Preview
FILED: NEW YORK COUNTY CLERK 12/18/2017 12:51 PM INDEX NO. 652947/2017
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 12/18/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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MODESO LLC d/b/a RAPID FUNDS,
Index No. 652947/17
Plaintiff, AFFIRMATION IN SUPPORT
OF PLAINTIFF'S MOTION
- against -
FOR DEFAULT JUDGMENT
TODD BRANTLEY TURNER a/k/a TODD B. TURNER,
Individually and d/b/a THE TURNER FIRM,
Defendant.
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CHRISTINE HANSEN, an attorney duly admitted to practice before the Courts of the
State of New York, affirms the following under the penalties of perjury:
1. I am associated with the law firm of Borges 2 Associates, LLC, attorneys for the
"Plaintiff'
Plaintiff, MODESO LLC d/b/a RAPID FUNDS (hereinafter "Plaintiff"), and as such I am fully
familiar with the proceedings heretofore had herein. The source of my knowledge is my review
attorneys'
of the file maintained by Plaintiff's office and conversations had with the Plaintiff.
2. The instant affirmation is submitted in support of the Plaintiff's motion for an
Order directing entry of a default judgment in this matter against the defendant, TODD
BRANTLEY TURNER a/k/a TODD B. TURNER, Individually and d/b/a THE TURNER FIRM
"Defendant"
(hereinafter the "Defendant"), pursuant to CPLR §3215 on the grounds that the Plaintiff has a
meritorious cause of action, there are no defenses to this action, and Defendant are in default by
failing to answer the Complaint or otherwise appear in this matter.
3. The instant causes of action were brought to recover monies owed to Plaintiff by
Defendant totaling $41,844.62, arising from Plaintiff's purchase of certain assets from the
Defendant, to wit: (a) Assignment amount of $27,884.81 pursuant to an Assignment Agreement
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executed on September 11, 2015, plus interest running thereon from September 6, 2016; and (b)
Assignment amount of $13,959.81 pursuant to an Assignment Agreement executed on
November 4, 2015, plus interest running thereon from October 31, 2016.
PROCEDURAL HISTORY
4. On June 3, 2017, Plaintiff commenced the instant causes of action against
Defendant by serving the Summons and Verified Complaint upon a person of suitable age and
discretion, specifically Mr. Zach Bruback, at the dwelling place and usual place of abode of
Defendant located at 2728 Cedar Springs Road, Dallas Texas, 75201. Mr. Bruback, as concierge
of the building, confirmed that the Defendant resides at that location in unit # 404. Additionally,
a copy of the Summons and Complaint was mailed to the above-referenced address as well as the
last known mailing address of PO Box 100696, Fort Worth, Texas 76185. True copies of the
"1."
Summons, Verified Complaint and exhibits are collectively annexed hereto as Exhibit
5. Pursuant to CPLR §3215(g)(3)(i), on June 9, 2017, an additional copy of the
Summons and Verified Complaint were sent to Defendant at both last known addresses of the
Defendant, 2728 Cedar Springs Road, Dallas Texas, 75201 and PO Box 100696, Fort Worth,
Texas 76185. True copies of the affidavits of service and mailing are collectively annexed
"2."
hereto as Exhibit
6. To date, no Answer, response, or other appearance has ever been interposed by
the Defendant and as such the Defendant is in default.
7. On July 7, 2017, Plaintiff submitted a default judgment to the Clerk of the Court
for entry against the Defendant. On August 24, 2017 the judgment was rejected by the Clerk with
direction to file a motion for default judgment in this case. As such, the within application is
being submitted to the Court.
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ARGUMENTS
8. The Defendant is in default in the instant matter for failing to answer the
Plaintiff's Summons and Verified Complaint.
9. CPLR §3012(a) provides that "service of an answer or reply shall be made within
responds."
twenty days after service of the pleading to which it
10. Plaintiff served the Summons and Verified Complaint upon Defendant on June 3,
2017 with additional mailing on June 9, 2017. No answer or other responsive pleading has been
filed and served by the Defendant and significantly more than twenty (20) days has elapsed since
the date of service.
11. The time within which Defendant must answer and appear has long since expired.
It isapparent that the Defendant has willfully and deliberately failed to make an appearance and
defend those claims asserted by Plaintiff and, therefore, has defaulted.
12. Despite our efforts to obtain a Verified Answer from the Defendant, a Verified
Answer has not been interposed. Hence, the time within which Defendant must appear and
answer has long since expired. It isrespectfully requested that this Honorable Court grant a
Default Judgment against the Defendant.
