Preview
FILED: ROCKLAND COUNTY CLERK 01/17/2024 10:39 AM INDEX NO. 034404/2023
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
NewCo Capital Group VI LLC,
Index No.:
Plaintiff, 034404/2023
-against-
AFFIRMATION IN
ALESSANDRO VASINI, LLC / DBA SUPPORT OF
ALESSANDRO VASINI, and ALESSANDRO MOTION
VASINI,
Defendants,
Adam Nichols, Esq., an attorney duly licensed to practice law before the Courts
of the State of New York, affirms the truth of the following under penalty of perjury:
1) I am an attorney with Piekarski Law PLLC, attorneys for Plaintiff, NewCo Capital
Group VI LLC (“Plaintiff”), in the above-captioned action and as such, I am fully familiar with the
facts and circumstances of this action.
2) I make this affirmation in support of the within motion for summary judgment,
pursuant to CPLR 3212 and CPLR 3215, in favor of the Plaintiff and against the Defendants,
ALESSANDRO VASINI, LLC / DBA ALESSANDRO VASINI (“Merchant”), and
ALESSANDRO VASINI (“Guarantor”) (“Merchant” and “Guarantor” collectively referred to as
“Defendants”), jointly and severally, in the amount of $63,173.20 plus prejudgment interest at the
rate of 9% from the date of Defendants’ breach to the date of entry of judgment, post-judgment
interest from the date of entry of judgment until paid, together with costs, disbursements, attorney’s
fees, and such other, further, and different relief as may be just and proper.
3) Plaintiff will rely upon, and hereby incorporates by reference, the following exhibits:
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Exhibit A: Settlement Agreement
Exhibit B: Transaction/Remittance History
Exhibit C: Pleadings
Exhibit D: Discovery
4) For the reasons set forth herein, as well as the accompanying affidavit(s), exhibits,
statement of material facts, and all pleadings and proceedings heretofore had herein, it is respectfully
submitted that there are no material issues of fact and the Plaintiff’s motion should be granted in its
entirety.
THE PARTIES
5) Plaintiff is an entity authorized to do business in the State of New York.
6) Merchant is a company organized under the laws of the State of Florida. See, Ex. A.
7) Guarantor is an individual residing in the State of Florida. See, Ex. A.
8) Guarantor is the owner and operator of Merchant. See, Ex. A.
PROCEDURAL HISTORY
9) This action, for breach of a Settlement Agreement (the “Agreement”) entered into on
or about July 10, 2023, was commenced by the filing of a summons and verified complaint. See, Ex.
C.
10) Issue was joined as to Guarantor by service of an answer. See, Ex. C.
11) Merchant is a corporate entity which may only be represented by counsel pursuant to
CPLR §321(a) and, as such, is in default. The Plaintiff seeks relief against this party pursuant to
CPLR §3215.
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12) Discovery 1 exchanged thus far is annexed hereto. See, Ex. D.
FACTUAL BACKGROUND
13) On July 10, 2023, Plaintiff entered into the Agreement with Defendants, wherein
Defendants agreed to a payment schedule as set forth therein. See, Ex. A, Paragraph 1.
14) Defendants further agreed that in the event of any action or circumstance constituting
a breach or default of any of the foregoing, the entire outstanding balance owed by the Merchant at
the time of such breach or default would become immediately due and payable to Plaintiff, plus fees
in the amount of 30% of the current balance as well as any fees for bounced checks or payments
made with insufficient funds. See, Ex. A, Paragraph 2.
15) Defendants performed under the Agreement on the dates and in the amounts as set forth
in the Transaction/Remittance History. More specifically, Defendants performed under the
Agreement from July 10, 2023 until August 3, 2023, at which point the Defendants’ scheduled
payment of $200.00 bounced. From the date of the Agreement to present, Defendants remitted to
the Plaintiff $4,600.00 of the Settlement Amount of $52,764.00, leaving a balance due of $48,164.00,
along with NSF Fees in the amount of $560.00, and Attorney’s Fees in the amount of $14,449.20,
making the total balance due and owing $63,173.20. See, Ex. B and See also, Ex. A, Paragraph 2.
