Preview
FILED: NEW YORK COUNTY CLERK 12/14/2022 06:03 PM INDEX NO. 602374/2009
NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2022
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. 007
-against- AFFIRMATION IN
SUPPORT OF PLAINTIFF’S
BRIDGE ASSOCIATES OF SOHO, INC., MOTION TO CONFIRM
ADAM D. LUCKNER, MIDWAY HOLDINGS CORP., REFEREE REPORT AND
YORK RESOURCES LLC, STERLING NATIONAL FOR JUDGMENT OF
BANK, NEW YORK STATE DISTRICT ATTORNEY, FORECLOSURE AND SALE
STATE OF NEW YORK, CITY OF NEW YORK, NEW
YORK CITY ENVIRONMENTAL CONTROL BOARD,
NEW YORK CITY DEPARTMENT OF FINANCE,
Defendants.
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
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 to
confirm the Referee’s Report of Amount Due and for a judgment of foreclosure and sale.
2. This action was brought to foreclose the commercial mortgage on the properties
located at: (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
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Clark Street, Long Beach, New York (the “Long Beach Property”).1
3. True and accurate copies of the following documents are annexed hereto:
Document Exhibit
NYC Property Foreclosure Action Surplus Monies Form Exhibit A
Affidavit of Joseph Pistilli Exhibit B
Affidavit in Support of Thomas Makkos Exhibit C
Summons, Complaint, and Help for Homeowners Notice Exhibit D
Notices of Pendency Exhibit E
Affidavits of Service Exhibit F
Department of Defense Search Results Exhibit G
Luckner Defendants’ Verified Answer Exhibit H
NYC Property Tenants’ Answer Exhibit I
Notices of Appearance Exhibit J
Notice of Entry of Order granting summary judgment Exhibit K
Notice of Computation with Attachments: Exhibit L
Proposed Referee’s Oath
Proposed Referee’s Report of Amount Due with Schedules A-E
Objection to Proposed Computation and Referee’s Exhibit M
Report & Demand for Hearing
Affidavit of Thomas Makkos in Further Support of Amounts Due Exhibit N
Affirmation of Amy D. Carlin in Further Support of Amounts Due Exhibit O
Oath and Referee’s Report of Amount Due Exhibit P
4. In addition, an Affirmation of Legal Services, Costs of Plaintiff, and a Proposed
Judgment of Foreclosure and Sale are being filed contemporaneously herewith.
PROCEDURAL HISTORY
5. 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”).
1
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 tax lien foreclosure action entitled 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 Lien Foreclosure”). The sale of the NYC
Property by the court in the Tax Lien Foreclosure did not produce any surplus monies. Annexed hereto as Exhibit A
is a copy of the completed Foreclosure Action Surplus Monies Form filed in the Tax Lien Foreclosure.
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6. Pursuant to the express terms of the subject note (the “Note”), Bridge Associates
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. See Exhibit B, ¶ 36.
7. Pursuant to the terms of the Note, provided that Bridge Associates 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. Exhibit B, ¶ 36.
8. Simultaneous with the execution of the Note, and as security for its payment,
Borrower and Luckner, duly executed, acknowledged and delivered to First Central Savings Bank
(“FCSB”) a Consolidation, Modification and Extension Agreement (the “Mortgage”), wherein and
whereby it mortgaged to FCSB the NYC Property, Woodmere Property and Long Beach Property.
Exhibit C, ¶43.
9. Simultaneous with the execution of the Note, which was executed by Adam
Luckner, as President of Bridge Associates, and the Mortgage, Adam Luckner, individually, and
Midway executed and delivered a Guaranty (the “Guaranty”) dated May 16, 2005 that was an
absolute and unconditional guaranty of payment of all sums owed by Bridge Associates and
performance of all obligations of Bridge Associates under the Note and the Mortgage. Exhibit B,
¶49.
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10. On November 3, 2008, FCSB sold, assigned and transferred all its right, title and
interest to the Note, the Mortgage, the Guaranty, and the underlying loan documents (the “Loan
Documents”) to Street Snacks. Exhibit B, ¶¶53-56; Exhibit C, ¶¶10-15.
11. This action was commenced because of the Luckner Defendants’ failure to pay the
outstanding principal, unpaid and accrued interest, default interest, late fees, attorneys’ fees, and
all other sums due and owing under the Note on or before June 1, 2006, the final maturity date of
the Note. Exhibit B, ¶¶57-60; Exhibit C, ¶¶18, 23-24.
