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)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

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Desch Fresh Produce Company, LLC,
Plaintiff,
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5:10-CV-596 (NAM/ATB)

Empire Fresh Cuts, LLC, James R. Zappala, and
Samuel A. Zappala
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Defendants.
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First Choice Produce, Inc.,
Intervenor Plaintiff
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Empire Fresh Cuts, LLC, James R. Zappala, and
Samuel A. Zappala
Defendants.
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APPEARANCES:

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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
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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
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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
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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

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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
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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

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