On or about October 2, 2023, Plaintiff, Company Defendant and Guarantor entered into an agreement (the “Agreement”) whereby Plaintiff agreed to buy $33,000.00 (“Purchase Amount”) of Company Defendant’s future receivables for a sum of $25,000.00 (“Purchase Price”) with the Purchase Amount to be remitted to Plaintiff from 7.57 percent of Company Defendant’s future receivables. 1 13. In addition, Guarantor executed a guarantee of performance of all the representations, warranties, and covenants made by the Company Defendant in the contract with Plaintiff. 2 14. The Agreement stipulates that Company Defendant and Guarantor consent that the Agreement would be governed by the laws of the State of New York, that New York is the “Acceptable Forum”, that the Acceptable Forum is convenient, that the parties are submitting to the jurisdiction of the Acceptable Forum and that the parties waive any and all objections to inconvenience of the jurisdiction or venue. 3 15. Company Defendant and Guarantor consented to service of process being sent by Certified Mail Return Receipt. 4 16. Plaintiff honored its end of the bargain and paid Company Defendant the Purchase Price, minus agreed to fees, for the future receivables. 17. Payments were initially made pursuant to the agreement but promptly stopped on or before January 19, 2024, thereby breaching the Agreement. 5 1 See the Agreement annexed hereto as “Exhibit A”. 2 See the Agreement annexed hereto as “Exhibit A”. 3 See Exhibit “A” Page 4 at Paragraph 4.6. 4 See Exhibit “A” page 4 paragraph 4.6. 5 See the Pay Run annexed hereto as “Exhibit C”. -3- 3 of 7 FILED: NASSAU COUNTY CLERK 05/16/2024 05:19 AM INDEX NO. 605068/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/16/2024 18. On or about February 7, 2024, Plaintiff contacted Defendant and requested reconciliation, specifically the last three months of Defendants bank statements, pursuant to the Agreement. 6 19. Defendant has yet to provide the specific documents requested by Plaintiff to conduct a reconciliation thus breaching the Agreement. 20. On or before February 13, 2024, Company Defendant defaulted under the terms of the Agreement by breaching its representations and warranties to Plaintiff thereunder and by failing to properly direct payments to Plaintiff. 21. Upon information and belief, Company Defendant is still open and in business and Plaintiff has not received any Receivables from Company Defendant since January 19, 2024. 22. As of the date of this affirmation, Company Defendant has made payments totaling $12,571.52 leaving a balance of $20,428.48 of the purchase amount owed to Plaintiff. 23. Company Defendant owes Plaintiff $2,500.00 for a Default Fee under the Agreement. 7 24. Company Defendant owes Plaintiff $50.00 for Returned Item fees under the Agreement. 8 25. By reason of the foregoing, Plaintiff has been damaged by Company Defendant’s breach of the Agreement in the sum of $22,978.48. 26. Guarantor has failed to perform the guarantee as guarantor failed to remit the $22,978.48 owed to Plaintiff pursuant to the Agreement. PROCEDURAL HISTORY 27. On or about March 25, 2024, Plaintiff commenced this action by filing a Summons and 6 See the reconciliation email annexed hereto as “Exhibit B”. 7 See Exhibit A page 7 paragraph D. 8 See Exhibit A page 7 paragraph C. -4- 4 of 7 FILED: NASSAU COUNTY CLERK 05/16/2024 05:19 AM INDEX NO. 605068/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/16/2024 verified Complaint. 9 28. On or about March 25, 2024, Plaintiff properly served Company Defendant and Guarantor (together, the “Defendants”) pursuant to the Agreement, by certified mail return receipt, and proof of service thereof was filed on or about April 2, 2024. 10 11 29. On or about April 18, 2024, Defendants filed an Answer. 12 30. Plaintiff waives attorney fees solely for the application of the instant motion for summary judgment and retains its ability to request attorney fees on future applications to the Court. CONCLUSION 31. As demonstrated above, there remains a balance due and owing to Plaintiff pursuant to the Agreement of $22,978.48 with interest thereon from February 13, 2024, plus costs and disbursements. 32. This motion is not being made more than 120 days after the filing of a note of issue. 33. No prior application was made for this relief. 34. Plaintiff waives attorney fees solely for the application of the instant motion for summary judgment and retains its right to renew its application for attorney fees on future applications to the Court. WHEREFORE, I respectfully request for the reasons explained in the accompanying memorandum of law that the Court grant summary judgment and direct the entry of judgment against the Defendants PHILAGORILLA MOVERS, LLC D/B/A PHILAGORILLA MOVERS AND CHRISTIAN H. ZIEGLER III, jointly and severally, in the sum of $22,978.48 with interest 9 See Summons and verified Complaint annexed hereto as Exhibit “D”. 10 See Exhibit “A” page 4 paragraph 4.6. 11 See Proof of Service annexed hereto as Exhibit “E”. 12 See a copy of the answer annexed hereto as Exhibit “F”. -5- 5 of 7 FILED: NASSAU COUNTY CLERK 05/16/2024 05:19 AM INDEX NO. 605068/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/16/2024 thereon from February 13, 2024, plus costs and disbursements in addition to any sum the court deems just and proper. Dated: May 16, 2024 Respectfully submitted, Nassau County, New York By: ________________________ Yonatan Klestzick, Esq. Lieberman and Klestzick, LLP Attorneys for Plaintiff 381 Sunrise Hwy, 3rd Floor Lynbrook, NY 11563 P: 516-900-6720 Email: Yklestzick@landklegal.com -6- 6 of 7 FILED: NASSAU COUNTY CLERK 05/16/2024 05:19 AM INDEX NO. 605068/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/16/2024 WORD COUNT CERTIFICATION I hereby certify pursuant to part 202.8-b of the Uniform Civil Rules for the Supreme Court & the County Court that this document according to the word count tool on Microsoft Word, the total number of words in this document is 1212, consistent with the rule that (i) affidavits, affirmations, briefs and memoranda of law in chief be limited to 7,000 words each; (ii) reply affidavits, affirmations, and memoranda be no more than 4,200 words, and do not contain any arguments that do not respond or relate to those made in the memoranda in chief. Dated: May 16, 2024 Respectfully submitted, Nassau County, New York By: ________________________ Yonatan Klestzick, Esq. Lieberman and Klestzick, LLP Attorneys for Plaintiff 381 Sunrise Hwy, 3rd Floor Lynbrook, NY 11563 P: 516-900-6720 Email: Yklestzick@landklegal.com -7- 7 of 7