Preview
FILED: ROCKLAND COUNTY CLERK 11/17/2021 03:54 PM INDEX NO. 034337/2021
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
----------X
HOWARD FOX Index No: 034337/2021
Plaintiff, REPLY AFFIRMATION
- against - IN FURTHER
SUPPORT OF MOTION
EVOMED IMAGING LLC d/b/a EVOI PRODUCTIONS, FOR DEFAULT AND
EVO MED IMAGING PRODUCTIONS LLC a/k/a JUDGMENT FOR A
EVOI PRODUCTIONS, MICHELLE WONG, SUM CERTAIN
INDIVIDUALLY, NUNNA SRINIVAS, INDIVIDUALLY,
JASON RODRIGUEZ, INDIVIDUALLY, and
JOHN DOE AND JANE DOE #1 through #10,
INDIVIDUALLY, REPRESENTING THE TOP 10 MEMBERS
OF EVOMED IMAGING LLC and/or EVO MED IMAGING
PRODUCTIONS LLC,
Defendants.
-------------------------X
EILEEN M. BURGER, ESQ., an attorney duly admitted before the Courts of the State of
New York, affirms the following statements under the penalties of perjury:
1. I am a member of Mitchell Pollack & Associates, PLLC, attorneys for the
Plaintiff, HOWARD FOX ("FOX"), and I am familiar with the facts set forth based upon my
review of the legal file maintained by this office and communications with the Plaintiff.
Plaintiffs'
2. I submit this Reply Affirmation in further support of the Motion for an
Order entering a default against the Defendants, EVOMED IMAGING LLC d/b/a EVOI
PRODUCTIONS and EVO MED IMAGING PRODUCTIONS LLC a/k/a EVOI
PRODUCTIONS (collectively "EVOI"), and JOHN DOE AND JANE DOE #1 through #10,
representing the Top 10 Members of EVOI (collectively the "Subject Defendants"); and
awarding a default judgment for a sum certain in favor of the Plaintiff as against the Defendants,
EVOMED IMAGING LLC d/b/a EVOI PRODUCTIONS and EVO MED IMAGING
PRODUCTIONS LLC a/k/a EVOI PRODUCTIONS, joint and severally, as provided for
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under the Employment Agreement effective May 4, 2020, together with such other and further
relief as the Court deems just and proper.
3. In the alternative, the Plaintiff requests that the Court issue a default judgment
against all of the Subject Defendants and schedule an Inquest to determine the legal and
equitable damages sustained by the Plaintiff as a result of the actions of the Subject Defendants
in connection with its causes of action for breach of contract set forth in the Complaint.
4. To date, the corporate Defendants, EVOMED IMAGING LLC d/b/a EVOI
PRODUCTIONS and EVO MED IMAGING PRODUCTIONS LLC a/k/a EVOI
PRODUCTIONS and the JOHN DOE AND JANE DOE representative defendants, have not
filed an Answer, responsive pleading, or opposition to this Motion nor has counsel for any
EVOI entity contacted Plaintiff's counsel.
5. On November 16, 2021, the Defendants, Michelle Wong and Nunna Srinivas,
filed Affidavits in Opposition, in their individual capacity. At the outset, the opposition
papers are untimely pursuant to CPLR 2214(b) as they were to be served at least seven (7)
Defendants'
days before the return date. In addition, the individual affidavits must not be
considered in analyzing the motion for default judgment as against the corporate defendanto
EVOI, despite Ms. Wong and Mr. Srinivas being the Chief Executive Officer and Chief
Operating Officer of said Company(ies), respectively.
6. Significantly, under CPLR 321(a), the general rule is that a fictional person
and/or legal entity with limited liability such as EVOI, and the John Doe and Jane Doe
Defendants, may not represent themselves, and must have a licensed attorney file an
âppearance on their behalf. See, CPLR 321(a); The People by Lefkowitz v. Therapeutic
Hypnosis, 83 Misc. 2d 1068, 1069 (Sup. Ct. 1975); Matter of Sharon B., 72 N.Y.2d 394, 398
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NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2021
(1988). As such, the EVOI entities and the John Doe and Jane Doe Defendants are non-
appearing and currently in default.
