Preview
FILED: NASSAU COUNTY CLERK 11/22/2023 09:46 AM INDEX NO. 615152/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/22/2023
SUPREME COURT OF THE STATE OF NEW YORK Index No.: 615152/2023
COUNTY OF NASSAU
REVENUED LLC,
Plaintiff,
-against-
ADVICE CHASER, LLC and
ANTHONY TOMASHEFSKY,
Defendants.
MEMORANDUM OF LAW IN SUPPORT
Theodore Jon Cohen, Esq.
Attorney for Plaintiff
Office, Post Office Address, E-mail address, Telephone
c/o Pearl Capital
410 Jericho Tpke., Ste. 220
Jericho, New York 11753
Phone: (516) 419-6623
Email: T.J.Cohen.Attorney@gmail.com
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of
New York State, certifies that, upon information and belief and reasonable inquiry, the contentions
contained in the annexed document are not frivolous.
Dated: November 21, 2023
Theodore Jon Cohen, Esq.
VIA NYSCEF TO:
Attorney(s) for Defendants
Service of a copy of the within is hereby admitted.
Dated:
Attorney(s) for
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TABLE OF CONTENTS
Page
TABLE OF CONTENTS………………………………………………………………….………….… 2
TABLE OF AUTHORITIES…………………………………………………………………….……. 2
PRELIMINARY STATEMENTS……..………………………………………………………………... 3
ARGUMENTS………………………………………………………………………………………….. 3
I. DEFENDANTS SHOULD BE DEEMED TO HAVE BEEN PROPERLY SERVED BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AND FIRST CLASS MAIL FIRST
BECAUSE THEY CONTRACTUALLY CONSENTED TO THIS METHOD OF
SERVICE……………………………………………………..……………….………………… 3
II. PLAINTIFF IS ENTITLED TO DEFAULT JUDGMENT AGAINST DEFENDANTS
WITH INTEREST FROM THE DATE OF DEFAULT………………………………….………… 5
CONCLUSION………………………………………………………………………………….…….… 7
CERTIFICATION OF WORD COUNT………………………………………………………………... 7
TABLE OF AUTHORITIES
Cases Pages
Dobkin v Chapman 4
21 NY2d 490……………………………………………………………………….……..
City of New York v Chemical Bank
122 Misc 2d 104 [Sup Ct, NY County 1983]…………………………………………….. 4
Harkness v Doe
261 AD2d 846 [4th Dept 1999]…………………………………………………………... 4
Matter of New Brunswick Theol. Seminary v Van Dyke
184 A.D. 3d 176, 182 (2nd Dept., 2020)………………………………………………….. 4
Gilbert v. Burstine
255 N.Y. 348, 355-356 (1931)………….………………………………………………… 4
Mullane v Central Hanover Bank Trust Co.
339 US 306, 314, 1950…………………………………………………………………… 4
Matter of New York Merchants Protective Co., Inc. v. Mima’s Kitchen, Inc.
114 A.D. 3d 796, 797 (2nd Dept., 2014)…………………………………………………. 4
Sokolik v. Pateman
114 A.D.3d 839, 841, 981 N.Y.S.2d 111 (2d Dep’t 2014)………………………………… 6
Statutes Pages
CPLR §3215(a)..…….……………………………………………….………………………... 3, 5, 7
CPLR §3215(e)…….…………………………………………………..……………………… 3, 5, 7
CPLR §3215(f)….……………………………………………………..….…………………… 3, 5, 7
CPLR §3215(g)3.(i)……………………………………………………….…………………... 3, 5
CPLR §5001(a)…………………………………………………………….…….……………. 6
CPLR §5004……………………………………………………………….………………….. 6
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PRELIMINARY STATEMENTS
1. This is an action in which the Plaintiff, REVENUED LLC, seeks to recover from the
Defendants based upon the Defendants’ breach of a Master Revenue Purchase Agreement with
Security Agreement and Guaranty of Performance dated on or about April 12, 2023 (the “Agreement”,
a copy of which was annexed as Exhibit A to an affidavit sworn to on November 21, 2023 by Elie
Friedman, Plaintiff’s Chief Underwriting Officer and filed simultaneously herewith, the “Friedman
Affidavit”).
