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FILED: NASSAU COUNTY CLERK 02/18/2024 07:50 PM INDEX NO. 608383/2023
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/18/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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RICHARD J. DiGERONIMO and
R.D. GERONIMO, LTD.,
AFFIRMATION
Plaintiffs,
Index No. 608383/2023
-against-
PROPERTY ANALYTIX, LLC, ARCHSTONE
GROUP NYC LLC, MICHAEL MILLER, ROYCE
ASHTON ROWLES and RYAN LIN,
Defendants.
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STATE OF CONNECTICUT )
) ss.:
COUNTY OF FAIRFIELD )
RICHARD DiGERONIMO, affirms the truth of the following under the penalty
of perjury pursuant to CPLR 2106:
1. I am an individual Plaintiff in this action. I am also the President of Plaintiff
R.D. Geronimo Ltd. (“RDG”) and, as such, I am fully familiar with the facts and circumstances
hereinafter set forth. I make this affirmation based upon my personal knowledge of the facts set
forth herein.
2. I submit this affirmation in support of Plaintiffs’ motion for summary
judgment pursuant to CPLR 3212 on the first through sixth and tenth through twelfth causes of
action of the Complaint dated May 25, 2023 [NYSCEF Doc. No. 1] and for an order directing a
hearing to determine Plaintiffs’ reasonable attorneys’ fees.
3. As detailed below, Plaintiffs’ motion for summary judgment should be
granted in its entirety. Defendants have defaulted in their payment obligations under the
promissory note and personal guaranty executed in connection the sale by Plaintiffs of a real estate
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appraisal business which I founded and nurtured for over 35 years. The LLC defendants purchased
the assets of the business and their obligation to pay the balance of the purchase price was
evidenced by a promissory note executed by the corporate defendants and personally guaranteed
by the individual defendants. The defendants have defaulted in payment under the promissory
note and personal guaranty, constraining Plaintiffs to commence this action.
4. Additionally, since the subject asset purchase agreement, promissory note,
personal guaranty, and non-competition agreement each entitle plaintiffs to their reasonable
attorney’s fees in the event they are successful on a claim brought under that agreement(s),
plaintiffs are entitled to a hearing to determine the reasonable attorney’s fees to which they are due
from defendants.
DiGeronimo’s Founding and Successful Stewardship of RDG
5. I am a New York State, New Jersey and Connecticut licensed certified real
estate general appraiser and aa member of the Appraisal Institute since 1978 with the designations
MAI, SRPA and AI-GRS.
6. I am the founder and President of RDG, a real estate appraisal and advisory
service company which I founded in 1985. RDG’s professional services included traditional
market value appraisals for lending institutions, analysis of real estate project feasibility,
investment portfolio valuations, appraisal review and expert testimony as well as real estate
advisory counseling services.
7. From 1985 until June, 2021, I was self-employed as the President and
Owner of RDG.
8. RDG maintained its offices in Mineola, New York.
The Asset Purchase Agreement
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9. In early 2021, as I neared retirement age, I sought out a purchaser for the
business/assets of RDG.
10. Ultimately, I entered into an Asset Purchase Agreement (“Asset Purchase
Agreement”) with Property Analytix — a real estate appraisal firm headquartered in Houston,
Texas — and Archstone — a sole purpose vehicle organized by Property Analytix to take title to
the assets of RDG. A copy of the Asset Purchase Agreement is annexed hereto as Exhibit “A”.
11. Pursuant to the Asset Purchase Agreement, the purchase price for the sale
of the assets of RDG was $1,400,000.00 payable to RDG as follows: (a) a down payment of
$700,000.00 payable at the time of closing; and (b) the balance of $700,000.00 payable in sixteen
(16) equal quarterly installments of $43,750.00 plus interest at 5.5% per annum beginning March
1, 2022 1 and every quarter thereafter until the note was paid in full. See Exhibit “A” at ¶2.1.2 .
12. The Asset Purchase Agreement defined the Operative Documents as the
Asset Purchase Agreement, the exhibits thereto and the documents executed therewith. See
Exhibit “A” at ¶¶11.9; 11.14. The Promissory Note, the Personal Guaranty, and the Non-
Competition Agreement (each as hereinafter defined) are exhibits to the Asset Purchase Agreement
and were executed with the Asset Purchase Agreement and thus constitute Operative Documents
within the meaning of the Asset Purchase Agreement.
The Promissory Note
13. The balance of the purchase price payable to RDG was evidenced by a
Promissory Note executed July 1, 2021 between Property Analytix and Archstone, as maker, and
RDG, as holder (the “Promissory Note”). A copy of the Promissory Note is annexed hereto as
1
Later amended in the Promissory Note to state quarterly installment payments were to commence on July 1, 2022.
See Exhibit “B”.
