Preview
FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/14/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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STREET SNACKS, LLC,
Plaintiff, Index No.: 602374/09
-against- Motion Seq. No. 006
BRIDGE ASSOCIATES OF SOHO, INC., AFFIRMATION IN
ADAM D. LUCKNER, MIDWAY HOLDINGS CORP., SUPPORT OF
YORK RESOURCES LLC, STERLING NATIONAL AMY D. CARLIN
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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AMY D. CARLIN, an attorney duly admitted to practice law before the courts and the
State of New York, hereby affirms under penalty of perjury as follows:
1. I am a member of LaRocca Hornik Rosen & Greenberg LLP, attorneys for plaintiff
Street Snacks, LLC (“Street Snacks”). As such I am personally familiar with the facts and
circumstances stated herein. I submit this affirmation in support of Street Snacks’ motion for
summary judgment pursuant to CPLR §3212 in favor of Street Snacks and against defendants
Bridge Associates of Soho, Inc. (“Bridge Associates”), Adam D. Luckner (“Luckner”), and
Midway Holdings Corp. (“Midway”) (Bridge Associates, Luckner, and Midway are hereinafter
collectively referred to as the “Luckner Defendants”), and other related relief.
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2. In view of the fact that part of the relief requested is for an order appointing a referee
to compute, this affirmation should also be deemed Street Snacks’ affirmation of regularity upon
a motion for an order appointing such a referee. A copy of the proposed Order of Reference is
being submitted separately for the convenience of the Court.
3. This action involves the foreclosure of a commercial mortgage in relation to the
properties known as: (a) 533 Greenwich Street (a/k/a 99 Vandam Street), New York, New York
(the “NYC Property”); (b) 619 Bridge Street, Woodmere, New York (the “Woodmere Property:”
and (c) 62 Clark Street, Long Beach, New York (the “Long Beach Property”).
A. The Institution of this Action.
4. As more fully set forth in the Affidavits of Thomas Makkos and Joseph Pistilli
submitted herewith, Street Snacks is the owner and holder of various debt instruments and loan
documents evidencing or referring to the commercial mortgage that is the subject of this action
(collectively, the “Loan Documents”). Street Snacks is in possession of the original Loan
Documents.
5. The Summons and Verified Complaint (“Complaint”) seeking the foreclosure of
the commercial mortgage were filed by Street Snacks in the New York County Clerk’s Office on
August 3, 2009. Copies of the Summons, Complaint, and Help for Homeowners in Foreclosure
Notice are annexed hereto collectively as Exhibit A and copies of the initial and current Notices
of Pendency filed in New York and Nassau Counties are annexed hereto collectively as Exhibit
B.
6. The Summons, Complaint, Help for Homeowners in Foreclosure Notice printed on
color paper, and Notices of Pendency were served on the defendants. Copies of the Affidavits of
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Service for Bridge Associates, Luckner, and Midway are annexed hereto collectively as Exhibit
C.
7. Copies of the Affidavits of Service for York Resources, LLC (“York”), Sterling
National Bank (“Sterling”), State of New York (“NY State”), City of New York (“NY City”), New
York State District Attorney (“NY DA”), and New York City Department of Taxation and Finance
(“NYC Tax Dept.”) are annexed hereto collectively as Exhibit D.
8. Copies of the Affidavits of Service for the New York City Environmental Control
Board (“ECB”) are annexed hereto as Exhibit E.
9. Copies of the Affidavits of Service for the “John Doe” defendants are annexed
hereto collectively as Exhibit F.
10. On or about September 8, 2009, York interposed a Notice of Appearance, a copy
of which is annexed hereto as Exhibit G.
11. On or about September 9, 2009, Sterling interposed a Notice of Appearance and
Waiver, a copy of which is annexed hereto as Exhibit H.
12. On or about September 21, 2009, NY State interposed a Notice of Appearance, a
copy of which is annexed hereto as Exhibit I.
13. On or about October 5, 2009, NY City interposed a Notice of Appearance, a copy
of which is annexed hereto as Exhibit J.
14. On or about October 6, 2009, the New York DA interposed a Notice of Appearance
and Claim to Surplus Monies, a copy of which is annexed hereto as Exhibit K.
