Fres Co, LLC et al v. Gramercy Produce Inc. et al
| Fres Co, LLC and D'Arrigo Bros. Co. of New York, Inc. |
| Gramercy Produce Inc., Anthony J. Vivacqua, Sr., Anthony J. Vivacqua, Jr. and Salvatore V. Vivacqua |
| 1:2022cv00333 |
| January 13, 2022 |
| US District Court for the Southern District of New York |
| Lewis J Liman |
| Agriculture Acts |
| 07 U.S.C. § 499 Agricultural Commodities Act |
| None |
Docket Report
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Filing 32
ORDER denying as moot #30 Letter Motion for Extension of Time to File Answer addressed to Judge Lewis J. Liman from Jonathan Bodner dated January 31, 2022.; denying as moot #7 MOTION for Preliminary Injunction.; denying as moot #5 Motion for TRO. (HEREBY ORDERED by Judge Lewis J. Liman)(Text Only Order) (mf)
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| Transmission to Finance Unit (Cashiers). Transmitted re: #31 Stipulation and Order, to the Finance Unit (Cashiers) for case processing. (va) |
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Filing 31
STIPULATION AND ORDER: Plaintiffs Fres Co, LLC ("Fres Co") and D'Arrigo Bros. Co. of New York, Inc. ("D'Arrigo") (Fres Co and D'Arrigo collectively, "Plaintiffs") and defendants Gramercy Produce Inc. ("Gramercy"), Anthony J. Vivacqua, Sr. ("AJV, Sr."), Anthony J. Vivacqua, Jr ("AJV, Jr.") and Salvatore V. Vivacqua ("SVV")(Gramercy, AJV, Sr., AJV, Jr. and SVV collectively, "Defendants") (Plaintiffs and Defendants collectively, the "Parties"), agree and stipulate to the following: 1. Fres Co alleges that it is a qualified trust creditor and beneficiary under the provisions of the Perishable Agricultural Commodities Act, 7 U.S.C. 499a, et seq. ("PACA"), of Defendants, jointly and severally, for a debt in the principal amount of $90,445.92, plus accrued interest at the rate of 18% per annum through February 4, 2022 in the amount of $24,978.52 and reasonable attorneys' fees and legal expenses incurred by Fres Co in the amount of $4,605.67 for a total debt under PACA in the amount of $120,030.11 (the "Fres Co Debt"). 2. D'Arrigo alleges that it is a qualified trust creditor and beneficiary under the provisions of PACA of Defendants, jointly and severally, for a debt in the principal amount of $158,578.46, plus accrued interest at the rate of 18% per annum through February 4, 2022 in the amount of $62, 854.99 and reasonable attorneys' fees and legal expenses incurred by D'Arrigo in the amount of $8,075.11 for a total debt under PACA in the amount of $229,508.56 (the "D'Arrigo Debt") (the Fres Co Debt and the D'Arrigo Debt collectively, the "Debts"). 5. For full and final satisfaction of the Fres Co Debt, subject to the terms and conditions of this Stipulation and Order, Defendants shall pay to Fres Co the sum of $95,051.59 (the "Fres Co Settlement Amount") as follows: weekly installments of $1,827.92 each commencing on February 3, 2022 and continuing each successive Thursday until the Fres Co Settlement Amount is paid in full. 6. For full and final satisfaction of the D'Arrigo Debt, subject to the terms and conditions of this Stipulation and Order, Defendants shall pay to D'Arrigo the sum of $166,653.57 (the "D'Arrigo Settlement Amount") as follows: weekly installments of $3,204.88 each commencing on February 3, 2022 and continuing each successive Thursday until the D'Arrigo Settlement Amount is paid in full. 17. The Court's Order to Show Cause dated January 13, 2022 [Docket No. 15] (the "OSC") and all injunctive and related relief therein is and shall be deemed vacated in its entirety, and the OSC hearing scheduled for February 7, 2022 shall be deemed cancelled, upon the Court So Ordering and filing this Stipulation and Order on the docket. (As further set forth herein.) SO ORDERED. (Signed by Judge Lewis J. Liman on 1/31/2022) (va) Modified on 2/14/2022 (va).