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Exhibit “B”. 2
14. RDG is the current owner and holder of the Promissory Note.
15. Pursuant to the Promissory Note, in the event Property Analytix or
Archstone or any of the guarantors fail to keep, observe or perform any covenant or other
obligation required to be kept, observed or performed by Property Analytix and Archstone or the
guarantors under any of the Operative Documents, or in the event any payment required to be
made by Property Analytix and Archstone under the Promissory Note or under any Operative
Document was not paid in full on the date due, and Property Analytix and Archstone failed to cure
payment within 30 days after the receipt of notice of such default in payment, then, in either case,
the Promissory Note and all remaining unpaid principal provided for therein would become
immediately due and payable, together with accrued interest and any other charges due thereunder
and all costs and expenses, including reasonable attorneys’ fees, in connection with the
enforcement of RDG’s and DiGeronimo’s rights under the Promissory Note and under the
Operative Documents. See Exhibit “B” at p. 2-3.
16. The Promissory Note provides that “in the event any payment due here
under is not paid on his due date, including the applicable grace period, such unpaid amounts shall
bear interest, commencing on the date following the applicable due date, at the interest rate per
annum of Fifteen Percent (15%) or the maximum rate permitted by applicable laws and
governmental regulations, whichever is less, until paid to HOLDER”. See Exhibit “B” at p.3
2
In accordance with the Asset Purchase Agreement, the Purchaser was required to deposit into its operating account
not less than $150,000.00 to provide for sufficient working capital and liquidity for operations of the Purchaser. See
Exhibit “A” at ¶1.4.6. Notwithstanding this requirement, the Seller and Purchaser executed a certain Amendment to
the Asset Purchase Agreement, whereby Seller agreed to advance $100,000.00 of the above referenced capital
requirement amount. See Amendment to Asset Purchase Agreement (annexed as part of Exhibit “A”) at ¶2.
Accordingly, an additional $100,000.00 was added to the principal amount due under the Note executed at the
closing (see Exhibit “B”) which $100,000.00 was thereafter paid to RDG on or about July 31, 2021, leaving a
principal balance of the Note as of July 31, 2021 of $700,000.
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The Personal Guaranty
17. Defendants Michael Miller, Royce Ashton Rowles and Ryan Lin, jointly
and severally, each personally guaranteed to RDG the payment obligation of Property Analytix
and Archstone under the Promissory Note and the full performance and observance by Property
Analytix and Archstone of all other obligations of Property Analytix and Archstone under the
Operative Documents. A copy of the Personal Guaranty is annexed hereto as Exhibit “C”.
18. In that respect, the Personal Guaranty provided as follows:
the undersigned jointly and severally (hereafter sometimes
collectively called the Guarantor) acting as surety hereby absolutely
and unconditionally for itself and its legal representatives,
successors and assigns, guarantees to Seller . . . the prompt and full
performance and observance by the Buyer and by his legal
representatives, successors and assigns of Buyer’s obligation to
make payments in accordance with the terms of the Promissory Note
and any charges accruing under the Operative Documents (or
damages in lieu thereof).
Exhibit “C” at ¶1.
Defendants’ Default in their Monetary Obligations under the Operative
Documents
19. Defendants defaulted on their monetary and other obligations under the
Asset Purchase Agreement, Promissory Note and Personal Guaranty, in several separate respects.
(i) The Quarterly Installment Payment Default
20. Property Analytix and Archstone failed to pay the quarterly installment
payment of $43,750.00 plus interest at 5.5% per annum which came due on April 1, 2023 (the
“Quarterly Installment Payment Default”). Thus, Property Analytix and Archstone failed to
pay me for the very assets and business which they purchased and which they operated following
the closing.
21. The Quarterly Installment Payment Default constituted a default under the
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Promissory Note and a default under the Personal Guaranty, respectively.
22. Pursuant to paragraph “8” of the Asset Purchase Agreement, Property
Analytix and Archstone are entitled to 30 days’ notice and an opportunity to cure any monetary
default. See Exhibit “A” at ¶8.
23. Plaintiffs furnished Defendants with written notice of the Quarterly
Installment Payment Default by Notice to Cure dated April 14, 2023. See Exhibit “D”.
24. Defendants failed to cure the Quarterly Installment Payment Default within
30 days of the April 14, 2023 notice (or any time thereafter).
25. As a result, Plaintiffs elected in the Complaint to accelerate the balance of
the purchase price payable under the Asset Purchase Agreement, as evidenced by the Promissory
Note, due to Defendants’ failure to timely cure the Quarterly Installment Payment Default. See
NYSCEF Doc. No.1 at ¶58.
26. As of the date of the April 14, 2023 default notice, the unpaid principal
balance of the Promissory Note was $553,681.
(ii) The Bonus Default
27. Pursuant to Section 1.5.8 of the Asset Purchase Agreement, Property
Analytix and Archstone were obligated to pay DiGeronimo a bonus of $20,000.00 on or before
January 31, 2023. See Exhibit “A” at ¶1.5.8.
