Mister Softee Says Imposter Isn’t Repaying $97K Judgement

Law360, New York (September 2, 2015, 7:27 PM ET) — Mister Softee Inc. on Wednesday asked a New York federal judge for an installment payment order against a man who operated a rogue line of ice cream trucks called “Master Softee,” claiming he has not been making payments on a year-old judgment despite showing signs of regularly receiving wages from various business enterprises.

In October 2014, U.S. District Judge Laura Taylor Swain granted judgment and $97,464 in damages to Mister Softee, saying she feared defendant Dimitrio Tsirkos would try to hide his money if she waited any longer.

Following the judgment, Mister Softee said it began execution proceedings and scooped up $2,524.98 from Tsirkos, but has not been able to collect further payments, leaving a balance of $94,939.16 unpaid.

“Tsirkos did exactly what Judge Swain feared he would do in the Oct. 2, 2014 judgment order, and has attempted to impede Mister Softee from collecting on the judgment,” Mister Softee said in a memorandum in support of its motion for an installment payment order against Tsirkos. “He is in a position to make monthly payments to Mister Softee in satisfaction of the judgment, and he should be ordered to do so.”

New Jersey-based Mister Softee — which franchises its famous name and ubiquitous jingle to more than 600 trucks in 15 states — sued Tsirkos in March 2014, saying the former authorized operator lost his franchise for failing to pay his dues but continued to operate 16 trucks in the Bronx and Queens.

All Tsirkos did was change an “I” to an “A,” Mister Softee said, claiming that amounted to a breach of his explicit contract that bars him from competing with the company after the end of hisfranchise agreement and blatant trademark infringement.

Judge Swain agreed in June 2014, issuing a preliminary injunction that was supposed to shutTsirkos down.

But in July 2014, Judge Swain said Tsirkos clearly had violated the injunction by continuing to operate trucks in Manhattan and parts of Queens. She held him in civil contempt.

He was held in contempt again in August 2014, and this time Judge Swain threatened to arrest him if he didn’t file an affidavit disclosing to whom he had sold the offending “Master” trucks, which were apparently still operating. In its memorandum on Wednesday, Mister Softee claims that at a deposition, Tsirkos testified that he and his wife are each 50 percent shareholders of an entity called Softee Taste Corp., which operates a depot and commissary business in Long Island City.

Mister Softee said that although Tsirkos continues to operate the depot business, his deposits into his personal bank accounts “abruptly” ended after the October entry of the judgment, with the exception of one small deposit into an Alma checking account and a $200 cash deposit into his personal Santander checking account.

In addition, he has not provided tax returns or other documents showing that he has been compensated for operating the depot business in 2015, Mister Softee claimed.

The company said it was undisputed that the depot business is currently operating, since Tsirkos’ associate said at a settlement conference on Aug. 13 that the business has continued to operate through the summer of 2015 and will continue to operate in the future.

“Mister Softee has direct evidence that Tsirkos is grossly undercompensating himself in order to impede Mister Softee from collecting on the judgment, and Mister Softee is therefore entitled to the entry of an installment payment order,” Mister Softee maintained in its memorandum.

The company claims that there is evidence showing Tsirkos is receiving money from his business interests. After the judgment, Tsirkos’ wife began making increased deposits into her personal bank accounts, Mister Softee said, adding that there did not appear to be any changes to the business that would explain Tsirkos’ sudden lack of deposits.

Bank records showed Tsirkos had been depositing an average of $10,547.28 per month into his personal checking accounts between January 2014 and October 2014 before his deposits ceased, Mister Softee said.

“The court should hold a hearing at which Tsirkos will be required to present evidence of his reasonable monthly requirements, and Tsirkos should be ordered to pay the difference to Mister Softee in monthly installment payments until the judgment is paid in full,” the company said in its memorandum.

Mister Softee asked that the court grant its motion for the entry of an installment payment order, and schedule a hearing to determine the amount of monthly payments Tsirkos will be required to pay the company until the judgment is fully paid.

“Ever since the court entered the judgment, Mr. Tsirkos has intentionally frustrated Mister Softee’s efforts to collect on its judgment,” attorney Jeffrey Zucker of Fisher Zucker LLC, who represents Mister Softee, told Law360 on Wednesday.

“New York law provides a procedure that enables creditors like Mister Softee [to] collect on judgments when the debtor will not pay, so Mister Softee is using this law to compel Mr. Tsirkos to pay Mister Softee the money that the judge ordered him to pay to Mister Softee,” he added.

Tsirkos and his representatives could not immediately be reached for comment on Wednesday. Mister Softee is represented by Jeffrey Zucker and Frank Reino of Fisher Zucker LLC, Gerald Derevyanny of Adler Vermillion & Skocilich, and Mark Howard Jaffe of Tor Ekeland PC. Counsel for Tsirkos was not immediately available on Wednesday, as his previous counsel was terminated.

The case is Mister Softee Inc. et al. v. Dimitrios Tsirkos, case number 1:14-cv-01975, in the U.S. District Court for the Southern District of New York. — Additional reporting by Kurt Orzeck, Bill Donahue and Allisa Wickham. Editing by Ben Guilfoy.