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| Filing 30 LETTER MOTION for Extension of Time to File Answer addressed to Judge Lewis J. Liman from Jonathan Bodner dated January 31, 2022. Document filed by Gramercy Produce Inc., Anthony J. Vivacqua, Sr, Anthony J. Vivacqua, Jr, Salvatore V. Vivacqua. (Attachments: #1 Stipulation Extending Time).(Bodner, Jonathan) |
| Filing 29 PROPOSED STIPULATION AND ORDER. Document filed by D'Arrigo Bros. Co. of New York, Inc., Fres Co, LLC..(Brown, Gregory) |
| Filing 28 CERTIFICATE OF SERVICE of defendants' opposition to plaintiffs' motion for a preliminary injunction [Docket Nos. 24 and 27] served on plaintiffs' counsel on January 24, 2022. Document filed by Gramercy Produce Inc., Anthony J. Vivacqua, Sr, Anthony J. Vivacqua, Jr, Salvatore V. Vivacqua..(Bodner, Jonathan) |
| Filing 27 DECLARATION of Anthony J. Vivacqua, Sr. in Opposition re: #7 MOTION for Preliminary Injunction .. Document filed by Gramercy Produce Inc., Anthony J. Vivacqua, Sr, Anthony J. Vivacqua, Jr, Salvatore V. Vivacqua. (Attachments: #1 Exhibit A - Fres Co Invoice and Payment History, #2 Exhibit B-1- D'Arrigo Bros Invoice and Payment History, #3 Exhibit B-2 - D'Arrigo Bros Invoice and Payment History Continued).(Bodner, Jonathan) |
| Filing 26 DECLARATION of Anthony J. Vivacqua, Sr. in Opposition re: #7 MOTION for Preliminary Injunction .. Document filed by Gramercy Produce Inc., Anthony J. Vivacqua, Sr, Anthony J. Vivacqua, Jr, Salvatore V. Vivacqua..(Bodner, Jonathan) |
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Filing 25
ORDER granting #23 Letter Motion to Adjourn Conference. The motion to adjourn is GRANTED. The previously scheduled hearing is rescheduled to February 7, 2022 at 3:00 p.m. The temporary restraining order currently in effect is extended February 7, 2022. SO ORDERED. Telephone Conference set for 2/7/2022 at 3:00 PM before Judge Lewis J. Liman. (Signed by Judge Lewis J. Liman on 1/24/2022) (vfr)
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| Filing 24 MEMORANDUM OF LAW in Opposition re: #7 MOTION for Preliminary Injunction . . Document filed by Gramercy Produce Inc., Anthony J. Vivacqua, Sr, Anthony J. Vivacqua, Jr, Salvatore V. Vivacqua..(Bodner, Jonathan) |
| Filing 23 LETTER MOTION to Adjourn Conference addressed to Judge Lewis J. Liman from Jonathan Bodner dated January 21, 2022. Document filed by Gramercy Produce Inc., Anthony J. Vivacqua, Sr, Anthony J. Vivacqua, Jr, Salvatore V. Vivacqua. Return Date set for 1/26/2022 at 03:00 PM..(Bodner, Jonathan) |
| Filing 22 NOTICE OF APPEARANCE by Jonathan Scott Bodner on behalf of Gramercy Produce Inc., Anthony J. Vivacqua, Sr, Anthony J. Vivacqua, Jr, Salvatore V. Vivacqua..(Bodner, Jonathan) |
| Filing 21 CERTIFICATE OF SERVICE of Summons and Complaint,. Gramercy Produce Inc. served on 1/14/2022, answer due 2/4/2022; Anthony J. Vivacqua, Sr served on 1/14/2022, answer due 2/4/2022; Anthony J. Vivacqua, Jr served on 1/14/2022, answer due 2/4/2022; Salvatore V. Vivacqua served on 1/14/2022, answer due 2/4/2022. Service was made by Federal Express. Document filed by Fres Co, LLC; D'Arrigo Bros. Co. of New York, Inc...(Brown, Gregory) |
| Filing 20 ELECTRONIC SUMMONS ISSUED as to Salvatore V. Vivacqua. (vf) |
| Filing 19 ELECTRONIC SUMMONS ISSUED as to Anthony J. Vivacqua, Jr..(vf) |
