FILED: NEW YORK COUNTY CLERK 11/01/2016 06:57 PM INDEX NO. 654956/2016 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 11/01/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JEREMY WIESEN, Index No: 654956/2016 - against - Plaintiff, MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR DEFAULT VERIZON COMMUNICATIONS INC. Defendant. Plaintiff Jeremy Wiesen respectfully submits this Memorandum of Law in Support of Wiesen s Motion for Default Judgment against Defendant Verizon Communications Inc. Wiesen requests that this Court enter a default judgment against Defendant as to liability and authorize damages discovery and an inquest to determine the amount of Plaintiff s damages. I. INTRODUCTION Wiesen s Complaint in this action, filed on September 19, 2016 (the Complaint ), arises from standstill and compensation agreements between Wiesen and non-parties RAM Telecom International, Inc., Russ Matulich, and Brian Mass (collectively, RTI ), pursuant to which Wiesen was to provide critical industry and investment contacts to RTI and RTI was to pay Wiesen a warrant on equity equal to 20% of Matulich s and Mass s equity in RTI following a key financing transaction, among other components of promised compensation. However, Verizon tortiously interfered with Wiesen s contractual rights and facilitated breaches by RTI, refusing to honor Wiesen s agreed-upon compensation. Because Defendant was properly served with the Summons and Complaint in this action (C. Cox Aff. of Service 3-5), and because Defendant has failed to respond to the Complaint, Wiesen is entitled to entry of a Default Judgment against Defendant as to liability, and should be - 1-1 of 7
permitted to take damages discovery in order to prove the amount of such damages at an inquest before the Court, to be scheduled at a later time. II. FACTUAL BACKGROUND For a complete description of the facts relevant to Wiesen s causes of action against Defendant, Wiesen refers the Court to: (1) the October 27, 2016 Affidavit of Merit of Jeremy Wiesen; and (2) Wiesen s September 19, 2016 Complaint in this action. For a description of the commencement of this action, service of process on Defendant, and Defendant s default in this action, Wiesen refers the Court to the Cox Affirmation in Support of Wiesen s Motion for Default. III. ARGUMENT A. Wiesen is entitled to a default judgment as to liability against Defendant on all of the causes of action in Wiesen s Complaint. Based on the Wiesen Affidavit of Merit, the Cox Affirmation establishing Defendants default, and Wiesen s September 19, 2016 Complaint in this action, Wiesen is entitled to an entry of Judgment as to liability. [D]efaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them. Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70-71 (2003). Furthermore, to be entitled to a default judgment, the affidavit or verified complaint need only allege enough facts to enable a court to determine that a viable cause of action exists. Id. As explained below, the Complaint and the Wiesen Affidavit establish the basis for Defendant s liability under the three causes of action that Wiesen asserts herein. Furthermore, the allegations in the Complaint are confirmed by the October 27, 2016 sworn affidavit of merit of Jeremy Wiesen. Therefore, Wiesen is entitled to entry of judgment as to liability. - 2-2 of 7
1. Wiesen is entitled to a default judgment against Defendant on his tortious interference with existing contracts cause of action. Wiesen has valid and enforceable standstill and compensation agreements with non-party RTI relating to Wiesen s work to provide critical industry and investment contacts to RTI in connection with RTI s efforts to obtain equity financing relating to an important submarine cable project. (Complaint, 32-36.) Under the Standstill Agreements, after Wiesen identified a promising contact for RTI, but before any direct interaction between RTI and Wiesen s contact occurred, Wiesen and Verizon would enter into brief standstill agreements for the contact. (Id. 33.) This included Defendant Verizon, whom Wiesen worked tirelessly to connect with RTI. (Id. 39-52.) Under the terms of RTI s and Wiesen s Compensation Agreement, to compensate Wiesen for his success in facilitating a strategic alliance for RTI, without which RTI would not achieve its fundraising goal, RTI agreed and understood that Wiesen would receive: (1) a warrant on equity equal to 20% of Russ Matulich s and Brian Mass s equity in RTI after the financing; (2) a 5-year consulting contract with RTI at $15,000 per month, plus expenses, if such services were desired; and (3) a 15% commission on any contracts for the sale of capacity on the subsea cable that Wiesen brokered. (Id. 35-36.) Shortly following Wiesen s introduction of Verizon to RTI, Verizon knowingly participated in, and facilitated, breaches by RTI of Wiesen s Standstill and Compensation Agreements. (Id. 1, 6, 53-55.) Following Verizon s interference, RTI cut off all communications with Wiesen and refused to honor the Standstill or Compensation Agreements. Despite having full knowledge of Wiesen s agreements with RTI, Verizon dismissed Wiesen s efforts to obtain his contractually agreed compensation as harassment. (Id. 6.) These facts constitute a cause of action for tortious interference with existing contracts. Snyder v. Sony Music Entertainment, Inc., 684 N.Y.S.2d 235, 239 (1st Dept. 2009) ( A claim of - 3-3 of 7