15. On or about November 20, 2009, Steve Greenberg, Tricia Nash, Joseph Haske,
Susan Brown, Ryder Haske, Alexia Brue, Ethan Klemperer, Mablen Jones, David Lawrence, Anne
Lawrence, Ellen Colon- Lugo, Edward Masler, Janet Burgan, James Noll, Martin Sheridan,
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Virginia Sheridan and Conrad Vogel sued here as “John Does” (collectively, the “NYC Property
Tenants”), interposed a Verified Answer. A copy of the NYC Property Tenants’ Answer is
annexed hereto as Exhibit L. The NYC Property Tenants occupy certain units situated in the NYC
Property.
16. Street Snacks has identified the NYC Property Tenants as defendants “John Does”
and has not identified any other defendants sued herein as “John Does.”
17. On or about August 29, 2017, Street Snacks and the NYC Property Tenants
executed a Stipulation of Discontinuance Without Prejudice of the action solely as against the
NYC Property Tenants. A copy of the Stipulation is annexed hereto as Exhibit M.
18. On or about September 17, 2021, the NYC Tax Dept. interposed a Notice of
Appearance and Waiver in Foreclosure, a copy of which is annexed hereto as Exhibit N.
B. The Luckner Defendants’ Motion to Dismiss the Complaint
Pursuant to CPLR §3215(c) was Denied.
19. Shortly after Street Snacks filed and served the Complaint in this action, Street
Snacks and the Luckner Defendants entered into settlement discussions. By letter dated September
16, 2009, the Luckner Defendants waived their jurisdictional defenses. A copy of the letter and
transmittal email is annexed hereto as Exhibit O.
20. During prolonged and complex negotiations, the parties expressly agreed that the
Luckner Defendants would have an open-ended extension of time within which to serve a
responsive pleading to the Complaint. See the September 14, 2011 letter expanding the Luckner
Defendants’ time to respond, annexed hereto with the transmittal email thread as Exhibit P.
21. After numerous attempts at structuring a global settlement failed, on November 10,
2015, the Luckner Defendants filed a motion to dismiss the Complaint pursuant to CPLR §3215(c)
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(Motion Seq. 1), arguing that they had failed to interpose an answer, were in default, and Street
Snacks failed to timely move to enter a default judgment within one year.
22. Street Snacks opposed the Luckner Defendants’ motion, demonstrating that
inasmuch as the Luckner Defendants were given an open-ended extension of time within which to
interpose an answer, the Luckner Defendants were not in default and as such, CPLR §3215(c) was
inapplicable. Street Snacks further argued that even assuming, arguendo, that the Luckner
Defendants were deemed to be in default, Street Snacks’ claim was meritorious and it had an
excuse for any delay in moving to enter a default judgment. In that regard, Street Snacks submitted
voluminous documentary evidence demonstrating that from the outset, the Luckner Defendants
and Street Snacks were working to achieve a global settlement of all the liens recorded against the
NYC Property that would not have been possible without holding the prosecution of this action in
abeyance.
23. In a Decision dated March 14, 2016, the court denied the Luckner Defendants’
motion, concluding:
It was quite clear from the papers that Mr. Alan Luckner was acting on
behalf of all the defendants, if it wasn’t actual authority it was certainly
apparent authority. That it was to the benefit of all defendants to now lull
the plaintiff into a position that it did not take a default against them because
they agreed to it, and then use it as a sword rather than a shield is not the
purpose or the intent of CPLR 3215(c).
It was quite apparent to all parties concerned that the Answer was extended
definitely until such time there was a settlement, and I think it’s beyond
dispute that that was the case. This was just a legal maneuver to have this
case dismissed when there is no real reason to do so.
See the Decision dated March 14, 2016 and entered March 15, 2016 (the “March 2016 Decision”),
annexed hereto as Exhibit Q at 7:7-21.
24. On or about August 17, 2016, the Luckner Defendants interposed a Verified
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Answer (“Luckner Defendants’ Answer”). The Luckner Defendants’ Answer asserts general
denials and affirmative defenses based on lack of personal jurisdiction, Street Snacks’ standing,
laches, equitable estoppel and failure to prosecute. A copy of the Luckner Defendants’ Answer is
annexed hereto as Exhibit R.
C. The Luckner Defendants’ Motion to Renew and/or Reargue and to
Dismiss the Complaint pursuant to CPLR §3211(a) was Denied.