2. The Summons and Complaint in this action having been served upon all named Defendants
and proof of service thereof having been filed with the Court (see NYSCEF Doc. No. 2 and 4) and an
additional copy of the Summons having been served pursuant to CPLR §3215(g)3.(i) on Defendant
ADVICE CHASER, LLC and proof of service thereof having been filed with the Court (see NYSCEF
Doc. No. 5).
3. The Defendants have failed to appear, answer, or raise an objection to the complaint in point of
law, and the time for Defendants to do so has expired.
4. The facts concerning the default by Defendants in their performance of their respective
Agreement/Exhibit A obligations were detailed in (a) paragraphs 5 through 8 and 11 through 15 of
Plaintiff’s Verified Complaint (included within NYSCEF Doc. No. 1); and (b) paragraph 4 of the
Friedman Affidavit.
5. As described in detail below, the Court should issue an Order pursuant to CPLR §3215(a), (e)
and (f) granting Judgment By Default against all Defendants.
ARGUMENTS
I. DEFENDANTS SHOULD BE DEEMED TO HAVE BEEN PROPERLY SERVED
BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AND FIRST CLASS
MAIL FIRST BECAUSE THEY CONSENTED TO THIS METHOD OF SERVICE.
6. Parties are permitted to agree to an alternative method of service of process as long as the
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agreed upon method is reasonably calculated to provide actual notice of the legal proceeding. See
Gilbert v. Burstine, 255 N.Y. 348, 355-356 (1931) (“It is not contrary to natural justice that a man
who has agreed to receive a particular mode of notification of legal proceedings should be bound by
a judgment in which that particular mode of notification has been followed, even though he may not
have actual notice of them.”). In Matter of New York Merchants Protective Co., Inc. v. Mima’s
Kitchen, Inc., 114 A.D. 3d 796, 797 (2nd Dept., 2014) (internal citations omitted)the Appellate
Division ruled that service by regular mail of a notice of petition and petition to confirm an
arbitration award in accordance with the terms of the parties’ agreement was proper, stating in
relevant part that:
Here, under the terms of their agreement, the parties consented to service by
mail of a notice of petition and petition to confirm an arbitration award, pursuant
to the commercial arbitration rules of the National Arbitration Association,
which authorized service by regular mail. Service by regular mail was therefore
proper.
7. “Only a limited group of public policy interests has been identified as sufficiently
fundamental to outweigh the public policy favoring freedom of contract”. Matter of New Brunswick
Theol. Seminary v Van Dyke, 184 A.D. 3d 176, 182 (2nd Dept., 2020) (internal citation and
quotation marks omitted). “The fact that a contract term may be contrary to a policy reflected in the
Constitution, a statute or a judicial decision does not render it unenforceable”. Id. at 183 (Internal
quotation marks omitted). “Indeed, the courts of this State regularly uphold agreements waiving
statutory or constitutional rights.” Id. (Internal citations and quotation marks omitted).
8. Fundamental to our system of justice is the right to be heard. "This right to be heard,"
however, "has little reality or worth unless one is informed that the matter (emphasis supplied) is
pending and can choose for himself whether to appear or default, acquiesce or contest." (Mullane v
Central Hanover Bank Trust Co., 339 US 306, 314, 1950) Thus, in order to meet the constitutional
requirements of due process, service of process must be by a legally approved method that is
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reasonably calculated to give the defendant notice of the pending lawsuit (emphasis supplied).
(Dobkin v Chapman, 21 NY2d 490; Harkness v Doe, 261 AD2d 846 [4th Dept 1999]; City of New
York v Chemical Bank, 122 Misc 2d 104 [Sup Ct, NY County 1983].)
9. In the instant action, Defendants contractually consented to service of process upon
it/him/her/them by “… CERTIFIED MAIL TO THEIR LAST ADDRESS AS KNOWN BY
PURCHASER…” “AND BY FIRST CLASS MAIL TO THEIR LAST ADDRESS AS KNOWN
BY PURCHASER” and “SERVICE HEREUNDER SHALL BE DEEMED COMPLETE UPON
MAILING OR EMAILING, WHICHEVER THE CASE SHALL BE, REGARDLESS OF
ACTUAL DELIVERY” (see section 4.11 of the Agreement/Exhibit A).
10. Plaintiff respectfully requests that this Court take judicial notice of the fact that service of
process, by both: (i) certified mail, return receipt requested; AND (ii) first class mail, addressed to
an intended recipient that previously: (a) provided such addresses to the sender of same; and (b)
agreed, in writing, to such method of service of process, is reasonably calculated to give the
intended recipients of notice of the subject litigation.
II. PLAINTIFF IS ENTITLED TO DEFAULT
JUDGMENT AGAINST DEFENDANTS.
11. CPLR §3215(a) provides, in part, as follows: “Default and entry. When a defendant has
failed to appear, plead or proceed to trial of an action reached and called for trial, … the plaintiff
may seek a default judgment against him. …” In the instant action, Defendants have failed to
appear, plead or proceed to trial.
12. CPLR §3215(e) provides: Place of application to court. An application to the court under
this section may be made, except where otherwise prescribed by rules of the chief administrator of
the courts, by motion at any trial term in which the action is triable or at any special term in which
a motion in the action could be made. Any reference shall be had in the county in which the action
is triable, unless the court orders otherwise.
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13. CPLR §3215(f) provides, in part, as follows: “Proof. On any application for judgment by
default, the applicant shall file proof of service of the summons and the complaint, …” In the instant
action, Plaintiff has complied with this requirement (see NYSCEF Doc. Nos. 2 & 4).
14. CPLR §3215(g)3.(i) provides as follows: “When a default judgment based upon
nonappearance is sought against a natural person in an action based upon nonpayment of a
contractual obligation an affidavit shall be submitted that additional notice has been given by or on
behalf of the plaintiff at least twenty days before the entry of such judgment, by mailing a copy of
the summons by first-class mail to the defendant at his place of residence in an envelope bearing the
legend “personal and confidential” and not indicating on the outside of the envelope that the
communication is from an attorney or concerns an alleged debt. In the event such mailing is
returned as undeliverable by the post office before the entry of a default judgment, or if the place of
residence of the defendant is unknown, a copy of the summons shall then be mailed in the same
manner to the defendant at the defendant's place of employment if known; if neither the place of
residence nor the place of employment of the defendant is known, then the mailing shall be to the
defendant at his last known residence.” In the instant action, Plaintiff has complied with this
requirement (see NYSCEF Doc. No. 5 and paragraph 10 of the Ramdeen Affirmation).
15. Under CPLR §5001(a)1, pre-judgment interest must be awarded to the prevailing party in a
breach of contract case and such interest runs from the date of the breach. Sokolik v. Pateman, 114
A.D.3d 839, 841, 981 N.Y.S.2d 111 (2d Dep’t 2014).
16. CPLR §50042 provides the statutory rate of interest to be 9% per annum and that interest
accrues from “the date of entry of judgment …”
1 “Actions in which recoverable. Interest shall be recovered upon a sum awarded because of a breach of performance of
a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment
of, property, except that in an action of an equitable nature, interest and the rate and date from which it shall be
computed shall be in the court's discretion.”
2 “Rate of interest. Interest shall be at the rate of nine per centum per annum, except where otherwise provided by
statute.”
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CONCLUSION
17. For the foregoing reasons, this Court should, pursuant to CPLR §3215(a), (e) and (f), issue an
order granting plaintiff judgment by default as a matter of law together with statutory interest from the
date of default, to wit, 09/13/23, $42,128.00 plus post-judgment interest at the statutory rate, plus costs
and disbursements as taxed by the Clerk, and awarding Plaintiff such other and further relief as may be
just and proper.
WHEREFORE, Plaintiff respectfully requests that the Court issue an Order pursuant to CPLR
§3215(a), (e) and (f) granting plaintiff judgment by default as a matter of law together with statutory
interest from 09/13/23 (the date of default), $42,128.00 plus post-judgment interest at the statutory
rate, plus costs and disbursements as taxed by the Clerk.
CERTIFICATION OF WORD LIMIT: Pursuant to Rule 202.8-b of this Court, the undersigned
hereby certifies this Affidavit, exclusive of this paragraph, the caption and the signature block, contains
1655 words. This certification was prepared in reliance on the word-count.
Respectfully submitted,
Dated: November 22, 2023
Theodore Jon Cohen
Attorney for Plaintiff
c/o Pearl Capital
410 Jericho Tpke., Ste. 220
Jericho, New York 11753
Phone: (516) 419-6623
Email: T.J.Cohen.Attorney@gmail.com
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FILED: NASSAU COUNTY CLERK 11/22/2023 09:46 AM INDEX NO. 615152/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/22/2023 SUPREME COURT OF THE STATE OF NEW YORK Index No.: 615152/2023 COUNTY OF NASSAU REVENUED LLC, Plaintiff, -against- ADVICE CHASER, LLC and ANTHONY TOMASHEFSKY, Defendants. MEMORANDUM OF LAW IN SUPPORT Theodore Jon Cohen, Esq. Attorney for Plaintiff Office, Post Office Address, E-mail address, Telephone c/o Pearl Capital 410 Jericho Tpke., Ste. 220 Jericho, New York 11753 Phone: (516) 419-6623 Email: T.J.Cohen.Attorney@gmail.com Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Dated: November 21, 2023 Theodore Jon Cohen, Esq. VIA NYSCEF TO: Attorney(s) for Defendants Service of a copy of the within is hereby admitted. Dated: Attorney(s) for -1- 1 of 7 FILED: NASSAU COUNTY CLERK 11/22/2023 09:46 AM INDEX NO. 615152/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/22/2023 TABLE OF CONTENTS Page TABLE OF CONTENTS………………………………………………………………….………….… 2 TABLE OF AUTHORITIES…………………………………………………………………….……. 2 PRELIMINARY STATEMENTS……..………………………………………………………………... 3 ARGUMENTS………………………………………………………………………………………….. 3 I. DEFENDANTS SHOULD BE DEEMED TO HAVE BEEN PROPERLY SERVED BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AND FIRST CLASS MAIL FIRST BECAUSE THEY CONTRACTUALLY CONSENTED TO THIS METHOD OF SERVICE……………………………………………………..……………….………………… 3 II. PLAINTIFF IS ENTITLED TO DEFAULT JUDGMENT AGAINST DEFENDANTS WITH INTEREST FROM THE DATE OF DEFAULT………………………………….………… 5 CONCLUSION………………………………………………………………………………….…….… 7 CERTIFICATION OF WORD COUNT………………………………………………………………... 7 TABLE OF AUTHORITIES Cases Pages Dobkin v Chapman 4 21 NY2d 490……………………………………………………………………….…….. City of New York v Chemical Bank 122 Misc 2d 104 [Sup Ct, NY County 1983]…………………………………………….. 4 Harkness v Doe 261 AD2d 846 [4th Dept 1999]…………………………………………………………... 4 Matter of New Brunswick Theol. Seminary v Van Dyke 184 A.D. 3d 176, 182 (2nd Dept., 2020)………………………………………………….. 4 Gilbert v. Burstine 255 N.Y. 348, 355-356 (1931)………….………………………………………………… 4 Mullane v Central Hanover Bank Trust Co. 339 US 306, 314, 1950…………………………………………………………………… 4 Matter of New York Merchants Protective Co., Inc. v. Mima’s Kitchen, Inc. 114 A.D. 3d 796, 797 (2nd Dept., 2014)…………………………………………………. 4 Sokolik v. Pateman 114 A.D.3d 839, 841, 981 N.Y.S.2d 111 (2d Dep’t 2014)………………………………… 6 Statutes Pages CPLR §3215(a)..…….……………………………………………….………………………... 3, 5, 7 CPLR §3215(e)…….…………………………………………………..……………………… 3, 5, 7 CPLR §3215(f)….……………………………………………………..….…………………… 3, 5, 7 CPLR §3215(g)3.(i)……………………………………………………….…………………... 3, 5 CPLR §5001(a)…………………………………………………………….…….……………. 6 CPLR §5004……………………………………………………………….………………….. 6 2 of 7 FILED: NASSAU COUNTY CLERK 11/22/2023 09:46 AM INDEX NO. 615152/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/22/2023 PRELIMINARY STATEMENTS 1. This is an action in which the Plaintiff, REVENUED LLC, seeks to recover from the Defendants based upon the Defendants’ breach of a Master Revenue Purchase Agreement with Security Agreement and Guaranty of Performance dated on or about April 12, 2023 (the “Agreement”, a copy of which was annexed as Exhibit A to an affidavit sworn to on November 21, 2023 by Elie Friedman, Plaintiff’s Chief Underwriting Officer and filed simultaneously herewith, the “Friedman Affidavit”). 2. The Summons and Complaint in this action having been served upon all named Defendants and proof of service thereof having been filed with the Court (see NYSCEF Doc. No. 2 and 4) and an additional copy of the Summons having been served pursuant to CPLR §3215(g)3.(i) on Defendant ADVICE CHASER, LLC and proof of service thereof having been filed with the Court (see NYSCEF Doc. No. 5). 3. The Defendants have failed to appear, answer, or raise an objection to the complaint in point of law, and the time for Defendants to do so has expired. 4. The facts concerning the default by Defendants in their performance of their respective Agreement/Exhibit A obligations were detailed in (a) paragraphs 5 through 8 and 11 through 15 of Plaintiff’s Verified Complaint (included within NYSCEF Doc. No. 1); and (b) paragraph 4 of the Friedman Affidavit. 5. As described in detail below, the Court should issue an Order pursuant to CPLR §3215(a), (e) and (f) granting Judgment By Default against all Defendants. ARGUMENTS I. DEFENDANTS SHOULD BE DEEMED TO HAVE BEEN PROPERLY SERVED BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AND FIRST CLASS MAIL FIRST BECAUSE THEY CONSENTED TO THIS METHOD OF SERVICE. 6. Parties are permitted to agree to an alternative method of service of process as long as the 3 3 of 7 FILED: NASSAU COUNTY CLERK 11/22/2023 09:46 AM INDEX NO. 615152/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/22/2023 agreed upon method is reasonably calculated to provide actual notice of the legal proceeding. See Gilbert v. Burstine, 255 N.Y. 348, 355-356 (1931) (“It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them.”). In Matter of New York Merchants Protective Co., Inc. v. Mima’s Kitchen, Inc., 114 A.D. 3d 796, 797 (2nd Dept., 2014) (internal citations omitted)the Appellate Division ruled that service by regular mail of a notice of petition and petition to confirm an arbitration award in accordance with the terms of the parties’ agreement was proper, stating in relevant part that: Here, under the terms of their agreement, the parties consented to service by mail of a notice of petition and petition to confirm an arbitration award, pursuant to the commercial arbitration rules of the National Arbitration Association, which authorized service by regular mail. Service by regular mail was therefore proper. 7. “Only a limited group of public policy interests has been identified as sufficiently fundamental to outweigh the public policy favoring freedom of contract”. Matter of New Brunswick Theol. Seminary v Van Dyke, 184 A.D. 3d 176, 182 (2nd Dept., 2020) (internal citation and quotation marks omitted). “The fact that a contract term may be contrary to a policy reflected in the Constitution, a statute or a judicial decision does not render it unenforceable”. Id. at 183 (Internal quotation marks omitted). “Indeed, the courts of this State regularly uphold agreements waiving statutory or constitutional rights.” Id. (Internal citations and quotation marks omitted). 8. Fundamental to our system of justice is the right to be heard. "This right to be heard," however, "has little reality or worth unless one is informed that the matter (emphasis supplied) is pending and can choose for himself whether to appear or default, acquiesce or contest." (Mullane v Central Hanover Bank Trust Co., 339 US 306, 314, 1950) Thus, in order to meet the constitutional requirements of due process, service of process must be by a legally approved method that is 4 4 of 7 FILED: NASSAU COUNTY CLERK 11/22/2023 09:46 AM INDEX NO. 615152/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/22/2023 reasonably calculated to give the defendant notice of the pending lawsuit (emphasis supplied). (Dobkin v Chapman, 21 NY2d 490; Harkness v Doe, 261 AD2d 846 [4th Dept 1999]; City of New York v Chemical Bank, 122 Misc 2d 104 [Sup Ct, NY County 1983].) 9. In the instant action, Defendants contractually consented to service of process upon it/him/her/them by “… CERTIFIED MAIL TO THEIR LAST ADDRESS AS KNOWN BY PURCHASER…” “AND BY FIRST CLASS MAIL TO THEIR LAST ADDRESS AS KNOWN BY PURCHASER” and “SERVICE HEREUNDER SHALL BE DEEMED COMPLETE UPON MAILING OR EMAILING, WHICHEVER THE CASE SHALL BE, REGARDLESS OF ACTUAL DELIVERY” (see section 4.11 of the Agreement/Exhibit A). 10. Plaintiff respectfully requests that this Court take judicial notice of the fact that service of process, by both: (i) certified mail, return receipt requested; AND (ii) first class mail, addressed to an intended recipient that previously: (a) provided such addresses to the sender of same; and (b) agreed, in writing, to such method of service of process, is reasonably calculated to give the intended recipients of notice of the subject litigation. II. PLAINTIFF IS ENTITLED TO DEFAULT JUDGMENT AGAINST DEFENDANTS. 