General Electric Capital Corp vs. Frydman and Company - Copy

Defendants' Place of

S & RINALDI, LLP

..

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

GENERAL ELECTRIC CAPITAL CORPORATION,

Plaintiff,

- against -

FRYDMAN AND COMPANY, INC. A/K/AFRYDMAN AND COMPANY,

Index No.: Date Filed:

Plaintiff designates NEW YORK County as the place of trial

Basis of venue:

Business

JAN 18 2005SUMMONS

Defendants.

TO THE ABOVE-NAMED DEFENDANT:

You are hereby summoned to answer the Verified Complaint in this action and to serve a copy of your Answer on the Plaintiffs' Attorney, as listed below, within 20 days after the service of this Summons, exclusive of the date of service (or within 30 days after the service is complete if this Summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint.

Dated: Astoria, New York December 27, 2004

By: Maximiliano Rinaldi Attorneys for PlaintiffGeneral Electric Capital Corporation 30-97 Steinway Street, Suite 203 Astoria, New York 11103(718) 777-8887

Defendant's Address:

Frydman and Company, Inc. a/k/a Frydman and Company 111 Fulton Street, 4lh Floor New York, NY 10038

Supreme Court Records Online Library • page 1 of 8

051

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

GENERAL ELECTRIC CAPITAL CORPORATION, Index No.:

Plaintiff,VERIFIED COMPLAINT

- against ·

O5 100709


Defendant. JAN 18.2005

GENERAL ELECTRIC CAPITAL CORPORATION ("GECC or Plaintiff '), by its attorneys

Nanis & Rinaldi, LLP., for its Complaint, upon knowledge with respect to itself and its own

acts, and upon information and belief as to all other matters, alleges as follows:

THE PARTIES

1. At all times hereinafter mentioned, Plaintiff was, and still is, a corporation

organized and existing under the laws of the State of Delaware with a place of business located at

1010 Thomas Edison Boulevard, S.W. Cedar Rapids, Iowa 52404.

2. At all times hereinafter mentioned, Defendant, Frydman and Company, Inc.

a/k/a Frydman and Company, (°Frydman") was/is a domestic corporation with a place of

business located in New York County, New York .

3. At all times hereinafter mentioned, Frydman was/is a foreign corporation duly

authorized to conduct and conducting business in the State of New York.

4. At all times hereinafter mentioned, Frydman was/is a foreign corporation

doing business in the State of New York.

5. At all times hereinafter mentioned, Frydman was/is a domestic partnership duly

existing under and by virtue of the laws of the State of New York.

Supreme Court Records Online Library - page 2 of 8

6. At all times hereinafter mentioned, Frydman was/is a foreign partnership

duly authorized to conduct and conducting business in the State of New York.

7. At all times hereinafter mentioned, Frydman was/is a foreign partnership doing

business in the State of New York.

8. At all times hereinafter mentioned, Frydman was/is a domestic sole

proprietorship duly existing under and by virtue of the laws of the State of New York.

9. At all times hereinafter mentioned, Frydman was/is a foreign sole proprietorship

duly authorized to conduct and conducting business in the State of New York.

10. At al1 times hereinafter mentioned, Frydman was/is a foreign sole

proprietorship doing business in the State of New York.

11. At all times hereinafter mentioned, Frydman was/is a domestic entity duly

existing under and by virtue of the laws of the State of New York.

12. At all times hereinafter mentioned, Frydman was/is a foreign entity duly

authorized to conduct and conducting business in the State of New York.

13. At all times hereinafter mentioned, Frydman was/is a foreign entity doing

business in the State of New York.

14. At all times hereinafter mentioned, Frydman was/is a domestic limited liability

company existing in and by virtue of the State of New York.

15. At all times hereinafter mentioned, Frydman was/is a foreign limited liability

company authorized to and conducting business in the State of New York.

16. At all times hereinafter mentioned, Frydman was/is a foreign limited

liability company doing business in the State of New York.

THE LEASES

17. On or about September 27, 200l, Frydman, as lessee, executed and delivered a lease

2


agreement to Toshiba America Information Systems, Inc. ,("Toshiba") as Lessor. ("Lease l

"). Lease 1 covers equipment listed in the Lease (the "Equipment''). (Account Schedule No.:

6982094- 001). GECC is the ultimate holder/assignee of Lease 1.