25. On April 20, 2016, the Luckner Defendants filed a second motion (Motion Seq. 2)
seeking an order: (a) pursuant to CPLR §2221 granting the Luckner Defendants leave to reargue
and renew their motion pursuant to CPLR §3215(c); and (b) pursuant to CPLR §3211(a)
dismissing the Complaint. In their second motion, the Luckner Defendants attempted to attack the
multiple agreements extending their time to interpose an answer by arguing that neither Luckner
nor his father had the “capacity” under CPLR §321(a) to enter into the extension agreements. The
Luckner Defendants argued that because the agreements were “nullities,” they were in default and
Street Snacks failed to enter judgment pursuant to CPLR §3215(c).
26. With respect to the branch of their motion seeking to dismiss the Complaint
pursuant to CPLR §3211(a), the Luckner Defendants re-packaged their argument that Street
Snacks purportedly abandoned the lawsuit and contended that Street Snacks created “a loophole”
that left the Luckner Defendants “without a vehicle for dismissing the case.” The Luckner
Defendants advanced the novel legal theory that the Complaint should be dismissed pursuant to
CPLR §3211(a) “as a matter of equity.”
27. The court denied the Luckner Defendants’ second motion in its entirety, adhering
to its original decision:
[I]t all boils down to this: Is it equitable or fair for your client to take
advantage of the plaintiff during negotiations wherein they could have taken
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a default against your client, did not do so based upon the representations
of your client? I don’t believe the appellate courts or the court would not
enforce such an agreement.
***
It’s clear to this Court that there was an agreement among the parties. It
would be completely inequitable to allow the defendants to take advantage
of those [agreements], to use itas a sword rather than a shield. The law
never meant for that to occur. Again, very creative arguments, but
nonetheless, there’s no merit to any of the arguments. Therefore, the Court
denies the motion in its entirety.
See the Decision dated August 1, 2016 and entered August 2, 2016 (the “August 2016 Decision”)
annexed hereto as Exhibit S at 5:4-15 and 11:10-17.
28. With respect to the branch of the Luckner Defendants’ motion seeking to dismiss
the complaint pursuant to CPLR §3211(a), the court went on to state that the Complaint states a
cause of action:
I have never heard of a motion to dismiss based upon something other than
abandonment, because the other side doesn’t want to take control of the
property. It doesn’t exist as a matter of law. On a motion to dismiss you
have to look at the complaint as a matter of law, and all favorable inferences
must be given to the non-movant. There’s no necessity for the denial of
anything at all here…As a matter of law, the complaint states a cause of
action.
Exhibit S at 10:12-19, 11:7-9.
D. The Appellate Division, First Department Unanimously Affirmed the March 2016
Decision and the August 2016 Decision.
29. In a Decision dated December 28, 2017, the Appellate Division, First Department
unanimously affirmed the March 2016 Decision and the August 2016 Decision. A copy of the
Decision of the Appellate Division, First Department is annexed hereto as Exhibit T.
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E. Bridge Associates Filed a Petition for Chapter 11 Protection while Street Snacks’
Original Motion for Summary Judgment was Sub Judice.
30. On September 8, 2017, Street Snacks filed its original motion for summary
judgment and related relief (Motion Seq. No. 3). The motion was fully submitted to the court on
or about November 22, 2017.
31. While Street Snack’s motion was sub judice, on or about February 23, 2018, Bridge
Associates filed a voluntary petition for protection under Chapter 11 of the Bankruptcy Code in
the United States Bankruptcy Court for the Eastern District of New York.
32. On or about June 4, 2018, Bridge Associates moved under 11 U.S.C. §§ 363(b) and
(f) for leave to sell the NYC Property “free and clear” of all liens, claims, encumbrances, and
interests, including rights of occupancy vested in the NYC Property Tenants.
33. On July 2, 2018, the Bankruptcy Court ruled that N.Y. Mult. Dwell. Law, Art. 7-C,
§§280-287 afforded possessory rights to the NYC Property Tenants, and therefore the NYC
Property could not be sold “free and clear” under 11 U.S.C. §§ 363(f)(1) and (4). See the
Memorandum Decision and Order annexed hereto as Exhibit U. On or about July 13, 2018, Bridge
Associates successfully petitioned the U.S. Court of Appeals for the Second Circuit under 28
U.S.C. § 158(d)(2) for leave to appeal the Bankruptcy Court’s decision.
34. In a decision dated October 17, 2019, the Second Circuit affirmed the Bankruptcy
Court’s decision. A copy of the Summary Order is annexed hereto as Exhibit V.
35. On or about February 21, 2020, Bridge Associates’ bankruptcy petition was
dismissed. A copy of the Bankruptcy Court’s Order is annexed hereto Exhibit W.
