Preview
FILED: NASSAU COUNTY CLERK 05/24/2021 03:31 PM INDEX NO. 606560/2020
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/24/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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NEWTEK SMALL BUSINESS FINANCE, LLC,
Index No.: 606560/2020
Plaintiff,
-against- AFFIRMATION IN SUPPORT
OF PLAINTIFF’S MOTION
MICHAEL J. LIBERMAN, TO RENEW
Defendant.
.
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J’NAIA L. BOYD, an attorney duly admitted to practice law in the Courts of the State of
New York, affirms the following to be true under penalties of perjury:
1. I am associated with the law firm of Rivkin Radler LLP, counsel for Plaintiff
Newtek Small Business Finance, LLC (“Newtek” or “Plaintiff”) in the above captioned matter. As
such, I am fully familiar with the facts and circumstances stated herein based on my review of the
file maintained by my office and my handling of this matter.
2. This Affirmation is respectfully submitted in support of Plaintiff’s motion for an
order pursuant to C.P.L.R. 2221(e) granting renewal of Plaintiff’s prior motion for attorneys’ fees
and expenses against Michael J. Liberman (“Defendant”), in connection with Plaintiff’s motion
for summary judgment in lieu of complaint, pursuant to CPLR 3213, which this Court granted
pursuant to an order dated October 23, 2020.
3. In an Order dated February 24, 2021, this Court granted Plaintiff permission to
renew its motion for attorneys’ fees and expenses on the basis that the Court “required more detail
information to be provided as to what each of the charges were” in relation to the billing records
submitted on behalf of Plaintiff. See annexed hereto as Exhibit “1” is a true and correct copy of
the Order, dated February 24, 2021.
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4. In accordance with the Court’s Order, I respectfully submit this affirmation in
support of Newtek’s motion to renew.
NEWTEK’S ATTORNEYS’ FEES ARE REASONABLE
5. Pursuant to C.P.L.R. 2221(e), a motion for leave to renew must be based on new facts
not offered on the prior motion that would change the prior determination or shall demonstrate there
has been a change in the law that would change the prior determination. Id.
6. To determine the reasonableness of attorneys’ fees, courts have considered certain
factors including “(1) the time and labor required, the difficulty of the questions involved, and the skill
required to handle the problems presented; (2) the lawyer's experience, ability, and reputation; (3) the
amount involved and benefit resulting to the client from the services; (4) the customary fee charged
for similar services; (5) the contingency or certainty of compensation; (6) the results obtained; and (7)
the responsibility involved.” RMP Capital Corp. v. Victory Jet, LLC, 139 A.D.3d 836, 839, 32
N.Y.S.3d 231, 235 (2d Dep’t 2016); see Diaz v. Audi of Am., Inc., 57 A.D.3d 828, 830, 873 N.Y.S.2d
308, 311 (2d Dep’t 2008).
7. In consideration of these factors and as evidenced by the annexed billing records, the
attorneys’ fees incurred by Newtek in connection with this matter are reasonable.
8. The Note, which Liberman unconditionally guaranteed payment of all amounts owing
thereunder, explains the manner in which Newtek may incur, inter alia, attorneys’ fees in enforcing
the Note and preserving or disposing of collateral and that the borrower is responsible for repayment
of these attorneys’ fees. See Affidavit of Peter Persichette, Vice President, Special Servicing Manager
for Newtek (“Persichette Affidavit”), sworn to on May 20, 2021, Ex. A.
9. As of April 30, 2021, Newtek has incurred Eighty-Nine Thousand Seven Hundred
Eighty-Six Dollars and Seventy Cents ($89,786.70) in attorneys’ fees for legal work performed by
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Rivkin Radler LLP in connection with enforcing the Note and Guarantee and preserving and
disposing of collateral, which includes fees previously paid by Newtek. See annexed hereto as
Exhibit “2” true and accurate copies of Rivkin Radler LLP’s full billing records, subject to
redactions for privileged information.
10. The work performed was billed by partners, Matthew V. Spero, with eighteen (18)
years of experience, at a rate of Three Hundred Fifty Dollars ($350) per hour, Michael Heller, with
twenty-eight (28) years of experience, at a rate of Three Hundred Fifty Dollars ($350) per hour, Stuart
Gordon, with thirty-seven (37) years of experience, at a rate of Three Hundred Fifty Dollars ($350)
per hour, and Harvey Epstein, with thirty-three (33) years of experience, at a rate of Three Hundred
Fifty Dollars ($350) per hour. Work was also performed by J’Naia L. Boyd, an associate with four
(4) years of experience, at a rate of Two Hundred Seventy-Five Dollars ($275) per hour. These rates
are consistent with the rates of partners and associates with similar experience at commercial law firms
of similar size and reputation.
