Preview
FILED: NASSAU COUNTY CLERK 06/09/2023 02:20 PM INDEX NO. 604673/2023
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/09/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
_______________________________________-------_____________________Ç
SIMMONS, JANNACE DELUCA, LLP Index No.: 604673/2023
Plaintiff, Statement of Material Facts
-against-
INCORPORATED VILLAGE OF FREEPORT
Defendant.
--_____________________________________________Ç
Plaintiff'
The Incorporated Village of Freeport, in support of its motion for dismissal of
Complaint pursuant to CPLR 3211(a) (7), and in accordance with Rule 19-a of the Rules of the
Commercial Division of the Supreme Court, submits the following Statement of Undisputed
Facts:
1. Robert Kennedy was elected Mayor of the Incorporated Village of Fmeport in
2013 and is now serving his third term of office (Affidavit Mayor Kennedy ¶ 1).
2. In or around the year 2000, the Village, by its prior Mayor Hardwick retained the
services of Albrecht, Viggiano, Zurich & Company (AVZ) a certified public accounting firm to
provide financial, accounting, auditing, tax and consulting services for the Village (Affidavit
Mayor Kennedy ¶ 2).
3. AVZ provided accounting services from 2000 until they were terminated by the
Village of Freeport in 2015 (Affidavit Mayor Kennedy ¶ 3).
4 AVZ's termination was premised upon a series of accounting errors performed by
AVZ during the years 2011-2013, which placed the Village in an unwarranted financial situation.
(Affidavit Mayor Kennedy ¶ 4).
5. As a result of AVZ's misfeasance the Village was forced to take drastic measures
in an attempt to mitigate its damages, rectify the significant errors contained in AVZ's Audited
Financial Statement and improve the fiscal status of Moody's rating, and to remove the negative
outlook issued by Moody's resulting from the AVZ audit ending February 28, 2103. (Affidavit
Mayor Kennedy ¶ 4).
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6. The Village was forced to retain a substitute accounting firm and incurred
additional expenses and fees for the substitute accounting firm to review, adjust and correct the
AVZ year ending February 28, 2013 Audit. (Affidavit Mayor Kennedy ¶ 5).
7. Thereafter, the Village retained the services of Simmons, Jannace DeLuca LLP.
(SD) to commence an action against Albrecht, Viggiano, Zurich & Company and its members
Robert McGrath and Patrick Bryan for accounting malpractice, breach of contract, fraud,
negligent misrepresentation, unjust enrichment and breach of fiduciary duty. (Affidavit Mayor
Kennedy ¶ 6).
8. SE served a Complaint on AVZ on or about December 7, 2015. AVZ answered
the Complaint on January 15, 2016. (NYSECF DOC. #'s 1 & 3; 607889/2015, Nassau County,
Supreme Court).
9. From January 2016 through January 2019 the litigation progressed extremely
slowly (Affidavit Mayor Kennedy ¶ 8).
10, Due to the slow pace of the litigation, and the excessive amount of money the
Village was being billed and paid to SD for legal fees, the mayor requested a meeting with the
SJD partner.overseeing of the litigation, Sal DeLuca. (Affidavit Mayor Kennedy ¶ 8).
11. Mayor Kennedy met with Sal DeLuca on May 10, 2019 at which time they
discussed the mayor's concerns regarding the lack of progress of the litigation and the exorbitant
fees the Village was being charged and which had been paid by the Village to SD. (Affidavit
Mayor Kennedy ¶ 8).
12. As of May 10, 2019, the Village had paid SJD $350,000 in legal fees. (Affidavit
Mayor Kennedy ¶ 10).
13. During said meeting Mayor Kennedy told Mr. DeLuca that based upon the sum
already paid to SD by the Village, the Village was deeming any invoices of SD for the AVZ
litigation capped as of May 10, 2019, and that no past or future invoices would be paid.
(Affidavit Mayor Kennedy ¶¶ 9-11).
14. The cap imposed by the mayor included all past/outstanding invoices claimed to
be owed, as of May 10, 2019. (Affidavit Mayor Kennedy ¶ 11).
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15. In accordance with the mayor's discussion with Mr. DeLuca, not a single invoice
submitted by SJD after May 10, 2019 was paid by the Village (Affidavit Mayor Kennedy ¶ 12).
16. Following the conversation between Mayor Kennedy and Mr. Deluca, SD
continued to represent the Village on the AVZ matter (Exhibit "C").
17. In 2021, the Village was advised that the attorney from SD who had been
handling this the AVZ matter was leaving the firm and that they would be filing a motion to be
relieved as counsel, as no one else from their firm could handle the case (Affidavit Mayor
Kennedy ¶ 14).
18. Following Sm being relieved as counsel for the Village, they served, for the first
time a Notice of Claim with the Village Clerk on August 22, 2022 and subsequently, a complaint
against the Village for breach of contract (Exhibit "B")
19. According to the Notice of Claim Sm is seeking, based upon breach of contract
to be paid for invoices from March 2018- March 2021 (Exhibit "B").
20. The Notice of Claim for breach of contract against the Village is untimely as it
was not filed within a year of the alleged breach by the Village in accordance with CPLR 9802.
(Affidavit Mayor Kennedy 116).
Dated: Carle Place, New York
June 9, 2023 Law Office of Steven Cohn, PC
By: Mitchell . fang, Esq.
