Preview
FILED: NASSAU COUNTY CLERK 12/23/2019 01:54 PM INDEX NO. 612911/2019
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/23/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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ICG CAPITAL FUNDING, LLC, INDEX NO: 612911/2019
Plaintiff, AFFIRMATION IN
SUPPORT OF MOTION
-against-
NICOLE SULLIVAN D/B/A GM DESIGN /GM SIGN
INC D/B/A GM DESIGN, NICOLE SULLIVAN and
JOHN BOURLIER,
Defendants.
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DAVID FOGEL, an attorney duly admitted to practice before the courts of the State of New York,
affirms the truth of the following under the penalty of perjury:
1. I am an attorney at the firm of David Fogel P.C., attorneys for Plaintiff. I am fully familiar with
the facts and circumstances asserted herein. This affirmation is based upon my personal knowledge, except
as to those matters set forth upon information and belief and as to those matters I verily believe them to
be true. I submit this affirmation in support of Plaintiff’s motion for a default judgment.
2. This is an action for a breach of contract (“Contract”) by the corporate codefendant and breach of
the personal guaranty (“Guaranty”) thereof by the individual codefendant(s).
PROCEDURAL HISTORY
3. This action was commenced on September 18, 2019 by the filing of a summons and verified
complaint, a copy of which is annexed hereto as Exhibit A.
4. On or about September 18, 2019, the defendants NICOLE SULLIVAN D/B/A GM DESIGN /GM
SIGN INC D/B/A GM DESIGN, NICOLE SULLIVAN and JOHN BOURLIER (collectively, “Defendants”)
were duly served with process by the mailing of the summons and verified complaint via certified mail, return
receipt requested, in accordance with the terms of the Contract, and proof of such service was filed on
September 19, 2019, copies of which are collectively annexed hereto as Exhibit B.
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5. On or about September 18, 2019, an additional mailing of the summons and verified complaint
was made pursuant to CPLR § 3215(g)(3) upon the individual defendant(s). A true and accurate copy of
the proof of such mailing is annexed hereto as Exhibit C.
6. Defendants have failed to answer the complaint or otherwise appear and Defendants’ time to do
so has not been extended by law, court order or stipulation. Defendants’ time to answer or otherwise
appear has expired and Defendants are and remain in default.
7. This office conducted an investigation with the Defense Manpower Datacenter of the Department
of Defense, which investigation revealed that the individual codefendant(s) is/are not in military service.
An affirmation of non-military service along with the investigation results are annexed hereto as Exhibit
D.
8. A Request for Judicial Intervention (RJI) has not previously been filed with this Court pertaining
to the above-entitled action, and one shall be filed together with this motion.
9. No prior application for the same or similar relief has been made before this or any other Court.
FACTUAL BACKGROUND
10. Upon information and belief, on or about April 02, 2019, the parties entered into the Contract
whereby NICOLE SULLIVAN D/B/A GM DESIGN /GM SIGN INC D/B/A GM DESIGN sold to
Plaintiff its future receipts having a value of $83,790.00 (“Receivables”) for the sum of $57,000.00
(“Purchase Price”), which Receivables were to be paid to Plaintiff pursuant to a payment schedule set
forth in the Contract. The individual codefendant(s) executed a Personal Guaranty of Performance of all
the obligations of the corporate codefendant set forth in the Contract. A copy of the Contract with Guaranty
is annexed as Exhibit 1 to the summon and verified complaint.
11. NICOLE SULLIVAN D/B/A GM DESIGN /GM SIGN INC D/B/A GM DESIGN agreed that in
the event of its default under the Contract, such as the one alleged in the complaint, the full uncollected
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Receivables plus all fees due under the Contract (as a result of the default) would become immediately
due and payable in full to Plaintiff.
12. Upon further information and belief, on or about August 07, 2019, NICOLE SULLIVAN D/B/A
GM DESIGN /GM SIGN INC D/B/A GM DESIGN materially breached the terms of the Contract by
causing the Receivables to be deposited into an account not designated in the Contract, blocked the
payment due to Plaintiff so that Plaintiff could not collect the amount of Receivables due and/or prevented
Plaintiff from collecting the amount due to non-sufficient funds or otherwise prevented Plaintiff from
collecting the amount due and thereby defaulted under the terms of the Contract or otherwise violated a
material term of the Contract which constituted an event of default.
