Preview
FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020
NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022
C RT OF HE STATE OF NEW YéR .
D e57 /v
COUNTY OF . 5
Index No.
- against - . . .
. D endants.
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FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020
NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022
TURN DATE (p"
CAL.DATE
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
______________________________________________________________Ç
Helen Skarla, Index No. 90/14
(D Plaintiff,
C-
Z NOTICE OF MOTION
-against-
FOR SUMMARY
JUDGMENT
NPSFT LLC, NPSFT1 LLC, Eldridge
Properties, Inc., Visions Federal Credit Union Assigned to:
d/b/a Paragon Federal Union, Kostas Hon. Allan B. Weiss
Golfinopoulos, Esq. and Kostas
Golfinopoulos, Esq., PLLC, and Steven W.
Stutman, Esq.,
Defendants.
________--__---.JAILAÎ
-------------------------------x
by:ouEEN C
Motion orchert & LaSpina, P.C., counsel of record for
defendants Kostas Golfinopoulos, Esq. and
KostasGolfinopoulos, Esq., PLLC (collectively
"Golfinopoulos")
Date Time and
Place of Hearing: June 2, 2015, at 2:15 P.M., Centralized Motion Part
at the Supreme Court, Queens County, 88-11
..
Sutphin Boulevard, Jamaica, New York.
00 Argument®ª'3
Oral
go. Requested: Yes [X ] No [ ]
sdN -n Smpgaest Affirmation, Affidavits, and Exhibits
Relief Der : An Order:
as sys
a ustmas ussansu as judgment to Golfinopoulos
usea (A) granting summary
aÄ,b 1 u a pursuant to CPLR §3211 and CPLR §3212
FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020
NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022
dismissing the complaint of plaintiff Helen
Skarla as against Golfinopoulos; and
(B) granting to Golfinopoulos such other, further,
and different relief as this court deems just
and proper.
Dated: Whitestone, New York
May 8, 2015
Borchert & LaSpina, P.C.
By:
Helmut Borchert, Esq.
Attorneys for Defendants
Kostas Golfinopoulos, Esq. and
Kostas Golfinopoulos, Esq., PLLC
19-02 Whitestone Expressway, Suite 302
Whitestone, New York 11357
(718) 767-3333
TO: George M. Gavalas, Esq.
Attorney for Plaintiff Helen Skarla
200 Old Country Road, Suite 590
Mineola, NY 11501
Pardalis & Nohavicka, LLP
Attorneys for Plaintiff
35-10 Broadway, Suite 201
Astoria, NY 11106
Lewis Brisbois Bisgaard & Smith, LLP
Attorneys for Defendant Steven W. Stutman, Esq.
77 Water Street, Suite 2100
New York, NY 10005
2
FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020
NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022
Butler, Fitzgerald, Fiveson & McCarthy, P.C.
Attorneys for Defendants NPSFT LLC and NPSFT1 LLC
45th 9th
9 East Street, FlOOr
New York, NY 10017
Stephen David Fink, Esq.
Attorney for Defendant Eldridge Properties, Inc.
118-35 Queens Boulevard, Suite 1220
Forest Hills, NY 11375
Dorf & Nelson LLP
Attorneys for Defendant Visions Federal Credit Union
555 Theodore Fremd Avenue, Suite A-300
Rye, NY 10580
Attn: Laura-Michelle Horgan, Esq.
Kordas & Marinis, LLP
47th 3rd
5-44 Avenue, Floor
Long Island City, NY 11101
Golf/NotMot.MSJ
3
FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020
NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
Helen Skarla, Index No.
90/14
Plaintiff,
AFFIRMATION IN
-against- SUPPORT OF
MOTION FOR
NPSFT LLC, NPSFT1 LLC, Eldridge SUMMARY
Properties, Inc., Visions Federal Credit Union JUDGMENT
d/b/a Paragon Federal Union, Kostas
Golfinopoulos, Esq. and Kostas Assigned to:
Golfinopoulos, Esq., PLLC, and Steven W. Hon. Allan B. Weiss
Stutman, Esq.,
Defendants.
Helmut Borchert, Esq., an attorney duly admitted to practice law in
the courts of the State of New York, affirms that the following statements
are true and accurate and subject to the penalties of perjury:
1. I am a partner in the law firm of Borchert & LaSpina, P.C., the
attorneys of record for defendants Kostas Golfinopoulos, Esq. and Kostas
Golfinopoulos, Esq., PLLC (collectively, "Golfinopoulos") and, as such, am
fully familiar with the facts and circumstances surrounding this case.
FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020
NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022
2. I submit this affirmation in support of the within motion by
defendants Kostas Golfinopoulos, Esq. and Kostas Golfinopoulos, Esq.,
PLLC (collectively "Golfinopoulos") for summary judgment pursuant to
CPLR §3211 and §3212 to dismiss the complaint filed by plaintiff Helen
Skarla ("Skarla") under index number 90/14 as against Golfinopoulos. This
motion does not address the other complaint filed under index number
7649/14, which action was subsequently consolidated into this action'. The
affidavits of Kostas Golfinopoulos and non-party Angeliki Pagoulatou f/k/a
Angela Korkoumelis are also submitted herewith. This motion is
additionally supported by documentary evidence within my possession as
counsel. Leandre v. Sharperson, 96 A.D.2d 883, 466 N.Y.S.2d 38 (2d
Dept. 1983) (summary judgment may be supported by documentary
evidence within counsel's possession).
3. Based upon an order from Justice Sidney Strauss, dated
October 17, 2014, Skarla does not have any damages; and without any
damages, Skarla's complaint fails as this court previously recognized
(January 7, 2014 transcript).
1 date.
That complaint will be the subject of a separate motion at a later
2
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4 "
4. Skarla commenced this action for damages against the various
defendants and to void the foreclosure of a residential property (one-family
150th
home) known as 3-29 street, Whitestone, New York ("Whitestone
Premises") and a mixed-use building (two (2) apartments and two (2)
31st
stores) known as 23-29, 23-31, and 23-33 Street, Astoria, New York
("Astoria Premises") (collectively, "the Premises"), amongst other relief.
Copies of Skarla's summons and complaint are collectively annexed hereto
as Exhibit "A". Copies of the voluminous exhibits to the complaint are
Golfinopoulos'
collectively annexed hereto as Exhibit "B". A copy of verified
answer to the complaint is annexed hereto as Exhibit "C". A copy of the
order dismissing the eighth and eleventh causes of action and the claims
attorneys'
for fees is annexed hereto as Exhibit "D". A copy of the order
dismissing the complaint as against defendant Visions is annexed hereto
as Exhibit "E". A copy of the order consolidating this action with the action
filed under index number 7649/14 is annexed hereto as Exhibit "F". Copies
of all other pleadings for this matter are collectively annexed hereto as
Exhibit "G". Copies of the pleadings for the action filed under index number
7649/14 are collectively annexed hereto as Exhibit "H".
3
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NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022
5. Skarla's complaint purports to set forth causes of action for: (1)
breach of fiduciary duty; (2) aiding and abetting breach of fiduciary duty; (3)
fraud in the inducement; (4) constructive fraud; (5) fraudulent concealment;
(6) to set aside the foreclosure sale of the Premises; (7) voidance of the
referee's deed and subsequent deeds to the Premises; (8) unjust
enrichment; (9) constructive trust; (10) injunctive relief; (11) expenses,
attorneys'
costs and fees; and, (12) pierce the corporate veil. See
complaint, Exhibit "A".
6. The eighth and eleventh causes of action as well as all
attorneys'
demands for fees have been dismissed as against Golfinopoulos
pursuant to an order of this court dated June 17, 2014. See order, Exhibit
"D".
7. The second cause of action is not pled against Golfinopoulos.
The sixth, seventh, ninth and tenth causes of action do not affect
Golfinopoulos as Golfinopoulos does not have and never claimed to have
any interest in the Premises.
4
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8. This means that the only causes of action remaining against
Golfinopoulos at this time are the first, third, fourth, fifth and twelfth.
veil"
9. The twelfth cause of action to "pierce the corporate is
actually not a cause of action at all as will be shown below.
10. Damages are an essential element of Skarla's remaining
causes of action as against Golfinopoulos.
11. Damages is an element of a claim for breach of fiduciary duty
(first cause of action). Kurtzman v. Berqstol, 40 A.D.3d 588, 835 N.Y.S.2d
644 (2d Dept. 2007).
12. Damages is an element of any claim for fraud (third, fourth and
fifth causes of action). Channel Master Corp. v. Aluminum Ltd Sales, 4
N.Y.2d 403, 176 N.Y.S.2d 259 (1958); Pope v. Saqet, 29 A.D.3d 437, 817
(1st
N.Y.S.2d 1 Dept. 2006); leave denied, 8 N.Y.3d 803 (2007).
