Desch Fresh Produce Company, LLC v. Empire Fresh Cuts, LLC et al

Filing 51

MEMORANDUM-DECISION AND ORDER: GRANTING the # 34 Motion for Default Judgment. Plaintiff is entitled to recover judgment against defendants for $228,606.85, plus costs, plus interest from 9/1/2009. Signed by Chief Judge Norman A. Mordue on 7/5/2011. (mae)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK gggggggggggggggggggggggggggggggggggggggggggggggggggggggg Desch Fresh Produce Company, LLC, Plaintiff, -v- 5:10-CV-596 (NAM/ATB) Empire Fresh Cuts, LLC, James R. Zappala, and Samuel A. Zappala N Defendants. gggggggggggggggggggggggggggggggggggggggggggggggggggggggg First Choice Produce, Inc., Intervenor Plaintiff -vA Empire Fresh Cuts, LLC, James R. Zappala, and Samuel A. Zappala Defendants. gggggggggggggggggggggggggggggggggggggggggggggggggggggggg APPEARANCES: M Sugarman Law Firm LLP Paul V. Mullin, Esq., of counsel 211 West Jefferson Street Syracuse, New York 13202 Attorney for Plaintiff Goldberg Segalla LLP Molly M. Ryan, Esq., of counsel 5789 Widewaters Parkway Syracuse, New York 13214 and Keaton & Associates, PC James M. Joyce, Esq., of counsel 1278 West Northwest Highway, Suite 903 Palatine, Illinois 60067 Attorneys for Intervenor Plaintiff Empire Fresh Cuts, LLC 8033 State Route 104 Oswego, New York 13126 Defendant James R. Zappala 11404 Shuler Road Cato, New York 13033 Defendant Samuel A. Zappala 8033 State Route 104 Oswego, New York 13126 Defendant N Hon. Norman A. Mordue, Chief U.S. District Judge: MEMORANDUM-DECISION AND ORDER Plaintiff moves (Dkt. No. 34) for default judgment in this action based on the Perishable Agricultural Commodities Act (“PACA”), 7 U.S.C. §§ 499a et seq. The Court has set forth the background of the case in its previous decisions in this matter (Dkt. Nos. 21, 28) and does not A repeat it here. In support of its motion for judgment, plaintiff relies on previously-submitted affidavits from plaintiff’s managing member Bernard Desch setting forth the history of the transactions, the efforts to collect the funds, and the actions of Samuel Zappala and James Zappala as licensed PACA representatives on behalf of defendants. Between July 1, 2009 and August 1, 2009, plaintiff sold and shipped to defendants perishable agricultural commodities in a M series of transactions. On or about the date of each transaction, plaintiff forwarded an invoice setting forth the amount due, containing the appropriate PACA language, and requiring payment within 21 days of receipt of the goods. Defendants have failed to pay the sums due, which total $228,606.85. At no time have defendants disputed the amount due or their default in payment. On November 3, 2010, plaintiff obtained an entry of default from the Clerk of the -2- Northern District of New York (Dkt. No. 29). Plaintiff has adduced competent evidence demonstrating its entitlement to recover $228,606.85 plus costs, plus interest from September 1, 2009. This award of judgment to plaintiff does not dispose of the claim of the intervenor plaintiff. It is therefore ORDERED that plaintiff’s motion (Dkt. No. 34) for default judgment is granted; and it is N further ORDERED that plaintiff recover judgment against defendants for $228,606.85 plus costs, plus interest from September 1, 2009. IT IS SO ORDERED. Date: July 5, 2011 Syracuse, New York A M -3-

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