Motion for Writ in Gloriak Corp. v. M.V.B. Collision Inc. d/b/a MID-ISLAND COLLISION| Trellis.Law

On October 07, 2021 a Exhibit,Appendix was filed involving a dispute between Gloriak Corp., and M.V.B. Collision Inc. D B A Mid-Island Collision, for Other Matters - Contract - Other in the District Court of Nassau County.

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(FILED: NASSAU COUNTY CLERK 10/07/2021 11:42 AM INDEX NO. 612818/2021
NYSCEF Doc, NO. 3
Ev-O77) 54 -19
EF: 10/07/2021

DISTRICT COURT OF THE COUNTY OF NASSAU
| | li |Ih I
Index No.
FIRST DISTRICT : CIVIL PART
mete ce eee eee nee nen nee n ene n een eee nnn n nee n neon en enone! Date Purchased:

GLORIAK CORP.,
SUMMONS
Plaintiff, Plaintiff's Address:
1979 Marcus Ave. Suite C100
Lake Success NY 11042
-against-

M.V.B. COLLISION INC. dba MID-ISLAND COLLISION,

Defendant.
The basis of the venue designated is
— peewee nnn nnn anne nee nn nena eae) residence of plaintiffplaintiff
To the above named defendant:

YOU ARE HEREBY SUMMONED and required to appear in the District Court of the County
of Nassau, First District, at the office of the Clerk of the said Court at 99 Main Street, Hempstead
NY 11550, in the county of Nassau, State of New York, by serving an answer to the annexed
complaint upon plaintiff's attorney, at the address stated below, or if there is no attorney, upon the
plaintiff, at the address stated above, within the time provided by law as noted below; upon your
failure t¢ ans BRC NRL against you for the relief demanded in the complaint,
together ith

Dated: eptember 23, 2019
Amos einberg.
SEP 27 2019
Attorney for Plaintiff. Office and P.O. Address:
49 Somerset Drive South, Great Neck NY
DISTRICT COURT - CIVIE TERM 11020-1821. Phone: (516) 829-3900. Email:
99 MAIN STREET. HEMPSTEAD NY 11550 amos@AmosLegal.com
NOTE: Thethatlaw provides
(a) If this summons is served by its delivery to you, or (for a corporation) an agent
authorized to receive service, personally within the County of Nassau, you must answer within 20
days after such service;
(b) If this summons is served otherwise than as designated in subdivision (a) above, you
are allowed 30 days to answer after the proof of service is filed with the Clerk of this Court.
(c) You are required to file a copy of your answer together with proof of service with the
clerk of the district in which the action is brought within ten days of the service of the answer.

Defendant Address: 468 Lakeview Ave.
Rockville Centre NY 11570
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2

DISTRICT COURT OF THE COUNTY OF NASSAU
FIRST DISTRICT - CIVIL TERM
X

GLORIAK CORP.,

Plaintiff, VERIFIED
-against- COMPLAINT

M.V.B. COLLISION INC. dba MID-ISLAND COLLISION,

Defendant.

Plaintiff complains of defendant:

First Cause of Action

1) The action arose or is within the personal and subject matter jurisdiction of the

court.

2) Both parties were organized under the laws of New York.

3) Plaintiff is an employer fee paid staffing and recruitment firm.

4) Heretofore, prior to Dec. 5, 2018, defendant required labor to perform services

for defendant as a result of which defendant contacted plaintiff and requested

plaintiff to furnish a temporary worker to the offices of defendant to perform

such services required by defendant.

5) At the time of such request, defendant agreed to pay plaintiff's charges based on

the hourly time that such worker, to be sent by plaintiff to the office of defendant,

was to work for defendant. Pursuant to the said understanding, defendant was

not to pay the said worker directly but to pay plaintiff for the services of the said

worker.
INDEX NO. 612818/2021
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6) Upon this understanding and agreement, plaintiffsent to the offices of defendant

one of its workers, Sharmista Chanda, who commenced working for defendant

as plaintiff's temporary worker.

