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FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024
SUPREMECOURTSTATE OFNEWYORK
COUNTYOFDUTCHESS
________________________________________________________Ç
DANIELLEDISIENA F/K/A DANIELLE
CANERO, AFFIRMATION IN SUPPORTOF
MOTIONFORSUMMARY
JUDGMENTIN LIEU OFCOMPLAINT
Plaintiff,
-against-
Index No.:
VINCENTGARCIAand HEATHER
PITCHER,
Defendants.
_______________________________________________________Ç
Jad B. Haddad, an attorney duly admitted to practice law in the Courts of the State of
NewYork, hereby affirms the following under penalties of perjury:
1. I am an attorney in the law firm of Stenger, Glass, Hagstrom, Lindars & Iuele,
LLP. This law firm represents the Plaintiff in this action.
2. I make this Affirmation in support of Plaintiff's motion for summary judgment
brought in lieu of a complaint pursuant to CPLR§3213, based upon an instrument for payment
of money only, as set forth below.
3. A full statement of the relevant facts and the relief requested in this application is
contained in the Affidavit of Danielle DiSiena f/k/a Danielle Canero (the "DiSiena Affidavit")
annexed hereto.
THEPARTIES
"Plaintiff"
4. Plaintiff, Danielle DiSiena f/k/a Danielle Canero, (hereinafter or
"Payee") is an individual having an address of 1556 Route 52, Fishkill, NY 12524.
5. Upon information and belief, Defendant, Vincent Garcia ("Mr. Garcia"), is an
individual having an address of 2407 Ridgecrest Drive, Garland, Texas 75041.
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6. Upon information and belief, Defendant, Heather Pitcher ("Ms. Pitcher"), is an
individual having an address of 109 Myrtle Avenue, NewWindsor, NewYork 12553.
JURISDICTIONANDVENUE
7. This Court can exercise jurisdiction over the Texas Defendant, Mr. Garcia,
pursuant to CPLR§301 and §302(a)(1) as the promissory note subject of this action was
executed in NewYork and Mr. Garcia still transacts business in NewYork through the business
which was purchased as part of the sametransaction which this action arises, Kidz Town of
Dutchess.
8. Venue is proper in Dutchess County pursuant to CPLR§503(a) as that is the
county in which at least one of the parties resides as of the time of the commencementof this
action and the county in which a substantial part of the events giving rise to the claim occurred.
THEPROMISSORY
NOTE
9. Onor about November 15, 2019, Mr. Garcia and Ms. Pitcher (collectively,
"Defendants"
or "Makers") executed a promissory note (the "Note") promising to pay Plaintiff,
the principal sum of $430,000.00 with a 5%annual interest rate on the unpaid principal amounts.
Annexed hereto and made a part hereof as Exhibit "A" is the Promissory Note.
10. The principal sum of the Note was to be paid as follows:
(1) Three in the amount of Ten thousand ($10,000) Dollars each on
(3) installments
January 2, 2020, March 2,2020 and May 1, 2020;
(2) The balance of Four Hundred Thousand ($400,000) Dollars commencing
February 15, 2020 and on the fifteenth day of every third month thereafter, to be paid
in full no later than Five (5) years from the date of sale. Said sum will be paid in
Twenty (20) monthly installments each in the sum of Twenty Two Thousand Seven
Hundred and Forty Five ($22,745.73) Dollars and Seventy Three Cents per month.
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11. In accordance with the Note, "[a]ny payment of principal or interest paid more
than ten (10) days after its due date shall be assessed a five (5%) percent late charge due
immediately."
12. In accordance with the Note "[a]ny payments received under this Purchase Note
shall be credited first to any fees or other charges due and owing, and then to the reduction of
outstanding."
principal payments
13. In accordance with the Note, a default shall include:
[a] [i]f any monthly installment is not paid within ten (10) days of its due date and
Maker fails to pay such monthly installment in full within three (3) days after receipt by
Maker of written notice from Payee that such installment is ten (10) days past due; or
[b] [i]f Maker or any Shareholder breaches any terms of this Purchase Note, the
Agreement for the Purchase of Corporate Stock, or other documents executed in
connection with the sale of Kidz Town of Dutchess Corporation.