28. Property Analytix and Archstone breached Section 1.5.8 of the Asset
Purchase Agreement in that Property Analytix and Archstone only paid RDG $10,000.00 of a
$20,000.00 bonus, which was payable on January 31, 2023 (the “Bonus Default”).
29. The Bonus Default constituted a default under the Promissory Note and a
default under the Personal Guaranty, respectively.
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30. Plaintiffs furnished the Defendants with written notice of the Bonus Default
by Notice of Default dated April 20, 2023. See Exhibit “E”.
31. Defendants failed to cure the Bonus Default within 30 days of the April 20,
2023 Notice (or any time thereafter).
32. Accordingly, Plaintiff elected in the complaint to accelerate the balance of
the purchase price payable under the Asset Purchase Agreement, as evidenced by the Promissory
Note, due to Defendants’ failure to cure the Bonus Default. See NYSCEF Doc. No.1 at ¶70.
33. To date, only $10,000 of the $20,000 bonus which was due on or before
January 31, 2023 has been paid, leaving an unpaid balance of said bonus of $10,000.
The Operating Account Default
34. Property Analytix and Archstone breached Section 1.4.6 of the Asset
Purchase Agreement in that Property Analytix and Archstone failed to, at all times until the later
of (i) any amounts are still owed under the Promissory Note; or (ii) DiGeronimo was employed by
Archstone, to cause the operating account of Archstone to have a minimum balance of $150,000.00
(the “Operating Account Default”).
35. Attached hereto as Exhibit “F” is the operating account bank statement of
Archstone for January 2023 reflecting a balance of less than $150,000. See Exhibit “F”.
36. Plaintiffs furnished Defendants with written notice of the Operating
Account Default by Notice of Default dated January 12, 2023. See Exhibit “G”.
37. The Operating Account Default constitutes a default under the Promissory
Note.
38. The Operating Account Default constitutes a default under the Personal
Guaranty.
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39. Defendants failed to cure the Operating Account Default within 30 days of
the January 12, 2023 Notice to Cure. Attached hereto as Exhibit “H” is the operating account
bank statement of Archstone for February 2023 reflecting a balance of less than $150,000. See
Exhibit “H”.
40. Plaintiffs elected to accelerate the balance of the purchase price payable
under the Asset Purchase Agreement and as evidenced by the Promissory Note, due to Defendants’
failure to timely cure the Operating Account Default, by written Notice of Acceleration dated April
14, 2023. See Exhibit “D”.
41. As of April 14, 2023, the unpaid principal balance of the Promissory Note
was $553,681. No payments have been made by Defendants towards the Promissory Note
following the April 14, 2023 notice.
The Non-Competition Agreement
42. Property Analytix and Archstone, on the one hand, and RDG and
DiGeronimo on the other, entered into that certain Non-Competition/Non-Solicitation Agreement
(the “Non-Competition Agreement”) dated May 14, 2021. See Exhibit “I”.
43. Pursuant to the Non-Competition Agreement, RDG and DiGeronimo agreed
that for a minimum period of three years following the execution of the Non-Competition
Agreement, or if DiGeronimo remained employed for more than one year by Property Analytix
and Archstone, for an additional two years after termination of his employ, that DiGeronimo would
not, without Property Analytix’s and Archstone’s prior written consent, directly or indirectly, for
or by him or himself or for or in conjunction with any other person, company or other entity,
engage in any business or activity (or be affiliated in any way with any business which engages in
any business activity) which directly or indirectly competes with the business or any activity
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engaged in by Property Analytix or Archstone or their affiliates. See Exhibit “I” at ¶1.
44. That business was defined by the Non-Competition Agreement as “real
estate appraisal services and real estate evaluation services (but excluding real estate brokerage or
management or its continuing business relationship with ABS R.D. Geronimo Valuation Services
LLC, R.D. Geronimo Holdings LLC, Alethic First Mortgage Co., Integra)”. See Exhibit “I” at ¶1.
45. Pursuant to the Non-Competition Agreement, DiGeronimo agreed that for
a minimum period of three years following the execution of the Non-Competition Agreement, or
if DiGeronimo remained employed for more than one year for Property Analytix and Archstone,
for an additional two years after termination of his employ, that DiGeronimo would not solicit,
hire or engage any employees, clients, customers, independent sellers, agents, brokers or associates
of Property Analytix and Archstone or otherwise attempt to induce any of the foregoing to
terminate their employment, engagement or affiliation with Property Analytix or Archstone, or to
work with, assist or provide similar or related services to RDG and DiGeronimo. See Exhibit “I”.
at ¶3.
46. However, pursuant to paragraph “8” of the Asset Purchase Agreement, in
the event of any uncured default by Property Analytix and Archstone, in addition to all other
remedies, the restrictions on RDG or DiGeronimo’s activities under the Non-Competition
Agreement shall immediately cease and be no longer effective against RDG or DiGeronimo. See
Exhibit “A” at ¶8.