ARGUMENT
DEFENDANTS HAVE BREACHED THE SETTLEMENT AGREEMENT
16) Based on the accompanying affidavit(s), exhibits, statement of material facts, and all
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The Plaintiff moves notwithstanding outstanding discovery as to certain particular breaches of the Agreement, as the
grounds moved upon do not require any discovery and are conclusively proven upon the Plaintiff’s irrefutable business
records.
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pleadings and proceedings heretofore had herein, there are no material issues of fact as to
Defendants’ breach.
17) “It is well-established that summary judgment should be granted only if there are no
material and triable issues of fact (internal citations omitted).” See, Hantz v. Fishman, 155 A.D.2d
415, 547 N.Y.S.2d 350 (2nd Dept. 1989).
18) Once the movant has tendered evidentiary proof in admissible form sufficient to
warrant the Court in directing judgment as a matter of law, the burden shifts to the opposing party to
“produce evidentiary proof in admissible form sufficient to require a trial of material questions of
fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the
requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated
allegations or assertions are insufficient (emphasis added) (internal citations omitted).” See,
Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980).
19) In deciding a motion for summary judgment, the Court must ascertain whether any
genuine issues of fact exist in the opposing party’s proofs as “laid bare by the parties’ submission of
affidavits based on personal knowledge and documentary evidence, rather than in their conclusory
or speculative averments.” See, Behar v. Ordover, 92 A.D.2d 557, 459 N.Y.S.2d 304 (2nd Dept.
1983).
20) As no party in opposition can rebut the Plaintiff’s prima facie entitlement to judgment
as a matter of law and defendants, ALESSANDRO VASINI, LLC / DBA ALESSANDRO VASINI,
have not properly interposed an answer against the Complaint, it is respectfully submitted that the
Plaintiff’s motion should be granted in its entirety.
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Defendants are Liable to Plaintiff for Breach of Contract
21) “The essential elements of a breach of contract cause of action are ‘the existence of a
contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of his or her
contractual obligations, and damages resulting from the breach’ (internal citations omitted).” See,
Canzona v. Atanasio, 118 A.D.3d 837, 989 N.Y.S.2d 44 (2nd Dept. 2014).
22) “The ‘clearest of contract terms’ are generally to be found in a written agreement
executed by contracting parties, which ‘when unambiguous on its face must be enforced according
to the plain meaning’ (internal citations omitted).” See, Zheng v. City of New York, 19 N.Y.3d 556,
973 N.E.2d 711, 950 N.Y.S.2d 301 (2012).
23) In the instant matter, the Plaintiff has established the existence of the Agreement, its
performance under the Agreement, the Defendants’ breach thereof, and monetary damages incurred
by the Plaintiff as a direct and proximate result of the breach. As such, it is respectfully submitted
that the Plaintiff is entitled to judgment as a matter of law.
24) Pursuant to CPLR 5001(a), the Plaintiff is entitled to prejudgment interest at the
statutory rate as provided in CPLR 5004 on its breach of contract cause of action running from the
date of the breach. See, Sokolik v. Pateman, 114 A.D.3d 839, 981 N.Y.S.2d 111 (2nd Dept. 2014).
Here, the breach occurred on August 3, 2023 and the Plaintiff is therefore entitled to prejudgment
interest from that date of breach to the date of entry of judgment.
25) Pursuant to CPLR 5003, “[e]very money judgment shall bear interest from the date of
its entry.” As such, the Plaintiff is entitled to post-judgment interest at the statutory rate as provided
in CPLR 5004 from the date of entry of judgment until such time as the judgment is paid, satisfied,
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or otherwise resolved in full.
26) Based on the foregoing, it is respectfully submitted that the Plaintiff is entitled to
judgment as a matter of law against the Merchant on its breach of contract cause of action in the
amount of $63,173.20, together with prejudgment interest from the date of the breach, plus costs,
disbursements, and fees.
