Preview
(FILED: NEW YORK COUNTY CLERK 1071872019 12:23 PM INDEX NO. 653515/2016
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 10/18/2019
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ARTHUR F. ENGORON PART IAS MOTION 37EFM
Justice
INDEX NO. 653515/2016
SIZMEK INC.,
MOTION DATE 08/01/2019
Plaintiff,
MOTION SEQ. NO. 001
-V-
AYDIGITAL INC., DECISION + ORDER ON
MOTION
Defendant.
X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9
were read on this motion to/for JUDGMENT - DEFAULT
Upon the foregoing documents, plaintiff's motion for a default judgment is granted.
In or about the summer of 2016, plaintiff, Sizmek Inc., a foreign corporation authorized to do
business in the State of New York, commenced this action against defendant, AYDigital Inc., a
foreign corporation also authorized to do business in the State of New York.
Between June 30, 2015 and December 31, 2015, plaintiff provided services, including placing
advertisements with third parties for the agreed-upon amount of $260,393.61. Plaintiff provided
defendant with invoices and a statement of account indicating said balance. Defendant has paid
only $10,000.00 of this sum, resulting in a balance due of $250,393.61.
On or about May 2, 2016, plaintiff moved for a default judgment in the sum of $250,393.61, plus
interest at the legal rate of 9% interest annually from December 31, 2015, plus costs and
disbursements. On August 2, 2016, pursuant to Section 306 of the Business Corporation Law,
plaintiff served defendant with two copies of the Summons and Complaint with Notice of
Commencement of Action Subject to Mandatory Electronic Filing, via personal delivery, to the
New York State Secretary of State.
On or about October 12, 2016, plaintiff and defendant executed a Stipulation of Settlement (the
“Stipulation”) in which defendant would pay plaintiff $270,393.61 (the $250,393.61 balance,
plus $20,000.00 of pre-settlement interest) in eighteen monthly installments, beginning on or
before November 20, 2016. The Stipulation provides, in pertinent part,
[after] a 10 day notice to cure sent to defendant and the failure to cure such
default, judgment shall be entered in the amount prayed for in the Complaint,
plus interest, costs, and disbursements, and plaintiff shall be entitled to execute
thereon. Upon execution, credit shall be given for any payments received and
collected pursuant to the Stipulation of Settlement.
653515/2016 SIZMEK INC., vs. AYDIGITAL INC.,
Page 1 of 2
Motion No. 001
1 of 2
(FILED: NEW YORK COUNTY CLERK 1071872019 12:23 PM INDEX NO. 653515/2016
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 10/18/2019
Although defendant paid certain amounts, including a recent payment of $90,000.00 on or about
July 7, 2019, defendant has failed fully to comply with the Stipulation. Plaintiff sent several 10-
day Notices to Cure to defendant, which expired on or about March 10, 2019. Consequently, on
or about July 1, 2019, pursuant to CPLR 3215(i), plaintiff moved for a default judgment based
on defendant’s failure to comply with the Stipulation. Pursuant to the Stipulation, plaintiff seeks
$250,393.61, plus interest from December 31, 2015, plus costs and disbursements.
Additionally, pursuant to CPLR 3215(f) and CPLR 3215(i), plaintiff has established that it is
entitled to a default judgment by submitting the following: the Summons and Complaint with
Affidavit of Service; the Stipulation of Settlement, dated October 12, 2016, in which defendant
agreed to pay plaintiff a total of $270,393.61 in eighteen monthly installments beginning on or
before November 20, 2016; the Written Notice to Cure, dated February 28, 2019; the Affidavit of
Service of the Notice of Motion, delivered by first class mail and dated July 1, 2019; and,
pursuant to CPLR 3215(i), an Affirmation in Support by Wilber Trivino, Esq., an “affiliate” of
the Law Offices of Steven Cohen LLC, attorneys for plaintiff, attesting to defendant’s “failure to
comply with a stipulation of settlement.”
To date, defendant has failed to appear in this action, answer or otherwise move against the
complaint, and its time to do so has expired. Consequently, pursuant to CPLR 3215, plaintiff is
entitled to a default judgment against defendant. However, based on the submissions that
plaintiff filed, the Court is unable to determine with certainty and exactitude the sum that
defendant owes. In particular, the Court cannot determine whether defendant is entitled to a
$90,000.00 or more credit.
Conclusion
Thus, for the reasons stated herein, plaintiff's motion is granted to the extent of directing the
Clerk to enter a default judgment against defendant A YDigital Inc. on liability only, and
directing an assessment of damages at an inquest upon plaintiff's filing of a Notice of Inquest,
together with a copy of this Decision and Order, and paying any necessary fees.
10/17/2019
DATE AR’ F. ENGORON, J.S.C.
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
X | GRANTED C DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFERIREASSIGN FIDUCIARY APPOINTMENT C] REFERENCE
653515/2016 SIZMEK INC., vs. AYDIGITAL INC.,
Motion No. 001 Page
2 of 2
2 of 2
Preview
(FILED: NEW YORK COUNTY CLERK 1071872019 12:23 PM INDEX NO. 653515/2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 10/18/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARTHUR F. ENGORON PART IAS MOTION 37EFM Justice INDEX NO. 653515/2016 SIZMEK INC., MOTION DATE 08/01/2019 Plaintiff, MOTION SEQ. NO. 001 -V- AYDIGITAL INC., DECISION + ORDER ON MOTION Defendant. X The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9 were read on this motion to/for JUDGMENT - DEFAULT Upon the foregoing documents, plaintiff's motion for a default judgment is granted. In or about the summer of 2016, plaintiff, Sizmek Inc., a foreign corporation authorized to do business in the State of New York, commenced this action against defendant, AYDigital Inc., a foreign corporation also authorized to do business in the State of New York. Between June 30, 2015 and December 31, 2015, plaintiff provided services, including placing advertisements with third parties for the agreed-upon amount of $260,393.61. Plaintiff provided defendant with invoices and a statement of account indicating said balance. Defendant has paid only $10,000.00 of this sum, resulting in a balance due of $250,393.61. On or about May 2, 2016, plaintiff moved for a default judgment in the sum of $250,393.61, plus interest at the legal rate of 9% interest annually from December 31, 2015, plus costs and disbursements. On August 2, 2016, pursuant to Section 306 of the Business Corporation Law, plaintiff served defendant with two copies of the Summons and Complaint with Notice of Commencement of Action Subject to Mandatory Electronic Filing, via personal delivery, to the New York State Secretary of State. On or about October 12, 2016, plaintiff and defendant executed a Stipulation of Settlement (the “Stipulation”) in which defendant would pay plaintiff $270,393.61 (the $250,393.61 balance, plus $20,000.00 of pre-settlement interest) in eighteen monthly installments, beginning on or before November 20, 2016. The Stipulation provides, in pertinent part, [after] a 10 day notice to cure sent to defendant and the failure to cure such default, judgment shall be entered in the amount prayed for in the Complaint, plus interest, costs, and disbursements, and plaintiff shall be entitled to execute thereon. Upon execution, credit shall be given for any payments received and collected pursuant to the Stipulation of Settlement. 653515/2016 SIZMEK INC., vs. AYDIGITAL INC., Page 1 of 2 Motion No. 001 1 of 2 (FILED: NEW YORK COUNTY CLERK 1071872019 12:23 PM INDEX NO. 653515/2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 10/18/2019 Although defendant paid certain amounts, including a recent payment of $90,000.00 on or about July 7, 2019, defendant has failed fully to comply with the Stipulation. Plaintiff sent several 10- day Notices to Cure to defendant, which expired on or about March 10, 2019. Consequently, on or about July 1, 2019, pursuant to CPLR 3215(i), plaintiff moved for a default judgment based on defendant’s failure to comply with the Stipulation. Pursuant to the Stipulation, plaintiff seeks $250,393.61, plus interest from December 31, 2015, plus costs and disbursements. Additionally, pursuant to CPLR 3215(f) and CPLR 3215(i), plaintiff has established that it is entitled to a default judgment by submitting the following: the Summons and Complaint with Affidavit of Service; the Stipulation of Settlement, dated October 12, 2016, in which defendant agreed to pay plaintiff a total of $270,393.61 in eighteen monthly installments beginning on or before November 20, 2016; the Written Notice to Cure, dated February 28, 2019; the Affidavit of Service of the Notice of Motion, delivered by first class mail and dated July 1, 2019; and, pursuant to CPLR 3215(i), an Affirmation in Support by Wilber Trivino, Esq., an “affiliate” of the Law Offices of Steven Cohen LLC, attorneys for plaintiff, attesting to defendant’s “failure to comply with a stipulation of settlement.” To date, defendant has failed to appear in this action, answer or otherwise move against the complaint, and its time to do so has expired. Consequently, pursuant to CPLR 3215, plaintiff is entitled to a default judgment against defendant. However, based on the submissions that plaintiff filed, the Court is unable to determine with certainty and exactitude the sum that defendant owes. In particular, the Court cannot determine whether defendant is entitled to a $90,000.00 or more credit. Conclusion Thus, for the reasons stated herein, plaintiff's motion is granted to the extent of directing the Clerk to enter a default judgment against defendant A YDigital Inc. on liability only, and directing an assessment of damages at an inquest upon plaintiff's filing of a Notice of Inquest, together with a copy of this Decision and Order, and paying any necessary fees. 10/17/2019 DATE AR’ F. ENGORON, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION X | GRANTED C DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFERIREASSIGN FIDUCIARY APPOINTMENT C] REFERENCE 653515/2016 SIZMEK INC., vs. AYDIGITAL INC., Motion No. 001 Page 2 of 2 2 of 2