Preview
FILED: LEWIS COUNTY CLERK 04/30/2019 09:49 AM INDEX NO. EFCA2018-000355
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/30/2019
At a Motion ferm of the Supreme
Court, held in and lbr tlre County
of Lewis at the Courthouse in the
City of Lowville. $tate of Ner.r'
Xsrk orl the {5- day of
kbr'lo:, firg.
PRESENT: HON. JAMES P. MCCLUSKY
STA'TE OF NEW YORK
SUPREME COURT COUNTY OF LT]WIS
ORSON P. YANCEY.
ORDER GRANTING
Plainlill. MOTION FOR SUMMARY
JUDGMENT
v
PAUL H. LYNDAKER ANd LYNDAKER
EXCAVATING &'TRUCKING, LLC Index No. EFCA2O I 8-000355
Defendants.
WHEREAS Plaintiff Orson P. Yancey ("Plaintiff') having duly ruoved, by Notice
ol'Motion dated November 30, 2018. tbr sun'lmary judgment pursuant to Civil Practice
[,aw and Rules 3212 for an Order disrnissing Defendants Paul H. Lyndaker and Lyndaker
Excavating & Trucking, LLC's (the "Defendants") affirmative defenses, and granting
summary judgrnent in favor of Plaintiff on his first through fourth causes of action, and
sumrnary judgment on liability on Plaintifls fifth cause of action, reserving to Plaintiff
the right to make written application for darnages on his fifth cause of action in the event
the motion lor summary judgrnent is granted (the "Motion")l
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FILED: LEWIS COUNTY CLERK 04/30/2019 09:49 AM INDEX NO. EFCA2018-000355
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/30/2019
NOW, UPON READING the Sumrnons and Verified Cornplaint. srvorn to the
3 I st day of July, 2A18, the Affidavit of 'l'eresa M. Bennett, fisq., sworn to the 29th day o{'
November,20l8, with exhibits annexed thereto, and theAffidavit of Orson P. Yancey,
sworn to the 20th day ofNovernber,20lS, with exhibits annexed thereto, all in support of
the Motion, and there being the Confirmation Notice dated Novetnber 30, 2018 showing
due and proper serv'ice of the Motion; and
AFTER HEARING Barclay Darnon LLP, Teresa M. Bennett. Esq., of Counsel,
attorneys ttrr the Plaintiff, in support of the Motion. and The Ward Larv Firm, PLLC,
Matthew E. Ward, Esq., of Counsel, attorneys fbr the Defendants, in opposition to the
Motion. by hearing held on Febmary 19, 2019; and
UPON READING the Affidavit of Teresa M. Bennett, Esq., srvorn to the 8th day
of April.20t9 in support of Plaintiffs application for darnages ficr attorneys' fees. costs
and expenses; and
UPON all of the proceedings heretofore had. and due delitreration having been
had herein,
NOW, on Motion of Barclay Damon LLP, attorneys fbr the Plaintifl. it is hereby
ORDERED, that the Motion is hereby in all respects GRANTED; and it is further
ORDERED, that the atfirmativc defenses set fbrth in Defendants' Ansrver are
hereby dismissed: and it is ftrrther
ORDERED, that Plaintiff shall have.judgrnent against the Defendants, jointly and
severally, on his first cause of action in the amount of $1,118,067.18, plus continuing
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FILED: LEWIS COUNTY CLERK 04/30/2019 09:49 AM INDEX NO. EFCA2018-000355
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/30/2019
interest frorn and including November l, 2018 through the date of entry of tlnal .judgrnent
at the rate of $274.07 per day; and it is further
ORDERED, that Plaintiff shall have judgment against the Defendants, jointly and
severally, on his second cause of action in the amount of $356.880.85, plus continuing
interest frorn and including November l,2Al8 through the date of entry of final judgment
at the rate of $85 .02 per day; and it is further
ORDERED, that I'}laintifTis hereby granted possession of the collateral identitled
in thc Commercial Security Agreement annexed hereto as Exhibit A, as amended by the
Arnendment to Commercial Security Agreement annexed hereto as Exhibit B (the
"Collateral") without obstruction or delay. with the right to sell, lease, license or
othenvise disposc of the Collateral in accordance rvith the Unifonn Commercial Code,
and to apply the nct proceeds of such disposition first to the costs and expenses of
preparing the Collateral lor sale, and second in reduction of the balance due and owing
liom Defendants to I'}laintiff: and it is further
ORDERED, that Defendants shall irnrnediately assemble the Collateral and make
it available to the Plaintiff and, upon their lailure to do so, the Sheriff of any County in
which the Collateral is located is hereby authorized to break open, enter, search for and
secure the Collateral: and it is further
ORDERED, that Plaintilf shall have judgrnent against Defendants, jointly and
severally . on its tifth cause ol'action in the arnount of $ 15 o the reasonable
value of Plaintitf.s attorneys' fees as detennined by the Court; and it is further
ORDERED, that Plaintiff is hereby awarded costs; and it is f'urther
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FILED: LEWIS COUNTY CLERK 04/30/2019 09:49 AM INDEX NO. EFCA2018-000355
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/30/2019
ORDERED, that I'laintiff shall have execution therefbr
Dated: Aprit L(,2g1t1 tt.