47. The Quarterly Installment Payment Default, the Bonus Default, and the
Operating Account Default, each independently constitute an uncured default under the Asset
Purchase Agreement.
48. Accordingly, the restrictions on RDG and DiGeronimo's activities under the
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Non-Competition Agreement have ceased and are no longer effective pursuant to Section 8 of the
Asset Purchase Agreement.
Plaintiffs’ Entitlement To Reasonable Attorney’s Fees
49. The Asset Purchase Agreement contains a prevailing party attorney’s fees
clause. See Exhibit “A” at ¶9.
50. The Promissory Note entitles RDG to recover its reasonable attorney’s fees
in connection with the enforcement of its rights under the Promissory Note and under the Operative
Documents. See Exhibit “B” at pp.2-3 (providing that in the event of a default under the
Promissory Note or other Operative Document “a default by MAKER shall have occurred
hereunder and this Note and all remaining unpaid principal provided for herein shall become
immediately due and payable, without presentment demand protest or notice of any kind... together
in each case which accrued interest any other charges due hereunder and all costs and expenses
(including but not limited to reasonable attorneys’ fees and expenses) in connection with the
enforcement of HOLDER’S rights hereunder and under the Operative Documents”) (emphasis
added).
51. Under the Personal Guaranty, Miller, Rowles and Lin agreed to pay all
expenses, including legal fees and disbursements, paid or incurred by RDG in seeking to enforce
the guarantee. See Exhibit “C” at ¶1 (“The undersigned further agrees to pay all expenses,
including legal fees and disbursements paid or incurred by Seller in seeking to enforce this
guarantee”).
52. The Non-Competition Agreement contains a prevailing party attorney’s fees
clause. See Exhibit “I” at ¶9.5.
53. RDG and I have incurred reasonable attorney’s fees in connection with the
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enforcement of the agreements set forth above.
54. Accordingly, Plaintiffs are entitled to a hearing to determine their
reasonable attorney’s fees.
Conclusion and Relief Requested
55. Unfortunately, Defendants are attempting to reap what they did not sow.
They happily accepted the assets, goodwill and brand recognition of a business which I cultivated
on Long Island and throughout the New York metropolitan area for over 35 years, especially since
Defendants lacked any presence or foothold in New York prior to the purchase of my business.
Sadly, they are refusing to pay what they agreed to pay for the acquisition of this business.
56. Accordingly, Plaintiffs respectfully pray for summary judgment as follows:
a. On the first cause of action (breach of Promissory Note for the Quarterly
Installment Payment Default), judgment in favor of RDG and against
Property Analytix and Archstone jointly and severally for $553,681,
together with interest at the default rate of 15% from May 26, 2023;
b. On the second cause of action (breach of Personal Guaranty for the
Quarterly Installment Payment Default), judgment in favor of RDG
and against the Individual Defendants, jointly and severally, for
$553,681, together with interest at the rate of 15% from May 26, 2023;
c. On the third cause of action, a declaratory judgment in favor of Plaintiffs
pursuant to CPLR 3001 declaring that the restrictions on the activities
of RDG and DiGeronimo as set forth in the Non-Competition
Agreement immediately ceased as of the expiration date of the cure
notice for the Quarterly Installment Payment Default and are no longer
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effective in view of Defendants’ failure to cure the Quarterly Installment
Payment Default;
d. On the fourth cause of action (breach of Promissory Note for the
Operating Account Default), judgment in favor of RDG and against
Property Analytics and Archstone jointly and severally for $553,681,
together with interest at the default rate of 15% from April 15, 2023;
e. On the fifth cause of action (breach of Personal Guaranty for the
Operating Account Default), judgment in favor of RDG and against the
Individual Defendants, jointly and severally, for $553,681, together with
interest at the default rate of 15% from April 15, 2023;
f. On the sixth cause of action, a declaratory judgment in favor of Plaintiffs
pursuant to CPLR 3001 declaring that the restrictions on the activities
of RDG and DiGeronimo as set forth in the Non-Competition
Agreement immediately ceased as of the expiration date of the cure
notice for the Operating Account Default and are no longer effective in
view of Defendants’ failure to cure the Operating Account Default;
g. On the tenth cause of action, (breach of Promissory Note for the Bonus
Default), judgment in favor of RDG and against Property Analytix and
Archstone jointly and severally for $553,681, together with interest at
the default rate of 15% from May 26, 2023;
h. On the eleventh cause of action, (breach of Personal Guaranty for the
Quarterly Installment Payment Default), judgment in favor of RDG
and against the Individual Defendants, jointly and severally, for