71) Pursuant to the parties’ agreement and course of dealing, defendant signed time

for the hours worked by Sharmista Chanda:
sheets for plaintiff

CLIENT TERMS AND CONDITIONS
{By my signature below I eenify that the hours recorded by your GLORIA K emplayee on this shect are correct. The woris was performed in a sitisfactory manner.
In consideration of your having fumished the satisfactory services of the temporiry cmployce (temp) named below, we ugree that if within the next 365 days we, or any:
affiliate of ours, or any party with which we share office spaces, employ or contact this or any future temps assigned to us by you, directly or indirectly of through another
teimpornry service, 2 contractual placenient fee shall immediately become dute to you computed by the standard rate of 1% per each $1,000, to 2 maximum of 30% of the
starting annualized wage (the regulat starting weekly wage x 52 wecks) pald to or for such person. Such fee payable to you shall not be less than $2,500. We may not avoid
payment of any temporary labor bill becausc of any premature termination by the temp billed.
If we fail to pay the sums due to GLORIA K and our delinquent account is given to an atlomey for litigation or collection, we shall also pay GLORIA K’s attorney hits fees at
the attomey’s regular billing ratc up to the principal amount due to GLORIA K.
Unless essigned specifically for the purposes, the Client shall not autherizz or cause our employees to operate machinery, antomobiles, trucks or other automotive equipment
without firs{ obtaining written consent from GLORIA
It is understood that GLORIA & will not be liable for physical loss or damages caused by any GLORLA K employes in the course of his/her work, including the operation of
nny motor vehicle whether owned of rented. It is undcrstood that GLORIA K will not be liable for the ¢riminal abstraction and/or conversion of assets, negotiables and/or
securities of client's organization.
The client shall not advance cosh or other valuables to our Employees for any reason and the client specially waives any and all rights to offSet the emount of Value of such
cashor valuzble advanced against any money owed to GLORIA K
‘The client sexnowledges and understands thot GLORIAK inyoises are for labor and therelae apres to pay such invoices upon reesipt Ifnny delinquent amount is placed in.
the hands of an attomey for collection, the clicnt shall pay GLORIA K's uttomnicy his fees at the attorney's regular billing rate up to the prinoipal amount duc to GLORIA Ic.
All authorized work performed in excess of 40 hours per week (Mfon.-Sun) will be billed at time and one half the regular rate. Approval MUST be obtained from,
GLORIA K hy the Client before overtime can be authorized,
ie

gloriak 516 487-7200 PLEASE PRI
Fax 516 487~4891 re
PepLovos mSTRUCTIONS:
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ae fay Callicinn JOB
CATEGORY
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3. You must call GLORIA Xwhven you completa an apsigorment,
‘of ev wil eastins Yeu Bra not avaliablete
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waite fuss! Cian
| cerdty that tie nonrs shown were worked during ina woax R
shawn ana wey an
tepmsontativa of the company for Whleh [aier¥od. DIGITS ONLY
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4. Tha te your reseres Keep 2 copy wd ehesk againstour 2.GIVE PHOTOCOPY To
lavoige, Datory slain, piaews choca the ‘id write 2 CUENT,
(We tata in the aaa Bslow your aignat 3.KEEP A COPY FOR
2 Chamsorees to fTarfsa aed Concillone sbore. YOUR RECORDS.
3: Mal eriaina| to Gleria =
‘AuTHONEED CPACEA ANT asa!

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Bory ‘te MAE er CHEGIC
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4
Jan RETURNINO.
TO THIG ASSIONMENY Oo
TOTAL APrGVED
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vest) not]
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$e Tiavansas ron o
SPELL OUTHOURS AND MINUTES ae REFORF HOURS TO NEAREST 4/4 HOURS:
INDEX NO. 612818/2021
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/07/2021

