On October 25, 2023 a
Motion-Secondary
was filed
involving a dispute between
Richard E Swinehart,
and
David G Mashewske,
for Commercial - Contract
in the District Court of Seneca County.
Preview
FILED: SENECA COUNTY CLERK 10/25/2023 03:29 PM INDEX NO. 20230333
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 10/25/2023
STATE OF NEW YORK
SUPREME COURT COUNTY OF SENECA
RICHARD E. SWINEHART,
Plaintiff,
- against -
Index No. ____
DAVID G. MASHEWSKE.
Defendant.
STATE OF NEW YORK )
: ss.:
COUNTYOF SENECA )
RICHARD E. SWINEHART, being duly sworn, deposes and says:
1. I am the plaintiff in this action and I submit this Affidavit in support of a motion
for summary judgment in lieu of a complaint, pursuant to the New York Civil Practice Law
and Rules ("CPLR") 3213, to obtain a judgment on the balance due on a promissory note made
"Defendant" "Mashewske"
by defendant David G. Mashewske (referred to as or in this
Affidavit).
2. This Affidavit is based upon my personal knowledge of the matters set forth
herein.
3. The Defendant and I had operated a law practice together, located in a
commercial building we owned in Waterloo, New York. We agreed to terminate the law
practice and Defendant agreed to pay me $60,000.00 in exchange for my transfer to him of any
interest I might have had or claimed in the receivables or value of the work-in-progress of the
law firm, and for the transfer of my interest in the commercial real estate to him as well.
4. I agreed to accept a promissory note from Defendant for the payment of the
amount he agreed to pay me.
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FILED: SENECA COUNTY CLERK 10/25/2023 03:29 PM INDEX NO. 20230333
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 10/25/2023
5. On or about November 20, 2013, the Defendant signed the promissory note and
agreed to pay me the principal amount of $60,000.00, with interest at 3% annually (the
"Note"). The Defendant signed the Note in my presence. A copy of the note is annexed to this
Affidavit as Exhibit A.
6. The Note called for the Defendant to make monthly payments of principal and
interest of $579.36. All payments were to be applied first to the payment of interest.
7. The Defendant made only irregular payments on the Note.
8. On numerous occasions, the Defendant acknowledged and reaffirmed his
obligations to satisfy the Note and promised that he would do so.
9. On July 19, 2023, I caused the Defendant to be personally served with a demand
for payment (the "Demand") that I prepared, advising him that he was in default of the
payment terms of the Note and demanding that he make immediate payment of the full amount
due. Copies of the Demand and Affidavit of Service upon Defendant are attached hereto
Exhibit B and C.
10. Thereafter, the Defendant did make one additional payment of $600.00.
11. To date, Defendant has made payments that, in the aggregate, total $9,208.72. I
have applied all of those payments to outstanding interest, as the Note requires. My counsel
has prepared a more detailed accounting of the balance of principal, interest and late fees due
on the Note, and that is attached to the accompanying Attorney's Affirmation of Carolyn G.
Nussbaum.
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FILED: SENECA COUNTY CLERK 10/25/2023 03:29 PM INDEX NO. 20230333
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 10/25/2023
Richard E. Swinehart
Sworn to before me this
day of October, 2023.
No ry Public CATHYA. FRONCZEK
Notary Public, Stein of New York
No.01FR5039332
QuaRHedin Cupga Comml|r
otaminalenE®"sFedinnery 21
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FILED: SENECA COUNTY CLERK 10/25/2023 03:29 PM INDEX NO. 20230333
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 10/25/2023
CERTIFICATE OF COMPLIANCE
I hereby certify pursuant to Rule 17 of the Rules of the Commercial Division of the
Supreme Court (Section 202.70), that the foregoing Affidavit of Richard E. Swinehart contains
439 words, as determined by the word count function of Microsoft Word, exclusive of the caption
and signature block, and therefore complies with the word count limit set forth in Rule 17.