13. It isapparent that Defendant will not proceed with his defense. In spite of the fact
that your affirmant's office has determined the Defendant herein to be the proper party to this
action, and have to this date proceeded in the prescribed matter to unveil his role and ultimate
culpable conduct in the events which led to the within action, said Defendant has willfully and
deliberately failed to make an appearance and defend those claims asserted and, therefore, has
defaulted.
14. Thus, the Defendant's default herein has been intentional and willful, designed to
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prejudice or hamper Plaintiff's ability to litigate this action expeditiously. Plaintiff has a
meritorious cause of action and as such sound public policy and judicial equity mandates that the
issues herein be decided accordingly.
15. In light of the foregoing, Plaintiff makes the within application for default
judgment against the Defendant pursuant to CPLR §3215(a) which states:
§3215. Default Judgment.
(a) Default and entry. When a Defendant has
failed to appear, plead or proceed to trial
of an action....the plaintiff may seek a
default judgment against him. If the plaintiff's
claim is for a sum certain or for a sum which
can by computation be made certain, application
may be made to the Clerk within one year after
the default. The Clerk, upon the requisite proof,
shall enter judgment for the amount demanded
in the Complaint or stated in the Notice served
pursuant to subdivision (b) of rule 305, plus
costs and interest... (Emphasis added)
16. As the Defendant has failed to appear, plead, or otherwise answer in this matter,
the Defendant has defaulted under §3215(a) and Plaintiff is now entitled to seek judgment by
default.
17. An affidavit by Plaintiff's President and CEO Peter Speziale (the "Speziale
Affidavit"
Affidavit") has also been submitted in support of Plaintiff's application for default judgment in
this matter. Your affirmant respectfully directs the Court's attention to same for a recitation of
the facts in this case.
18. As set forth in the Speziale Affidavit, the total amount of money owed by
Defendant is comprised of balances from two separate assignments.
Agreement"
19. The firstassignment agreement (hereinafter "First ), as set forth in the
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Speziale Affidavit, was executed by the Defendant on September 11, 2015. By virtue of the First
Agreement, Defendant agreed to sell,transfer, and assign to Plaintiff allof the title,right, and
attomeys'
attorneys'
interest in and a portion of the fees in the Midland County, Texas case of Rich et al.v.
Matter"
Locke, M.D., et al.(the "Texas Matter"). Also included in the First Agreement was an individual
performance guaranty of Defendant as the owner, partner, and/or shareholder of the Turner Law
Firm.
20. Pursuant to the terms of the First Agreement including Schedule F thereto, as of
September 5, 2016 the amount of $27,884.81 is due and owing from Defendant to Plaintiff.
21. As set forth in the Speziale Affidavit, no part of said amount was paid, despite
being due and duly demanded, and there is now due and owing from Defendant to Plaintiff the
sum of $27,884.81 with interest running thereon from September 5, 2016.
22. As set forth in the Speziale Affidavit, on or about November 3, 2015, Defendant
requested an additional assignment of a second settlement amount within the same Texas Matter.
Based upon the First Agreement, Plaintiff and Defendant entered into an additional assignment
Agreement"
on November 4, 2015 (hereinafter the "Second Agreement").
23. By virtue of the Second Agreement, Defendant again agreed to sell, transfer, and
attorneys'
assign to Plaintiff all of the title,right, and interest in and a portion of the fees in the
pre-litigation settlement with a party in the Texas Matter. As with the First Agreement, the
Second Agreement included an individual performance guaranty of Defendant as the owner,
partner, and/or shareholder of the Turner Law Firm.
24. Pursuant to the terms of the Second Agreement including Schedule F thereto, as
of October 30, 2016 the amount of $13,959.81 is due and owing from Defendant to Plaintiff.
25. As set forth in the Speziale Affidavit, no part of said amount was paid, despite
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being due and duly demanded, and there is now due and owing from Defendant to Plaintiff the
sum of $13,959.81 with interest running thereon from October 30, 2016.
26. In early 2016, Plaintiff ascertained that Defendant had received the settlement
funds despite his failure to make payment to Plaintiff on the First and Second Agreements. A
final demand was sent to the Defendant on February 24, 2016 to which Defendant replied that he
was waiting on his client to sign off on the settlement proceeds before making payment to
Plaintiff. To date, no further communication has been received from Defendant and no payment
has been made.