CLIENT TERMS AND CONDITIONS
By my signature below I certify that the hours recorded by your GLORIA K employeeon this shect are correct, The work was performed in a satisfactory manner.
In consideration of your having furnished the satisfactory services of the temporary employes (temp) numed below, We agres that if within the next 365 days we, or ony
affitiate of ours, or any party with which we share office spaces, employ er contract thisor any future temps assigned {6 us by you, directly or indirectly or through another
temporary service, a controctusl placcment fee shall immediarcly become duc to you computed by the standard rate of 1% per cach $1,000, to 2 maximum of 30% of the
starting eqnualized wage (the regular starting weekly wage x $2 weeks) paid to or for such person , Such fee payable to you shell not be less than $2,500. We may notavoid
payment of any temporary labor bill because of any premature termination by the temp billed,
If-we fail to pay the sums duc to GLORIA K and our delinquent account is givento an attorney for litigation or collection, we shall also pay GLORIA K's attomey
his fees at
the attomey's regular billing rate up to the principal amount dueto GLORIA K.
Unless assigned specifically for the purposes, the Client shull not euthorize or cause our employees to operate machinery, automobiles, trucks or other automotive equipment
‘without first obtaining written consent from GLORIA K.
It is understood that GLORIA K will notbe lisble for physical loss or damages caused by zny GLORIA K employee in the course of his/her work, including the operation of
any motor vehicle whether owned or rented, It is understood that GLORIA K will noz be liable for the criminal abstraction and/or conversion of assets, negotiables end/or
securities of client's organization.
The client shall not udVanice cash or other Valuables to our Employees for any reason and the client specially waives any and all rights to offset the amount of value of such
cash or valuable advanced against any money owed to GLORIA K,
The client acknowledges and understands chat GLORIAK invoices are for labor and therefore agrees to pay such invoices upon receipt, If any delinquent amountis placed in.
the hands
of an sttomey for collection, the elicit shail pay GLORIA R’s attomey his fees at the aromey’s regular billing rate up to the principal smaunt dus to GLORIA
‘All authorized work performed in excess of40 hours pet r welt (Mon-Sun) ‘will be billed at time and one half the regular rate, Approval MUST. be goonies from
GLORIA K by the Client before overtime can be authorized,
eS ee

gloriak 516 487-7200 SE ERINT
Fax 516 487-4891 cei Rs rel hes aris qi
CUENT JOB
i@ wisrRUGNONS:
41. Flll aut He shost completaly or payehack will ba dalayed. mame Lid Islan Collision
2. Wa uure hobs shown fe coer t CLIENT
3 Yeu vst Call GLORIA K wnien you complete wn azsignment AopREss i} (5) loos 0a) fun.
‘oF We vil eosuime yeu ara not available to work,
have tad ned unaefotead tesa end the initructions below.
eae oats {1510
EMPLOYEE GOC,SECo =
So7Y
Fcortty that tha hours were werkad curing the Waal
[shewn eng wate properly by en La GO oigirs uty
epreventaliva of the carmpsny yeaa
Tors Er ae CSNa Bias a Bs say Fl
DIRGERawieissaes 1. MAL ORIGINALTO
=sS 9 = lta
Niehsieiyg GLORIA K.
2) Gear USE ONLY i Siig ‘iz RS 2.GIVE PHOTOCOPY TO
‘Sthia is yout reverd. Mesp 6 6eny and eneci against pur reser uf {& CLIENT,
‘evolga, Doterd signing. plgese hex the novra wad wry in
tha tata ln ths paca below ise
YW fz BS. 3,KEEP A COPY FOR
ya Tons and Cenaivons scove, isspiasaNg YOUR RECORDS.
Starecnane lovin
FETOREED OFFA PROT Becticciyng
oo MAL Ly CHECK
landed ee ae lees
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me
HOLD hey orice
Eyeing ———— 1AM RETURNS
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aeeae | 1G ASSIONMIGHT.
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Toms.NOT RETURNING — (>
TOYAL APPROVED HOUT tours aor
fi NAM AVALABLEFOF
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SPELL OUT HOURS AND MINUTES, 7 REPORT HOURS TONEARES
14 HOURS
T —

8) Thereafter, on or about Dec. 5, 2018, without notice to the plaintiff, nor

plaintiff's knowledge or consent, defendant hired and employed Sharmista

Chanda outside of the prior assignment by plaintiff.

9) Upon hiring and employing or having Sharmista Chanda work for it outside of
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the assignment of Sharmista Chanda by plaintiff, defendant no longer informed

plaintiff any more of the hourly time worked by Sharmista Chanda, no longer

filled out any time sheet of plaintiff for Sharmista Chanda, and had the wages of

Sharmista Chanda paid either directly or by a source other than plaintiff.

10)Upon hiring and employing or having Sharmista Chanda work for it outside of

the assignment of Sharmista Chanda by plaintiff, defendant intended not to pay

plaintiff any commission for any future hours worked by Sharmista Chanda.

