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FILED: ONTARIO COUNTY CLERK 01/12/2021 06:56 PM INDEX NO. 128590-2021
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/12/2021
202101130068 Index # : 128590-2021
SUPREME COURT OF THE STATE OF NEW YORK
IN AND FOR THE COUNTY OF ONTARIO
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Index No.: _______________
ORIGIN CLEAR INC DBA ORIGINCLEAR /
PROGRESSIVE WATER TREATMENT INC DBA
ORIGIN CLEAR / PROGRESSlVE WATER
TREATMENT and TENER RIGGS ECKELBERRY,
Plaintiffs,
v.
IKAHN CAPITAL LLC,
Defendant.
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AFFIRMATION IN SUPPORT OF EMERGENCY APPLICATION FOR
TEMPORARY RESTRAINING ORDER AND IN FURTHER SUPPORT OF
THE MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
GUSTAVE P. PASSANANTE, an attorney duly licensed to practice law before the Court
of the State of New York, affirms the following:
1. I am the attorney for the Plaintiffs in the above-captioned action.
2. I submit this Affirmation in Support of Plaintiffs’ Application for a Temporary
Restraining Order to be heard on an expedited basis and in further Support of the Application for
both a Temporary Restraining Order and Preliminary Injunction.
3. The instant action was commenced by the filing of a Summons and Complaint on
January 12, 2021 (NYSCEF Docket Entry Nos. 1 and 2) and Exhibits A through D.
4. While service of the Summons and Complaint on Defendant iKahn Capital LLC is
still pending, it is necessary to make the within application due to circumstances as demonstrated
below and in the moving papers.
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5. The main relief sought in the Complaint is of equitable nature as it seeks to vacate
the Judgment that was obtained by Confession of Judgment in favor of Defendant and against the
Plaintiffs. See iKahn Capital LLC v. Origin Clear Inc et al, Index No. 121170-2018 (Sup. Ct.
Ontario Cnty. November 6, 2018).
6. Plaintiffs are listed in the caption exactly as they appear on the aforementioned
Judgment and Affidavit of Confession of Judgment in order to be consistent and to ensure that any
relief granted is applied to the appropriate entity and/or the variations of the name of each entity.
7. The basis for this request for emergency relief is that Defendant will be in a position
to seek enforcement of the within Judgment once it is made aware of the pending action to vacate
the Confession of Judgment.
8. As demonstrated in the Affidavit of Tener Riggs Eckelberry Jr., Plaintiffs will
suffer irreparable harm should any further action be taken to enforce the Judgment against them.
Plaintiffs include Tener Riggs Eckelberry Jr. (hereinafter, “Riggs”), the individual Plaintiff and
President of OriginClear, Inc. (hereinafter, “OriginClear” or the “Company”), which is a company
that commercializes modular, prefabricated, filter-free advanced systems for faster sanitation
worldwide, and Progressive Water Treatment Inc. d/b/a/ OriginClear (hereinafter “Progresive” and
together with OriginClear the “Business Plaintiffs”). However, the Business Plaintiffs are
obligated to make payments under the Settlement Agreement based on the usurious loan
transaction complained of in the Complaint. As a result, if Business Plaintiffs were to be further
interrupted by any restraining notices, default notices or other execution or enforcement
proceeding, the Business Plaintiffs would not be able to pay any of their bills. Further, such
interferences would only further disrupt customer relations and diminish the goodwill of
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OriginClear, which has been cultivated over the years but severely damaged by the COVID-19
global pandemic.
9. Affirmant will provide notice to Defendant upon the Court’s scheduling of a
hearing on the within request for a temporary restraining order or as otherwise directed by the
Court.
10. Plaintiffs intend to file a Motion for Summary Judgment on each of the causes of
action set forth in the Complaint once the issue has been joined.
11. The temporary restraining order is necessary in order to maintain the status quo and
protect Plaintiffs from irreparable harm should the relief not be granted.
