Preview
D: YORK OUN PK O04 :0
AN INDEX NO. 650383/2018
NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 04/11/2019
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
HON. Ch
Sel TARLES E, RAMAS
PRESENT: part_ WR
ee
Index Number : 650383/2018
CUSHMAN & WAKEFIELD, INC. INDEX NO.
vs. MOTION DATE
TANNENBAUM, LAWRENCE c_¢ we
SEQUENCE NUMBER : 003 Et Rae " Z a MOTION SEQ. NO.
HEAR AND DETERMINE
The following papers, numbered 1 to , Were read on this motion to/for
Notice of Motion/Order to Show Cause — Affidavits — Exhibits [ No(s).
Answering Affidavits — Exhibits [Nojs).
Replying Affidavits J Nojs).
Upon the foregoing papers, it is ordered that this motion
to hear and determine is granted as set forth in the transcript dated April2, 2019,
“So Ordered” April 9, 2019.
The clerk is hereby directed to enter judgement.
cy
pated: _ 4/7 li 4 ie JS.C,
1. CHECK ONE: uu... hase DISPOSED |] NON-FINAL DISPOSITION
2. CHECK AS APPROPRIATE: sneeanee (C)DENIED [IGRANTED IN PART
MOTION IS: (_) GRANTED COTHER
3. CHECK IF APPROPRIATE: ....... . [JSETTLE ORDER C) suBMit ORDER
C1Do not Post (CIFIDUCIARY APPOINTMENT REFERENCE
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E-FILE
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
eee aX Index No.: 650383/18
CUSHMAN & WAKEFIELD, INC.,
Plaintiff,
-against- DEFAULT JUDGMENT
LAWRENCE TANNENBAUM,
Defendant.
o: X
Plaintiff CUSHMAN & WAKEFIELD, INC. (“Cushman & Wakefield”), by LEWIS
BRISBOIS BISGAARD & SMITH LLP, its attorneys in the above-caption, having moved for a
default judgment under CPLR §3215 based upon the failure of Defendant LAWRENCE
TANNENBAUM (“Tannenbaum”) to answer or appear or otherwise defend in this action; and
Plaintiff Cushman & Wakefield having submitted all necessary proof of service of the summons
and complaint and proof the motion upon Defendant Lawrence Tannenbaum; and
UPON the Affirmation in Support of Jonathan L. Berkowitz, Esq., affirmed the 18" day
of July 2018 and the exhibits annexed thereto; the Affidavit of George Gonzalez, sworn to the 6”
day of July 2018, and the exhibits annexed thereto, which were served and filed by Plaintiff
Cushman & Wakefield; the entry of default in this matter having been duly ordered, adjudged
and entered herein on the 23rd day of January 2019; and the order and notice of entry having
been served on Defendant Lawrence Tannenbaum; and the JHO/Special Referee having taken
proof of Plaintiff Cushman & Wakefield’s damages, and having made his report where he finds
and assesses Plaintiff Cushman & Wakefield’s damages in the principal amount of $692,448.32,
plus pre-judgment interest from January 26, 2012 in the amount of $283,955.98, plus reasonable
attorneys’ fees in the sum of $3,213.00, plus reasonable costs and disbursements in the sum of
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$550.00; for a total sum amount of $980,167.30, with post-judgment interest at a rate of 9
percent per annum upon entry of the default judgment,
NOW on the motion of LEWIS BRISBOIS BISGAARD & SMITH LLP, attorneys for
Plaintiff Cushman & Wakefield, it is hereby
ORDERED and ADJUDGED that Plaintiff Cushman & Wakefield has judgment by
default against Defendant Lawrence Tannenbaum, having his primary residence at 300 East 74"
Street, Apartment 22G, New York, New York 10021, pursuant to CPLR §3215 and that Plaintiff
Cushman & Wakefield do recover from Defendant Lawrence Tannenbaum, in the principal
amount of $692,448.32, plus pre-judgment interest from January 26, 2012 in the amount of
$283,955.98, plus reasonable attorneys’ fees in the amount of $3,213.00, plus reasonable costs
and disbursements in the amount of $550.00; for a total sum amount of $980,167.30, and post-
judgment interest at a rate of nine-percent (9%) per annum upon entry of the default judgment;
and that Plaintiff Cushman & Wakefield have execution therefor; and it is further
ORDERED and ADJUDGED that a copy of this Default Judgment shall be filed with
the Clerk of the Supreme Court of the State of New York, County of New York.
AV f/ell9
Judgment Entered
day of. »2019 safe
"Clerk of Court
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E-FILE
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X Index No.: 650383/18
CUSHMAN & WAKEFIELD, INC.,
Plaintiff,
against. AFFIDAVIT IN SUPPORT OF
APPLICATION FOR
LAWRENCE TANNENBAUM,
Defendant,
STATE OF NEW YORK )
COUNTY OF NEW YORK )
GEORGE GONZALEZ, being duly sworn, deposes and says:
1. I am the Operations Director for the New York City office of Plaintiff Cushman &
Wakefield, Inc. (“CW”), I submit this Affidavit in Support of Plaintiff CW’s application for a
default judgment against Defendant Lawrence Tannenbaum ‘under CPLR §3215(a) in the
principal amount of $692,448.32, plus costs and disbursements aggregating $505.00, lawful
interest om January 26, 2012, including, but not limited to, $237,685.26 in pre-judgment
interest from January 26, 2012 to April 23, 2018 and post-judgment interest at a rate of 9 percent
per annum upon entry of the requested default judgment, and such other, further, and different
telief as seems just and equitable.