36. On or about March 4, 2020, the NYC Property was sold at public auction pursuant
to a Judgment of Foreclosure and Sale issued in the matter of NYCTL 2013-A Trust, et. al. v. Bridge
Associates of Soho, Inc., et al., Supreme Court, New York County, Index No. 154799/14 (the “Tax
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Lien Foreclosure”).1 The sale of the NYC Property by the court in the Tax Lien Foreclosure did
not produce any surplus monies. Attached hereto as Exhibit X is a copy of the completed
Foreclosure Action Surplus Monies Form filed in the Tax Lien Foreclosure.
37. Pursuant to an AO157/20 Conference Order dated June 10, 2021 and entered June
25, 2021, this Court marked Street Snack’s original motion for summary judgment (Motion Seq.
No. 3) withdrawn without prejudice to re-filing after this matter was converted to e-filing. A copy
of the Order is annexed hereto as Exhibit Y. In the Order, the Court extended the COVID-related
stay of this action to August 31, 2021.
38. On or about August 12, 2021, this action was converted to an e-filing matter.
39. Pursuant to the Status Conference Order dated September 23, 2021, a copy of which
is annexed hereto as Exhibit Z, the stay of this action was extended to January 15, 2022.
40. During a Status Conference on February 2, 2022, the Luckner Defendants advised
this Court that they did not intend to raise any objection under CPLR §3212(a) that the Street
Snack’s motion for summary judgement is being made more than 120 days after the Note of Issue
was filed. See the Status Conference Order dated February 2, 2022, a copy of which is annexed
hereto as Exhibit AA.2
41. There are no stays in effect at this time.
42. Other than the Luckner Defendants, York, Sterling, NY State, NY City, NY DA,
NYC Tax Dept., and the NYC Property Tenants, no other defendant appeared, answered, or
1
On or about May 15, 2014, the NYCTL 2013-A Trust and the Bank Of New York Mellon, as Collateral Agent and
Custodian commenced an action to foreclose certain tax liens on the NYC Property based on a tax lien certificate and
§§ 11-332 and 11-335 of the Administrative Code of the City of New York. See Exhibit E annexed to the Affidavit
of Thomas Makkos.
2
Street Snacks’ original motion (Motion Seq. No. 3) was timely filed within 120 days of the filing of the Note of
Issue. A copy of the Note of Issue filed by Street Snacks in this action on June 29, 2017, is annexed hereto as Exhibit
BB.
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otherwise responded to the Complaint.
43. The only defendants who have appeared in this action and who are presently
contesting Street Snacks’ claims in the Complaint are the Luckner Defendants, by virtue of their
filed Verified Answer.
44. More than thirty days have elapsed since defendant ECB was served with the
Summons, Complaint and Notices of Pendency, and said defendant has not appeared herein and
its time to answer or appear has expired. As such, a request is made to have a default judgment be
entered against the ECB.
45. Upon information and belief, no defendant herein is an infant, incompetent or
absentee, or in the military service of the United States of America.
46. Relevant portions of the transcript from Luckner’s June 2, 2017 deposition are
annexed hereto as Exhibit CC.
47. All proceedings heretofore had herein have been wholly regular and in accordance
with the rules and practices of this Court.
48. This is a commercial foreclosure action, not subject to CPLR §3408.
49. This is not an action to foreclose a residential mortgage loan in which the loan in
foreclosure is a subprime loan as defined in RPAPL §1304 or a high-cost home loan as defined in
Section 6-I of the Banking Law.
50. Except as set forth herein, no previous application has been made for the relief
requested herein.
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WHEREFORE, deponent respectfully requests that Plaintiff’s motion be granted in its
entirety, and that Plaintiff be granted with such other and further relief as this Court determines is
just and proper.
Dated: New York, New York
June 14, 2022
/s/ Amy D. Carlin
Amy D. Carlin
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WORD COUNT CERTIFICATION
Pursuant to Section 202.8-b of the Uniform Rules for the Supreme Court
I, Amy D. Carlin, an attorney duly admitted to practice law before the courts of the State
of New York, hereby certify that this affirmation complies with the word count limit and that the
total number of words in the affirmation, inclusive of point headings and footnotes is 2,904. In
preparing this certification, I have relied on the word count of the word processing system used to
prepare this affirmation.