CONCLUSION
27) In addition to the damages as set forth herein, Plaintiff has incurred the following costs:
• Index Number $210.00
• RJI $95.00
• Motion Fee(s) $45.00
• Total $350.00
28) Based on the foregoing, it is respectfully submitted that the Plaintiff’s motion should
be granted in its entirety, granting summary judgment in favor of the Plaintiff and against the
Defendants, jointly and severally, in the amount of $63,173.20, together with prejudgment interest
from the date of the breach, plus costs, disbursements, and fees.
WHEREFORE, Plaintiff respectfully requests that the instant motion be granted in its entirety,
together with such other, further, and different relief as may be just and proper.
Dated: New York, New York
January 17, 2024 /s/ Adam Nichols, Esq.
Adam Nichols, Esq.
Piekarski Law PLLC
Attorneys for Plaintiff
1 Whitehall St, 2nd Fl
New York, New York 10004
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Phone: (646) 968-8203
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CERTIFICATE OF COMPLIANCE
PURSUANT TO 22 NYCRR § 202.8-b
Supreme Court of the State of New York
I, Adam Nichols, an attorney duly admitted to practice law before the courts of the State
of New York, hereby certifies that this Affirmation complies with the word count limit set forth
in 202 NYCRR § 202.8-b. The total number of words in the forgoing affirmation in support,
exclusive of the caption and signature block, is 1579. In preparing this certification, I have relied
on the word count feature of Microsoft Word.
Dated: New York, New York
January 17, 2024 /s/ Adam Nichols, Esq.
Adam Nichols, Esq.
Piekarski Law PLLC
Attorneys for Plaintiff
1 Whitehall St, 2nd Fl
New York NY 10004
(646) 968-8203
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Preview
FILED: ROCKLAND COUNTY CLERK 01/17/2024 10:39 AM INDEX NO. 034404/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND NewCo Capital Group VI LLC, Index No.: Plaintiff, 034404/2023 -against- AFFIRMATION IN ALESSANDRO VASINI, LLC / DBA SUPPORT OF ALESSANDRO VASINI, and ALESSANDRO MOTION VASINI, Defendants, Adam Nichols, Esq., an attorney duly licensed to practice law before the Courts of the State of New York, affirms the truth of the following under penalty of perjury: 1) I am an attorney with Piekarski Law PLLC, attorneys for Plaintiff, NewCo Capital Group VI LLC (“Plaintiff”), in the above-captioned action and as such, I am fully familiar with the facts and circumstances of this action. 2) I make this affirmation in support of the within motion for summary judgment, pursuant to CPLR 3212 and CPLR 3215, in favor of the Plaintiff and against the Defendants, ALESSANDRO VASINI, LLC / DBA ALESSANDRO VASINI (“Merchant”), and ALESSANDRO VASINI (“Guarantor”) (“Merchant” and “Guarantor” collectively referred to as “Defendants”), jointly and severally, in the amount of $63,173.20 plus prejudgment interest at the rate of 9% from the date of Defendants’ breach to the date of entry of judgment, post-judgment interest from the date of entry of judgment until paid, together with costs, disbursements, attorney’s fees, and such other, further, and different relief as may be just and proper. 3) Plaintiff will rely upon, and hereby incorporates by reference, the following exhibits: 1 1 of 8 FILED: ROCKLAND COUNTY CLERK 01/17/2024 10:39 AM INDEX NO. 034404/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 Exhibit A: Settlement Agreement Exhibit B: Transaction/Remittance History Exhibit C: Pleadings Exhibit D: Discovery 4) For the reasons set forth herein, as well as the accompanying affidavit(s), exhibits, statement of material facts, and all pleadings and proceedings heretofore had herein, it is respectfully submitted that there are no material issues of fact and the Plaintiff’s motion should be granted in its entirety. THE PARTIES 5) Plaintiff is an entity authorized to do business in the State of New York. 6) Merchant is a company organized under the laws of the State of Florida. See, Ex. A. 7) Guarantor is an individual residing in the State of Florida. See, Ex. A. 8) Guarantor is the owner and operator of Merchant. See, Ex. A. PROCEDURAL HISTORY 9) This action, for breach of a Settlement Agreement (the “Agreement”) entered into on or about July 10, 2023, was commenced by the filing of a summons and verified complaint. See, Ex. C. 10) Issue was joined as to Guarantor by service of an answer. See, Ex. C. 11) Merchant is a corporate entity which may only be represented by counsel pursuant to CPLR §321(a) and, as such, is in default. The Plaintiff seeks relief against this party pursuant to CPLR §3215. 