18. Pursuant to the terms of Lease 1,Frydman leased the Equipment at a monthly rate of

$599.00 plus applicable taxes for a term of 63 months.

19. On or about February 12, 2002, Frydman, as lessee, executed and delivered a

lease agreement to Toshiba, as Lessor. ("Lease 2''). Lease 2 covers equipment listed in the

Lease (the "Equipment''). (Account Schedule No.: 7100777-001 ). Lease 2 was modified on or

about February 22, 2002 to add Frydman's address. GECC is also the ultimate

holder/assignee of Lease 2.

20. Pursuant to the terms of Lease 2, Frydman leased the Equipment at a monthly rate of

$790.00 plus applicable taxes for a term of 60 months. Lease 1 and Lease 2 shall

hereafter be referred to as the "Leases".

21. The Leases provide that Frydman will be liable for all legal fees and other

costs and expenses incurred in connection with, or arising or resulting from any event of default

or the exercise of GECC's remedy under the Lease.

22. The Leases provide that upon any event of default, GECC may recover from

Frydman as liquidated damages for loss of bargain and not as a penalty the present value of

(i) any and all amounts which may be due and payable by Frydman to GECC under the

Leases, plus; (ii) all rent payments remaining through the end of the lease term, plus; (iii) the

Purchase Option amount, if stated, or if no fixed Purchase Option amount is given, GECC's

reasonable estimate of the fair market value of the Equipment as of the end of the lease term,

all discounted at the higher of 6% or the lowest rate allowed by law.

23. The Leases provide that GECC may charge Frydman a late charge of equal to

the higher of 10% of any late payment or $22.00, but no more than the highest legal

rate.

3


24. The Leases provide that interest will accrue at the lower of 18 % per annum or

the highest legal rate from the date due until paid.

DEFENDANT'S DEFAULTS

25. Frydman defaulted on its obligations pursuant to the terms of the Leases

by, inter alia, failing to make payments commencing on June 24, 2004 through date

pursuant to Lease l and June 18, 2004 pursuant to Lease 2.

26. The total amount due to GECC pursuant to the Leases is $51,233.16

($21,787.69 pursuant to Lease 1 and $29,445.47 pursuant to Lease 2) plus interest at the default

rate, late charges, attorneys' fees incurred and other collection expenses (the "Debt").

27. GECC demanded payment of the Debt from Frydman.

28. Frydman failed to satisfy the Debt despite demand.

29. Under the Leases, Frydman has returned the Equipment to GECC.

FIRST CAUSE OF ACTION AGAINST FRYDMAN

30. GECC repeats the allegations in paragraphs 1 through 29.

31. Frydman has failed to pay GECC the amounts owing pursuant to the Leases

despite demand.

32. Pursuant to the Leases, Frydman made available to GECC the Equipment and

GECC repossessed the Equipment. Pursuant to the Leases, Frydman is obligated to pay to

GECC the deficiency balance.

33. Accordingly, Frydman is liable to GECC for and GECC has been damaged in

the amount of $51,233.16 plus interest at the default rate, late charges, co11ection expenses,

including attorney's fees and costs, pursuant to the Lease less any amounts recovered by

GECC in the sale of

4


the Equipment.

SECOND CAUSE OF ACTION AGAINST FRYDMAN

34. GECC repeats the allegations in paragraphs 1 through 33.

35. Pursuant to the terms of the Leases, Frydman has agreed to pay all of

GECC's expenses, including attorneys' fees and costs, incurred in enforcing and protecting

its rights under the Lease.

36. Therefore, Frydman is liable to GECC for collection expenses, including

its reasonable attorney's fees and costs in an amount which cannot be determined now, but is

estimated to be not less than $6,000.00.

WHEREFORE, GECC demands judgment against the Defendant as follows:

(a) on its first cause of action against Frydman, in the amount of$51,233.16 plus outstanding interest at the default rate, late charges and collection expenses, including attorney's fees and costs, less any amounts recovered by GECC in the sale of the Equipment.

