Pirone: (212) 885-5566 Fax: (917) 332-3712 Email: HNCoga11@Bla11kR0111e.co111 May 10, 2017 BYNYSCEF The Honorable Cynthia S. Kern Supreme Court of the State of New York County ofnew York 60 Centre Street, Room 64 7 New York, NY 10007 Dear Justice Kern: Re: Schwartzbardv. Cogan, Index No. 161674/2013 We are attorneys for Plaintiff Michael Schwartzbard. We write to request that the Court enter a revised judgment because of certain open issues in this Court's Decision and Order dated April 26, 2017 (the "Order"), a copy of which is enclosed. The Order directs a judgment on Plaintiffs cause of action for a declaratory judgment "that defendant is obligated to make the $4,000 payment to plaintiff within three days after defendant receives his monthly pension benefit from the Trace Pension Plan." (See Order at 6.) However, because the Court granted Plaintiff's motion for summary judgment on his cause of action for breach of the Modified Agreement, Plaintiff is entitled to a money judgment for past due amounts owed under that agreement. As of this date, that amount totals $80,000, plus statutory interest. Also, page six of the Order mistakenly refers to Plaintiff's cause of action for breach of the Modified Agreement as Plaintiff's second cause of action. Plaintiff's cause of action for breach of the Modified Agreement is Plaintiff's first cause of action in his First Amended Complaint. Plaintiff's second cause of action, which was made in the alternative, was for breach of the original agreement made between the parties in November 2006. Accordingly, Plaintiff encloses both a clean and a redline version of a proposed amended judgment that revises the prior judgment by: (1) stating that the Court granted Plaintiff's first cause of action, rather than his second cause of action; (2) providing a money judgment for Plaintiff in the amount of $80,000, plus statutory interest; and (3) restates the declaratory The Chrysler Building 405 Lexington Avenue New York, NY 10174-0208 www.blankrome.com Boca Raton Cincinnati Fort Lauderdale Houston Los Angeles New York Philadelphia Pittsburgh Princeton San Francisco Shanghai Tampa Washington Wilmington
Hon. Cynthia S. Kern May 10, 2017 Page 2 judgment already entered by the Clerk of Court as an enforceable judgment. Also enclosed is a table showing Plaintiffs calculation of accrued interest, and a bill of costs. Plaintiff calculated the accrual of damages from the 10th day of each month, to account for Defendant's receipt of payment from the Trace Pension Plan on or about the 1st day of each month, plus three days, pursuant to the October 10, 2008 Modified Agreement. We appreciate the Court's attention to this matter. Should the Court wish to have a telephone conference with the parties to discuss this matter, Plaintiffs counsel is available at the Court' s convenience. Enclosures Respectfully yours, (a~ t::_ Harris N. Cogan cc: Stephen Wagner, Esq. (via NYSCEF) Jackson S. Davis, Esq. (via NYSCEF)
FILED: NEW YORK COUNTY CLERK 04/26/2017 04:51 PM INDEX NO. 161674/2013 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/26/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MICHAEL SCHWARTZBARD, -against- MARSHALL S. COGAN, Plaintiff, Defendant. IAS Part 55 Index No. 161674/2013 NOTICE OF ENTRY PLEASE TAKE NOTICE that the attached document is a true and correct copy of a Decision and Order of the of the Supreme Court of the State of New York, County of New York, and Judgment signed by the Clerk of Court, which was duly entered in the office of the Clerk of Court on April 26, 2017. Dated: New York, New York April 26, 2017 BLANK ROME LLP To: By: Harris N. Cogan Nicholas R. Tambone The Chrysler Building 405 Lexington A venue New York, New York 10174 (212) 885-5000 Attorneys for Plaintiff Michael Schwartzbard Stephen Wagner Jackson S. Davis COHEN TAUBER SPIEVACK & WAGNER P.C. 420 Lexington Ave., Suite 2400 New York, New York 10170 (212) 381-8732 Attorneys for Defendant Marshall S. Cogan 1 of 8
FILED: NEW YORK COUNTY CLERK 04/26/2017 03:23 04:51 PM INDEX NO. 161674/2013 NYSCEF DOC. NO. 109 110 RECEIVED NYSCEF: 04/26/2017 12 of 78
FILED: NEW YORK COUNTY CLERK 04/26/2017 03:23 04:51 PM INDEX NO. 161674/2013 NYSCEF DOC. NO. 109 110 RECEIVED NYSCEF: 04/26/2017 23 of 78
FILED: NEW YORK COUNTY CLERK 04/26/2017 03:23 04:51 PM INDEX NO. 161674/2013 NYSCEF DOC. NO. 109 110 RECEIVED NYSCEF: 04/26/2017 34 of 78