14. In accordance with the Note:
[i]n the event of the occurrence of any Event of Default and the failure of the Maker to
cure same within the grace period (if any), the entire unpaid principal balance and all
accrued but unpaid additional charges shall at the option of Payee, become immediately
due and payable in full.
15. In accordance with the Note:
[a]ny notice under this Purchase Note shall be in writing, and delivered via overnight
mail, to the person or entity to whom such notice is directed at the respective addresses
set forth above, or at such other address designated by notice given in accordance with
this provision. Such notice shall be deemedgiven as of the day of mailing, if mailed
within the United States; and shall be deemedgiven as of the date of its delivery if mailed
outside of the United States.
16. In accordance with the Note:
[t]he receipt by the holder of
Purchase Note of any installment of principal,
this or of any
other sums due hereunder, with knowledge on the part of such holder of the existence of
a default under this Purchase Note shall not be deemed a waiver of, such default; and
such installment may be accepted by the holder of this Purchase Note without such
acceptance being deemed a waiver of such default. No payment by the undersigned, or
receipt by the holder of this Purchase Note, of any sum less than the full amount of each
installment when due shall be deemed other than on account of such installment, and
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shallbe applied against such installment in such manner and order as the holder shall
choose in his sole and absolute discretion.
17. In accordance with the Note:
[t]he undersigned shall, upon demand, pay, reimburse and satisfy in full any and all
expenses that may be paid or incurred by the holder of this Purchase Note in the
collection of all or any portion of the indebtedness evidenced hereby, or in the exercise or
enforcement of any one or more of the rights and remedies of the holder of this Purchase
Note, irrespective of the manner of success of any such collection, exercise or
enforcement. If the undersigned fails to so pay, reimburse and satisfy such expenses
within ten (10) days after demand, the same shall bear interest at a rate equal to five
(5.00%) percent per month, or the maximumrate allowed by law to be charged by the
holder of this Purchase Note, whichever is less.
18. In accordance with the Note:
This Purchase Note is made and delivered in the State NewYork and shall be
of
construed with the laws of the State of
in accordance NewYork. The undersigned
hereby
consents to the jurisdiction and venue of the Federal Court of the Eastern District or
Southern District of the State of NewYork, with respect to any action or proceeding
brought to enforce the terms and conditions of this Purchase Note, and of any other
instrument delivered in connection with this Purchase Note.
19. In accordance with the Note, "[p]ayee shall also have the right to collect all
reasonable costs, disbursements and legal fees incurred in enforcing the terms of this Purchase
Note."
RELEVANTFACTS
20. Shortly after the execution of the Note, the Defendants defaulted on payments.
Rather than commencing suit for the entire principal balance of the loan, Plaintiff, by the
execution of a Stipulation of Settlement dated May 19, 2020 (the "Stipulation"), agreed to
restructure the loan to provide Defendants with additional time to cure their default. After the
default was cured, commencing August 15, 2020, quarterly payments of $22,745.73 were to
resume as described in the Note. The Stipulation is annexed hereto and made a part hereof as
Exhibit "B".
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21. Simultaneously with the execution of the Stipulation, each Defendant executed a
separate Affidavit of Confession of Judgment (the "Judgment"). The Judgments are annexed
hereto and made a part hereof as Exhibit "C". Paragraph 2 of the Judgments state:
Ihereby confess judgment herein against me . . . in favor of Danielle Canero c/o Stenger,
Roberts, Davis, and Diamond LLP, 1136 Route 9, Wappingers Falls, NewYork 12590,
and authorize entry thereof in the principal sum due under a Promissory Note ("Note")
executed on or about November 15, 2019, as modified by a Stipulation of settlement
("Agreement") entered into between the parties, dated May 2020, less any amounts paid
to Danielle Canero ("Judgment Amount"), which Judgment Amount I hereby authorize to
be verified by counsel for Danielle Canero in an Affirmation which may be filed
simultaneously with this Affidavit in the State of New York and the State of Texas, and
which Affirmation sets forth the total sum for which the Judgment against me may be
entered.