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FILED: NASSAU COUNTY CLERK 02/18/2024 07:50 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/18/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ---------------------------------------------------------------------X RICHARD J. DiGERONIMO and R.D. GERONIMO, LTD., AFFIRMATION Plaintiffs, Index No. 608383/2023 -against- PROPERTY ANALYTIX, LLC, ARCHSTONE GROUP NYC LLC, MICHAEL MILLER, ROYCE ASHTON ROWLES and RYAN LIN, Defendants. ---------------------------------------------------------------------X STATE OF CONNECTICUT ) ) ss.: COUNTY OF FAIRFIELD ) RICHARD DiGERONIMO, affirms the truth of the following under the penalty of perjury pursuant to CPLR 2106: 1. I am an individual Plaintiff in this action. I am also the President of Plaintiff R.D. Geronimo Ltd. (“RDG”) and, as such, I am fully familiar with the facts and circumstances hereinafter set forth. I make this affirmation based upon my personal knowledge of the facts set forth herein. 2. I submit this affirmation in support of Plaintiffs’ motion for summary judgment pursuant to CPLR 3212 on the first through sixth and tenth through twelfth causes of action of the Complaint dated May 25, 2023 [NYSCEF Doc. No. 1] and for an order directing a hearing to determine Plaintiffs’ reasonable attorneys’ fees. 3. As detailed below, Plaintiffs’ motion for summary judgment should be granted in its entirety. Defendants have defaulted in their payment obligations under the promissory note and personal guaranty executed in connection the sale by Plaintiffs of a real estate 1 of 13 FILED: NASSAU COUNTY CLERK 02/18/2024 07:50 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/18/2024 appraisal business which I founded and nurtured for over 35 years. The LLC defendants purchased the assets of the business and their obligation to pay the balance of the purchase price was evidenced by a promissory note executed by the corporate defendants and personally guaranteed by the individual defendants. The defendants have defaulted in payment under the promissory note and personal guaranty, constraining Plaintiffs to commence this action. 4. Additionally, since the subject asset purchase agreement, promissory note, personal guaranty, and non-competition agreement each entitle plaintiffs to their reasonable attorney’s fees in the event they are successful on a claim brought under that agreement(s), plaintiffs are entitled to a hearing to determine the reasonable attorney’s fees to which they are due from defendants. DiGeronimo’s Founding and Successful Stewardship of RDG 5. I am a New York State, New Jersey and Connecticut licensed certified real estate general appraiser and aa member of the Appraisal Institute since 1978 with the designations MAI, SRPA and AI-GRS. 6. I am the founder and President of RDG, a real estate appraisal and advisory service company which I founded in 1985. RDG’s professional services included traditional market value appraisals for lending institutions, analysis of real estate project feasibility, investment portfolio valuations, appraisal review and expert testimony as well as real estate advisory counseling services. 7. From 1985 until June, 2021, I was self-employed as the President and Owner of RDG. 8. RDG maintained its offices in Mineola, New York. The Asset Purchase Agreement 2 2 of 13 FILED: NASSAU COUNTY CLERK 02/18/2024 07:50 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/18/2024 9. In early 2021, as I neared retirement age, I sought out a purchaser for the business/assets of RDG. 10. Ultimately, I entered into an Asset Purchase Agreement (“Asset Purchase Agreement”) with Property Analytix — a real estate appraisal firm headquartered in Houston, Texas — and Archstone — a sole purpose vehicle organized by Property Analytix to take title to the assets of RDG. A copy of the Asset Purchase Agreement is annexed hereto as Exhibit “A”. 11. Pursuant to the Asset Purchase Agreement, the purchase price for the sale of the assets of RDG was $1,400,000.00 payable to RDG as follows: (a) a down payment of $700,000.00 payable at the time of closing; and (b) the balance of $700,000.00 payable in sixteen (16) equal quarterly installments of $43,750.00 plus interest at 5.5% per annum beginning March 1, 2022 1 and every quarter thereafter until the note was paid in full. See Exhibit “A” at ¶2.1.2 . 12. The Asset Purchase Agreement defined the Operative Documents as the Asset Purchase Agreement, the exhibits thereto and the documents executed therewith. See Exhibit “A” at ¶¶11.9; 11.14. The Promissory Note, the Personal Guaranty, and the Non- Competition Agreement (each as hereinafter defined) are exhibits to the Asset Purchase Agreement and were executed with the Asset Purchase Agreement and thus constitute Operative Documents within the meaning of the Asset Purchase Agreement. The Promissory Note 13. The balance of the purchase price payable to RDG was evidenced by a Promissory Note executed July 1, 2021 between Property Analytix and Archstone, as maker, and RDG, as holder (the “Promissory Note”). A copy of the Promissory Note is annexed hereto as 1 Later amended in the Promissory Note to state quarterly installment payments were to commence on July 1, 2022. See Exhibit “B”. 3 3 of 13 FILED: NASSAU COUNTY CLERK 02/18/2024 07:50 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/18/2024 Exhibit “B”. 