| Filing 18 ELECTRONIC SUMMONS ISSUED as to Anthony J. Vivacqua, Sr. (vf) |
| Filing 17 ELECTRONIC SUMMONS ISSUED as to Gramercy Produce Inc.(vf) |
| Filing 16 CERTIFICATE OF SERVICE of Order to Show Cause Why a Preliminary Injunction Should Not Be Issued Under Fed. R. Civ. P. 65(b), together with plaintiffs Motion for Temporary Restraining Order and Motion for Preliminary Injunction, all supporting papers, the Complaint, the Civil Cover Sheet and Corporate Disclosure Statement served on all Defendants on January 13, 2022. Service was made by Federal Express. Document filed by D'Arrigo Bros. Co. of New York, Inc., Fres Co, LLC..(Brown, Gregory) |
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Filing 15
Vacated as per Judge's Order dated 1/31/2022, Doc. #31 ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT BE ISSUED UNDER FED. R. CIV. P. 65(b): It is ORDERED, that the above-named defendants show cause before this Court by telephonic hearing at 888-251-2909, Access Code 2123101 on January 26, 2022 at 3 o'clock p.m., or as soon thereafter as counsel may be heard, why an order should not be issued pursuant to Rule 65 of the Federal Rules of Civil Procedure enjoining the defendants, their officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with the same, during the pendency of this action, from alienating, dissipating, paying over or assigning any assets of defendant Gramercy Produce Inc., or its subsidiaries or related companies, except for payment to Plaintiffs, until further order of this Court or until defendants pay Plaintiffs the amount of $249,024.38 by bank check or wire transfer, at which time this Order is dissolved; and it is further ORDERED, that, sufficient reason having been shown therefore, pending the hearing of Plaintiffs' application for a preliminary injunction, pursuant to Fed. R. Civ. P. 65, defendants, their officers, agents, servants, employees, and all other persons who are in active concert or participation with the same are temporarily enjoined and restrained from alienating, dissipating, paying over or assigning any assets of Gramercy Produce, or its subsidiaries or related companies, except for payment to Plaintiffs, until further order of this Court or until defendants pay Plaintiffs the amount of $249,024.38 by bank check or wire transfer, at which time this Order is dissolved; and it is further ORDERED (As further set forth herein.) And it is further ORDERED that bond shall be waived in view of defendants now holding $249,024.38 worth of Plaintiffs' assets; and it is further ORDERED that service of a copy of this order and the papers upon which it is based, together with the summons and complaint, by Federal Express or other nationally recognized overnight delivery service upon the defendants on or before January 14, 2022, shall be deemed good and sufficient service thereof; and it is further ORDERED that answering papers, if any shall be served by defendants so as to be received by Plaintiffs' counsel at least 48 hours prior to the return date set forth herein. Show Cause Hearing set for 1/26/2022 at 03:00 PM before Judge Lewis J. Liman. (Signed by Judge Lewis J. Liman on 1/13/2022) (va) Transmission to Finance Unit (Cashiers) for processing. Modified on 2/14/2022 (va).