11. The work performed included, but is not limited to, reviewing the client’s files
containing, but not limited to, loan documents, mortgage documents, financial documents, corporate
documents and correspondence relating to Newtek’s loans; investigating the facts and parties;
consulting with the client regarding litigation options and strategy; conference calls with the client;
conducting legal research; drafting and reviewing of correspondence; addressing issues flowing from
the bankruptcy of the maker of the Note (Zahmel Restaurant Supplies Corp., which was owned by
Liberman and his partner Gil Appelbaum, who was a co-guarantor who also filed for bankruptcy) and
the preservation and disposal at auction of Newtek’s collateral; preparation, service and filing the
motion for summary judgment and all supporting papers including affidavits and memorandum of law;
and preparation of a proposed judgment.
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12. It is respectfully submitted that all of the attorneys’ fees and legal expenses
incurred up to April 30, 2021, totaling Eighty-Nine Thousand Seven Hundred Eighty-Six Dollars
and Seventy Cents ($89,786.70) for legal work performed by Rivkin Radler LLP in connection
with this commercial litigation are reasonable and necessary, and should be awarded to Newtek in
full.
13. Newtek is also entitled to Three Thousand Five Hundred Fifty Dollars ($3,550.00)
in expenses due and owing to Newtek as set forth in the accompanying Persichette Affidavit, which
are also reasonable and necessary, and should be awarded to Newtek in full.
14. Accordingly, Newtek respectfully requests that this Court issue an order awarding
attorneys’ fees in the amount of Eighty-Nine Thousand Seven Hundred Eighty-Six Dollars and
Seventy Cents ($89,786.70) and expenses in the amount of Three Thousand Five Hundred Fifty
Dollars ($3,550.00), for a total amount of Ninety-Three Thousand Three Hundred Thirty-Six Dollars
and Seventy Cents ($93,336.70).
WHEREFORE, Plaintiff respectfully requests that this Court grant Plaintiff’s motion for an
award of attorneys’ fees and expenses in the instant action, together with such other and further relief
as this Court may deem just and proper under the circumstances.
Dated: Uniondale, New York
May 24, 2021
___________________________
J’Naia L. Boyd
5243954.v1
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Preview
FILED: NASSAU COUNTY CLERK 05/24/2021 03:31 PM INDEX NO. 606560/2020 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/24/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -------------------------------------------------------------------X NEWTEK SMALL BUSINESS FINANCE, LLC, Index No.: 606560/2020 Plaintiff, -against- AFFIRMATION IN SUPPORT OF PLAINTIFF’S MOTION MICHAEL J. LIBERMAN, TO RENEW Defendant. . -------------------------------------------------------------------X J’NAIA L. BOYD, an attorney duly admitted to practice law in the Courts of the State of New York, affirms the following to be true under penalties of perjury: 1. I am associated with the law firm of Rivkin Radler LLP, counsel for Plaintiff Newtek Small Business Finance, LLC (“Newtek” or “Plaintiff”) in the above captioned matter. As such, I am fully familiar with the facts and circumstances stated herein based on my review of the file maintained by my office and my handling of this matter. 2. This Affirmation is respectfully submitted in support of Plaintiff’s motion for an order pursuant to C.P.L.R. 2221(e) granting renewal of Plaintiff’s prior motion for attorneys’ fees and expenses against Michael J. Liberman (“Defendant”), in connection with Plaintiff’s motion for summary judgment in lieu of complaint, pursuant to CPLR 3213, which this Court granted pursuant to an order dated October 23, 2020. 3. In an Order dated February 24, 2021, this Court granted Plaintiff permission to renew its motion for attorneys’ fees and expenses on the basis that the Court “required more detail information to be provided as to what each of the charges were” in relation to the billing records submitted on behalf of Plaintiff. See annexed hereto as Exhibit “1” is a true and correct copy of the Order, dated February 24, 2021. 1 of 4 FILED: NASSAU COUNTY CLERK 05/24/2021 03:31 PM INDEX NO. 606560/2020 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/24/2021 4. In accordance with the Court’s Order, I respectfully submit this affirmation in support of Newtek’s motion to renew. NEWTEK’S ATTORNEYS’ FEES ARE REASONABLE 5. Pursuant to C.P.L.R. 2221(e), a motion for leave to renew must be based on new facts not offered on the prior motion that would change the prior determination or shall demonstrate there has been a change in the law that would change the prior determination. Id. 6. To determine the reasonableness of attorneys’ fees, courts have considered certain factors including “(1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; (2) the lawyer's experience, ability, and reputation; (3) the amount involved and benefit resulting to the client from the services; (4) the customary fee charged for similar services; (5) the contingency or certainty of compensation; (6) the results obtained; and (7) the responsibility involved.” RMP Capital Corp. v. Victory Jet, LLC, 139 A.D.3d 836, 839, 32 N.Y.S.3d 231, 235 (2d Dep’t 2016); see Diaz v. Audi of Am., Inc., 57 A.D.3d 828, 830, 873 N.Y.S.2d 308, 311 (2d Dep’t 2008). 