Preview
FILED: NEW YORK COUNTY CLERK 03/04/2020 01:32 PM INDEX NO. 850027/2018
NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 03/04/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------X
11 WEST 126TH STREET LENDER I LLC, Index No. 850027/2018
Plaintiff, Action No. 1
-against- VERIFIED ANSWER
TO AMENDED
11 WEST 126TH HOLDINGS LLC, RAVINDRANATH COMPLAINT IN
SURIA, xxxxxxxxxxxxxxx, 11 WEST 126TH STREET A FORECLOSURE
LENDER 2 LLC, NEW YORK CITY ENERGY ACTION WITH
EFFICIENCY CORPORATION, BANTA HOMES CORP., CROSS-CLAIM
Defendants.
------------------------------------------------------------ X
J COFFEY CONTRACTING INC., Index No. 152952/2019
Plaintiff, Action No. 2
- against -
THE BLUESTONE ORGANIZATION, INC., BANTA
HOMES CORP., 11 WEST 126TH HOLDINGS LLC, 11
WEST 126TH STREET LENDER 1 LLC, 11 WEST 126TH
STREET LENDER 2 LLC, NEW YORK CITY
DEPARTMENT OF TRANSPORTATION, NEW
YORK CITY ENERGY EFFICIENCY CORPORATION,
M&D FIRE DOOR, OROS CORPORATION, PLATT
BYARD DOVELL WHITE ARCHITECTS L.L.P., and
1" 100"
"JOHN DOE No. through "JOHN DOE No.
inclusive, the last ten names being fictitious and unknown to
plaintiff, the persons or parties intended being the tenants,
occupants, persons or parties, if any, having or claiming an
interest in or lien upon the premises described in the
Complaint,
Defendants.
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Defendant 11 WEST 126TH STREET LENDER 2 LLC ("Lender 2") by its
attorneys, SHERWOOD & TRUITT LAW GROUP, LLC, for its verified answer to the
126th
amended complaint in a foreclosure action by Plaintiff 11 WEST STREET
LENDER 1 LLC ( "Plaintiff") dated February 22, 2019 (the "Complaint"), alleges as
follows upon information and belief:
1. Admits the allegations set forth in paragraphs 1, 4, 5, 7, 8, 13, 14,
19, 20, 24, 25, 29, 30, 32, 33, 38, 39, 44, 45, 49, 50, 58, and 60 of the Complaint.
2. Admits the allegations set forth in paragraphs 2, 3, 6, 9, 10, 11, 12.
16, 17, 27, 28, 31, 34, 35, 36, 37, 41, 42, 52, 54, 57, and 59 of the Complaint, and refers
to the Court all issues concerning the terms, meaning, and legal effect of the document(s)
referenced therein.
3. Admits the allegations set forth in paragraphs 15, 22, 23, 40, 47, 48,
53, and 55 of the Complaint, and refers all conclusions of law to the Court.
4. In response to paragraphs 18 and 43 of the Complaint, admits that
Lender 2 is the owner and the holder of a project mortgage dated June 23, 2017 (the
126th
"Lender 2 Mortgage") that 11 West Holdings LLC (the "Owner") granted Lender 2
126th
against real property located at 11 West Street, New York, New York (the
"Property") in the principal amount of up to $339,111.20, denies knowledge or
information sufficient to form a belief as to the truth of the remaining allegations set forth
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therein, and refers all conclusions of law and all issues concerning the terms, meaning,
and legal effect of the document(s) referenced therein to the Court.
5. Denies knowledge or information sufficient to form a belief as to the
truth of the allegations set forth in paragraphs 21 and 46 of the Complaint, except admits
that Lender 2 is the owner and the holder of the Lender 2 Mortgage, and refers all
conclusions of law to the Court.
6. Except as otherwise pleaded herein, denies the allegations repeated
and re-alleged in paragraphs 26, 51, and 56 of the Complaint.
