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UD) OUN IK 09 06 DV INDEX NO. 55002/2011
NYSCEF BOC. NO. 88 RECEIVED NYSCEF: 09/22/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
ae ne te nn een nena cena neem naan anne anne ene nenene ene x
JAMES DIMOPOULOS and STAVROS
DIMOPOULOS, Index No. 55002 /11
Plaintiffs,
-against-
AFFIRMATION
IN OPPOSITION TO
RONALD CAPOSELLA, SHORE LINE ORDER TO SHOW CAUSE
FOODS, INC., SHORE LINE FOODS OF
EDGEWOOD, INC. and SHORE LINE
FOODS OF NEW JERSEY, INC.,
Defendants.
pene eee ene ence neem enema mann meee nn ce enn ae
ANDREW D. BRODNICK, an attorney duly admitted to practice before the Courts
of the State of New York, affirms the following under penalties of perjury:
1 Lam the attorney for plaintiffs in this action and I submit this Affirmation in.
opposition to the Order to Show Cause dated August 17, 2015 (“Order to Show Cause”).
2, Defendants set forth no legitimate reason why the penalty to which they
agreed in the event of a late payment under the settlement stipulation should not be enforced.
3 Nor do defendants set forth a single legal authority in support of the Order to
Show Cause.
4 It is respectfully submitted that none exists.
5 In fact, defendants’ failure to make any of the first four payments without
first receiving a notice of default demonstrates the propriety of the penalty.
6. The purpose of the penalty clause was to encourage defendants, who are
perpetually delinquent in responding to litigation and paying their bills, to change their ways, honor
the stipulation and avoid making plaintiffs chase after defendants to enforce their obligations.’
7 The first payment due in April, 2015 under the Settlement Stipulation dated
16, 2015 (“Settlement Stipulation”) was late.
8 I sent an email to the attorney for defendants dated April 10, 2015 to advise
the attorney for defendants of the default.” Exhibit “B”.
9 The second payment due in May, 2015 under the Settlement Stipulation was
late, as is set forth in my letter to defendant’s counsel dated May 21, 2015. Exhibit “C”.
10. The third payment due in June, 2015 was also late, as set forth in my email
dated June 10, 2015. Exhibit “D”.
il. The fourth payment due in July, 2015 was late, as is set forth in my letter to
defendant’s counsel dated July 20, 2015. Exhibit “E”.
12. Four payments due — four payments late.
13. The fourth payment failed to clear.
14, Defendants have nobody to blame but themselves, but instead seek once
again to be relieved of their defaults.
15. Meanwhile, defendants set forth no valid excuse for having failed to make a
single one of the first four payments in time.
' Defendants did nothing in response to this lawsuit for over a year and half after it was commenced
until after a default judgment was entered. The Appellate Division found that defendants’ default
was “intentional” and “inexcusable”. Exhibit “A”.
? The email is informal due to the fact that the attorney for defendants and I are friends. In addition,
I mistakenly set forth the amount due as $2,500 when the actual amount was $1,250. The email also
refers to a potential referral of a zoning matter to the attorney for defendants.
16. Instead, defendants resort to pure fiction in alleging that they were
“functioning” under the “belief that . . . the attorney for the Plaintiffs, would direct his client to
simply redeposit the Check.” Affidavit of Ronald Caposella dated August 14, 2015, {| 7, 8.
17. I am at a loss to understand the basis for defendants’ “belief”, especially
where plaintiffs were understandably fed up with defendants’ inability to make modest monthly
payments without plaintiffs having to send out a default notice every single month.
18. There is no basis for a belief that plaintiffs would subject themselves to the
cost and expense of having to chase down defendants every single month rather than accelerate the
sums due and enforce the penalty, which as noted, was inserted for the very purpose of avoiding
that cost and expense.
19, Regardless of what Defendants purportedly believed, the bottom line is that
they were in default for each of the first four payments and failed to make a valid payment by way
of the check tendered in July, 2015.
20. Furthermore, the purported catastrophic effects of entry of judgment under
the penalty sct forth in the Settlement Stipulation could be easily avoided by payment of the sums
due under the penalty as opposed to allowing the judgment sought by plaintiffs to be entered.
21. As defendants note, the final payments are modest and represent only a small
percentage of the sums due under the Settlement Stipulation.
22. The modest amount of the penalty does not form the basis for changing the
terms of the Settlement Stipulation; instead it highlights how reasonable and appropriate the
penalty is.
23. It also highlights how ridiculous defendants’ failure to make those payments
are and what a waste of judicial resources the Order to Show Cause represents.
24. Furthermore, plaintiffs would be more than happy to agree to a payout of the
sums due under the penalty in order to avoid the expense of having to enforce the Settlement
Stipulation under Article 52 of the CPLR.
25. Meanwhile, plaintiffs have repeatedly offered to reduce the amount of the
penaity in order to resolve this matter.
26. Defendants refused to pay @ single penny towards the penalty and instead
insisted that the penalty be waived in its entirety.
27. In short, defendants wish to be relieved of the penalty to which they agreed
notwithstanding the fact that their conduct has proven that the penalty was absolutely necessary and
appropriate because they are incapable of honoring their obligations.
28. If the penalty is not enforced, plaintiffs would continue to be put to the same
unnecessary expense and inconvenience in collecting the remainder of the sums due as is reflected
in the first three late payments (each requiring a notice of default) and the failure to make the fourth
payment.
29. In light of the foregoing, plaintiffs respectfully request that the Order to
Show Cause be denied, the Settlement Stipulation be enforced and that plaintiffs be permitted to
enter judgment against defendants as set forth in the Settlement Stipulation, together with such
further relief as is just.