27. No part of said assigned amounts were paid, despite being due and duly
demanded, and there is now due and owing from the Defendant to Plaintiff the following
balances:
a. Pursuant to the First Agreement, the amount of $27,884.81 plus interest running
thereon from September 6, 2016, and
b. Pursuant to the Second Agreement, the amount of $13,959.81 plus interest
running thereon from October 30, 2016.
28. It isfurther noted that paragraph 12 of the terms of the First and Second
Agreements provide for the recovery of costs in the event a dispute arises and Plaintiff is the
prevailing party. As such, statutory costs are respectfully requested in this matter, exclusive of
the principal balances of the First and Second Agreements.
29. Pursuant to the Defendant's default in appearance and the foregoing terms of the
First Agreement and Second Agreement executed by the Defendant, including the Defendant's
personal guaranty of both Agreements, Plaintiff is entitled to full judgment against the Defendant
as set forth herein, including interest and costs.
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WHEREFORE, your affirmant respectfully requests that this Court enter an Order
granting the Plaintiff's application for default judgment against the defendant, TODD
BRANTLEY TURNER a/k/a TODD B. TURNER, Individually and d/b/a THE TURNER FIRM,
for the following:
a. Assignment amount of $27,884.81 pursuant to the First Agreement executed on
September 11, 2015, plus interest running thereon from September 6, 2016;
b. Assignment amount of $13,959.81 pursuant to the Second Agreement executed on
November 4, 2015, plus interest running thereon from October 31, 2016;
c. Costs and disbursements in this matter; and
d. Such other and further relief as the Court deems just and proper.
Dated: Syosset, New York
December 13, 2017
en, Esq.
Christine
BORGES & ASSOCIATES, LLC
Attorneys for Plaintiff
575 Underhill Blvd., Suite 118
Syosset, New York 11791
(516) 677-8200, ext 226
677-0806 - fax
(516)
chansen@borgeslawllc.com
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts
of the State of New York certifies that,upon information and belief and reasonable inquiry, the
contentions contained in the annexed documents are not frivolous.
ttssstine J.H~ en, Esq.
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Preview
FILED: NEW YORK COUNTY CLERK 12/18/2017 12:51 PM INDEX NO. 652947/2017 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 12/18/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------X MODESO LLC d/b/a RAPID FUNDS, Index No. 652947/17 Plaintiff, AFFIRMATION IN SUPPORT OF PLAINTIFF'S MOTION - against - FOR DEFAULT JUDGMENT TODD BRANTLEY TURNER a/k/a TODD B. TURNER, Individually and d/b/a THE TURNER FIRM, Defendant. ---------------------------------------------------------------------X CHRISTINE HANSEN, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following under the penalties of perjury: 1. I am associated with the law firm of Borges 2 Associates, LLC, attorneys for the "Plaintiff' Plaintiff, MODESO LLC d/b/a RAPID FUNDS (hereinafter "Plaintiff"), and as such I am fully familiar with the proceedings heretofore had herein. The source of my knowledge is my review attorneys' of the file maintained by Plaintiff's office and conversations had with the Plaintiff. 2. The instant affirmation is submitted in support of the Plaintiff's motion for an Order directing entry of a default judgment in this matter against the defendant, TODD BRANTLEY TURNER a/k/a TODD B. TURNER, Individually and d/b/a THE TURNER FIRM "Defendant" (hereinafter the "Defendant"), pursuant to CPLR §3215 on the grounds that the Plaintiff has a meritorious cause of action, there are no defenses to this action, and Defendant are in default by failing to answer the Complaint or otherwise appear in this matter. 3. The instant causes of action were brought to recover monies owed to Plaintiff by Defendant totaling $41,844.62, arising from Plaintiff's purchase of certain assets from the Defendant, to wit: (a) Assignment amount of $27,884.81 pursuant to an Assignment Agreement 1 of 7 FILED: NEW YORK COUNTY CLERK 12/18/2017 12:51 PM INDEX NO. 652947/2017 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 12/18/2017 executed on September 11, 2015, plus interest running thereon from September 6, 2016; and (b) Assignment amount of $13,959.81 pursuant to an Assignment Agreement executed on November 4, 2015, plus interest running thereon from October 31, 2016. PROCEDURAL HISTORY 4. On June 3, 2017, Plaintiff commenced the instant causes of action against Defendant by serving the Summons and Verified Complaint upon a person of suitable age and discretion, specifically Mr. Zach Bruback, at the dwelling place and usual place of abode of Defendant located at 2728 Cedar Springs Road, Dallas Texas, 75201. Mr. Bruback, as concierge of the building, confirmed that the Defendant resides at that location in unit # 404. Additionally, a