Preview
FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/14/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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STREET SNACKS, LLC, Index No.: 602374/09
Plaintiff, Motion Seq. No. 006
-against- PLAINTIFF’S
STATEMENT OF
BRIDGE ASSOCIATES OF SOHO, INC., MATERIAL FACTS
ADAM D. LUCKNER, MIDWAY HOLDINGS CORP.,
YORK RESOURCES LLC, STERLING NATIONAL
BANK, NEW YORK STATE DISTRICT ATTORNEY,
STATE OF NEW YORK, CITY OF NEW YORK, NEW
YORK CITY ENVIRONMENTAL CONTROL BOARD,
NEW YORK CITY DEPARTMENT OF FINANCE
and “JOHN DOES, Numbered 1 through 25,” the names
of the last twenty-five named defendants being fictitious,
real names unknown to plaintiff, the parties intended being
tenants or persons or corporations having an interest in as
tenants or persons in possession of portions of the mortgaged
premises,
Defendants.
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In support of its motion for summary judgment and related relief, and in accordance with
Rule 202.8-g of the Uniform Civil Rules of the Supreme Court, plaintiff Street Snacks, LLC
(“Street Snacks”), respectfully submits this statement of material facts as to which Street Snacks
contends there is no genuine issue to be tried.
1. This action arises out of a loan (the “Loan”) made to defendant Bridge Associates
of Soho, Inc. (“Borrower”) and guaranteed by defendants Adam D. Luckner (“Luckner”) and
Midway Holdings Corp. (“Midway,” collectively with Luckner, the “Guarantors”), which is the
subject of this action.
2. In connection with the Loan, Borrower duly executed a Substituted and Restated
Mortgage Note in favor of First Central Savings Bank (“FCSB”) dated May 16, 2015, in the
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principal amount of $1,600,000 (the “Note”). See Affidavit of Joseph Pistilli, sworn to on August
28, 2017 (the “Pistilli Affidavit”), ¶ 36 and Exhibit R.
3. Pursuant to the express terms of the Note, Borrower agreed to pay in monthly
installments of interest on the principal sum at an annual rate equal to eight and 75/100 (8.75%)
percent based on a twenty-five (25) year payout schedule, commencing on July 1, 2005 and a like
sum on the first day of each and every month thereafter until December 1, 2005 (the “Maturity
Date”), when the entire principal would become due. Id.
4. Pursuant to the terms of the Note, provided that Borrower was not in default, it
could elect to extend the loan for an additional six (6) month period from the Maturity Date, June
1, 2006. The rate of interest for the additional six (6) month period would be adjusted so that it
was equal to 500 basis points (5.00%) above the monthly average yield on United States Treasury
Securities adjusted to a constant maturity of six (6) months as most recently published by the
Federal Reserve Board as of the date thirty (30) days prior to the sixth month from the closing
date. Pistilli Affidavit, ¶37.
5. Section 3 of the Note provides that an Event of Default, as defined therein, shall
include any failure to pay, when due, any amounts due thereunder, or the failure to perform any of
the terms, covenants or conditions thereof or of any mortgage, security agreement, loan agreement,
promissory note, guaranty or other agreement executed by Borrower in connection with the Note
or any other loan from FCSB either to Borrower or upon any guaranty or collateral of Borrower.
Pistilli Affidavit, ¶39.
6. Pursuant to the terms of the Note, Borrower agreed to pay a late charge of five (5%)
percent of any payment or part thereof which is not paid within fifteen (15) days of its due date.
Pistilli Affidavit, ¶41.
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7. The Note further provides that interest after default or maturity thereunder shall be
at the rate of twenty-four (24%) percent per annum, and such rate shall continue after judgment
until payment of the entire sum owed thereunder. Pistilli Affidavit, ¶42.
8. Simultaneous with the execution of the Note, and as security for its payment,
Borrower and Luckner, duly executed, acknowledged and delivered to FCSB a Consolidation,
Modification and Extension Agreement (the “Consolidation Agreement”), wherein and whereby
it mortgaged to FCSB the certain property located at: (a) 533 Greenwich Street, New York, New
York, (a/k/a 99 Van Dam Street, New York, New York); (b) 619 Bridge Street, Woodmere, New
York; and (c) 62 Clark Street, Long Beach, New York. Pistilli Affidavit, ¶43 and Exhibit S.
9. The Consolidation Agreement provides that the holder of the Consolidation
Agreement, in any action to foreclose it, shall be entitled to : (a) the appointment of a receiver; (b)
the amount of reasonable attorneys’ fees, expenses, costs incurred and interest thereon at the rate
of twenty-four (24%) percent shall be payable by Borrower and Luckner and added to the
indebtedness secured; and (c) in the case of a foreclosure sale of the mortgaged premises, the
mortgaged premises may be sold in one parcel. Pistilli Affidavit, ¶48 and Exhibit S.
