Lily Produce Inc. v. Liberato Grocery Inc. et al
| Lily Produce Inc. |
| Liberato Grocery Inc., Liberato Food, Inc., C.J.N. Grocery Inc., Jose L. Liberato, Sandy J. Liberato and Anselmo C. Pena |
| 1:2022cv04125 |
| May 20, 2022 |
| US District Court for the Southern District of New York |
| J Paul Oetken |
| Agriculture Acts |
| 07 U.S.C. § 499 Agricultural Commodities Act |
| None |
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Filing 24
STIPULATION AND ORDER: Plaintiff Lily Produce Inc. ("Lily Produce" or "Plaintiff") and defendants Liberato Grocery Inc. trading as Liberato Food Market ("LGI"), Liberato Food, Inc. trading as Liberato Food Market ("LFI"), C.J.N. Grocery Inc. trading as Liberato Food Market ("CJN"), Jose L. Liberato ("J. Liberato"), Sandy J. Liberato ("S. Liberato") and Anselmo C. Pena ("A. Pena") (LGI, LFI, CJN, J. Liberato, S. Liberato and A. Pena collectively, "Defendants") (Plaintiff and Defendants collectively, the "Parties"), by and through their respective undersigned attorneys, agree and stipulate to the following: 1. Plaintiff 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 $65,741.74 plus interest at the rate of 18% per annum through May 26, 2022 in the amount of $2,944.06, and reasonable attorneys' fees and legal expenses incurred by Plaintiff in the amount of $5,670.00, for a total debt under PACA in the amount of $74,355.80 (the "PACA Trust Debt"). 2. For full and final satisfaction of Plaintiff's claims, subject to the terms and conditions of this Stipulation and Order, Defendants shall pay to Plaintiff the full amount of the PACA Trust Debt according to the schedule annexed hereto as Exhibit A (the "Installment Payments"). On or before June 2, 2022, TIME BEING OF THE ESSENCE, Defendants shall deliver to Plaintiff, at 25 John Bean Court, Port Washington, New York 11050, the Installment Payments in the form of 21 checks, one for each of the Installment Payments, made payable to Plaintiff, dated and in the amount specified in Exhibit A. Plaintiff shall be entitled deposit each of the Installment Payments as they become due, but in no event shall Plaintiff be entitled to deposit any of the Installment Payments earlier than the date specified in Exhibit A, as further set forth herein. The judgment amount prescribed in the Final Order and Judgment in favor of Plaintiff and against Defendants, jointly and severally, shall be the amount of the PACA Trust Debt set forth in Paragraph 1 above plus any additional attorneys' fees and costs incurred by Plaintiff following the date of this Stipulation and Order, plus all interest accrued at the rate of 18% per annum, less any payments made to Plaintiff pursuant to this Stipulation and Order. Plaintiff's Motion for Preliminary Injunction (Docket No. 6) (the "Motion") is hereby withdrawn without prejudice, the hearing on the Motion is cancelled, and the Order to Show Cause Why a Preliminary Injunction Should Not Be Issued Under Fed. R. Civ. P. 65(b) (Docket No. 21), including the temporary restraining order set forth therein, is hereby dissolved. JP Morgan Chase Bank, N.A. is hereby authorized and directed to release any restraints on Defendants' accounts. The Court shall retain jurisdiction over this action and the Parties during the pendency of the application of this Stipulation and Order in order to enforce the terms and conditions hereof. All dates and deadlines imposed by operation of the Federal Rules of Civil Procedure or prior orders of this Court are adjourned sine die. This Stipulation and Order constitutes the entire understanding of the Parties and may not be changed unless in a written agreement signed by all parties or their representatives. IT IS SO AGREED AND APPROVED AS TO FORM AND CONTENT. ENTERED this 31st day of May, 2022. ( As further set forth in this Order.) SO ORDERED. Motions terminated: #6 MOTION for Preliminary Injunction filed by Lily Produce Inc. (Signed by Judge J. Paul Oetken on 5/31/2022) (vfr)
