Preview
FILED: ROCKLAND COUNTY CLERK 10/08/2019 02:03 PM INDEX NO. 033108/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/08/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
X
FREDERICK BEMENT,
ATTORNEY'S AFFRMATION
Plaintiff,
Index No.: 033108/2019
- against -
ISWEAT, INC. and STEVEN CANDULLO,
Defendants.
X 1
Alden B. Smith, an attorney duly admitted to practice in the Coutts of the State of New
York, and not a party to this action, subscribes and affirms the following to be true under the
penalties of perjury pursuant to CPLR 2106:
1. I am the attorney for the Plaintiff in the above-referenced matter and am fully familiar
with all the facts and circumstances of this action. I submit this affirmation in support of the
Plaintiff's motion for default Judgmcñt, and for an award of reasonable attorney fees to the
Plaintiff and against the Defendant, STEVEN CANDULLO.
2. Plaintiff's Complaint seeks to collect from ISWEAT, INC. the sum of $146,000.00, plus
interest on the sum of $46,000.00 at the rate of 15% per annum from December 12, 2012 and on
the sum of $100,000.00 at the rate of 5% per annum from June 1, 2017 and against the
Defendant, STEVEN CANDULLO, the sum of $100,000.00 at the rate of 5% per annum from
June 1, 2017, based on written agreements. (See, Plaintiff's Affidavit of Facts attached hereto
and incorporated herein) The Complaint further seeks judgment for reasonable attorney's fees
against STEVEN CANDULLO, in accordance with the personal guaranty agreemeñt executed
by him in connection with the promissory note executed by Defendant, ISWEAT, INC., dated
1 of 4
FILED: ROCKLAND COUNTY CLERK 10/08/2019 02:03 PM INDEX NO. 033108/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/08/2019
June 10, 2014 in which Plaintiff loaned to ISWEAT, INC. the sum of $100,000.00. (See
"A"
Exhibits and "C")
3. Article I.6 of the personal guaranty agreement executed by Defendant, STEVEN
CANDULLO, stated that "with or without notice of demand, Guarantor will reimburse Lender,
to the extent that such reimbursement is not made by Borrower, for all expenses (including
courts costs and attorney's fees) incurred by Lender in connection with the collection of the
Guaranteed Obligations of Borrower or any portion thereof or with the enforcement of this
Guaranty up to the Guaranty Amount". (See, Exhibit "C")
4. The Defendants, ISWEAT, INC. and STEVEN CANDULLO, have been duly served
with the summons and complaint in this action and have failed to appear or answer within the
time prescribed by law. (Exhibit "F", S:==cñs and Verified Cem;hint and Affidavits of
Service on Defendents, see also, Plaintiff's Affidavit of Facts)
5. The Plaintiff submits the Affidavit of Facts filed herewith and in support of Plaintiff's
request for default Judgment, together with the required additional mailing in compliance with
CPLR 3215.
6. Pursuant to the Department of Defense Manpower Data Center Report relative to natural
persons, said Defendmt, STEVE CANDULLO, is not in the active military service of the United
States.
7. Affirmant, as well as my paralegal, under my supervision, have performed or will
perform the following legal services:
a. Receipt and review of initial correspondence, materials and
documents concerning claim fi·om Plaintiff; prepare and open
file. Prepare and send a demand letter to defendants;
2
2 of 4
FILED: ROCKLAND COUNTY CLERK 10/08/2019 02:03 PM INDEX NO. 033108/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/08/2019
b. Prepare Summons and Complaint; arrange for service of same
upon Defendant(s); receipt and review of affidavit of service;
mailing of additional copies of Summons and Complaint and
preparation and execution of affirmation of mailing in
compliance with CPLR 3215;
c. Prepare default application - client's Affidavit of
Motion,
Facts, Plaintiff's Affirmation for Court approval of attorney's
fees, Supplemental Affirmation of nonmilitary service and
prepare Statement for Judgment/Bill of Costs.
d. As for post-judgment proceedings, I note the impossibility of
predicting the extent of such effort and time; however, such
proceedings can involve executions, subpoenas and contempt
motions if the subpoenas are not complied with, restraining
notices and review of public records and information to locate
assets for collection.