12. No prior application has been made for any of the relief requested herein.
WHEREFORE, based on the foregoing Plaintiffs seek an expedited hearing of the within
application for a temporary restraining order; and upon such a hearing, granting a temporary
restraining order and further to grant a Preliminary Injunction pending the outcome of the within
litigation and for such other and further relief as this Court deems just and proper.
Dated: January 12, 2021
Respectfully submitted,
/s/ Gustave P. Passanante
Gustave P. Passanante, Esq.
THE BASILE LAW FIRM P.C.
390 N. Broadway, Ste. 140
Jericho, NY 11753
Tel.: (516) 455-1500
Fax: (631) 498-0478
Email: gus@thebasilelawfirm.com
Attorney for Plaintiffs OriginClear, Inc.,
Progressive Water Treatment, Inc., and
Tener Riggs Eckelberry Jr.
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RULE 17 CERTIFICATION
Pursuant to Rule 17 of the Commercial Division, I certify that, excluding the caption,
signature block, and this certification, Plaintiffs’ Attorney Affirmation contains 603 words and
complies with the word count limits imposed by the Rules of the Commercial Division. The
foregoing word counts were calculated by Microsoft Word.
Dated: January 12, 2021
/s/ Gustave P. Passanante
Gustave P. Passanante, Esq.
Mark R. Basile, Esq.
Eric J. Benzenberg, Esq.
THE BASILE LAW FIRM P.C.
390 North Broadway, Suite 140
Jericho, NY 11753
Tel.: (516) 455-1500
Fax: (631) 498-0478
Email: gus@thebasilelawfirm.com
mark@thebasilelawfirm.com
eric@thebasilelawfirm.com
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Preview
FILED: ONTARIO COUNTY CLERK 01/12/2021 06:56 PM INDEX NO. 128590-2021 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/12/2021 202101130068 Index # : 128590-2021 SUPREME COURT OF THE STATE OF NEW YORK IN AND FOR THE COUNTY OF ONTARIO --------------------------------------------------------------------X Index No.: _______________ ORIGIN CLEAR INC DBA ORIGINCLEAR / PROGRESSIVE WATER TREATMENT INC DBA ORIGIN CLEAR / PROGRESSlVE WATER TREATMENT and TENER RIGGS ECKELBERRY, Plaintiffs, v. IKAHN CAPITAL LLC, Defendant. --------------------------------------------------------------------X AFFIRMATION IN SUPPORT OF EMERGENCY APPLICATION FOR TEMPORARY RESTRAINING ORDER AND IN FURTHER SUPPORT OF THE MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION GUSTAVE P. PASSANANTE, an attorney duly licensed to practice law before the Court of the State of New York, affirms the following: 1. I am the attorney for the Plaintiffs in the above-captioned action. 2. I submit this Affirmation in Support of Plaintiffs’ Application for a Temporary Restraining Order to be heard on an expedited basis and in further Support of the Application for both a Temporary Restraining Order and Preliminary Injunction. 3. The instant action was commenced by the filing of a Summons and Complaint on January 12, 2021 (NYSCEF Docket Entry Nos. 1 and 2) and Exhibits A through D. 4. While service of the Summons and Complaint on Defendant iKahn Capital LLC is still pending, it is necessary to make the within application due to circumstances as demonstrated below and in the moving papers. 1 of 4 202101130068 IndexNO. INDEX #: 128590-2021 128590-2021 FILED: ONTARIO COUNTY CLERK 01/12/2021 06:56 PM NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/12/2021 5. The main relief sought in the Complaint is of equitable nature as it seeks to vacate the Judgment that was obtained by Confession of Judgment in favor of Defendant and against the Plaintiffs. See iKahn Capital LLC v. Origin Clear Inc et al, Index No. 121170-2018 (Sup. Ct. Ontario Cnty. November 6, 2018). 6. Plaintiffs are listed in the caption exactly as they appear on the aforementioned Judgment and Affidavit of Confession of Judgment in order to be consistent and to ensure that any relief granted is applied to the appropriate entity and/or the variations of the name of each entity. 