Preview
FILED: NASSAU COUNTY CLERK 11/05/2020 03:41 PM INDEX NO. 606560/2020
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/05/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
------------------------- ----------------------------X
NEWTEK SMALL BUSINESS FINANCE, LLC,
Plaintiff, Index No. 606560/2020
-against- NOTICE OF ENTRY
MICHAEL J. LIBERMAN,
Defendant.
---------------------------------------------------------------------X
PLEASE TAKE NOTICE that the within is a true copy of the Decision and Order of the
Hon. Jerome C. Murphy, Judge of the Supreme Court of the State of New York, County of
Nassau, dated October 23, 2020, and duly entered in the office of the Clerk of the within named
Court on October 26, 2020.
Dated: Uniondale, New York
October 27, 2020
Yours, etc.,
RIVKIN RADLER LLP
Attorneys for Plaintif
NEWTEK SMALL BUSINESS FINANCE, LLC
By:
f Afala 2. $oyd
J'Naia L. Boyd, Esq.
926 RXR Plaza
Uniondale, New York 11556-0926
(516) 357-3000
To: Michael J. Liberman, Pro Se
2655 Rachel Street
Bellmore, New York 11710
1 of 7
FILED: NASSAU COUNTY CLERK 11/05/2020 03:41 PM INDEX NO. 606560/2020
(FILED
NYSCEF DOC.
: NO. 13
NAS.SAU COUNTY CLERK 10 /2 6 /2 02 0 11: 2 4 RECEIVED INDEX NO.
NYSCEF: 60 11/05/2020
2020
AM|
NYSCEF DOC. NO. 12 . RECEIVED NYSCE 10/26/ 020
SUPREME COURT : STATE OF NEW YORK
COUNTY OF NASSAU
PRESENT:
HON, JEROME C. MURPHY,
Justice.
TRIAL/IAS PART 10
NEWTEK SMALL BUSINESS FINANCE, LLC, Iñdex No.: 606560-2020
Motion Date: 8-28-2020
Plaintiff, Sequence Nos.: 001
- against - DECISION AND ORDER
MICHAEL J. LIBERMAN,
Defendant.
The following papers were read on this motion:
&guenggEo. 00I :
Notice of Motion for Summary Judgment in Lieu of Complaint .......................-.
1
Affidavit of Peter Persichette in Support, with Exhibits ......................................
2
Memorandum of Law in Support ......................................................-................
. 3
Affidavit of Service upon Defendant ......,,,,..........-..........,.................................
. 4
PRELIMINARY STATEMENT
In Sequence No. 001, plaintiff brings this application for an order pursuant to CPLR
§ 3212, for an order directing the entry of judgment for Plaintiff and against Defendant in the
amount due and owing pursuant to the instrument for the payment of money only annexed hereto,
attorneys'
together with fees and legal costs, and for such other and further relief as is just and
proper. No opposition has heen submitted.
BACKGROUND
On April 24, 2017, Newtek Small Business Finance, LLC ("Newtek.") loaned Zahmel
Restaurant Supplies Corp. ("Zahmel") $355,000.00 (Exh "A"). The Loan was evidenced by
Note, by which Zahmel acknowledged itsindebtedness to Newtek in the principal sum of
$355,000.00, at an interest rate of 6.75% (Exh. "B"). The interest rate was to be adjusted
-1-
1 of 5
2 of 7
FILED: NASSAU COUNTY CLERK 11/05/2020 03:41 PM INDEX NO. 606560/2020
NYSCEF
[FILED DOC.: NO.
NAS 13
SAU COUNTY CLERK 10 RECEIVED NO.
INDEXNYSCEF: 11/05/2020
606560/2020
/2 6 / 2 0 2 0 11: 2 4 -AM)
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/26/2020
quarterly to.reflect a rate of 2.75Ýo above Prime Rate as published in the Wall Street Journal.
Pursuant to the Note Zahmel was to make monthly payments of principal and interest of
$4,100.27. Newtek was entitled to a late fee or 5% ifpayment on the Note is more than 10 days
late.
