Preview
FILED: CAYUGA COUNTY CLERK 05/15/2023 12:29 PM INDEX NO. E2023-0130
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/15/2023
STATE OF NEW YORK
SUPREME COURT COUNTY OF CAYUGA
AMERICU CREDIT UNION, AFFIRMATION IN SUPPORT
OF MOTION FOR DEFAULT
Plaintiff, JUDGMENT AND
vs. ATTORNEYS’ FEES
THE RED LIGHT SPA, INC. AND LISA POWER, Index No. E2023-0130
Defendants.
JEFFERY T. LOTTERMOSER, JR., ESQ., an attorney admitted to the practice of law
before all courts of the State of New York, and not a party to the above-entitled cause of action,
affirms the following to be true under the penalties of perjury pursuant to CPLR 2106:
1. I am a Member of the firm of Getnick Livingston Atkinson & Priore, LLP,
attorneys for the Plaintiff, and I am fully familiar with all of the pleadings and proceedings in
this action.
2. This Affirmation is offered in support of Plaintiffs motion for an Order granting a
Default Judgment pursuant to CPLR §3215 (b) and awarding attorneys' fees.
3. This action was commenced by the filing of a Summons and Verified Complaint
on February 22, 2023. A copy of the Summons and Complaint is attached hereto as Exhibit 1.
4. The Summons and Verified Complaint was served upon Defendant, The Red
Light Spa, Inc., on March 1, 2023, via New York State Secretary of State. Proof of such service,
which was filed on March 2, 2023, is attached as Exhibit 2.
5. Notice of default (a copy of the Summons), and a CPLR §321 5(g) Notice, was
mailed to Defendant, The Red Light Spa, Inc., on March 2, 2023, a date which is at least twenty
(20) days prior to the entry of the judgment, and proof of service thereof, filed on March 2, 2023,
is attached as Exhibit 3.
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6. The Summons and Verified Complaint was served upon the Defendant, Lisa
Power, on February 25, 2023, via suitable age person (Clay Power Son), with follow-up
mailing on February 27, 2023. Proof of such service was filed on March 6, 2023, and is attached
as Exhibit 4.
7. Notice of default (a copy of the Summons) was mailed to the Defendant, Lisa
Power, on February 27, 2023, a date which is at least twenty (20) days prior to the entry of the
judgment, and proof of service thereof, filed on February 27, 2023, is attached as Exhibit 5.
8. Defendants’ deadline to respond to the Complaint expired on or about April 7,
2023.
9. Defendants have not interposed an Answer and has not otherwise moved with
respect to the Verified Complaint.
10. Accordingly, Defendants failed to timely respond to the Verified Complaint, and
Plaintiff is entitled to a default judgment.
11. Plaintiff is entitled to judgment against Defendants, The Red Light Spa, Inc. and
Lisa Power, regarding the First Cause of Action (Note), in the amount of $42,836.04, plus
additional interest on the principal balance of $36,857.87, from February 10, 2023, at a per
annum interest rate of 10.75%; and as more specifically set forth in the Affidavit of Fact of
Francis M. Liuzzi.
12. The Verified Complaint included a separate request for reasonable attorneys'
fees. In addition, the underlying Note provided for Defendants to pay Plaintiffs reasonable
collection costs, including attorneys' fees and expenses, in the event of default, as specifically set
forth in paragraph entitled COSTS AND EXPENSES on Page 2 of the Note annexed hereto:
“COSTS AND EXPENSES. Borrower agrees to pay all costs
and expenses including attorneys’ fees and disbursements incurred
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by Lender in any attempt to collect or enforce the provisions
of this Note or any other Loan Documents.”
A copy of the underlying Note is attached as Exhibit “A” to Plaintiffs Complaint, which
is attached hereto as Exhibit 1.
13. Pursuant to the terms of the Commercial Guaranty, Defendant Lisa Power agreed,
if in default, to pay reasonable attorneys’ fees and costs with respect to the prosecution of this
action. As set forth at paragraph EXPENSES on Page 6 of the Guaranty annexed hereto:
“EXPENSES. Guarantor agrees to pay all attorneys’ fees and other costs and
expenses incurred by Lender in enforcing this Guaranty.”
A copy of the underlying Commercial Guaranty is attached as Exhibit “C” to Plaintiffs
Complaint, which is attached hereto as Exhibit 1.
