FILED: NEW YORK COUNTY CLERK 02/17/ :06 PM INDEX NO /2016 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/17/2016 EXHIBIT A

Transcription

1 FILED: NEW YORK COUNTY CLERK 02/17/ :06 PM INDEX NO /2016 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/17/2016 EXHIBIT A

2 JAMS COMMERCIAL ARBITRATION x LOEB & loeb llp, Claimant, Case No against GREGORY J. BLASI, Respondent, x FINAL ARBITRATION AWARD THE UNDERSIGNED ARBITRATOR, having been designated in accordance with a letter Agreement between the parties, dated April 30, 2013, and having examined the submissions and allegations of the parties, hereby issues the following FINAL ARBITRATION AWARD: Claimant, loeb & loeb llp seeks summary disposition awarding it $148, based on a Promissory Note dated and signed by respondent Gregory J. Blasi, a then income partner at loeb & loeb, on April 30, 2013 in return for a $150, loan made by claimant to respondent the previous year. According to its terms, the Note was due and payable on or before January 31, On July 14, 2014 respondent made one payment of $13, leaving $148,047.72, inclusive of interest, currently due on the Note. That note superseded or replaced an earlier Promissory Note dated February 1, 2012, which was due and payable on January 31, 2013, for the same $150,000 loan but for which no part had been paid. Claimant, represented by Michael P. Zweig and Jonathan Strauss, attorneys at loeb & loeb, also seeks attorney's fees based on a provision in the Promissory Note. 1

3 Respondent Blasi contends, inter alia, that he was fraudulently induced into joining Loeb & Loeb LLC, and by implication, into signing the Promissory Note because his ability to obtain business in his area of expertise, energy corporate finance, was undermined by a 160 page letter on tax policy written on December 19, 2012 to the Internal Revenue Service by an individual who was counsel to claimant's office in California. Mr. Blasi represents himself. Discussion It is undisputed that Blasi joined Loeb & Loeb LLP on December 12, 2009 and that, at Respondent's request, the firm loaned him $150,000 for which he executed the first of two Promissory Notes on February 1, On April , Respondent, pursuant to a letter Agreement, changed his status from a capital partner to an income partner for which he would be paid a yearly salary of $300,000 and would be eligible for a bonus. The letter Agreement specifically references a second promissory note, denominated the "New Note" stating, "You have previously issued to the firm a Promissory Note, dated February 1, 2012, in the principal amount of $150, representing indebtedness owing by you to the Firm for the amounts loaned to you by the Firm.... [TJhe Firm will extend the maturity date of the Prior Note to January 31, ln connection with such maturity date of the Prior Note, you represent, warrant and covenant to the Firm that as of the date hereof, you have no claims, offsets or defenses against the repayment in full of all amounts owing to the Firm under the Prior Note and the New Note." At that same time, Respondent signed the Promissory Note, referenced in the letter Agreement as the Restated or New Note, which forms the basis of the claim here. Respondent' s relationship with Loeb & Loeb terminated on January 31, 2014, the due date for the New Note. 2

4 Claimant contends that it has made a prima facie case for recovery under the note as it has furnished a copy of the executed note, entitled "Promissory Note" in which Respondent agreed to pay the principal sum of $150,000 without interest except interest to accrue at 5% per annum compounded yearly, if in default, (UCC 3-104[2]). The principal amount was due and payable in full on January 31, Respondent terminated his employment with loeb & loeb llc on that date, which, according to the note, would have also made the payment due under a Cessation of Employment provision. The affidavit of Michael Zweig establishes prima facie (and there appears to be no issue) that no payment other than the $13, has been made. Claimant also seeks attorney's fees as the Note specifically provided that Respondent shall pay attorneys' fees "incurred in connection with the enforcement of the Promissory Note" and provided that he "waived all exemptions." Unquestionably, claimant has made a prima facie showing for recovery under the note or summary disposition under New York law as both an executed note and non-payment have been established, Seaman-Andwall Corp. v. Wright Mach. Corp., 31 AD2d 136 (1968) aff'd 29 NY2d617 (1971); Quest Commercial, LLCv. Ravner, 35 AD3d 576 (2d Dept. 2006); Alard, L.L.c. v. Weiss, 1 AD3d 131 (1st Dept. 2003). Respondent contends that his business development opportunities were severely compromised by the aforementioned 160 page letter, written by an individual associated with claimant's California office and which deals extensively with taxation of partnerships and regulations issued in connection with them. He also implies that he would not have joined the Firm or that he was fraudulently induced to join the firm by assurances that it would support his energy corporate finance business. He claims that the letter contradicted those assurances 3