(b) on its second cause of action against Frydman for collection expenses, including attorneys' fees and costs;

(c) such other and further relief as the Court deems appropriate.

Dated: Astoria, New York December 27, 2004

Attorneys for PlaintiffGeneral Electric Capital Corporation 30-97 Steinway Street, Suite 203 Astoria, New York 11103(718) 777-8887

5


l_Z/)7 /2004 14:211 FAI 718 777 84112 NANIS & RINALDI .. GE EHAIL

' Ill008.

VERIFICATION

STATE OF IOWA )) SS.:

COUNTY OF LINN )

DEBB WHITE. being duly sworn deposes and says:

I am a Litigation Specialist employed by General Electric Capital Corporation

("GECC”), the Plaintiff' in the within action; I have read the annexed Verified Complaint, know

the contents thereof and the same are true to my knowledge, except those matters therein which

are stated to be alleged on information and belief, and as to those matters I believe them. to be

true. The basis for the allegations made upon information and belief is my review of documents

maintained by GECC in the ordinary course of their business.

DEBB WHITE

Ii


SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK--------············-----------------···········---------- ···················XGENERAL ELECTRIC CAPITAL CORPORATION, Index No.:

Plaintiff,

- against -

FRYDMAN AND COMPANY, INC. A/KIAFRYDMAN AND COMPANY,

Defendant.

·---------------------- ·-········ --------x

SUMMONS AND VERIFIBD COMPLAINT

NANIS & RINALDI, LLP

By: Maximiliano RinaldiAttorneys for Plaintiff

GENERAL ELECTRIC CAPITAL CORPORATION30-97 Steinway Street, Suite 203 Astoria, New York 11103

(718) 777-8887


SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTYLESLIE S.LOWENSTEIN

PRESENT: SPECIAL REFEREE · PART 82R.,, L i

Index Number : 100709/2005

GENERAL ELECTRIC CAPITAL INDEX NO.

vs

FRYDMAN AND COMPANY

Sequence Number :002

HEAR AND REPORT

MOTION DATE

MOTION SEQ, NO.

MOTION CAL. NO.

Imotion to/for ------

PAPERS NUMBERED

Notice of Motion/ Order to Show Cause - Affidavits, Exhibits ...

Answering Affidavits - Exhibits -----------

Replylng Affidavits ---------------

Cross-Motion: Yes No

Upon the foregoing papers, It Is ordered that this motion

Dated: AUG 8, 2008

LESLIE S. LOWENSTEIN

SPECIAL REFEREE

Check one: [ ] FINAL DISPOSITION NON-FINAL DISPOSITION

Check if appropriate: [l DO NOT POST REFERENCE

SUPREME COURT OF THE STATE OF NEW YORUPIREME COURT OF THE STATE OF NEW 'IORKCOUNTY OF NEW YORK 71 THOMAS STREET-------------------- ·---------------------------- ·-----------------x NEW YORK, NY 10013-3821General Electric Capital Corporation, ·

Plaintiff,

-against-INDEX NO. 100709/05

Fryd man and Company, Inc., a/k/a Frydman and Company,

Defendant.REFEREE'S REPORT &RECOMMENDATIONS

------------------------------ ------------------ ------------------- xTO THE SUPREME COURT NEW YORK COUNTY: A PART 17

LESLIE S.LOWENSTEINAPPEARANCES:

For Plai ntiff:Nanis & Rinaldi, LLP by, Maximiliano Rinaldi, Esq. 30-97 Steinway Street Astoria, NY 11103

For Defendant:Wrobel & Schatz LLP by, Steven I. Fox, Esq.l 040 Avenue of the Americas New York, NY 10018

SPECIAL REFEREE

By decision and order of Justice Emily Jane Goodman dated January 13, 2006 and filed with the

Office of the Special Referee on January 20, 2006 the issue of calculating the sums due plaintiff from

defendant with respect to the first and second causes of action asserted in the plaintiffs complaint was;

referred to a Special Referee to hear and report with recommendations.

The parties to this proceeding appeared before the undersigned for hearing on June 29, 2006.

The parties were represented as denominated above throughout all proceedings. The hearing was

commenced and completed on June 29, 2006.