FILED: NEW YORK COUNTY CLERK 04/26/2017 03:23 04:51 PM INDEX NO. 161674/2013 NYSCEF DOC. NO. 109 110 RECEIVED NYSCEF: 04/26/2017 45 of 78
FILED: NEW YORK COUNTY CLERK 04/26/2017 03:23 04:51 PM INDEX NO. 161674/2013 NYSCEF DOC. NO. 109 110 RECEIVED NYSCEF: 04/26/2017 56 of 78
FILED: NEW YORK COUNTY CLERK 04/26/2017 03:23 04:51 PM INDEX NO. 161674/2013 NYSCEF DOC. NO. 109 110 RECEIVED NYSCEF: 04/26/2017 67 of 78
FILED: NEW YORK COUNTY CLERK 04/26/2017 03:23 04:51 PM INDEX NO. 161674/2013 NYSCEF DOC. NO. 109 110 RECEIVED NYSCEF: 04/26/2017 78 of 78
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MICHAEL SCHWARTZBARD, IAS Part 55 Plaintiff, Index No. 161674/2013 -against- MARSHALL S. COGAN, [PROPOSED] AMENDED JUDGMENT Defendant. WHEREAS, plaintiff filed a motion for summary judgment on all causes of action in the First Amended Complaint, and Defendant filed a cross-motion for summary judgment seeking dismissal of the First Amended Complaint in its entirety; and WHEREAS, on April 13, 2017, the Court signed a Decision, Order, and Judgment which was signed by the Clerk of Court and duly entered in the office of the Clerk of Court on April 26, 2017 (the April 26, 2017 Judgment ); and WHEREAS, the Court wishes to revise the April 26, 2017 Judgment and supersede it with this Judgment; and NOW, upon the application of Blank Rome LLP, attorneys for plaintiff, it is ORDERED that plaintiff s motion for summary judgment is granted to the extent that he is entitled to summary judgment on his first cause of action for breach of the October 10, 2008 Modified Agreement, and on his third cause of action for a declaratory judgment; and it is further ADJUDGED that plaintiff, Michael Schwartzbard, an individual residing at 133 Eileen Drive, Cedar Grove, New Jersey, 07009, recover from defendant, Marshall S. Cogan, an individual residing at 245 East 58th Street, Apt. 16C, New York, New York 10022, as follows: 1. $80,000 in damages as of May 10, 2017;
2. $5,687.01 in interest at 9% under Article 50 of the CPLR, as of May 10, 2017; and 3. $1,670 in costs to be taxed by the Clerk of Court; for a total judgment in the amount of $87,357.01, plus post-judgment interest at 9% under Article 50 of the CPLR; and it is further ADJUDGED and DECLARED that defendant is obligated to make the $4,000 monthly payment each month to plaintiff within three days after defendant receives his monthly payment from the Trace Pension Plan; and it is further ORDERED that defendant s cross-motion for summary judgment is denied in its entirety; and it is further ORDERED that the portion of plaintiff s action that seeks the recovery of attorney s fees and costs is severed and the issue of the amount of reasonable attorney s fees and costs plaintiff may recover against the defendant is referred to a Special Referee to hear and report unless the parties agree that the Special Referee may hear and determine, and Plaintiff having already served notice of entry of the April 26, 2017 Judgment on the Special Referee Clerk, together with a completed Information Sheet, service of this Amended Judgment upon the Special Referee Clerk is not required. Dated: New York, New York May, 2017 J.S.C. 2
ORDERED that plaintiff s motion for summary judgment is granted to the extent that he is entitled to summary judgment on his second first cause of action for breach of the October 10, 2008 Modified Agreement, and on his third cause of action for a declaratory judgment; and it is further ADJUDGED that plaintiff, Michael Schwartzbard, an individual residing at 133 Eileen Drive, Cedar Grove, New Jersey, 07009, recover from defendant, Marshall S. Cogan, an individual residing at 245 East 58th Street, Apt. 16C, New York, New York 10022, as follows: 1. $80,000 in damages as of May 10, 2017; 2. $5,687.01 in interest at 9% under Article 50 of the CPLR, as of May 10, 2017; and 3. $1,670 in costs to be taxed by the Clerk of Court; for a total judgment in the amount of $87,357.01, plus post-judgment interest at 9% under Article 50 of the CPLR; and it is further ADJUDGED and DECLARED that defendant is obligated to make the $4,000 monthly payment each month to plaintiff within three days after defendant receives his monthly payment from the Trace Pension Plan; and it is further ORDERED that defendant s cross-motion for summary judgment is denied in its entirety; and it is further ORDERED that the portion of plaintiff s action that seeks the recovery of attorney s fees and costs is severed and the issue of the amount of reasonable attorney s fees and costs plaintiff may recover against the defendant is referred to a Special Referee to hear and report unless the parties agree that the Special Referee may hear and determine. Within thirty (30) days from the