copy of the Summons and Complaint was mailed to the above-referenced address as well as the last known mailing address of PO Box 100696, Fort Worth, Texas 76185. True copies of the "1." Summons, Verified Complaint and exhibits are collectively annexed hereto as Exhibit 5. Pursuant to CPLR §3215(g)(3)(i), on June 9, 2017, an additional copy of the Summons and Verified Complaint were sent to Defendant at both last known addresses of the Defendant, 2728 Cedar Springs Road, Dallas Texas, 75201 and PO Box 100696, Fort Worth, Texas 76185. True copies of the affidavits of service and mailing are collectively annexed "2." hereto as Exhibit 6. To date, no Answer, response, or other appearance has ever been interposed by the Defendant and as such the Defendant is in default. 7. On July 7, 2017, Plaintiff submitted a default judgment to the Clerk of the Court for entry against the Defendant. On August 24, 2017 the judgment was rejected by the Clerk with direction to file a motion for default judgment in this case. As such, the within application is being submitted to the Court. 2 of 7 FILED: NEW YORK COUNTY CLERK 12/18/2017 12:51 PM INDEX NO. 652947/2017 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 12/18/2017 ARGUMENTS 8. The Defendant is in default in the instant matter for failing to answer the Plaintiff's Summons and Verified Complaint. 9. CPLR §3012(a) provides that "service of an answer or reply shall be made within responds." twenty days after service of the pleading to which it 10. Plaintiff served the Summons and Verified Complaint upon Defendant on June 3, 2017 with additional mailing on June 9, 2017. No answer or other responsive pleading has been filed and served by the Defendant and significantly more than twenty (20) days has elapsed since the date of service. 11. The time within which Defendant must answer and appear has long since expired. It isapparent that the Defendant has willfully and deliberately failed to make an appearance and defend those claims asserted by Plaintiff and, therefore, has defaulted. 12. Despite our efforts to obtain a Verified Answer from the Defendant, a Verified Answer has not been interposed. Hence, the time within which Defendant must appear and answer has long since expired. It isrespectfully requested that this Honorable Court grant a Default Judgment against the Defendant. 13. It isapparent that Defendant will not proceed with his defense. In spite of the fact that your affirmant's office has determined the Defendant herein to be the proper party to this action, and have to this date proceeded in the prescribed matter to unveil his role and ultimate culpable conduct in the events which led to the within action, said Defendant has willfully and deliberately failed to make an appearance and defend those claims asserted and, therefore, has defaulted. 14. Thus, the Defendant's default herein has been intentional and willful, designed to 3 of 7 FILED: NEW YORK COUNTY CLERK 12/18/2017 12:51 PM INDEX NO. 652947/2017 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 12/18/2017 prejudice or hamper Plaintiff's ability to litigate this action expeditiously. Plaintiff has a meritorious cause of action and as such sound public policy and judicial equity mandates that the issues herein be decided accordingly. 15. In light of the foregoing, Plaintiff makes the within application for default judgment against the Defendant pursuant to CPLR §3215(a) which states: §3215. Default Judgment. (a) Default and entry. When a Defendant has failed to appear, plead or proceed to trial of an action....the plaintiff may seek a default judgment against him. If the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the Clerk within one year after the default. The Clerk, upon the requisite proof, shall enter judgment for the amount demanded in the Complaint or stated in the Notice served pursuant to subdivision (b) of rule 305, plus costs and interest... (Emphasis added) 16. As the Defendant has failed to appear, plead, or otherwise answer in this matter, the Defendant has defaulted under §3215(a) and Plaintiff is now entitled to seek judgment by default. 17. An affidavit by Plaintiff's President and CEO Peter Speziale (the "Speziale Affidavit" Affidavit") has also been submitted in support of Plaintiff's application for default judgment in this matter. Your affirmant respectfully directs the Court's attention to same for a recitation of the facts in this case. 18. As set forth in the Speziale Affidavit, the total amount of money owed by Defendant is comprised of balances from two separate assignments. Agreement" 19. The firstassignment agreement (hereinafter "First ), as set forth in the 4 of 7 FILED: NEW YORK COUNTY CLERK 12/18/2017 12:51 PM INDEX NO. 652947/2017 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 12/18/2017 Speziale Affidavit, was executed by the Defendant on September 11, 2015. By virtue of the First Agreement, Defendant agreed to sell,transfer, and assign to Plaintiff allof the title,right, and attomeys' attorneys' interest in and a portion of the fees in the Midland County, Texas case of Rich et al.v. Matter" Locke, M.D., et al.