Dated: September 22, 2015
Ag...08 LM
ANDREW D. BRODNICK
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UD) OUN IK 09 06 DV INDEX NO. 55002/2011 NYSCEF BOC. NO. 88 RECEIVED NYSCEF: 09/22/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ae ne te nn een nena cena neem naan anne anne ene nenene ene x JAMES DIMOPOULOS and STAVROS DIMOPOULOS, Index No. 55002 /11 Plaintiffs, -against- AFFIRMATION IN OPPOSITION TO RONALD CAPOSELLA, SHORE LINE ORDER TO SHOW CAUSE FOODS, INC., SHORE LINE FOODS OF EDGEWOOD, INC. and SHORE LINE FOODS OF NEW JERSEY, INC., Defendants. pene eee ene ence neem enema mann meee nn ce enn ae ANDREW D. BRODNICK, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following under penalties of perjury: 1 Lam the attorney for plaintiffs in this action and I submit this Affirmation in. opposition to the Order to Show Cause dated August 17, 2015 (“Order to Show Cause”). 2, Defendants set forth no legitimate reason why the penalty to which they agreed in the event of a late payment under the settlement stipulation should not be enforced. 3 Nor do defendants set forth a single legal authority in support of the Order to Show Cause. 4 It is respectfully submitted that none exists. 5 In fact, defendants’ failure to make any of the first four payments without first receiving a notice of default demonstrates the propriety of the penalty. 6. The purpose of the penalty clause was to encourage defendants, who are perpetually delinquent in responding to litigation and paying their bills, to change their ways, honor the stipulation and avoid making plaintiffs chase after defendants to enforce their obligations.’ 7 The first payment due in April, 2015 under the Settlement Stipulation dated 16, 2015 (“Settlement Stipulation”) was late. 8 I sent an email to the attorney for defendants dated April 10, 2015 to advise the attorney for defendants of the default.” Exhibit “B”. 9 The second payment due in May, 2015 under the Settlement Stipulation was late, as is set forth in my letter to defendant’s counsel dated May 21, 2015. Exhibit “C”. 10. The third payment due in June, 2015 was also late, as set forth in my email dated June 10, 2015. Exhibit “D”. il. The fourth payment due in July, 2015 was late, as is set forth in my letter to defendant’s counsel dated July 20, 2015. Exhibit “E”. 12. Four payments due — four payments late. 13. The fourth payment failed to clear. 14, Defendants have nobody to blame but themselves, but instead seek once again to be relieved of their defaults. 15. Meanwhile, defendants set forth no valid excuse for having failed to make a single one of the first four payments in time. ' Defendants did nothing in response to this lawsuit for over a year and half after it was commenced until after a default judgment was entered. The Appellate Division found that defendants’ default was “intentional” and “inexcusable”. Exhibit “A”. ? The email is informal due to the fact that the attorney for defendants and I are friends. In addition, I mistakenly set forth the amount due as $2,500 when the actual amount was $1,250. The email also refers to a potential referral of a zoning matter to the attorney for defendants. 16. Instead, defendants resort to pure fiction in alleging that they were “functioning” under the “belief that . . . the attorney for the Plaintiffs, would direct his client to simply redeposit the Check.” Affidavit of Ronald Caposella dated August 14, 2015, {| 7, 8. 17. I am at a loss to understand the basis for defendants’ “belief”, especially where plaintiffs were understandably fed up with defendants’ inability to make modest monthly payments without plaintiffs having to send out a default notice every single month. 18. There is no basis for a belief that plaintiffs would subject themselves to the cost and expense of having to chase down defendants every single month rather than accelerate the sums due and enforce the penalty, which as noted, was inserted for the very purpose of avoiding that cost and expense. 19, Regardless of what Defendants purportedly believed, the bottom line is that they were in default for each of the first four payments and failed to make a valid payment by way of the check tendered in July, 2015. 20. Furthermore, the purported catastrophic effects of entry of judgment under the penalty sct forth in the Settlement Stipulation could be easily avoided by payment of the sums due under the penalty as opposed to allowing the judgment sought by plaintiffs to be entered. 21. As defendants note, the final payments are modest and represent only a small percentage of the sums due under the Settlement Stipulation. 22. The modest amount of the penalty does not form the basis for changing the terms of the Settlement Stipulation; instead it highlights how reasonable and appropriate the penalty is. 23. It also highlights how ridiculous defendants’ failure to make those payments are and what a waste of judicial resources the Order to Show Cause represents. 24. Furthermore, plaintiffs would be more than happy to agree to a payout of the sums due under the penalty in order to avoid the expense of having to enforce the Settlement Stipulation under Article 52 of the CPLR. 25. Meanwhile, plaintiffs have repeatedly offered to reduce the amount of the penaity in order to resolve this matter. 26. Defendants refused to pay @ single penny towards the penalty and instead insisted that the penalty be waived in its entirety. 27. In short, defendants wish to be relieved of the penalty to which they agreed notwithstanding the fact that their conduct has proven that the penalty was absolutely necessary and appropriate because they are incapable of honoring their obligations. 28. If the penalty is not enforced, plaintiffs would continue to be put to the same unnecessary expense and inconvenience in collecting the remainder of the sums due as is reflected in the first three late payments (each requiring a notice of default) and the failure to make the fourth payment. 29. In light of the foregoing, plaintiffs respectfully request that the Order to Show Cause be denied, the Settlement Stipulation be enforced and that plaintiffs be permitted to enter judgment against defendants as set forth in the Settlement Stipulation, together with such further relief as is just. Dated: September 22, 2015 Ag...08 LM ANDREW D. BRODNICK