On October 18, 2023 a
Motion-Secondary
was filed
involving a dispute between
Tbf Financial, Llc,
and
Kenneth C. Scott Jr.,
Performance Heating And Cooling, Inc,
Sean P. Beardsley,
for Commercial - Contract
in the District Court of Oswego County.
Preview
FILED: OSWEGO COUNTY CLERK 12/11/2023 11:50 AM INDEX NO. EFC-2023-1473
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/11/2023
SUPREME COURT
STATE OF NEW YORK COUNTY OF OSWEGO
TBF FINANCIAL, LLC,
Plaintiff,
AFFIRMATION OF
vs. ROBERT J. MARKS, ESQ.
PERFORMANCE HEATING AND COOLING, INC.,
SEAN P. BEARDSLEY, and Index No.: EFC-2023-1473
KENNETH C. SCOTT JR.
Defendants.
Robert J. Marks, Esq., an attorney licensed to practice law in the State of New York, affirms
the following under penalty of perjury:
1. I am associated with the law firm of Boylan Code LLP, attorneys for Plaintiff TBF
"Plaintiff"
Financial, LLC (the or "TBF") in the above-referenced matter. I am familiar with the
papers, pleadings and proceedings in this action. I make this affirmation in support of Plaintiff's
motion for a default judgment against Defendants Performance Heating and Cooling, Inc.
("PHC"), Sean P. Beardsley, and Kenneth C. Scott Jr. (the "Defendants").
2. This is an action to collect monies due and owing under Future Receivables Sales
Agreement dated March 17, 2017 ("Agreement #1") and Future Receivables Sales Agreement
dated June 5, 2017 ("Agreement #2") (collectively the "Agreements"). Under the Agreements
Swift Financial Corporation ("Swift") purchased future receivables of PHC. Defendants Sean P.
Beardsley and Kenneth C. Scott Jr. personally guaranteed full payment and performance (the
"Guaranty").
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FILED: OSWEGO COUNTY CLERK 12/11/2023 11:50 AM INDEX NO. EFC-2023-1473
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/11/2023
3. Swift assigned its rights, title, and interest in the Agreements to Plaintiff TBF
Financial, LLC on or about December 19, 2019 (the "TBF Assignment").
4. TBF commenced this action by filing a Summons and Verified Complaint in the
Oswego County Clerk's Office on or about October 18, 2023. h NYSCEF Doc Nos. 1-5.
5. Defendants were served with separate copies of the Summons and Complaint. See
NYSCEF Docs. 6-8.
6. Defendants have failed to answer, appear or otherwise move and the time to do so
has expired. Defendants are in default.
7. As required by law, my firm conducted a search to confirm that Defendant Sean P.
Beardsley and Kenneth C. Scott Jr. are not members of the armed services. A copy of the reports
obtained from the Department of Defense Manpower Data Center is annexed here as Exhibit A.
8. The Agreements provides that Defendants shall be responsible for Plaintiff's
attorneys'
fees in the event of default.
9. Plaintiff retained Boylan Code LLP to enforce its rights under the Agreements.
10. Since this matter was referred to Boylan Code, legal and non-legal personnel
under an attorney's supervision have furnished the following services:
a. Receiving and reviewing the file, and investigated the facts;
b. Drafting and dictating the Summons and Complaint;
c. Arranging for service of the Summons and Complaint;
d. Issuing checks to process server and court clerks;
e. Drafting and dictating proposed default judgment;
f. Drafting and dictating this Affirmation and the proposed order.
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FILED: OSWEGO COUNTY CLERK 12/11/2023 11:50 AM INDEX NO. EFC-2023-1473
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/11/2023
11. As of the date of this affirmation, Michael J. Wegman, a Partner with Boylan Code
LLP has spent 1.0 hour on the above tasks and attorney Robert J. Marks, a Senior Associate with
Boylan Code has spent 1.7 hours and paralegal Katrina Bellis has spent an additional 5.0 hours on
Bellis'
these tasks. The hourly rate for all attorneys for this particular client is $225.00; Ms. hourly
rate is $170.00. The value of the time expended on this matter is $1,457.50. The total costs and
disbursements to be incurred are $595.00.
12. I have been practicing as an attorney in private practice for more than five (5) years.
I have spent substantial time working on commercial litigation, representing Plaintiff and other
attorneys'
creditors. I respectfully submit that an award of fees in the amount of $1,457.50 is
reasonable under the circumstances.