2 2 of 8 FILED: ROCKLAND COUNTY CLERK 01/17/2024 10:39 AM INDEX NO. 034404/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 12) Discovery 1 exchanged thus far is annexed hereto. See, Ex. D. FACTUAL BACKGROUND 13) On July 10, 2023, Plaintiff entered into the Agreement with Defendants, wherein Defendants agreed to a payment schedule as set forth therein. See, Ex. A, Paragraph 1. 14) Defendants further agreed that in the event of any action or circumstance constituting a breach or default of any of the foregoing, the entire outstanding balance owed by the Merchant at the time of such breach or default would become immediately due and payable to Plaintiff, plus fees in the amount of 30% of the current balance as well as any fees for bounced checks or payments made with insufficient funds. See, Ex. A, Paragraph 2. 15) Defendants performed under the Agreement on the dates and in the amounts as set forth in the Transaction/Remittance History. More specifically, Defendants performed under the Agreement from July 10, 2023 until August 3, 2023, at which point the Defendants’ scheduled payment of $200.00 bounced. From the date of the Agreement to present, Defendants remitted to the Plaintiff $4,600.00 of the Settlement Amount of $52,764.00, leaving a balance due of $48,164.00, along with NSF Fees in the amount of $560.00, and Attorney’s Fees in the amount of $14,449.20, making the total balance due and owing $63,173.20. See, Ex. B and See also, Ex. A, Paragraph 2. ARGUMENT DEFENDANTS HAVE BREACHED THE SETTLEMENT AGREEMENT 16) Based on the accompanying affidavit(s), exhibits, statement of material facts, and all 1 The Plaintiff moves notwithstanding outstanding discovery as to certain particular breaches of the Agreement, as the grounds moved upon do not require any discovery and are conclusively proven upon the Plaintiff’s irrefutable business records. 3 3 of 8 FILED: ROCKLAND COUNTY CLERK 01/17/2024 10:39 AM INDEX NO. 034404/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 pleadings and proceedings heretofore had herein, there are no material issues of fact as to Defendants’ breach. 17) “It is well-established that summary judgment should be granted only if there are no material and triable issues of fact (internal citations omitted).” See, Hantz v. Fishman, 155 A.D.2d 415, 547 N.Y.S.2d 350 (2nd Dept. 1989). 18) Once the movant has tendered evidentiary proof in admissible form sufficient to warrant the Court in directing judgment as a matter of law, the burden shifts to the opposing party to “produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (emphasis added) (internal citations omitted).” See, Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). 19) In deciding a motion for summary judgment, the Court must ascertain whether any genuine issues of fact exist in the opposing party’s proofs as “laid bare by the parties’ submission of affidavits based on personal knowledge and documentary evidence, rather than in their conclusory or speculative averments.” See, Behar v. Ordover, 92 A.D.2d 557, 459 N.Y.S.2d 304 (2nd Dept. 1983). 20) As no party in opposition can rebut the Plaintiff’s prima facie entitlement to judgment as a matter of law and defendants, ALESSANDRO VASINI, LLC / DBA ALESSANDRO VASINI, have not properly interposed an answer against the Complaint, it is respectfully submitted that the Plaintiff’s motion should be granted in its entirety. 