2. In mycapacit
as the Operations
y Director for the New York City office of Plaintiff CW,
my job responsibilities include: reviewing revenue, commissions, and expenses of Plaintiff CW’s
New York City office. 1 also deal heavily with CW brokers operating in the New York City
office.
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3, The contents of this Affidavit are based on my own personal knowledge and reviewof
CW’s records maintained in the regular course of business regarding Defendant Lawrence
Tannenbaum.
THE AGREEMENTS ENTERED INTO BETWEEN THE PARTIES
4. On or about February 9, 2009, Defendant Tannenbaum entered into a written Section
3508 Broker-Salesperson Agreement with Plaintiff CW, a copy of which is annexed as Exfibit
A. On the same date, the parties executed a Rider to the Section 3508 Broker-Salesperson
Agreement, which is annexed as Exhibit B. Under the terms and conditions of the Section 3508
Broker-Salesperson Agreement and the Rider, Defendant Tannenbaum agreed to serve as a real
estate broker in Plaintiff CW’s New York Midtown office.
5. On or about February 9, 2009, Defendant Tannenbaum executed a Drawing Account
Rider which states, in part: “[d]uring the period from February 9, 2009 to February 8, 2012,
[CW] shail: (1) provide you with a guaranteed draw
at the rate of $35,000
per annum, payablein
equal semi-monthly installments of $1,458.33 (less withholdings, if appropriate) (the
“Guaranteed Draw”) and (2) make advances to you of (i) during the period from February 9,
2009 to February 8, 2010, $465,000, payable in equal semi-monthly installments of $19,375 (less
withholdings, if appropriate), (ii) during the period ftom February 9, 2010 to February 8, 2011,
$365,000, payable in equal semi-monthly installments of $15,208.33 (less withholdings, if
appropriate), (iii) during the period from February 9, 2011 to February 8, 2012, $265,000,
payable in equal scmi-monthly installments of $11,041.67 (less withholdings, if appropriate),
(@, (ii) and (ii) collectively, the “Recourse Draw") (“Guaranteed Draw” and the “Recourse
Draw”, collectively the “Draw’).” ‘The Drawing Account Rider farther states “AMOUNTS
ADVANCED TO [TANNENBAUM] AS RECOURSE DRAW PAYMENTS ARE LOANS TO
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BE REPAID TO [CW] UPON DEMAND.” Additionally, the Drawing Account Rider provides
that, “[iJf [Tannenbaum] fail[s) to repay [CW] the Recourse Draw as provided herein and [Cw]
refers the collection of the unpaid amounts to legal counsel, [Tannenbaum] shall reimburse [cw]
for all reasonable costs and attorneys’ fees thereby incurred,” A copy of the Drawing Account
Rider is annexed as Exhibit C.
6. Also on or about February 9, 2009, Defendant Tannenbaum executed a promissory note
which states, in part: “I, Lawrence Tannenbaum, promise to pay to the order of [CW], upon
termination of my engagement with [CW] the sum of $1,095,000.00 or so much thereof as may
be advanced to me and remaisi outstanding hereunder.” The promissory note also states that
Tannenbaum “waive[s) demand, presentment, notice of non-payment and protest” and that he
“agree[s] to pay all costs incurred by [CW] in collecting amounts due hereunder, including
reasonable attorneys” fees and court costs, together with interest on the unpaid principal amount”
and “reaffirm[s] [his] promise to pay all outstanding amounts owed pursuant to any other
promissory note(s) (he has] issued to [CW].” Also, the promissory note permits “interest on the
unpaid principal amount from the date of default to the date of repayment at the fluctuating
annual interest rate equal to 2% above the prime commercial lending rate of the Bank of New
York as publicly announced to be in effect from time to time.” A copy of the Promissory
Note
executed
by Defendant Tannenbaum for the benefit of Plaintiff CW is annexed as ExhibitD.
7, On or about January 16, 2011, Defendant Tannenbaum executed an amendment that,
among other things, madified the terms of his Guaranteed Draw to be issued by Plaintiff CW. A
copy of the parties’ contract amendment is annexed as ExhibitE.
8. The Section 3508 Broker Agreement, Rider, Drawing Account Rider, promissory note,
and any amendments thereto, are collectively referred to as the “Agreements.”
4815-354-3938.1.
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DEFENDANT TANNE
AGREEMEN
NEA’ TS
UM HAS
WITH BREA
PLAN
CHED
TS es OF IS
AGREEMENTS WITH PLAINTIFF CW
9. During his engagement as a real estate broker with Plaintiff CW, Defendant Tannenbaum
received his draw, which was paidin semi-monthly installments under the Agreements, whichhe
promised to repay upon termination of his engagement.
