Gorayeb v. RSG Construction Corp.
ORDER granting 24 Plaintiff's Second Motion for Judgment Based on Settlement. For the reasons explained in the attached written Order, Plaintiff's second motion for judgment by confession is GRANTED. By February 19, 2021, Plaintiff shall file a letter indicating 1) whether any further payments have been received from Defendant, and 2) the amount of attorney fees Plaintiff seeks to recover in connection with its second motion for judgment by confession (supported by the attorneys' contemporaneous time entries). Ordered by Judge Kiyo A. Matsumoto on 2/17/2021. (Mayer, Michael)
Case 1:19-cv-05589-KAM-SJB Document 25 Filed 02/17/21 Page 1 of 4 PageID #: 248
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
RSG CONSTRUCTION CORP.,
KIYO A. MATSUMOTO, United States District Judge:
The plaintiff, Michel Gorayeb (“Plaintiff”), initiated
this breach of contract action on October 2, 2019 against RSG
Construction Corporation (“Defendant”).
On July 16, 2020, the
parties filed a stipulation of dismissal after reaching a
settlement, which the court so-ordered.
Stipulation of Dismissal.)
(ECF No. 16,
The stipulation of dismissal
provided that “the court shall retain jurisdiction as provided
in the [parties’] Settlement Agreement.”
The settlement agreement provided that Defendant would
pay Plaintiff a total of $145,000 pursuant to a monthly payment
(ECF No. 18, First Motion for Judgment, Ex. 1,
Settlement Agreement, at 1.)
The settlement agreement further
provided that “[i]n the event that [Defendant] shall default in
payment of any installment due hereunder . . . then
[Plaintiff]’s counsel may file the executed Affidavit of
Confession of Judgment and such papers as are required by the
Case 1:19-cv-05589-KAM-SJB Document 25 Filed 02/17/21 Page 2 of 4 PageID #: 249
Clerk for the entry of judgment . . . without further notice to
[Defendant] or [Defendant]’s counsel, and [Plaintiff] shall
recover judgment against [Defendant] in the amount of
$301,366.00, less any payments made” under the settlement
(Id. at 1-2.)
With the settlement agreement, the
Defendant’s owner, Navjit Singh, executed the affidavit of
confession of judgment, which “confess[ed] judgment and
authorize[d] entry thereof against Defendant for the sum of
Three Hundred One Thousand Three Hundred Sixty-Six Dollars and
Zero Cents ($301,366.00), less any payments made pursuant to the
Settlement Agreement . . . .”
(Id., Ex. A, ¶ 4.)
On January 13, 2021, Plaintiff moved for the entry of
judgment by confession against Defendant, after Defendant failed
to make two payments totaling $27,000 that were due on December
10, 2020 and January 10, 2021, respectively, pursuant to the
terms of the parties’ settlement agreement.
(See First Motion
The court ordered Defendant to respond to the
motion, and on January 19, 2021, Defendant filed a response,
stating that it would “immediately” pay the outstanding amount
owed, “reimburse” Plaintiff’s counsel “for the attorneys fees
attributable” to brining the motion, and noting that “this ought
to be the one and only time defendant should receive relief from
(ECF No. 22, Response to Motion.)
of Defendant’s representations, the parties jointly agreed on a
Case 1:19-cv-05589-KAM-SJB Document 25 Filed 02/17/21 Page 3 of 4 PageID #: 250
revised payment schedule, and Plaintiff agreed to withdraw the
first motion for judgment by confession.
(ECF No. 23, Joint
The court directed that if Defendant were to “default
on its obligations in the future, Plaintiff may immediately refile its motion” for entry of judgment by confession.
Order Jan. 22, 2021.)
On February 12, 2021, Plaintiff filed a second motion
for judgment by confession, advising the court that Defendant
failed to make a payment of $26,000 that was due on February 10,
Defendant has not filed a response to the second motion
for judgment by confession.
New York law provides that “a judgment by confession
may be entered, without an action, either for money due or to
become due, or to secure the plaintiff against a contingent
liability in behalf of the defendant, or both, upon an affidavit
executed by the defendant[.]”
N.Y. C.P.L.R. 3218(a); see Xerox
Corp. v. W. Coast Litho, Inc., 251 F. Supp. 3d 534, 538
(W.D.N.Y. 2017) (“[a] federal court has the power and authority
to enter a judgment pursuant to a confession of judgment as long
as subject-matter jurisdiction exists and the confession of
judgment was voluntarily, knowingly and intelligently made”)
Here, the requirements of New York law authorizing
judgment by confession are met, because Defendant executed an
Case 1:19-cv-05589-KAM-SJB Document 25 Filed 02/17/21 Page 4 of 4 PageID #: 251
affidavit authorizing judgment by confession in a specific
amount, to be entered upon its default.
This court has subject
matter jurisdiction over the settlement, as Plaintiff (a
resident of New Jersey) and Defendant (a corporation with its
principal place of business in Queens Village, New York) are
citizens of different states, and the amount in controversy
Defendant never argued that its affidavit was
not made knowingly and voluntarily; rather, in response to
Plaintiff’s first motion, Defendant conceded that if the court
excused its default, that should be the “one and only time”
Defendant was excused.
Accordingly, Plaintiff’s second motion for judgment by
confession is GRANTED.
By February 19, 2021, Plaintiff shall
file a letter indicating 1) whether any further payments have
been received from Defendant, and 2) the amount of attorney fees
Plaintiff seeks to recover in connection with its second motion
for judgment by confession (supported by the attorneys’
contemporaneous time entries).
Brooklyn, New York
February 17, 2021
Hon. Kiyo A. Matsumoto
United States District Judge
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