(the "Texas Matter"). Also included in the First Agreement was an individual performance guaranty of Defendant as the owner, partner, and/or shareholder of the Turner Law Firm. 20. Pursuant to the terms of the First Agreement including Schedule F thereto, as of September 5, 2016 the amount of $27,884.81 is due and owing from Defendant to Plaintiff. 21. As set forth in the Speziale Affidavit, no part of said amount was paid, despite being due and duly demanded, and there is now due and owing from Defendant to Plaintiff the sum of $27,884.81 with interest running thereon from September 5, 2016. 22. As set forth in the Speziale Affidavit, on or about November 3, 2015, Defendant requested an additional assignment of a second settlement amount within the same Texas Matter. Based upon the First Agreement, Plaintiff and Defendant entered into an additional assignment Agreement" on November 4, 2015 (hereinafter the "Second Agreement"). 23. By virtue of the Second Agreement, Defendant again agreed to sell, transfer, and attorneys' assign to Plaintiff all of the title,right, and interest in and a portion of the fees in the pre-litigation settlement with a party in the Texas Matter. As with the First Agreement, the Second Agreement included an individual performance guaranty of Defendant as the owner, partner, and/or shareholder of the Turner Law Firm. 24. Pursuant to the terms of the Second Agreement including Schedule F thereto, as of October 30, 2016 the amount of $13,959.81 is due and owing from Defendant to Plaintiff. 25. As set forth in the Speziale Affidavit, no part of said amount was paid, despite 5 of 7 FILED: NEW YORK COUNTY CLERK 12/18/2017 12:51 PM INDEX NO. 652947/2017 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 12/18/2017 being due and duly demanded, and there is now due and owing from Defendant to Plaintiff the sum of $13,959.81 with interest running thereon from October 30, 2016. 26. In early 2016, Plaintiff ascertained that Defendant had received the settlement funds despite his failure to make payment to Plaintiff on the First and Second Agreements. A final demand was sent to the Defendant on February 24, 2016 to which Defendant replied that he was waiting on his client to sign off on the settlement proceeds before making payment to Plaintiff. To date, no further communication has been received from Defendant and no payment has been made. 27. No part of said assigned amounts were paid, despite being due and duly demanded, and there is now due and owing from the Defendant to Plaintiff the following balances: a. Pursuant to the First Agreement, the amount of $27,884.81 plus interest running thereon from September 6, 2016, and b. Pursuant to the Second Agreement, the amount of $13,959.81 plus interest running thereon from October 30, 2016. 28. It isfurther noted that paragraph 12 of the terms of the First and Second Agreements provide for the recovery of costs in the event a dispute arises and Plaintiff is the prevailing party. As such, statutory costs are respectfully requested in this matter, exclusive of the principal balances of the First and Second Agreements. 29. Pursuant to the Defendant's default in appearance and the foregoing terms of the First Agreement and Second Agreement executed by the Defendant, including the Defendant's personal guaranty of both Agreements, Plaintiff is entitled to full judgment against the Defendant as set forth herein, including interest and costs. 6 of 7 FILED: NEW YORK COUNTY CLERK 12/18/2017 12:51 PM INDEX NO. 652947/2017 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 12/18/2017 WHEREFORE, your affirmant respectfully requests that this Court enter an Order granting the Plaintiff's application for default judgment against the defendant, TODD BRANTLEY TURNER a/k/a TODD B. TURNER, Individually and d/b/a THE TURNER FIRM, for the following: a. Assignment amount of $27,884.81 pursuant to the First Agreement executed on September 11, 2015, plus interest running thereon from September 6, 2016; b. Assignment amount of $13,959.81 pursuant to the Second Agreement executed on November 4, 2015, plus interest running thereon from October 31, 2016; c. Costs and disbursements in this matter; and d. Such other and further relief as the Court deems just and proper. Dated: Syosset, New York December 13, 2017 en, Esq. Christine BORGES & ASSOCIATES, LLC Attorneys for Plaintiff 575 Underhill Blvd., Suite 118 Syosset, New York 11791 (516) 677-8200, ext 226 677-0806 - fax (516) chansen@borgeslawllc.com Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of the State of New York certifies that,upon information and belief and reasonable inquiry, the contentions contained in the annexed documents are not frivolous. ttssstine J.H~ en, Esq. 7 of 7