10, Defendant Tannenbaum’s engagement with CW ended on or about January 26, 2012
11. Since the termination of his engagement, Defendant Tannenbaum has failed and/or
tefused to repay the sums he was contractually obligated to repay to Plaintiff CW under the
terms and conditions of the Agreements.
12. Defendant Tannenbaum owes Plaintiff CW $692,448.32 as a principal obligation under
the Agreements. That balance, together with interest that has accrued (and continues to accrue) in
accordance with the terms of the Agreements, remains
due and owing.
13, Copies of a Deficit Broker Calculation Template and a Deficit Broker Calculation Report
maintained by Plaintiff CW in the ordinary course of business, which calculates the principal
sum of $692,448.32 owed by Defendant Tannenbaum, are annexed as Exhibit F.
14, Regarding interest under the promissory note, the following table calculates the
$237,685.26 in pre-judgment interest owed by Defendant Tannenbaum from January 26, 2012to
April 23, 2018:
ate BNYCER + 2% | Days | Untereat
|Commercial Lending Rate LCBNECLRY |
1/26/12 to 12/1 1,421 | $141,529.
[i2ni7s to 12/4/16 | ss ee 3 $37,920.316'
| 12/15/16 to 3/15/17 | $9,926.6'
“NGA to 6/14/17_| 4.00 6.00 3 $10,358.
6AS/7toa 123/17 4.25 6.25 182 $21,579,725_|
12/14/17to 372118 4.50 6.50 98 $12,084,646_|
Lae asa TTT 4.75 6.75 ts $4,275.63187 | (°) 7,° (er
- Vee 500 Total: 5237,685.26 54 2.4
— 2dq SAS 7.00 ge
7.29 th
1tf{z > 4 lileg 47° ——e im,
7.3°
“x
4815-3804-3938.1
789"
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415, Plaintiff CW has complied with
all terms of the Agreements, and is entitled to full payment
of all obligations and monies due Plaintiff CW pursuant to the tems of the Agreements.
che
GEO!
Syop day to. ‘ore
July 291
me
“SY
NOTARY PUBLIC
tt +
er
ROCHELLE CRUZ
NOTARY PUBLIC-STATE OF NEW YORK
No. 01686066020
Qualified in Bronx County
My Commission Expires March 03, 2019
4815-3504.3938.)
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ictep °CNEW YORK COUNTY CLERK 04/05/2019
NYSCEF DOC. NO. 80 RECEIVED NYSCE 04/05/2019
EEShe
Fine
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK - CIVIL TERM ~ PART 91
wt ee ee en ee anna. ee X
CUSHMAN & WAKEFIELD, INC.,
Plaintiff,
~against-
LAWRENCE TANNENBAUM,
Defendant.
awe wn nn ee ee ee
Index No. 650383/18 60 Centre Street
INQUEST New York, N.Y
April 2, 2019
10 BEFORE
11 HONORABLE CHARLES E,. RAMOS
Judicial Hearing Officer
12
13 AP PEARANCES
14 PARSONS McENTIRE McCLEARY PLLC
Attorneys for the Plaintiff
15 1700 Pacific Avenue, Suite 4400
Dallas, Texas 75201
16 BY TIMOTHY J. MILLER, ESQ.
- and -
17 LEWIS BRISBOIS BISGAARD & SMITH LLP
Attorneys for the Plaintiff
18 77 Water Street, Suite 2100
New York, N.Y 10005
19 BY JOHN A. ANSELMO, ESQ.
20
21 (No appearance by or on behalf of defendant)
22
23
24 ALAN F. BOWIN, CSR, RMR, CRR
Official Court Reporter
25
ALAN F, BOWIN, CSR, RMR, CRR
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RECEIVED NYSCEF: 04/05/2019
NYSCEF DOC. NO. 80
Proceedings
THE COURT; Mr. Miller, it's your witness.
oh. First of all, Mr. Gonzalez (indicating) is
going to be our witness correct?
Mr. Gonzalez, please raise your right hand.
(Mr. Gonzalez complied.)
GEORGE GONZALE4&@Z, called as a witness by the
plaintiff, having been first duly sworn by the Judicial Hearing
Officer; was examined and testified as follows:
THE COURT: State your full name and address for
10 the court reporter.
11 THE WITNESS: George Gonzalez, and it's going to be
12 my ~~ my -~
13 THE COURT: Your business address is fine.
14 THE WITNESS: Okay. 1290 Avenue of the Americas,
15 New York, New York 10104.
16 THE COURT: Mr. Miller, it's your witness.
17 MR. MILLER: Your Honor, Tim Miller, here on behalf
18 of Cushman & Wakefield, the plaintiff in this matter.
19 I would like the Court to take judicial notice of
20 the entry of default that was entered on January 15th of
21 2019; of this year.
22 I'd also like the Court to take notice that we have
23 given the Defendant, Mr. Lawrence Tannenbaum, notice of
24 today's proceedings -- the hearing today, on April 2nd,
25 2019 -~- which he has not responded to; as well as the entry
ALAN F. BOWIN, CSR, RMR, CRR
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Proceedings
of default we have served him with, as well.
THE COURT: And you folks have not received any
communication’
from him at all; is that correct?
MR. MILLER: That's correct.
