SUPREME COURT - STATE OF NEW YORK IAS TERM PART 16 NASSAU COUNTY. Justice LEONARD B. AUSTIN NO APPEARANCE ORDER

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1 INDEX No. 7182"(6 SUPREME COURT - STATE OF NEW YORK IAS TERM PART 16 NASSAU COUNTY PRESENT: HONORABLE Justice LEONARD B. AUSTIN Motion RID: Submission Date: Motion Sequence No.: 002/MOT D THE ULTIMATE CONNECTION, INC. Plaintiff, - against - COUNSEL FOR PLAINTIFF John V. Decolator, Esq Franklin Avenue Garden City, New York MARK FRIEDFERTIG, Defendant. COUNSEL FOR DEFENDANT NO APPEARANCE ORDER The following papers were read on Plaintiff's motion for a default judgment, leave to add a part and application for an ex-parte preliminary order of attachment: Notice of Motion dated July 3, 2006; Affrmation of John V. Decolator, Esq. dated July 3, 2006; Affidavit of Michael Dobler sworn to on June 27, 2006; Proposed Order of Attachment; Affirmation of John V. Decolator, Esq. dated July 17, 2006; Affidavit of Marc Dobler sworn to on July 17, Plaintiff, The Ultimate Connection, Inc. ("Ultimate ), moves for leave to enter a default judgment against the Defendant, Mark Friedfertig ("Friedfertig ), and for leave to serve a supplemental summons and amended complaint adding East Coast Automotive

2 ... and Electronics, Inc. ("East Coast" ) as a party defendant in this action. Ultimate also seeks a preliminary order of attachment against Friedfertig. BACKGROUND East Coast made a promissory note dated November 2004 in the principal sum of $95,000 payable to Ultimate. The note was payable in equal monthly installments of principal and interest of $1,882 with the first payment being due on December 1, The note was self-liquidating with the final payment due on November 1, East Coast's obligations on the note were personally guaranteed by Friedfertig pursuant to the terms of a written guaranty dated November 1, The guaranty provided that Friedfertig absolutely and unconditionally guaranteed East Coast's obligations of the terms of an October 2004 Asset Purchase Agreement between Ultimate and East Coast and the promissory note. Ultimate alleges that East Coast made the payments due through December Thereafter, East Coast defaulted in payment of the installment due in January 2006 and on each and every installment due thereafter. The note permits the payee to declare the entire outstanding balance on the note immediately due and payable upon " (a) the failure of Maker to pay the principal of, or any interest on, this Note when due and such failure shall continue unremedied for a period of fifteen (15) days after written notice thereof.

3 Ultimate commenced this action against Friedfertig by seeking summary judgment in lieu of complaint on his guaranty. By order dated June 27, 2006, this Court denied Ultimate s motion on the grounds that Ultimate had failed to establish that it had satisfied the condition precedent of providing Friedfertig with written notice of the default as required by the note. Default - Friedfertig DISCUSSION This action was commenced by filng the summons, notice of motion and supporting affidavits seeking summary judgment in lieu of complaint pursuant to CPLR 3213 with the County Clerk on May 3, Friedfertig was personally served on May 5, The motion for summary judgment in lieu of complaint was submitted on June 2006, without opposition. The motion was denied by order of this Court dated June 27, 2006 on the grounds that Plaintiff had failed to establish a prima facie entitlement to judgment as a matter of law. See, Winegrad v. New York Univ. Hosp., 64 N. 2d 851 (1985). The promissory note contained language requiring Ultimate to give written notice of default to East Coast. The promissory note granted East Coast fifteen (15) days from receipt of written notice of default to cure. If East Coast failed to cure within the fifteen (15) day period, Ultimate could declare the entire unpaid balance due.