5
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13. Skarla's claims for damages are all premised upon Skarla's
loss of the Premises to the foreclosure sale held in the foreclosure action
commenced in this court under index number 10936/2007.
i
14. Skarla no longer has any damages as the foreclosure sale of
the Premises was set aside by the court (Strauss, J.) via order dated
October 17, 2014. A copy of that order is annexed hereto as Exhibit "I".
15. During argument concerning an application by Skarla for a
temporary restraining order on January 7, 2014, this court recognized that
Skarla would have no damages if the foreclosure sale is set aside. S_ee
January 7, 2014 transcript, Exhibit "J", at pages 23 and 35.
16. Skarla is now free to redeem the Premises as Skarla claims
she desires to do.
17. In addition, Skarla's claims against Golfinopoulos must be
dismissed for failure to state a cause of action, violation of the statute of
limitations, and failure to plead fraud with particularity.
6
i
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" "
18. It should be noted that Skarla and her attorneys have been
consulting with and attending court conferences with an individual known
as Angelo Gerasimou a/k/a Evangelos Gerasimou ("Gerasimou").
Gerasimou is a convicted felon who served a prison term for bank fraud
related to real estate transactions. S_ee United States v. Gerasimou, Case
No. 04-CR-790, U.S. District Court, E.D.N.Y. A copy of that decision is
annexed hereto as Exhibit "K". A copy of a letter dated February 6, 2014
from Craig Zim, Esq. to Sacco & Fillas, LLP is annexed hereto as Exhibit
"L". Copies of e-mails with Skarla's attorneys and Gerasimou are annexed
hereto as Exhibit "M". See also, affidavit of Golfinopoulos annexed hereto.
19. Like Gerasimou, Skarla has demonstrated that Skarla is a
fraudster by Skarla's fraudulent misrepresentations throughout the history
of Skarla's mortgage loan, foreclosure, and this litigation.
BACKGROUND
20. In 2004, Skarla requested that Golfinopoulos represent Skarla
in connection with Skarla's purchase of the Whitestone Premises. The
Whitestone Premises was new construction so there was no need for an
7
FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020
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" "
engineer's report or termite inspection. At that time, Skarla already owned
the Astoria Premises. See affidavit of Golfinopoulos annexed hereto.
21. On October 5, 2004, Skarla purchased the Whitestone
Premises from Carlos Acosta and Navia Acosta for $1,150,000.00 via deed
("Deed") executed the same day and recorded on February 17, 2005 in the
Office of the City Register of the City of New York ("Office of the City
Register") at CRFN 2005000099739. A copy of the recorded Deed is
"N"
annexed hereto as Exhibit and is also available as a matter of public
record. See also, affidavit of Golfinopoulos annexed hereto.
22. The Larsen Realty Group, LLC ("Larsen Realty") and United
Realty Associates ("United Realty") were the real estate brokers for that
transaction. Other than Skarla's purchase of the Whitestone Premises,
Golfinopoulos has not had any dealings with either Larsen Realty or United
Realty. Golfinopoulos did not recommend Skarla to either Larsen Realty or
United Realty. Skarla found the Whitestone Premises and Larsen Realty
Golfinopoulos'
and United Realty without assistance or involvement. S_ee
affidavit of Golfinopoulos annexed hereto.
8
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23. In order to obtain financing for the purchase of the Whitestone
Premises, Skarla executed a note and purchase money mortgage
("Mortgage") on October 5, 2004 to Paragon Federal Credit Union
("Paragon") for $900,000.00 which Mortgage was secured to both the
Whitestone Premises and the Astoria Premises and was recorded on
February 17, 2005 in the Office of the City Register at CRFN
2005000099740. A copy of the recorded Mortgage is annexed hereto as
Exhibit "O", and is also available as a matter of public record. See also,
affidavit of Golfinopoulos annexed hereto.
24. Skarla found Paragon as a result of Skarla having retained
mortgage broker Rateline Capital Mortgage Inc. Skarla found and retained
Rateline Capital all on Skarla's own and without the assistance or
involvement of Golfinopoulos. Other than Skarla's purchase of the
Whitestone Premises, Golfinopoulos has not had any dealings with
Rateline Capital. See affidavit of Golfinopoulos annexed hereto.