tortious interference with contract requires: (1) the existence of a valid contract between plaintiff and a third party, (2) defendant s knowledge of the contract, (3) defendant s intentional procurement of a breach of the contract without justification, (4) actual breach of the contract and (5) resulting damages. ). Here, Wiesen provided critical services to RTI under the Standstill and Compensation Agreements. After Verizon s deliberate interference, Wiesen received nothing in return. Therefore, Wiesen is entitled to entry of Default Judgment on his First Cause of Action for Tortious Interference with Existing Contracts against Verizon as to liability. Wiesen is also entitled to take damages discovery to aid in proving his damages, followed by an inquest before the Court to determine the amount of such damages. 2. Wiesen is entitled to a default judgment against Defendant on his tortious interference with business relations cause of action. Wiesen is entitled to entry of Default Judgment on his Second Cause of Action for Tortious Interference with Business Relations. Advanced Global Tech. LLC. v. Sirius Satellite Radio, Inc., 836 N.Y.S.2d 807, 809-10 (N.Y. Sup. Ct. 2007) ( The required elements of a cause of action for tortious interference with prospective business relations are as follows: (a) business relations with a third party; (b) the defendant s interference with those business relations; (c) the defendant acting with the sole purpose of harming the plaintiff or using wrongful means; and (d) injury to the business relationship. ). Verizon deliberately and wrongfully, for the sole purpose of harming Wiesen, interfered with his business relationship with RTI. Accordingly, Wiesen is entitled to entry of Default Judgment on his Second Cause of Action for Tortious Interference with Business Relations as to liability. Wiesen is also entitled to take damages discovery to aid in proving his damages, followed by an inquest before the Court to determine the amount of such damages. - 4-4 of 7
3. Wiesen is entitled to a default judgment against Defendant on his tortious interference with economic advantage cause of action. Wiesen is entitled to entry of Default Judgment on his Third Cause of Action for Tortious Interference with Economic Advantage. Snyder, 684 N.Y.S.2d at 299-300 (1st Dept. 2009) ( To establish [a claim for tortious interference with prospective economic advantage], a plaintiff must demonstrate that the defendant s interference with prospective business relations was accomplished by wrongful means or that defendant acted for the sole purpose of harming the plaintiff. ) (cites and quotes omitted). Verizon deliberately and wrongfully, for the sole purpose of harming Wiesen, interfered with Wiesen s prospective economic advantages. Accordingly, Wiesen is entitled to entry of Default Judgment on his Third Cause of Action for Tortious Interference with Economic Advantage as to liability. Wiesen is also entitled to take damages discovery to aid in proving his damages, followed by an inquest before the Court to determine the amount of such damages. B. Wiesen is entitled to disbursements and costs. Wiesen has incurred expenses to prosecute this action thus far. Moreover, as the prevailing party in this action, Wiesen is entitled to statutory costs under CPLR 8201(1). Thus, Wiesen reserves the right to apply to the Court for his disbursements and costs and these should be added to the final judgment on Wiesen s causes of action, following the Court s inquest as to damages. IV. CONCLUSION By failing to respond to the Complaint and defaulting in this action, Defendant has admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them. Woodson, 100 N.Y.2d at 70-71. Defendant thus conceded liability under the three causes of action Wiesen alleges in his Complaint. - 5-5 of 7
WHEREFORE, plaintiff respectfully requests that this Court enter judgment against Defendant as to liability. Plaintiff further respectfully requests that, on a later date to be specified by the Court, an inquest in this matter be held solely concerning the issue of damages, and that before such inquest, plaintiff may take such discovery as is reasonably necessary to prove the amount of such damages at the inquest. - 6-6 of 7
Dated: New York, New York By: November 1, 2016 Matthew C. Heerde mheerde@heerdelaw.com New York Bar No. 4881363 LAW OFFICE OF MATTHEW C. HEERDE 222 Broadway, 19th Floor New York, New York 10038 (347) 460-3588 (347) 535-3588 (Fax) YETTER COLEMAN LLP TO: VERIZON COMMUNICATIONS INC. 140 West Street New York, NY 10007 By: R. Paul Yetter (pro hac vice forthcoming) pyetter@yettercoleman.com Collin J. Cox ccox@yettercoleman.com New York Bar No. 5371497 Chris D. Porter (pro hac vice forthcoming) cporter@yettercoleman.com Richard B. Farrer (pro hac vice forthcoming) rfarrer@yettercoleman.com Wyatt J. Dowling (pro hac vice forthcoming) 909 Fannin, Suite 3600 Houston, Texas 77010 (713) 632-8000 (713) 632-8002 (Fax) Counsel for Plaintiff Jeremy Wiesen - 7-7 of 7