Preview
FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022
EXHIBIT E
FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
.------............---..........------------------------------....-x
STREET SNACKS, LLC,
Index No: 602374/09
Plaintiff,
-against-
BRIDGE ASSOCIATES OF SOHO, INC.,
ADAM D. LUCKNER, MIDWAY HOLDINGS CORP., NOTICE OF ENTRY
YORK RESOURCES LLC, STERLING NATIONAL
BANK, NEW YORK STATE DISTRICT ATTORNEY, NEW YORK
STATE OF NEW YORK, CITY OF NEW YORK, NEW COUNTY CLERK'S OFFICE
YORK CITY ENVIRONMENTAL CONTROL BOARD,
NEW YORK CITY DEPARTMENT OF FINANCE JAN 0 4 2018
25,"
and "JOHN DOES, Numbered 1 through the names
of the last twenty-five named defendants fictitious, NOT COMPARED
being
real names unknown to plaintiff,the parties intended being
WITH COPY FILE
tenants or persons or corporations having an interest in as
tenants or persons in possession of portions of the mortgaged
premises,
Defendants.
___.-------.....----------------------------------_________________....Ç
PLEASE TAKE NOTICE that the within is a true copy of the Decision and Order of the
appellate panel that was entered in the Supreme Court, Appellate Division, First Department
Clerk's Office on December 28, 2017.
Dated: January 2, 2018
New York, New York
LAROCCA HORNIK ROSEN
GREE RG BLAH LP
Am D. Carlin
32nd
40 Wall Street, Floor
New York, NY 10005
T: (212) 530-4835
E: acarlin@lhrgb.com
Attorneys for Plaintiff Street Snacks, LLC
ofI nigyI2.18
LAls)22,0)tAppeaRNogive
dog
FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022
To: Lambert & Shackman, PLLC
274 Madison Avenue, Suite 1302
New York, NY 10016
Attorneys for Defendants Bridge Associates of Soho, Inc.,
Adam D. Luckner and Midway Holdings Corp.
Bruce H. Wiener, Esq.
Warshaw Burstein LLP
555 Fifth Avenue
New York, NY 10017
Attorneys for Statutory Defendants
2
FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022
Acosta, P.J., Richter, Mazzarelli, Andrias, Gesmer, JJ.
5279- Index 602374/09
5280 &
M-6119 Street Snacks, LLC,
Plaintiff-Respondent,
-against-
Bridge Associates of Soho, Inc., et al.,
Defendants-Appellants,
York Resources, LLC, et al.,
Defendants.
Lambert & Shackman, PLLC, New York (Thomas C. Lambert of
counsel), for appellants.
Larocca Hornik Rosen Greenberg & Blaha, LLP, New York (Amy D.
Carlin of counsel), for respondent.
Order, Supreme Court, New York County (Shlomo Hagler, J.),
entered March 15, 2016, which denied defendants Bridge Associates
of Soho, Inc. and Adam D. Luckner's motion pursuant to CPLR
3215(c) to dismiss the complaint as against them as abandoned,
unanimously affirmed, with costs. Order, same court and Justice,
defendants'
entered August 2, 2016, insofar as it denied motion
to renew and to dismiss the complaint pursuant to CPLR 3211(a),
unanimously affirmed, and appeal therefrom otherwise dismissed,
without costs, as taken from a nonappealable order.
Plaintiff commenced this action in August 2009 to foreclose
a mortgage on certain properties securing a loan to defendant
25
FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022
Bridge Associates of Soho, Inc., the fee owner of one of the
properties. The mortgage and note were guaranteed by defendants
Midway Holdings Corp. and Adam Luckner, the president of Bridge
and Midway. Over the next six years, the parties engaged in a
complex course of negotiations, during which time plaintiff, by
its counsel, granted defendants, by an individual who spoke for
them, many extensions of time to answer the complaint.
Defendants argue that because the individual who was in
contact with plaintiff's counsel was not a lawyer, he did not
have the legal capacity to bind them to the extensions of time,
that therefore the extensions are nullities, and that plaintiff's
failure to seek entry of a default judgment for six years
constitutes an abandonment of the complaint pursuant to CPLR
3215(c).
defendants'
As the motion court observed, citing of the rule
that a corporation may be represented in a legal action only by
an attorney is an improper attempt to use the rule as a sword,
rather than the shield it was meant to be (see Jimenez v
Brenillee Corp., 48 AD3d 351 [1st Dept 2008]). "[T]he rule is
not intended to penalize an adverse party for the corporation's
improper appearance, but is rather to ensure that the corporation
has a licensed representative who is answerable to the court and
matter"
other parties for his or her own conduct in the (id. at
26
FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022
352 [internal citation and quotation marks omitted]). Defendants
do not deny that plaintiff granted the extensions of time, which
were requested on their behalf by an individual who had apparent
authority to act on their behalf and who is identified in the
record as a vice president of Bridge, to allow them to negotiate
a disposition of the property more favorable than foreclosure.
