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FILED: NEW YORK COUNTY CLERK 09/24/2019 03:06 PM INDEX NO. 650313/2019
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 09/24/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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AMERICAN EXPRESS NATIONAL BANK,
AFFIRMATION OF
Plaintiff, PLAINTIFF’S COUNSEL IN
SUPPORT OF MOTION
-against-
CLASSIC BRANDS, LLC, THE, Index Number: 650313/2019
Defendant.
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I, the undersigned attorney, pursuant to Civil Practice Law and Rules (“CPLR”) 2106 (a),
hereby affirm under the penalties of perjury the truth of the following statements:
1. I am a managing attorney with the law firm of Zwicker & Associates, P.C., attorneys
for Plaintiff in the above-captioned matter, and I am a duly admitted attorney of the State of New
York. Therefore, I am fully familiar with the facts and circumstances set forth herein, and I make
this affirmation in support of Plaintiff’s motion.
GOVERNING LAW
2. This matter is governed by CPLR 3215, which states, in relevant part, that when a
defendant has failed to appear, plead, or proceed to trial, the plaintiff may seek a default judgment.
(CPLR 3215 [a].)
3. In such an application, the plaintiff “shall file proof of service of the summons and
the complaint … and proof of the facts constituting the claim, the default and the amount due by
affidavit made by the party.”1 (CPLR 3215 [f].)
4. Defendants who have defaulted, or who have otherwise failed to appear, “are
deemed to have admitted all factual allegations contained in the complaint and all reasonable
inferences that flow from them. (Woodson v Mendon Leasing, 100 NY2d 62, 71 [2003] [citations
omitted]).
1. There are additional requirements for matters involving consumer credit transactions. However,
those requirements are not applicable here because this matter is not a “consumer credit transaction,” as defined in
CPLR 105 (f) (i.e., the credit was not extended to an individual and/or it was not used primarily for personal, family,
or household purposes). By contrast, the matter at hand involves a commercial transaction.
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FILED: NEW YORK COUNTY CLERK 09/24/2019 03:06 PM INDEX NO. 650313/2019
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 09/24/2019
5. Accordingly, a plaintiff’s application in support of default judgment, and all
accompanying affidavits and exhibits, “need only allege enough facts to enable a court to
determine that a viable cause of action exists. (Id.)
APPLICATION TO THE MATTER AT HAND
6. Plaintiff filed suit against Defendant to recoup the amount owed on a defaulted
contract. A true and exact copy of Plaintiff’s summons and complaint is attached to this affirmation
as Exhibit 1.
7. Defendant was duly served with a copy of the summons and complaint, but failed
to file an answer or otherwise respond, and the time to do so has now expired. A true and exact
copy of Plaintiff’s affidavit of service is attached to this affirmation as Exhibit 2.
8. Defendant defaulted by failing to file an answer or otherwise respond to the
summons and complaint, and as of the date of this affirmation, Defendant has still not filed an
answer, nor has Defendant otherwise responded to the summons and complaint.
9. Accompanying this affirmation is an affidavit signed by Plaintiff, which details the
amount owed by Defendant. (See Plaintiff’s Aff.) This affidavit contains numerous exhibits which
further detail the amount owed by Defendant and support Plaintiff’s entitlement to default
judgment in this matter. (See id.)
WHEREFORE, for the reasons set forth herein, as well as those enclosed in the
accompanying affidavit, Plaintiff respectfully requests that the Court grant Plaintiff’s motion to
enter default judgment against Defendant in the requested amount of $230,833.37, plus costs and
disbursements to be taxed.
Dated: Piscataway, New Jersey /s/ Carl E. Zapffe s
September 24, 2019 Carl E. Zapffe, Esq.
ZWICKER & ASSOCIATES, P.C.
A Law Firm Engaged in Debt Collection
1551 South Washington Avenue, Suite 404
Piscataway Township, NJ 08854
855-427-7433 (Phone)
LitigationZAPC@zwickerpc.com
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Preview
FILED: NEW YORK COUNTY CLERK 09/24/2019 03:06 PM INDEX NO. 650313/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 09/24/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------X AMERICAN EXPRESS NATIONAL BANK, AFFIRMATION OF Plaintiff, PLAINTIFF’S COUNSEL IN SUPPORT OF MOTION -against- CLASSIC BRANDS, LLC, THE, Index Number: 650313/2019 Defendant. -----------------------------------------------------------------X I, the undersigned attorney, pursuant to Civil Practice Law and Rules (“CPLR”) 2106 (a), hereby affirm under the penalties of perjury the truth of the following statements: 1. I am a managing attorney with the law firm of Zwicker & Associates, P.C., attorneys for Plaintiff in the above-captioned matter, and I am a duly admitted attorney of the State of New York. Therefore, I am fully familiar with the facts and circumstances set forth herein, and I make this affirmation in support of Plaintiff’s motion. GOVERNING LAW 2. This matter is governed by CPLR 3215, which states, in relevant part, that when a defendant has failed to appear, plead, or proceed to trial, the plaintiff may seek a default judgment. (CPLR 3215 [a].) 3. In such an application, the plaintiff “shall file proof of service of the summons and the complaint … and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party.”1 (CPLR 3215 [f].) 4. Defendants who have defaulted, or who have otherwise failed to appear, “are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them. (Woodson v Mendon Leasing, 100 NY2d 62, 71 [2003] [citations omitted]). 1. There are additional requirements for matters involving consumer credit transactions. However, those requirements are not applicable here because this matter is not a “consumer credit transaction,” as defined in CPLR 105 (f) (i.e., the credit was not extended to an individual and/or it was not used primarily for personal, family, or household purposes). By contrast, the matter at hand involves a commercial transaction. 1 of 2 FILED: NEW YORK COUNTY CLERK 09/24/2019 03:06 PM INDEX NO. 650313/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 09/24/2019 5. Accordingly, a plaintiff’s application in support of default judgment, and all accompanying affidavits and exhibits, “need only allege enough facts to enable a court to determine that a viable cause of action exists. (Id.) APPLICATION TO THE MATTER AT HAND 6. Plaintiff filed suit against Defendant to recoup the amount owed on a defaulted contract. A true and exact copy of Plaintiff’s summons and complaint is attached to this affirmation as Exhibit 1. 7. Defendant was duly served with a copy of the summons and complaint, but failed to file an answer or otherwise respond, and the time to do so has now expired. A true and exact copy of Plaintiff’s affidavit of service is attached to this affirmation as Exhibit 2. 8. Defendant defaulted by failing to file an answer or otherwise respond to the summons and complaint, and as of the date of this affirmation, Defendant has still not filed an answer, nor has Defendant otherwise responded to the summons and complaint. 9. Accompanying this affirmation is an affidavit signed by Plaintiff, which details the amount owed by Defendant. (See Plaintiff’s Aff.) This affidavit contains numerous exhibits which further detail the amount owed by Defendant and support Plaintiff’s entitlement to default judgment in this matter. (See id.) WHEREFORE, for the reasons set forth herein, as well as those enclosed in the accompanying affidavit, Plaintiff respectfully requests that the Court grant Plaintiff’s motion to enter default judgment against Defendant in the requested amount of $230,833.37, plus costs and disbursements to be taxed. Dated: Piscataway, New Jersey /s/ Carl E. Zapffe s September 24, 2019 Carl E. Zapffe, Esq. ZWICKER & ASSOCIATES, P.C. A Law Firm Engaged in Debt Collection 1551 South Washington Avenue, Suite 404 Piscataway Township, NJ 08854 855-427-7433 (Phone) LitigationZAPC@zwickerpc.com 2 of 2