Dated: New York, New York
June 14, 2022
/s/ Amy D. Carlin
Amy D. Carlin
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FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X STREET SNACKS, LLC, Plaintiff, Index No.: 602374/09 -against- Motion Seq. No. 006 BRIDGE ASSOCIATES OF SOHO, INC., AFFIRMATION IN ADAM D. LUCKNER, MIDWAY HOLDINGS CORP., SUPPORT OF YORK RESOURCES LLC, STERLING NATIONAL AMY D. CARLIN 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 AMY D. CARLIN, an attorney duly admitted to practice law before the courts and the State of New York, hereby affirms under penalty of perjury as follows: 1. I am a member of LaRocca Hornik Rosen & Greenberg LLP, attorneys for plaintiff Street Snacks, LLC (“Street Snacks”). As such I am personally familiar with the facts and circumstances stated herein. I submit this affirmation in support of Street Snacks’ motion for summary judgment pursuant to CPLR §3212 in favor of Street Snacks and against defendants Bridge Associates of Soho, Inc. (“Bridge Associates”), Adam D. Luckner (“Luckner”), and Midway Holdings Corp. (“Midway”) (Bridge Associates, Luckner, and Midway are hereinafter collectively referred to as the “Luckner Defendants”), and other related relief. L:\18222.03\2022 Summary Judgment Motion\Carlin Affirm.6.14.22 (Final).docx 1 of 12 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/14/2022 2. In view of the fact that part of the relief requested is for an order appointing a referee to compute, this affirmation should also be deemed Street Snacks’ affirmation of regularity upon a motion for an order appointing such a referee. A copy of the proposed Order of Reference is being submitted separately for the convenience of the Court. 3. This action involves the foreclosure of a commercial mortgage in relation to the properties known as: (a) 533 Greenwich Street (a/k/a 99 Vandam Street), New York, New York (the “NYC Property”); (b) 619 Bridge Street, Woodmere, New York (the “Woodmere Property:” and (c) 62 Clark Street, Long Beach, New York (the “Long Beach Property”). A. The Institution of this Action. 4. As more fully set forth in the Affidavits of Thomas Makkos and Joseph Pistilli submitted herewith, Street Snacks is the owner and holder of various debt instruments and loan documents evidencing or referring to the commercial mortgage that is the subject of this action (collectively, the “Loan Documents”). Street Snacks is in possession of the original Loan Documents. 5. The Summons and Verified Complaint (“Complaint”) seeking the foreclosure of the commercial mortgage were filed by Street Snacks in the New York County Clerk’s Office on August 3, 2009. Copies of the Summons, Complaint, and Help for Homeowners in Foreclosure Notice are annexed hereto collectively as Exhibit A and copies of the initial and current Notices of Pendency filed in New York and Nassau Counties are annexed hereto collectively as Exhibit B. 6. The Summons, Complaint, Help for Homeowners in Foreclosure Notice printed on color paper, and Notices of Pendency were served on the defendants. Copies of the Affidavits of 2 2 of 12 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/14/2022 Service for Bridge Associates, Luckner, and Midway are annexed hereto collectively as Exhibit C. 7. Copies of the Affidavits of Service for York Resources, LLC (“York”), Sterling National Bank (“Sterling”), State of New York (“NY State”), City of New York (“NY City”), New York State District Attorney (“NY DA”), and New York City Department of Taxation and Finance (“NYC Tax Dept.”) are annexed hereto collectively as Exhibit D. 8. Copies of the Affidavits of Service for the New York City Environmental Control Board (“ECB”) are annexed hereto as Exhibit E. 9. Copies of the Affidavits of Service for the “John Doe” defendants are annexed hereto collectively as Exhibit F. 10. On or about September 8, 2009, York interposed a Notice of Appearance, a copy of which is annexed hereto as Exhibit G. 11. On or about September 9, 2009, Sterling interposed a Notice of Appearance and Waiver, a copy of which is annexed hereto as Exhibit H. 12. On or about September 21, 2009, NY State interposed a Notice of Appearance, a copy of which is annexed hereto as Exhibit I. 13. On or about October 5, 2009, NY City interposed a Notice of Appearance, a copy of which is annexed hereto as Exhibit J. 14. On or about October 6, 2009, the New York DA interposed a Notice of Appearance and Claim to Surplus Monies, a copy of which is annexed hereto as Exhibit K. 15. On or about November 20, 2009, Steve Greenberg, Tricia Nash, Joseph Haske, Susan Brown, Ryder Haske, Alexia Brue, Ethan Klemperer, Mablen Jones, David Lawrence, Anne Lawrence, Ellen Colon- Lugo, Edward Masler, Janet Burgan, James Noll, Martin Sheridan, 3 3 of 12 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/14/2022 Virginia Sheridan and Conrad Vogel sued here as “John Does” (collectively, the “NYC Property Tenants”), interposed a Verified Answer. A copy of the NYC Property Tenants’ Answer is annexed hereto as Exhibit L. The NYC Property Tenants occupy certain units situated in the NYC Property. 