The complete transcription of the proceeding accompanies this report. The parties were afforded the

opportunity to submit by August 4 .2006 post hearing matter in the form of a memorandum of law.

Post hearing mailer was timely received from both parties. The foregoing matter is likewise filed

together with this report as are: the documents (exhibits) that were admitted into evidence at the

hearing held before the undersigned.

l take judicial notice (CPLR 440 1) of the file of the County Clerk wh i ch contains papers relative to

this ac11on.

FACTS

The facts in the instant proceeding are as follows.

This is an action commenced in 2005 wherein the plaintiff seeks a recovery from defendant for sums due

and owing relative to two equipment leases entered into by the defendant with non party Toshiba America

Information Systems, Inc (hereinafter Toshiba). The defendant leased two photocopiers under separate leasing

agreements with Toshiba. Toshiba assigned the leasing agreements to the plaintiff herein. Defendant defaulted

upon the leasing agreements. Plaintiff thereafter commenced the instant action to effect collection of the sums

due and owing upon the leasing agreements.

The court as per its decision and order of January 13, 2006 granted summary judgment in favor of the

plaintiff upon the first two causes of action of its complaint. Plaintiff’s first cause of action seeks a recovery

from the defendant for sums due under the two leasing agreements. Plaintiff’s second cause of action seeks a

recovery of counsel fees and costs in the instant action.

The court as per ii ts decision and order of January 13, 2006 directed that the mailer of calculati ng

the plain tiff s recovery of i its damages and counsel fees be referred to a Special Referee to hear and

report with recommendations.

The matter was heard and is reported upon as indicated below.

2

HEARING

At the hearing the plaintiff called Ms. Barbara Bishop as a witness.

The witness offered initial testimony wherein she set forth that she is an account manager for

the plaintiff. Two leasing agreements were introduced into evidence. The witness described the two

leasing agreements at issue in this action. The witness testified that one of the leasing agreements

involved in this action relates to a Toshiba 5570 copier. The leasing agreement for this equipment

called for 63 monthly payments at a rate of $599 per month. The second leasing agreement related

to a Savin 413 copier. This leasing agreement called for 60 monthly payments at a rate of $790 per

month. The terms of the leasing agreements were described by the witness as being identical with

the exception of the length of the lease and the monthly payments.

ln addition to offering testimony as to the general terms of the leases the witness testified as

to the specific lease terms as same deal with defaults that may occur in these leases. The witness

then described various remedies that the plaintiff was entitled to effect with respect to the leasing

agreements including the entitlement by the plaintiff to repossess the leased equipment and effect

the sale thereof.

The witness then testified that the defendant had defaulted upon the leasing agreement relative

to the Toshiba 5570 copier on June 24, 2004 and t hat the defendant had defaulted upon the lease

relative to the Savin 413 copier on June 18, 2004.

Further testimony was adduced of the witness which set forth that the Toshiba 5570 copier

was recovered by the plaintiff from the defendant in September of 2004 . The witness testified

that with respect to this equipment under the terms of the leasing agreement there remained due

and owing under the terms of the leasing agreement the sum of $21,787.69. The witness then set

forth that the defendant was given a $200 credit for the sale of the copier which reduced the

defendant 's arrears to $21,587.69. Interest at the allowable contractual default rate of 18% for the

default period running from June 24,

3

2004 through June 30, 2006 resulted in additional arrears of $7,836.33. The witness concluded

that the total arrears due and owing by the defendant to the plaintiff under the agreement relative

to the Toshiba 5570 copier through June 30, 2006 was $29, 424.02.

The witness continued her testimony with respect to the Savin 413 copier setting forth that as

the resul t of the defendant's default under the leasing agreement relative to this equipment

arrears totaling in the sum of $29,445.47 had accrued. The defendant was given a credit of $800

for the sale of the equipment which reduced the defendant's arrears to $28,645.47. Interest for the

period of the default ranging from June 18, 2004 through June 30, 2006 at the allowable

contractual default rate of 18% resulted in additional arrears of $t 0,484.24 . The witness

concluded that the total arrears due and owing by the defendant to the plaintiff through June 30,

2006 under the agreement relative to the Savin 413 copier was $39,129.71.