4 Thus, this Court denied Ultimate s motion for summary judgment in lieu of complaint because it had failed to prove that it had given East Coast the required written notice of default. This defect in Ultimate s papers has now been remedied. The invoice sent by Ultimate to East Coast seeking payment of the installment on the note due February states, "You are in default of your agreement - personal and corporate judgement wil procede (sic) - your assets wil be forfied (sic) - Please communicate!" This Court is satisfied, in the absence of opposition, that this is adequate proof that East Coast has been provided with written notice of default. East Coast did not cure its default. Ultimate has now established a prima facie case on Friedfertig s guarantee by proving the existence of the primary obligation and the guarantee, default by the primary obligor and failure of the primary obligor to cure the default within the cure period. See, Famolaro v. Crest Offset. Inc., 24 A. 3d 604 (2 Dept. 2005). Having denied the prior 3213 motion, the moving papers became the pleadings in this action. CPLR Friedfertig remains in default. He was served on May 5, He did not oppose the motion made pursuant to CPLR He does not oppose this motion. CPLR 3215 permits a party to obtain a default judgment against a defendant who defaults in appearance. An application for leave to enter a default judgment must supported by proof of service of the summons and complaint, an affidavit made by a person with actual knowledge of the facts surrounding the claim and proof of the default.

5 CPLR 3215(f). See, Siegel, New York Practice The party seeking a default judgment must establish the existence of a prima facie cause of action against the defaulting party. Joosten v. Gale, 129 A. 2d 531 (1 Dept. 1987). Ultimate has established that the amount outstanding on the note as of East Coast's default was $ The note provides for a default rate of interest of 12% or the maximum amount permitted by law which ever is less. Therefore, Ultimate is entitled to interest on the unpaid balance at the 12% per annum from February 15, 2006 to the date of the entry of the judgment. Suoolemental Summons and Amended Complaint CPLR 1003 permits the Court to add parties to the litigation at any stage of the proceedings. CPLR 1003 is to be liberally construed and grants the court wide latitude Gross v. BFH Co.. Inc., 151 A.D. 2d 452 in determining whether parties are to be added. Dept. 1989); and Micucci v. Franklin General Hosoital, 136 A. 2d 528 (2 Dept. 1988). The motion to add a new party should be granted unless adding a the new party wil cause unnecessary delay or prejudice the rights the original parties to the action. 82 NY Jur 2d Parties 142; and 1 New York Civil Practice: CPLR 1f Plaintiff seeks to add East Coast as a party to this action. Adding the new party wil not unduly delay this action or prejudice the rights of the original parties. Ultimate wil be able to judgment against Friedfertig. It wil then be able to proceed on its action on the promissory note against East Coast.

6 Therefore, Plaintiff shall be granted leave to add East Coast as a party to the action and to serve a supplemental summons and amended complaint upon it. Preliminary Order of Attachment Ultimate seeks an ex parte preliminary order of attachment seeking to attach Friedfertig s interest in any real or personal property and more specifically in real property located at 3580 Center View Avenue, Wantagh. Inasmuch as Plaintiff's motion for leave to enter a judgment against Friedfertig is being granted, the judgment wil be a lien on any real property owned by Friedfertig for ten years after the filng of the judgment. CPLR 5203(a). Since the action against Friedfertig is proceeding to judgment, the application for a preliminary attachment is rendered moot. Accordingly, it is, ORDERED, that Plaintiffs motion for a default judgment against the Defendant Mark Friedfertig is granted. The County Clerk is directed to enter a judgment in favor of Plaintiff, The Ultimate Connection, Inc., and against the Defendant, Mark Friedfertig, in the sum of $ together with interest at the rate of 12% per annum from February 15, 2006 to the date of entry of judgment together with costs and disbursements as taxed by the Clerk; and it is further ORDERED, that Plaintiffs motion for leave to add East Coast Automotive and Electronics, Inc. as a party defendant in this action is granted. Plaintiff is directed to serve the supplemental summons and amended complaint in the form annexed to the

7 motion papers upon said Defendant within thirty (30) days of the date of this order; and it is further ORDERED, that upon the entry of the judgment against Defendant Mark Friedfertig the action against said Defendant shall be severed and continued against East Coast Automotive and Electronics, Inc. ; and it is further ORDERED that Plaintiff' s application for an ex-parte preliminary order of attachment against Mark Friedfertig is denied as moot. This constitutes the decision and Order of the C Dated: Mineola, NY July 26, 2006 E","ER 'LG\Jo JU\,? COUN p.\zs off\c co\jt'1'f c\.e: