On June 21, 2023 a
Motion-Secondary
was filed
involving a dispute between
Ehrlich Gayner, Llp,
and
Matthew Gates,
for Commercial - Contract
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 12/31/2023 09:54 AM INDEX NO. 652966/2023
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 12/31/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
________________________________________________________________Ç
EHRLICH GAYNER, LLP, AFFIDAVIT IN
SUPPORT
Plaintiff, Index: 652966/2023
-against-
MATTHEW GATES,
Defendant.
__________________________________________________________.._____Ç
STATE OF NEW YORK )
. SS
COUNTY OF NEW YORK )
CHARLES J. GAYNER, ESQ., a partner with Ehrlich Gayner, LLP, and counsel to the
plaintiff, sets forth as follows, under the penalties of perjury and upon information and belief:
1. This affidavit is submitted in support of the within motion seeking a default
against the defendant.
2. This matter sounds in breach of contract between this law firm and its former
client. The defendant is in arrears on a debt due and owing to the plaintiff for legal services
rendered. A fee arbitration option was presented and refused. As set forth in the Complaint
(Exhibit "A") the plaintiff represented the defendant in several Family, Criminal and Supreme
Court matters relating to various domestic issues. There was a written retainer agreement
between the parties. The defendant never disputed fees or effectiveness of service and in fact
praised the plaintiff, in writing, as to the services provided. The defendant paid much of the
legal bill, following extensive reminders, but remains in anears for the balance. There are also
continued costs related to this litigation and other damages, which causes of action were
preserved by this court in prior motion practice.
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FILED: NEW YORK COUNTY CLERK 12/31/2023 09:54 AM INDEX NO. 652966/2023
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 12/31/2023
3. This is the second default motion. The first default motion was met with a cross
motion when the plaintiff retained counsel. The retaliatory cross motion was denied thus
preserving all causes of action against the defendant. Our default motion was denied to give the
defendant time to answer. The Court issued an Order addressing both motions, which order is
attached as Exhibit "B". The Order directs the defendant as follows: "The A must interpose an
Answer by December 27, 2023".
4. The defendant has failed and/or refused to comply with the Court order and thus,
this second motion for default is presented to the Court.
5. A sufficient time has passed and now the defendant should be held in default
pursuant to CPLR 3215, which states as follows:
§ 3215. Default judgment. (a) Default and entry. When a defendant has
failed to appear, plead or proceed to trial of an action reached and
called for trial, or when the court orders a dismissal for any other
neglect to proceed, the plaintiff may seek a default judgment against
him. If the plaintiffs claim is for a sum certain or for a sum which
can by computation be made certain, application may be made to the clerk
within one year after the default. The clerk, upon submission of the
requisite proof shall enter judgment for the amount demanded in the
complaint or stated in the notice served pursuant to subdivision (b) of
rule 305, plus costs and interest.
6. Costs and expenses (court fees) related to this litigation and the two default
motions total about $4,400 with about $600 for this motion with anticipated costs if there is
opposition and a requirement to appear. The calculation is based upon our $450 per hour rate,
2 of 3
FILED: NEW YORK COUNTY CLERK 12/31/2023 09:54 AM INDEX NO. 652966/2023
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 12/31/2023
which rate applied to the defendant when he was our client.
7. It is respectfully requested that the Court issue a default Order/Judgment and
since there is a sum certain and/or a sum certain computation can be provided to the Clerk of the
Court, that the Court permit same in its Order. The total amount owed for legal fees is
$33,763.34. Costs/fees, so far, are $4,400.00 The total is $38,163.34 without the other causes of
"C" "C2"
action and continued litigation fees/costs. Attached as Exhibit and for two litigations,
are the unpaid invoices. As to the $4,400.00 our activity in this matter totals 9 hours to date for
pleadings and motion practice. Total Court fees(Summons, RJI, 2 motions) are $350.00 date. As
to legal fees $450 x 9 is $4,050.00.
8. Alternatively, the plaintiff requests an inquest on all causes of action.
WHEREFORE, it is respectfully requested that the Court grant the within motion in its
entirety.