MR. ANSELMO: That's correct.
MR. MILLER: Your Honor, also, I offer into
evidence the affidavit, or the affirmation in support of
motion seeking relief, which was offered by Jonathan
Berkowitz, an attorney in this matter, with supporting
10 affidavits specifically regarding the attorneys' fees sought
11 in this amount ~- in this court -~ and I offer that as
12 Exhibit i.
13 THE COURT: Accepted as Exhibit 1.
14 For the record, I'm marking my own copies; there's
15 no need to have them officially marked, since this is an
16 inquest.
17 MR. MILLER: All right
18 Your Honor, I also offer the affidavit in support
19 of the application for default judgment, which was signed by
20 George Gonzalez; I offer that as Exhibit 2.
21 THE COURT: And that in addition to the motion
22 papers that I have; correct?
23 MR. MILLER: I
24 MR. ANSELMO: Correct.
25 MR. MILLER: Yes. It was offered with the
ALAN F. BOWIN, CSR, RMR, CRR
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Gonzalez - by Plaintiff - Direct/Miller
application for default, as well.
THE COURT: And it is dated...?
"The 6th day of July 2018."
MR. MILLER: Correct.
THE COURT: It's in the motion papers, also; the
same one.
MR. MILLER: Yeah.
THE COURT: Yes, it is. Okay.
MR. ANSELMO: I believe they were filed separately,
10 your Honor; the motion with all the documentation, and then
11 the affidavit of Mr. Gonzalez with his exhibits.
12 THE COURT: Right.
13 MR, ANSELMO: They were e-filed separately, so
14 that's why they're separated.
15 THE COURT: Okay.
16 Ready?
17 MR. MILLER: Your Honor, I also call George
18 Gonzalez, who is on Exhibit 2, the affidavit in support of
19 the default judgment and these attached exhibits-
20 DIRECT EXAMINATION
21 BY MR. GONZALEZ:
22 Q Mr. Gonzalez, you are employed for Cushman & Wakefield,
23 the plaintiff in this matter; correct?
24 A Yes.
25 Q And what is your position at Cushman & Wakefield?
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Gonzalez by Plaintiff - Direct/Miller
A I'm an Operations Director for the New York office
Q And generally, what are your responsibilities as
Operations Director?
A I deal with the brokers and handling the -- the revenue
that's being recorded for our office, as well as commission
expense and -- and other operating expenses.
Q And before you were Operations Director, what field did
you work for, for Cushman & Wakefield?
A I worked in our Commission Accounting Group within our
10 Finance Department.
11 Q Great. And we're here today on a breach of contract
12 claim against the Defendant, Mr. Lawrence Tannenbaum; is that
13 correct?
14 A Yes.
15 Q And you reviewed your affidavit that’s been submitted
16 in this matter?
17 A Yes
18 Q And you've reviewed all the pleadings and all the
19 claims against Mr. Tannenbaum; correct?
20 A Yes.
21 Q And you're familiar with all the agreements and the
22 commissions agreements and the calculations of his deficit which
23 we are here for today; correct?
24 A Yes.
25 Q And it's correct that the Defendant, Mr- Lawrence
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Gonzalez ~ by Plaintiff - Direct/Miller
Tannenbaum ~~ he was a real estate broker for Cushman &
Wakefield --
THE COURT: Hold on, please.
(Pause. )
THE COURT: On the record.
Please continue.
Q Mr. Gonzalez, isn't it correct that the Defendant,
Mr Lawrence Tannenbaum -- he was a real estate broker for
Cushman & Wakefield from approximately February ~- under the
10 agreement that we're here today on, he was a real estate broker
11 from approximately February 9th, 2009 until January 26th of
12 2012; is that correct?
13 A Yes.
14 Q And in becoming a real estate broker for Cushman &
15 Wakefield, you entered into the parties entered into --
16 various contracts, agreeing to his commissions and his
17 agreement -- and his advances on his commissions that would be
18 his compensation; correct?
19 A Yes,
20 Q And generally, under those agreements, he agreed to
21 take advances and repay certain portions of those advances if
22 his commissions didn't match those advances; correct?