As further security for Zahmel's repayment obligations under the Note, on April228,
2017,slefendant Michael L Liberman ("Liberman") executed, acknowledged, and delivered a
Guarantee to Newtek, in which he unconditionally gttaranteed, inter alid payment.of al amounts.
due under the Note Exh. ("C"). In addition, as further security, Liberrnan and his wife executed ,
acknowledged, and delivered a Mortgage on premises Section 63, Blo.òk 337, Lot 27 on the
Nassau County Tax Map, which mortgage was recorded in the Office of the Nassau County
Clerk on May 17, 2017 at Liber 42128, page 171.
Beginning on February1, 20 E9, andcontinuing thereafter, Zahmel failed fo malee
payments of $4,100 27 per month, Askresult of Zahmel's defaults, on or about May 8, 2019 by
overnight mail, Newtek sent a letter to Liberman demanding fullpayment of, and accelerating,
the total amounts due under the Note (Ekh. "D"). NeitherZahtnel nor Liberman have paid the
amounts due under the.Note, and Zahmel filed a voluntary bankruptcy petition for reliefunder
Chapter 11 of Title 11.,U.S.C., I1 U.S C. §§ 101 et seq., on April 24, 2019, which plaintiff
indicates remains open,
As of June 29, 2020, plaintiff claims that the principal amount due under the Note is
$303,109 37, together with accumulated lat.efees of $3,158,40, accrued interest from July 1,
2017 through June 8, 2020 of $30.,771.92 and expenses of $73,075 54, for a total amount due of
$410,115.23. In addition Newtek claims.entitlement to reasonable attorney's fees and costs of
not less than $79,893.04 as of June 15, 2020,
The Note provides at ¶ 6.B. as follows:
Without notice and without. Borrowereconsent, Leader may:
B. Incur expenses to collect arnounts due under this Note, enforce
the terms of this Note or any other Loa.n Document, and preserve
or dispose of the CollateraL.Among other things, the expenses may
include payments for property taxes, prior liens, insurance,
appraisals, environtnental remediation costs, and reasonable
attorney's fees and costs. If Lender incurs such expenses, itmay
demand immediate repayment frðnt.Borrower or add the
expenses to the principal balance;
-2-
2 of 5
3 of 7
FILED: NASSAU COUNTY CLERK 11/05/2020 03:41 PM INDEX NO. 606560/2020
NYSCEF
FILED DOC.
: NO.
NAS 13
SAU COUNTY CLERK 10 /2 6 2 O2 O 11: 2 4
RECEIVED INDEXNYSCEF:
NO. 11/05/2020
606560/2020
/ AM_J
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/26/2020
DISCUSBION
Pursuant to CPLR § 3213.,.when an action is based upon.an instrument for the payment of
money only, the plaintiff may serve with the Sun1mons a Notice of Motion for Summary
Judgment andPthe supporting.papers in lieu of a Complaint, and, if the motion is denied, the
moving and answering papers will be deemed the Complaint and Answer, respectively, unless
the Court orders otherwise. The premise for the statute is that itprovides a speedy and effective
means for resolving presumptively.meritorious claims (Banco Popular North America v. Victory
Taxi Management, Inc., 1 N.V.3d 381 [2004]).
only"
The "instrument for the payment ofmoney need not be a negotiable instrument, and
ithas been established that a check, promissory note, or trade acceptance are deemed
only"
"instruments for the paymentiof money (Abilities,Inc: v. Citibank, N A., 87 A D.2d 837 [2d
130*
Dept. 1982] ; Stein v. 615 West Street Corp , 121 A.D.2d 157 [1"Dept. 1986); and jJ
Gerber & Co., Inc. v.. Lottglsland Pipe Pabrication.& Supply Corp., 92 A.D.2d 530 [ISiDept..
1983]).
A promissory note is.an instrument for the payment of money only, provided that it
.contains an unconditional promise by a borrower to the lender over a stated period of.time
pay
(Lugli v. Johnston,. 78 A.D 3d 1133 [2d Dept. 20I0J). The instrument does not qualify if outside
proof is needed, other than sitnple proof of nonpayment or a sintilar de ininimis deviation from
the face of the document (lawrence v. Kennedyv 95 A D 3d 935 [2d Dept. 2012]).
Where there is a triable issue of fact as to whethèr ak interest rate on a promissory note
was greater than 16%, and therefor usurious, itprecludes the grant of amotion for surasiary
judgment in lieu of complaint (Lugli v. Johnston, stqpra; Stransky u DiPalma, 137 A.D.3d I734
[4th
201 . The Court there accepted parol evidence in the form of the Make's Affidavit
that while the Note called for the payment úf $353000, with a 15% rate of interest, the.actual
amount of the loan was $130,000, and the additional $5,000 represented interest, which made the
actual interest rate 17.5% and, therefor, usurlous.