Ilon J P usky
Justice the Court
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Preview
FILED: LEWIS COUNTY CLERK 04/30/2019 09:49 AM INDEX NO. EFCA2018-000355 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/30/2019 At a Motion ferm of the Supreme Court, held in and lbr tlre County of Lewis at the Courthouse in the City of Lowville. $tate of Ner.r' Xsrk orl the {5- day of kbr'lo:, firg. PRESENT: HON. JAMES P. MCCLUSKY STA'TE OF NEW YORK SUPREME COURT COUNTY OF LT]WIS ORSON P. YANCEY. ORDER GRANTING Plainlill. MOTION FOR SUMMARY JUDGMENT v PAUL H. LYNDAKER ANd LYNDAKER EXCAVATING &'TRUCKING, LLC Index No. EFCA2O I 8-000355 Defendants. WHEREAS Plaintiff Orson P. Yancey ("Plaintiff') having duly ruoved, by Notice ol'Motion dated November 30, 2018. tbr sun'lmary judgment pursuant to Civil Practice [,aw and Rules 3212 for an Order disrnissing Defendants Paul H. Lyndaker and Lyndaker Excavating & Trucking, LLC's (the "Defendants") affirmative defenses, and granting summary judgrnent in favor of Plaintiff on his first through fourth causes of action, and sumrnary judgment on liability on Plaintifls fifth cause of action, reserving to Plaintiff the right to make written application for darnages on his fifth cause of action in the event the motion lor summary judgrnent is granted (the "Motion")l 1 of 4 FILED: LEWIS COUNTY CLERK 04/30/2019 09:49 AM INDEX NO. EFCA2018-000355 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/30/2019 NOW, UPON READING the Sumrnons and Verified Cornplaint. srvorn to the 3 I st day of July, 2A18, the Affidavit of 'l'eresa M. Bennett, fisq., sworn to the 29th day o{' November,20l8, with exhibits annexed thereto, and theAffidavit of Orson P. Yancey, sworn to the 20th day ofNovernber,20lS, with exhibits annexed thereto, all in support of the Motion, and there being the Confirmation Notice dated Novetnber 30, 2018 showing due and proper serv'ice of the Motion; and AFTER HEARING Barclay Darnon LLP, Teresa M. Bennett. Esq., of Counsel, attorneys ttrr the Plaintiff, in support of the Motion. and The Ward Larv Firm, PLLC, Matthew E. Ward, Esq., of Counsel, attorneys fbr the Defendants, in opposition to the Motion. by hearing held on Febmary 19, 2019; and UPON READING the Affidavit of Teresa M. Bennett, Esq., srvorn to the 8th day of April.20t9 in support of Plaintiffs application for darnages ficr attorneys' fees. costs and expenses; and UPON all of the proceedings heretofore had. and due delitreration having been had herein, NOW, on Motion of Barclay Damon LLP, attorneys fbr the Plaintifl. it is hereby ORDERED, that the Motion is hereby in all respects GRANTED; and it is further ORDERED, that the atfirmativc defenses set fbrth in Defendants' Ansrver are hereby dismissed: and it is ftrrther ORDERED, that Plaintiff shall have.judgrnent against the Defendants, jointly and severally, on his first cause of action in the amount of $1,118,067.18, plus continuing 2 of 4 FILED: LEWIS COUNTY CLERK 04/30/2019 09:49 AM INDEX NO. EFCA2018-000355 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/30/2019 interest frorn and including November l, 2018 through the date of entry of tlnal .judgrnent at the rate of $274.07 per day; and it is further ORDERED, that Plaintiff shall have judgment against the Defendants, jointly and severally, on his second cause of action in the amount of $356.880.85, plus continuing interest frorn and including November l,2Al8 through the date of entry of final judgment at the rate of $85 .02 per day; and it is further ORDERED, that I'}laintifTis hereby granted possession of the collateral identitled in thc Commercial Security Agreement annexed hereto as Exhibit A, as amended by the Arnendment to Commercial Security Agreement annexed hereto as Exhibit B (the "Collateral") without obstruction or delay. with the right to sell, lease, license or othenvise disposc of the Collateral in accordance rvith the Unifonn Commercial Code, and to apply the nct proceeds of such disposition first to the costs and expenses of preparing the Collateral lor sale, and second in reduction of the balance due and owing liom Defendants to I'}laintiff: and it is further ORDERED, that Defendants shall irnrnediately assemble the Collateral and make it available to the Plaintiff and, upon their lailure to do so, the Sheriff of any County in which the Collateral is located is hereby authorized to break open, enter, search for and secure the Collateral: and it is further ORDERED, that Plaintilf shall have judgrnent against Defendants, jointly and severally . on its tifth cause ol'action in the arnount of $ 15 o the reasonable value of Plaintitf.s attorneys' fees as detennined by the Court; and it is further ORDERED, that Plaintiff is hereby awarded costs; and it is f'urther 3 of 4 FILED: LEWIS COUNTY CLERK 04/30/2019 09:49 AM INDEX NO. EFCA2018-000355 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/30/2019 ORDERED, that I'laintiff shall have execution therefbr Dated: Aprit L(,2g1t1 tt. Ilon J P usky Justice the Court 4 of 4