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| Filing 23 PROPOSED STIPULATION AND ORDER. Document filed by Lily Produce Inc...(Brown, Gregory) |
| Filing 22 CERTIFICATE OF SERVICE of Order to Show Cause Why a Preliminary Injunction Should Not Be Issued Under Fed. R. Civ. P. 65(b), plaintiffs Motion for Temporary Restraining Order and Motion for Preliminary Injunction, all supporting papers, the Summonses, Complaint and Civil Cover Sheet served on all Defendants on May 20, 2022. Service was made by Federal Express. Document filed by Lily Produce Inc.. (Attachments: #1 Exhibit A - Federal Express Mailers).(Brown, Gregory) |
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Filing 21
ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT BE ISSUED UNDER FED. R. CIV. P. 65(b): Upon reading and filing the annexed declaration of Kwang Baik, President of plaintiff Lily Produce Inc. ("Plaintiff"), the exhibits annexed thereto, the certification of counsel why notice should not be required pursuant to Fed. R. Civ. P. 65(b), the memorandum of law in support, and upon all other papers and proceedings heretofore had herein, it is ORDERED, that the above-named defendants show cause before this Court at a telephone hearing on June 1, 2022, at 2:00 pm (New York time) -- accessible by dialing 888-557-8511 and entering access code 9300838 at the scheduled time -- why an order should not be issued pursuant to Rule 65 of the Federal Rules of Civil Procedure enjoining the defendants, their customers, agents, employees, officers, directors, subsidiaries, related entities, assigns, and banking institutions, during the pendency of this action, from alienating, dissipating, paying over or assigning any assets of defendants Liberato Grocery Inc. t/a Liberato Food Market, Liberato Food, Inc. t/a Liberato Food Market and C.J.N. Grocery Inc. t/a Liberato Food Market (collectively, the "Corporate Defendants"), or their subsidiaries or related companies, except for payment to Plaintiff, until further order of this Court or until defendants pay Plaintiff the amount of $65,741.74 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 Plaintiff's application for a preliminary injunction, pursuant to Fed. R. Civ. P. 65, defendants, their customers, agents, employees, officers, directors, subsidiaries, related entities, assigns, and banking institutions are temporarily enjoined and restrained from alienating, dissipating, paying over or assigning any assets of the Corporate Defendants, or their subsidiaries or related companies, except for payment to Plaintiff, until further order of this Court or until defendants pay Plaintiff the amount of $65,741.74 by bank check or wire transfer, at which time this Order is dissolved; and it is further ORDERED that in the event defendants fail to pay Plaintiff the amount of $65,741.74 by bank check or wire transfer within two business days of service of this Order, then defendants shall file with this Court, with a copy to Plaintiff's counsel, an accounting which identifies the assets and liabilities and accounts receivable reports of the Corporate Defendants signed under penalty of perjury; and that defendants shall also supply to Plaintiff's attorney, within five days of the date of this Order, any and all documents in their possession, custody or control related to the assets and liabilities of the Corporate Defendants and their related and subsidiary companies, including, but not limited to, the most recent balance sheets, profit/loss statements, accounts receivable reports, accounts payable reports, accounts paid records and income tax returns and bank statements with cancelled checks for the last 90 days; and it is further ORDERED that bond shall be waived in view of defendants now holding $65,741.74 worth of Plaintiff's 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 May 24, 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 Plaintiff's counsel at least 48 hours prior to the return date set forth herein. Show Cause Hearing set for 6/1/2022 at 02:00 PM before Judge J. Paul Oetken. (Signed by Judge J. Paul Oetken on 5/20/2022) (ate)