date of this order, counsel for plaintiff shall serve a copy of this order with and Plaintiff having already served notice of entry of the April 26, 2017 Judgment on the Special Referee Clerk, together with a completed Information Sheet, service of this Amended Judgment upon the Special Referee Clerk in the General Clerk s Office (Room 119), who is directed to place this matter on the calendar of the Special Referee s Part for the earliest convenient dateis not required.this constitutes the decision and order of the court.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MICHAEL SCHWARTZBARD, IAS Part 55 Plaintiff, Index No. 161674/2013 -against- MARSHALL S. COGAN, CALCULATION OF ACCRUED INTEREST Defendant. Date damages incurred Date of calculation Amount of damages incurred Simple interest rate per CPLR 5004 Interest accrued 10/10/2015 5/10/2017 $4,000 9% $570.08 11/10/2015 5/10/2017 $4,000 9% $539.51 12/10/2015 5/10/2017 $4,000 9% $509.92 1/10/2016 5/10/2017 $4,000 9% $479.34 2/10/2016 5/10/2017 $4,000 9% $448.77 3/10/2016 5/10/2017 $4,000 9% $420.16 4/10/2016 5/10/2017 $4,000 9% $389.59 5/10/2016 5/10/2017 $4,000 9% $360.00 6/10/2016 5/10/2017 $4,000 9% $329.42
Date damages incurred Date of calculation Amount of damages incurred Simple interest rate per CPLR 5004 Interest accrued 7/10/2016 5/10/2017 $4,000 9% $299.84 8/10/2016 5/10/2017 $4,000 9% $269.26 9/10/2016 5/10/2017 $4,000 9% $238.68 10/10/2016 5/10/2017 $4,000 9% $209.10 11/10/2016 5/10/2017 $4,000 9% $178.52 12/10/2016 5/10/2017 $4,000 9% $148.93 1/10/2017 5/10/2017 $4,000 9% $118.36 2/10/2017 5/10/2017 $4,000 9% $87.78 3/10/2017 5/10/2017 $4,000 9% $60.16 4/10/2017 5/10/2017 $4,000 9% $29.59 5/10/2017 5/10/2017 $4,000 9% $0.00 TOTAL $80,000 $5,687.01
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MICHAEL SCHW ARTZBARD, -against- MARSHALL S. COGAN, Plaintiff, Defendant. IAS Part 55 Index No. 161674/2013 BILL OF COSTS PLEASE TAKE NOTICE that the within is a true copy of the items of costs and disbursements in the above-captioned action, and that the same will be taxed by the Clerk of Court, and the amount inserted in the proposed Judgment. COSTS Costs before Note of Issue (CPLR 8201(1)) $200 Costs after Note of Issue (CPLR 8201(2)) $200 COSTS subtotal $400 DISBURSEMENTS subtotal $1,270 GRAND TOTAL $1,670 DISBURSEMENTS Index Number Fee $210 (CPLR 8018(a)) Request for Judicial Intervention Note of Issue (CPLR 8020(a)) $95 $30 Stenographers' fees (CPLR 8002, 8301) $935
ATTORNEY'S AFFIRMATION HARRIS N. COGAN, an attorney duly admitted to practice law before the courts of the State of New York, pursuant to CPLR 2106 and under penalty of perjury, affirms as follows: 1. I am a member of the law firm of Blank Rome LLP, attorneys for plaintiff Michael Schwartzbard in the above captioned matter. 2. I affirm that this Bill of Costs is true and correct to my knowledge. Dated: New York, New York May 10, 2017 HARRIS N. COGAN 2
I N V O I C E Invoice No. Invoice Date Job No. 130003234 Job Date 12/22/2016 189923 Case No. 12/9/2016 Case Name Schwartzbard v. Cogan Harris N. Cogan, Esq. Blank Rome LLP The Chrysler Building 405 Lexington Avenue New York, NY 10174-0208 Due upon receipt Payment Terms ORIGINAL AND 2 CERTIFIED COPIES OF TRANSCRIPT OF: Marshall Cogan 130.00 Pages Exhibit 39.00 Pages 19.50 Reporter Appearance - Per Session 75.00 ASCII 0.00 Minuscript/Condensed Transcript 0.00 CD 35.00 Handling, Processing & Archiving 35.00 Shipping/Delivery 30.00 741.00 TOTAL DUE >>> AFTER 2/5/2017 PAY $935.50 $1,075.83 Thank you for your business! (-) Payments/Credits: (+) Finance Charges/Debits: (=) New Balance: 0.00 0.00 $935.50 Tax ID: 76-0523238 Phone: 212 885 5000 Fax:212 885 5001 Please detach bottom portion and return with payment. Harris N. Cogan, Esq. Blank Rome LLP The Chrysler Building 405 Lexington Avenue New York, NY 10174-0208 Invoice No. Invoice Date Total Due : : : 130003234 12/22/2016 $935.50 Job No. : 189923 Remit To: U.S. Legal Support P.O. Box 4772-13 Houston, TX 77210-4772 BU ID Case No. Case Name : : : 26-EDRC Schwartzbard v. Cogan