25. Paragon issued a mortgage commitment which required that
both the Whitestone Premises and the Astoria Premises had to be
9
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NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022
i
encumbered with a mortgage as a condition of Paragon making the loan to
Skarla. Copies of the September 10, 2004 mortgage commitment and
October 1, 2004 letter from the bank attorney are annexed hereto as
"P"
Exhibits and "Q", respectively. See also, affidavit of Golfinopoulos
annexed hereto.
26. To obtain the Paragon mortgage loan, Skarla completed and
executed a loan application. Golfinopoulos did not assist Skarla with
Skarla's mortgage loan application to Paragon nor did Skarla request that
Golfinopoulos assist or review the loan application. A copy of the loan
application is annexed hereto as Exhibit "R". See also, affidavit of
Golfinopoulos annexed hereto.
27. Skarla had failed to disclose to Paragon a substantial financial
obligation Skarla had undertaken when Skarla promised the U.S.
Department of Justice to provide for a foreign student named Eirini Aindili.
Golfinopoulos was not aware of this obligation at the time that Skarla
obtained Paragon's mortgage. Copies of the U.S. Department of Justice
10
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NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022
" "
documents are collectively annexed hereto as Exhibit "S". See also,
affidavit of Golfinopoulos annexed hereto.
28. Skarla also produced a certified rent roll dated October 5, 2004
to Paragon as part of Skarla's loan application and closing process, which
demonstrated the total rent being collected for the Astoria Premises to be
$10,300.00 per month. A copy of Skarla's certified rent roll dated October
5, 2004 is annexed hereto as Exhibit "T". See also, affidavit of
Golfinopoulos annexed hereto.
29. Skarla defaulted on the Paragon mortgage loan by failing to
make monthly payments becoming due on December 1, 2004, just two
months after Skarla purchased the Premises. Copies of Paragon's default
letter and loan amortization showing bounced checks are annexed hereto
"U"
as Exhibits and "V", respectively. See also, affidavit of Golfinopoulos
annexed hereto.
30. Upon Skarla's default on the Mortgage, Skarla continued to
collect rent for the use of the Astoria Premises in the total amount of
11
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NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022
. .
$10,300.00 per month. See certified rent roll, Exhibit "T". See also,
affidavit of Golfinopoulos annexed hereto.
31. Additionally, after one commercial tenant was evicted in 2007,
Skarla continued to use and operate one of the stores as a dance studio
under the name of Helen Skarla Dance Studio, Inc. S_e_e affidavit of
Golfinopoulos annexed hereto.
32. Golfinopoulos negotiated a number of loan extensions for
Skarla including on February 7, 2006, and then again on January 9, 2007.
Copies of the loan extension agreements and related correspondence are
"W"
annexed hereto, respectively, as Exhibits and "X". See also, affidavit
of Golfinopoulos annexed hereto.
33. Skarla again failed to disclose her obligation to the foreign
exchange student Eirini Aindill to Paragon as part of Skarla's applications
for the the loan extension agreements. A copy of Paragon's debt ratio
analysis is annexed hereto as Exhibit "Y". See also, affidavit of
Golfinopoulos annexed hereto.
12
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34. At the time of those loan extensions, Golfinopoulos was still
unaware of Skarla's financial obligation to student Eirini Aindili. Skarla's
financial obligation on student Eirini Aindili's behalf made it extremely
difficult, if not impossible, for Skarla to be able to make Skarla's mortgage
loan payments to Paragon. Golfinopoulos also later learned that Skarla
had an obligation to pay a mortgage on a home in Greece which Skarla
also failed to disclose to Paragon. See affidavit of Golfinopoulos annexed
hereto.
35. On or about May 1, 2007, Paragon commenced a foreclosure
action in the Supreme Court of New York, County of Queens, index
10936/2007 ("foreclosure action") against Skarla for foreclosure of the
Premises. A copy of the foreclosure complaint is annexed hereto as
Exhibit "Z". See also, affidavit of Golfinopoulos annexed hereto.
Golfinopoulos'
36. Skarla retained the legal services of law firm to
contest the foreclosure action. Seee affidavit of Golfinopoulos annexed
Preview
FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 C RT OF HE STATE OF NEW YéR . D e57 /v COUNTY OF . 5 Index No. - against - . . . . D endants. REDACTION COVER PAGE CHECK ALL THAT APPLY: The document filedcontainsno confidential personal information,as definedin22 NYCRR 202.5(e). The document filedis REDACTED in accordance with 22 NYCRR 202.5(e). - The document filedis UN-REDACTED in accordance with 22 NYCRR 202.5(e). (a)The document filed containsSSN (as authorized by the order specified below). ....... (b) The document filed containsconfidential possonal infonnation as defined under22 NYCRR 202.5(e)(as authorized by the order specified below). Thisdocument was previously filedREDACTED, Date: Thisdocument was previously filedUN-REDACTED. Date: The document filedseeks a remedy under 22 NYCRR 202.5(e)(2). The document filedseeks a remedy under 22 NYCRR 202.5(c)(3). Q . Additional information: There is e.previously filedorderof t11sCourt regarding thisdocument: yes / no Date of order: Date orderfiled: Other information identifying for such order: The order of theCourtis beingfiled with the re lasted / un-redaeted doesnent: yes / no Date of order: Other information identifying forsuch order: Signature of filer: PrinfName: . +g½PJ Counset appearing for: EMryW G"o o f cm .0% (name of party) Fileris Unrepresented/ Prose: yes Date: FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 TURN DATE (p" CAL.DATE SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ______________________________________________________________Ç Helen Skarla, Index No. 90/14 (D Plaintiff, C- Z NOTICE OF MOTION -against- FOR SUMMARY JUDGMENT NPSFT LLC, NPSFT1 LLC, Eldridge Properties, Inc., Visions Federal Credit Union Assigned to: d/b/a Paragon Federal Union, Kostas Hon. Allan B. Weiss Golfinopoulos, Esq. and Kostas Golfinopoulos, Esq., PLLC, and Steven W. Stutman, Esq., Defendants. ________--__---.JAILAÎ -------------------------------x by:ouEEN C Motion orchert & LaSpina, P.C., counsel of record for defendants Kostas Golfinopoulos, Esq. and KostasGolfinopoulos, Esq., PLLC (collectively "Golfinopoulos") Date Time and Place of Hearing: June 2, 2015, at 2:15 P.M., Centralized Motion Part at the Supreme Court, Queens County, 88-11 .. Sutphin Boulevard, Jamaica, New York. 00 Argument®ª'3 Oral go. Requested: Yes [X ] No [ ] sdN -n Smpgaest Affirmation, Affidavits, and Exhibits Relief Der : An Order: as sys a ustmas ussansu as judgment to Golfinopoulos usea (A) granting summary aÄ,b 1 u a pursuant to CPLR §3211 and CPLR §3212 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 dismissing the complaint of plaintiff Helen Skarla as against Golfinopoulos; and (B) granting to Golfinopoulos such other, further, and different relief as this court deems just and proper. Dated: Whitestone, New York May 8, 2015 Borchert & LaSpina, P.C. By: Helmut Borchert, Esq. Attorneys for Defendants Kostas Golfinopoulos, Esq. and Kostas Golfinopoulos, Esq., PLLC 19-02 Whitestone Expressway, Suite 302 Whitestone, New York 11357 (718) 767-3333 TO: George M. Gavalas, Esq. Attorney for Plaintiff Helen Skarla 200 Old Country Road, Suite 590 Mineola, NY 11501 Pardalis & Nohavicka, LLP Attorneys for Plaintiff 35-10 Broadway, Suite 201 Astoria, NY 11106 Lewis Brisbois Bisgaard & Smith, LLP Attorneys for Defendant Steven W. Stutman, Esq. 77 Water Street, Suite 2100 New York, NY 10005 2 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 Butler, Fitzgerald, Fiveson & McCarthy, P.C. Attorneys for Defendants NPSFT LLC and NPSFT1 LLC 45th 9th 9 East Street, FlOOr New York, NY 10017 Stephen David Fink, Esq. Attorney for Defendant Eldridge Properties, Inc. 118-35 Queens Boulevard, Suite 1220 Forest Hills, NY 11375 Dorf & Nelson LLP Attorneys for Defendant Visions Federal Credit Union 555 Theodore Fremd Avenue, Suite A-300 Rye, NY 10580 Attn: Laura-Michelle Horgan, Esq. Kordas & Marinis, LLP 47th 3rd 5-44 Avenue, Floor Long Island City, NY 11101 Golf/NotMot.MSJ 3 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Helen Skarla, Index No. 90/14 Plaintiff, AFFIRMATION IN -against- SUPPORT OF MOTION FOR NPSFT LLC, NPSFT1 LLC, Eldridge SUMMARY Properties, Inc., Visions Federal Credit Union JUDGMENT d/b/a Paragon Federal Union, Kostas Golfinopoulos, Esq. and Kostas Assigned to: Golfinopoulos, Esq., PLLC, and Steven W. Hon. Allan B. Weiss Stutman, Esq., Defendants. Helmut Borchert, Esq., an attorney duly admitted to practice