Preview
FILED: NASSAU COUNTY CLERK 09/26/2023 10:04 AM INDEX NO. 607877/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/26/2023
SUPREMECOURTOFTHESTATEOFNEW YORK
COUNTY OF NASSAU
VOX FUNDING LLC, Index No.: 607877/2023
Plaintiff,
vs.
AFFIDAVIT OF PLAINTIFF
IN OPPOSITION TO MOTION
A GALAXY OF STARS CHILD CARE CENTER, LLC
TO DISMISS
AND LASHUNDA ANTEECE LANE GLASGOW,
Defendants.
STATE OF )
COUNTY OF O )
BEFORE ME, THE UNDERSIGNED AUTHORITY, PERSONALLY APPEARED Louis
Calderone, who first being duly sworn or affirmed by me, under penalty of perjury, deposed as
follows:
1. My name is Louis Calderone. I am over the age of 18 and fully competent to make this
affidavit. The facts stated herein are true and correct and are based on my personal knowledge.
2. This affidavit is based upon my personal knowledge of the facts, circumstances and events
which are the subject of this lawsuit, as well as, my personal review ofthe physical file maintained
by VOX FUNDING LLC which are kept in the regular course of business, which I personally
reviewed.
3. I am a managing member of Vox Funding LLC, ("Plaintiff") in the above-captioned matter
whose address is 14 E 44TH ST, 4TH FLOOR, NEW YORK, NY 10017.
4. I submit this affidavit in opposition of defendant A GALAXY OF STARS CHILD CARE
CENTER, LLC ("Company Defendant") and LASHUNDA ANTEECE LANE-GLASGOW
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NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/26/2023
("Guarantor", and together with Company Defendants, the Motion to Dismiss
"Defendants")
pursuant to CPLR §3211(a)(7) and (a)(8).
5. On or about December 09, 2022, Plaintiff, Defendant and Guarantor entered
Company
into an agreement (the "Agreement") whereby Plaintiff agreed to $56,800.00 ("Purchase
buy
Amount") of Company Defendant future receivables for a sum of $40,000.00 ("Purchase Price")
with the Purchase Amount to be remitted to Plaintiff from I7 percent percent of Company
1
Defendant's future receivables.
6. In addition, Guarantor executed a guarantee of performance of all the representations,
and 2
warranties, covenants made by the Company Defendant in the contract with Plaintiff.
7. On December 09, 2022, Plaintiff honored its end of the bargain and paid Company
receivables.3
Defendant the Purchase Price, minus agreed to fees, for the future
8. Payments were initially made pursuant to the agreement but promptly stopped on or
Agreement.4
about, January 26, 2023 thereby breaching the
9. On or about, January 26, 2023, Company Defendant defaulted under the terms of the
Agreement by breaching its representations and warranties to Plaintiff thereunder and by failing
to properly direct payments to Plaintiff.
10. Company Defendants, intentionally stopped remitting the purchased receivables to
Plaintiff from the Bank Account without providing proper notice and failed to provide Plaintiffs
proper financial disclosures or a written request for reconciliation, thereby breaching the
agreement.
11. The Pay Run phrase submitted into evidence shows in the rightmost column that the ACH
3SeeNYSCEF A"
doc no 2, "Exhibit Agreement, page 1, Future Receivables Sale and PurchaseAgreement.
2 SeeNYSCEF A"
doc no 2, "Exhibit Agreement,.
3 SeeNYSCEF A"
doc no 2, "Exhibit Agreement,.
4 SeeNYSCEF doc no 3, "Pay Run".
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FILED: NASSAU COUNTY CLERK 09/26/2023 10:04 AM INDEX NO. 607877/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/26/2023
system returned account.5
the payment attempt on the Defendant's
I2. Default"
The clear terms enumerated in Section 6. "Events of makes a return/stopped
payment attempt an event of default.
"(a) Merchant intentionally interferes with Purchaser's right to collect the Specified
Percentage"6
Defendants'
13. Plaintiff was never informed or consented to interference with the daily
remittance.
14. Upon information and belief, Company Defendant is still open and in business and
Plaintiff has not received any Receivables from Company Defendant since on or about on or about,
January 26, 2023.
15. As of the date of this affirmation, Company Defendant has made payments totaling
$11,360.76 leaving a balance of $45,439.24 of the purchase amount owed to Plaintiff.
Agreement.7
16. Company Defendant owes Plaintiff $5,000.00 for a Default Fee under the
17. By reason of the foregoing, Plaintiff has been damaged by Company Defendant's breach
of the Agreement in the sum of $50,439.24.
18. Guarantor has failed to perform pursuant to the guarantee as guarantor failed to remit the
$50,439.24 owed to Plaintiff pursuant to the Agreement.