Michael J. Liberman executed an Unconditional Guarantee of payment to the Lender all
amounts owing under theNote (Exh. "C"). The Note prdvides at ¶ 9.A. "ENFORCEMENT
EXPENSES. Guarantorpromises..to all expenses Lender incurs to enforce this Guarantee,
pay
costs."
including, but notlimited to, attorney's fees and "New York.is clear.that under § 3213 an
only' "
unconditional guarantee is 'an instrument for the payment of money (Torin Assobiatese
-3,
3 of 5
4 of 7
FILED: NASSAU COUNTY CLERK 11/05/2020 03:41 PM INDEX NO. 606560/2020
NYSCEF
F I LEDDOC.
: NO.
NASSAU13 COUNTY CLERK 10 2 6 /2 0 2 0 2 RECEIVED INDEXNYSCEF:
NO. 11/05/2020
606560/2020
/ 11: 4 AM)
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/26/2020
Inc. v. Perez, 2016 WL 6662271 [U.S.D.C., S.D.NX 2016] quoting f oah One Acquisition
[1"
Ro]dlngs V Ltd, v. Armenta, 96 A.D,3d 560 Dept. 2012]).
?laintiff has established itsprima facie entitlerñent to summary jludgment against
Libermani by producing theNote signed by Zahmel, the Guarantee signed by Liberman, and the
Affidavit of P.eter Persichette as to non-payment (Poah One Acquisition Holdings V Ltd n
Armenta, supra). Libertnan has not submitted opposition to the motion, and has.not raised a
material issue of fact so as to defeat the motion for summary judgment. The Affidavit of Mr.
Perichette is sufficient to establish plaintiff's entitlement to judgment in the amount of
$303,109.37, representing the.unpaid principal balance on the Note, together with late fees of
$3,158 40, accrued interest froïn July 1, 2017 through June 8 2020 in the amo.unt of$30,771.923
for a total of $337,039.69.
Plaintiff also seeks reimbursement of expenses of $73,075.54, and legal fees of
$79,893 04. Neither of these requests are itemized in an Affidavit of an individual with personal
knowledge of the fees and expenses.
"A reasonable attorney's fee is c.ommonly understood to be a fee which represents the
reasonable value of the services rendered and factors to be4considered include (1) the time and
labor required, the difficulty of the questions involved and the skill required, (2) the attorney's
experience, ability and reputation,.(3) the amount involved and benefit resulting from the
services, (4) the customary fee charged for similar services, (5) the contingency or certai,nty of
involted"
compensation, (6) the results obtained.and (7) the responsibility (Galasso Langiane &
Botter v. Liotti, 22 Misc.3d 450 [5up. Ct., Nassau Co. 2008), citing Diaz v.Audi of America
2008)¹
Inc , 50 A.D 3d 728 (2d Dept
Plaintiff is entitled to an award of reasonable attorney's fees, but the Court is unable to
evaluate the reasonableness of the claimed fees in the absence of a hearing, or a detailed
statement, including billing records, and substantiation ofthe other elements of a reasonable fee
Similarly; the record does not reflect that the expenses of $73,075254 were actually incurred.
The opinion of the Supreme Court, Appellate Division, Second Dept. in Diaz v Audi of
America, Inc., published in the advancë sheet at 858 N.V.S.2d 179, was withdrawn frorn the
bound volume because.it was recalled and vacated on re-argument. The substituted opinion is
found at 2008 WL 5376625, 57 A.D.3d 828 (2d Dept. 2008). Thelfactors to be considered in
determining reasonable attorney's fees isunchanged, citing, inter alia, Matter of Freeman, 34
N.Y.2d 1, 9 (1974).
-4-
4 of 5
5 of 7
FILED: NASSAU COUNTY CLERK 11/05/2020 03:41 PM INDEX NO. 606560/2020
NYSCEF INDEXNYSCEF:
NO. 606560/2020
F I LEDDOC.: NO.