FIRST CROSS-CLAIM
(against Defendant Banta Homes Corp)
7. Lender 2 repeats and realleges each of the foregoing allegations.
8. Lender 2 brings this cross-claim under Article 15 of the Real
Property Actions and Proceedings Law.
9. Based upon the eighth and ninth affirmative defenses that Defendant
Banta Homes Corp. ("Banta") raised in its verified answer to the Complaint, Banta
appears to claim mechanic's lien interests in the Property adverse to and with priority
over Lender 2's mortgage interest in the Property.
10. None of the persons required to be joined herein is an infant,
mentally retarded, mentally ill, or an alcohol or substance abuser.
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11. There are no persons not in being or ascertained at the present time,
who by any contingency contained in a devise or grant or otherwise, could afterwards
become entitled to a beneficial estate or interest in the Property, and every person in
being who would have been entitled to such estate or interest if such event had happened
immediately before the commencement of this action is made a party hereto.
12. On June 12, 2014, the Owner acquired the Property.
13. On November 21, 2014, the Owner granted a mortgage in the
amount of $600,000 to BFC002 11 West 126th Street LLC ("BFC002") against the
Property (the "First Mortgage").
14. On March 8, 2016, the Owner granted BFC002 a gap mortgage in
the amount of $4,000,000 (the "First Gap Mortgage").
15. On March 8, 2016, the First Mortgage and the First Gap Mortgage
were consolidated to form a single mortgage by the Owner to BFC0002 against the
Property in the principal amount of $4,600,000 (the "Consolidated Mortgage").
16. On June 23, 2017, BFC002 assigned the Consolidated Mortgage to
Plaintiff.
17. On June 23, 2017, the owner granted Plaintiff a gap mortgage in the
principal amount of $944,502.44 (the "Second Gap Mortgage").
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18. On June 23, 2017, the Consolidated Mortgage and the Second Gap
Mortgage were consolidated to form a single mortgage by the Owner to Plaintiff against
the Property in the principal amount of $2,000,000 (the "Land Mortgage").
19. On June 23, 2017, the Owner granted Plaintiff a building mortgage
in the amount of $3,660,888.80 against the Property (the "Building Mortgage").
20. On June 23, 2017, the Owner and Lender 2 entered into a project
loan agreement (the "Lender 2 Agreement").
21. The Lender 2 Agreement sets forth the terms and conditions upon
which Lender 2 would advance loan proceeds (the "Lender 2 Loan") to the Owner.
22. The purpose of the Lender 2 Loan is to finance the Owner's "soft
costs" house"
in connection with the "passive condominium building that the Owner was
erecting at the Property.
23. The Lender 2 Agreement does not contain any agreement that the
Lender 2 Loan proceeds shall pay for the Owner's erection of the condominium building
or other permanent improvement of the Property.
24. The Lender 2 Agreement expressly precluded Lender 2 from
advancing Lender 2 Loan proceeds to pay for any services, labor, or materials directly
relating to the construction of the condominium building or the improvement of the
Property.
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25. Paragraph 2.2(o) of the Lender 2 Agreement states "Advances of
Budget."
[Lender 2's] Loan are to be applied to Soft Costs in accordance with the
26. Paragraph 1.26 of the Lender 2 Agreement defines the term "Soft
Costs"
as "The costs relating to the Project or [Lender 2's] Loan . .. which are not 'costs
improvement'
of an (as such term is defined in Section 2(5) of the New York Lien Law),
Budget."
as itemized in the
27. The budget attached to the Lender 2 Agreement details various Soft
Costs, as defined in the Lender 2 Agreement, and does not contain any Property building
or improvement costs.
28. Paragraph 4.1(b) of the Lender 2 Agreement contains the trust funds
covenant under Section 13 of the New York Lien Law.
29. The Lender 2 Agreement is not a building loan contract under New
York Lien Law.