Srinivas'
7. Moreover, contrary to Ms. Wong and Mr. assertions, EVOI hired the
Plaintiff, Fox, during the height of the Covid-19 pandemic with lofty promises and an
employment contract with set terms and provisions regarding compensation. Mr. Fox diligently
worked over a year for the Company and only received ONE paycheck. Ms. Wong was not
caught off guard by the pandemic when hiring Mr. Fox, as she made these promises in April and
May of 2020, being well aware that the country was in the middle of quarantining and a major
shutdown of most of entertainment and sports productions and venues.
Srinivas' himself"
8. Mr. claim that he asked Mr. Fox to "furlough or "seek
elsewhere"
employment is patently false and, nonetheless, it should be the Company that makes
that decision. The text message and email evidence will support that Wong and Srinivas led Mr.
Fox down a rosy path with false promises of PPP and personal loans applied for and third-
being
party investments being sought to cover payroll or excuses that EVOI the subject of IRS audits,
and, in actuality, it was the individual Defendants who did not want to formally terminate Fox or
let him leave because there are unambiguous severance provisions in the Contract to provide the
B"
Plaintiff with an additional year of salary upon separation from EVOI. See, Ex. §3(a); Ex.
"A"
¶¶23-58.
9. As evidenced by Exhibit "I", Ms. Wong's April 30, 2021 reflects that Mr. Fox
had been furloughed but she agreed to pay him the back pay and commissions earned during that
time period. See, Ex. "I". To date, however there has been no formal separation from EVOI.
10. EVOI had every opportunity to hire its employees at-will and pay them weekly or
bi-weekly until its financial position was clearer; however, EVOI's CEO, Wong, and COO,
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Srinivas, affirmatively chose to offer Fox the Contract that is the basis of this action, which they
do not dispute is valid and enforceable. Mr. Fox is entitled to the benefit of the contract he
bargained for and, prior to filing this motion, counsel has given the individual defendants every
opportunity to come to a reaseñable resolution of this dispute commensurate to the work
unquestionably and dutifully performed, to no avail.
Srinivas'
11. The Plaintiff contests Mr. self-serving statements concerning his
financial status and, particularly that he was unemployed during the time frame represented, and
contends that the evidence will prove otherwise. Nonetheless, the personal financial situations of
the individual defendants do not negate the fact that EVOI, the employer, contracted with the
Plaintiff, Fox, with respect to his compensation package, and Mr. Fox performed all of the
promises and obligations under the Contract, on his part.
12. Since this motion was filed, the individual defendants, Nunna Srinivas and Jason
Rodriguez, have now submitted pro se Answers; however, a default judgment for the sum certain
amount of at least $519,817.63 for breach of the Contract between Fox and EVOI may still enter
as against the EVOI entities and the John Doe and Jane Doe defendants that represent the Top
Ten Members of EVOI, since no appearance, answer or responsive motion or pleading has been
filed on behalf of the Subject Defendants, by an attorney.