22. Paragraph 3 of the Judgments state, "I hereby authorize the Judgment to be
entered, upon ten (10) days notice to mefollowing a default as that term is defined in the Note.
23. Commencing on or around August 15, 2023, Defendants defaulted on its quarterly
payment. On August 25, 2023, Defendants tendered partial payment in the amount of $12,500.00
against the $22,745.73 quarterly payment due. On or about October 4, 2023, Defendants
tendered another partial payment of $675.00 (DiSiena Affidavit, ¶l l).
24. The next quarterly payment came due on November 15, 2023. Defendants made
no payments against it (DiSiena Affidavit, $12).
25. By letter dated, December 18, 2023, I, on behalf of the Plaintiff, notified
attorneys'
Defendants that they were in default in the amount of $40,854.04, inclusive of fees
and late fees, and provided them with the required 10-day opportunity to cure the default. Said
letter and UPS shipping labels are annexed hereto and made a part hereof as Exhibit "D".
26. On December 20, 2023 Defendants tendered partial payment in the amount of
$10,708.00. On January 2, 2024, Defendants tendered another partial payment of $10,000.00. On
January 3, 2024, Defendants tendered another partial payment of $13,884.00. Those three
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payments total $34,592.00. Defendants have not made another payment since (DiSiena Affidavit,
$14).
27. By letter dated January 12, 2024, I, on behalf of the Plaintiff, notified Defendants
that they remained in default in the amount of $8,182.04, and, despite the lack of requirement to
do so, provided Defendants another 10 days to cure the default. Said letter and UPS delivery
confirmation are annexed hereto and made a part hereof as Exhibit "E".
28. On or about January 22, 2024, Mr. Garcia emailed Plaintiff stating he is not
attorneys'
responsible for the remaining balance as fees billing statements were not provided to
him (DiSiena Affidavit, $16).
29. In response to Mr. Garcia's email, on or about January 24, 2024, I, on behalf of
the Plaintiff, sent the billing statements and a default calculation schedule. Again, despite the
lack of requirement to do so, I provided Defendants until January 30, 2024 to make payment,
otherwise judgment would be entered in accordance with the Judgments. The email chain in
which this exchange took place is annexed hereto and made a part hereof as Exhibit "F".
30. By email dated February 28, 2024, Alejandro Quinones, Esq., notified methat his
law firm had been retained to represent Mr. Garcia and requested an extension to March 18,
2024, to review the file with his client.
31. By phone call on March 28, 2024, I spoke with Mr. Quinones regarding the file
and a possible resolution. He stated that he still needed to speak with his client and would
attempt to get back to mewith an offer.
32. By email dated, April 6, 2024, Mr. Quinones notified me that he was still working
on getting a payment proposal sent my way and would provide an update by Wednesday, April
10, 2024. I received no update on that date.
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attorneys'
33. By email dated April 10, 2024, I notified Mr. Quinones that the fees
incurred by my client in connection with her enforcement of the Note to date were now over
$10,000.00 and that I would send my firm's billing records to him.
34. By email dated April 17, 2024, I provided Mr. Quinones with my firm's billing
attorneys'
records for fees incurred by my client through March 28, 2024. I asked for an update.
To date, I have received no update from Mr. Quinones. The email chain within which the
exchanges referenced in the above paragraphs occurred is annexed hereto and made a part hereof
as Exhibit "G".
35. To date, neither myself nor my client has received any communications from Ms.
Pitcher or anyone purporting to represent Ms. Pitcher. Defendants have still not made another
payment since January 3, 2024.