4 4 of 8 FILED: ROCKLAND COUNTY CLERK 01/17/2024 10:39 AM INDEX NO. 034404/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 Defendants are Liable to Plaintiff for Breach of Contract 21) “The essential elements of a breach of contract cause of action are ‘the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of his or her contractual obligations, and damages resulting from the breach’ (internal citations omitted).” See, Canzona v. Atanasio, 118 A.D.3d 837, 989 N.Y.S.2d 44 (2nd Dept. 2014). 22) “The ‘clearest of contract terms’ are generally to be found in a written agreement executed by contracting parties, which ‘when unambiguous on its face must be enforced according to the plain meaning’ (internal citations omitted).” See, Zheng v. City of New York, 19 N.Y.3d 556, 973 N.E.2d 711, 950 N.Y.S.2d 301 (2012). 23) In the instant matter, the Plaintiff has established the existence of the Agreement, its performance under the Agreement, the Defendants’ breach thereof, and monetary damages incurred by the Plaintiff as a direct and proximate result of the breach. As such, it is respectfully submitted that the Plaintiff is entitled to judgment as a matter of law. 24) Pursuant to CPLR 5001(a), the Plaintiff is entitled to prejudgment interest at the statutory rate as provided in CPLR 5004 on its breach of contract cause of action running from the date of the breach. See, Sokolik v. Pateman, 114 A.D.3d 839, 981 N.Y.S.2d 111 (2nd Dept. 2014). Here, the breach occurred on August 3, 2023 and the Plaintiff is therefore entitled to prejudgment interest from that date of breach to the date of entry of judgment. 25) Pursuant to CPLR 5003, “[e]very money judgment shall bear interest from the date of its entry.” As such, the Plaintiff is entitled to post-judgment interest at the statutory rate as provided in CPLR 5004 from the date of entry of judgment until such time as the judgment is paid, satisfied, 5 5 of 8 FILED: ROCKLAND COUNTY CLERK 01/17/2024 10:39 AM INDEX NO. 034404/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 or otherwise resolved in full. 26) Based on the foregoing, it is respectfully submitted that the Plaintiff is entitled to judgment as a matter of law against the Merchant on its breach of contract cause of action in the amount of $63,173.20, together with prejudgment interest from the date of the breach, plus costs, disbursements, and fees. CONCLUSION 27) In addition to the damages as set forth herein, Plaintiff has incurred the following costs: • Index Number $210.00 • RJI $95.00 • Motion Fee(s) $45.00 • Total $350.00 28) Based on the foregoing, it is respectfully submitted that the Plaintiff’s motion should be granted in its entirety, granting summary judgment in favor of the Plaintiff and against the Defendants, jointly and severally, in the amount of $63,173.20, together with prejudgment interest from the date of the breach, plus costs, disbursements, and fees. WHEREFORE, Plaintiff respectfully requests that the instant motion be granted in its entirety, together with such other, further, and different relief as may be just and proper. Dated: New York, New York January 17, 2024 /s/ Adam Nichols, Esq. Adam Nichols, Esq. Piekarski Law PLLC Attorneys for Plaintiff 1 Whitehall St, 2nd Fl New York, New York 10004 6 6 of 8 FILED: ROCKLAND COUNTY CLERK 01/17/2024 10:39 AM INDEX NO. 034404/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 Phone: (646) 968-8203 7 7 of 8 FILED: ROCKLAND COUNTY CLERK 01/17/2024 10:39 AM INDEX NO. 034404/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/17/2024 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR § 202.8-b Supreme Court of the State of New York I, Adam Nichols, an attorney duly admitted to practice law before the courts of the State of New York, hereby certifies that this Affirmation complies with the word count limit set forth in 202 NYCRR § 202.8-b. The total number of words in the forgoing affirmation in support, exclusive of the caption and signature block, is 1579. In preparing this certification, I have relied on the word count feature of Microsoft Word. Dated: New York, New York January 17, 2024 /s/ Adam Nichols, Esq. Adam Nichols, Esq. Piekarski Law PLLC Attorneys for Plaintiff 1 Whitehall St, 2nd Fl New York NY 10004 (646) 968-8203 8 8 of 8