Preview
FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/18/2023
SUPREME COURT
STATE OF NEW YORK COUNTY OF OSWEGO
TBF FINANCIAL, LLC Plaintiff designates Oswego
870 Sheridan Road County as the place of trial
Highwood, Illinois 60040
The basis of venue is
Defendants'
principal
Plaintiff, place of residence.
vs.
PERFORMANCE HEATING AND COOLING, INC. SUMMONS
662 S Main Street
Central Square, NY 13036
SEAN P. BEARDSLEY
351 County Route 4
Central Square, NY 13036
KENNETH C. SCOTT JR.
4334 Cinnamon Path
Liverpool, NY 13090
Defendants.
TO THE ABOVE-NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this
action, and to serve a copy of your Answer, or, if the Verified Complaint is not served with
this Summons, to serve a Notice of Appearance, on Plaintiff's attorney(s) within twenty
(20) days after the service of this Summons, exclusive of the day of service (or within thirty
[30] days after the service is complete if this Summons is not personally delivered to you
within the State of New York); and in case of your failure to appear or answer, judgment
will be taken against you by default for the relief demanded in the Verified Complaint.
[SIGNATURE PAGE TO FOLLOW]
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Dated: October _/E 2023
BOYLAN CODE LLP
Attorneys for Plaintiff
TBF Financial, LLC
By:
Michael J an, Esq.
Robert . Marks, Esq.
Culver Road Armory
145 Culver Road, Suite 100
Rochester, New York 14620
Telephone: (585) 232-5300
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SUPREME COURT
STATE OF NEW YORK COUNTY OF OSWEGO
TBF FINANCIAL, LLC
Plaintiff,
vs.
PERFORMANCE HEATING AND COOLING, INC. COMPLAINT
662 S Main Street
Central Square, NY 13036
SEAN P. BEARDSLEY
351 County Route 4
Central Square, NY 13036
KENNETH C. SCOTT JR.
4334 Cinnamon Path
Liverpool, NY 13090
Defendants.
("TBF"
Plaintiff TBF Financial, LLC or "Plaintiff"), by and through its attorneys, Boylan
Code LLP, as and for its Verified Complaint against Defendants, Performance Heating and Cooling,
Inc., Sean P. Beardsley and Kenneth C. Scott ,Jr., states as follows:
1. Plaintiff is a limited liability company having its principal place of business at 870
Sheridan Road, Highwood, Illinois 60040.
2. Upon information and belief, Defendant Performance Heating and Cooling, Inc.
("PHC") is a domestic liability corporation with a principal place of business in the County of
Oswego, State of New York.
3. Upon information and belief, Defendant Sean P. Beardsley ("Beardsley") is a natural
person residing in the County of Oswego, State of New York.
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4. Upon information and belief, Defendant, Kenneth C. Scott Jr. ("Scott") is a natural
person residing in the County of Onondaga, State of New York.
FACTS
5. On or about March 17, 2017, PHC entered into a Future Receivables Sales Agreement
("Agreement #1") with Swift Financial Corporation ("Swift"). A copy of the Agreement is annexed
as Exhibit A.
6. Under the Agreement, Swift purchased 2.0% of PHC's future receivables for the
purchase price of $12,000.00.
7. To allow Swift to collect its share of PHC's purchased revenue stream, PHC
permitted Swift to debit the amount of $292.23 per week out of a designated account into which
PHC's revenue was deposited until such time as Swift collected a total of $14,027.00.
8. The Agreement provides for a Collections Administration Fee in the event of default
equal to ten percent (10%) of the then-current remaining amount sold under the Agreement. Exhibit
A, Additional Terms and Conditions, § 4.
9. Defendants Beardsley and Scott unconditionally guarantied full payment and
performance of PHC's obligations under the Agreement. Exhibit A, Additional Terms and
Conditions, § 5.
10. On or about December 19, 2019, PHC assigned all of its rights, title, and interest in
the Agreement to Plaintiff. A true and accurate copy of the Bill of Sale is annexed hereto and made
part of Exhibit B.
11. On or about June 5, 2017, PHC entered into a Purchase and Sale of Future
Receivables agreement ("Agreement #2") with Swift. A copy of the Agreement is annexed as
Exhibit C.
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12. Under Agreement #2, Swift purchased 12.0% of PHC's future revenue stream for the
purchase price of $57,000.00.
13. To allow Swift to collect its share of PHC's purchased revenue stream, PHC
permitted Swift to debt the amount of $1281.38 per week out of a designated account into which
PHC's revenue was deposited until such time as Swift collected a total of $66,632.00.
14. Agreement #2 provides for a Collections Administration Fee equal to ten percent
(10%) of the then-current remaining amount sold under the Agreement. Exhibit C, Additional Terms
and Conditions, § 4.
