Preview
FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/16/2024
SUPREMECOURTOFTHESTATEOFNEWYORK
COUNTYOFDUTCHESS
_______________________________________________________________x
DANIELLEDISIENA F/K/A DANIELLE
CANERO, AFFIDAVIT IN SUPPORTOF
MOTIONFORSUMMARY
Plaintiff, JUDGMENTIN LIEU
OF COMPLAINT
-against-
VINCENTGARCIAand HEATHER
PITCHER, Index No.
Defendants.
____________________________________________________________x
STATEOFNew York )
) ss.
COUNTYOFDUTCHESS
Danielle DiSiena, being duly sworn, deposes and says:
1. I am the Plaintiff in this action.
2. I reside in Dutchess County, NewYork.
3. I was formerly known as Danielle Canero.
4. I make this affidavit in support of my 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.
5. The Affirmation in support of Plaintiff's motion in lieu of complaint by Jad B.
Haddad, Esq. is also submitted as part of this application ("Haddad Affirmation").
6. By Promissory Note dated November 15, 2019, Defendants, VINCENTGARCIA
Garcia" "Defendants"
and HEATHERPITCHER("Mr. and "Ms. Pitcher", respectively, or or
"Maker" promised to me the principal amount of $430,000.00, which was to be
collectively), pay
paid with interest at the rate of 5.00% per annum, with three semimonthly payments of $10,000.00
beginning on January 2, 2020 and 20 installment payments commencing on February 15, 2020 by
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FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/16/2024
and thereafter on the fifteenth day of May, August, and November of each year in 20 consecutive
installment payments, each installment being in the amount of $22,745.73.
"A" and is
7. A true and accurate copy of the Promissory Note is attached as Exhibit
incorporated by reference.
8. The Promissory Note contains a provision for my recovery of the reasonable costs,
disbursements and attorney's fees in connection with enforcing the Promissory Note.
9. Shortly after the execution of the Note, the Defendants defaulted on payments.
Rather than commencing suit for the entire principal balance of the loan, I agreed to execute a
Stipulation of Settlement dated May 19, 2020 (the "Stipulation"), 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".
10. Simultaneously with the execution of the Stipulation, each Defendant executed a
separate Affidavit of Confession of Judgment (the "Confession"). The Confessions are annexed
hereto and made a part hereof as Exhibit "C".
11. Commencing on or around August 15, 2023, Defendants defaulted on their
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.
12. The next quarterly payment came due on November 15, 2023. Defendants made no
payments against it.
13. By letter dated, December 18, 2023, I, through my attorney, notified Defendants
attorneys'
that they were in default in the amount of $40,854.04, inclusive of fees and late fees,
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FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/16/2024
and provided them with the required 10-day opportunity to cure the default. Said letter and UPS
shipping labels are annexed as Exhibit "D".
14. 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
payments total $34,592.00. Defendants have not made another payment since.
15. By letter dated January 12, 2024, I, through my attorney, 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 shipping labels are
annexed as Exhibit "E".
16. On or about January 22, 2024, Mr. Garcia emailed me stating he is not responsible
attorneys'
for the remaining balance as fees billing statements were not provided to him. Mr.
Garcia's email is annexed hereto and made a part hereof as Exhibit "K".
17. In response to Mr. Garcia's email, I, through my attorney, sent the billing
statements and schedule A default calculations and, again despite the lack of requirement to do so,
provided Defendants until January 30, 2024 to make payment, otherwise judgment would be
entered in accordance with the Judgments. Mr. Haddad's email to Mr. Garcia is annexed hereto as
Exhibit "F".
18. Mr. Garcia has since retained an attorney to represent him in this matter. Despite
indications from Mr. Garcia and his attorney that payments or an offer against the outstanding
balance would be made, neither has come.
19. I still receive text messages from Mr. Garcia saying he is attempting to make a
payment, however, a payment has still not been made since January 3, 2024.