30. On June 23, 2017, as security for the repayment of Lender 2's
advances under the Lender 2 Agreement, the Owner granted Lender 2 the Lender 2
Mortgage.
31. The Lender 2 Mortgage was recorded with the New York City
Department of Finance Office of the City Registrar on July 13, 2017.
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32. The Lender 2 Mortgage does not contain any agreement that the
Lender 2 Loan proceeds shall pay for the Owner's erection of the condominium building
or other permanent improvement of the Property.
33. Paragraph 9 of the Lender 2 Mortgage contains the trust funds
covenant under Section 13 of the New York Lien Law.
34. The Lender 2 Mortgage is not a building loan mortgage under New
York Lien Law.
35. The recording provisions of Section 22 of the New York Lien Law
do not apply to the Lender 2 Agreement or the Lender 2 Mortgage.
36. Lender 2 is the owner and the holder of the Lender 2 Agreement and
the Lender 2 Mortgage.
37. Lender 2 does not dispute that the Lender 2 Mortgage is subordinate
to Plaintiff's Land Mortgage.
38. Banta has alleged that on March 16, 2018 it caused to be filed a
notice of mechanic's lien in the amount of $379,304.19 in connection with services and
materials provided at the Property.
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39. Banta has alleged that on April 9, 2018 it caused to be filed a second
notice of mechanic's lien in the amount of $608,003.77 in connection with services and
materials provided at the Property.
40. Banta has alleged that itcaused to be filed extensions of the
foregoing notices of mechanic's lien on March 12, 2019.
41. Banta has alleged that on July 26, 2018 it caused to be filed a third
notice of mechanic's lien in the amount of $1,121,387.77 in connection with services and
materials provided at the Property.
42. Banta has alleged that itcaused to be filed an extension of the third
notice of mechanic's lien on July 19, 2019.
43. Lender 2 made advances under the Lender 2 Agreement before
Banta allegedly filed its notices of mechanic's liens.
44. Lender 2 is entitled to judgment declaring that all Banta's claimed
mechanic's lien interests in the Property are subject and subordinate to Lender 2's
mortgage interest.
45. Lender 2 demands an answer to this cross-claim.
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WHEREFORE, Lender 2 demands judgment on its cross-claim declaring
that any mechanic's lien interests in the Property held by Banta are all subject and
subordinate to the Lender 2 Mortgage, together with the costs and disbursements of this
action and any further relief that the Court deems just and proper.
Dated: Garden City, New York
March 4, 2020
SHERWOOD I L GROUP, LLC
y A ndondelo
Attorneys for Defendant
126th
11 West Street Lender 2 LLC
300 Garden City Plaza, Suite 136
Garden City, New York 11530
(516) 408-7030
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_VERIFICATIOlS
AMY E. ABBANDONDELO, under penalty of perjury, hereby affirms:
1. I am an attorney admitted to practice before the courts of the State of
New York and I am associated with SHERWOOD & TRUITT LAW GROUP, LLC,
attorneys for Defendant 11 West 126th Street Lender 2 LLC in this matter.
2. I have read the foregoing answer and the same is true to my own
knowledge, except as to the matters therein alleged to be upon information and belief,
and as to such matters I believe it tobe true.
3. The source of my information and belief is my inspection of
documents and conversations with others.
4. The reason why I make this affirmation of verification is that
Defendant 11 West 126th Street Lender 2 LLC does not have an office in the county in
which our offices are located.