10. Simultaneous with the execution of the Note, the Guarantors executed and
delivered a Guaranty dated May 16, 2005 that was an absolute and unconditional guaranty of
payment of all sums owed by Borrower and performance of all obligations of Borrower under the
Note and Consolidation Agreement. Pistilli Affidavit, ¶49 and Exhibit T.
11. Pursuant to its terms, the Maturity Date of the 2005 Substituted Note was extended
to June 1, 2006. Pistilli Affidavit, ¶52.
12. On November 3, 2008, FCSB sold, assigned and transferred all its right, title and
interest to the Note, the Consolidation Agreement, the Guaranty, and the underlying loan
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documents to Street Snacks. Pistilli Affidavit, ¶¶53-56 and Exhibits V, B, H, J, P, R and W;
Affidavit of Thomas Makkos, sworn to on June 13, 2022 (the “Makkos Affidavit”), ¶¶10-15.
13. Borrower made partial payments of principal and interest to FCSB through and
including April 19, 2008. Neither Borrower nor the Guarantors made any payments to FCSB or
Street Snacks after April 19, 2008. Pistilli Affidavit, ¶¶57-60 and Exhibits X and Y; Makkos
Affidavit, ¶¶18, 23-24; Affirmation of Amy D. Carlin dated June 14, 2022, Exhibit CC at 100:9-
18 and 113:12-14.
14. By letter dated March 27, 2009, Street Snacks notified Borrower of itsdefaults
under the Note. Makkos Affidavit, ¶18, Exhibit B.
15. There is now due and owing from Borrower and the Guarantors to Street Snacks,
the unpaid principal amount of $1,550,577.39, accrued and unpaid interest at the rates set forth in
the Loan Documents, accrued and unpaid late charges, advances made by Street Snacks and Street
Snacks’ costs and expenses of collection, including, without limitation, Street Snacks’ reasonable
attorneys' fees and costs. Makkos Affidavit, ¶24.
Dated: New York, New York
June 14, 2022
LAROCCA HORNIK ROSEN
& GREENBERG LLP
/s/ Amy D. Carlin
By: ___________________________
Amy D. Carlin
40 Wall Street, 32d Floor
New York, NY 10005
T: (212) 530-4835
E: acarlin@lhrgb.com
Attorneys for Plaintiff
Street Snacks, LLC
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Preview
FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 40 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, Motion Seq. No. 006 -against- PLAINTIFF’S STATEMENT OF BRIDGE ASSOCIATES OF SOHO, INC., MATERIAL FACTS ADAM D. LUCKNER, MIDWAY HOLDINGS CORP., YORK RESOURCES LLC, STERLING NATIONAL BANK, NEW YORK STATE DISTRICT ATTORNEY, STATE OF NEW YORK, CITY OF NEW YORK, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY DEPARTMENT OF FINANCE and “JOHN DOES, Numbered 1 through 25,” the names of the last twenty-five named defendants being fictitious, real names unknown to plaintiff, the parties intended being tenants or persons or corporations having an interest in as tenants or persons in possession of portions of the mortgaged premises, Defendants. --------------------------------------------------------------------X In support of its motion for summary judgment and related relief, and in accordance with Rule 202.8-g of the Uniform Civil Rules of the Supreme Court, plaintiff Street Snacks, LLC (“Street Snacks”), respectfully submits this statement of material facts as to which Street Snacks contends there is no genuine issue to be tried. 1. This action arises out of a loan (the “Loan”) made to defendant Bridge Associates of Soho, Inc. (“Borrower”) and guaranteed by defendants Adam D. Luckner (“Luckner”) and Midway Holdings Corp. (“Midway,” collectively with Luckner, the “Guarantors”), which is the subject of this action. 2. In connection with the Loan, Borrower duly executed a Substituted and Restated Mortgage Note in favor of First Central Savings Bank (“FCSB”) dated May 16, 2015, in the 1 of 4 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/14/2022 principal amount of $1,600,000 (the “Note”). See Affidavit of Joseph Pistilli, sworn to on August 28, 2017 (the “Pistilli Affidavit”), ¶ 36 and Exhibit R. 3. Pursuant to the express terms of the Note, Borrower agreed to pay in monthly installments of interest on the principal sum at an annual rate equal to eight and 75/100 (8.75%) percent based on a twenty-five (25) year payout schedule, commencing on July 1, 2005 and a like sum on the first day of each and every month thereafter until December 1, 2005 (the “Maturity Date”), when the entire principal would become due. Id. 4. Pursuant to the terms of the Note, provided that Borrower was not in default, it could elect to extend the loan for an additional six (6) month period from the Maturity Date, June 1, 2006. The rate of interest for the additional six (6) month period would be adjusted so that it was equal to 500 basis points (5.00%) above the monthly average yield on United States Treasury Securities adjusted to a constant maturity of six (6) months as most recently published by the Federal Reserve Board as of the date thirty (30) days prior to the sixth month from the closing date. Pistilli Affidavit, ¶37. 