15. Defendants Beardsley and Scott unconditionally guarantied full payment and
performance of PHC's obligations under the Agreement. Exhibit C, Additional Terms and
Conditions, § 5.
16. On or about December 19, 2019, PHC assigned all of its rights, title, and interest in
the Agreement to Plaintiff. A true and accurate copy of the Bill of Sale is annexed hereto and made
part of Exhibit D.
17. PHC defaulted under Agreement #1 by failing to make funds available to Swift in the
account designated for debit on June 7, 2018 and each week thereafter.
18. PHC defaulted under Agreement #2 by failing to make funds available to Swift in the
account designated for debit on June 7, 2018 and each week thereafter.
FIRST CAUSE OF ACTION (AGAINST PHC)
19. The foregoing paragraphs are repeated and realleged with the same force and effect
as if they were fully set forth herein.
20. PHC defaulted under the terms of Agreement #1 by failing to make funds available
to Swift in the account designated for debit.
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21. Plaintiff, as the current owner of the debt, is entitled to recover against PHC the
amount of $2,680.03.
SECOND CAUSE OF ACTION (AGAINST PHC)
22. The foregoing paragraphs are repeated and realleged with the same force and effect
as if they were fully set forth herein.
23, PHC defaulted under the terms of Agreement #2 by failing to make funds available
to Swift in the account designated for debit.
24. Plaintiff, as the current owner of the debt, is entitled to recover against PHC the
amount of $30,084.74.
THIRD CAUSE OF ACTION (AGAINST BEARDSLEY AND SCOTT)
25. The foregoing paragraphs are repeated and realleged with the same force and effect
as if they were fully set forth herein.
26. PHC defaulted under the terms of Agreement #1 by failing to make funds available
to Swift in the account designated for debit.
27. Defendants Beardsley and Scott have failed, neglected and/or refused to take up and
pay their respective guaranties of PHC's obligations under Agreement #1.
28. Plaintiff, as the current owner of the debt, is entitled to recover against Defendants
Beardsley and Scott the amount of $2,680.03.
FOURTH CAUSE OF ACTION (AGAINST BEARDSLEY AND SCOTT)
29. The foregoing paragraphs are repeated and realleged with the same force and effect
as if they were fully set forth herein.
30. PHC defaulted under the terms of Agreement #2 by failing to make funds available
to Swift in the account designated for debit.
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31. Defendants Beardsley and Scott have failed, neglected and/or refused to take up and
pay their respective guaranties of PHC's obligations under Agreement #2.
32. Plaintiff, as the current owner of the debt, is entitled to recover against Defendants
Beardsley and Scott the amount of $30,084.74.
FIFTH CAUSE OF ACTION
33. The foregoing paragraphs are repeated and realleged with the same force and effect
as if they were fully set forth herein.
34. The Agreements provide that Defendants shall be responsible for Plaintiff's
attorneys'
reasonable fees. Exhibits A and C, § 8(c).
35. Plaintiff, as current owner of the debt, referred this matter to Boylan Code LLP, none
of whose attorneys or employees are salaried employees of Plaintiff.
36. Therefore, there is an additional amount due Plaintiff from Defendants for Plaintiff's
attorneys'
reasonable fees in an amount to be determined by the Court.
WHEREFORE, Plaintiff respectfully requests a judgment against Defendants as follows:
A. On its first cause of action, against PHC, in the amount of $2,680.03, together with
interest from June 22, 2018;
B. On its second cause of action, against PHC, in the amount of $30,084.74;
C. On its third cause of action, against Defendants Beardsley and Scott, in the amount
of $2,680.03;
D. On its fourth cause of action, against Defendants Beardsley and Scott, in the amount
of $30,084.74;
attorneys'
E. An award of fees in an amount to be determined by the Court;
F. The costs and disbursements of this action; and
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C. Such other and further relief as the Court deems just and proper.
Dated: Rochester, New York
October ji_, 2023
BOYLAN CODE LLP
Attorneys for Plaintiff
TBF Financial, LLC
Michael . e an, Esq.
Robert J. Mar s, Esq.
145 Culver Road, Suite 100
Rochester, New York 14620
Telephone: (585) 232-5300
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VERIFICATION
STATE OF ILLINOIS )
COUNTY OF LAKE ) ss.:
Brett Boehm, being duly sworn, deposes and says that he is the Manager for TBF Financial,
LLC; that he has read the foregoing Verified Complaint and knows the contents thereof; that the
same is true to his own knowledge, except as to the matters therein stated to be alleged on
information and belief, and that as to those matters, he believes them to be true.