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FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/16/2024
20. The total outstanding balance under the Note as of the date of this application,
excluding fees and costs incurred after January 3, 2024, is $120,958.78 with a per diem interest
rate of $16.27. Annexed as Exhibit "H", is a schedule showing the calculations made to obtain
this number. The schedule begins from the execution of the Stipulation as I elect to waive all
interest accrued prior to that date. Pursuant to the terms of the Note, all payments made are
attorneys'
attributed towards late fees and fees prior to the principal balance.
attorneys'
21. I have already incurred $13,412.12 in fees in attempting to enforce the
Note, through May2, 2024, not including the cost of preparing for this filing. A copy of the retainer
is attached hereto as Exhibit "I". Billing statements are attached hereto as Exhibit "J". I request
that the Court award memy attorneys' fees, as provided under the Promissory Note in the amount
of $13,412.12, and reserve the right to amend such amount at the conclusion of the matter.
22. No previous application for relief requested has been made.
WHEREFORE,I, Plaintiff, DANIELLE DISIENA F/K/A DANIELLE CANERO,
respectfully request:
A. An Order granting summary judgment as 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. An Order granting the reasonable costs, disbursements and attorney's fees incurred by me
in this matter; and
C. Such other relief the Court deemsjust and proper.
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FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/16/2024
Danielle DiSiena
Sworn to before me
this ay of May 2024
otary Publi
Jad B. Haddad
YORK
NOTARYPUBLIC, STATEOFNEW
Registration No. 02HA6419472
in Dutchess County
Qualified
Commission Expires July 6, 2025
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FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/16/2024
CERTIFICATION BY COUNSEL TO22 NYCRR202.8-b, RULE17
PURSUANT
JAD B. HADDAD,an attorney duly admitted to the Courts of the State of New York,
hereby certifies that the Affidavit was verified on May 16, 2024, contains 1,016 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
J D B. H D D, ESQ.
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FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/16/2024 SUPREMECOURTOFTHESTATEOFNEWYORK COUNTYOFDUTCHESS _______________________________________________________________x DANIELLEDISIENA F/K/A DANIELLE CANERO, AFFIDAVIT IN SUPPORTOF MOTIONFORSUMMARY Plaintiff, JUDGMENTIN LIEU OF COMPLAINT -against- VINCENTGARCIAand HEATHER PITCHER, Index No. Defendants. ____________________________________________________________x STATEOFNew York ) ) ss. COUNTYOFDUTCHESS Danielle DiSiena, being duly sworn, deposes and says: 1. I am the Plaintiff in this action. 2. I reside in Dutchess County, NewYork. 3. I was formerly known as Danielle Canero. 4. I make this affidavit in support of my 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. 5. The Affirmation in support of Plaintiff's motion in lieu of complaint by Jad B. Haddad, Esq. is also submitted as part of this application ("Haddad Affirmation"). 6. By Promissory Note dated November 15, 2019, Defendants, VINCENTGARCIA Garcia" "Defendants" and HEATHERPITCHER("Mr. and "Ms. Pitcher", respectively, or or "Maker" promised to me the principal amount of $430,000.00, which was to be collectively), pay paid with interest at the rate of 5.00% per annum, with three semimonthly payments of $10,000.00 beginning on January 2, 2020 and 20 installment payments commencing on February 15, 2020 by 1 1 of 6 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/16/2024 and thereafter on the fifteenth day of May, August, and November of each year in 20 consecutive installment payments, each installment being in the amount of $22,745.73. "A" and is 7. A true and accurate copy of the Promissory Note is attached as Exhibit incorporated by reference. 8. The Promissory Note contains a provision for my recovery of the reasonable costs, disbursements and attorney's fees in connection with enforcing the Promissory Note. 9. Shortly after the execution of the Note, the Defendants defaulted on payments. Rather than commencing suit for the entire principal balance of the loan, I agreed to execute a Stipulation of Settlement dated May 19, 2020 (the "Stipulation"), 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". 