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| Filing 14 REQUEST FOR ISSUANCE OF SUMMONS as to Salvatore V. Vicacqua, re: #1 Complaint,. Document filed by D'Arrigo Bros. Co. of New York, Inc., Fres Co, LLC..(Brown, Gregory) |
| Filing 13 REQUEST FOR ISSUANCE OF SUMMONS as to Anthony J. Vivacqua, Jr., re: #1 Complaint,. Document filed by D'Arrigo Bros. Co. of New York, Inc., Fres Co, LLC..(Brown, Gregory) |
| Filing 12 REQUEST FOR ISSUANCE OF SUMMONS as to Anthony J. Vivacqua, Sr., re: #1 Complaint,. Document filed by D'Arrigo Bros. Co. of New York, Inc., Fres Co, LLC..(Brown, Gregory) |
| Filing 11 REQUEST FOR ISSUANCE OF SUMMONS as to Gramercy Produce Inc., re: #1 Complaint,. Document filed by D'Arrigo Bros. Co. of New York, Inc., Fres Co, LLC..(Brown, Gregory) |
| Filing 10 MEMORANDUM OF LAW in Support re: #5 EMERGENCY MOTION for Temporary Restraining Order ., #7 MOTION for Preliminary Injunction . . Document filed by D'Arrigo Bros. Co. of New York, Inc., Fres Co, LLC..(Brown, Gregory) |
| Filing 9 DECLARATION of Karina Roman in Support re: #5 EMERGENCY MOTION for Temporary Restraining Order ., #7 MOTION for Preliminary Injunction .. Document filed by D'Arrigo Bros. Co. of New York, Inc., Fres Co, LLC. (Attachments: #1 Exhibit E, #2 Exhibit F (Part 1 of 2), #3 Exhibit F (Part 2 of 2), #4 Exhibit G).(Brown, Gregory) |
| Filing 8 DECLARATION of Charles J. DiMaggio in Support re: #5 EMERGENCY MOTION for Temporary Restraining Order ., #7 MOTION for Preliminary Injunction .. Document filed by D'Arrigo Bros. Co. of New York, Inc., Fres Co, LLC. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D).(Brown, Gregory) |
| Filing 7 MOTION for Preliminary Injunction . Document filed by D'Arrigo Bros. Co. of New York, Inc., Fres Co, LLC..(Brown, Gregory) |
| Filing 6 PROPOSED TEMPORARY RESTRAINING ORDER. Document filed by D'Arrigo Bros. Co. of New York, Inc., Fres Co, LLC. Related Document Number: #5 ..(Brown, Gregory) Proposed Order to be reviewed by Clerk's Office staff. |
| Filing 5 EMERGENCY MOTION for Temporary Restraining Order . Document filed by D'Arrigo Bros. Co. of New York, Inc., Fres Co, LLC. (Attachments: #1 Supplement Certification of Counsel in Support of Motions for Relief Pursuant to Fed. R. Civ. P. 65 and Explaining Why Notice Should Not be Required Pursuant to Fed. R. Civ. P. 65(b), #2 Text of Proposed Order).(Brown, Gregory) (Refer to ECF Rule 13.19(b) and (c) for directions regarding promptly alerting the court to this filing.) |
| Filing 4 FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Gramercy Produce Inc., Anthony J. Vivacqua, Sr., Anthony J. Vivacqua, Jr. and Salvatore V. Vicacqua, re: #1 Complaint,. Document filed by D'Arrigo Bros. Co. of New York, Inc., Fres Co, LLC. (Attachments: #1 Proposed Summons for Anthony J. Vivacqua, Sr., #2 Proposed Summons for Anthony J. Vivacqua, Jr., #3 Proposed Summons for Salvatore V. Vivacqua).(Brown, Gregory) Modified on 1/13/2022 (pc). |
| Filing 3 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by D'Arrigo Bros. Co. of New York, Inc., Fres Co, LLC..(Brown, Gregory) |
| Filing 2 CIVIL COVER SHEET filed..(Brown, Gregory) |
| Filing 1 COMPLAINT against Gramercy Produce Inc., Anthony J. Vivacqua, Sr, Anthony J. Vivacqua, Jr, Salvatore V. Vivacqua. (Filing Fee $ 402.00, Receipt Number ANYSDC-25582807)Document filed by Fres Co, LLC, D'Arrigo Bros. Co. of New York, Inc...(Brown, Gregory) |
| CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Lewis J. Liman. Please download and review the Individual Practices of the assigned District Judge, located at #https://nysd.uscourts.gov/judges/district-judges. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at #https://nysd.uscourts.gov/rules/ecf-related-instructions..(pc) |
| ***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Gregory Adam Brown to RE-FILE Document No. #4 Request for Issuance of Summons,,. The filing is deficient for the following reason(s): File each summons separately or create a rider listing every party;. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (pc) |
| ***NOTICE TO COURT REGARDING PROPOSED TEMPORARY RESTRAINING ORDER. Document No. #6 Proposed Temporary Restraining Order was reviewed and approved as to form. (km) |
| Case Designated ECF. (pc) |
| Magistrate Judge Sarah L. Cave is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (pc) |
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