law in the courts of the State of New York, affirms that the following statements are true and accurate and subject to the penalties of perjury: 1. I am a partner in the law firm of Borchert & LaSpina, P.C., the attorneys of record for defendants Kostas Golfinopoulos, Esq. and Kostas Golfinopoulos, Esq., PLLC (collectively, "Golfinopoulos") and, as such, am fully familiar with the facts and circumstances surrounding this case. FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 2. I submit this affirmation in support of the within motion by defendants Kostas Golfinopoulos, Esq. and Kostas Golfinopoulos, Esq., PLLC (collectively "Golfinopoulos") for summary judgment pursuant to CPLR §3211 and §3212 to dismiss the complaint filed by plaintiff Helen Skarla ("Skarla") under index number 90/14 as against Golfinopoulos. This motion does not address the other complaint filed under index number 7649/14, which action was subsequently consolidated into this action'. The affidavits of Kostas Golfinopoulos and non-party Angeliki Pagoulatou f/k/a Angela Korkoumelis are also submitted herewith. This motion is additionally supported by documentary evidence within my possession as counsel. Leandre v. Sharperson, 96 A.D.2d 883, 466 N.Y.S.2d 38 (2d Dept. 1983) (summary judgment may be supported by documentary evidence within counsel's possession). 3. Based upon an order from Justice Sidney Strauss, dated October 17, 2014, Skarla does not have any damages; and without any damages, Skarla's complaint fails as this court previously recognized (January 7, 2014 transcript). 1 date. That complaint will be the subject of a separate motion at a later 2 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 4 " 4. Skarla commenced this action for damages against the various defendants and to void the foreclosure of a residential property (one-family 150th home) known as 3-29 street, Whitestone, New York ("Whitestone Premises") and a mixed-use building (two (2) apartments and two (2) 31st stores) known as 23-29, 23-31, and 23-33 Street, Astoria, New York ("Astoria Premises") (collectively, "the Premises"), amongst other relief. Copies of Skarla's summons and complaint are collectively annexed hereto as Exhibit "A". Copies of the voluminous exhibits to the complaint are Golfinopoulos' collectively annexed hereto as Exhibit "B". A copy of verified answer to the complaint is annexed hereto as Exhibit "C". A copy of the order dismissing the eighth and eleventh causes of action and the claims attorneys' for fees is annexed hereto as Exhibit "D". A copy of the order dismissing the complaint as against defendant Visions is annexed hereto as Exhibit "E". A copy of the order consolidating this action with the action filed under index number 7649/14 is annexed hereto as Exhibit "F". Copies of all other pleadings for this matter are collectively annexed hereto as Exhibit "G". Copies of the pleadings for the action filed under index number 7649/14 are collectively annexed hereto as Exhibit "H". 3 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 5. Skarla's complaint purports to set forth causes of action for: (1) breach of fiduciary duty; (2) aiding and abetting breach of fiduciary duty; (3) fraud in the inducement; (4) constructive fraud; (5) fraudulent concealment; (6) to set aside the foreclosure sale of the Premises; (7) voidance of the referee's deed and subsequent deeds to the Premises; (8) unjust enrichment; (9) constructive trust; (10) injunctive relief; (11) expenses, attorneys' costs and fees; and, (12) pierce the corporate veil. See complaint, Exhibit "A". 6. The eighth and eleventh causes of action as well as all attorneys' demands for fees have been dismissed as against Golfinopoulos pursuant to an order of this court dated June 17, 2014. See order, Exhibit "D". 7. The second cause of action is not pled against Golfinopoulos. The sixth, seventh, ninth and tenth causes of action do not affect Golfinopoulos as Golfinopoulos does not have and never claimed to have any interest in the Premises. 4 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 8. This means that the only causes of action remaining against Golfinopoulos at this time are the first, third, fourth, fifth and twelfth. veil" 9. The twelfth cause of action to "pierce the corporate is actually not a cause of action at all as will be shown below. 10. Damages are an essential element of Skarla's remaining causes of action as against Golfinopoulos. 11. Damages is an element of a claim for breach of fiduciary duty (first cause of action). Kurtzman v. Berqstol, 40 A.D.3d 588, 835 N.Y.S.2d 644 (2d Dept. 2007). 