13. Moreover, pursuant to the Contract, due to the default, NICOLE SULLIVAN D/B/A GM DESIGN
/GM SIGN INC D/B/A GM DESIGN owes Plaintiff the additional sums of $100.00 to cover Plaintiff’s
cost for filing a UCC-1, $2,500.00 as a Default Fee, and reasonable attorneys’ fees.
14. Upon further information and belief, until this action was commenced, Defendants delivered to
Plaintiff Receivables totaling the net amount, after applicable fees, the sum of $30,584.96.
15. Since this action was commenced, Defendants have sporadically paid to Plaintiff the additional
sum of $6,645.00 after applicable fees.
16. By reason of the foregoing, Plaintiff has been damaged as a result of the above-described default
and seeks recovery from NICOLE SULLIVAN D/B/A GM DESIGN /GM SIGN INC D/B/A GM DESIGN,
NICOLE SULLIVAN and JOHN BOURLIER, jointly and severally, in an amount of no less than
$44,060.04 with interest thereon from August 07, 2019.
ARGUMENT
17. Defendants are subject to this Court’s jurisdiction. Under the Contract, Defendants submitted to
the jurisdiction of this State and any of the courts therein. Process was duly served upon Defendants with
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the mailing of a copy of the summons and verified complaint via certified mail, return receipt requested,
to the address indicated on the Contract. It is well established that parties to a contract may waive service
of process and are thus free to provide for service of process by methods which differ from those
prescribed by statutes. See LG Funding LLC vs. Asare, et al., 612523/18 (Sup. Ct. Nassau Cnty. 2019);
LG Funding, LLC vs. Aspen Snowmass Properties LLC et al., 610280/2018 (Sup. Ct. Nassau Cnty. 2018);
LG Funding LLC vs. Auto Glass To Go Inc., et al., 610624/18 (Sup. Ct. Nassau Cnty. 2018); Alfred E.
Mann Living Trust vs. ETIRC Aviation S.A.R.L., 78 A.D.3d 137, 140, 910 N.Y.S.2d 418 (1st Dept. 2010);
see also Gilbert vs. Burnstine, 255 NY 348, 174 NE 706 (N.Y. 1931); Pohlers vs. Exeter Mfg. Co., 293
N.Y. 274, 56 N.E.2d 582 (N.Y. 1944). Thus, jurisdiction has been obtained over Defendants.
18. In accordance with CPLR § 3215(f), Plaintiff’s verified complaint is submitted herein as proof of
the facts constituting the claim and the amount due.
19. The additional mailing of the summons and verified complaint was duly made upon the individual
codefendant(s) pursuant to CPLR § 3215(g)(3).
20. Based upon the foregoing, Defendants materially breached the Contract and Guaranty and have
defaulted in the above-entitled action.
WHEREFORE, Plaintiff respectfully requests that an order be made holding Defendants in default
and granting an award of default judgment in favor of Plaintiff and further directing that judgment be filed
with and entered by the Clerk of the Court against Defendants, jointly and severally, as follows:
a. the sum of $44,060.04 representing the principal amount due under the Contract with
interest thereon from August 07, 2019;
b. the sum of $2,500.00 representing the default fee in accordance with the fee schedule set
forth in the Contract;
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c. the sum of $100.00 representing Plaintiff’s costs associated with filing a UCC-1 Financing
Statement based upon Defendants’ default and in accordance with the Contract;
d. Plaintiff’s reasonable attorneys’ fees in the sum of $16,741.51 which is equal to thirty
percent (30%) of the aforesaid amounts, or, in the alternative, such other amount deemed
reasonable by the Court; and
e. the costs and disbursements of this action
DATED: Garden City, NY
December 20, 2019 DAVID FOGEL P.C.
s/ David Fogel
David Fogel, Esq.