Dated: October 25, 2023
Rochester, New York
By: /s/ Carolyn G. Nussbaum
Carolyn G. Nussbaum, Esq.
-4-
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Document Filed Date
October 25, 2023
Case Filing Date
October 25, 2023
Category
Commercial - Contract
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Preview
FILED: SENECA COUNTY CLERK 10/25/2023 03:29 PM INDEX NO. 20230333 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 10/25/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF SENECA RICHARD E. SWINEHART, Plaintiff, - against - Index No. ____ DAVID G. MASHEWSKE. Defendant. STATE OF NEW YORK ) : ss.: COUNTYOF SENECA ) RICHARD E. SWINEHART, being duly sworn, deposes and says: 1. I am the plaintiff in this action and I submit this Affidavit in support of a motion for summary judgment in lieu of a complaint, pursuant to the New York Civil Practice Law and Rules ("CPLR") 3213, to obtain a judgment on the balance due on a promissory note made "Defendant" "Mashewske" by defendant David G. Mashewske (referred to as or in this Affidavit). 2. This Affidavit is based upon my personal knowledge of the matters set forth herein. 3. The Defendant and I had operated a law practice together, located in a commercial building we owned in Waterloo, New York. We agreed to terminate the law practice and Defendant agreed to pay me $60,000.00 in exchange for my transfer to him of any interest I might have had or claimed in the receivables or value of the work-in-progress of the law firm, and for the transfer of my interest in the commercial real estate to him as well. 4. I agreed to accept a promissory note from Defendant for the payment of the amount he agreed to pay me. 1 of 4 FILED: SENECA COUNTY CLERK 10/25/2023 03:29 PM INDEX NO. 20230333 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 10/25/2023 5. On or about November 20, 2013, the Defendant signed the promissory note and agreed to pay me the principal amount of $60,000.00, with interest at 3% annually (the "Note"). The Defendant signed the Note in my presence. A copy of the note is annexed to this Affidavit as Exhibit A. 6. The Note called for the Defendant to make monthly payments of principal and interest of $579.36. All payments were to be applied first to the payment of interest. 7. The Defendant made only irregular payments on the Note. 8. On numerous occasions, the Defendant acknowledged and reaffirmed his obligations to satisfy the Note and promised that he would do so. 9. On July 19, 2023, I caused the Defendant to be personally served with a demand for payment (the "Demand") that I prepared, advising him that he was in default of the payment terms of the Note and demanding that he make immediate payment of the full amount due. Copies of the Demand and Affidavit of Service upon Defendant are attached hereto Exhibit B and C. 10. Thereafter, the Defendant did make one additional payment of $600.00. 11. To date, Defendant has made payments that, in the aggregate, total $9,208.72. I have applied all of those payments to outstanding interest, as the Note requires. My counsel has prepared a more detailed accounting of the balance of principal, interest and late fees due on the Note, and that is attached to the accompanying Attorney's Affirmation of Carolyn G. Nussbaum. - 2 - 2 of 4 FILED: SENECA COUNTY CLERK 10/25/2023 03:29 PM INDEX NO. 20230333 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 10/25/2023 Richard E. Swinehart Sworn to before me this day of October, 2023. No ry Public CATHYA. FRONCZEK Notary Public, Stein of New York No.01FR5039332 QuaRHedin Cupga Comml|r otaminalenE®"sFedinnery 21 - 3 - 3 of 4 FILED: SENECA COUNTY CLERK 10/25/2023 03:29 PM INDEX NO. 20230333 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 10/25/2023 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to Rule 17 of the Rules of the Commercial Division of the Supreme Court (Section 202.70), that the foregoing Affidavit of Richard E. Swinehart contains 439 words, as determined by the word count function of Microsoft Word, exclusive of the caption and signature block, and therefore complies with the word count limit set forth in Rule 17. Dated: October 25, 2023 Rochester, New York By: /s/ Carolyn G. Nussbaum Carolyn G. Nussbaum, Esq. -4- 4 of 4