11. CPLR §3215(a) provides, in part, as follows: “Default and entry. When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, … the plaintiff may seek a default judgment against him. …” In the instant action, Defendants have failed to appear, plead or proceed to trial. 12. CPLR §3215(e) provides: Place of application to court. An application to the court under this section may be made, except where otherwise prescribed by rules of the chief administrator of the courts, by motion at any trial term in which the action is triable or at any special term in which a motion in the action could be made. Any reference shall be had in the county in which the action is triable, unless the court orders otherwise. 5 5 of 7 FILED: NASSAU COUNTY CLERK 11/22/2023 09:46 AM INDEX NO. 615152/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/22/2023 13. CPLR §3215(f) provides, in part, as follows: “Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, …” In the instant action, Plaintiff has complied with this requirement (see NYSCEF Doc. Nos. 2 & 4). 14. CPLR §3215(g)3.(i) provides as follows: “When a default judgment based upon nonappearance is sought against a natural person in an action based upon nonpayment of a contractual obligation an affidavit shall be submitted that additional notice has been given by or on behalf of the plaintiff at least twenty days before the entry of such judgment, by mailing a copy of the summons by first-class mail to the defendant at his place of residence in an envelope bearing the legend “personal and confidential” and not indicating on the outside of the envelope that the communication is from an attorney or concerns an alleged debt. In the event such mailing is returned as undeliverable by the post office before the entry of a default judgment, or if the place of residence of the defendant is unknown, a copy of the summons shall then be mailed in the same manner to the defendant at the defendant's place of employment if known; if neither the place of residence nor the place of employment of the defendant is known, then the mailing shall be to the defendant at his last known residence.” In the instant action, Plaintiff has complied with this requirement (see NYSCEF Doc. No. 5 and paragraph 10 of the Ramdeen Affirmation). 15. Under CPLR §5001(a)1, pre-judgment interest must be awarded to the prevailing party in a breach of contract case and such interest runs from the date of the breach. Sokolik v. Pateman, 114 A.D.3d 839, 841, 981 N.Y.S.2d 111 (2d Dep’t 2014). 16. CPLR §50042 provides the statutory rate of interest to be 9% per annum and that interest accrues from “the date of entry of judgment …” 1 “Actions in which recoverable. Interest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court's discretion.” 2 “Rate of interest. Interest shall be at the rate of nine per centum per annum, except where otherwise provided by statute.” 6 6 of 7 FILED: NASSAU COUNTY CLERK 11/22/2023 09:46 AM INDEX NO. 615152/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/22/2023 CONCLUSION 17. For the foregoing reasons, this Court should, pursuant to CPLR §3215(a), (e) and (f), issue an order granting plaintiff judgment by default as a matter of law together with statutory interest from the date of default, to wit, 09/13/23, $42,128.00 plus post-judgment interest at the statutory rate, plus costs and disbursements as taxed by the Clerk, and awarding Plaintiff such other and further relief as may be just and proper. WHEREFORE, Plaintiff respectfully requests that the Court issue an Order pursuant to CPLR §3215(a), (e) and (f) granting plaintiff judgment by default as a matter of law together with statutory interest from 09/13/23 (the date of default), $42,128.00 plus post-judgment interest at the statutory rate, plus costs and disbursements as taxed by the Clerk. CERTIFICATION OF WORD LIMIT: Pursuant to Rule 202.8-b of this Court, the undersigned hereby certifies this Affidavit, exclusive of this paragraph, the caption and the signature block, contains 1655 words. This certification was prepared in reliance on the word-count. Respectfully submitted, Dated: November 22, 2023 Theodore Jon Cohen Attorney for Plaintiff c/o Pearl Capital 410 Jericho Tpke., Ste. 220 Jericho, New York 11753 Phone: (516) 419-6623 Email: T.J.Cohen.Attorney@gmail.com 7 7 of 7