The sum and substance of the testimony of this witness was that the total arrears due and

owing by the defendant to the plaintiff under the terms of the two equipment leases relative to the

above described photocopying machines through June 30, 2006 was $68,553.73.

Thereafter the witness was cross examined by the defendant.

Testimony was adduced from the witness setting forth that the low resale price for the

leased equipment at issue in this action was routine and primarily due to rapidly changing

technology which makes a photocopier obsolete over a short period of time.

In the context of the cross examination, counsel for the defendant applied for the production

of certain documentary matter and to adjourn the instant reference. The applications were denied

upon the record.

A brief redirect examination took place following the completion of cross examination wherein

the witness set forth that under the terms of the leasing agreements the plaintiff was under no

obligation to

4

sell the subject equipment and that same was discretionary .

Upon completion of the redirect examination the testimony of the witness was concluded.

Thereafter Maximiliano Rinaldi, Esq was called as a witness for the plaintiff.

The witness offered narrative direct testimony with respect to the second cause of action for

the recovery of counsel fees and costs upon which the court had granted the plaintiff summary

judgment.

The witness set forth the nature of his fee arrangement with the plaintiff which included a flat

rate of $2,500 relative to collection efforts which become contested. The wit ness testified that

once a trial commences the plaintiff agreed to pay his firm an hourly rate. The witness stated that

he has been paid

$2,500 by the plaintiff to date.

The witness further stated that he was seeking an additional recovery of counsel fees for 6.5

hours at the rate of S162 per hour for additional services which had not yet been billed to the

plaintiff.

The defendant set forth upon the record that the sum sought for recovery as and for counsel

fees and costs in this matter was not an unreasonable sum and waived cross examination 1 •

Upon completion of the testimony of this witness the instant proceeding was concluded.

FINDINGS OF FACT/CONCLUSIONS OF LAW

The undersigned having considered the proof, testimony and evidence adduced at the hearing

as well as the post hearing submissions of the parties herewith makes the following findings

based upon the principles of law set forth below.

With respect to the plaintiff s first cause of action the undersigned has reviewed the proof,

testimony and evidence adduced i n the context of the testimony offered by plaintiff’s witness

Ms. Barbara Bishop. I find the testimony of this witness to be credible and same was furthermore

based upon credible evidence admitted at the hearing. The witness appropriately attested to the

damages incurred by the

plaintiff under the terms of the two equipment leasing agreements at issue and set forth the

defendant's liability there under. ln sum the witness sufficiently established the accuracy of the

plaintiff’s contentions and computations with respect to defendant's defaults under the two

equipment leasing agreements which arc the subject of this action and the undersigned's

reference.

As such I find that there is due and owing by the defendant to the plaintiff with respect to the

equipment leasing agreement relative to the Toshiba 5570 photocopier the sum of $29,424.02. I

further find that with respect to the equipment leasing agreement relative to the Savin 413

photocopier there is due and owing the sum of $39,129.7 1. The sum total due and owing by the

defendant to the plaintiff under the terms of the two equipment leasing agreements through June

30, 2006 is $68,553.73

With respect to the recovery of attorneys fees and costs as sought by the plaintiff in its second

cause of action, the undersigned has considered the circumstances of this matter to detem1inc the

extent of the recovery of counsel fees and costs by plaintiff.

With regard to the recovery of sums relative to the legal services provided on behalf of the

plaintiff, it has been held as a matter of law that an award of counsel fees must be supported by

proof of billings and services rendered, [Cwiklinski v Cwiklinski, 115 AD2d 951 (4th Dept. l

985)]. TI1e courts have set forth the guidelines for determining appropriate counsel fees.

In determining the propriety and reasonableness of an attorney's claim for services, the court should

consider the time spent and the difficulties involved in the matter for which the services were rendered,

the nature of the services, the amount involved, the professional standing of the counsel, and the results

obtained, [Matter of Karp, 145 AD2d 20R ( I '1 Dept. 1989)].

ln the matter at hand l find upon consideration of the testimony, proof, evidence and the

memoranda submitted herewith that defendant has set forth on the record that to the extent that

plaintiff might be entitled to the recovery of a counsel fee, defendant had no objection to

plaintiff’s recovery of a

6

counsel fee summing in the amount of a base fee of $2.500 plus an additional amount of 6.5

hours for legal services rendered at the rate of$162 per hour. The sum total due and owing as and

for counsel fees and costs is therefore determined by the undersigned to be $3,553.00.