NAS 13
SAU COUNTY CLERK 10 / 2 6 / 2 O2 O 11: 2 4 AM)
RECEIVED 11/05/2020
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/26/2020
Plaintiff's motion for judgment in lieu of a complaint is granted as stated
sumnhary
herein. Plaintiff now subniit a proposed judgment, on notice to the defendant, in favor of
may
Newtek Small Businessfinance, LLC against Michael J. Liberman in the amount of
$303,109.37, and $3158 40 of late fees, with interest at the note rate, through this date, along
with interest at 9% thereafter.
In order to obtain judgment for the remaining expenses and reasonable attorney's fees,
plaintiff is directed, within 30 days of the entry ofthis Decision and Order, to separately move
for the award of reasonable legal fees and expenses, to include affidavits of affirmations by an
individual with personal knowledge with the clerñênts to be considered in.eyaluating the
degling
reasonableness of attorney's fees, and eyidence as to the actual payment of expenses.
To the extent tha.trequested relief has riotbeen gianted, itis denied.
This constitutes the Decision and Order of the Court.
Dated: Mineola, New York
October 23, 2020
E N T E R :
ENTERED JEROME C. MURPHY
Oct 26 2020 is.C.
NASSAU COUNTY
COUNTY CLERK'S OFFICE
-5-
5 of 5
6 of 7
FILED: NASSAU COUNTY CLERK 11/05/2020 03:41 PM INDEX NO. 606560/2020
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/05/2020
SUPREME COURT OF TIIE STATE OF NEW YORK
COUNTY OF NASSAU
______________________________________________________ ----X
NEWTEK SMALL BUSINESS FINANCE, LLC,
Plaintiff, Index No. 606560/2020
-against-
MICHAEL J. LIBERMAN,
Defendant.
_________________----------------------------------------------------X
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
)SS.:
COUNTYOFNASSAU )
I, Diawattie Harbhajan, being sworn, say:
I am not a party to the action, am over 18 years of age and reside in Queens County, New
York.
On October 27, 2020, I served the:
NOTICE OF ENTRY AND DECISION AND ORDER
by depositing a true copy thereof enclosed in a post-paid wrapper, in an official depository under
the exclusive care and custody of the U.S. Postal Service within New York State, addressed to
each of the following persons at the last known address set forth after each name:
Michael J. Liberman, Pro Se
2655 Rachel Street
Bellmore, New York 11710 /
Diawattie Harbhaja
worn before me this
7t of pctober,
N tary Public
PATRICIA A. WILCOX
Notary Public, Stateof New York
No. 01WI-4758506
Qualified in NassauCounty
CommissionExpireson December31, 2022
5005394vl
7 of 7
Preview
FILED: NASSAU COUNTY CLERK 11/05/2020 03:41 PM INDEX NO. 606560/2020 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/05/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------------------------- ----------------------------X NEWTEK SMALL BUSINESS FINANCE, LLC, Plaintiff, Index No. 606560/2020 -against- NOTICE OF ENTRY MICHAEL J. LIBERMAN, Defendant. ---------------------------------------------------------------------X PLEASE TAKE NOTICE that the within is a true copy of the Decision and Order of the Hon. Jerome C. Murphy, Judge of the Supreme Court of the State of New York, County of Nassau, dated October 23, 2020, and duly entered in the office of the Clerk of the within named Court on October 26, 2020. Dated: Uniondale, New York October 27, 2020 Yours, etc., RIVKIN RADLER LLP Attorneys for Plaintif NEWTEK SMALL BUSINESS FINANCE, LLC By: f Afala 2. $oyd J'Naia L. Boyd, Esq. 926 RXR Plaza Uniondale, New York 11556-0926 (516) 357-3000 To: Michael J. Liberman, Pro Se 2655 Rachel Street Bellmore, New York 11710 1 of 7 FILED: NASSAU COUNTY CLERK 11/05/2020 03:41 PM INDEX NO. 606560/2020 (FILED NYSCEF DOC. : NO. 13 NAS.SAU COUNTY CLERK 10 /2 6 /2 02 0 11: 2 4 RECEIVED INDEX NO. NYSCEF: 60 11/05/2020 2020 AM| NYSCEF DOC. NO. 12 . RECEIVED NYSCE 10/26/ 020 SUPREME COURT : STATE OF NEW YORK COUNTY OF NASSAU PRESENT: HON, JEROME C. MURPHY, Justice. TRIAL/IAS PART 10 NEWTEK SMALL BUSINESS FINANCE, LLC, Iñdex No.: 606560-2020 Motion Date: 8-28-2020 Plaintiff, Sequence Nos.: 001 - against - DECISION AND ORDER MICHAEL J. LIBERMAN, Defendant. The following papers were read on this motion: &guenggEo. 