5 and he needs discovery to determine what actions the Firm took to ameliorate the impact of the letter after it was written. However, the letter was written fully four months prior to Mr. Blasi's decision to become a salary partner and four months before he signed the Promissory Note at issue. While Respondent, seemingly acknowledging that he knew or heard about the letter before signing the letter Agreement and Promissory Note, claims that these acts occurred before he became fully aware of the implications of the letter, nothing contained in the letter would have affected his status as a salaried partner, nor was it in any way connected to the loan he obtained from the law firm. The law is clear that in order to defeat summary judgment based on fraudulent inducement of a promissory note there must be some connection between the promise underlying the note and the defense. Quest Commercial, LLC v. Rovner, supra. The cases cited by Respondent, Zyskind et al. v. FaceCake Marketing Technologies, 101 AD3d 550 (1 st Dept. 2012) and Sce v. Ach, 56 AD3d 457 (2d Dept. 2008), are inapposite as the claims of fraud in the inducement in those cases related specifically to the transactions for which the promissory notes were signed. In Sce, the note was given as partial payment for purchase of a health food restaurant business and in Zyskind, the note was given for investments in a project. Here, the note was given for a cash loan made at an earlier time and was unrelated to Respondent's work as either an equity partner or income partner with Loeb & Loeb LLC or his ability to develop further business with the firm. Respondent is not claiming that he was somehow fraudulently induced to accept a $150, loan, nor does he claim that the loan was related to his ability to develop business. 4

6 Thus, respondent's claim that he needs discovery concerning Loeb & Loeb's actions to address the "harm" caused by the letter because of representations or promises that had been made at the time he joined the firm is unavailing. Any discovery concerning claimant's or respondent's action in response to the letter would at most relate to his employment in general but would not be relevant to respondent's obligations under the Note or to repay a loan. Moreover, while the appellate courts did not regard the waiver of defenses clauses as dispositive in the former cases because the underlying fraudulent inducement claims could have included the waivers, the waiver contained in the Letter Agreement here was made after Respondent knew about the tax letter and after he changed his position to income partner. For the foregoing reasons, claimant's application for summary disposition on the Note is granted. Attorneys' Fees and Costs Claimant seeks attorney's fees and expenses pursuant to the provision in the April 20, 2013 Promissory Note that states: "Maker shall pay to Holder, upon demand, all costs and expenses, including, without limitation, attorneys' fees and court costs, that may be incurred by Holder in connection with the enforcement of this Promissory Note, whether or not suit is filed." Respondent argues that Claimant is acting pro se and thus is not entitled to costs or attorneys' fees. In the cases cited by respondent, courts denied statutory attorneys' fees to individuals acting pro se including lawyers. However, where the claim for attorneys' fees is based on a contractual obligation, New York courts have upheld attorneys' fee awards to lawyers acting pro se. Breed, Abbott & Morgan v. Hulko, 139 AD2d 71 (1 st Dept. 1988); see also Carozza v. Jacobs, 277 AD2d 52 (1" Dept. 2000). Based on the provision ofthe Promissory Note 5

7 and New York law, claimants are entitled to reasonable attorneys' fees and costs incurred in obtaining an award. Claimant has submitted the declaration of Michael P. Zweig, partner in and General Counsel of claimant law firm, in which he seeks $63, representing 65% of Loeb & Loeb's actual attorneys' fees plus $6, for reasonable expenses. This amount includes $17, for the work of partner Jonathan N. Strauss billed at $ per hour, $43, for the work of associate Sarah Schacter billed at $ per hour, and $2, for the work of paralegal Antoinette Pepper billed at $ per hour. Claimant's submissions also detail every bit of time devoted to this matter which total hours. Of these more than 17 hours were devoted to activities prior to drafting the motion (seeking arbitration and requesting permission to seek summary disposition based on the promissory note), more than 72 were devoted to the drafting of the motion and brief for summary disposition, and another 70 plus were devoted to the reply brief. While I appreciate the high quality of claimant's work, under all of the circumstances here, including the amount of the promissory note, that the legal claim was based purely on a promissory note, that claimant was self-represented, and that respondent was a former employee, I find that an award compensating for 60 hours of attorney time would be reasonable. Based on the hourly rates of the attorneys, which average as discounted about $400 per hour, I award $24,400 for attorneys' fees and $6, for expenses. 6

8 Conclusion and Award Based on the foregoing, Claimant Loeb & Loeb, LLC is awarded a total of $ 179, This amount includes $148, representing $143, due on the Note plus default interest of $6, The interest is based on the provision of the promissory note that the "Maker shall pay, upon demand, default interest at the rate of five percent (5%) per annum compounded annually and accruing daily, on the entire outstanding Principal Amount... " There is no reason to question the calculation. It further includes $31, for attorneys' fees and costs as set forth above. This award resolves all issues submitted for decision in this proceeding. (\~ E, t-~~~ o Helen E. Freedman Dated : January 23, 2016 New York, New York I 7

9 PROOF OF SERVICE BY & u.s. MAIL Re: Loeb & Loeb LLP vs. Blasi, Gregory J. Reference No I, Alicia Jantsch, not a party to the within action, hereby declare that on January 26, 2016, I served the attached final award on the parties in the within action by and by depositing true copies thereof enclosed in sealed envelopes with postage thereon fully prepaid, in the United States Mail, at New York, NEW YORK, addressed as follows: Jonathan Neil Strauss Esq. Loeb & Loeb, LLP 345 Park Ave New York, NY Phone: jstrauss@loeb.com Parties Represented: Loeb & Loeb, LLP Gregory J. Blasi Esq. Leech, Tishman, Fuscaldo & Lampl 521 Highbrook Ave. Pelham, NY Phone: gblasi@leechtishman.com Parties Represented: Gregory Blasi I declare under penalty of perjury the foregoing to be true and correct. Executed at New York, NEW YORK on January 26, 2016.