Preview
FILED: NEW YORK COUNTY CLERK 09/29/2023 06:16 PM INDEX NO. 651953/2023
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 09/29/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
AVENUE OF AMERICAS, LLC,
Plaintiff,
Index No.: 651953/2023
- against -
NOTICE OF ENTRY
TERRA SHOES, LLC f/k/a EARTH INC.,
EARTH OPCO LLC, Mot. Seq. No. 01
and WINDSONG GLOBAL LLC,
Defendants.
PLEASE TAKE NOTICE that on September 21, 2023, in connection with the above-
referenced action, Hon. Gerald Lebovits, JSC, issued a Decision and Order, granting a default
judgment as against Defendants Terra Shoes, LLC f/k/a Earth Inc. and Earth Opco LLC, a copy
of which is annexed hereto, entered with the office of the New York County Clerk (as NYSCEF
Docket No. 22).
Dated: September 29, 2023
NIXON PEABODY LLP
By: /s/ Richard J. Shore
Richard J. Shore, Esq.
55 West 46th Street, 25th Floor
New York, New York 10036
(212) 940-3050
rshore@nixonpeabody.com
Attorneys for Plaintiff
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FILED: NEW YORK COUNTY CLERK 09/29/2023 06:16 PM INDEX NO. 651953/2023
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 09/29/2023
TO: Terra Shoes, LLC, f/k/a Earth Inc.
720 University Avenue
Floor 1
Norwood, Massachusetts 02062
Defendant/Judgment Debtor
(Via Certified Mail, Return Receipt Requested)
Earth OpCo LLC
15 Riverside Avenue
Suite 1
Westport, Connecticut 06880
Defendant/Judgment Debtor
(Via Certified Mail, Return Receipt Requested)
Windsong Global LLC
c/o Incorporating Services, Ltd.
3500 S. Dupont Highway
Dover, Delaware 19901
Defendant
(Via Certified Mail, Return Receipt Requested)
New York County Clerk
New York County Courthouse
60 Centre Street, Room 161
New York, New York 10007
(Via NYSCEF)
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FILED: NEW YORK COUNTY CLERK 09/29/2023
09/21/2023 06:16
01:03 PM INDEX NO. 651953/2023
NYSCEF DOC. NO. 23
22 RECEIVED NYSCEF: 09/29/2023
09/21/2023
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. GERALD LEBOVITS PART 07
Justice
---------------------------------------------------------------------------------X INDEX NO. 651953/2023
AVENUE OF AMERICAS, LLC,
MOTION DATE 08/14/2023
Plaintiff,
MOTION SEQ. NO. 001
-v-
TERRA SHOES, LLC F/K/A EARTH INC., EARTH OPCO
DECISION + ORDER ON
LLC, and WINDSONG GLOBAL LLC,
MOTION
Defendants.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14,
15, 16, 17, 18, 19, 20
were read on this motion for DEFAULT JUDGMENT .
This is an action on a commercial lease and guarantee for allegedly unpaid rent. Plaintiff-
landlord, Avenue of Americas, LLC, is suing defendant-tenant, Terra Shoes, LLC; defendant-
guarantor, Earth OpCo LLC; and defendant Windsong Global LLC, which plaintiff asserts
should also be held liable for the alleged unpaid rent due to its “complete domination and
control” exercised over tenant and guarantor. (NYSCEF No. 13 at 5 ¶ 31.) Defendants have not
filed opposition papers.
Plaintiff has established proper service on defendants; and they have not appeared. With
respect to tenant and guarantor, the affidavit of plaintiff’s property manager, and the
accompanying rent ledger, provides sufficient proof for default-judgment purposes of plaintiff’s
claims against those defendants. With respect to defendant Windsong Global, however, the only
support given for plaintiff’s claim is that Windsong Global “conducted all communications with
Plaintiff on Tenant’s behalf, and upon information and belief, exercises complete domination and
control of Tenant.” (Id. at 3 ¶ 14; see also id. at 5 ¶ 31 [same].) That bare, conclusory assertion—
made without providing the basis for affiant’s belief—is not sufficient to pierce the corporate
veil, as would be required to hold Windsong Global liable for the contractual obligations of
tenant and guarantor.
Accordingly, it is
ORDERED that the branches of plaintiff’s motion seeking default judgment against
tenant and against guarantor are granted, and plaintiff is awarded a judgment against tenant and
guarantor, jointly and severally, for $142,883.71, with costs and disbursements as taxed by the
Clerk upon the submission of an appropriate bill of costs; and it is further
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FILED: NEW YORK COUNTY CLERK 09/29/2023
09/21/2023 06:16
01:03 PM INDEX NO. 651953/2023
NYSCEF DOC. NO. 23
22 RECEIVED NYSCEF: 09/29/2023
09/21/2023
ORDERED that the branch of plaintiff’s motion seeking default judgment against
defendant Windsong Global is denied; and it is further
ORDERED that plaintiff serve a copy of this order with notice of its entry on defendants
by certified mail, return receipt requested, directed to their respective last-known addresses; and
on the office of the County Clerk, which shall enter judgment accordingly.