23 A
Preview
D: YORK OUN PK O04 :0 AN INDEX NO. 650383/2018 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 04/11/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. Ch Sel TARLES E, RAMAS PRESENT: part_ WR ee Index Number : 650383/2018 CUSHMAN & WAKEFIELD, INC. INDEX NO. vs. MOTION DATE TANNENBAUM, LAWRENCE c_¢ we SEQUENCE NUMBER : 003 Et Rae " Z a MOTION SEQ. NO. HEAR AND DETERMINE The following papers, numbered 1 to , Were read on this motion to/for Notice of Motion/Order to Show Cause — Affidavits — Exhibits [ No(s). Answering Affidavits — Exhibits [Nojs). Replying Affidavits J Nojs). Upon the foregoing papers, it is ordered that this motion to hear and determine is granted as set forth in the transcript dated April2, 2019, “So Ordered” April 9, 2019. The clerk is hereby directed to enter judgement. cy pated: _ 4/7 li 4 ie JS.C, 1. CHECK ONE: uu... hase DISPOSED |] NON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE: sneeanee (C)DENIED [IGRANTED IN PART MOTION IS: (_) GRANTED COTHER 3. CHECK IF APPROPRIATE: ....... . [JSETTLE ORDER C) suBMit ORDER C1Do not Post (CIFIDUCIARY APPOINTMENT REFERENCE 1 of 37 YO OUN PK O04 AW INDEX NO. 650383/2018 NYSCEF Doc. NO. 81 RECEIVED NYSCEF: 04/11/2019 E-FILE SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK eee aX Index No.: 650383/18 CUSHMAN & WAKEFIELD, INC., Plaintiff, -against- DEFAULT JUDGMENT LAWRENCE TANNENBAUM, Defendant. o: X Plaintiff CUSHMAN & WAKEFIELD, INC. (“Cushman & Wakefield”), by LEWIS BRISBOIS BISGAARD & SMITH LLP, its attorneys in the above-caption, having moved for a default judgment under CPLR §3215 based upon the failure of Defendant LAWRENCE TANNENBAUM (“Tannenbaum”) to answer or appear or otherwise defend in this action; and Plaintiff Cushman & Wakefield having submitted all necessary proof of service of the summons and complaint and proof the motion upon Defendant Lawrence Tannenbaum; and UPON the Affirmation in Support of Jonathan L. Berkowitz, Esq., affirmed the 18" day of July 2018 and the exhibits annexed thereto; the Affidavit of George Gonzalez, sworn to the 6” day of July 2018, and the exhibits annexed thereto, which were served and filed by Plaintiff Cushman & Wakefield; the entry of default in this matter having been duly ordered, adjudged and entered herein on the 23rd day of January 2019; and the order and notice of entry having been served on Defendant Lawrence Tannenbaum; and the JHO/Special Referee having taken proof of Plaintiff Cushman & Wakefield’s damages, and having made his report where he finds and assesses Plaintiff Cushman & Wakefield’s damages in the principal amount of $692,448.32, plus pre-judgment interest from January 26, 2012 in the amount of $283,955.98, plus reasonable attorneys’ fees in the sum of $3,213.00, plus reasonable costs and disbursements in the sum of 2 of 37 YO OUN PK O04 AW INDEX NO. 650383/2018 NYSCEF Doc. NO. 81 RECEIVED NYSCEF: 04/11/2019 $550.00; for a total sum amount of $980,167.30, with post-judgment interest at a rate of 9 percent per annum upon entry of the default judgment, NOW on the motion of LEWIS BRISBOIS BISGAARD & SMITH LLP, attorneys for Plaintiff Cushman & Wakefield, it is hereby ORDERED and ADJUDGED that Plaintiff Cushman & Wakefield has judgment by default against Defendant Lawrence Tannenbaum, having his primary residence at 300 East 74" Street, Apartment 22G, New York, New York 10021, pursuant to CPLR §3215 and that Plaintiff Cushman & Wakefield do recover from Defendant Lawrence Tannenbaum, in the principal amount of $692,448.32, plus pre-judgment interest from January 26, 2012 in the amount of $283,955.98, plus reasonable attorneys’ fees in the amount of $3,213.00, plus reasonable costs and disbursements in the amount of $550.00; for a total sum amount of $980,167.30, and post- judgment interest at a rate of nine-percent (9%) per annum upon entry of the default judgment; and that Plaintiff Cushman & Wakefield have execution therefor; and it is further ORDERED and ADJUDGED that a copy of this Default Judgment shall be filed with the Clerk of the Supreme Court of the State of New York, County of New York. AV f/ell9 Judgment Entered day of. »2019 safe "Clerk of Court 3 of 37 YORK OUN PK O04 AW INDEX NO. 650383/2018 NYSCEF Doc. NO. 81 RECEIVED NYSCEF: 04/11/2019 E-FILE SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index No.: 650383/18 CUSHMAN & WAKEFIELD, INC., Plaintiff, against. AFFIDAVIT IN SUPPORT OF APPLICATION FOR LAWRENCE TANNENBAUM, Defendant, STATE OF NEW YORK ) COUNTY OF NEW YORK ) GEORGE GONZALEZ, being duly sworn, deposes and says: 1. I am the Operations Director for the New York City office of Plaintiff Cushman & Wakefield, Inc. (“CW”), I submit this Affidavit in Support of Plaintiff CW’s application for a default judgment against Defendant Lawrence Tannenbaum ‘under CPLR §3215(a) in the principal amount of $692,448.32, plus costs and disbursements aggregating $505.00, lawful interest om January 26, 2012, including, but not limited to, $237,685.26 in pre-judgment interest from January 26, 2012 to April 23, 2018 and post-judgment interest at a rate of 9 percent per annum upon entry of the requested default judgment, and such other, further, and different telief as seems just and equitable. 