36. The total outstanding balance under the Note as of the date of this application,
excluding costs and fees incurred after January 3, 2024, is $120,958.78 with a per diem interest
rate of $16.27. Annexed hereto and made a part hereof as Exhibit "H", is a schedule showing
the calculations made to obtain this number. The schedule begins from the execution of the
Stipulation as Plaintiff elects to waive all interest accrued prior to that date (DiSiena Affidavit,
$20). Pursuant to the terms of the Note, all payment made are attributed towards late fees and
attorneys'
fees prior to the principal balance
LEGALARGUMENT
37. Pursuant to CPLR§ 3213, "When an action is based upon an instrument for the
payment of money only or upon any judgment, the plaintiff may serve with the summons a
notice of motion for summary judgment and the supporting papers in lieu of a complaint".
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38. A promissory note qualifies as "an instrument for the payment of money
only"
to
which CPLR§ 3213 applies. Kim v. Il Yeon Kwon, 144 A.D.3d 754, 755 (2d Dept. 2016).
39. A plaintiff establishes a prima facie entitlement to judgment as a matter of law for
payment on a promissory note by demonstrating the existence of the promissory note, executed
by the defendant, containing an unequivocal and unconditional obligation to repay, and the
failure by the defendant to pay in accordance with the note's terms. Kim v. Il Yeon Kwon, 144
A.D.3d 754, 755 (2d Dept. 2016).
40. Pursuant to CPLR§ 3218, through their execution of the Judgments, Defendants
authorized the entry of judgments in the principal sum due under the Note upon 10 day written
notice upon them of their default. However, entry of the judgment must be made within three
years of the execution of the affidavits. Defendants executed the Judgments on May 18, 2020,
necessitating this action.
41. Here, the DiSiena Affidavit demonstrates the existence of the Promissory Note,
Stipulation of Settlement and Affidavits of Confession of Judgment signed by Defendants, their
unconditional promises of payment thereunder, and their failure to pay in accordance with terms
of the Promissory Note as modified by the Stipulation of Settlement (collectively the "Note")
despite due notice and opportunity to cure.
42. In accordance with the Note and Confessions, Plaintiff is entitled to demand that
all accrued interest, principal and other amounts owing hereunder become immediately due and
payable and demandjudgment to be entered for the same.
43. The remaining principal amount due on the loan is $118,762.33. The accrued
interest amount due on the loan through the date of this application, May 16, 2024, is $2,169.45.
This totals $120,958.78. See the annexed Exhibit "H".
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44. Interest will continue to accrue at the per diem rate of $16.27. Should the court
grant this application, interest should thereafter, accrue at the post-judgment interest rate
pursuant to CPLR§5004.
ATTORNEYS'FEES
45. In accordance with the Note, Plaintiff is also entitled to legal fees in connection
with this action. Through May 2, 2024, Plaintiff has incurred legal fees in the amount of
$13,412.12. There will be a further submission made as part of Plaintiff's final submission in this
case. Annexed hereto and made a part hereof as Exhibit "I" and Exhibit "J" is Plaintiff's
retainer agreement with this firm and a billing history of the file to date, respectively.
46. It is my opinion that the hourly rate charged to the Plaintiff in the Retainer
Agreement is proper and reasonable given the knowledge, depth and experience of the lawyers
who have billed against it, as well as a marketplace that has consistently placed those values on
the services made by this law firm.
47. No previous application for the relief herein prayed for has been made.
WHEREFORE,
Plaintiff requests and Order as follows:
A. Granting summary judgment against Defendants, in the amount of $120,958.78, plus
interest at the per diem rate of $16.27 from May 16, 2024 to the date of judgment in this
matter;
B. Granting the reasonable costs, disbursements and attorney's fees incurred by Plaintiff in
this matter; and
C. Such other relief as the court deems just and proper.
Dated: Wappingers Falls, NY
May 16, 2024
J B. HAI AD, ESQ.
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Stenger, Glass, Hagstrom, Lindars & Iuele,
LLP
Attomeys for Plaintiff
1136 Route 9
Wappingers Falls, NY 12590
(845) 298-2000
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CERTIFICATION BYCOUNSEL TO22 NYCRR
PURSUANT 202.8-b, RULE17
Jad B. Haddad, Esq., an attorney duly admitted to the Courts of the State of NewYork,
hereby certifies that the Affirmation attached hereto and verified on May 16, 2024, contains
2,778 words, exclusive of the caption and the signature block, and that I relied on the word count
of the word-processing system used by this office to calculate same.