In any event, the record of the aforementioned negotiations
demonstrates that plaintiff did not abandon this action, and thus
shows sufficient cause why the complaint should not be dismissed
(CPLR 3215[c]; see Ocuto Blacktop & Paving Co. v Trataros
Constr., 277 AD2d 919, 920 [4th Dept 2000]; Micheli v E.J.
Builders, 268 AD2d 777, 779-780 [3d Dept 2000]; First Nationwide
Bank v Pretel, 240 AD2d 629 [2d Dept 1997]).
defendants'
We have considered remaining contentions and
find them unavailing.
27
FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022
No appeal lies from an order denying reargument (Mill Fin.,
LLC v Gillett, 149 AD3d 643, 645 [1st Dept 2017]).
M-6119 - v Bridge Associates of Inc.
Snacks, LLC, Soho,
Motion to adjourn appeal for oral
argument denied.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 28, 2017
CLERK
28
FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
I,Natassia Nieves, being duly sworn, depose and say: I am not a party to the action, am over
18 years of age, and reside in Richmond County, New York.
ENTRY"
On January 2, 2018, I served the within "NOTICE OF by depositing a true copy
of same, enclosed in a post-paid wrapper, in an official depository under the exclusive care and
custody of the U.S. Postal Service within New York State, addressed to the following person at the
address set forth below:
To: Lambert & Shackman, PLLC
274 Madison Avenue, Suite 1302
New York, NY 10016
Attorneys for Defendants Bridge Associates of Soho, Inc.,
Adam D. Luckner, and Midway Holdings Corp.
Bruce H. Wiener, Esq.
Warshaw & Burstein LLP
555 Fifth Avenue
New York, NY 10017
Attorneys for Statutory Defendants
Natassia Nieves
Swo to before me this
day January 2018
Notary Public
AMY D. CARLIN
Notary Public, State of New York
No. 31-4979604
Qualified in New York County
Commission Expires 20
Aprd1,
Preview
FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022 EXHIBIT E FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK .------............---..........------------------------------....-x STREET SNACKS, LLC, Index No: 602374/09 Plaintiff, -against- BRIDGE ASSOCIATES OF SOHO, INC., ADAM D. LUCKNER, MIDWAY HOLDINGS CORP., NOTICE OF ENTRY YORK RESOURCES LLC, STERLING NATIONAL BANK, NEW YORK STATE DISTRICT ATTORNEY, NEW YORK STATE OF NEW YORK, CITY OF NEW YORK, NEW COUNTY CLERK'S OFFICE YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY DEPARTMENT OF FINANCE JAN 0 4 2018 25," and "JOHN DOES, Numbered 1 through the names of the last twenty-five named defendants fictitious, NOT COMPARED being real names unknown to plaintiff,the parties intended being WITH COPY FILE tenants or persons or corporations having an interest in as tenants or persons in possession of portions of the mortgaged premises, Defendants. ___.-------.....----------------------------------_________________....Ç PLEASE TAKE NOTICE that the within is a true copy of the Decision and Order of the appellate panel that was entered in the Supreme Court, Appellate Division, First Department Clerk's Office on December 28, 2017. Dated: January 2, 2018 New York, New York LAROCCA HORNIK ROSEN GREE RG BLAH LP Am D. Carlin 32nd 40 Wall Street, Floor New York, NY 10005 T: (212) 530-4835 E: acarlin@lhrgb.com Attorneys for Plaintiff Street Snacks, LLC ofI nigyI2.18 LAls)22,0)tAppeaRNogive dog FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022 To: Lambert & Shackman, PLLC 274 Madison Avenue, Suite 1302 New York, NY 10016 Attorneys for Defendants Bridge Associates of Soho, Inc., Adam D. Luckner and Midway Holdings Corp. Bruce H. Wiener, Esq. Warshaw Burstein LLP 555 Fifth Avenue New York, NY 10017 Attorneys for Statutory Defendants 2 FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022 Acosta, P.J., Richter, Mazzarelli, Andrias, Gesmer, JJ. 5279- Index 602374/09 5280 & M-6119 Street Snacks, LLC, Plaintiff-Respondent, -against- Bridge Associates of Soho, Inc., et al., Defendants-Appellants, York Resources, LLC, et al., Defendants. Lambert & Shackman, PLLC, New York (Thomas C. Lambert of counsel), for appellants. Larocca Hornik Rosen Greenberg & Blaha, LLP, New York (Amy D. Carlin of counsel), for respondent. Order, Supreme Court, New York County (Shlomo Hagler, J.), entered March 15, 2016, which denied defendants Bridge Associates of Soho, Inc. and