RECOMMENDATIONS

The undersigned having computed above the sums due and owing under the first and second

causes of action in the plaintiff s complaint herewith make the following recommendations.

With respect to the plaintiff’s first cause of action I recommend that upon the issuance of an

order of the court confirming this report, plaintiff should be granted a recovery in the sum of

$68,553.73 upon its first cause of action with additional interest to accrue thereon at the rate of

18% until either said sum is satisfied or until judgment is entered by the plaintiff.

With respect to the plaintiff s second cause of action the undersigned recommends that

upon confirmation of this report the court direct the defendant to pay the plaintiff counsel fees in

the sum of

$3,553.00 for all legal services rendered by plai ntiff’s counsel on behalf of plaintiff.

I further recommend that defendant be directed by the court to satisfy the sums due and

owing upon the two equipment leases and for counsel fees within thirty days after service upon

the defendant of a copy of the court's order together with notice of entry.

Tn the event that the defendant fails to timely pay the sums due and owing upon the two

equipment leases and counsel fees as awarded herein, plaintiff should be permitted by the court

to enter a money judgment in its favor against the defendant for like sums together with costs,

interest and disbursements

7

Leslie S. Lowenstein

all without further court order (CPLR §2222).

This constitutes the report and recommendations of the Special Referee .

Respectfully submitted,

AUG 82008

Dated: - ----

SPECIAL REFEREE,•

• ,u,14 ; . ,, ...·....

SUPREME COURT OF THE STATE OF NEW YORK – NEW YORK COUNTY

PRESENT EMILY JANE GOODMAN PART 17

Index Number : 100709/2005

GENERAL ELECTRIC CAPITAL INDEX NO.

vs

FRYDMAN AND COMPANY

Sequence Number : 003

CONFIRM/EJECT REFEREE

REPORT

MOTION DATE

MOTION seq. NO.

MOTION CAL. NO.

The following papers. numbered 1 to were read on this motion to/for------

PAPERS NUMBERED

Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ...

Answering Affidavits - Exhibits -------Replying Affidavits ----- - - '- - - - - - - - -

Cross-Motion: O Yes No

Upon the foregoing papers. It Is ordered that this motion to confirm Referee’s Report date 8/6/06 is resolved per so

ordered stipulation of settlement, dated 4/13/07 (copy attached)

Dated: 4/20/02

EMILY JANE GOODMAN.Check one: FINAL DISPOSITION O NON-FINAL DISPOSITION

Check if appropriate: 0 DO NOT POST

I

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WROBEL & 50-iATZ LLPNANIS 6. RINALDI

PAGE 02/04

fl!00%

SUPREME COURT OF 11IE STATE Of NBW YORKCOUNTY OF NEW YORK

GENERAL ELECTRIC CAPITAL CORPORATION. index No.: l00709/0S

Plaintiff',

SO ORDERED- against - STIPULATION


Defendant.

<

UPON reading and filing of the report of Special Referee Leslie S. Lowenstein, Esq

(the “Referee”), dated August 8, 2006, un entered August 211 20061 the affirmation of Maximiliano

Rinaldi dated August 29, 2006, the notice of motion dated August 29, 2006, the

affirmation in opposition of. Steven I.Fox, dated September 1) ,2006, the reply affirmation of

Maximiliano Rinaldi, dated October 2, ·2006, and all of the exhibits annexed thereto, and

upon the pleadings and proceedings had herein and the motion having been submitted on

October 5, 2006; Plaintiff's General Electric Capital Corporation's ("GECC" or "Plaintiff'')

Motion to Confirm the: Referee’s Report is resolved as follows:

1 . Plaintiff’s motion is granted in its entirety and the Clerk of the Court is directed

to enter judgment against the Defendant Frydman and Company, Inc. a/kla Frydman and