Dated: Garden City, New York
March 4, 2020
. A ANDONDELO
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Preview
FILED: NEW YORK COUNTY CLERK 03/04/2020 01:32 PM INDEX NO. 850027/2018 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 03/04/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------X 11 WEST 126TH STREET LENDER I LLC, Index No. 850027/2018 Plaintiff, Action No. 1 -against- VERIFIED ANSWER TO AMENDED 11 WEST 126TH HOLDINGS LLC, RAVINDRANATH COMPLAINT IN SURIA, xxxxxxxxxxxxxxx, 11 WEST 126TH STREET A FORECLOSURE LENDER 2 LLC, NEW YORK CITY ENERGY ACTION WITH EFFICIENCY CORPORATION, BANTA HOMES CORP., CROSS-CLAIM Defendants. ------------------------------------------------------------ X J COFFEY CONTRACTING INC., Index No. 152952/2019 Plaintiff, Action No. 2 - against - THE BLUESTONE ORGANIZATION, INC., BANTA HOMES CORP., 11 WEST 126TH HOLDINGS LLC, 11 WEST 126TH STREET LENDER 1 LLC, 11 WEST 126TH STREET LENDER 2 LLC, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEW YORK CITY ENERGY EFFICIENCY CORPORATION, M&D FIRE DOOR, OROS CORPORATION, PLATT BYARD DOVELL WHITE ARCHITECTS L.L.P., and 1" 100" "JOHN DOE No. through "JOHN DOE No. inclusive, the last ten names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or parties, if any, having or claiming an interest in or lien upon the premises described in the Complaint, Defendants. ----------- ------------- ----------X 1 of 10 FILED: NEW YORK COUNTY CLERK 03/04/2020 01:32 PM INDEX NO. 850027/2018 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 03/04/2020 Defendant 11 WEST 126TH STREET LENDER 2 LLC ("Lender 2") by its attorneys, SHERWOOD & TRUITT LAW GROUP, LLC, for its verified answer to the 126th amended complaint in a foreclosure action by Plaintiff 11 WEST STREET LENDER 1 LLC ( "Plaintiff") dated February 22, 2019 (the "Complaint"), alleges as follows upon information and belief: 1. Admits the allegations set forth in paragraphs 1, 4, 5, 7, 8, 13, 14, 19, 20, 24, 25, 29, 30, 32, 33, 38, 39, 44, 45, 49, 50, 58, and 60 of the Complaint. 2. Admits the allegations set forth in paragraphs 2, 3, 6, 9, 10, 11, 12. 16, 17, 27, 28, 31, 34, 35, 36, 37, 41, 42, 52, 54, 57, and 59 of the Complaint, and refers to the Court all issues concerning the terms, meaning, and legal effect of the document(s) referenced therein. 3. Admits the allegations set forth in paragraphs 15, 22, 23, 40, 47, 48, 53, and 55 of the Complaint, and refers all conclusions of law to the Court. 4. In response to paragraphs 18 and 43 of the Complaint, admits that Lender 2 is the owner and the holder of a project mortgage dated June 23, 2017 (the 126th "Lender 2 Mortgage") that 11 West Holdings LLC (the "Owner") granted Lender 2 126th against real property located at 11 West Street, New York, New York (the "Property") in the principal amount of up to $339,111.20, denies knowledge or information sufficient to form a belief as to the truth of the remaining allegations set forth 2 2 of 10 FILED: NEW YORK COUNTY CLERK 03/04/2020 01:32 PM INDEX NO. 850027/2018 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 03/04/2020 therein, and refers all conclusions of law and all issues concerning the terms, meaning, and legal effect of the document(s) referenced therein to the Court. 5. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 21 and 46 of the Complaint, except admits that Lender 2 is the owner and the holder of the Lender 2 Mortgage, and refers all conclusions of law to the Court. 6. Except as otherwise pleaded herein, denies the allegations repeated and re-alleged in paragraphs 26, 51, and 56 of the Complaint. FIRST CROSS-CLAIM (against Defendant Banta Homes Corp) 7. Lender 2 repeats and realleges each of the foregoing allegations. 8. Lender 2 brings this cross-claim under Article 15 of the Real Property Actions and Proceedings Law. 9. Based upon the eighth and ninth affirmative defenses that Defendant Banta Homes Corp. ("Banta") raised in its verified answer to the Complaint, Banta appears to claim mechanic's lien interests in the Property adverse to and with priority over Lender 2's mortgage interest in the Property. 