13. Accordingly, the Plaintiff, Howard Fox, respectfully prays that this Court issue an
Order granting a default against the Defendants, EVOMED IMAGING LLC d/b/a EVOI
PRODUCTIONS, EVO MED IMAGING PRODUCTIONS LLC a/k/a EVOI
PRODUCTIONS, and JOHN DOE AND JANE DOE REPRESENTING THE TOP TEN
MEMBERS OF EVOI, and awarding a default judgment in the sum certain amount of
$519,817.63 plus interest in favor of the Plaintiff, Howard Fox, as against each corporate EVOI
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Defendant on the First Cause of Action for Breach of Contract, joint and severally, calculated as
follows:
i. $135,865.55 or such other amount as calculated by the Court in back wages;
ii. $5,000 or such other amount as nalenlated by the Court in commissions;
iii. $15,400 or such other amount as calculated by the Court in PTO payments;
iv. $95,000 or such other amount as calculated by the Court in severance pay;
v. $2,282.20 or such other amount as nalenlated by the Court in Costs;
vi. a minimum of $251,265.55 or such other amount as calculated by the Court in
liquidated damages (100-300% pursuant to Article 6 of the Labor Law);
attorneys'
vii. $15,004.33 or such other amount as calculated by the Court in reasonable
fees and non-Bill of Costs expenses; and
viii. statutory interest at the rate of 9% from June 1, 2020 through the date of the Order
and continuing; together with such other and further relief as is just and proper under the
circumstances.
Dated: November 17, 2021
Tarrytown, NY
Eileen M. Burger, Esq.
Mitchell Pollack & Associates, PLLC
Attorneys for Plaintiff, Howard Fox
150 White Plains Road, Suite 310
Tarrytown, New York 10591
(914) 332-0700
(914) 332-9191 (Fax)
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NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2021
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
) ss.:
COUNTY OF WESTCHESTER )
Eileen M. Burger, being duly sworn, deposes and says:
I am not a party to this action, am over 18 years of age and maintain an office in
Tarrytown, New York.
On November 17, 2021, I served a true copy of the annexed Reply Affirmation by
ECF/email or mailing the same in a sealed envelope, with postage prepaid thereon, in a post
office or official depository of the U.S. Postal Service within the State of New York, addressed to
the last known addresses as indicated below:
Evomed Imaging LLC and/or
Evo Med Imaging Productions LLC
d/b/a EVOI Productions
c/o Michelle Wong, CEO
303 Pulaski Avenue
Staten Island, NY 10303
Michelle Wong (via ECF and email)
303 Pulaski Avenue
Staten Island, NY 10303
Nunna Srinivas (via ECF and email)
1800 Park Avenue, Apt. 340
Orange Park, FL 32073
Jason Rodriguez (via ECF and email)
78th
3121
East Elmhurst, NY 11370
John Doe and Jane Doe #1 - #10 .
c/o Evomed Imaging LLC
303 Pulaski Avenue
Staten Island, NY 10303
Sworn to before me on een M. Burger
ovember 17, 2021
MAPlA T. CHIODI
New York
Notary Public, State of
No. 010H5046226
Public
Notary c o L y 3 20
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NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2021
Index Number: Index No: 034337/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
HOWARD FOX
Plaintiff,
- against -
EVOMED IMAGING LLC d/b/a EVOI PRODUCTIONS,
EVO MED IMAGING PRODUCTIONS LLC a/k/a
EVOI PRODUCTIONS, MICHELLE WONG,
INDIVIDUALLY, NUNNA SRINIVAS, INDIVIDUALLY,
JASON RODRIGUEZ, INDIVIDUALLY, and
JOHN DOE AND JANE DOE #1 through #10,
INDIVIDUALLY, REPRESENTING THE TOP 10 MEMBERS
OF EVOMED IMAGING LLC and/or EVO MED IMAGING
PRODUCTIONS LLC,
Defendants.
REPLY AFFIRMATION
Mitchell Pollack and Associates PLLC
150 White Plains Road, Suite 310
Tarrytown, New York 10591
(914) 332-0700
Fax (914) 332-9191
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts
of New York State, certifies that upon informa onpd belief and reasonable inquiry, the
contentions contained in the annexed do ent frivolous.
arp not
--- Eileen M. Esq.