Company ("Frydman” or “Defendant”) in the amount of $68,553.73 plus interest at the default

rate of interest of 18% from July l , 2006 until the date judgment is entered, plus attorney's

fees in the amount of

$3,553.00 and costs to be determined by the Clerk of the Court upon review of the bill of

costs from Plaintiff (the "Judgment"). GECC may enter the Judgment in any County in the

State of New York. However, GECC and the Clerk of the Court are stayed from entering the

Judgment contingent on

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WROBEL & SCHATZ LLPNANIS & RINALDI

PAGE 03/04

iOD3

Defendant's satisfactory compliance and completion of all of the following conditions:Defendant shall pay to GBCC the amount $30,000.00 (the ''Settlement Amount") as follows:

A. Payment of $10,000.00 to be received GECC by on or before April 16, 2007;B. Payment of $I0,000.00 to be received GECC by on or before April 30,2007;

C. Payment of $10,000.00 to be received GECC by on or before May 25, 2007;

The payments made pursuant to this Stipulation shall be payable to General Electric Capital Corporation a n d shall be delivered to GECC. 1010 Thomas Edison Blvd. S.W., Cedar Rapids,

LA 52404, Attn.: Ms. Candace Boyer. PAYMENTS MUST BE RECEIVED BY GECC BY ON OR

BEFORE THE DUE DATES. TIME IS OF THE ESSENCE WITR RESPECT TO THEPAYMENTS. If Defendant shall comply with all the terms of this Stipulation and make

all of the payments when due and the payments clear, GECC shall deliver to Defendant’s

counsel a stipulation of discontinuance and Defendant and Plaintiff shall be deemed to

have also executed and exchanged mutual limited releases, limited to the actions and

claims that were raised or could have been raised between the parties to this Stipulation

pertaining to the Leases as defined in the Complaint. Defendant’s counsel shall file the

discontinuance within five (5) business days and provide a copy of the filed discontinuance

to Plaintiff’s counsel upon receipt of same.

2. Defendant shall be in default pursuant to this Stipulation, or any agreement. document

or instrument entered into in connection herewith, for failure to make the above payments when

due and failure to cure upon five (5) business days written notice to Defendant's counsel via

facsimile at the facsimile number set forth below. Upon Defendant's default and its failure to

timely cure the default pursuant to the notice, the Settlement Amount shall be deemed vacated and

of no force; and effect and the Clerk of the Cout1 shall on enter the full amount of the

Judgment, on notice to Defendant's counsel. via facsimile no less than 24 hours prior to entry

of Judgment, less credit for

2

Esq.

04/ 20/ 2007 11:47 212-42,1.-817

WROBEL & 504ATZ LLP

NANIS & Rif\Al.Dl

PAGE 04/04

any payments made on account of this Stipulation plu., the amount of legal fees incurred (not

to exceed $1,000.00) as a result of the enforcement of this Stipulation. An affidavit from

GECC and/or an affirmation of its counsel shall be sufficient to establish proof requited to

enter judgment, including proof of the remaining amount due, Defendant's default and failure

to timely cure the default. Upon presentment of the above, the Clerk shall enter the

Judgment forthwith.

J. This Stipulation may be executed in one or more counterparts, each of which shall be

deemed an original, but all of which together shall constitute one and the same agreement. A

facsimile signature shall be deemed an original for the purposes of this Stipulation.

4. Counsel for the parties have actual authority to bind their clients with respect to

the terms of this Stipulation.

IN WITNESS WHEREOF, counsel for the parties hereto have executed this Stipulation as

of the date and year set forth opposite their names.

Dated: Astoria, New York April 13, 2007

NANJS & RINALDI, LLPAttorneys for Plaintiff

By: _,_ _, _Maximiliano Rinal

di, Esq.30-97 Steinway Street, Suite 203Astoria. New York 11103(718) 777-8887(718) 777-8452 (facsimile)

WROBEL & SCHATZ LLPAttorneys fi

By:---7"-'--..,.q.--,,.c.+- "-""'---Steven Fox,

1040 Avenue of the Americas, 11111 Fl.

New York, Now York 10018(212) 421-8100(212) 421-8170 (facsimile

Documents

General Electric Capital Corp vs. Frydman and Company - Copy