11)Sharmista Chanda was employed in some capacity by defendant outside of his

assignment by plaintiff.

12)Sharmista Chanda was hired by defendant as a result of the referral and

introduction by plaintiff to defendant of Sharmista Chanda.

13)Sharmista Chanda worked for defendant outside of his assignment by plaintiff.

14)The said conduct and intent by defendant constituted a breach of the parties

agreement under which plaintiff had assigned Sharmista Chanda to work for

defendant.'

' Robert H. Smith Corp. v. Kraushaar, 34 N.Y.S.2d 356, 359, Sup. Ct. Queens
Cty. [1942]:
“In such case the conveyance is an act inconsistent with the recognition of the
contract and, as we have seen, amounts to a breach.' Suburban Improvement
Co. v. Scott Lumber Co., 4 Cir., 67 F.2d 335, 338, 90 A.L.R. 330.”
22A NY Jur 2d Contracts, Sec. 420 [1996]: "[WJhere a party to a *** contract
fails to comply with the duty imposed by the terms of the contract, a breach
results for which an action may be maintained to recover the damages sustained
thereby."
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15)The damages due to plaintiff for the breach of contract were determined by the

provisions of the above reproduced time sheets.

16)Defendant signed the said time sheets for Sharmista Chanda which, among

others, verified the hours worked by Sharmista Chanda.

17)The time sheet was signed by Brian (disregard any spelling error).

18)Brian was employed by defendant.

19)Brian was the supervisor of Sharmista Chanda.

20)Brian was authorized to sign the time sheet on behalf of defendant for the

purpose of verifying the hours worked.

21)Sharmista Chanda acted properly in having Brian sign the time sheet.

22)Brian was authorized to sign the time sheet on behalf of defendant.

23)Pursuant to the time sheet signed by defendant, and provisions incorporated

therein, defendant agreed to pay plaintiff an agreed fee in the event that

defendant hired Sharmista Chanda outside of the assignment of Sharmista

Chanda by plaintiff.

24)Sharmista Chanda was employed by defendant at a starting pay of $15 per hour.

25)Sharmista Chanda was employed by defendant at a starting annualized salary of

$31,200.

26)Pursuant to the said time sheet signed by defendant, and provisions incorporated

therein, there then became due and owing by defendant to plaintiff the fair and

reasonable and agreed fee of 30% of the said starting salary, equaling $9,360.00

due and owing to plaintiff, payment billed and failed or refused.
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27)Time sheet provisions for a fee to the temporary service upon its temp being

hired directly by the client have been uniformly enforced by the courts. Robert

Half v National Center For Health Education, N.Y.L.J., April 14, 1998, p. 25, c.

2, App. Term, First Dept.; Career Blazers of White Plains vs. Northern

Homefunding Corp., 194 Misc. 2d 518; Snelling Personnel _v Sakar Ltd.,

N.Y.L.J. Jan. 27, 2000, pg. 32, c. 1 (Nass. Dist. Ct.). The signed time sheets are

generally enforceable like any other signed document. American Utex Intl. v

ICC Corp., 74 A.D.2d 747, First Dept., aff'd 52 N.Y.2d 888; Blair v County of

Albany, 127 A.D. 2d 950, Third Dept. [1987]. The size or legibility of the print

is not material. Gillman v Chase Manhattan, 135 A.D.2d 488, 490, 491, Second

Dept. [1987].

28)Liquidated damages are to be treated like almost any other contract provision,

with the burden on the party opposing enforcement to prove “fraud, exploitive

overreaching or unconscionable conduct” JMD Holding v Congress Financial, 4

N.Y.3d 373, 380 [2005].

29)The 30% fee required, here, on a $31,200 salary, accords with the normal

employment agency fee due on commencement of employment of the candidate.

Robert Half Inc. v Mgt Corp., 102 Misc 2d 317, Appellate Term, First Dept.

("The fair and reasonable value of plaintiffs services was established by the

plaintiffs witness who qualified as an expert on employment agency fees,

status not disputed by defendant. He testified that on a salary of $22,000, the

‘standard fee would be 22%'."); Mestel & Company v Smythe Masterson &
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Judd, 215 A.D.2d 329, 330, First Dept. [1995] ("The trial court also properly

determined that defendant K&E was required to pay defendant Smythe $259,530

plus interest from June 1, 1991, representing 30% of Cowen's total first year

compensation of $865,100 as a K&E partner, as a placement fee for the Cowen

placement *** as an appropriate basis for the quantum meruit award".) The

damages to which an employment agency is entitled when its former temp is

hired is normally 1% per thousand to a maximum of 30% of the starting

annualized salary. Action Fashion Personnel v Warner's Intimate Apparel div.