16. Street Snacks has identified the NYC Property Tenants as defendants “John Does” and has not identified any other defendants sued herein as “John Does.” 17. On or about August 29, 2017, Street Snacks and the NYC Property Tenants executed a Stipulation of Discontinuance Without Prejudice of the action solely as against the NYC Property Tenants. A copy of the Stipulation is annexed hereto as Exhibit M. 18. On or about September 17, 2021, the NYC Tax Dept. interposed a Notice of Appearance and Waiver in Foreclosure, a copy of which is annexed hereto as Exhibit N. B. The Luckner Defendants’ Motion to Dismiss the Complaint Pursuant to CPLR §3215(c) was Denied. 19. Shortly after Street Snacks filed and served the Complaint in this action, Street Snacks and the Luckner Defendants entered into settlement discussions. By letter dated September 16, 2009, the Luckner Defendants waived their jurisdictional defenses. A copy of the letter and transmittal email is annexed hereto as Exhibit O. 20. During prolonged and complex negotiations, the parties expressly agreed that the Luckner Defendants would have an open-ended extension of time within which to serve a responsive pleading to the Complaint. See the September 14, 2011 letter expanding the Luckner Defendants’ time to respond, annexed hereto with the transmittal email thread as Exhibit P. 21. After numerous attempts at structuring a global settlement failed, on November 10, 2015, the Luckner Defendants filed a motion to dismiss the Complaint pursuant to CPLR §3215(c) 4 4 of 12 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/14/2022 (Motion Seq. 1), arguing that they had failed to interpose an answer, were in default, and Street Snacks failed to timely move to enter a default judgment within one year. 22. Street Snacks opposed the Luckner Defendants’ motion, demonstrating that inasmuch as the Luckner Defendants were given an open-ended extension of time within which to interpose an answer, the Luckner Defendants were not in default and as such, CPLR §3215(c) was inapplicable. Street Snacks further argued that even assuming, arguendo, that the Luckner Defendants were deemed to be in default, Street Snacks’ claim was meritorious and it had an excuse for any delay in moving to enter a default judgment. In that regard, Street Snacks submitted voluminous documentary evidence demonstrating that from the outset, the Luckner Defendants and Street Snacks were working to achieve a global settlement of all the liens recorded against the NYC Property that would not have been possible without holding the prosecution of this action in abeyance. 23. In a Decision dated March 14, 2016, the court denied the Luckner Defendants’ motion, concluding: It was quite clear from the papers that Mr. Alan Luckner was acting on behalf of all the defendants, if it wasn’t actual authority it was certainly apparent authority. That it was to the benefit of all defendants to now lull the plaintiff into a position that it did not take a default against them because they agreed to it, and then use it as a sword rather than a shield is not the purpose or the intent of CPLR 3215(c). It was quite apparent to all parties concerned that the Answer was extended definitely until such time there was a settlement, and I think it’s beyond dispute that that was the case. This was just a legal maneuver to have this case dismissed when there is no real reason to do so. See the Decision dated March 14, 2016 and entered March 15, 2016 (the “March 2016 Decision”), annexed hereto as Exhibit Q at 7:7-21. 24. On or about August 17, 2016, the Luckner Defendants interposed a Verified 5 5 of 12 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/14/2022 Answer (“Luckner Defendants’ Answer”). The Luckner Defendants’ Answer asserts general denials and affirmative defenses based on lack of personal jurisdiction, Street Snacks’ standing, laches, equitable estoppel and failure to prosecute. A copy of the Luckner Defendants’ Answer is annexed hereto as Exhibit R. C. The Luckner Defendants’ Motion to Renew and/or Reargue and to Dismiss the Complaint pursuant to CPLR §3211(a) was Denied. 