19. The Agreements stipulate that Company Defendant and Guarantor consent that the
Agreement would be governed by the laws of the State of New York, that New York is the
"Acceptable Forum", that the Acceptable Forum is convenient, that the parties are submitting to
the jurisdiction of the Acceptable Forum and that the parties waive any and all objections to
' SeeNYSCEF doc no 4
"Pay Run".
6 See NYSCEF doc "Exhibit A"
2, Agreement, page 5, section 3.1 "Events of Default".
7 SeeNYSCEF doc no "Exhibit A" Agreement.
2,
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FILED: NASSAU COUNTY CLERK 09/26/2023 10:04 AM INDEX NO. 607877/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/26/2023
venue.8
inconvenience of the jurisdiction or
20. Plaintiff maintains an office and is registered to do business in the State of New York.
2 l. Plaintiff's Banks in the State of New York.
22. Plaintiff's contracts are drafted in State of New York and Plaintiff's personnel are located
in the State of New York.
23. Defendants specifically waived objection to jurisdiction or venue.
24. New York has jurisdiction over Defendants and therefore Defendants motion to dismiss
should be denied in its entirety.
25. Plaintiff respectfully requests that this Honorable Court issue an Order Denying
Defendants motion to dismiss dated June 6, 2023 in its entirety.
-
Dated: /
Louis Calderone
Subscribed and Sworn to befor me on this
day o
Notary Public
WitBam 0. Clyme
York
goggy Fmblic, State of New
No. 01CL4379910
gasRned in New York C
rJmemailmmismEmpires August 27,
8 "Agreement" page
SeeNYSCEF doc no 2, 6, section 6.5.
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FILED: NASSAU COUNTY CLERK 09/26/2023 10:04 AM INDEX NO. 607877/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/26/2023
WORD COUNT CERTIFICATION
I hereby certify pursuant to part 202.8-b of the Uniform Civil Rules for the Supreme Court
& the County Court that this document according to the word count tool on Microsoft Word, the
total number of words in this document is 818, consistent with the rule that (i) affidavits,
affirmations, briefs and memoranda of law in chief be limited to 7,000 words each; (ii) reply
affidavits, affirmations, and memoranda be no more than 4,200 words, and do not contain any
arguments that do not respond or relate to those made in the memoranda in chief.
Dated: September 19, 2023 Respectfully submitted,
Nassau County, New York
osef CK Feldman, Esq.
Lieberman and Klestzick, LLP
Attorneys for Plaintiff
71 S Central Avenue
Valley Stream NY 11580
P: 516-900-6720
Email: yosef@landklegal.com
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Preview
FILED: NASSAU COUNTY CLERK 09/26/2023 10:04 AM INDEX NO. 607877/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/26/2023 SUPREMECOURTOFTHESTATEOFNEW YORK COUNTY OF NASSAU VOX FUNDING LLC, Index No.: 607877/2023 Plaintiff, vs. AFFIDAVIT OF PLAINTIFF IN OPPOSITION TO MOTION A GALAXY OF STARS CHILD CARE CENTER, LLC TO DISMISS AND LASHUNDA ANTEECE LANE GLASGOW, Defendants. STATE OF ) COUNTY OF O ) BEFORE ME, THE UNDERSIGNED AUTHORITY, PERSONALLY APPEARED Louis Calderone, who first being duly sworn or affirmed by me, under penalty of perjury, deposed as follows: 1. My name is Louis Calderone. I am over the age of 18 and fully competent to make this affidavit. The facts stated herein are true and correct and are based on my personal knowledge. 2. This affidavit is based upon my personal knowledge of the facts, circumstances and events which are the subject of this lawsuit, as well as, my personal review ofthe physical file maintained by VOX FUNDING LLC which are kept in the regular course of business, which I personally reviewed. 3. I am a managing member of Vox Funding LLC, ("Plaintiff") in the above-captioned matter whose address is 14 E 44TH ST, 4TH FLOOR, NEW YORK, NY 10017. 4. I submit this affidavit in opposition of defendant A GALAXY OF STARS CHILD CARE CENTER, LLC ("Company Defendant") and LASHUNDA ANTEECE LANE-GLASGOW 1 of 5 FILED: NASSAU COUNTY CLERK 09/26/2023 10:04 AM INDEX NO. 607877/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/26/2023 ("Guarantor", and together with Company Defendants, the Motion to Dismiss "Defendants") pursuant to CPLR §3211(a)(7) and (a)(8). 5. On or about December 09, 2022, Plaintiff, Defendant and Guarantor entered Company into an agreement (the "Agreement") whereby Plaintiff agreed to $56,800.00 ("Purchase buy Amount") of Company Defendant future receivables for a sum of $40,000.00 ("Purchase Price") with the Purchase Amount to be remitted to Plaintiff from I7 percent percent of Company 1 Defendant's future receivables. 6. In addition, Guarantor executed a guarantee of performance of all the representations, and 2 warranties, covenants made by the Company Defendant in the contract with Plaintiff. 