12. Damages is an element of any claim for fraud (third, fourth and fifth causes of action). Channel Master Corp. v. Aluminum Ltd Sales, 4 N.Y.2d 403, 176 N.Y.S.2d 259 (1958); Pope v. Saqet, 29 A.D.3d 437, 817 (1st N.Y.S.2d 1 Dept. 2006); leave denied, 8 N.Y.3d 803 (2007). 5 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 13. Skarla's claims for damages are all premised upon Skarla's loss of the Premises to the foreclosure sale held in the foreclosure action commenced in this court under index number 10936/2007. i 14. Skarla no longer has any damages as the foreclosure sale of the Premises was set aside by the court (Strauss, J.) via order dated October 17, 2014. A copy of that order is annexed hereto as Exhibit "I". 15. During argument concerning an application by Skarla for a temporary restraining order on January 7, 2014, this court recognized that Skarla would have no damages if the foreclosure sale is set aside. S_ee January 7, 2014 transcript, Exhibit "J", at pages 23 and 35. 16. Skarla is now free to redeem the Premises as Skarla claims she desires to do. 17. In addition, Skarla's claims against Golfinopoulos must be dismissed for failure to state a cause of action, violation of the statute of limitations, and failure to plead fraud with particularity. 6 i FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 " " 18. It should be noted that Skarla and her attorneys have been consulting with and attending court conferences with an individual known as Angelo Gerasimou a/k/a Evangelos Gerasimou ("Gerasimou"). Gerasimou is a convicted felon who served a prison term for bank fraud related to real estate transactions. S_ee United States v. Gerasimou, Case No. 04-CR-790, U.S. District Court, E.D.N.Y. A copy of that decision is annexed hereto as Exhibit "K". A copy of a letter dated February 6, 2014 from Craig Zim, Esq. to Sacco & Fillas, LLP is annexed hereto as Exhibit "L". Copies of e-mails with Skarla's attorneys and Gerasimou are annexed hereto as Exhibit "M". See also, affidavit of Golfinopoulos annexed hereto. 19. Like Gerasimou, Skarla has demonstrated that Skarla is a fraudster by Skarla's fraudulent misrepresentations throughout the history of Skarla's mortgage loan, foreclosure, and this litigation. BACKGROUND 20. In 2004, Skarla requested that Golfinopoulos represent Skarla in connection with Skarla's purchase of the Whitestone Premises. The Whitestone Premises was new construction so there was no need for an 7 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 " " engineer's report or termite inspection. At that time, Skarla already owned the Astoria Premises. See affidavit of Golfinopoulos annexed hereto. 21. On October 5, 2004, Skarla purchased the Whitestone Premises from Carlos Acosta and Navia Acosta for $1,150,000.00 via deed ("Deed") executed the same day and recorded on February 17, 2005 in the Office of the City Register of the City of New York ("Office of the City Register") at CRFN 2005000099739. A copy of the recorded Deed is "N" annexed hereto as Exhibit and is also available as a matter of public record. See also, affidavit of Golfinopoulos annexed hereto. 22. The Larsen Realty Group, LLC ("Larsen Realty") and United Realty Associates ("United Realty") were the real estate brokers for that transaction. Other than Skarla's purchase of the Whitestone Premises, Golfinopoulos has not had any dealings with either Larsen Realty or United Realty. Golfinopoulos did not recommend Skarla to either Larsen Realty or United Realty. Skarla found the Whitestone Premises and Larsen Realty Golfinopoulos' and United Realty without assistance or involvement. S_ee affidavit of Golfinopoulos annexed hereto. 8 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 23. In order to obtain financing for the purchase of the Whitestone Premises, Skarla executed a note and purchase money mortgage ("Mortgage") on October 5, 2004 to Paragon Federal Credit Union ("Paragon") for $900,000.00 which Mortgage was secured to both the Whitestone Premises and the Astoria Premises and was recorded on February 17, 2005 in the Office of the City Register at CRFN 2005000099740. A copy of the recorded Mortgage is annexed hereto as Exhibit "O", and is also available as a matter of public record. See also, affidavit of Golfinopoulos annexed hereto. 24. Skarla found Paragon as a result of Skarla having retained mortgage broker Rateline Capital Mortgage Inc. Skarla found and retained Rateline Capital all on Skarla's own and without the assistance or involvement of Golfinopoulos. Other than Skarla's purchase of the Whitestone Premises, Golfinopoulos has not had any dealings with Rateline Capital. See affidavit of Golfinopoulos annexed hereto. 