8. The amount requested for attorney's fees is for the actual time incurred to date by this
firm and for the projected time to engage in post-judgment collection efforts. As for the time
spent in providing legal and paralegal services to date as indicated in the PC Law billing of your
affiant's firm for myself and my paralegal's services, we have expended a total of approximately
7 hours. (Exhibit "G", PC Law Billing of Alden B. Smith, Esq. from May 3, 2019 through
October 8, 2019) It is expected that my time to engage in post-judgment collection and
enforcenient efforts will be approximately 5 hours, or an additional $1,875. It is respectfully
submitted that, the number of hours, your affiant's hourly fee of $375.00 and my paralegal's
3
3 of 4
FILED: ROCKLAND COUNTY CLERK 10/08/2019 02:03 PM INDEX NO. 033108/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/08/2019
hourly fee of $175.00 which is customary and reasonable in the County in which I practice based
upon my thirty-five (35) years of experience in performing legal services in the practice areas of
commercial collection and litigation in the County of Rockland and surrounding counties. It is
therefore respectfully requested that this Court award to plaintiff and against the Defendant,
STEVE CANDULLO, reasonable legal fees in the sum of $4,500.
9. Our fee agreement provides that Plaintiff is charged $375.00 an hour for your affiant's
services and $175.00 an hour for my paralegal's services. (See, Exhibit "E")
10. Plaintiff respectfully prays that this Court authorize entry of default judgment in favor of
the Plaintiff and against the Defendant, and grant attorney's fees in the sum of $4,500,00,
together with such other and further relief as to the Court may seem just and proper.
11. No prior application for the relief requested herein has been made.
DATED: New Cit New York
October , 2019
Alden B. Smith, Esq.
4
4 of 4
Preview
FILED: ROCKLAND COUNTY CLERK 10/08/2019 02:03 PM INDEX NO. 033108/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/08/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND X FREDERICK BEMENT, ATTORNEY'S AFFRMATION Plaintiff, Index No.: 033108/2019 - against - ISWEAT, INC. and STEVEN CANDULLO, Defendants. X 1 Alden B. Smith, an attorney duly admitted to practice in the Coutts of the State of New York, and not a party to this action, subscribes and affirms the following to be true under the penalties of perjury pursuant to CPLR 2106: 1. I am the attorney for the Plaintiff in the above-referenced matter and am fully familiar with all the facts and circumstances of this action. I submit this affirmation in support of the Plaintiff's motion for default Judgmcñt, and for an award of reasonable attorney fees to the Plaintiff and against the Defendant, STEVEN CANDULLO. 2. Plaintiff's Complaint seeks to collect from ISWEAT, INC. the sum of $146,000.00, plus interest on the sum of $46,000.00 at the rate of 15% per annum from December 12, 2012 and on the sum of $100,000.00 at the rate of 5% per annum from June 1, 2017 and against the Defendant, STEVEN CANDULLO, the sum of $100,000.00 at the rate of 5% per annum from June 1, 2017, based on written agreements. (See, Plaintiff's Affidavit of Facts attached hereto and incorporated herein) The Complaint further seeks judgment for reasonable attorney's fees against STEVEN CANDULLO, in accordance with the personal guaranty agreemeñt executed by him in connection with the promissory note executed by Defendant, ISWEAT, INC., dated 1 of 4 FILED: ROCKLAND COUNTY CLERK 10/08/2019 02:03 PM INDEX NO. 033108/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/08/2019 June 10, 2014 in which Plaintiff loaned to ISWEAT, INC. the sum of $100,000.00. (See "A" Exhibits and "C") 3. Article I.6 of the personal guaranty agreement executed by Defendant, STEVEN CANDULLO, stated that "with or without notice of demand, Guarantor will reimburse Lender, to the extent that such reimbursement is not made by Borrower, for all expenses (including courts costs and attorney's fees) incurred by Lender