7. The basis for this request for emergency relief is that Defendant will be in a position to seek enforcement of the within Judgment once it is made aware of the pending action to vacate the Confession of Judgment. 8. As demonstrated in the Affidavit of Tener Riggs Eckelberry Jr., Plaintiffs will suffer irreparable harm should any further action be taken to enforce the Judgment against them. Plaintiffs include Tener Riggs Eckelberry Jr. (hereinafter, “Riggs”), the individual Plaintiff and President of OriginClear, Inc. (hereinafter, “OriginClear” or the “Company”), which is a company that commercializes modular, prefabricated, filter-free advanced systems for faster sanitation worldwide, and Progressive Water Treatment Inc. d/b/a/ OriginClear (hereinafter “Progresive” and together with OriginClear the “Business Plaintiffs”). However, the Business Plaintiffs are obligated to make payments under the Settlement Agreement based on the usurious loan transaction complained of in the Complaint. As a result, if Business Plaintiffs were to be further interrupted by any restraining notices, default notices or other execution or enforcement proceeding, the Business Plaintiffs would not be able to pay any of their bills. Further, such interferences would only further disrupt customer relations and diminish the goodwill of 2 of 4 202101130068 IndexNO. INDEX #: 128590-2021 128590-2021 FILED: ONTARIO COUNTY CLERK 01/12/2021 06:56 PM NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/12/2021 OriginClear, which has been cultivated over the years but severely damaged by the COVID-19 global pandemic. 9. Affirmant will provide notice to Defendant upon the Court’s scheduling of a hearing on the within request for a temporary restraining order or as otherwise directed by the Court. 10. Plaintiffs intend to file a Motion for Summary Judgment on each of the causes of action set forth in the Complaint once the issue has been joined. 11. The temporary restraining order is necessary in order to maintain the status quo and protect Plaintiffs from irreparable harm should the relief not be granted. 12. No prior application has been made for any of the relief requested herein. WHEREFORE, based on the foregoing Plaintiffs seek an expedited hearing of the within application for a temporary restraining order; and upon such a hearing, granting a temporary restraining order and further to grant a Preliminary Injunction pending the outcome of the within litigation and for such other and further relief as this Court deems just and proper. Dated: January 12, 2021 Respectfully submitted, /s/ Gustave P. Passanante Gustave P. Passanante, Esq. THE BASILE LAW FIRM P.C. 390 N. Broadway, Ste. 140 Jericho, NY 11753 Tel.: (516) 455-1500 Fax: (631) 498-0478 Email: gus@thebasilelawfirm.com Attorney for Plaintiffs OriginClear, Inc., Progressive Water Treatment, Inc., and Tener Riggs Eckelberry Jr. 3 of 4 202101130068 IndexNO. INDEX #: 128590-2021 128590-2021 FILED: ONTARIO COUNTY CLERK 01/12/2021 06:56 PM NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/12/2021 RULE 17 CERTIFICATION Pursuant to Rule 17 of the Commercial Division, I certify that, excluding the caption, signature block, and this certification, Plaintiffs’ Attorney Affirmation contains 603 words and complies with the word count limits imposed by the Rules of the Commercial Division. The foregoing word counts were calculated by Microsoft Word. Dated: January 12, 2021 /s/ Gustave P. Passanante Gustave P. Passanante, Esq. Mark R. Basile, Esq. Eric J. Benzenberg, Esq. THE BASILE LAW FIRM P.C. 390 North Broadway, Suite 140 Jericho, NY 11753 Tel.: (516) 455-1500 Fax: (631) 498-0478 Email: gus@thebasilelawfirm.com mark@thebasilelawfirm.com eric@thebasilelawfirm.com 4 of 4