2 14. RDG is the current owner and holder of the Promissory Note. 15. Pursuant to the Promissory Note, in the event Property Analytix or Archstone or any of the guarantors fail to keep, observe or perform any covenant or other obligation required to be kept, observed or performed by Property Analytix and Archstone or the guarantors under any of the Operative Documents, or in the event any payment required to be made by Property Analytix and Archstone under the Promissory Note or under any Operative Document was not paid in full on the date due, and Property Analytix and Archstone failed to cure payment within 30 days after the receipt of notice of such default in payment, then, in either case, the Promissory Note and all remaining unpaid principal provided for therein would become immediately due and payable, together with accrued interest and any other charges due thereunder and all costs and expenses, including reasonable attorneys’ fees, in connection with the enforcement of RDG’s and DiGeronimo’s rights under the Promissory Note and under the Operative Documents. See Exhibit “B” at p. 2-3. 16. The Promissory Note provides that “in the event any payment due here under is not paid on his due date, including the applicable grace period, such unpaid amounts shall bear interest, commencing on the date following the applicable due date, at the interest rate per annum of Fifteen Percent (15%) or the maximum rate permitted by applicable laws and governmental regulations, whichever is less, until paid to HOLDER”. See Exhibit “B” at p.3 2 In accordance with the Asset Purchase Agreement, the Purchaser was required to deposit into its operating account not less than $150,000.00 to provide for sufficient working capital and liquidity for operations of the Purchaser. See Exhibit “A” at ¶1.4.6. Notwithstanding this requirement, the Seller and Purchaser executed a certain Amendment to the Asset Purchase Agreement, whereby Seller agreed to advance $100,000.00 of the above referenced capital requirement amount. See Amendment to Asset Purchase Agreement (annexed as part of Exhibit “A”) at ¶2. Accordingly, an additional $100,000.00 was added to the principal amount due under the Note executed at the closing (see Exhibit “B”) which $100,000.00 was thereafter paid to RDG on or about July 31, 2021, leaving a principal balance of the Note as of July 31, 2021 of $700,000. 4 4 of 13 FILED: NASSAU COUNTY CLERK 02/18/2024 07:50 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/18/2024 The Personal Guaranty 17. Defendants Michael Miller, Royce Ashton Rowles and Ryan Lin, jointly and severally, each personally guaranteed to RDG the payment obligation of Property Analytix and Archstone under the Promissory Note and the full performance and observance by Property Analytix and Archstone of all other obligations of Property Analytix and Archstone under the Operative Documents. A copy of the Personal Guaranty is annexed hereto as Exhibit “C”. 18. In that respect, the Personal Guaranty provided as follows: the undersigned jointly and severally (hereafter sometimes collectively called the Guarantor) acting as surety hereby absolutely and unconditionally for itself and its legal representatives, successors and assigns, guarantees to Seller . . . the prompt and full performance and observance by the Buyer and by his legal representatives, successors and assigns of Buyer’s obligation to make payments in accordance with the terms of the Promissory Note and any charges accruing under the Operative Documents (or damages in lieu thereof). Exhibit “C” at ¶1. Defendants’ Default in their Monetary Obligations under the Operative Documents 19. Defendants defaulted on their monetary and other obligations under the Asset Purchase Agreement, Promissory Note and Personal Guaranty, in several separate respects. (i) The Quarterly Installment Payment Default 20. Property Analytix and Archstone failed to pay the quarterly installment payment of $43,750.00 plus interest at 5.5% per annum which came due on April 1, 2023 (the “Quarterly Installment Payment Default”). Thus, Property Analytix and Archstone failed to pay me for the very assets and business which they purchased and which they operated following the closing. 21. The Quarterly Installment Payment Default constituted a default under the 5 5 of 13 FILED: NASSAU COUNTY CLERK 02/18/2024 07:50 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/18/2024 Promissory Note and a default under the Personal Guaranty, respectively. 22. Pursuant to paragraph “8” of the Asset Purchase Agreement, Property Analytix and Archstone are entitled to 30 days’ notice and an opportunity to cure any monetary default. See Exhibit “A” at ¶8. 23. Plaintiffs furnished Defendants with written notice of the Quarterly Installment Payment Default by Notice to Cure dated April 14, 2023. See Exhibit “D”. 24. Defendants failed to cure the Quarterly Installment Payment Default within 30 days of the April 14, 2023 notice (or any time thereafter). 25. As a result, Plaintiffs elected in the Complaint to accelerate the balance of the purchase price payable under the Asset Purchase Agreement, as evidenced by the Promissory Note, due to Defendants’ failure to timely cure the Quarterly Installment Payment Default. See NYSCEF Doc. No.1 at ¶58. 26. As of the date of the April 14, 2023 default notice, the unpaid principal balance of the Promissory Note was $553,681. (ii) The Bonus Default 27. Pursuant to Section 1.5.8 of the Asset Purchase Agreement, Property Analytix and Archstone were obligated to pay DiGeronimo a bonus of $20,000.00 on or before January 31, 2023. See Exhibit “A” at ¶1.5.8. 28. Property Analytix and Archstone breached Section 1.5.8 of the Asset Purchase Agreement in that Property Analytix and Archstone only paid RDG $10,000.00 of a $20,000.00 bonus, which was payable on January 31, 2023 (the “Bonus Default”). 