DATED: May 16, 2024
JAD B. H D, ESQ.
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FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 SUPREMECOURTSTATE OFNEWYORK COUNTYOFDUTCHESS ________________________________________________________Ç DANIELLEDISIENA F/K/A DANIELLE CANERO, AFFIRMATION IN SUPPORTOF MOTIONFORSUMMARY JUDGMENTIN LIEU OFCOMPLAINT Plaintiff, -against- Index No.: VINCENTGARCIAand HEATHER PITCHER, Defendants. _______________________________________________________Ç Jad B. Haddad, an attorney duly admitted to practice law in the Courts of the State of NewYork, hereby affirms the following under penalties of perjury: 1. I am an attorney in the law firm of Stenger, Glass, Hagstrom, Lindars & Iuele, LLP. This law firm represents the Plaintiff in this action. 2. I make this Affirmation in support of Plaintiff's motion for summary judgment brought in lieu of a complaint pursuant to CPLR§3213, based upon an instrument for payment of money only, as set forth below. 3. A full statement of the relevant facts and the relief requested in this application is contained in the Affidavit of Danielle DiSiena f/k/a Danielle Canero (the "DiSiena Affidavit") annexed hereto. THEPARTIES "Plaintiff" 4. Plaintiff, Danielle DiSiena f/k/a Danielle Canero, (hereinafter or "Payee") is an individual having an address of 1556 Route 52, Fishkill, NY 12524. 5. Upon information and belief, Defendant, Vincent Garcia ("Mr. Garcia"), is an individual having an address of 2407 Ridgecrest Drive, Garland, Texas 75041. 1 of 11 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 6. Upon information and belief, Defendant, Heather Pitcher ("Ms. Pitcher"), is an individual having an address of 109 Myrtle Avenue, NewWindsor, NewYork 12553. JURISDICTIONANDVENUE 7. This Court can exercise jurisdiction over the Texas Defendant, Mr. Garcia, pursuant to CPLR§301 and §302(a)(1) as the promissory note subject of this action was executed in NewYork and Mr. Garcia still transacts business in NewYork through the business which was purchased as part of the sametransaction which this action arises, Kidz Town of Dutchess. 8. Venue is proper in Dutchess County pursuant to CPLR§503(a) as that is the county in which at least one of the parties resides as of the time of the commencementof this action and the county in which a substantial part of the events giving rise to the claim occurred. THEPROMISSORY NOTE 9. Onor about November 15, 2019, Mr. Garcia and Ms. Pitcher (collectively, "Defendants" or "Makers") executed a promissory note (the "Note") promising to pay Plaintiff, the principal sum of $430,000.00 with a 5%annual interest rate on the unpaid principal amounts. Annexed hereto and made a part hereof as Exhibit "A" is the Promissory Note. 10. The principal sum of the Note was to be paid as follows: (1) Three in the amount of Ten thousand ($10,000) Dollars each on (3) installments January 2, 2020, March 2,2020 and May 1, 2020; (2) The balance of Four Hundred Thousand ($400,000) Dollars commencing February 15, 2020 and on the fifteenth day of every third month thereafter, to be paid in full no later than Five (5) years from the date of sale. Said sum will be paid in Twenty (20) monthly installments each in the sum of Twenty Two Thousand Seven Hundred and Forty Five ($22,745.73) Dollars and Seventy Three Cents per month. 2 of 11 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 11. In accordance with the Note, "[a]ny payment of principal or interest paid more than ten (10) days after its due date shall be assessed a five (5%) percent late charge due immediately." 12. In accordance with the Note "[a]ny payments received under this Purchase Note shall be credited first to any fees or other charges due and owing, and then to the reduction of outstanding." principal payments 13. In accordance with the Note, a default shall include: [a] [i]f any monthly installment is not paid within ten (10) days of its due date and Maker fails to pay such monthly installment in full within three (3) days after receipt by Maker of written notice from Payee that such installment is ten (10) days past due; or [b] [i]f Maker or any Shareholder breaches any terms of this Purchase Note, the Agreement for the Purchase of Corporate Stock, or other documents executed in connection with the sale of Kidz Town of Dutchess Corporation. 