14. My legal services rendered in this matter have included, but are not limited to,
those listed on the schedule attached hereto as Exhibit 6.
15. As a result of the legal services rendered, I hereby respectfully request that the
Court make an award of the sum of $1,802.50, as and for reasonable attorneys' fees for the
Plaintiff. The hourly fee was $215.00. As of January 1, 2023, the hourly fee is $225.00. The fees
are reasonable and customary in this type of proceeding and commensurate with the experience
of this law firm in handling collection matters. This firm has been representing creditors since
1986.
WHEREFORE, it is respectfully requested that this Court enter an Order granting this
motion, directing the Clerk of the Court to enter a judgment in favor of Plaintiff, AmeriCU
Credit Union, and against Defendants, The Red Light Spa, Inc. and Lisa Power, regarding the
First Cause of Action (Note), in the amount of $42,836.04, plus additional interest on the principal
balance of $36,857.87, from February 10, 2023, at a per annum interest rate of 10.75%, until the
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date of entry of the judgment; awarding plaintiff reasonable attorneys' fees in the amount of
$1,802.50, and granting to plaintiff such other and further relief as the Court deems just and
proper.
DATED: May U, 2023
Respectfully submi
Jeffery .K Lottermoser, Jr., Esq.
GEWICK LIVINGSTON
ATKINSON & PRIORE, LLP
Attorneys for Plaintiff
258 Genesee Street
Utica, New York 13502
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ATTORNEY CERTIFICATION IN COMPLIANCE WITH 22 NYCRR 202.8-b
I, Jeffery T. Lottermoser, Jr., Esq., an attorney duly admitted to practice law before the
Courts of the State of New York, hereby certify that this document complies with the word count
limit set forth in 22 NYCRR 202.8-b, because it contains 864 words excluding the caption and
signature block. The undersigned in certifying compliance relies upon the word count of the
word-processing system used to prepare the document.
DATED: May V, 2023
JEFFERY^. LOTTERMOSER, JR., ESQ.
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Preview
FILED: CAYUGA COUNTY CLERK 05/15/2023 12:29 PM INDEX NO. E2023-0130 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/15/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF CAYUGA AMERICU CREDIT UNION, AFFIRMATION IN SUPPORT OF MOTION FOR DEFAULT Plaintiff, JUDGMENT AND vs. ATTORNEYS’ FEES THE RED LIGHT SPA, INC. AND LISA POWER, Index No. E2023-0130 Defendants. JEFFERY T. LOTTERMOSER, JR., ESQ., an attorney admitted to the practice of law before all courts of the State of New York, and not a party to the above-entitled cause of action, affirms the following to be true under the penalties of perjury pursuant to CPLR 2106: 1. I am a Member of the firm of Getnick Livingston Atkinson & Priore, LLP, attorneys for the Plaintiff, and I am fully familiar with all of the pleadings and proceedings in this action. 2. This Affirmation is offered in support of Plaintiffs motion for an Order granting a Default Judgment pursuant to CPLR §3215 (b) and awarding attorneys' fees. 3. This action was commenced by the filing of a Summons and Verified Complaint on February 22, 2023. A copy of the Summons and Complaint is attached hereto as Exhibit 1. 4. The Summons and Verified Complaint was served upon Defendant, The Red Light Spa, Inc., on March 1, 2023, via New York State Secretary of State. Proof of such service, which was filed on March 2, 2023, is attached as Exhibit 2. 5. Notice of default (a copy of the Summons), and a CPLR §321 5(g) Notice, was mailed to Defendant, The Red Light Spa, Inc., on March 2, 2023, a date which is at least twenty (20) days prior to the entry of the judgment, and proof of service thereof, filed on March 2, 2023, is attached as Exhibit 3. {G1581013.1} 3 1 of 5 FILED: CAYUGA COUNTY CLERK 05/15/2023 12:29 PM INDEX NO. E2023-0130 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/15/2023 6. The Summons and Verified Complaint was served upon the Defendant, Lisa Power, on February 25, 2023, via suitable age person (Clay Power Son), with follow-up mailing on February 27, 2023. Proof of such service was filed on March 6, 2023, and is attached as Exhibit 4. 7. Notice of default (a copy of the Summons) was mailed to the Defendant, Lisa Power, on February 27, 2023, a date which is at least twenty (20) days prior to the entry of the judgment, and proof of service thereof, filed on February 27, 2023, is attached as Exhibit 5. 