Opinion
1:19-cv-2337 (AJN) (SN)
06-23-2022
TEDDY VOLKSWAGEN OF THE BRONX, LLC. Plaintiff. v. PH1LL1P DEMERSKY. Defendant.
MILMAN LABUDA LAW GROUP PLLC Emanuel Kataev, Esq. Ranni Law Firm Attn: Joseph J. Ranni, Esq. Attorneys for Defendant
MILMAN LABUDA LAW GROUP PLLC Emanuel Kataev, Esq.
Ranni Law Firm Attn: Joseph J. Ranni, Esq. Attorneys for Defendant
Dear Judge Nathan:
This office represents the Plaintiff in the above-referenced case. Plaintiff Teddy Volkswagen of the Bronx, LLC (hereinafter “Plaintiff” or the “Dealership”) writes pursuant to this Court's September 7, 2021 Order of discontinuance and the parties' executed Settlement Agreement & Release (the “Agreement”) to respectfully, and regrettably, request judgment by confession against the Defendant Phillip Demersky (hereinafter “Defendant” or “Demersky”) in the amount of $27,500.00 due to Defendant's abject failure to honor the Agreement.
Relevant Factual Background and Procedural History
On March 15, 2019, Plaintiff filed its complaint against Defendant arising out of various schemes Defendant engaged in to steal monies from the Plaintiff during the course of and after his employment with the Dealership ended.
Following protracted discovery and motion practice, and immediately before a trial was scheduled to occur, the parties were able to reach a settlement on all issues.
On July 21, 2021, Defendant signed the Agreement, which required him to pay the sum of $25,000.00 payable at $1,000.00 per month beginning on July 1, 2021. See ¶ 1(a) of the Agreement, annexed hereto with Defendant's executed and notarized counterpart as Exhibit “A.”
Because the agreement is confidential by its terms (¶ 6), the parties did not file the agreement with the Court, nor made it part of the public record. This Court, as a result, held in a September 7, 2021 Order that it will not retain jurisdiction to enforce the Agreement unless its terms are made part of the public record. See Docket Entry 112. Plaintiff respectfully notes that the confidentiality provision of the Agreement is carved out to permit the parties to enforce the terms of the Agreement. As such, now that the Agreement is part of the public record, Plaintiff respectfully requests that this Court retain jurisdiction to enforce it.
The Agreement also provides that in the event that any of the settlement payments are not received by Plaintiff on the dates set forth in the Agreement, Plaintiff's counsel shall notify Defendant's counsel via email and - in the event Defendant fails to cure said late payment within five (5) business days from service of said notice - Defendant shall be held in default, rendering him liable for $37,500.00 less any monies theretofore paid by Defendant. See ¶ 7 of the Agreement.
The Agreement also provides that an affidavit of confession of judgment is appended to it, is incorporated by reference therein, shall be held in escrow by Plaintiff's counsel and not released unless there is a default under the Agreement and Defendant fails to cure within the time required. Id. The Agreement also provides, inter alia, that this Court shall retain jurisdiction to enforce the terms of the Agreement. Id. Although Plaintiff has paid $10,000.00 towards the Agreement, every single one of his payments were late. See copy of spreadsheet listing each payment's due date the amount, the date received, and notes concerning how late each payment was made as of June 15, 2022 annexed hereto as Exhibit “B.” In fact, the “earliest” payment Defendant ever made was twelve (12) days late. Despite this, Plaintiff has held off from issuing any notices of default.
The date received is based on the date the payment was deposited in Plaintiff's bank account; the actual date payment was received was never more than one to two (1-2) days prior.
However, Defendant's May 1, 2022 and June 1, 2022 payments are late and have not been paid to date despite Plaintiff's issuance of a notice of default on June 15, 2022. See copy of Plaintiff's notice of default pursuant to the Agreement annexed hereto as Exhibit “C.” By the terms of the Agreement, Defendant had five (5) business days - until Wednesday, June 22, 2022 - to cure and has failed to do so.
Accordingly, Plaintiff respectfully request judgment by confession in the amount of $27,500,00. See copy of executed and notarized confession of judgment annexed hereto as Exhibit “D.”
SO ORDERED.
Plaintiff thanks this Court for its time and attention to this case.
Siting by Designation