5. Section 3 of the Note provides that an Event of Default, as defined therein, shall include any failure to pay, when due, any amounts due thereunder, or the failure to perform any of the terms, covenants or conditions thereof or of any mortgage, security agreement, loan agreement, promissory note, guaranty or other agreement executed by Borrower in connection with the Note or any other loan from FCSB either to Borrower or upon any guaranty or collateral of Borrower. Pistilli Affidavit, ¶39. 6. Pursuant to the terms of the Note, Borrower agreed to pay a late charge of five (5%) percent of any payment or part thereof which is not paid within fifteen (15) days of its due date. Pistilli Affidavit, ¶41. 2 2 of 4 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/14/2022 7. The Note further provides that interest after default or maturity thereunder shall be at the rate of twenty-four (24%) percent per annum, and such rate shall continue after judgment until payment of the entire sum owed thereunder. Pistilli Affidavit, ¶42. 8. Simultaneous with the execution of the Note, and as security for its payment, Borrower and Luckner, duly executed, acknowledged and delivered to FCSB a Consolidation, Modification and Extension Agreement (the “Consolidation Agreement”), wherein and whereby it mortgaged to FCSB the certain property located at: (a) 533 Greenwich Street, New York, New York, (a/k/a 99 Van Dam Street, New York, New York); (b) 619 Bridge Street, Woodmere, New York; and (c) 62 Clark Street, Long Beach, New York. Pistilli Affidavit, ¶43 and Exhibit S. 9. The Consolidation Agreement provides that the holder of the Consolidation Agreement, in any action to foreclose it, shall be entitled to : (a) the appointment of a receiver; (b) the amount of reasonable attorneys’ fees, expenses, costs incurred and interest thereon at the rate of twenty-four (24%) percent shall be payable by Borrower and Luckner and added to the indebtedness secured; and (c) in the case of a foreclosure sale of the mortgaged premises, the mortgaged premises may be sold in one parcel. Pistilli Affidavit, ¶48 and Exhibit S. 10. Simultaneous with the execution of the Note, the Guarantors executed and delivered a Guaranty dated May 16, 2005 that was an absolute and unconditional guaranty of payment of all sums owed by Borrower and performance of all obligations of Borrower under the Note and Consolidation Agreement. Pistilli Affidavit, ¶49 and Exhibit T. 11. Pursuant to its terms, the Maturity Date of the 2005 Substituted Note was extended to June 1, 2006. Pistilli Affidavit, ¶52. 12. On November 3, 2008, FCSB sold, assigned and transferred all its right, title and interest to the Note, the Consolidation Agreement, the Guaranty, and the underlying loan 3 3 of 4 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/14/2022 documents to Street Snacks. Pistilli Affidavit, ¶¶53-56 and Exhibits V, B, H, J, P, R and W; Affidavit of Thomas Makkos, sworn to on June 13, 2022 (the “Makkos Affidavit”), ¶¶10-15. 13. Borrower made partial payments of principal and interest to FCSB through and including April 19, 2008. Neither Borrower nor the Guarantors made any payments to FCSB or Street Snacks after April 19, 2008. Pistilli Affidavit, ¶¶57-60 and Exhibits X and Y; Makkos Affidavit, ¶¶18, 23-24; Affirmation of Amy D. Carlin dated June 14, 2022, Exhibit CC at 100:9- 18 and 113:12-14. 14. By letter dated March 27, 2009, Street Snacks notified Borrower of itsdefaults under the Note. Makkos Affidavit, ¶18, Exhibit B. 15. There is now due and owing from Borrower and the Guarantors to Street Snacks, the unpaid principal amount of $1,550,577.39, accrued and unpaid interest at the rates set forth in the Loan Documents, accrued and unpaid late charges, advances made by Street Snacks and Street Snacks’ costs and expenses of collection, including, without limitation, Street Snacks’ reasonable attorneys' fees and costs. Makkos Affidavit, ¶24. Dated: New York, New York June 14, 2022 LAROCCA HORNIK ROSEN & GREENBERG LLP /s/ Amy D. Carlin By: ___________________________ Amy D. Carlin 40 Wall Street, 32d Floor New York, NY 10005 T: (212) 530-4835 E: acarlin@lhrgb.com Attorneys for Plaintiff Street Snacks, LLC 4 4 of 4