You are on page 1of 11

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK


BARNES & THORNBURG LLP,

Index No. ---Date Purchased: ---

Plaintiff,

SUMMONS UPON
MOTION FOR SUMMARY
JUDGMENT IN LIEU OF
COMPLAINT

- against
- JACOB A.
FRYDMAN,
Defendants.
-------------------------- ---------------------------------------------- )(
TO THE ABOVE NAMED DEFENDANTS:

YOU ARE HEREBY SUMMONED and required to submit to plaintiff's attorney


your answering papers to this motion within the time provided in the notice of motion
annexed hereto. In case of your failure to submit answering papers by the hearing date
provided in the notice of motion annexed hereto, summary judgment will taken against you
by default for the relief demanded in plaintiff s notice of motion. The basis of venue
designated in New York County is defendant's place of residence.
Dated: New York, New York
June 28, 2010

ROITENBERG LIPMAN RICH, P.C.


By: Harry W. Lipman, Esq.
Robert A. Freilich, Esq.
369 Lexington Avenue, 16th Floor
New York, NY 10017
Telephone: (212) 655-3500
Attorneys for Plaintiff
Barnes & Thornburg LLP

..... ......,.... .
Supreme Court Records Online Library - page 1 of 9

,.

To:

Jacob A. Frydman
One Dag Hammarskjold Plaza, 34th Floor
885 Second Avenue, Suite 3400
New York, New York 10017

-2Supreme Court Records Online Library - page 2 of 9

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK
----------------------------------------------------------------------BARNES & THORNBURG LLP,

)(

Plaintiff,
- against

Index No. ----Date Purchased: ---NOTICE OF MOTION FOR


SUMMARY JUDGMENT
IN LIEU OF COMPLAINT

- JACOB A.
FRYDMAN,
Defendant.
----------------------------------------------------------------------- )(
PLEASE TAKE NOTICE that, upon the Affidavit of Donald R. Lundberg, sworn to
June 22, 2010, and the exhibit annexed thereto, and the Memorandum of Law in Support of
Plaintiffs' Motion for Summary Judgment in Lieu of Complaint, plaintiff, Barnes &
Thornburg LLP ("Plaintiff ') will move this Court in the Motion Support Office Courtroom,
Room 130, at 60 Centre Street, New York, New York, on the 4th day of August, 2010 at 9:30
a.m., or as soon thereafter as counsel can be heard, for an Order pursuant to CPLR 3213
granting Plaintiff summary judgment in lieu of complaint against defendant, Jacob A. Frydman,
in the amount of
$110,623.56, plus appropriate interest thereon, together with costs and disbursements of this
action, and for such other and further relief as the Court deems just and proper, on the ground
that this action is based upon an instrument for the payment of money only and there is no
defense to this action.

Supreme Court Records Online Library - page 3 of 9

PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 3213,


answering papers, if any, are required to be served upon the undersigned counsel at least ten
(10) days before the hearing date of this motion.
Dated: New York, New York
June 28, 2010
ROTTENBERG LIPMAN RICH, P.C.

By:

Harry W. Lipman,
Esq. Robert A.
Freilich, Esq.
369 Lexington Avenue, 16th Floor
New York, NY 10017
Telephone: (212) 661 -3080
Attorneys for Plaintiff,
Barnes & Thornburg LLP
To:

Jacob A. Frydman
One Dag Hammarskjold Plaza, Fl. 34
885 Second Avenue, Suite 3400
New York, New York 10017

2
Supreme Court Records Online Library - page 4 of 9

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK
-----------------------------------------------------------------x
BARNES & THORNBURG LLP,
Plaintiff,
- against -

AFFIDAVIT OF
DONALD R. LUNDBERG
IN SUPPORT OF MOTION
FOR
SUMMARY
JUDGMENT
IN LIEU OF COMPLAINT

JACOB A. FRYDMAN,
Defendant.
--

- -------w----------w-www-w-

STATE OF INDIANA

)
:
ss.: COUNTY OF MARION )
DONALD R. LUNDBERG, being duly sworn, deposes and says:
1.