10. Simultaneously with the execution of the Stipulation, each Defendant executed a separate Affidavit of Confession of Judgment (the "Confession"). The Confessions are annexed hereto and made a part hereof as Exhibit "C". 11. Commencing on or around August 15, 2023, Defendants defaulted on their 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. 12. The next quarterly payment came due on November 15, 2023. Defendants made no payments against it. 13. By letter dated, December 18, 2023, I, through my attorney, notified Defendants attorneys' that they were in default in the amount of $40,854.04, inclusive of fees and late fees, 2 2 of 6 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/16/2024 and provided them with the required 10-day opportunity to cure the default. Said letter and UPS shipping labels are annexed as Exhibit "D". 14. 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 payments total $34,592.00. Defendants have not made another payment since. 15. By letter dated January 12, 2024, I, through my attorney, 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 shipping labels are annexed as Exhibit "E". 16. On or about January 22, 2024, Mr. Garcia emailed me stating he is not responsible attorneys' for the remaining balance as fees billing statements were not provided to him. Mr. Garcia's email is annexed hereto and made a part hereof as Exhibit "K". 17. In response to Mr. Garcia's email, I, through my attorney, sent the billing statements and schedule A default calculations and, again despite the lack of requirement to do so, provided Defendants until January 30, 2024 to make payment, otherwise judgment would be entered in accordance with the Judgments. Mr. Haddad's email to Mr. Garcia is annexed hereto as Exhibit "F". 18. Mr. Garcia has since retained an attorney to represent him in this matter. Despite indications from Mr. Garcia and his attorney that payments or an offer against the outstanding balance would be made, neither has come. 19. I still receive text messages from Mr. Garcia saying he is attempting to make a payment, however, a payment has still not been made since January 3, 2024. 3 3 of 6 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/16/2024 20. The total outstanding balance under the Note as of the date of this application, excluding fees and costs incurred after January 3, 2024, is $120,958.78 with a per diem interest rate of $16.27. Annexed as Exhibit "H", is a schedule showing the calculations made to obtain this number. The schedule begins from the execution of the Stipulation as I elect to waive all interest accrued prior to that date. Pursuant to the terms of the Note, all payments made are attorneys' attributed towards late fees and fees prior to the principal balance. attorneys' 21. I have already incurred $13,412.12 in fees in attempting to enforce the Note, through May2, 2024, not including the cost of preparing for this filing. A copy of the retainer is attached hereto as Exhibit "I". Billing statements are attached hereto as Exhibit "J". I request that the Court award memy attorneys' fees, as provided under the Promissory Note in the amount of $13,412.12, and reserve the right to amend such amount at the conclusion of the matter. 22. No previous application for relief requested has been made. WHEREFORE,I, Plaintiff, DANIELLE DISIENA F/K/A DANIELLE CANERO, respectfully request: A. An Order granting summary judgment as 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. An Order granting the reasonable costs, disbursements and attorney's fees incurred by me in this matter; and C. Such other relief the Court deemsjust and proper. 4 of 6 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/16/2024 Danielle DiSiena Sworn to before me this ay of May 2024 otary Publi Jad B. Haddad YORK NOTARYPUBLIC, STATEOFNEW Registration No. 02HA6419472 in Dutchess County Qualified Commission Expires July 6, 2025 5 5 of 6 FILED: DUTCHESS COUNTY CLERK 05/16/2024 03:12 PM INDEX NO. 2024-52049 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/16/2024 CERTIFICATION BY COUNSEL TO22 NYCRR202.8-b, RULE17 PURSUANT JAD B. HADDAD,an attorney duly admitted to the Courts of the State of New York, hereby certifies that the Affidavit was verified on May 16, 2024, contains 1,016 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 J D B. H D D, ESQ. 6 6 of 6