7. On December 09, 2022, Plaintiff honored its end of the bargain and paid Company receivables.3 Defendant the Purchase Price, minus agreed to fees, for the future 8. Payments were initially made pursuant to the agreement but promptly stopped on or Agreement.4 about, January 26, 2023 thereby breaching the 9. On or about, January 26, 2023, Company Defendant defaulted under the terms of the Agreement by breaching its representations and warranties to Plaintiff thereunder and by failing to properly direct payments to Plaintiff. 10. Company Defendants, intentionally stopped remitting the purchased receivables to Plaintiff from the Bank Account without providing proper notice and failed to provide Plaintiffs proper financial disclosures or a written request for reconciliation, thereby breaching the agreement. 11. The Pay Run phrase submitted into evidence shows in the rightmost column that the ACH 3SeeNYSCEF A" doc no 2, "Exhibit Agreement, page 1, Future Receivables Sale and PurchaseAgreement. 2 SeeNYSCEF A" doc no 2, "Exhibit Agreement,. 3 SeeNYSCEF A" doc no 2, "Exhibit Agreement,. 4 SeeNYSCEF doc no 3, "Pay Run". - 2- 2 of 5 FILED: NASSAU COUNTY CLERK 09/26/2023 10:04 AM INDEX NO. 607877/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/26/2023 system returned account.5 the payment attempt on the Defendant's I2. Default" The clear terms enumerated in Section 6. "Events of makes a return/stopped payment attempt an event of default. "(a) Merchant intentionally interferes with Purchaser's right to collect the Specified Percentage"6 Defendants' 13. Plaintiff was never informed or consented to interference with the daily remittance. 14. Upon information and belief, Company Defendant is still open and in business and Plaintiff has not received any Receivables from Company Defendant since on or about on or about, January 26, 2023. 15. As of the date of this affirmation, Company Defendant has made payments totaling $11,360.76 leaving a balance of $45,439.24 of the purchase amount owed to Plaintiff. Agreement.7 16. Company Defendant owes Plaintiff $5,000.00 for a Default Fee under the 17. By reason of the foregoing, Plaintiff has been damaged by Company Defendant's breach of the Agreement in the sum of $50,439.24. 18. Guarantor has failed to perform pursuant to the guarantee as guarantor failed to remit the $50,439.24 owed to Plaintiff pursuant to the Agreement. 19. The Agreements stipulate that Company Defendant and Guarantor consent that the Agreement would be governed by the laws of the State of New York, that New York is the "Acceptable Forum", that the Acceptable Forum is convenient, that the parties are submitting to the jurisdiction of the Acceptable Forum and that the parties waive any and all objections to ' SeeNYSCEF doc no 4 "Pay Run". 6 See NYSCEF doc "Exhibit A" 2, Agreement, page 5, section 3.1 "Events of Default". 7 SeeNYSCEF doc no "Exhibit A" Agreement. 2, - 3 - 3 of 5 FILED: NASSAU COUNTY CLERK 09/26/2023 10:04 AM INDEX NO. 607877/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/26/2023 venue.8 inconvenience of the jurisdiction or 20. Plaintiff maintains an office and is registered to do business in the State of New York. 2 l. Plaintiff's Banks in the State of New York. 22. Plaintiff's contracts are drafted in State of New York and Plaintiff's personnel are located in the State of New York. 23. Defendants specifically waived objection to jurisdiction or venue. 24. New York has jurisdiction over Defendants and therefore Defendants motion to dismiss should be denied in its entirety. 25. Plaintiff respectfully requests that this Honorable Court issue an Order Denying Defendants motion to dismiss dated June 6, 2023 in its entirety. - Dated: / Louis Calderone Subscribed and Sworn to befor me on this day o Notary Public WitBam 0. Clyme York goggy Fmblic, State of New No. 01CL4379910 gasRned in New York C rJmemailmmismEmpires August 27, 8 "Agreement" page SeeNYSCEF doc no 2, 6, section 6.5. - 4 - 4 of 5 FILED: NASSAU COUNTY CLERK 09/26/2023 10:04 AM INDEX NO. 607877/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/26/2023 WORD COUNT CERTIFICATION I hereby certify pursuant to part 202.8-b of the Uniform Civil Rules for the Supreme Court & the County Court that this document according to the word count tool on Microsoft Word, the total number of words in this document is 818, consistent with the rule that (i) affidavits, affirmations, briefs and memoranda of law in chief be limited to 7,000 words each; (ii) reply affidavits, affirmations, and memoranda be no more than 4,200 words, and do not contain any arguments that do not respond or relate to those made in the memoranda in chief. Dated: September 19, 2023 Respectfully submitted, Nassau County, New York osef CK Feldman, Esq. Lieberman and Klestzick, LLP Attorneys for Plaintiff 71 S Central Avenue Valley Stream NY 11580 P: 516-900-6720 Email: yosef@landklegal.com - 5 - 5 of 5