25. On April 20, 2016, the Luckner Defendants filed a second motion (Motion Seq. 2) seeking an order: (a) pursuant to CPLR §2221 granting the Luckner Defendants leave to reargue and renew their motion pursuant to CPLR §3215(c); and (b) pursuant to CPLR §3211(a) dismissing the Complaint. In their second motion, the Luckner Defendants attempted to attack the multiple agreements extending their time to interpose an answer by arguing that neither Luckner nor his father had the “capacity” under CPLR §321(a) to enter into the extension agreements. The Luckner Defendants argued that because the agreements were “nullities,” they were in default and Street Snacks failed to enter judgment pursuant to CPLR §3215(c). 26. With respect to the branch of their motion seeking to dismiss the Complaint pursuant to CPLR §3211(a), the Luckner Defendants re-packaged their argument that Street Snacks purportedly abandoned the lawsuit and contended that Street Snacks created “a loophole” that left the Luckner Defendants “without a vehicle for dismissing the case.” The Luckner Defendants advanced the novel legal theory that the Complaint should be dismissed pursuant to CPLR §3211(a) “as a matter of equity.” 27. The court denied the Luckner Defendants’ second motion in its entirety, adhering to its original decision: [I]t all boils down to this: Is it equitable or fair for your client to take advantage of the plaintiff during negotiations wherein they could have taken 6 6 of 12 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/14/2022 a default against your client, did not do so based upon the representations of your client? I don’t believe the appellate courts or the court would not enforce such an agreement. *** It’s clear to this Court that there was an agreement among the parties. It would be completely inequitable to allow the defendants to take advantage of those [agreements], to use itas a sword rather than a shield. The law never meant for that to occur. Again, very creative arguments, but nonetheless, there’s no merit to any of the arguments. Therefore, the Court denies the motion in its entirety. See the Decision dated August 1, 2016 and entered August 2, 2016 (the “August 2016 Decision”) annexed hereto as Exhibit S at 5:4-15 and 11:10-17. 28. With respect to the branch of the Luckner Defendants’ motion seeking to dismiss the complaint pursuant to CPLR §3211(a), the court went on to state that the Complaint states a cause of action: I have never heard of a motion to dismiss based upon something other than abandonment, because the other side doesn’t want to take control of the property. It doesn’t exist as a matter of law. On a motion to dismiss you have to look at the complaint as a matter of law, and all favorable inferences must be given to the non-movant. There’s no necessity for the denial of anything at all here…As a matter of law, the complaint states a cause of action. Exhibit S at 10:12-19, 11:7-9. D. The Appellate Division, First Department Unanimously Affirmed the March 2016 Decision and the August 2016 Decision. 29. In a Decision dated December 28, 2017, the Appellate Division, First Department unanimously affirmed the March 2016 Decision and the August 2016 Decision. A copy of the Decision of the Appellate Division, First Department is annexed hereto as Exhibit T. 7 7 of 12 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/14/2022 E. Bridge Associates Filed a Petition for Chapter 11 Protection while Street Snacks’ Original Motion for Summary Judgment was Sub Judice. 30. On September 8, 2017, Street Snacks filed its original motion for summary judgment and related relief (Motion Seq. No. 3). The motion was fully submitted to the court on or about November 22, 2017. 31. While Street Snack’s motion was sub judice, on or about February 23, 2018, Bridge Associates filed a voluntary petition for protection under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of New York. 32. On or about June 4, 2018, Bridge Associates moved under 11 U.S.C. §§ 363(b) and (f) for leave to sell the NYC Property “free and clear” of all liens, claims, encumbrances, and interests, including rights of occupancy vested in the NYC Property Tenants. 33. On July 2, 2018, the Bankruptcy Court ruled that N.Y. Mult. Dwell. Law, Art. 7-C, §§280-287 afforded possessory rights to the NYC Property Tenants, and therefore the NYC Property could not be sold “free and clear” under 11 U.S.C. §§ 363(f)(1) and (4). See the Memorandum Decision and Order annexed hereto as Exhibit U. On or about July 13, 2018, Bridge Associates successfully petitioned the U.S. Court of Appeals for the Second Circuit under 28 U.S.C. § 158(d)(2) for leave to appeal the Bankruptcy Court’s decision. 