Attorneys f r Vi age of Freeport
One Old C Road Suite 420
Carle Plac ew York 11514
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Preview
FILED: NASSAU COUNTY CLERK 06/09/2023 02:20 PM INDEX NO. 604673/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU _______________________________________-------_____________________Ç SIMMONS, JANNACE DELUCA, LLP Index No.: 604673/2023 Plaintiff, Statement of Material Facts -against- INCORPORATED VILLAGE OF FREEPORT Defendant. --_____________________________________________Ç Plaintiff' The Incorporated Village of Freeport, in support of its motion for dismissal of Complaint pursuant to CPLR 3211(a) (7), and in accordance with Rule 19-a of the Rules of the Commercial Division of the Supreme Court, submits the following Statement of Undisputed Facts: 1. Robert Kennedy was elected Mayor of the Incorporated Village of Fmeport in 2013 and is now serving his third term of office (Affidavit Mayor Kennedy ¶ 1). 2. In or around the year 2000, the Village, by its prior Mayor Hardwick retained the services of Albrecht, Viggiano, Zurich & Company (AVZ) a certified public accounting firm to provide financial, accounting, auditing, tax and consulting services for the Village (Affidavit Mayor Kennedy ¶ 2). 3. AVZ provided accounting services from 2000 until they were terminated by the Village of Freeport in 2015 (Affidavit Mayor Kennedy ¶ 3). 4 AVZ's termination was premised upon a series of accounting errors performed by AVZ during the years 2011-2013, which placed the Village in an unwarranted financial situation. (Affidavit Mayor Kennedy ¶ 4). 5. As a result of AVZ's misfeasance the Village was forced to take drastic measures in an attempt to mitigate its damages, rectify the significant errors contained in AVZ's Audited Financial Statement and improve the fiscal status of Moody's rating, and to remove the negative outlook issued by Moody's resulting from the AVZ audit ending February 28, 2103. (Affidavit Mayor Kennedy ¶ 4). 1 of 3 FILED: NASSAU COUNTY CLERK 06/09/2023 02:20 PM INDEX NO. 604673/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/09/2023 6. The Village was forced to retain a substitute accounting firm and incurred additional expenses and fees for the substitute accounting firm to review, adjust and correct the AVZ year ending February 28, 2013 Audit. (Affidavit Mayor Kennedy ¶ 5). 7. Thereafter, the Village retained the services of Simmons, Jannace DeLuca LLP. (SD) to commence an action against Albrecht, Viggiano, Zurich & Company and its members Robert McGrath and Patrick Bryan for accounting malpractice, breach of contract, fraud, negligent misrepresentation, unjust enrichment and breach of fiduciary duty. (Affidavit Mayor Kennedy ¶ 6). 8. SE served a Complaint on AVZ on or about December 7, 2015. AVZ answered the Complaint on January 15, 2016. (NYSECF DOC. #'s 1 & 3; 607889/2015, Nassau County, Supreme Court). 9. From January 2016 through January 2019 the litigation progressed extremely slowly (Affidavit Mayor Kennedy ¶ 8). 10, Due to the slow pace of the litigation, and the excessive amount of money the Village was being billed and paid to SD for legal fees, the mayor requested a meeting with the SJD partner.overseeing of the litigation, Sal DeLuca. (Affidavit Mayor Kennedy ¶ 8). 11. Mayor Kennedy met with Sal DeLuca on May 10, 2019 at which time they discussed the mayor's concerns regarding the lack of progress of the litigation and the exorbitant fees the Village was being charged and which had been paid by the Village to SD. (Affidavit Mayor Kennedy ¶ 8). 12. As of May 10, 2019, the Village had paid SJD $350,000 in legal fees. (Affidavit Mayor Kennedy ¶ 10). 13. During said meeting Mayor Kennedy told Mr. DeLuca that based upon the sum already paid to SD by the Village, the Village was deeming any invoices of SD for the AVZ litigation capped as of May 10, 2019, and that no past or future invoices would be paid. (Affidavit Mayor Kennedy ¶¶ 9-11). 14. The cap imposed by the mayor included all past/outstanding invoices claimed to be owed, as of May 10, 2019. (Affidavit Mayor Kennedy ¶ 11). 2 of 3 FILED: NASSAU COUNTY CLERK 06/09/2023 02:20 PM INDEX NO. 604673/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/09/2023 15. In accordance with the mayor's discussion with Mr. DeLuca, not a single invoice submitted by SJD after May 10, 2019 was paid by the Village (Affidavit Mayor Kennedy ¶ 12). 16. Following the conversation between Mayor Kennedy and Mr. Deluca, SD continued to represent the Village on the AVZ matter (Exhibit "C"). 17. In 2021, the Village was advised that the attorney from SD who had been handling this the AVZ matter was leaving the firm and that they would be filing a motion to be relieved as counsel, as no one else from their firm could handle the case (Affidavit Mayor Kennedy ¶ 14). 18. Following Sm being relieved as counsel for the Village, they served, for the first time a Notice of Claim with the Village Clerk on August 22, 2022 and subsequently, a complaint against the Village for breach of contract (Exhibit "B") 19. According to the Notice of Claim Sm is seeking, based upon breach of contract to be paid for invoices from March 2018- March 2021 (Exhibit "B"). 20. The Notice of Claim for breach of contract against the Village is untimely as it was not filed within a year of the alleged breach by the Village in accordance with CPLR 9802. (Affidavit Mayor Kennedy 116). Dated: Carle Place, New York June 9, 2023 Law Office of Steven Cohn, PC By: Mitchell . fang, Esq. Attorneys f r Vi age of Freeport One Old C Road Suite 420 Carle Plac ew York 11514 3 of 3