8. Defendants’ deadline to respond to the Complaint expired on or about April 7, 2023. 9. Defendants have not interposed an Answer and has not otherwise moved with respect to the Verified Complaint. 10. Accordingly, Defendants failed to timely respond to the Verified Complaint, and Plaintiff is entitled to a default judgment. 11. Plaintiff is entitled to judgment against Defendants, The Red Light Spa, Inc. and Lisa Power, regarding the First Cause of Action (Note), in the amount of $42,836.04, plus additional interest on the principal balance of $36,857.87, from February 10, 2023, at a per annum interest rate of 10.75%; and as more specifically set forth in the Affidavit of Fact of Francis M. Liuzzi. 12. The Verified Complaint included a separate request for reasonable attorneys' fees. In addition, the underlying Note provided for Defendants to pay Plaintiffs reasonable collection costs, including attorneys' fees and expenses, in the event of default, as specifically set forth in paragraph entitled COSTS AND EXPENSES on Page 2 of the Note annexed hereto: “COSTS AND EXPENSES. Borrower agrees to pay all costs and expenses including attorneys’ fees and disbursements incurred {G1581013.1} 4 2 of 5 FILED: CAYUGA COUNTY CLERK 05/15/2023 12:29 PM INDEX NO. E2023-0130 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/15/2023 by Lender in any attempt to collect or enforce the provisions of this Note or any other Loan Documents.” A copy of the underlying Note is attached as Exhibit “A” to Plaintiffs Complaint, which is attached hereto as Exhibit 1. 13. Pursuant to the terms of the Commercial Guaranty, Defendant Lisa Power agreed, if in default, to pay reasonable attorneys’ fees and costs with respect to the prosecution of this action. As set forth at paragraph EXPENSES on Page 6 of the Guaranty annexed hereto: “EXPENSES. Guarantor agrees to pay all attorneys’ fees and other costs and expenses incurred by Lender in enforcing this Guaranty.” A copy of the underlying Commercial Guaranty is attached as Exhibit “C” to Plaintiffs Complaint, which is attached hereto as Exhibit 1. 14. My legal services rendered in this matter have included, but are not limited to, those listed on the schedule attached hereto as Exhibit 6. 15. As a result of the legal services rendered, I hereby respectfully request that the Court make an award of the sum of $1,802.50, as and for reasonable attorneys' fees for the Plaintiff. The hourly fee was $215.00. As of January 1, 2023, the hourly fee is $225.00. The fees are reasonable and customary in this type of proceeding and commensurate with the experience of this law firm in handling collection matters. This firm has been representing creditors since 1986. WHEREFORE, it is respectfully requested that this Court enter an Order granting this motion, directing the Clerk of the Court to enter a judgment in favor of Plaintiff, AmeriCU Credit Union, and against Defendants, The Red Light Spa, Inc. and Lisa Power, regarding the First Cause of Action (Note), in the amount of $42,836.04, plus additional interest on the principal balance of $36,857.87, from February 10, 2023, at a per annum interest rate of 10.75%, until the {G1581013.1} 5 3 of 5 FILED: CAYUGA COUNTY CLERK 05/15/2023 12:29 PM INDEX NO. E2023-0130 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/15/2023 date of entry of the judgment; awarding plaintiff reasonable attorneys' fees in the amount of $1,802.50, and granting to plaintiff such other and further relief as the Court deems just and proper. DATED: May U, 2023 Respectfully submi Jeffery .K Lottermoser, Jr., Esq. GEWICK LIVINGSTON ATKINSON & PRIORE, LLP Attorneys for Plaintiff 258 Genesee Street Utica, New York 13502 {G1581013.1} 6 4 of 5 FILED: CAYUGA COUNTY CLERK 05/15/2023 12:29 PM INDEX NO. E2023-0130 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 05/15/2023 ATTORNEY CERTIFICATION IN COMPLIANCE WITH 22 NYCRR 202.8-b I, Jeffery T. Lottermoser, Jr., Esq., an attorney duly admitted to practice law before the Courts of the State of New York, hereby certify that this document complies with the word count limit set forth in 22 NYCRR 202.8-b, because it contains 864 words excluding the caption and signature block. The undersigned in certifying compliance relies upon the word count of the word-processing system used to prepare the document. DATED: May V, 2023 JEFFERY^. LOTTERMOSER, JR., ESQ. {G1581013.1} 7 5 of 5