W arnaco, 154 Misc. 2d 170, Civ. Ct. [1992] (30% fee of $34,000 salary); Robert

Hal. if v Levine-Baratto, 126 Misc. 2d 169, 170, Civ. Ct. N.Y. Cty. [1984] (25%

of $25,000 salary); Robert Half vy National Center For Health Educ., N.Y.LJ.

Apr. 14, 1998, p. 25, c. 2, App. Term, First Dept. (“"[P]laintiff's motion for

summary judgment in the amount of $14,500 is granted. *** Plaintiff, an

employment agency, seeks to recover a $14,500 fee allegedly earned upon the

defendant's full-time hiring of a temporary employee referred by plaintiff *** in

an amount based on the employee's annual salary. *** an annual salary of

$50,000").

30)The per cent per thousand to a maximum of 30% liquidated damage provision is

a fair estimate, of the full extent of the injury that would be sustained by plaintiff

as a result of breach of the agreement, if a full fee was charged.

31)Pursuant to the said time sheet signed by defendant, and provisions therein, there

became due and owing by defendant to plaintiff the contractual fee of $9,360.00.

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32)Defendant failed or refused to pay any fee to plaintiff for defendant’s direct

employment of Sharmista Chanda.

Second Cause of Action

33)If the Court refuses enforcement of the time sheet in order to determine the

amount of plaintiffs damages, the plaintiff respectfully requests judgment upon

unjust enrichment, value had and received, quantum meruit, etc,?

34)The time sheet did inform defendant of the amount of damages sought?

35)The receipt by defendant of the time sheet is by itself sufficient alternative proof

Potter v. Emerol Mfg. Co., 275 A.D. 265, 268-269, First Dept. [1949]:
“There remains for consideration the plaintiffs’ causes of action in quantum
meruit, The defendant concedes that the plaintiffs may resort to quantum meruit
even after an unsuccessful suit in contract. (See Elsfelder v. Cournand, 270 App.
Div. 162.) The question, however, is whether these counts have been properly
pleaded so as to withstand the defendant's motion to dismiss. They appear to be
based on the identical agreement alleged under the contract causes of action. *
* * The plaintiffs, however, may each have a cause of action in quantum meruit
that can be established independently of any express agreement with the
defendant. If so, they may plead the same in a proper manner by way of an
amended complaint alleging the rendition of services at the request of the
defendant and their reasonable value.”

3 Fashion Careers v Alex Apparel, 180 Misc. 2d 95, 96, App. Term, First Dept.
[1999]:
"Defendant's conduct in hiring the job candidate referred by plaintiff, together
with its demonstrated knowledge that a specified fee structure would become
operative upon such hiring, constituted acceptance of the terms on which the
referral was offered (see, Costello Assocs. v Standard Metals Corp., 99 AD2d
227, 231, appeal dismissed 62 NY2d 942)."

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NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 10/07/2021

of the amount due.*

Third Cause of Action

36)The above reproduced timesheets also obligated defendant to pay plaintiff's

attorney fees.

37)The billing rate of plaintiff's attorney since January 2007, and continuing, has

been $400 per hour.

38)The time spent is presently recorded below.

WHEREFORE, plaintiff respectfully demands judgment against defendant for

$9,360.00 with interest from Dec. 5, 2018 and costs.