34. In a decision dated October 17, 2019, the Second Circuit affirmed the Bankruptcy Court’s decision. A copy of the Summary Order is annexed hereto as Exhibit V. 35. On or about February 21, 2020, Bridge Associates’ bankruptcy petition was dismissed. A copy of the Bankruptcy Court’s Order is annexed hereto Exhibit W. 36. On or about March 4, 2020, the NYC Property was sold at public auction pursuant to a Judgment of Foreclosure and Sale issued in the matter of NYCTL 2013-A Trust, et. al. v. Bridge Associates of Soho, Inc., et al., Supreme Court, New York County, Index No. 154799/14 (the “Tax 8 8 of 12 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/14/2022 Lien Foreclosure”).1 The sale of the NYC Property by the court in the Tax Lien Foreclosure did not produce any surplus monies. Attached hereto as Exhibit X is a copy of the completed Foreclosure Action Surplus Monies Form filed in the Tax Lien Foreclosure. 37. Pursuant to an AO157/20 Conference Order dated June 10, 2021 and entered June 25, 2021, this Court marked Street Snack’s original motion for summary judgment (Motion Seq. No. 3) withdrawn without prejudice to re-filing after this matter was converted to e-filing. A copy of the Order is annexed hereto as Exhibit Y. In the Order, the Court extended the COVID-related stay of this action to August 31, 2021. 38. On or about August 12, 2021, this action was converted to an e-filing matter. 39. Pursuant to the Status Conference Order dated September 23, 2021, a copy of which is annexed hereto as Exhibit Z, the stay of this action was extended to January 15, 2022. 40. During a Status Conference on February 2, 2022, the Luckner Defendants advised this Court that they did not intend to raise any objection under CPLR §3212(a) that the Street Snack’s motion for summary judgement is being made more than 120 days after the Note of Issue was filed. See the Status Conference Order dated February 2, 2022, a copy of which is annexed hereto as Exhibit AA.2 41. There are no stays in effect at this time. 42. Other than the Luckner Defendants, York, Sterling, NY State, NY City, NY DA, NYC Tax Dept., and the NYC Property Tenants, no other defendant appeared, answered, or 1 On or about May 15, 2014, the NYCTL 2013-A Trust and the Bank Of New York Mellon, as Collateral Agent and Custodian commenced an action to foreclose certain tax liens on the NYC Property based on a tax lien certificate and §§ 11-332 and 11-335 of the Administrative Code of the City of New York. See Exhibit E annexed to the Affidavit of Thomas Makkos. 2 Street Snacks’ original motion (Motion Seq. No. 3) was timely filed within 120 days of the filing of the Note of Issue. A copy of the Note of Issue filed by Street Snacks in this action on June 29, 2017, is annexed hereto as Exhibit BB. 9 9 of 12 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/14/2022 otherwise responded to the Complaint. 43. The only defendants who have appeared in this action and who are presently contesting Street Snacks’ claims in the Complaint are the Luckner Defendants, by virtue of their filed Verified Answer. 44. More than thirty days have elapsed since defendant ECB was served with the Summons, Complaint and Notices of Pendency, and said defendant has not appeared herein and its time to answer or appear has expired. As such, a request is made to have a default judgment be entered against the ECB. 45. Upon information and belief, no defendant herein is an infant, incompetent or absentee, or in the military service of the United States of America. 46. Relevant portions of the transcript from Luckner’s June 2, 2017 deposition are annexed hereto as Exhibit CC. 47. All proceedings heretofore had herein have been wholly regular and in accordance with the rules and practices of this Court. 48. This is a commercial foreclosure action, not subject to CPLR §3408. 49. This is not an action to foreclose a residential mortgage loan in which the loan in foreclosure is a subprime loan as defined in RPAPL §1304 or a high-cost home loan as defined in Section 6-I of the Banking Law. 50. Except as set forth herein, no previous application has been made for the relief requested herein. 10 10 of 12 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/14/2022 WHEREFORE, deponent respectfully requests that Plaintiff’s motion be granted in its entirety, and that Plaintiff be granted with such other and further relief as this Court determines is just and proper. Dated: New York, New York June 14, 2022 /s/ Amy D. Carlin Amy D. Carlin 11 11 of 12 FILED: NEW YORK COUNTY CLERK 06/14/2022 04:49 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/14/2022 WORD COUNT CERTIFICATION Pursuant to Section 202.8-b of the Uniform Rules for the Supreme Court I, Amy D. Carlin, an attorney duly admitted to practice law before the courts of the State of New York, hereby certify that this affirmation complies with the word count limit and that the total number of words in the affirmation, inclusive of point headings and footnotes is 2,904. In preparing this certification, I have relied on the word count of the word processing system used to prepare this affirmation. Dated: New York, New York June 14, 2022 /s/ Amy D. Carlin Amy D. Carlin 12 12 of 12