Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed by plaintiff Yes Lender, LLC (hereinafter YLL or plaintiff) on October 13, 2022, under motion sequence four an order pursuant to CPLR 3215 granting YLL a default judgment against High Protection Intelligence LLC and Dieufils Jean for failure to comply with a settlement agreement. This motion was unopposed. Notice of Motion Affirmation in Support Exhibits 1 through 4 DECISION & ORDER BACKGROUND On July 7, 2021, YLL commenced the instant action by filing a summons and verified complaint with the Kings County Clerk’s office. The verified complaint alleges nineteen allegations of fact in support of a three causes of action for breach of contract, breach of a guaranty agreement and for an account stated. The verified complaint alleges the following salient facts. On July 8, 2020, YLL and High Protection Intelligence LLC, (hereinafter HPI) entered into a written contract, whereby HPI sold to YLL its future receipts having a value of $49,700.00 (“receivables”) for the sum of $35,000.00 (“Purchase Price”). The receivables were to be paid to YLL pursuant to a payment schedule set forth in the Contract. HPI agreed that in the event of a default under the Contract, the full uncollected receivables plus all fees due would become immediately due and payable in full to YLL. YLL paid HPI the purchase price. On August 05, 2020, HPI materially breached the terms of the Contract by causing the receivables to be deposited into a separate account not designated in the Contract, blocked the payment due to YLL and/or prevented YLL from collecting the amount due to non-sufficient funds or otherwise failed to pay and/or prevented the plaintiff from collecting the amount due pursuant to the payment schedule in the Contract and thereby defaulted under the terms of the Contract. Based upon the foregoing, the plaintiff alleges that HPI owes YLL a balance in the amount of $51,469.17 and reasonable attorneys’ fees. In addition, YLL alleges that defendant Dieufils Jean (hereinafter Jean) executed a personal guaranty of performance of all the obligations of the HPI set forth in the Contract. YLL alleges that pursuant to the guaranty, Jean is obliged to pay to YLL the amount owed by HPI. Following the defendants’ aforesaid default, YLL presented the defendants with a statement of account setting forth the unpaid balance and demanded payment thereof. YLL alleges that the defendants failed to dispute or object to the statement and that such failure to dispute or object within a reasonable time created an account stated for the amount shown on the invoice. YLL contends that by reason of the foregoing, the defendants are liable to plaintiff. MOTION PAPERS YLL’s motion papers consist of a notice of motion, an affirmation David Fogel Esq., YLL’s counsel (hereinafter Fogel), and four exhibits labeled one through four. All six documents were filed with the NYSCEF system on October 13, 2022, by David Fogel. Exhibit one is a copy of the summons and verified complaint. Exhibit two is a copy of the decision and order of this Court dated October 7, 2021 (hereinafter the October 7TH Order). Exhibit three is denominated as a Withdrawal of Counsel. Exhibit four is denominated as a Settlement Agreement. This October 7th Order decided three motions filed under motion sequence numbers one, two and three. The motion filed under sequence one was the defendants’ motion to dismiss the verified complaint for lack of personal jurisdiction due to improper service of the commencement papers. Sequence two was the plaintiff’s motion pursuant to CPLR 3212 for an order granting summary judgment in its favor against the defendants. Sequence three was the defendants’ motion serving, in effect, as opposition to plaintiff’s motion for summary judgment. The October 7th Order denied the defendants’ motion under sequence one seeking dismissal for lack of personal jurisdiction. The Court found that service of the commencement papers was proper. The Court denied plaintiff’s cross motion for summary judgment pursuant to CPLR 3212(a). The Court found that the motion was premature because the defendants had not yet interposed an answer. The Court directed the defendants to file an answer within thirty days of entry of the October 7th Order. It is noted that the October 7TH Order was not entered by the plaintiff before making the instant motion. Exhibit three is denominated as Withdrawal of Counsel1. The document is affirmed pursuant to CPLR 2106 by Monica Balyasny, Esq., of the law group of JT Law Firm PA and it is dated October 15, 2021. Monica Balyasny states that on October 1, 2021, JT Law Firm P.A. and Monica Balyasny, Esq. entered a Limited Notice of Appearance as counsel for defendants for the purposes of the defendants’ motion to dismiss and in response to the plaintiff’s motion for summary judgment. Monica Balyasny further states that after further consultation, the defendants have agreed to the withdrawal of JT Law Firm P.A. and Monica Balyasny, Esq. as their counsel in this matter. Monica Balyasny then requested that the court remove JT Law Firm P.A. and Monica Balyasny as counsel of record for defendants HPI and Jean. This document contains nothing demonstrating the defendants’ consent to the request. Exhibit four is denominated as a Settlement Agreement. The settlement agreement is signed by Mitchell Levy as authorized agent of the plaintiff. Mitchell Levy’s signature is dated October 4, 2021. The settlement agreement is also signed by Jean individually and on behalf of HPI. Jean’s signature is dated October 20, 2021. This settlement agreement was not ordered by the Court. LAW AND APPLICATION By notice of motion filed on October 13, 2022, YLL has moved for an order pursuant to CPLR 3215 for a default judgment against the defendants based on the defendants’ alleged failure to comply with the settlement agreement. CPLR 3215(a) provides in pertinent part as follows: “[w]hen a defendant has failed to appear, plead, or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him.” A default judgment does not lie on a purported breach of a settlement agreement. Such a breach is neither a failure to appear, plead or proceed to trial of an action reached and called for trial. Nor, at the case at bar, does it constitute a violation of a Court order for which dismissal may be directed for any other neglect to proceed. Accordingly, the motion is denied. The denial is without determining the validity of the settlement agreement. It is noted, however, the attempted Withdrawal of Counsel by the defendants’ attorney of record is ineffective, and the settlement agreement was apparently executed by the defendants without the benefit of counsel. CONCLUSION The motion by plaintiff Yes Lender, LLC for an order pursuant to CPLR 3215 granting it a default judgment against High Protection Intelligence LLC and Dieufils Jean based on their failure to comply with a settlement agreement is denied. The foregoing constitutes the decision and order of the Court. Dated: March 7, 2023