Burger,
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Preview
FILED: ROCKLAND COUNTY CLERK 11/17/2021 03:54 PM INDEX NO. 034337/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ----------X HOWARD FOX Index No: 034337/2021 Plaintiff, REPLY AFFIRMATION - against - IN FURTHER SUPPORT OF MOTION EVOMED IMAGING LLC d/b/a EVOI PRODUCTIONS, FOR DEFAULT AND EVO MED IMAGING PRODUCTIONS LLC a/k/a JUDGMENT FOR A EVOI PRODUCTIONS, MICHELLE WONG, SUM CERTAIN INDIVIDUALLY, NUNNA SRINIVAS, INDIVIDUALLY, JASON RODRIGUEZ, INDIVIDUALLY, and JOHN DOE AND JANE DOE #1 through #10, INDIVIDUALLY, REPRESENTING THE TOP 10 MEMBERS OF EVOMED IMAGING LLC and/or EVO MED IMAGING PRODUCTIONS LLC, Defendants. -------------------------X EILEEN M. BURGER, ESQ., an attorney duly admitted before the Courts of the State of New York, affirms the following statements under the penalties of perjury: 1. I am a member of Mitchell Pollack & Associates, PLLC, attorneys for the Plaintiff, HOWARD FOX ("FOX"), and I am familiar with the facts set forth based upon my review of the legal file maintained by this office and communications with the Plaintiff. Plaintiffs' 2. I submit this Reply Affirmation in further support of the Motion for an Order entering a default against the Defendants, EVOMED IMAGING LLC d/b/a EVOI PRODUCTIONS and EVO MED IMAGING PRODUCTIONS LLC a/k/a EVOI PRODUCTIONS (collectively "EVOI"), and JOHN DOE AND JANE DOE #1 through #10, representing the Top 10 Members of EVOI (collectively the "Subject Defendants"); and awarding a default judgment for a sum certain in favor of the Plaintiff as against the Defendants, EVOMED IMAGING LLC d/b/a EVOI PRODUCTIONS and EVO MED IMAGING PRODUCTIONS LLC a/k/a EVOI PRODUCTIONS, joint and severally, as provided for 1 of 7 FILED: ROCKLAND COUNTY CLERK 11/17/2021 03:54 PM INDEX NO. 034337/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2021 under the Employment Agreement effective May 4, 2020, together with such other and further relief as the Court deems just and proper. 3. In the alternative, the Plaintiff requests that the Court issue a default judgment against all of the Subject Defendants and schedule an Inquest to determine the legal and equitable damages sustained by the Plaintiff as a result of the actions of the Subject Defendants in connection with its causes of action for breach of contract set forth in the Complaint. 4. To date, the corporate Defendants, EVOMED IMAGING LLC d/b/a EVOI PRODUCTIONS and EVO MED IMAGING PRODUCTIONS LLC a/k/a EVOI PRODUCTIONS and the JOHN DOE AND JANE DOE representative defendants, have not filed an Answer, responsive pleading, or opposition to this Motion nor has counsel for any EVOI entity contacted Plaintiff's counsel. 5. On November 16, 2021, the Defendants, Michelle Wong and Nunna Srinivas, filed Affidavits in Opposition, in their individual capacity. At the outset, the opposition papers are untimely pursuant to CPLR 2214(b) as they were to be served at least seven (7) Defendants' days before the return date. In addition, the individual affidavits must not be considered in analyzing the motion for default judgment as against the corporate defendanto EVOI, despite Ms. Wong and Mr. Srinivas being the Chief Executive Officer and Chief Operating Officer of said Company(ies), respectively. 