00I : Notice of Motion for Summary Judgment in Lieu of Complaint .......................-. 1 Affidavit of Peter Persichette in Support, with Exhibits ...................................... 2 Memorandum of Law in Support ......................................................-................ . 3 Affidavit of Service upon Defendant ......,,,,..........-..........,................................. . 4 PRELIMINARY STATEMENT In Sequence No. 001, plaintiff brings this application for an order pursuant to CPLR § 3212, for an order directing the entry of judgment for Plaintiff and against Defendant in the amount due and owing pursuant to the instrument for the payment of money only annexed hereto, attorneys' together with fees and legal costs, and for such other and further relief as is just and proper. No opposition has heen submitted. BACKGROUND On April 24, 2017, Newtek Small Business Finance, LLC ("Newtek.") loaned Zahmel Restaurant Supplies Corp. ("Zahmel") $355,000.00 (Exh "A"). The Loan was evidenced by Note, by which Zahmel acknowledged itsindebtedness to Newtek in the principal sum of $355,000.00, at an interest rate of 6.75% (Exh. "B"). The interest rate was to be adjusted -1- 1 of 5 2 of 7 FILED: NASSAU COUNTY CLERK 11/05/2020 03:41 PM INDEX NO. 606560/2020 NYSCEF [FILED DOC.: NO. NAS 13 SAU COUNTY CLERK 10 RECEIVED NO. INDEXNYSCEF: 11/05/2020 606560/2020 /2 6 / 2 0 2 0 11: 2 4 -AM) NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/26/2020 quarterly to.reflect a rate of 2.75Ýo above Prime Rate as published in the Wall Street Journal. Pursuant to the Note Zahmel was to make monthly payments of principal and interest of $4,100.27. Newtek was entitled to a late fee or 5% ifpayment on the Note is more than 10 days late. As further security for Zahmel's repayment obligations under the Note, on April228, 2017,slefendant Michael L Liberman ("Liberman") executed, acknowledged, and delivered a Guarantee to Newtek, in which he unconditionally gttaranteed, inter alid payment.of al amounts. due under the Note Exh. ("C"). In addition, as further security, Liberrnan and his wife executed , acknowledged, and delivered a Mortgage on premises Section 63, Blo.òk 337, Lot 27 on the Nassau County Tax Map, which mortgage was recorded in the Office of the Nassau County Clerk on May 17, 2017 at Liber 42128, page 171. Beginning on February1, 20 E9, andcontinuing thereafter, Zahmel failed fo malee payments of $4,100 27 per month, Askresult of Zahmel's defaults, on or about May 8, 2019 by overnight mail, Newtek sent a letter to Liberman demanding fullpayment of, and accelerating, the total amounts due under the Note (Ekh. "D"). NeitherZahtnel nor Liberman have paid the amounts due under the.Note, and Zahmel filed a voluntary bankruptcy petition for reliefunder Chapter 11 of Title 11.,U.S.C., I1 U.S C. §§ 101 et seq., on April 24, 2019, which plaintiff indicates remains open, As of June 29, 2020, plaintiff claims that the principal amount due under the Note is $303,109 37, together with accumulated lat.efees of $3,158,40, accrued interest from July 1, 2017 through June 8, 2020 of $30.,771.92 and expenses of $73,075 54, for a total amount due of $410,115.23. In addition Newtek claims.entitlement to reasonable attorney's fees and costs of not less than $79,893.04 as of June 15, 2020, The Note provides at ¶ 6.B. as follows: Without notice and without. Borrowereconsent, Leader may: B. Incur expenses to collect arnounts due under this Note, enforce the terms of this Note or any other Loa.n Document, and preserve or dispose of the CollateraL.Among other things, the expenses may include payments for property taxes, prior liens, insurance, appraisals, environtnental remediation costs, and reasonable attorney's fees and costs. If Lender incurs such expenses, itmay demand immediate repayment frðnt.Borrower or add the expenses to the principal balance; -2- 2 of 5 3 of 7 FILED: NASSAU COUNTY CLERK 11/05/2020 03:41 PM INDEX NO. 606560/2020 NYSCEF FILED DOC. : NO. NAS 13 SAU COUNTY CLERK 10 /2 6 2 O2 O 11: 2 4 RECEIVED INDEXNYSCEF: NO. 11/05/2020 606560/2020 / AM_J NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/26/2020 DISCUSBION Pursuant to CPLR § 3213.,.when an action is based upon.an instrument for the payment of money only, the plaintiff may serve with the Sun1mons a Notice of Motion for Summary Judgment andPthe supporting.papers in lieu of a Complaint, and, if the motion is denied, the moving and answering papers will be deemed the Complaint and Answer, respectively, unless the Court orders otherwise. The premise for the statute is that itprovides a speedy and effective means for resolving presumptively.meritorious claims (Banco Popular North America v. Victory Taxi Management, Inc., 1 N.V.3d 381 [2004]). only" The "instrument for the payment ofmoney need not be a negotiable instrument, and ithas been established that a check, promissory note, or trade acceptance are deemed only" "instruments for the paymentiof money (Abilities,Inc: v. Citibank, N A., 87 A D.2d 837 [2d 130* Dept. 1982] ; Stein v. 615 West Street Corp , 121 A.D.2d 157 [1"Dept. 1986); and jJ Gerber & Co., Inc. v.. Lottglsland Pipe Pabrication.& Supply Corp., 92 A.D.2d 530 [ISiDept.. 1983]). A promissory note is.an instrument for the payment of money only, provided that it .contains an unconditional promise by a borrower to the lender over a stated period of.time pay (Lugli v. Johnston,. 78 A.D 3d 1133 [2d Dept. 20I0J). The instrument does not qualify if outside proof is needed, other than sitnple proof of nonpayment or a sintilar de ininimis deviation from the face of the document (lawrence v. Kennedyv 95 A D 3d 935 [2d Dept. 2012]). Where there is a triable issue of fact as to whethèr ak interest rate on a promissory note was greater than 16%, and therefor usurious, itprecludes the grant of amotion for surasiary judgment in lieu of complaint (Lugli v. Johnston, stqpra; Stransky u DiPalma, 137 A.D.3d I734 [4th 201 . The Court there accepted parol evidence in the form of the Make's Affidavit that while the Note called for the payment úf $353000, with a 15% rate of interest, the.actual amount of the loan was $130,000, and the additional $5,000 represented interest, which made the actual interest rate 17.5% and, therefor, usurlous. Michael J. Liberman executed an Unconditional Guarantee of payment to the Lender all amounts owing under theNote (Exh. "C"). The Note prdvides at ¶ 9.A. "ENFORCEMENT EXPENSES. Guarantorpromises..to all expenses Lender incurs to enforce this Guarantee, pay costs." including, but notlimited to, attorney's fees and "New York.is clear.that under § 3213 an only' " unconditional guarantee is 'an instrument for the payment of money (Torin Assobiatese -3, 3 of 5 4 of 7 FILED: NASSAU COUNTY CLERK 11/05/2020 03:41 PM INDEX NO. 606560/2020 NYSCEF F I LEDDOC. : NO. NASSAU13 COUNTY CLERK 10 2 6 /2 0 2 0 2 RECEIVED INDEXNYSCEF: NO. 11/05/2020 606560/2020 / 11: 4 AM) NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/26/2020 Inc. v. Perez, 2016 WL 6662271 [U.S.D.C., S.D.NX 2016] quoting f oah One Acquisition [1" Ro]dlngs V Ltd, v. Armenta, 96 A.D,3d 560 Dept. 2012]). ?laintiff has established itsprima facie entitlerñent to summary jludgment against Libermani by producing theNote signed by Zahmel, the Guarantee signed by Liberman, and the Affidavit of P.eter Persichette as to non-payment (Poah One Acquisition Holdings V Ltd n Armenta, supra). Libertnan has not submitted opposition to the motion, and has.not raised a material issue of fact so as to defeat the motion for summary judgment. The Affidavit of Mr. Perichette is sufficient to establish plaintiff's entitlement to judgment in the amount of $303,109.37, representing the.unpaid principal balance on the Note, together with late fees of $3,158 40, accrued interest froïn July 1, 2017 through June 8 2020 in the amo.unt of$30,771.923 for a total of $337,039.69. Plaintiff also seeks reimbursement of expenses of $73,075.54, and legal fees of $79,893 04. Neither of these requests are itemized in an Affidavit of an individual with personal knowledge of the fees and expenses. "A reasonable attorney's fee is c.ommonly understood to be a fee which represents the reasonable value of the services rendered and factors to be4considered include (1) the time and labor required, the difficulty of the questions involved and the skill required, (2) the attorney's experience, ability and reputation,.