FILED: NEW YORK COUNTY CLERK 11/04/ :33 PM INDEX NO /2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 11/04/2016

Transcription

1 FILED: NEW YORK COUNTY CLERK 11/04/ :33 PM INDEX NO /2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 11/04/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X PEGASUS FUNDING, LLC -against- Plaintiff, ROBERT READ; PAUL G. VESNAVER, ESQ., P.L.L.C.; PAUL G. VESNAVER, Individually Defendants X INDEX NO.: /2016 CIVIL ACTION AFFIRMATION FOR JUDGMENT BY DEFAULT RAUL J. SLOEZEN, ESQUIRE, an attorney admitted to practice law in the State of New York hereby affirms, under penalty of perjury that: 1. I am the attorney for Plaintiff, Pegasus Funding, LLC, ( Pegasus ) in the above entitled action. The facts and circumstances of this action are set forth in the Verified Complaint, attached as Exhibit 1 Summons and Complaint without attachments. I am fully familiar with the facts of the filing and service of the complaint and the default of the Defendants. This action is for monetary damages arising from claims for breach of contract, breach of the covenant of good faith and fair dealing, conversion, unjust enrichment and failure to honor the assignment agreements. 2. I make this affirmation pursuant to N.Y. C.V.P. Law 3215(f), in support of the application for the entry of default judgment against Defendants, Robert Read ( Read ) and Paul G. Vesnaver, Individually ( Vesnaver ). 3. Jurisdiction of the subject matter of this action is based upon personal jurisdiction and contractual agreement. 1 1 of 6

2 FACTS SUPPORTING THE CLAIM 4. The principle purpose of Pegasus is to advance money to Plaintiffs involved in personal injury cases and other litigation. 5. When PEGASUS advances money to Plaintiffs, Pegasus purchases a portion of the potential proceeds of litigations. 6. Pursuant to the terms of the Contract, in the event that the Plaintiff does not recovery any money from the Litigation, then the Plaintiff owes no money to Pegasus. 7. In the event that the Plaintiff does recover money from the Litigation, Pegasus is paid according to the fee schedule included in the Contract. READ S REQUEST FOR FINANCING 8. In or about March 2014 Read contacted PEGASUS and requested financing from PEGASUS. 9. When Read contacted PEGASUS to obtain these financings, PEGASUS was advised that Read was the Plaintiff in a case captioned Robert Read v. Edison Avenue Realty Corp., Index No.: /2011, Westchester Supreme Court (the Read Case ). Read advised Pegasus that he was represented by Vesnaver and the Paul G. Vesnaver, Esq., P.L.L.C., (collectively the Defendant Attorneys ) 10. Read and Vesnaver provided to PEGASUS information regarding the Read Case. 11. Based upon the representations of Read and Vesnaver, PEGASUS agreed to provide a cash advance to Read. 12. On or about 3/4/2014, PEGASUS determined that it could advance the sum of Fifty-Eight Thousand, Three Hundred Forty-Three Dollars and Thirty-Six Cents 2 2 of 6

3 ($58,343.36), which included $10, to Read, $47, to Peachtree Pre- Settlement Funding, SPV, LLC (for a prior cash advance) plus an application fee of $ and $ attorney review fee. 13. Pursuant to the Contract, the amount due increased by 65% per annum and the payoff schedule was set forth on page 1 of the Contract. 14. on or about March 4, 2014, PEGASUS provided a Contract to Read and the Defendant Attorneys. The Contract consisted of an Assignment, Sale, Springing Assignment and Equitable Lien Agreement, Irrevocable Direction to Pay and an Attorney Acknowledgement. 15. On or about March 4, 2014, the Contract was signed by Read and the Defendant Attorneys. 16. Pursuant to the terms of the Contract, Read assigned to Pegasus, a portion of the potential proceeds from the Read Case. Read also instructed the Defendant Attorneys to pay Pegasus from the settlement proceeds. 17. Pursuant to the terms of the Contract, the Defendant Attorneys agreed to pay Pegasus upon receipt of the settlement proceeds from the Read Case. 18. Pursuant to the terms of the Contract, the Contract is to be interpreted pursuant to the laws of the State of New York. 19. Based upon the fully executed March 4, 2014 Contract, on or about 3/6/2014, PEGASUS sent to Read a check in the amount of $10, and sent to Peach Tree a check in the amount of $47, VI. SETTLEMENT 20. On or about August 15, 2015, the Read Case settled. 3 3 of 6

4 21. Subsequent to the Case being settled, the Defendant Attorneys received the settlement proceeds from the Case and placed the funds into their trust account. 22. The Defendant Attorneys then disbursed the net proceeds from the Case to Read but did not pay PEGASUS. 23. As a result, the amount that is currently due is $189, The Defendants have failed and refused to pay Pegasus pursuant to the Contract. 25. This action was commenced on September 9, 2016, by the filing of the summons and complaint. (Exhibit 1 Summons and Complaint without attachments) 26. A copy of the summons and complaint was served upon Read on September 24, 2016, by personal service, by Sandor Talaas, who is employed by Guaranteed Subpoena Service, Inc. The Affidavit of Service was filed on October 3, (Exhibit 2 Affidavit of Service on Read) 27. A copy of the summons and complaint was served upon Vesnaver on September 24, 2016, by personal service by serving Mary Vesnaver a person of suitable age and discretion and by mailing the summons and complaint to the residence, by Richard Doris, who is employed by Guaranteed Subpoena Service, Inc. The Affidavit of Service was filed on October 12, (Exhibit 3 Affidavit of Service on Vesnaver) 28. The Defendant Read is not an infants or incompetent person. Defendant Read is not presently in the military service of the United States as was verified by Murray Browne of Guaranteed Subpoena Service, Inc., by asking the Defendant at the time of service and receiving a negative reply. 4 4 of 6

5 29. The Defendant Vesnaver is not an infants or incompetent persons. Defendant Vesnaver is not presently in the military service of the United States as was verified by Richard Doris of Guaranteed Subpoena Service, Inc., by asking the Mary Vesnaver at the time of service and receiving a negative reply. 30. The Defendants Read and Vesnaver have not answered the complaint and the time for Defendants Read and Vesnaver to answer the complaint has expired and the time for Defendants Read and Vesnaver to do so has not been extended. 31. On November 4, 2016, I mailed to Defendants Read and Vesnaver a copy of the Summons, pursuant to C.P.L.R Pegasus also seeks pre-judgment interest in the amount of 9.00% per annum since September 9, 2016, plus costs in the total amount of $ ($ Complaint filing fee; $ for Guaranteed Subpoena Invoice # and $ for Guaranteed Subpoena Invoice # for service on the Defendants Read and Vesnaver) (Exhibit 4 Guaranteed Subpoena Invoices) plus reasonable attorneys fees plus post judgment interest. 33. This amount is justly due and owing and no part of the amount has been paid by Defendants. 34. Based upon the foregoing. It is respectfully requested that the Court enter default judgment against Defendants Read and Vesnaver. 5 5 of 6

6 6 of 6