1225 Franklin Avenue, Suite 522
Garden City, New York 11530
Tel: 516-279-1420
Attorney for Plaintiff
File No.: 2194
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Preview
FILED: NASSAU COUNTY CLERK 12/23/2019 01:54 PM INDEX NO. 612911/2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/23/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -----------------------------------------------------------------------------x ICG CAPITAL FUNDING, LLC, INDEX NO: 612911/2019 Plaintiff, AFFIRMATION IN SUPPORT OF MOTION -against- NICOLE SULLIVAN D/B/A GM DESIGN /GM SIGN INC D/B/A GM DESIGN, NICOLE SULLIVAN and JOHN BOURLIER, Defendants. -----------------------------------------------------------------------------x DAVID FOGEL, an attorney duly admitted to practice before the courts of the State of New York, affirms the truth of the following under the penalty of perjury: 1. I am an attorney at the firm of David Fogel P.C., attorneys for Plaintiff. I am fully familiar with the facts and circumstances asserted herein. This affirmation is based upon my personal knowledge, except as to those matters set forth upon information and belief and as to those matters I verily believe them to be true. I submit this affirmation in support of Plaintiff’s motion for a default judgment. 2. This is an action for a breach of contract (“Contract”) by the corporate codefendant and breach of the personal guaranty (“Guaranty”) thereof by the individual codefendant(s). PROCEDURAL HISTORY 3. This action was commenced on September 18, 2019 by the filing of a summons and verified complaint, a copy of which is annexed hereto as Exhibit A. 4. On or about September 18, 2019, the defendants NICOLE SULLIVAN D/B/A GM DESIGN /GM SIGN INC D/B/A GM DESIGN, NICOLE SULLIVAN and JOHN BOURLIER (collectively, “Defendants”) were duly served with process by the mailing of the summons and verified complaint via certified mail, return receipt requested, in accordance with the terms of the Contract, and proof of such service was filed on September 19, 2019, copies of which are collectively annexed hereto as Exhibit B. 1 of 5 FILED: NASSAU COUNTY CLERK 12/23/2019 01:54 PM INDEX NO. 612911/2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/23/2019 5. On or about September 18, 2019, an additional mailing of the summons and verified complaint was made pursuant to CPLR § 3215(g)(3) upon the individual defendant(s). A true and accurate copy of the proof of such mailing is annexed hereto as Exhibit C. 6. Defendants have failed to answer the complaint or otherwise appear and Defendants’ time to do so has not been extended by law, court order or stipulation. Defendants’ time to answer or otherwise appear has expired and Defendants are and remain in default. 7. This office conducted an investigation with the Defense Manpower Datacenter of the Department of Defense, which investigation revealed that the individual codefendant(s) is/are not in military service. An affirmation of non-military service along with the investigation results are annexed hereto as Exhibit D. 8. A Request for Judicial Intervention (RJI) has not previously been filed with this Court pertaining to the above-entitled action, and one shall be filed together with this motion. 9. No prior application for the same or similar relief has been made before this or any other Court. FACTUAL BACKGROUND 10. Upon information and belief, on or about April 02, 2019, the parties entered into the Contract whereby NICOLE SULLIVAN D/B/A GM DESIGN /GM SIGN INC D/B/A GM DESIGN sold to Plaintiff its future receipts having a value of $83,790.00 (“Receivables”) for the sum of $57,000.00 (“Purchase Price”), which Receivables were to be paid to Plaintiff pursuant to a payment schedule set forth in the Contract. The individual codefendant(s) executed a Personal Guaranty of Performance of all the obligations of the corporate codefendant set forth in the Contract. A copy of the Contract with Guaranty is annexed as Exhibit 1 to the summon and verified complaint. 11. NICOLE SULLIVAN D/B/A GM DESIGN /GM SIGN INC D/B/A GM DESIGN agreed that in the event of its default under the Contract, such as the one alleged in the complaint, the full uncollected 2 of 5 FILED: NASSAU COUNTY CLERK 12/23/2019 01:54 PM INDEX NO. 612911/2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/23/2019 Receivables plus all fees due under the Contract (as a result of the default) would become immediately due and payable in full to Plaintiff. 