2. In mycapacit as the Operations y Director for the New York City office of Plaintiff CW, my job responsibilities include: reviewing revenue, commissions, and expenses of Plaintiff CW’s New York City office. 1 also deal heavily with CW brokers operating in the New York City office. 4815-3504-3938.1 Toeans Nea NOX, 4 of 37 D YO OUN PK O04 AW INDEX NO. 650383/2018 NYSCEF Doc. NO. 81 RECEIVED NYSCEF: 04/11/2019 3, The contents of this Affidavit are based on my own personal knowledge and reviewof CW’s records maintained in the regular course of business regarding Defendant Lawrence Tannenbaum. THE AGREEMENTS ENTERED INTO BETWEEN THE PARTIES 4. On or about February 9, 2009, Defendant Tannenbaum entered into a written Section 3508 Broker-Salesperson Agreement with Plaintiff CW, a copy of which is annexed as Exfibit A. On the same date, the parties executed a Rider to the Section 3508 Broker-Salesperson Agreement, which is annexed as Exhibit B. Under the terms and conditions of the Section 3508 Broker-Salesperson Agreement and the Rider, Defendant Tannenbaum agreed to serve as a real estate broker in Plaintiff CW’s New York Midtown office. 5. On or about February 9, 2009, Defendant Tannenbaum executed a Drawing Account Rider which states, in part: “[d]uring the period from February 9, 2009 to February 8, 2012, [CW] shail: (1) provide you with a guaranteed draw at the rate of $35,000 per annum, payablein equal semi-monthly installments of $1,458.33 (less withholdings, if appropriate) (the “Guaranteed Draw”) and (2) make advances to you of (i) during the period from February 9, 2009 to February 8, 2010, $465,000, payable in equal semi-monthly installments of $19,375 (less withholdings, if appropriate), (ii) during the period ftom February 9, 2010 to February 8, 2011, $365,000, payable in equal semi-monthly installments of $15,208.33 (less withholdings, if appropriate), (iii) during the period from February 9, 2011 to February 8, 2012, $265,000, payable in equal scmi-monthly installments of $11,041.67 (less withholdings, if appropriate), (@, (ii) and (ii) collectively, the “Recourse Draw") (“Guaranteed Draw” and the “Recourse Draw”, collectively the “Draw’).” ‘The Drawing Account Rider farther states “AMOUNTS ADVANCED TO [TANNENBAUM] AS RECOURSE DRAW PAYMENTS ARE LOANS TO 4815-3504-3938.1 5 of 37 YO OUN PK O04 AW INDEX NO. 650383/2018 NYSCEF Doc. NO. 81 RECEIVED NYSCEF: 04/11/2019 BE REPAID TO [CW] UPON DEMAND.” Additionally, the Drawing Account Rider provides that, “[iJf [Tannenbaum] fail[s) to repay [CW] the Recourse Draw as provided herein and [Cw] refers the collection of the unpaid amounts to legal counsel, [Tannenbaum] shall reimburse [cw] for all reasonable costs and attorneys’ fees thereby incurred,” A copy of the Drawing Account Rider is annexed as Exhibit C. 6. Also on or about February 9, 2009, Defendant Tannenbaum executed a promissory note which states, in part: “I, Lawrence Tannenbaum, promise to pay to the order of [CW], upon termination of my engagement with [CW] the sum of $1,095,000.00 or so much thereof as may be advanced to me and remaisi outstanding hereunder.” The promissory note also states that Tannenbaum “waive[s) demand, presentment, notice of non-payment and protest” and that he “agree[s] to pay all costs incurred by [CW] in collecting amounts due hereunder, including reasonable attorneys” fees and court costs, together with interest on the unpaid principal amount” and “reaffirm[s] [his] promise to pay all outstanding amounts owed pursuant to any other promissory note(s) (he has] issued to [CW].” Also, the promissory note permits “interest on the unpaid principal amount from the date of default to the date of repayment at the fluctuating annual interest rate equal to 2% above the prime commercial lending rate of the Bank of New York as publicly announced to be in effect from time to time.” A copy of the Promissory Note executed by Defendant Tannenbaum for the benefit of Plaintiff CW is annexed as ExhibitD. 7, On or about January 16, 2011, Defendant Tannenbaum executed an amendment that, among other things, madified the terms of his Guaranteed Draw to be issued by Plaintiff CW. A copy of the parties’ contract amendment is annexed as ExhibitE. 8. The Section 3508 Broker Agreement, Rider, Drawing Account Rider, promissory note, and any amendments thereto, are collectively referred to as the “Agreements.” 4815-354-3938.1. 