7. In consideration of these factors and as evidenced by the annexed billing records, the attorneys’ fees incurred by Newtek in connection with this matter are reasonable. 8. The Note, which Liberman unconditionally guaranteed payment of all amounts owing thereunder, explains the manner in which Newtek may incur, inter alia, attorneys’ fees in enforcing the Note and preserving or disposing of collateral and that the borrower is responsible for repayment of these attorneys’ fees. See Affidavit of Peter Persichette, Vice President, Special Servicing Manager for Newtek (“Persichette Affidavit”), sworn to on May 20, 2021, Ex. A. 9. As of April 30, 2021, Newtek has incurred Eighty-Nine Thousand Seven Hundred Eighty-Six Dollars and Seventy Cents ($89,786.70) in attorneys’ fees for legal work performed by 2 of 4 FILED: NASSAU COUNTY CLERK 05/24/2021 03:31 PM INDEX NO. 606560/2020 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/24/2021 Rivkin Radler LLP in connection with enforcing the Note and Guarantee and preserving and disposing of collateral, which includes fees previously paid by Newtek. See annexed hereto as Exhibit “2” true and accurate copies of Rivkin Radler LLP’s full billing records, subject to redactions for privileged information. 10. The work performed was billed by partners, Matthew V. Spero, with eighteen (18) years of experience, at a rate of Three Hundred Fifty Dollars ($350) per hour, Michael Heller, with twenty-eight (28) years of experience, at a rate of Three Hundred Fifty Dollars ($350) per hour, Stuart Gordon, with thirty-seven (37) years of experience, at a rate of Three Hundred Fifty Dollars ($350) per hour, and Harvey Epstein, with thirty-three (33) years of experience, at a rate of Three Hundred Fifty Dollars ($350) per hour. Work was also performed by J’Naia L. Boyd, an associate with four (4) years of experience, at a rate of Two Hundred Seventy-Five Dollars ($275) per hour. These rates are consistent with the rates of partners and associates with similar experience at commercial law firms of similar size and reputation. 11. The work performed included, but is not limited to, reviewing the client’s files containing, but not limited to, loan documents, mortgage documents, financial documents, corporate documents and correspondence relating to Newtek’s loans; investigating the facts and parties; consulting with the client regarding litigation options and strategy; conference calls with the client; conducting legal research; drafting and reviewing of correspondence; addressing issues flowing from the bankruptcy of the maker of the Note (Zahmel Restaurant Supplies Corp., which was owned by Liberman and his partner Gil Appelbaum, who was a co-guarantor who also filed for bankruptcy) and the preservation and disposal at auction of Newtek’s collateral; preparation, service and filing the motion for summary judgment and all supporting papers including affidavits and memorandum of law; and preparation of a proposed judgment. 3 of 4 FILED: NASSAU COUNTY CLERK 05/24/2021 03:31 PM INDEX NO. 606560/2020 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/24/2021 12. It is respectfully submitted that all of the attorneys’ fees and legal expenses incurred up to April 30, 2021, totaling Eighty-Nine Thousand Seven Hundred Eighty-Six Dollars and Seventy Cents ($89,786.70) for legal work performed by Rivkin Radler LLP in connection with this commercial litigation are reasonable and necessary, and should be awarded to Newtek in full. 13. Newtek is also entitled to Three Thousand Five Hundred Fifty Dollars ($3,550.00) in expenses due and owing to Newtek as set forth in the accompanying Persichette Affidavit, which are also reasonable and necessary, and should be awarded to Newtek in full. 14. Accordingly, Newtek respectfully requests that this Court issue an order awarding attorneys’ fees in the amount of Eighty-Nine Thousand Seven Hundred Eighty-Six Dollars and Seventy Cents ($89,786.70) and expenses in the amount of Three Thousand Five Hundred Fifty Dollars ($3,550.00), for a total amount of Ninety-Three Thousand Three Hundred Thirty-Six Dollars and Seventy Cents ($93,336.70). WHEREFORE, Plaintiff respectfully requests that this Court grant Plaintiff’s motion for an award of attorneys’ fees and expenses in the instant action, together with such other and further relief as this Court may deem just and proper under the circumstances. Dated: Uniondale, New York May 24, 2021 ___________________________ J’Naia L. Boyd 5243954.v1 4 of 4