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| Filing 20 ELECTRONIC SUMMONS ISSUED as to Anselmo C. Pena. (vf) |
| Filing 19 ELECTRONIC SUMMONS ISSUED as to Sandy J. Liberato. (vf) |
| Filing 18 ELECTRONIC SUMMONS ISSUED as to Jose L. Liberato. (vf) |
| Filing 17 ELECTRONIC SUMMONS ISSUED as to C.J.N. Grocery Inc.. (vf) |
| Filing 16 ELECTRONIC SUMMONS ISSUED as to Liberato Food, Inc.. (vf) |
| Filing 15 ELECTRONIC SUMMONS ISSUED as to Liberato Grocery Inc.. (vf) |
| Filing 14 REQUEST FOR ISSUANCE OF SUMMONS as to Anselmo C. Pena, re: #1 Complaint. Document filed by Lily Produce Inc...(Brown, Gregory) |
| Filing 13 REQUEST FOR ISSUANCE OF SUMMONS as to Sandy J. Liberato, re: #1 Complaint. Document filed by Lily Produce Inc...(Brown, Gregory) |
| Filing 12 REQUEST FOR ISSUANCE OF SUMMONS as to Jose L. Liberato, re: #1 Complaint. Document filed by Lily Produce Inc...(Brown, Gregory) |
| Filing 11 REQUEST FOR ISSUANCE OF SUMMONS as to C.J.N. Grocery Inc. t/a Liberato Food Market, re: #1 Complaint. Document filed by Lily Produce Inc...(Brown, Gregory) |
| Filing 10 REQUEST FOR ISSUANCE OF SUMMONS as to Liberato Food, Inc. t/a Liberato Food Market, re: #1 Complaint. Document filed by Lily Produce Inc...(Brown, Gregory) |
| Filing 9 REQUEST FOR ISSUANCE OF SUMMONS as to Liberato Grocery Inc. t/a Liberato Food Market, re: #1 Complaint. Document filed by Lily Produce Inc...(Brown, Gregory) |
| Filing 8 MEMORANDUM OF LAW in Support re: #6 MOTION for Preliminary Injunction ., #4 EMERGENCY MOTION for Temporary Restraining Order . . Document filed by Lily Produce Inc...(Brown, Gregory) |
| Filing 7 DECLARATION of Kwang Baik in Support re: #6 MOTION for Preliminary Injunction ., #4 EMERGENCY MOTION for Temporary Restraining Order .. Document filed by Lily Produce Inc.. (Attachments: #1 Exhibit A through D).(Brown, Gregory) |
| Filing 6 MOTION for Preliminary Injunction . Document filed by Lily Produce Inc...(Brown, Gregory) |
| Filing 5 PROPOSED TEMPORARY RESTRAINING ORDER. Document filed by Lily Produce Inc.. Related Document Number: #4 ..(Brown, Gregory) Proposed Order to be reviewed by Clerk's Office staff. |
| Filing 4 EMERGENCY MOTION for Temporary Restraining Order . Document filed by Lily Produce Inc.. (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 Proposed Order to Show Cause).(Brown, Gregory) (Refer to ECF Rule 13.19(b) and (c) for directions regarding promptly alerting the court to this filing.) Modified on 5/31/2022 (vfr). |
| Filing 3 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Lily Produce Inc...(Brown, Gregory) |
| Filing 2 CIVIL COVER SHEET filed..(Brown, Gregory) |
| Filing 1 COMPLAINT against C.J.N. Grocery Inc., Jose L. Liberato, Sandy J. Liberato, Liberato Food, Inc., Liberato Grocery Inc., Anselmo C. Pena. (Filing Fee $ 402.00, Receipt Number ANYSDC-26173910)Document filed by Lily Produce Inc...(Brown, Gregory) |
| ***NOTICE TO COURT REGARDING PROPOSED TEMPORARY RESTRAINING ORDER. Document No. #5 Proposed Temporary Restraining Order was reviewed and approved as to form. (km) |
| Magistrate Judge Valerie Figueredo 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. (vf) |
| CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge J. Paul Oetken. 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..(vf) |
| Case Designated ECF. (vf) |
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