(3) the amount involved and benefit resulting from the services, (4) the customary fee charged for similar services, (5) the contingency or certai,nty of involted" compensation, (6) the results obtained.and (7) the responsibility (Galasso Langiane & Botter v. Liotti, 22 Misc.3d 450 [5up. Ct., Nassau Co. 2008), citing Diaz v.Audi of America 2008)¹ Inc , 50 A.D 3d 728 (2d Dept Plaintiff is entitled to an award of reasonable attorney's fees, but the Court is unable to evaluate the reasonableness of the claimed fees in the absence of a hearing, or a detailed statement, including billing records, and substantiation ofthe other elements of a reasonable fee Similarly; the record does not reflect that the expenses of $73,075254 were actually incurred. The opinion of the Supreme Court, Appellate Division, Second Dept. in Diaz v Audi of America, Inc., published in the advancë sheet at 858 N.V.S.2d 179, was withdrawn frorn the bound volume because.it was recalled and vacated on re-argument. The substituted opinion is found at 2008 WL 5376625, 57 A.D.3d 828 (2d Dept. 2008). Thelfactors to be considered in determining reasonable attorney's fees isunchanged, citing, inter alia, Matter of Freeman, 34 N.Y.2d 1, 9 (1974). -4- 4 of 5 5 of 7 FILED: NASSAU COUNTY CLERK 11/05/2020 03:41 PM INDEX NO. 606560/2020 NYSCEF INDEXNYSCEF: NO. 606560/2020 F I LEDDOC.: NO. NAS 13 SAU COUNTY CLERK 10 / 2 6 / 2 O2 O 11: 2 4 AM) RECEIVED 11/05/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/26/2020 Plaintiff's motion for judgment in lieu of a complaint is granted as stated sumnhary herein. Plaintiff now subniit a proposed judgment, on notice to the defendant, in favor of may Newtek Small Businessfinance, LLC against Michael J. Liberman in the amount of $303,109.37, and $3158 40 of late fees, with interest at the note rate, through this date, along with interest at 9% thereafter. In order to obtain judgment for the remaining expenses and reasonable attorney's fees, plaintiff is directed, within 30 days of the entry ofthis Decision and Order, to separately move for the award of reasonable legal fees and expenses, to include affidavits of affirmations by an individual with personal knowledge with the clerñênts to be considered in.eyaluating the degling reasonableness of attorney's fees, and eyidence as to the actual payment of expenses. To the extent tha.trequested relief has riotbeen gianted, itis denied. This constitutes the Decision and Order of the Court. Dated: Mineola, New York October 23, 2020 E N T E R : ENTERED JEROME C. MURPHY Oct 26 2020 is.C. NASSAU COUNTY COUNTY CLERK'S OFFICE -5- 5 of 5 6 of 7 FILED: NASSAU COUNTY CLERK 11/05/2020 03:41 PM INDEX NO. 606560/2020 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/05/2020 SUPREME COURT OF TIIE STATE OF NEW YORK COUNTY OF NASSAU ______________________________________________________ ----X NEWTEK SMALL BUSINESS FINANCE, LLC, Plaintiff, Index No. 606560/2020 -against- MICHAEL J. LIBERMAN, Defendant. _________________----------------------------------------------------X AFFIDAVIT OF SERVICE STATE OF NEW YORK ) )SS.: COUNTYOFNASSAU ) I, Diawattie Harbhajan, being sworn, say: I am not a party to the action, am over 18 years of age and reside in Queens County, New York. On October 27, 2020, I served the: NOTICE OF ENTRY AND DECISION AND ORDER by depositing a true copy thereof enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to each of the following persons at the last known address set forth after each name: Michael J. Liberman, Pro Se 2655 Rachel Street Bellmore, New York 11710 / Diawattie Harbhaja worn before me this 7t of pctober, N tary Public PATRICIA A. WILCOX Notary Public, Stateof New York No. 01WI-4758506 Qualified in NassauCounty CommissionExpireson December31, 2022 5005394vl 7 of 7