Date: New York, New York
DECEMBER 31, 2023
Charles ner
Sworn t befo e this 31st
day of ece ber, 2023 1
NO PUBLIC
aAcan sunucH
riQIAAY PU9UC-STATE OF NEW YORK
No. 025H6041406
Qualified in New Yott County
My commissica tmMree Aptu 03, 20
3 of 3
Document Filed Date
December 31, 2023
Case Filing Date
June 21, 2023
Category
Commercial - Contract
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FILED: NEW YORK COUNTY CLERK 12/31/2023 09:54 AM INDEX NO. 652966/2023 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 12/31/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ________________________________________________________________Ç EHRLICH GAYNER, LLP, AFFIDAVIT IN SUPPORT Plaintiff, Index: 652966/2023 -against- MATTHEW GATES, Defendant. __________________________________________________________.._____Ç STATE OF NEW YORK ) . SS COUNTY OF NEW YORK ) CHARLES J. GAYNER, ESQ., a partner with Ehrlich Gayner, LLP, and counsel to the plaintiff, sets forth as follows, under the penalties of perjury and upon information and belief: 1. This affidavit is submitted in support of the within motion seeking a default against the defendant. 2. This matter sounds in breach of contract between this law firm and its former client. The defendant is in arrears on a debt due and owing to the plaintiff for legal services rendered. A fee arbitration option was presented and refused. As set forth in the Complaint (Exhibit "A") the plaintiff represented the defendant in several Family, Criminal and Supreme Court matters relating to various domestic issues. There was a written retainer agreement between the parties. The defendant never disputed fees or effectiveness of service and in fact praised the plaintiff, in writing, as to the services provided. The defendant paid much of the legal bill, following extensive reminders, but remains in anears for the balance. There are also continued costs related to this litigation and other damages, which causes of action were preserved by this court in prior motion practice. 1 of 3 FILED: NEW YORK COUNTY CLERK 12/31/2023 09:54 AM INDEX NO. 652966/2023 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 12/31/2023 3. This is the second default motion. The first default motion was met with a cross motion when the plaintiff retained counsel. The retaliatory cross motion was denied thus preserving all causes of action against the defendant. Our default motion was denied to give the defendant time to answer. The Court issued an Order addressing both motions, which order is attached as Exhibit "B". The Order directs the defendant as follows: "The A must interpose an Answer by December 27, 2023". 4. The defendant has failed and/or refused to comply with the Court order and thus, this second motion for default is presented to the Court. 5. A sufficient time has passed and now the defendant should be held in default pursuant to CPLR 3215, which states as follows: § 3215. Default judgment. (a) Default and entry. When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him. If the plaintiffs claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default. The clerk, upon submission of the requisite proof shall enter judgment for the amount demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305, plus costs and interest. 6. Costs and expenses (court fees) related to this litigation and the two default motions total about $4,400 with about $600 for this motion with anticipated costs if there is opposition and a requirement to appear. The calculation is based upon our $450 per hour rate, 2 of 3 FILED: NEW YORK COUNTY CLERK 12/31/2023 09:54 AM INDEX NO. 652966/2023 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 12/31/2023 which rate applied to the defendant when he was our client. 7. It is respectfully requested that the Court issue a default Order/Judgment and since there is a sum certain and/or a sum certain computation can be provided to the Clerk of the Court, that the Court permit same in its Order. The total amount owed for legal fees is $33,763.34. Costs/fees, so far, are $4,400.00 The total is $38,163.34 without the other causes of "C" "C2" action and continued litigation fees/costs. Attached as Exhibit and for two litigations, are the unpaid invoices. As to the $4,400.00 our activity in this matter totals 9 hours to date for pleadings and motion practice. Total Court fees(Summons, RJI, 2 motions) are $350.00 date. As to legal fees $450 x 9 is $4,050.00. 8. Alternatively, the plaintiff requests an inquest on all causes of action. WHEREFORE, it is respectfully requested that the Court grant the within motion in its entirety. Date: New York, New York DECEMBER 31, 2023 Charles ner Sworn t befo e this 31st day of ece ber, 2023 1 NO PUBLIC aAcan sunucH riQIAAY PU9UC-STATE OF NEW YORK No. 025H6041406 Qualified in New Yott County My commissica tmMree Aptu 03, 20 3 of 3