Belleza Fruit, Inc. v. Suffolk Banana Co., Inc. et al

Filing 13

ORDER re 11 Letter Request for Written Order to assist Defts in Obtaining Bond. IT IS HEREBY ORDERED that the deft shall post the bond in the amount of $450,000.00 as hereinafter set forth, on or before 5:00 p.m. on the 25th day of June, 201 2, and it is further ORDERED, that the plaintiff may take no actions which are not in the ordinary course of business, and may issue checks in payment of bills incurred in the ordinary course of business including payroll, payroll taxes, insurance, v endors, and it is further ORDERED, that the order granted by this court on the 18th day of June, 2012 is hereby stayed through 5:00 p.m. on the 25th day of June, 2012, and it is further ORDERED, that the bond posted by the deft shall issue to the ord er of the Clerk of the United States District Court for the Eastern District of New York, and shall provide as follows: It shall be a condition of this bond, that upon a termination of the within action, with a judgment in favor of deft, that the iss uer shall be released of any further liability under this bond, and in the event of the entry of a final judgment in favor of the plaintiff against the deft, the issuer hereof shall pay over the sum of $750,000.00 to the Clerk of the United Stat es District Court of the Eastern District of New York, or such lesser amount, as shall be equal to the final judgment entered by this court, and the Clerk of the Court shall hold such funds subject to further direction of this court. Ordered by Judge Sandra J. Feuerstein on 6/21/2012. (Florio, Lisa)

FILED

IN ClllRK'S 0

US DISTRICT COUFRFTICE

EDNY

*

TRIVELLA & FORTE, LLP
Attorneys for Deftndants
1311 Mamaroneck Avenue, Suite 170
White Plains, New York 10605
[phone]

JUN 2 1 2012

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LONG ISLAND OFFICE

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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BELLEZA FRUIT, INC.,
Plaintiff,

Case No.: 12-CV-3033
(SJF)(WDW)

-againstSUFFOLK BANANA CO., INC., LONG ISLAND
BANANA CORP., LONG ISLAND BANANA, and
THOMAS HOEY, JR.,
Defendants.

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ORDER

Upon the application of the Plaintiff by the declaration of Andrew P. Persichetti, dated
June 15,2012, the attorney certification of Laura M. Dilimetin, Esq., dated June 15,2012, and
the Plaintiffs Memorandum of Law dated June 15,2012, seeking preliminary injunctive relief
and a Temporary Restraining Order pursuant to Rule 65(a) of the Federal Rules of Civil
Procedure enforcing a statutory trust pursuant to Section 5(c) of the Perishable Agricultural
Commodities Act, 7 U.S.C. §499e(c) ("PACA") whereupon by Order of this Court, dated June
18, 2012, the Temporary Restraining Order was granted setting the following restrictions: (a)
prohibited the alienation, dissipation, pay over or assignment of any PACA trust assets including
Produce received by the Defendants in all transactions; (b) prohibited the dissipation, alienation,
pay over or assignment of all inventories of food or other products derived from the Produce; (c)
prohibited the alienation, dissipation, pay over or assignment of any receivables or proceeds
from the sale of Produce; (d) restrained the Defendants bank accounts at Wells Fargo Bank

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(account ending in 1688) and Wachovia Bank (account ending in 1662); and (e) restraining the
Defendants accounts receivable, customer lists, any and all bank accounts and banking
institutions that relate to funds belonging to Plainitff and/or real estate assets;
Upon the opposition and cross-motion to dismiss of the Defendants submitted by
Declaration of Thomas Hoey, dated June 20,2012 and Defendants' Memorandum of Law dated
June 20,2012 and filed via ECF on June 20,2012 and said application having been orally argued
before this Court on June 20, 2012 whereby the prior Order granting the Temporary Restraining
Order was modified as follows:
~

IS HEREBY ORDERED that the defendant shall post the bond in the amount of

~as hereinafter set forth, on or before 5:00p.m. on the 25

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day of June, 2012, and it

is further
ORDERED, that the plaintiff may take no actions which are not in the ordinary course of
business, and may issue checks in payment of bills incurred in the ordinary course of business
including payroll, payroll taxes, insurance, vendors, and it is further
ORDERED, that the order granted by this court on the 18th day of June, 2012 is hereby
stayed through 5:00p.m. on the 25 1h day of June, 2012, and it is further
ORDERED, that the bond posted by the defendant shall issue to the order of the Clerk of
the United States District Court for the Eastern District of New York, and shall provide as
follows:
It shall be a condition of this bond, that upon a termination of the
within action, with a judgment in favor of defendant, that the issuer
shall be released of any further liability under this bond, and in the
event of the entry of a final judgment in favor of the plaintiff
against the defendant, the issuer hereof shall pay over the sum of
$750,000.00 to the Clerk of the United States District Court of the
Eastern District of New York, or such lesser amount, as shall be
equal to the final judgment entered by this court, and the Clerk of
the Court shall hold such funds subject to further direction of this
court.

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7007871. I

s/ Sandra J. Feuerstein

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7fT

700787Ll