Dated: September 23, 2019

Amos Weinberg.
Attorney for Plaintiff
Office and P.O. Address:

4 Robert Half Inc. v Mgt Corp., 102 Misc 2d 317, App. Term, First Dept. [1979]:
"[E]ven assuming that the court erred in concluding that there had been an
agreement between the parties as to the fee, the plaintiff would have been entitled
to recover in quantum meruit for the fair and reasonable value of the services
rendered [citation]. The fair and reasonable value of plaintiff's services was
established by the plaintiff's witness who qualified as an expert on employment
agency fees, a status not disputed by defendant. He testified that on a salary of
$22,000, the ‘standard fee would be 22%’. In Pilot Employment Serv. v
Afrointernational Corp. [], this court considered an employment agency contract
wherein the oral agreement of the parties was silent as to the amount of the
agency's fee. We there adopted the fee schedule contained in subdivisions 4 and
7 of section 185 of the General Business Law ‘in the absence of any other
testimony’. In this case, since the testimony as to the value of the services
rendered was supplied by an expert witness, recourse to the schedule set forth in
subdivision 7 of section 185 of the General Business Law would not be required."
Same, Winston Personnel v Miller-Druck, N.Y.L.J. 5/24/95, p. 25, c. 6, App.
Term, First Dept.:

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49 Somerset Drive South
Great Neck NY 11020-1821
Phone: (516) 829-3900.
Email: aw@awLaw.US
Addendum of Attorney time:
Sep. 19:
9:20 am. — 12:20 PM; 1;30 PM — 4:25 PM: Review of initial documents emailed.
Investigation with internet and NYS Department of State, Bureau of Corporations web
sites, for exact identity of defendant. Email to client if had prior check. Preparation of
Excel data source record. Preparation of MS Word case file. Prep: aration of complaint.
Email to client of progress.
Sep. 23
8:55 am. — 10:05 a.m.: Preparation of summons, completion of complaint,
verification, transmittal documents. Preparation of attorney fee agreement. Email to
client of complaint and verification with instructions.
Sep. 24
12:40 PM — 1:15 PM: Email from client with verification. Review file and emails.
Further completion of complaint with attorney time. Assembly of documents for
paralegal.

13
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DISTRICT COURT OF THE COUNTY OF NASSAU Index No.
FIRST DISTRICT - CIVIL TERM
Xx

GLORIAK CORP.,

Plaintiff, AFFIDAVIT and
-against- VERIFICATION

M.V.B. COLLISION INC. dba MID-ISLAND COLLISION,

Defendant.

State of New York, County of Nassau, ss.:

Chet Gottshall, being duly sworn, deposes and says:

I am president of the plaintiff, which charges fees only to the companies and

employers with whom we find people jobs.

I have read the allegations of the complaint and the same are true to my own

knowledge, except as to the allegations of:

e the court’s jurisdiction

the latter of which I believe to be true upon information and belief based upon the

legal advice and research of counsel.

I have negotiated hundreds of placement fees in the course of my duties as an officer

of an employment agency in the business of employee placement, staffing and recruitment.

The percent per thousand to a maximum of 30% of the starting annualized salary charged

by plaintiff's time sheet is a fair approximation of the full fec for placement of an employee
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where there is neithcr any negotiation of a discount for multiple placements nor any

projection of additional job orders.

Chet Gottshall
Swom to before me
September 23, 2019

JOLANTA SCHMIDT
WOTARY FUBLIC, STATE OF NEW YORE,
Registration Na. O1SCSC02401
Qualified to Ne
FP )2022.
My Commission Expires +
(FILED: NASSAU COUNTY CLERK 10/07/2021 I1:42 AM INDEX NO. 612818/2021
NYSCEF DOC. NO. 3 RECEIVED NYSCEF 10/07/2021

Index No.

DISTRICT COURT OF THE COUNTY OF NASSAU
FIRST DISTRICT - CIVIL TERM
ween enn en ene eee ence e ene anne nnn amene:

GLORIAK CORP.,

Plaintiff,
-against-

M.V.B. COLLISION INC. dba MID-ISLAND COLLISION,

Defendant.

nesocec
wa newacecwsnnnsaeee acseces
a wenne tenn aneeeuecwneenne eenen! Xx

SUMMONS AND VERIFIED COMPLAINT
meee eee n ne nn nen ne ne eee n nnn nnae wenenneX

Amos Weinberg
Attorney for Plaintiff
Office and P.O. Address
49 Somerset Dr. S.
Great Neck, N.Y. 11020
(516) 829-3900 email: aw@awLaw.US

Case Info

Judge

James Mccormack Track Judge’s New Case

Case No.

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Document Filed Date

October 07, 2021

Case Filing Date

October 07, 2021

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Exhibit,Appendix: Gloriak Corp. v. M.V.B. Collision Inc. d/b/a MID-ISLAND COLLISION

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