I am the Deputy General Counsel of plaintiff, Barnes & Thornburg LLP ("B&T"), and an
attorney at law, duly admitted to practice in the State of Indiana. I make this affidavit in
support of B&T' s motion for summary judgment in lieu of complaint, made pursuant to
CPLR 3213, based on my knowledge as a business records custodian and my review of
B&T's relevant records.
Preliminary Statement

2.

B&T makes this motion against defendant, Jacob A. Frydman ("Defendant"), to recover
the sum of $110,623.56, based upon an instrument for the payment of money, to wit, a
promissory note in the face amount of $90,000, executed by Defendant on or about June
23, 2008 in favor of B&T, as more fully described below (the ''Note").

Supreme Court Records Online Library - page 5 of 9

The Parties
3.

B&T is a law firm organized and existing as a limited liability partnership under the laws
of the State of Indiana. B& T has its principal place of business at 11 South Meridian
Street, Indianapolis, Indiana.

4.

Defendant is an individual upon information and belief residing or having a business


address at One Dag Hammarskjold Plaza, Fl. 34, New York, New York, 10017 and/or 885
Second Avenue, Suite 3400, New York, New York, 10017, this latter address being the
address Defendant designated in the Note for delivery of any written notices thereunder.
The Note and Defendant's Default Thereunder
5.

6.

A true copy of the Note is annexed hereto as Exhibit A.

The note was ancillary to a confidential agreement between the parties resolving a fee
dispute.

7.

The Note is an instrument for the payment of money only, within the meaning of
CPLR 3213.

8.

Under the Note, Defendant (as "Maker") promises to pay to B&T (as "Payee") the sum of
$90,000 "in three equal installments of $30,000, due on or before July 31, 2008, August
31, 2008 and September 30, 2008, until the entire principal amount is paid to Payee."

9.

An "Event of Default" under the Note is defined to include any failure by Defendant "to

pay any of the scheduled payments by the date due."


10.

Regarding an Event of Default, the Note provides as follows:

-2-

Supreme Court Records Online Library - page 6 of 9

In the Event of Default in which Maker fails to timely make an


installment payment required by or is otherwise in default of this
Promissory Note, Payee shall be entitled to twelve percent (12%)
interest per annum on the unpaid balance of this Promissory Note
from the date of the first payment not made or the first default,
whichever is earlier.
11.

The Note further provides that "[t]ime is of the essence" and the "Maker hereby waives
demand, presentment for payment, notice of dishonor, protest and notice of protest."

12.

Defendant failed to make any payments due under the Note and was therefore in
default thereunder as of July 31, 2008, the date the first payment was due.

13.

Applying 12% simple interest to the principal amount due under the Note from the date of
the Event of Default, July 31, 2008, to the date of filing this affidavit (June 28, 2010)
yields $110,623.56, calculated as follows: 90,000 + (90,000 x 0.12 I 365 x 697 days).
14.

15.

The total amount due under the Note as of filing is therefore


$110,623.56.

I am not aware of any facts or theory that would give rise to any legal defense for
Defendant in this action.

16.

No prior or similar application for the relief sought herein, or for any other type of
provisional relief, has been made in this or any other related proceeding.

-3-

Supreme Court Records Online Library - page 7 of 9

--

------ -- ----------

Conclusion
17.

For the reasons set forth above, I respectfully request this Court to grant in full B&T' s
request for summary judgment in lieu of complaint and enter an order directing entry of
judgment for B&T against Defendant in the amount of $110,623.56.

STATE OF INDIANA

)
)

COUNTY OF MARION

My Commission Expires:

SS:

- ------

-4-

Supreme Court Records Online Library - page 8 of 9

Index No.

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK
BARNES & THORNBURG LLP,
Plaintiff,
- against -

JACOB A. FRYDMAN,
Defendant.

MOTION FOR SUMMARY


JUDGMENT IN LIEU OF
COMPLAINT

ROTTENBERG LIPMAN RICH,


Attomcys for Plaintiff
Office and Post Office Address,
Telephone 369 LEXINGTON
AVENUE SIXTEENTH FLOOR
NEW YORK, NEW YORK 10017
(212) 661-3080

P.C.