14. In accordance with the Note: [i]n the event of the occurrence of any Event of Default and the failure of the Maker to cure same within the grace period (if any), the entire unpaid principal balance and all accrued but unpaid additional charges shall at the option of Payee, become immediately due and payable in full. 15. In accordance with the Note: [a]ny notice under this Purchase Note shall be in writing, and delivered via overnight mail, to the person or entity to whom such notice is directed at the respective addresses set forth above, or at such other address designated by notice given in accordance with this provision. Such notice shall be deemedgiven as of the day of mailing, if mailed within the United States; and shall be deemedgiven as of the date of its delivery if mailed outside of the United States. 16. In accordance with the Note: [t]he receipt by the holder of Purchase Note of any installment of principal, this or of any other sums due hereunder, with knowledge on the part of such holder of the existence of a default under this Purchase Note shall not be deemed a waiver of, such default; and such installment may be accepted by the holder of this Purchase Note without such acceptance being deemed a waiver of such default. No payment by the undersigned, or receipt by the holder of this Purchase Note, of any sum less than the full amount of each installment when due shall be deemed other than on account of such installment, and 3 of 11 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 shallbe applied against such installment in such manner and order as the holder shall choose in his sole and absolute discretion. 17. In accordance with the Note: [t]he undersigned shall, upon demand, pay, reimburse and satisfy in full any and all expenses that may be paid or incurred by the holder of this Purchase Note in the collection of all or any portion of the indebtedness evidenced hereby, or in the exercise or enforcement of any one or more of the rights and remedies of the holder of this Purchase Note, irrespective of the manner of success of any such collection, exercise or enforcement. If the undersigned fails to so pay, reimburse and satisfy such expenses within ten (10) days after demand, the same shall bear interest at a rate equal to five (5.00%) percent per month, or the maximumrate allowed by law to be charged by the holder of this Purchase Note, whichever is less. 18. In accordance with the Note: This Purchase Note is made and delivered in the State NewYork and shall be of construed with the laws of the State of in accordance NewYork. The undersigned hereby consents to the jurisdiction and venue of the Federal Court of the Eastern District or Southern District of the State of NewYork, with respect to any action or proceeding brought to enforce the terms and conditions of this Purchase Note, and of any other instrument delivered in connection with this Purchase Note. 19. In accordance with the Note, "[p]ayee shall also have the right to collect all reasonable costs, disbursements and legal fees incurred in enforcing the terms of this Purchase Note." RELEVANTFACTS 20. Shortly after the execution of the Note, the Defendants defaulted on payments. Rather than commencing suit for the entire principal balance of the loan, Plaintiff, by the execution of a Stipulation of Settlement dated May 19, 2020 (the "Stipulation"), agreed to restructure the loan to provide Defendants with additional time to cure their default. After the default was cured, commencing August 15, 2020, quarterly payments of $22,745.73 were to resume as described in the Note. The Stipulation is annexed hereto and made a part hereof as Exhibit "B". 4 of 11 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 21. Simultaneously with the execution of the Stipulation, each Defendant executed a separate Affidavit of Confession of Judgment (the "Judgment"). The Judgments are annexed hereto and made a part hereof as Exhibit "C". Paragraph 2 of the Judgments state: Ihereby confess judgment herein against me . . . in favor of Danielle Canero c/o Stenger, Roberts, Davis, and Diamond LLP, 1136 Route 9, Wappingers Falls, NewYork 12590, and authorize entry thereof in the principal sum due under a Promissory Note ("Note") executed on or about November 15, 2019, as modified by a Stipulation of settlement ("Agreement") entered into between the parties, dated May 2020, less any amounts paid to Danielle Canero ("Judgment Amount"), which Judgment Amount I hereby authorize to be verified by counsel for Danielle Canero in an Affirmation which may be filed simultaneously with this Affidavit in the State of New York and the State of Texas, and which Affirmation sets forth the total sum for which the Judgment against me may be entered. 