WHEREFORE, I respectfully request the Court enter an order granting Plaintiff's motion
attorneys'
for default judgment for the amount demanded in the Complaint, plus an award of fees
in an amount to be determined by the Court, for the costs and disbursements of this action, and for
such other and further relief as the Court may deem fair and reasonable.
Dated: December 11, 2023
Robert J. Marks, Esq.
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Preview
FILED: OSWEGO COUNTY CLERK 12/11/2023 11:50 AM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/11/2023 SUPREME COURT STATE OF NEW YORK COUNTY OF OSWEGO TBF FINANCIAL, LLC, Plaintiff, AFFIRMATION OF vs. ROBERT J. MARKS, ESQ. PERFORMANCE HEATING AND COOLING, INC., SEAN P. BEARDSLEY, and Index No.: EFC-2023-1473 KENNETH C. SCOTT JR. Defendants. Robert J. Marks, Esq., an attorney licensed to practice law in the State of New York, affirms the following under penalty of perjury: 1. I am associated with the law firm of Boylan Code LLP, attorneys for Plaintiff TBF "Plaintiff" Financial, LLC (the or "TBF") in the above-referenced matter. I am familiar with the papers, pleadings and proceedings in this action. I make this affirmation in support of Plaintiff's motion for a default judgment against Defendants Performance Heating and Cooling, Inc. ("PHC"), Sean P. Beardsley, and Kenneth C. Scott Jr. (the "Defendants"). 2. This is an action to collect monies due and owing under Future Receivables Sales Agreement dated March 17, 2017 ("Agreement #1") and Future Receivables Sales Agreement dated June 5, 2017 ("Agreement #2") (collectively the "Agreements"). Under the Agreements Swift Financial Corporation ("Swift") purchased future receivables of PHC. Defendants Sean P. Beardsley and Kenneth C. Scott Jr. personally guaranteed full payment and performance (the "Guaranty"). 1 of 3 FILED: OSWEGO COUNTY CLERK 12/11/2023 11:50 AM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/11/2023 3. Swift assigned its rights, title, and interest in the Agreements to Plaintiff TBF Financial, LLC on or about December 19, 2019 (the "TBF Assignment"). 4. TBF commenced this action by filing a Summons and Verified Complaint in the Oswego County Clerk's Office on or about October 18, 2023. h NYSCEF Doc Nos. 1-5. 5. Defendants were served with separate copies of the Summons and Complaint. See NYSCEF Docs. 6-8. 6. Defendants have failed to answer, appear or otherwise move and the time to do so has expired. Defendants are in default. 7. As required by law, my firm conducted a search to confirm that Defendant Sean P. Beardsley and Kenneth C. Scott Jr. are not members of the armed services. A copy of the reports obtained from the Department of Defense Manpower Data Center is annexed here as Exhibit A. 8. The Agreements provides that Defendants shall be responsible for Plaintiff's attorneys' fees in the event of default. 9. Plaintiff retained Boylan Code LLP to enforce its rights under the Agreements. 10. Since this matter was referred to Boylan Code, legal and non-legal personnel under an attorney's supervision have furnished the following services: a. Receiving and reviewing the file, and investigated the facts; b. Drafting and dictating the Summons and Complaint; c. Arranging for service of the Summons and Complaint; d. Issuing checks to process server and court clerks; e. Drafting and dictating proposed default judgment; f. Drafting and dictating this Affirmation and the proposed order. 2 2 of 3 FILED: OSWEGO COUNTY CLERK 12/11/2023 11:50 AM INDEX NO. EFC-2023-1473 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/11/2023 11. As of the date of this affirmation, Michael J. Wegman, a Partner with Boylan Code LLP has spent 1.0 hour on the above tasks and attorney Robert J. Marks, a Senior Associate with Boylan Code has spent 1.7 hours and paralegal Katrina Bellis has spent an additional 5.0 hours on Bellis' these tasks. The hourly rate for all attorneys for this particular client is $225.00; Ms. hourly rate is $170.00. The value of the time expended on this matter is $1,457.50. The total costs and disbursements to be incurred are $595.00. 12. I have been practicing as an attorney in private practice for more than five (5) years. I have spent substantial time working on commercial litigation, representing Plaintiff and other attorneys' creditors. I respectfully submit that an award of fees in the amount of $1,457.50 is reasonable under the circumstances. WHEREFORE, I respectfully request the Court enter an order granting Plaintiff's motion attorneys' for default judgment for the amount demanded in the Complaint, plus an award of fees in an amount to be determined by the Court, for the costs and disbursements of this action, and for such other and further relief as the Court may deem fair and reasonable. Dated: December 11, 2023 Robert J. Marks, Esq. 3 3 of 3