Adam D. Luckner's motion pursuant to CPLR 3215(c) to dismiss the complaint as against them as abandoned, unanimously affirmed, with costs. Order, same court and Justice, defendants' entered August 2, 2016, insofar as it denied motion to renew and to dismiss the complaint pursuant to CPLR 3211(a), unanimously affirmed, and appeal therefrom otherwise dismissed, without costs, as taken from a nonappealable order. Plaintiff commenced this action in August 2009 to foreclose a mortgage on certain properties securing a loan to defendant 25 FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022 Bridge Associates of Soho, Inc., the fee owner of one of the properties. The mortgage and note were guaranteed by defendants Midway Holdings Corp. and Adam Luckner, the president of Bridge and Midway. Over the next six years, the parties engaged in a complex course of negotiations, during which time plaintiff, by its counsel, granted defendants, by an individual who spoke for them, many extensions of time to answer the complaint. Defendants argue that because the individual who was in contact with plaintiff's counsel was not a lawyer, he did not have the legal capacity to bind them to the extensions of time, that therefore the extensions are nullities, and that plaintiff's failure to seek entry of a default judgment for six years constitutes an abandonment of the complaint pursuant to CPLR 3215(c). defendants' As the motion court observed, citing of the rule that a corporation may be represented in a legal action only by an attorney is an improper attempt to use the rule as a sword, rather than the shield it was meant to be (see Jimenez v Brenillee Corp., 48 AD3d 351 [1st Dept 2008]). "[T]he rule is not intended to penalize an adverse party for the corporation's improper appearance, but is rather to ensure that the corporation has a licensed representative who is answerable to the court and matter" other parties for his or her own conduct in the (id. at 26 FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022 352 [internal citation and quotation marks omitted]). Defendants do not deny that plaintiff granted the extensions of time, which were requested on their behalf by an individual who had apparent authority to act on their behalf and who is identified in the record as a vice president of Bridge, to allow them to negotiate a disposition of the property more favorable than foreclosure. In any event, the record of the aforementioned negotiations demonstrates that plaintiff did not abandon this action, and thus shows sufficient cause why the complaint should not be dismissed (CPLR 3215[c]; see Ocuto Blacktop & Paving Co. v Trataros Constr., 277 AD2d 919, 920 [4th Dept 2000]; Micheli v E.J. Builders, 268 AD2d 777, 779-780 [3d Dept 2000]; First Nationwide Bank v Pretel, 240 AD2d 629 [2d Dept 1997]). defendants' We have considered remaining contentions and find them unavailing. 27 FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022 No appeal lies from an order denying reargument (Mill Fin., LLC v Gillett, 149 AD3d 643, 645 [1st Dept 2017]). M-6119 - v Bridge Associates of Inc. Snacks, LLC, Soho, Motion to adjourn appeal for oral argument denied. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: DECEMBER 28, 2017 CLERK 28 FILED: NEW YORK COUNTY CLERK 06/14/2022 01:19 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 06/14/2022 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) )ss.: COUNTY OF NEW YORK ) I,Natassia Nieves, being duly sworn, depose and say: I am not a party to the action, am over 18 years of age, and reside in Richmond County, New York. ENTRY" On January 2, 2018, I served the within "NOTICE OF by depositing a true copy of same, enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to the following person at the address set forth below: To: Lambert & Shackman, PLLC 274 Madison Avenue, Suite 1302 New York, NY 10016 Attorneys for Defendants Bridge Associates of Soho, Inc., Adam D. Luckner, and Midway Holdings Corp. Bruce H. Wiener, Esq. Warshaw & Burstein LLP 555 Fifth Avenue New York, NY 10017 Attorneys for Statutory Defendants Natassia Nieves Swo to before me this day January 2018 Notary Public AMY D. CARLIN Notary Public, State of New York No. 31-4979604 Qualified in New York County Commission Expires 20 Aprd1,