22. Paragraph 3 of the Judgments state, "I hereby authorize the Judgment to be entered, upon ten (10) days notice to mefollowing a default as that term is defined in the Note. 23. Commencing on or around August 15, 2023, Defendants defaulted on its quarterly payment. On August 25, 2023, Defendants tendered partial payment in the amount of $12,500.00 against the $22,745.73 quarterly payment due. On or about October 4, 2023, Defendants tendered another partial payment of $675.00 (DiSiena Affidavit, ¶l l). 24. The next quarterly payment came due on November 15, 2023. Defendants made no payments against it (DiSiena Affidavit, $12). 25. By letter dated, December 18, 2023, I, on behalf of the Plaintiff, notified attorneys' Defendants that they were in default in the amount of $40,854.04, inclusive of fees and late fees, and provided them with the required 10-day opportunity to cure the default. Said letter and UPS shipping labels are annexed hereto and made a part hereof as Exhibit "D". 26. On December 20, 2023 Defendants tendered partial payment in the amount of $10,708.00. On January 2, 2024, Defendants tendered another partial payment of $10,000.00. On January 3, 2024, Defendants tendered another partial payment of $13,884.00. Those three 5 of 11 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 payments total $34,592.00. Defendants have not made another payment since (DiSiena Affidavit, $14). 27. By letter dated January 12, 2024, I, on behalf of the Plaintiff, notified Defendants that they remained in default in the amount of $8,182.04, and, despite the lack of requirement to do so, provided Defendants another 10 days to cure the default. Said letter and UPS delivery confirmation are annexed hereto and made a part hereof as Exhibit "E". 28. On or about January 22, 2024, Mr. Garcia emailed Plaintiff stating he is not attorneys' responsible for the remaining balance as fees billing statements were not provided to him (DiSiena Affidavit, $16). 29. In response to Mr. Garcia's email, on or about January 24, 2024, I, on behalf of the Plaintiff, sent the billing statements and a default calculation schedule. Again, despite the lack of requirement to do so, I provided Defendants until January 30, 2024 to make payment, otherwise judgment would be entered in accordance with the Judgments. The email chain in which this exchange took place is annexed hereto and made a part hereof as Exhibit "F". 30. By email dated February 28, 2024, Alejandro Quinones, Esq., notified methat his law firm had been retained to represent Mr. Garcia and requested an extension to March 18, 2024, to review the file with his client. 31. By phone call on March 28, 2024, I spoke with Mr. Quinones regarding the file and a possible resolution. He stated that he still needed to speak with his client and would attempt to get back to mewith an offer. 32. By email dated, April 6, 2024, Mr. Quinones notified me that he was still working on getting a payment proposal sent my way and would provide an update by Wednesday, April 10, 2024. I received no update on that date. 6 of 11 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 attorneys' 33. By email dated April 10, 2024, I notified Mr. Quinones that the fees incurred by my client in connection with her enforcement of the Note to date were now over $10,000.00 and that I would send my firm's billing records to him. 34. By email dated April 17, 2024, I provided Mr. Quinones with my firm's billing attorneys' records for fees incurred by my client through March 28, 2024. I asked for an update. To date, I have received no update from Mr. Quinones. The email chain within which the exchanges referenced in the above paragraphs occurred is annexed hereto and made a part hereof as Exhibit "G". 35. To date, neither myself nor my client has received any communications from Ms. Pitcher or anyone purporting to represent Ms. Pitcher. Defendants have still not made another payment since January 3, 2024. 36. The total outstanding balance under the Note as of the date of this application, excluding costs and fees incurred after January 3, 2024, is $120,958.78 with a per diem interest rate of $16.27. Annexed hereto and made a part hereof as Exhibit "H", is a schedule showing the calculations made to obtain this number. The schedule begins from the execution of the Stipulation as Plaintiff elects to waive all interest accrued prior to that date (DiSiena Affidavit, $20). Pursuant to the terms of the Note, all payment made are attributed towards late fees and attorneys' fees prior to the principal balance LEGALARGUMENT 37. Pursuant to CPLR§ 3213, "When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint". 