6. Significantly, under CPLR 321(a), the general rule is that a fictional person and/or legal entity with limited liability such as EVOI, and the John Doe and Jane Doe Defendants, may not represent themselves, and must have a licensed attorney file an âppearance on their behalf. See, CPLR 321(a); The People by Lefkowitz v. Therapeutic Hypnosis, 83 Misc. 2d 1068, 1069 (Sup. Ct. 1975); Matter of Sharon B., 72 N.Y.2d 394, 398 2 2 of 7 FILED: ROCKLAND COUNTY CLERK 11/17/2021 03:54 PM INDEX NO. 034337/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2021 (1988). As such, the EVOI entities and the John Doe and Jane Doe Defendants are non- appearing and currently in default. Srinivas' 7. Moreover, contrary to Ms. Wong and Mr. assertions, EVOI hired the Plaintiff, Fox, during the height of the Covid-19 pandemic with lofty promises and an employment contract with set terms and provisions regarding compensation. Mr. Fox diligently worked over a year for the Company and only received ONE paycheck. Ms. Wong was not caught off guard by the pandemic when hiring Mr. Fox, as she made these promises in April and May of 2020, being well aware that the country was in the middle of quarantining and a major shutdown of most of entertainment and sports productions and venues. Srinivas' himself" 8. Mr. claim that he asked Mr. Fox to "furlough or "seek elsewhere" employment is patently false and, nonetheless, it should be the Company that makes that decision. The text message and email evidence will support that Wong and Srinivas led Mr. Fox down a rosy path with false promises of PPP and personal loans applied for and third- being party investments being sought to cover payroll or excuses that EVOI the subject of IRS audits, and, in actuality, it was the individual Defendants who did not want to formally terminate Fox or let him leave because there are unambiguous severance provisions in the Contract to provide the B" Plaintiff with an additional year of salary upon separation from EVOI. See, Ex. §3(a); Ex. "A" ¶¶23-58. 9. As evidenced by Exhibit "I", Ms. Wong's April 30, 2021 reflects that Mr. Fox had been furloughed but she agreed to pay him the back pay and commissions earned during that time period. See, Ex. "I". To date, however there has been no formal separation from EVOI. 10. EVOI had every opportunity to hire its employees at-will and pay them weekly or bi-weekly until its financial position was clearer; however, EVOI's CEO, Wong, and COO, 3 3 of 7 FILED: ROCKLAND COUNTY CLERK 11/17/2021 03:54 PM INDEX NO. 034337/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2021 Srinivas, affirmatively chose to offer Fox the Contract that is the basis of this action, which they do not dispute is valid and enforceable. Mr. Fox is entitled to the benefit of the contract he bargained for and, prior to filing this motion, counsel has given the individual defendants every opportunity to come to a reaseñable resolution of this dispute commensurate to the work unquestionably and dutifully performed, to no avail. Srinivas' 11. The Plaintiff contests Mr. self-serving statements concerning his financial status and, particularly that he was unemployed during the time frame represented, and contends that the evidence will prove otherwise. Nonetheless, the personal financial situations of the individual defendants do not negate the fact that EVOI, the employer, contracted with the Plaintiff, Fox, with respect to his compensation package, and Mr. Fox performed all of the promises and obligations under the Contract, on his part. 12. Since this motion was filed, the individual defendants, Nunna Srinivas and Jason Rodriguez, have now submitted pro se Answers; however, a default judgment for the sum certain amount of at least $519,817.63 for breach of the Contract between Fox and EVOI may still enter as against the EVOI entities and the John Doe and Jane Doe defendants that represent the Top Ten Members of EVOI, since no appearance, answer or responsive motion or pleading has been filed on behalf of the Subject Defendants, by an attorney. 