25. Paragon issued a mortgage commitment which required that both the Whitestone Premises and the Astoria Premises had to be 9 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 i encumbered with a mortgage as a condition of Paragon making the loan to Skarla. Copies of the September 10, 2004 mortgage commitment and October 1, 2004 letter from the bank attorney are annexed hereto as "P" Exhibits and "Q", respectively. See also, affidavit of Golfinopoulos annexed hereto. 26. To obtain the Paragon mortgage loan, Skarla completed and executed a loan application. Golfinopoulos did not assist Skarla with Skarla's mortgage loan application to Paragon nor did Skarla request that Golfinopoulos assist or review the loan application. A copy of the loan application is annexed hereto as Exhibit "R". See also, affidavit of Golfinopoulos annexed hereto. 27. Skarla had failed to disclose to Paragon a substantial financial obligation Skarla had undertaken when Skarla promised the U.S. Department of Justice to provide for a foreign student named Eirini Aindili. Golfinopoulos was not aware of this obligation at the time that Skarla obtained Paragon's mortgage. Copies of the U.S. Department of Justice 10 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 " " documents are collectively annexed hereto as Exhibit "S". See also, affidavit of Golfinopoulos annexed hereto. 28. Skarla also produced a certified rent roll dated October 5, 2004 to Paragon as part of Skarla's loan application and closing process, which demonstrated the total rent being collected for the Astoria Premises to be $10,300.00 per month. A copy of Skarla's certified rent roll dated October 5, 2004 is annexed hereto as Exhibit "T". See also, affidavit of Golfinopoulos annexed hereto. 29. Skarla defaulted on the Paragon mortgage loan by failing to make monthly payments becoming due on December 1, 2004, just two months after Skarla purchased the Premises. Copies of Paragon's default letter and loan amortization showing bounced checks are annexed hereto "U" as Exhibits and "V", respectively. See also, affidavit of Golfinopoulos annexed hereto. 30. Upon Skarla's default on the Mortgage, Skarla continued to collect rent for the use of the Astoria Premises in the total amount of 11 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 . . $10,300.00 per month. See certified rent roll, Exhibit "T". See also, affidavit of Golfinopoulos annexed hereto. 31. Additionally, after one commercial tenant was evicted in 2007, Skarla continued to use and operate one of the stores as a dance studio under the name of Helen Skarla Dance Studio, Inc. S_e_e affidavit of Golfinopoulos annexed hereto. 32. Golfinopoulos negotiated a number of loan extensions for Skarla including on February 7, 2006, and then again on January 9, 2007. Copies of the loan extension agreements and related correspondence are "W" annexed hereto, respectively, as Exhibits and "X". See also, affidavit of Golfinopoulos annexed hereto. 33. Skarla again failed to disclose her obligation to the foreign exchange student Eirini Aindill to Paragon as part of Skarla's applications for the the loan extension agreements. A copy of Paragon's debt ratio analysis is annexed hereto as Exhibit "Y". See also, affidavit of Golfinopoulos annexed hereto. 12 FILED: QUEENS COUNTY CLERK 11/09/2022 08:38 PM INDEX NO. 712178/2020 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 11/09/2022 34. At the time of those loan extensions, Golfinopoulos was still unaware of Skarla's financial obligation to student Eirini Aindili. Skarla's financial obligation on student Eirini Aindili's behalf made it extremely difficult, if not impossible, for Skarla to be able to make Skarla's mortgage loan payments to Paragon. Golfinopoulos also later learned that Skarla had an obligation to pay a mortgage on a home in Greece which Skarla also failed to disclose to Paragon. See affidavit of Golfinopoulos annexed hereto. 35. On or about May 1, 2007, Paragon commenced a foreclosure action in the Supreme Court of New York, County of Queens, index 10936/2007 ("foreclosure action") against Skarla for foreclosure of the Premises. A copy of the foreclosure complaint is annexed hereto as Exhibit "Z". See also, affidavit of Golfinopoulos annexed hereto. Golfinopoulos' 36. Skarla retained the legal services of law firm to contest the foreclosure action. Seee affidavit of Golfinopoulos annexed