9/21/2023 $SIG$
DATE
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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FILED: NEW YORK COUNTY CLERK 09/29/2023 06:16 PM INDEX NO. 651953/2023 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 09/29/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK AVENUE OF AMERICAS, LLC, Plaintiff, Index No.: 651953/2023 - against - NOTICE OF ENTRY TERRA SHOES, LLC f/k/a EARTH INC., EARTH OPCO LLC, Mot. Seq. No. 01 and WINDSONG GLOBAL LLC, Defendants. PLEASE TAKE NOTICE that on September 21, 2023, in connection with the above- referenced action, Hon. Gerald Lebovits, JSC, issued a Decision and Order, granting a default judgment as against Defendants Terra Shoes, LLC f/k/a Earth Inc. and Earth Opco LLC, a copy of which is annexed hereto, entered with the office of the New York County Clerk (as NYSCEF Docket No. 22). Dated: September 29, 2023 NIXON PEABODY LLP By: /s/ Richard J. Shore Richard J. Shore, Esq. 55 West 46th Street, 25th Floor New York, New York 10036 (212) 940-3050 rshore@nixonpeabody.com Attorneys for Plaintiff 1 1 of 4 FILED: NEW YORK COUNTY CLERK 09/29/2023 06:16 PM INDEX NO. 651953/2023 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 09/29/2023 TO: Terra Shoes, LLC, f/k/a Earth Inc. 720 University Avenue Floor 1 Norwood, Massachusetts 02062 Defendant/Judgment Debtor (Via Certified Mail, Return Receipt Requested) Earth OpCo LLC 15 Riverside Avenue Suite 1 Westport, Connecticut 06880 Defendant/Judgment Debtor (Via Certified Mail, Return Receipt Requested) Windsong Global LLC c/o Incorporating Services, Ltd. 3500 S. Dupont Highway Dover, Delaware 19901 Defendant (Via Certified Mail, Return Receipt Requested) New York County Clerk New York County Courthouse 60 Centre Street, Room 161 New York, New York 10007 (Via NYSCEF) 2 2 of 4 FILED: NEW YORK COUNTY CLERK 09/29/2023 09/21/2023 06:16 01:03 PM INDEX NO. 651953/2023 NYSCEF DOC. NO. 23 22 RECEIVED NYSCEF: 09/29/2023 09/21/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. GERALD LEBOVITS PART 07 Justice ---------------------------------------------------------------------------------X INDEX NO. 651953/2023 AVENUE OF AMERICAS, LLC, MOTION DATE 08/14/2023 Plaintiff, MOTION SEQ. NO. 001 -v- TERRA SHOES, LLC F/K/A EARTH INC., EARTH OPCO DECISION + ORDER ON LLC, and WINDSONG GLOBAL LLC, MOTION Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion for DEFAULT JUDGMENT . This is an action on a commercial lease and guarantee for allegedly unpaid rent. Plaintiff- landlord, Avenue of Americas, LLC, is suing defendant-tenant, Terra Shoes, LLC; defendant- guarantor, Earth OpCo LLC; and defendant Windsong Global LLC, which plaintiff asserts should also be held liable for the alleged unpaid rent due to its “complete domination and control” exercised over tenant and guarantor. (NYSCEF No. 13 at 5 ¶ 31.) Defendants have not filed opposition papers. Plaintiff has established proper service on defendants; and they have not appeared. With respect to tenant and guarantor, the affidavit of plaintiff’s property manager, and the accompanying rent ledger, provides sufficient proof for default-judgment purposes of plaintiff’s claims against those defendants. With respect to defendant Windsong Global, however, the only support given for plaintiff’s claim is that Windsong Global “conducted all communications with Plaintiff on Tenant’s behalf, and upon information and belief, exercises complete domination and control of Tenant.” (Id. at 3 ¶ 14; see also id. at 5 ¶ 31 [same].) That bare, conclusory assertion— made without providing the basis for affiant’s belief—is not sufficient to pierce the corporate veil, as would be required to hold Windsong Global liable for the contractual obligations of tenant and guarantor. Accordingly, it is ORDERED that the branches of plaintiff’s motion seeking default judgment against tenant and against guarantor are granted, and plaintiff is awarded a judgment against tenant and guarantor, jointly and severally, for $142,883.71, with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further 1 of 4 3 2 FILED: NEW YORK COUNTY CLERK 09/29/2023 09/21/2023 06:16 01:03 PM INDEX NO. 651953/2023 NYSCEF DOC. NO. 23 22 RECEIVED NYSCEF: 09/29/2023 09/21/2023 ORDERED that the branch of plaintiff’s motion seeking default judgment against defendant Windsong Global is denied; and it is further ORDERED that plaintiff serve a copy of this order with notice of its entry on defendants by certified mail, return receipt requested, directed to their respective last-known addresses; and on the office of the County Clerk, which shall enter judgment accordingly. 9/21/2023 $SIG$ DATE CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 2 2 of 4 4 2