6 of 37 YO OUN PK O04 AW INDEX NO. 650383/2018 NYSCEF Doc. NO. 81 RECEIVED NYSCEF: 04/11/2019 DEFENDANT TANNE AGREEMEN NEA’ TS UM HAS WITH BREA PLAN CHED TS es OF IS AGREEMENTS WITH PLAINTIFF CW 9. During his engagement as a real estate broker with Plaintiff CW, Defendant Tannenbaum received his draw, which was paidin semi-monthly installments under the Agreements, whichhe promised to repay upon termination of his engagement. 10, Defendant Tannenbaum’s engagement with CW ended on or about January 26, 2012 11. Since the termination of his engagement, Defendant Tannenbaum has failed and/or tefused to repay the sums he was contractually obligated to repay to Plaintiff CW under the terms and conditions of the Agreements. 12. Defendant Tannenbaum owes Plaintiff CW $692,448.32 as a principal obligation under the Agreements. That balance, together with interest that has accrued (and continues to accrue) in accordance with the terms of the Agreements, remains due and owing. 13, Copies of a Deficit Broker Calculation Template and a Deficit Broker Calculation Report maintained by Plaintiff CW in the ordinary course of business, which calculates the principal sum of $692,448.32 owed by Defendant Tannenbaum, are annexed as Exhibit F. 14, Regarding interest under the promissory note, the following table calculates the $237,685.26 in pre-judgment interest owed by Defendant Tannenbaum from January 26, 2012to April 23, 2018: ate BNYCER + 2% | Days | Untereat |Commercial Lending Rate LCBNECLRY | 1/26/12 to 12/1 1,421 | $141,529. [i2ni7s to 12/4/16 | ss ee 3 $37,920.316' | 12/15/16 to 3/15/17 | $9,926.6' “NGA to 6/14/17_| 4.00 6.00 3 $10,358. 6AS/7toa 123/17 4.25 6.25 182 $21,579,725_| 12/14/17to 372118 4.50 6.50 98 $12,084,646_| Lae asa TTT 4.75 6.75 ts $4,275.63187 | (°) 7,° (er - Vee 500 Total: 5237,685.26 54 2.4 — 2dq SAS 7.00 ge 7.29 th 1tf{z > 4 lileg 47° ——e im, 7.3° “x 4815-3804-3938.1 789" 7 of 37 D: YORK OUN PK 04 :0 AW INDEX NO. 650383/2018 NYSCEF DOC. NO. 81 RECEIVED NYSCEF 04/11/2019 415, Plaintiff CW has complied with all terms of the Agreements, and is entitled to full payment of all obligations and monies due Plaintiff CW pursuant to the tems of the Agreements. che GEO! Syop day to. ‘ore July 291 me “SY NOTARY PUBLIC tt + er ROCHELLE CRUZ NOTARY PUBLIC-STATE OF NEW YORK No. 01686066020 Qualified in Bronx County My Commission Expires March 03, 2019 4815-3504.3938.) 8 of 37 YORK OUN PK O04 AN INDEX NO. 650383/2018 D: :0 04:06 PM RECEIVED NYSCEFG3 ®4/1142019 ictep °CNEW YORK COUNTY CLERK 04/05/2019 NYSCEF DOC. NO. 80 RECEIVED NYSCE 04/05/2019 EEShe Fine SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - CIVIL TERM ~ PART 91 wt ee ee en ee anna. ee X CUSHMAN & WAKEFIELD, INC., Plaintiff, ~against- LAWRENCE TANNENBAUM, Defendant. awe wn nn ee ee ee Index No. 650383/18 60 Centre Street INQUEST New York, N.Y April 2, 2019 10 BEFORE 11 HONORABLE CHARLES E,. RAMOS Judicial Hearing Officer 12 13 AP PEARANCES 14 PARSONS McENTIRE McCLEARY PLLC Attorneys for the Plaintiff 15 1700 Pacific Avenue, Suite 4400 Dallas, Texas 75201 16 BY TIMOTHY J. MILLER, ESQ. - and - 17 LEWIS BRISBOIS BISGAARD & SMITH LLP Attorneys for the Plaintiff 18 77 Water Street, Suite 2100 New York, N.Y 10005 19 BY JOHN A. ANSELMO, ESQ. 20 21 (No appearance by or on behalf of defendant) 22 23 24 ALAN F. BOWIN, CSR, RMR, CRR Official Court Reporter 25 ALAN F, BOWIN, CSR, RMR, CRR 1 of 29 9 of 37 YORK OUN PK O04 AN INDEX NO. 650383/2018 D: :0 CLERK 0470572019 04:06 PM RECEDVED NYSCEF9364/49/2019 FEED? wi YORK COUNTY RECEIVED NYSCEF: 04/05/2019 NYSCEF DOC. NO. 80 Proceedings THE COURT; Mr. Miller, it's your witness. oh. First of all, Mr. Gonzalez (indicating) is going to be our witness correct? Mr. Gonzalez, please raise your right hand. (Mr. Gonzalez complied.) GEORGE GONZALE4&@Z, called as a witness by the plaintiff, having been first duly sworn by the Judicial Hearing Officer; was examined and testified as follows: THE COURT: State your full name and address for 10 the court reporter. 11 THE WITNESS: George Gonzalez, and it's going to be 12 my ~~ my -~ 13 THE COURT: Your business address is fine. 14 THE WITNESS: Okay. 1290 Avenue of the Americas, 15 New York, New York 10104. 16 THE COURT: Mr. Miller, it's your witness. 17 MR. MILLER: Your Honor, Tim Miller, here on behalf 18 of Cushman & Wakefield, the plaintiff in this matter. 