10. None of the persons required to be joined herein is an infant, mentally retarded, mentally ill, or an alcohol or substance abuser. 3 3 of 10 FILED: NEW YORK COUNTY CLERK 03/04/2020 01:32 PM INDEX NO. 850027/2018 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 03/04/2020 11. There are no persons not in being or ascertained at the present time, who by any contingency contained in a devise or grant or otherwise, could afterwards become entitled to a beneficial estate or interest in the Property, and every person in being who would have been entitled to such estate or interest if such event had happened immediately before the commencement of this action is made a party hereto. 12. On June 12, 2014, the Owner acquired the Property. 13. On November 21, 2014, the Owner granted a mortgage in the amount of $600,000 to BFC002 11 West 126th Street LLC ("BFC002") against the Property (the "First Mortgage"). 14. On March 8, 2016, the Owner granted BFC002 a gap mortgage in the amount of $4,000,000 (the "First Gap Mortgage"). 15. On March 8, 2016, the First Mortgage and the First Gap Mortgage were consolidated to form a single mortgage by the Owner to BFC0002 against the Property in the principal amount of $4,600,000 (the "Consolidated Mortgage"). 16. On June 23, 2017, BFC002 assigned the Consolidated Mortgage to Plaintiff. 17. On June 23, 2017, the owner granted Plaintiff a gap mortgage in the principal amount of $944,502.44 (the "Second Gap Mortgage"). 4 4 of 10 FILED: NEW YORK COUNTY CLERK 03/04/2020 01:32 PM INDEX NO. 850027/2018 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 03/04/2020 18. On June 23, 2017, the Consolidated Mortgage and the Second Gap Mortgage were consolidated to form a single mortgage by the Owner to Plaintiff against the Property in the principal amount of $2,000,000 (the "Land Mortgage"). 19. On June 23, 2017, the Owner granted Plaintiff a building mortgage in the amount of $3,660,888.80 against the Property (the "Building Mortgage"). 20. On June 23, 2017, the Owner and Lender 2 entered into a project loan agreement (the "Lender 2 Agreement"). 21. The Lender 2 Agreement sets forth the terms and conditions upon which Lender 2 would advance loan proceeds (the "Lender 2 Loan") to the Owner. 22. The purpose of the Lender 2 Loan is to finance the Owner's "soft costs" house" in connection with the "passive condominium building that the Owner was erecting at the Property. 23. The Lender 2 Agreement does not contain any agreement that the Lender 2 Loan proceeds shall pay for the Owner's erection of the condominium building or other permanent improvement of the Property. 24. The Lender 2 Agreement expressly precluded Lender 2 from advancing Lender 2 Loan proceeds to pay for any services, labor, or materials directly relating to the construction of the condominium building or the improvement of the Property. 5 5 of 10 FILED: NEW YORK COUNTY CLERK 03/04/2020 01:32 PM INDEX NO. 850027/2018 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 03/04/2020 25. Paragraph 2.2(o) of the Lender 2 Agreement states "Advances of Budget." [Lender 2's] Loan are to be applied to Soft Costs in accordance with the 26. Paragraph 1.26 of the Lender 2 Agreement defines the term "Soft Costs" as "The costs relating to the Project or [Lender 2's] Loan . .. which are not 'costs improvement' of an (as such term is defined in Section 2(5) of the New York Lien Law), Budget." as itemized in the 27. The budget attached to the Lender 2 Agreement details various Soft Costs, as defined in the Lender 2 Agreement, and does not contain any Property building or improvement costs. 28. Paragraph 4.1(b) of the Lender 2 Agreement contains the trust funds covenant under Section 13 of the New York Lien Law. 29. The Lender 2 Agreement is not a building loan contract under New York Lien Law. 30. On June 23, 2017, as security for the repayment of Lender 2's advances under the Lender 2 Agreement, the Owner granted Lender 2 the Lender 2 Mortgage. 