12. Upon further information and belief, on or about August 07, 2019, NICOLE SULLIVAN D/B/A GM DESIGN /GM SIGN INC D/B/A GM DESIGN materially breached the terms of the Contract by causing the Receivables to be deposited into an account not designated in the Contract, blocked the payment due to Plaintiff so that Plaintiff could not collect the amount of Receivables due and/or prevented Plaintiff from collecting the amount due to non-sufficient funds or otherwise prevented Plaintiff from collecting the amount due and thereby defaulted under the terms of the Contract or otherwise violated a material term of the Contract which constituted an event of default. 13. Moreover, pursuant to the Contract, due to the default, NICOLE SULLIVAN D/B/A GM DESIGN /GM SIGN INC D/B/A GM DESIGN owes Plaintiff the additional sums of $100.00 to cover Plaintiff’s cost for filing a UCC-1, $2,500.00 as a Default Fee, and reasonable attorneys’ fees. 14. Upon further information and belief, until this action was commenced, Defendants delivered to Plaintiff Receivables totaling the net amount, after applicable fees, the sum of $30,584.96. 15. Since this action was commenced, Defendants have sporadically paid to Plaintiff the additional sum of $6,645.00 after applicable fees. 16. By reason of the foregoing, Plaintiff has been damaged as a result of the above-described default and seeks recovery from NICOLE SULLIVAN D/B/A GM DESIGN /GM SIGN INC D/B/A GM DESIGN, NICOLE SULLIVAN and JOHN BOURLIER, jointly and severally, in an amount of no less than $44,060.04 with interest thereon from August 07, 2019. ARGUMENT 17. Defendants are subject to this Court’s jurisdiction. Under the Contract, Defendants submitted to the jurisdiction of this State and any of the courts therein. Process was duly served upon Defendants with 3 of 5 FILED: NASSAU COUNTY CLERK 12/23/2019 01:54 PM INDEX NO. 612911/2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/23/2019 the mailing of a copy of the summons and verified complaint via certified mail, return receipt requested, to the address indicated on the Contract. It is well established that parties to a contract may waive service of process and are thus free to provide for service of process by methods which differ from those prescribed by statutes. See LG Funding LLC vs. Asare, et al., 612523/18 (Sup. Ct. Nassau Cnty. 2019); LG Funding, LLC vs. Aspen Snowmass Properties LLC et al., 610280/2018 (Sup. Ct. Nassau Cnty. 2018); LG Funding LLC vs. Auto Glass To Go Inc., et al., 610624/18 (Sup. Ct. Nassau Cnty. 2018); Alfred E. Mann Living Trust vs. ETIRC Aviation S.A.R.L., 78 A.D.3d 137, 140, 910 N.Y.S.2d 418 (1st Dept. 2010); see also Gilbert vs. Burnstine, 255 NY 348, 174 NE 706 (N.Y. 1931); Pohlers vs. Exeter Mfg. Co., 293 N.Y. 274, 56 N.E.2d 582 (N.Y. 1944). Thus, jurisdiction has been obtained over Defendants. 18. In accordance with CPLR § 3215(f), Plaintiff’s verified complaint is submitted herein as proof of the facts constituting the claim and the amount due. 19. The additional mailing of the summons and verified complaint was duly made upon the individual codefendant(s) pursuant to CPLR § 3215(g)(3). 20. Based upon the foregoing, Defendants materially breached the Contract and Guaranty and have defaulted in the above-entitled action. WHEREFORE, Plaintiff respectfully requests that an order be made holding Defendants in default and granting an award of default judgment in favor of Plaintiff and further directing that judgment be filed with and entered by the Clerk of the Court against Defendants, jointly and severally, as follows: a. the sum of $44,060.04 representing the principal amount due under the Contract with interest thereon from August 07, 2019; b. the sum of $2,500.00 representing the default fee in accordance with the fee schedule set forth in the Contract; 4 of 5 FILED: NASSAU COUNTY CLERK 12/23/2019 01:54 PM INDEX NO. 612911/2019 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/23/2019 c. the sum of $100.00 representing Plaintiff’s costs associated with filing a UCC-1 Financing Statement based upon Defendants’ default and in accordance with the Contract; d. Plaintiff’s reasonable attorneys’ fees in the sum of $16,741.51 which is equal to thirty percent (30%) of the aforesaid amounts, or, in the alternative, such other amount deemed reasonable by the Court; and e. the costs and disbursements of this action DATED: Garden City, NY December 20, 2019 DAVID FOGEL P.C. s/ David Fogel David Fogel, Esq. 1225 Franklin Avenue, Suite 522 Garden City, New York 11530 Tel: 516-279-1420 Attorney for Plaintiff File No.: 2194 5 of 5