13. Accordingly, the Plaintiff, Howard Fox, respectfully prays that this Court issue an Order granting a default against the Defendants, EVOMED IMAGING LLC d/b/a EVOI PRODUCTIONS, EVO MED IMAGING PRODUCTIONS LLC a/k/a EVOI PRODUCTIONS, and JOHN DOE AND JANE DOE REPRESENTING THE TOP TEN MEMBERS OF EVOI, and awarding a default judgment in the sum certain amount of $519,817.63 plus interest in favor of the Plaintiff, Howard Fox, as against each corporate EVOI 4 4 of 7 FILED: ROCKLAND COUNTY CLERK 11/17/2021 03:54 PM INDEX NO. 034337/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2021 Defendant on the First Cause of Action for Breach of Contract, joint and severally, calculated as follows: i. $135,865.55 or such other amount as calculated by the Court in back wages; ii. $5,000 or such other amount as nalenlated by the Court in commissions; iii. $15,400 or such other amount as calculated by the Court in PTO payments; iv. $95,000 or such other amount as calculated by the Court in severance pay; v. $2,282.20 or such other amount as nalenlated by the Court in Costs; vi. a minimum of $251,265.55 or such other amount as calculated by the Court in liquidated damages (100-300% pursuant to Article 6 of the Labor Law); attorneys' vii. $15,004.33 or such other amount as calculated by the Court in reasonable fees and non-Bill of Costs expenses; and viii. statutory interest at the rate of 9% from June 1, 2020 through the date of the Order and continuing; together with such other and further relief as is just and proper under the circumstances. Dated: November 17, 2021 Tarrytown, NY Eileen M. Burger, Esq. Mitchell Pollack & Associates, PLLC Attorneys for Plaintiff, Howard Fox 150 White Plains Road, Suite 310 Tarrytown, New York 10591 (914) 332-0700 (914) 332-9191 (Fax) 5 5 of 7 FILED: ROCKLAND COUNTY CLERK 11/17/2021 03:54 PM INDEX NO. 034337/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2021 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss.: COUNTY OF WESTCHESTER ) Eileen M. Burger, being duly sworn, deposes and says: I am not a party to this action, am over 18 years of age and maintain an office in Tarrytown, New York. On November 17, 2021, I served a true copy of the annexed Reply Affirmation by ECF/email or mailing the same in a sealed envelope, with postage prepaid thereon, in a post office or official depository of the U.S. Postal Service within the State of New York, addressed to the last known addresses as indicated below: Evomed Imaging LLC and/or Evo Med Imaging Productions LLC d/b/a EVOI Productions c/o Michelle Wong, CEO 303 Pulaski Avenue Staten Island, NY 10303 Michelle Wong (via ECF and email) 303 Pulaski Avenue Staten Island, NY 10303 Nunna Srinivas (via ECF and email) 1800 Park Avenue, Apt. 340 Orange Park, FL 32073 Jason Rodriguez (via ECF and email) 78th 3121 East Elmhurst, NY 11370 John Doe and Jane Doe #1 - #10 . c/o Evomed Imaging LLC 303 Pulaski Avenue Staten Island, NY 10303 Sworn to before me on een M. Burger ovember 17, 2021 MAPlA T. CHIODI New York Notary Public, State of No. 010H5046226 Public Notary c o L y 3 20 7 6 of 7 FILED: ROCKLAND COUNTY CLERK 11/17/2021 03:54 PM INDEX NO. 034337/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 11/17/2021 Index Number: Index No: 034337/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND HOWARD FOX Plaintiff, - against - EVOMED IMAGING LLC d/b/a EVOI PRODUCTIONS, EVO MED IMAGING PRODUCTIONS LLC a/k/a EVOI PRODUCTIONS, MICHELLE WONG, INDIVIDUALLY, NUNNA SRINIVAS, INDIVIDUALLY, JASON RODRIGUEZ, INDIVIDUALLY, and JOHN DOE AND JANE DOE #1 through #10, INDIVIDUALLY, REPRESENTING THE TOP 10 MEMBERS OF EVOMED IMAGING LLC and/or EVO MED IMAGING PRODUCTIONS LLC, Defendants. REPLY AFFIRMATION Mitchell Pollack and Associates PLLC 150 White Plains Road, Suite 310 Tarrytown, New York 10591 (914) 332-0700 Fax (914) 332-9191 Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that upon informa onpd belief and reasonable inquiry, the contentions contained in the annexed do ent frivolous. arp not --- Eileen M. Esq. Burger, 7 of 7