Brett Boehm
Sworn to before me this
1 of October, 2023
tary ub ic
OFFICIAL SEAL
LAUREN J WORSTER
NOTARYPUSUC- STATEOF !LUNO!S
5 MY COMMISSIONEXPIRES:12/03|23
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Preview
FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/18/2023 SUPREME COURT STATE OF NEW YORK COUNTY OF OSWEGO TBF FINANCIAL, LLC Plaintiff designates Oswego 870 Sheridan Road County as the place of trial Highwood, Illinois 60040 The basis of venue is Defendants' principal Plaintiff, place of residence. vs. PERFORMANCE HEATING AND COOLING, INC. SUMMONS 662 S Main Street Central Square, NY 13036 SEAN P. BEARDSLEY 351 County Route 4 Central Square, NY 13036 KENNETH C. SCOTT JR. 4334 Cinnamon Path Liverpool, NY 13090 Defendants. TO THE ABOVE-NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action, and to serve a copy of your Answer, or, if the Verified Complaint is not served with this Summons, to serve a Notice of Appearance, on Plaintiff's attorney(s) within twenty (20) days after the service of this Summons, exclusive of the day of service (or within thirty [30] days after the service is complete if this Summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Verified Complaint. [SIGNATURE PAGE TO FOLLOW] 1 of 9 FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/18/2023 Dated: October _/E 2023 BOYLAN CODE LLP Attorneys for Plaintiff TBF Financial, LLC By: Michael J an, Esq. Robert . Marks, Esq. Culver Road Armory 145 Culver Road, Suite 100 Rochester, New York 14620 Telephone: (585) 232-5300 2 2 of 9 FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/18/2023 SUPREME COURT STATE OF NEW YORK COUNTY OF OSWEGO TBF FINANCIAL, LLC Plaintiff, vs. PERFORMANCE HEATING AND COOLING, INC. COMPLAINT 662 S Main Street Central Square, NY 13036 SEAN P. BEARDSLEY 351 County Route 4 Central Square, NY 13036 KENNETH C. SCOTT JR. 4334 Cinnamon Path Liverpool, NY 13090 Defendants. ("TBF" Plaintiff TBF Financial, LLC or "Plaintiff"), by and through its attorneys, Boylan Code LLP, as and for its Verified Complaint against Defendants, Performance Heating and Cooling, Inc., Sean P. Beardsley and Kenneth C. Scott ,Jr., states as follows: 1. Plaintiff is a limited liability company having its principal place of business at 870 Sheridan Road, Highwood, Illinois 60040. 2. Upon information and belief, Defendant Performance Heating and Cooling, Inc. ("PHC") is a domestic liability corporation with a principal place of business in the County of Oswego, State of New York. 3. Upon information and belief, Defendant Sean P. Beardsley ("Beardsley") is a natural person residing in the County of Oswego, State of New York. 3 of 9 FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/18/2023 4. Upon information and belief, Defendant, Kenneth C. Scott Jr. ("Scott") is a natural person residing in the County of Onondaga, State of New York. FACTS 5. On or about March 17, 2017, PHC entered into a Future Receivables Sales Agreement ("Agreement #1") with Swift Financial Corporation ("Swift"). A copy of the Agreement is annexed as Exhibit A. 6. Under the Agreement, Swift purchased 2.0% of PHC's future receivables for the purchase price of $12,000.00. 7. To allow Swift to collect its share of PHC's purchased revenue stream, PHC permitted Swift to debit the amount of $292.23 per week out of a designated account into which PHC's revenue was deposited until such time as Swift collected a total of $14,027.00. 8. The Agreement provides for a Collections Administration Fee in the event of default equal to ten percent (10%) of the then-current remaining amount sold under the Agreement. Exhibit A, Additional Terms and Conditions, § 4. 9. Defendants Beardsley and Scott unconditionally guarantied full payment and performance of PHC's obligations under the Agreement. Exhibit A, Additional Terms and Conditions, § 5. 10. On or about December 19, 2019, PHC assigned all of its rights, title, and interest in the Agreement to Plaintiff. A true and accurate copy of the Bill of Sale is annexed hereto and made part of Exhibit B. 11. On or about June 5, 2017, PHC entered into a Purchase and Sale of Future Receivables agreement ("Agreement #2") with Swift. A copy of the Agreement is annexed as Exhibit C. 2 4 of 9 FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/18/2023 12. Under Agreement #2, Swift purchased 12.0% of PHC's future revenue stream for the purchase price of $57,000.00. 13. To allow Swift to collect its share of PHC's purchased revenue stream, PHC permitted Swift to debt the amount of $1281.38 per week out of a designated account into which PHC's revenue was deposited until such time as Swift collected a total of $66,632.00. 14. Agreement #2 provides for a Collections Administration Fee equal to ten percent (10%) of the then-current remaining amount sold under the Agreement. Exhibit C, Additional Terms and Conditions, § 4. 15. Defendants Beardsley and Scott unconditionally guarantied full payment and performance of PHC's obligations under the Agreement. Exhibit C, Additional Terms and Conditions, § 5. 