in connection with the collection of the Guaranteed Obligations of Borrower or any portion thereof or with the enforcement of this Guaranty up to the Guaranty Amount". (See, Exhibit "C") 4. The Defendants, ISWEAT, INC. and STEVEN CANDULLO, have been duly served with the summons and complaint in this action and have failed to appear or answer within the time prescribed by law. (Exhibit "F", S:==cñs and Verified Cem;hint and Affidavits of Service on Defendents, see also, Plaintiff's Affidavit of Facts) 5. The Plaintiff submits the Affidavit of Facts filed herewith and in support of Plaintiff's request for default Judgment, together with the required additional mailing in compliance with CPLR 3215. 6. Pursuant to the Department of Defense Manpower Data Center Report relative to natural persons, said Defendmt, STEVE CANDULLO, is not in the active military service of the United States. 7. Affirmant, as well as my paralegal, under my supervision, have performed or will perform the following legal services: a. Receipt and review of initial correspondence, materials and documents concerning claim fi·om Plaintiff; prepare and open file. Prepare and send a demand letter to defendants; 2 2 of 4 FILED: ROCKLAND COUNTY CLERK 10/08/2019 02:03 PM INDEX NO. 033108/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/08/2019 b. Prepare Summons and Complaint; arrange for service of same upon Defendant(s); receipt and review of affidavit of service; mailing of additional copies of Summons and Complaint and preparation and execution of affirmation of mailing in compliance with CPLR 3215; c. Prepare default application - client's Affidavit of Motion, Facts, Plaintiff's Affirmation for Court approval of attorney's fees, Supplemental Affirmation of nonmilitary service and prepare Statement for Judgment/Bill of Costs. d. As for post-judgment proceedings, I note the impossibility of predicting the extent of such effort and time; however, such proceedings can involve executions, subpoenas and contempt motions if the subpoenas are not complied with, restraining notices and review of public records and information to locate assets for collection. 8. The amount requested for attorney's fees is for the actual time incurred to date by this firm and for the projected time to engage in post-judgment collection efforts. As for the time spent in providing legal and paralegal services to date as indicated in the PC Law billing of your affiant's firm for myself and my paralegal's services, we have expended a total of approximately 7 hours. (Exhibit "G", PC Law Billing of Alden B. Smith, Esq. from May 3, 2019 through October 8, 2019) It is expected that my time to engage in post-judgment collection and enforcenient efforts will be approximately 5 hours, or an additional $1,875. It is respectfully submitted that, the number of hours, your affiant's hourly fee of $375.00 and my paralegal's 3 3 of 4 FILED: ROCKLAND COUNTY CLERK 10/08/2019 02:03 PM INDEX NO. 033108/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/08/2019 hourly fee of $175.00 which is customary and reasonable in the County in which I practice based upon my thirty-five (35) years of experience in performing legal services in the practice areas of commercial collection and litigation in the County of Rockland and surrounding counties. It is therefore respectfully requested that this Court award to plaintiff and against the Defendant, STEVE CANDULLO, reasonable legal fees in the sum of $4,500. 9. Our fee agreement provides that Plaintiff is charged $375.00 an hour for your affiant's services and $175.00 an hour for my paralegal's services. (See, Exhibit "E") 10. Plaintiff respectfully prays that this Court authorize entry of default judgment in favor of the Plaintiff and against the Defendant, and grant attorney's fees in the sum of $4,500,00, together with such other and further relief as to the Court may seem just and proper. 11. No prior application for the relief requested herein has been made. DATED: New Cit New York October , 2019 Alden B. Smith, Esq. 4 4 of 4