31. The Lender 2 Mortgage was recorded with the New York City Department of Finance Office of the City Registrar on July 13, 2017. 6 6 of 10 FILED: NEW YORK COUNTY CLERK 03/04/2020 01:32 PM INDEX NO. 850027/2018 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 03/04/2020 32. The Lender 2 Mortgage does not contain any agreement that the Lender 2 Loan proceeds shall pay for the Owner's erection of the condominium building or other permanent improvement of the Property. 33. Paragraph 9 of the Lender 2 Mortgage contains the trust funds covenant under Section 13 of the New York Lien Law. 34. The Lender 2 Mortgage is not a building loan mortgage under New York Lien Law. 35. The recording provisions of Section 22 of the New York Lien Law do not apply to the Lender 2 Agreement or the Lender 2 Mortgage. 36. Lender 2 is the owner and the holder of the Lender 2 Agreement and the Lender 2 Mortgage. 37. Lender 2 does not dispute that the Lender 2 Mortgage is subordinate to Plaintiff's Land Mortgage. 38. Banta has alleged that on March 16, 2018 it caused to be filed a notice of mechanic's lien in the amount of $379,304.19 in connection with services and materials provided at the Property. 7 7 of 10 FILED: NEW YORK COUNTY CLERK 03/04/2020 01:32 PM INDEX NO. 850027/2018 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 03/04/2020 39. Banta has alleged that on April 9, 2018 it caused to be filed a second notice of mechanic's lien in the amount of $608,003.77 in connection with services and materials provided at the Property. 40. Banta has alleged that itcaused to be filed extensions of the foregoing notices of mechanic's lien on March 12, 2019. 41. Banta has alleged that on July 26, 2018 it caused to be filed a third notice of mechanic's lien in the amount of $1,121,387.77 in connection with services and materials provided at the Property. 42. Banta has alleged that itcaused to be filed an extension of the third notice of mechanic's lien on July 19, 2019. 43. Lender 2 made advances under the Lender 2 Agreement before Banta allegedly filed its notices of mechanic's liens. 44. Lender 2 is entitled to judgment declaring that all Banta's claimed mechanic's lien interests in the Property are subject and subordinate to Lender 2's mortgage interest. 45. Lender 2 demands an answer to this cross-claim. 8 8 of 10 FILED: NEW YORK COUNTY CLERK 03/04/2020 01:32 PM INDEX NO. 850027/2018 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 03/04/2020 WHEREFORE, Lender 2 demands judgment on its cross-claim declaring that any mechanic's lien interests in the Property held by Banta are all subject and subordinate to the Lender 2 Mortgage, together with the costs and disbursements of this action and any further relief that the Court deems just and proper. Dated: Garden City, New York March 4, 2020 SHERWOOD I L GROUP, LLC y A ndondelo Attorneys for Defendant 126th 11 West Street Lender 2 LLC 300 Garden City Plaza, Suite 136 Garden City, New York 11530 (516) 408-7030 9 9 of 10 FILED: NEW YORK COUNTY CLERK 03/04/2020 01:32 PM INDEX NO. 850027/2018 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 03/04/2020 _VERIFICATIOlS AMY E. ABBANDONDELO, under penalty of perjury, hereby affirms: 1. I am an attorney admitted to practice before the courts of the State of New York and I am associated with SHERWOOD & TRUITT LAW GROUP, LLC, attorneys for Defendant 11 West 126th Street Lender 2 LLC in this matter. 2. I have read the foregoing answer and the same is true to my own knowledge, except as to the matters therein alleged to be upon information and belief, and as to such matters I believe it tobe true. 3. The source of my information and belief is my inspection of documents and conversations with others. 4. The reason why I make this affirmation of verification is that Defendant 11 West 126th Street Lender 2 LLC does not have an office in the county in which our offices are located. Dated: Garden City, New York March 4, 2020 . A ANDONDELO 10 of 10