16. On or about December 19, 2019, PHC assigned all of its rights, title, and interest in the Agreement to Plaintiff. A true and accurate copy of the Bill of Sale is annexed hereto and made part of Exhibit D. 17. PHC defaulted under Agreement #1 by failing to make funds available to Swift in the account designated for debit on June 7, 2018 and each week thereafter. 18. PHC defaulted under Agreement #2 by failing to make funds available to Swift in the account designated for debit on June 7, 2018 and each week thereafter. FIRST CAUSE OF ACTION (AGAINST PHC) 19. The foregoing paragraphs are repeated and realleged with the same force and effect as if they were fully set forth herein. 20. PHC defaulted under the terms of Agreement #1 by failing to make funds available to Swift in the account designated for debit. 3 5 of 9 FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/18/2023 21. Plaintiff, as the current owner of the debt, is entitled to recover against PHC the amount of $2,680.03. SECOND CAUSE OF ACTION (AGAINST PHC) 22. The foregoing paragraphs are repeated and realleged with the same force and effect as if they were fully set forth herein. 23, PHC defaulted under the terms of Agreement #2 by failing to make funds available to Swift in the account designated for debit. 24. Plaintiff, as the current owner of the debt, is entitled to recover against PHC the amount of $30,084.74. THIRD CAUSE OF ACTION (AGAINST BEARDSLEY AND SCOTT) 25. The foregoing paragraphs are repeated and realleged with the same force and effect as if they were fully set forth herein. 26. PHC defaulted under the terms of Agreement #1 by failing to make funds available to Swift in the account designated for debit. 27. Defendants Beardsley and Scott have failed, neglected and/or refused to take up and pay their respective guaranties of PHC's obligations under Agreement #1. 28. Plaintiff, as the current owner of the debt, is entitled to recover against Defendants Beardsley and Scott the amount of $2,680.03. FOURTH CAUSE OF ACTION (AGAINST BEARDSLEY AND SCOTT) 29. The foregoing paragraphs are repeated and realleged with the same force and effect as if they were fully set forth herein. 30. PHC defaulted under the terms of Agreement #2 by failing to make funds available to Swift in the account designated for debit. 4 6 of 9 FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/18/2023 31. Defendants Beardsley and Scott have failed, neglected and/or refused to take up and pay their respective guaranties of PHC's obligations under Agreement #2. 32. Plaintiff, as the current owner of the debt, is entitled to recover against Defendants Beardsley and Scott the amount of $30,084.74. FIFTH CAUSE OF ACTION 33. The foregoing paragraphs are repeated and realleged with the same force and effect as if they were fully set forth herein. 34. The Agreements provide that Defendants shall be responsible for Plaintiff's attorneys' reasonable fees. Exhibits A and C, § 8(c). 35. Plaintiff, as current owner of the debt, referred this matter to Boylan Code LLP, none of whose attorneys or employees are salaried employees of Plaintiff. 36. Therefore, there is an additional amount due Plaintiff from Defendants for Plaintiff's attorneys' reasonable fees in an amount to be determined by the Court. WHEREFORE, Plaintiff respectfully requests a judgment against Defendants as follows: A. On its first cause of action, against PHC, in the amount of $2,680.03, together with interest from June 22, 2018; B. On its second cause of action, against PHC, in the amount of $30,084.74; C. On its third cause of action, against Defendants Beardsley and Scott, in the amount of $2,680.03; D. On its fourth cause of action, against Defendants Beardsley and Scott, in the amount of $30,084.74; attorneys' E. An award of fees in an amount to be determined by the Court; F. The costs and disbursements of this action; and 5 7 of 9 FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/18/2023 C. Such other and further relief as the Court deems just and proper. Dated: Rochester, New York October ji_, 2023 BOYLAN CODE LLP Attorneys for Plaintiff TBF Financial, LLC Michael . e an, Esq. Robert J. Mar s, Esq. 145 Culver Road, Suite 100 Rochester, New York 14620 Telephone: (585) 232-5300 6 8 of 9 FILED: OSWEGO COUNTY CLERK 10/18/2023 03:47 PM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/18/2023 VERIFICATION STATE OF ILLINOIS ) COUNTY OF LAKE ) ss.: Brett Boehm, being duly sworn, deposes and says that he is the Manager for TBF Financial, LLC; that he has read the foregoing Verified Complaint and knows the contents thereof; that the same is true to his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters, he believes them to be true. Brett Boehm Sworn to before me this 1 of October, 2023 tary ub ic OFFICIAL SEAL LAUREN J WORSTER NOTARYPUSUC- STATEOF !LUNO!S 5 MY COMMISSIONEXPIRES:12/03|23 7 9 of 9