19 I would like the Court to take judicial notice of 20 the entry of default that was entered on January 15th of 21 2019; of this year. 22 I'd also like the Court to take notice that we have 23 given the Defendant, Mr. Lawrence Tannenbaum, notice of 24 today's proceedings -- the hearing today, on April 2nd, 25 2019 -~- which he has not responded to; as well as the entry ALAN F. BOWIN, CSR, RMR, CRR 2 of 29 10 of 37 YORK OUN PK O04 AW INDEX NO. 650383/2018 D: :0 RECEIVED: NYSCEF 93604/49/2019 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 04/05/2019 Proceedings of default we have served him with, as well. THE COURT: And you folks have not received any communication’ from him at all; is that correct? MR. MILLER: That's correct. MR. ANSELMO: That's correct. MR. MILLER: Your Honor, also, I offer into evidence the affidavit, or the affirmation in support of motion seeking relief, which was offered by Jonathan Berkowitz, an attorney in this matter, with supporting 10 affidavits specifically regarding the attorneys' fees sought 11 in this amount ~- in this court -~ and I offer that as 12 Exhibit i. 13 THE COURT: Accepted as Exhibit 1. 14 For the record, I'm marking my own copies; there's 15 no need to have them officially marked, since this is an 16 inquest. 17 MR. MILLER: All right 18 Your Honor, I also offer the affidavit in support 19 of the application for default judgment, which was signed by 20 George Gonzalez; I offer that as Exhibit 2. 21 THE COURT: And that in addition to the motion 22 papers that I have; correct? 23 MR. MILLER: I 24 MR. ANSELMO: Correct. 25 MR. MILLER: Yes. It was offered with the ALAN F. BOWIN, CSR, RMR, CRR 3 of 29 11 of 37 YORK OUN PK O04 AN INDEX NO. 650383/2018 D: :0 N RECEEMBBx NYSCE45:0294/2072019 IRK_ COUNTY CLERK 04/05/2019 04:06 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 04/05/2019 Gonzalez - by Plaintiff - Direct/Miller application for default, as well. THE COURT: And it is dated...? "The 6th day of July 2018." MR. MILLER: Correct. THE COURT: It's in the motion papers, also; the same one. MR. MILLER: Yeah. THE COURT: Yes, it is. Okay. MR. ANSELMO: I believe they were filed separately, 10 your Honor; the motion with all the documentation, and then 11 the affidavit of Mr. Gonzalez with his exhibits. 12 THE COURT: Right. 13 MR, ANSELMO: They were e-filed separately, so 14 that's why they're separated. 15 THE COURT: Okay. 16 Ready? 17 MR. MILLER: Your Honor, I also call George 18 Gonzalez, who is on Exhibit 2, the affidavit in support of 19 the default judgment and these attached exhibits- 20 DIRECT EXAMINATION 21 BY MR. GONZALEZ: 22 Q Mr. Gonzalez, you are employed for Cushman & Wakefield, 23 the plaintiff in this matter; correct? 24 A Yes. 25 Q And what is your position at Cushman & Wakefield? ALAN F, BOWIN, CSR, RMR, CRR 4 of 29 12 of 37 D: YORK OUN PK O04 0 :0 AN INDEX NO. 650383/2018 84 RECELVED NYSCEBD304/1472019 NPT ED? ORK COUNTY CLERK 04/05 2019 04:08 PM) NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 04/05/2019 Gonzalez by Plaintiff - Direct/Miller A I'm an Operations Director for the New York office Q And generally, what are your responsibilities as Operations Director? A I deal with the brokers and handling the -- the revenue that's being recorded for our office, as well as commission expense and -- and other operating expenses. Q And before you were Operations Director, what field did you work for, for Cushman & Wakefield? A I worked in our Commission Accounting Group within our 10 Finance Department. 11 Q Great. And we're here today on a breach of contract 12 claim against the Defendant, Mr. Lawrence Tannenbaum; is that 13 correct? 14 A Yes. 15 Q And you reviewed your affidavit that’s been submitted 16 in this matter? 17 A Yes 18 Q And you've reviewed all the pleadings and all the 19 claims against Mr. Tannenbaum; correct? 20 A Yes. 21 Q And you're familiar with all the agreements and the 22 commissions agreements and the calculations of his deficit which 23 we are here for today; correct? 24 A Yes. 25 Q And it's correct that the Defendant, Mr- Lawrence ALAN F, BOWIN, CSR, RMR, CRR 5 of 29 13 of 37 D: YORK OUN PK O04 :0 AN INDEX NO. 650383/2018 RECEIMEEX NXSCEE 0304/40 72019 FILED : ORK COUNTY CLERK 04/05/2019 oar 06 PM) NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 04/05/2019 Gonzalez ~ by Plaintiff - Direct/Miller Tannenbaum ~~ he was a real estate broker for Cushman & Wakefield -- THE COURT: Hold on, please. (Pause. ) THE COURT: On the record. Please continue. Q Mr. Gonzalez, isn't it correct that the Defendant, Mr Lawrence Tannenbaum -- he was a real estate broker for Cushman & Wakefield from approximately February ~- under the 10 agreement that we're here today on, he was a real estate broker 11 from approximately February 9th, 2009 until January 26th of 12 2012; is that correct? 13 A Yes. 14 Q And in becoming a real estate broker for Cushman & 15 Wakefield, you entered into the parties entered into -- 16 various contracts, agreeing to his commissions and his 17 agreement -- and his advances on his commissions that would be 18 his compensation; correct? 19 A Yes, 20 Q And generally, under those agreements, he agreed to 21 take advances and repay certain portions of those advances if 22 his commissions didn't match those advances; correct? 23 A