29. The Bonus Default constituted a default under the Promissory Note and a default under the Personal Guaranty, respectively. 6 6 of 13 FILED: NASSAU COUNTY CLERK 02/18/2024 07:50 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/18/2024 30. Plaintiffs furnished the Defendants with written notice of the Bonus Default by Notice of Default dated April 20, 2023. See Exhibit “E”. 31. Defendants failed to cure the Bonus Default within 30 days of the April 20, 2023 Notice (or any time thereafter). 32. Accordingly, Plaintiff elected in the complaint to accelerate the balance of the purchase price payable under the Asset Purchase Agreement, as evidenced by the Promissory Note, due to Defendants’ failure to cure the Bonus Default. See NYSCEF Doc. No.1 at ¶70. 33. To date, only $10,000 of the $20,000 bonus which was due on or before January 31, 2023 has been paid, leaving an unpaid balance of said bonus of $10,000. The Operating Account Default 34. Property Analytix and Archstone breached Section 1.4.6 of the Asset Purchase Agreement in that Property Analytix and Archstone failed to, at all times until the later of (i) any amounts are still owed under the Promissory Note; or (ii) DiGeronimo was employed by Archstone, to cause the operating account of Archstone to have a minimum balance of $150,000.00 (the “Operating Account Default”). 35. Attached hereto as Exhibit “F” is the operating account bank statement of Archstone for January 2023 reflecting a balance of less than $150,000. See Exhibit “F”. 36. Plaintiffs furnished Defendants with written notice of the Operating Account Default by Notice of Default dated January 12, 2023. See Exhibit “G”. 37. The Operating Account Default constitutes a default under the Promissory Note. 38. The Operating Account Default constitutes a default under the Personal Guaranty. 7 7 of 13 FILED: NASSAU COUNTY CLERK 02/18/2024 07:50 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/18/2024 39. Defendants failed to cure the Operating Account Default within 30 days of the January 12, 2023 Notice to Cure. Attached hereto as Exhibit “H” is the operating account bank statement of Archstone for February 2023 reflecting a balance of less than $150,000. See Exhibit “H”. 40. Plaintiffs elected to accelerate the balance of the purchase price payable under the Asset Purchase Agreement and as evidenced by the Promissory Note, due to Defendants’ failure to timely cure the Operating Account Default, by written Notice of Acceleration dated April 14, 2023. See Exhibit “D”. 41. As of April 14, 2023, the unpaid principal balance of the Promissory Note was $553,681. No payments have been made by Defendants towards the Promissory Note following the April 14, 2023 notice. The Non-Competition Agreement 42. Property Analytix and Archstone, on the one hand, and RDG and DiGeronimo on the other, entered into that certain Non-Competition/Non-Solicitation Agreement (the “Non-Competition Agreement”) dated May 14, 2021. See Exhibit “I”. 43. Pursuant to the Non-Competition Agreement, RDG and DiGeronimo agreed that for a minimum period of three years following the execution of the Non-Competition Agreement, or if DiGeronimo remained employed for more than one year by Property Analytix and Archstone, for an additional two years after termination of his employ, that DiGeronimo would not, without Property Analytix’s and Archstone’s prior written consent, directly or indirectly, for or by him or himself or for or in conjunction with any other person, company or other entity, engage in any business or activity (or be affiliated in any way with any business which engages in any business activity) which directly or indirectly competes with the business or any activity 8 8 of 13 FILED: NASSAU COUNTY CLERK 02/18/2024 07:50 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/18/2024 engaged in by Property Analytix or Archstone or their affiliates. See Exhibit “I” at ¶1. 44. That business was defined by the Non-Competition Agreement as “real estate appraisal services and real estate evaluation services (but excluding real estate brokerage or management or its continuing business relationship with ABS R.D. Geronimo Valuation Services LLC, R.D. Geronimo Holdings LLC, Alethic First Mortgage Co., Integra)”. See Exhibit “I” at ¶1. 45. Pursuant to the Non-Competition Agreement, DiGeronimo agreed that for a minimum period of three years following the execution of the Non-Competition Agreement, or if DiGeronimo remained employed for more than one year for Property Analytix and Archstone, for an additional two years after termination of his employ, that DiGeronimo would not solicit, hire or engage any employees, clients, customers, independent sellers, agents, brokers or associates of Property Analytix and Archstone or otherwise attempt to induce any of the foregoing to terminate their employment, engagement or affiliation with Property Analytix or Archstone, or to work with, assist or provide similar or related services to RDG and DiGeronimo. See Exhibit “I”. at ¶3. 46. However, pursuant to paragraph “8” of the Asset Purchase Agreement, in the event of any uncured default by Property Analytix and Archstone, in addition to all other remedies, the restrictions on RDG or DiGeronimo’s activities under the Non-Competition Agreement shall immediately cease and be no longer effective against RDG or DiGeronimo. See Exhibit “A” at ¶8. 