7 of 11 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 38. A promissory note qualifies as "an instrument for the payment of money only" to which CPLR§ 3213 applies. Kim v. Il Yeon Kwon, 144 A.D.3d 754, 755 (2d Dept. 2016). 39. A plaintiff establishes a prima facie entitlement to judgment as a matter of law for payment on a promissory note by demonstrating the existence of the promissory note, executed by the defendant, containing an unequivocal and unconditional obligation to repay, and the failure by the defendant to pay in accordance with the note's terms. Kim v. Il Yeon Kwon, 144 A.D.3d 754, 755 (2d Dept. 2016). 40. Pursuant to CPLR§ 3218, through their execution of the Judgments, Defendants authorized the entry of judgments in the principal sum due under the Note upon 10 day written notice upon them of their default. However, entry of the judgment must be made within three years of the execution of the affidavits. Defendants executed the Judgments on May 18, 2020, necessitating this action. 41. Here, the DiSiena Affidavit demonstrates the existence of the Promissory Note, Stipulation of Settlement and Affidavits of Confession of Judgment signed by Defendants, their unconditional promises of payment thereunder, and their failure to pay in accordance with terms of the Promissory Note as modified by the Stipulation of Settlement (collectively the "Note") despite due notice and opportunity to cure. 42. In accordance with the Note and Confessions, Plaintiff is entitled to demand that all accrued interest, principal and other amounts owing hereunder become immediately due and payable and demandjudgment to be entered for the same. 43. The remaining principal amount due on the loan is $118,762.33. The accrued interest amount due on the loan through the date of this application, May 16, 2024, is $2,169.45. This totals $120,958.78. See the annexed Exhibit "H". 8 of 11 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 44. Interest will continue to accrue at the per diem rate of $16.27. Should the court grant this application, interest should thereafter, accrue at the post-judgment interest rate pursuant to CPLR§5004. ATTORNEYS'FEES 45. In accordance with the Note, Plaintiff is also entitled to legal fees in connection with this action. Through May 2, 2024, Plaintiff has incurred legal fees in the amount of $13,412.12. There will be a further submission made as part of Plaintiff's final submission in this case. Annexed hereto and made a part hereof as Exhibit "I" and Exhibit "J" is Plaintiff's retainer agreement with this firm and a billing history of the file to date, respectively. 46. It is my opinion that the hourly rate charged to the Plaintiff in the Retainer Agreement is proper and reasonable given the knowledge, depth and experience of the lawyers who have billed against it, as well as a marketplace that has consistently placed those values on the services made by this law firm. 47. No previous application for the relief herein prayed for has been made. WHEREFORE, Plaintiff requests and Order as follows: A. Granting summary judgment against Defendants, in the amount of $120,958.78, plus interest at the per diem rate of $16.27 from May 16, 2024 to the date of judgment in this matter; B. Granting the reasonable costs, disbursements and attorney's fees incurred by Plaintiff in this matter; and C. Such other relief as the court deems just and proper. Dated: Wappingers Falls, NY May 16, 2024 J B. HAI AD, ESQ. 9 of 11 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 Stenger, Glass, Hagstrom, Lindars & Iuele, LLP Attomeys for Plaintiff 1136 Route 9 Wappingers Falls, NY 12590 (845) 298-2000 10 of 11 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/16/2024 CERTIFICATION BYCOUNSEL TO22 NYCRR PURSUANT 202.8-b, RULE17 Jad B. Haddad, Esq., an attorney duly admitted to the Courts of the State of NewYork, hereby certifies that the Affirmation attached hereto and verified on May 16, 2024, contains 2,778 words, exclusive of the caption and the signature block, and that I relied on the word count of the word-processing system used by this office to calculate same. DATED: May 16, 2024 JAD B. H D, ESQ. 11 of 11