47. The Quarterly Installment Payment Default, the Bonus Default, and the Operating Account Default, each independently constitute an uncured default under the Asset Purchase Agreement. 48. Accordingly, the restrictions on RDG and DiGeronimo's activities under the 9 9 of 13 FILED: NASSAU COUNTY CLERK 02/18/2024 07:50 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/18/2024 Non-Competition Agreement have ceased and are no longer effective pursuant to Section 8 of the Asset Purchase Agreement. Plaintiffs’ Entitlement To Reasonable Attorney’s Fees 49. The Asset Purchase Agreement contains a prevailing party attorney’s fees clause. See Exhibit “A” at ¶9. 50. The Promissory Note entitles RDG to recover its reasonable attorney’s fees in connection with the enforcement of its rights under the Promissory Note and under the Operative Documents. See Exhibit “B” at pp.2-3 (providing that in the event of a default under the Promissory Note or other Operative Document “a default by MAKER shall have occurred hereunder and this Note and all remaining unpaid principal provided for herein shall become immediately due and payable, without presentment demand protest or notice of any kind... together in each case which accrued interest any other charges due hereunder and all costs and expenses (including but not limited to reasonable attorneys’ fees and expenses) in connection with the enforcement of HOLDER’S rights hereunder and under the Operative Documents”) (emphasis added). 51. Under the Personal Guaranty, Miller, Rowles and Lin agreed to pay all expenses, including legal fees and disbursements, paid or incurred by RDG in seeking to enforce the guarantee. See Exhibit “C” at ¶1 (“The undersigned further agrees to pay all expenses, including legal fees and disbursements paid or incurred by Seller in seeking to enforce this guarantee”). 52. The Non-Competition Agreement contains a prevailing party attorney’s fees clause. See Exhibit “I” at ¶9.5. 53. RDG and I have incurred reasonable attorney’s fees in connection with the 10 10 of 13 FILED: NASSAU COUNTY CLERK 02/18/2024 07:50 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/18/2024 enforcement of the agreements set forth above. 54. Accordingly, Plaintiffs are entitled to a hearing to determine their reasonable attorney’s fees. Conclusion and Relief Requested 55. Unfortunately, Defendants are attempting to reap what they did not sow. They happily accepted the assets, goodwill and brand recognition of a business which I cultivated on Long Island and throughout the New York metropolitan area for over 35 years, especially since Defendants lacked any presence or foothold in New York prior to the purchase of my business. Sadly, they are refusing to pay what they agreed to pay for the acquisition of this business. 56. Accordingly, Plaintiffs respectfully pray for summary judgment as follows: a. On the first cause of action (breach of Promissory Note for the Quarterly Installment Payment Default), judgment in favor of RDG and against Property Analytix and Archstone jointly and severally for $553,681, together with interest at the default rate of 15% from May 26, 2023; b. On the second cause of action (breach of Personal Guaranty for the Quarterly Installment Payment Default), judgment in favor of RDG and against the Individual Defendants, jointly and severally, for $553,681, together with interest at the rate of 15% from May 26, 2023; c. On the third cause of action, a declaratory judgment in favor of Plaintiffs pursuant to CPLR 3001 declaring that the restrictions on the activities of RDG and DiGeronimo as set forth in the Non-Competition Agreement immediately ceased as of the expiration date of the cure notice for the Quarterly Installment Payment Default and are no longer 11 11 of 13 FILED: NASSAU COUNTY CLERK 02/18/2024 07:50 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/18/2024 effective in view of Defendants’ failure to cure the Quarterly Installment Payment Default; d. On the fourth cause of action (breach of Promissory Note for the Operating Account Default), judgment in favor of RDG and against Property Analytics and Archstone jointly and severally for $553,681, together with interest at the default rate of 15% from April 15, 2023; e. On the fifth cause of action (breach of Personal Guaranty for the Operating Account Default), judgment in favor of RDG and against the Individual Defendants, jointly and severally, for $553,681, together with interest at the default rate of 15% from April 15, 2023; f. On the sixth cause of action, a declaratory judgment in favor of Plaintiffs pursuant to CPLR 3001 declaring that the restrictions on the activities of RDG and DiGeronimo as set forth in the Non-Competition Agreement immediately ceased as of the expiration date of the cure notice for the Operating Account Default and are no longer effective in view of Defendants’ failure to cure the Operating Account Default; g. On the tenth cause of action, (breach of Promissory Note for the Bonus Default), judgment in favor of RDG and against Property Analytix and Archstone jointly and severally for $553,681, together with interest at the default rate of 15% from May 26, 2023; h. On the eleventh cause of action, (breach of Personal Guaranty for the Quarterly Installment Payment Default), judgment in favor of RDG and against the Individual Defendants, jointly and severally, for 12 12 of 13 FILED: NASSAU COUNTY CLERK 02/18/2024 07:50 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/18/2024 13 of 13