12. The Summons and Complaint were duly filed 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 D.
13. Notices of Pendency in due form and containing correctly and truly all the
particulars required by law to be stated in such notice were duly filed in the New York County
Clerk’s Office on August 3, 2009 and the Nassau County Clerk’s Office on August 24, 2009 and
supplemented thereafter. Copies of the Notices of Pendency filed to date are annexed hereto
collectively as Exhibit E.
14. All of the defendants were served with the Summons, Complaint, and Help for
Homeowners in Foreclosure notice. Copies of the Affidavits of Service are annexed hereto
collectively as Exhibit F.
15. I conducted a Department of Manpower Data Center search to determine the current
military status of defendant Adam D. Luckner, prior to submitting this application. The search
results indicate that Mr. Luckner is not actively enrolled with the military. A copy of the Service
Member Relief Act search results is annexed hereto as Exhibit G.
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16. All of the necessary defendants are of full age and sound mind and no necessary
defendant is an absentee, or prior encumbrancer.
17. On or about August 17, 2016, the Luckner Defendants interposed a Verified
Answer, a copy of which is annexed hereto as Exhibit H.
18. 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,
Virginia Sheridan and Conrad Vogel sued here as “John Does” (collectively, the “NYC Property
Tenants”), interposed a Verified Answer, a copy of which is annexed hereto as Exhibit I. The
NYC Property Tenants occupy certain units situated in the NYC Property.
19. Defendants York Resources, LLC, Sterling National Bank, New York District
Attorney, State of New York, City of New York, and New York City Department of Finance
interposed Notices of Appearance, copies of which are annexed hereto collectively as Exhibit J.
20. On June 14, 2022, Street Snacks moved for summary judgment, an order of
reference, and related relief. Street Snacks’ motion was granted by the Decision and Order on
Motion dated August 19, 2022 and entered in the Supreme Court, New York County Clerk’s Office
on August 22, 2022 (the “Reference Order”). A copy of the Reference Order with Notice of Entry
is annexed hereto as Exhibit K.
21. Pursuant to the Reference Order, Thomas Kleinberger, Esq. (the “Referee”), was
appointed referee to hear and compute the amount due Street Snacks on the Loan and determine
whether the Woodmere Property and the Long Beach Property should be sold in separate parcels.
22. On September 15, 2022, Street Snacks served and filed a Notice of Computation,
proposed Referee’s Oath, and proposed Referee’s Report of Amounts Due which included: (a) the
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Affidavit of Amount Due of Thomas Makkos sworn to on September 13, 2022 with exhibits
annexed as Schedule A to the proposed Report; (b) an abstract of documentary evidence attached
as Schedule B to the proposed Report; (c) proposed details of the Referee’s computation of the
amount due attached as Schedule C to the proposed Report; (d) the Reference Order attached as
Schedule D to the proposed Report; and (e) proof of mailing on all defendants requiring notice of
same attached as Schedule E to the proposed Report. The Notice of Computation, proposed
Referee’s Oath, and proposed Referee’s Report of Amounts Due with the attached Schedules A-E
are annexed hereto collectively as Exhibit L.
23. On or about September 29, 2022, the Luckner Defendants submitted to the Referee
an “Objection to Proposed Computation and Referee’s Report & Demand for Hearing” with
exhibits (the “Objection”), copy of which is annexed hereto as Exhibit M. The Luckner
Defendants objected to Street Snacks recovering the expenses it advanced to protect the NYC
Property based on their belief that Street Snacks did not produce sufficient evidence in support of
each and every expense. The Luckner Defendants also argued in their Objection that interest on
the Loan should be tolled from August 3, 2009 to November 10, 2015 on the theory that Street
Snacks allegedly unreasonably delayed the prosecution of this action. Notably, the Luckner
Defendants failed to disclose to the Referee the multiple well-reasoned decisions finding that
Bridge Associates induced Street Snacks to forebear from prosecuting this action during complex
on-going global settlement negotiations and then resorted to legal maneuvers to take advantage of
that same forbearance.
24. On October 17, 2022, Street Snacks submitted to the Referee the Affidavit of
Thomas Makkos in Further Support of Amounts Due, sworn to on October 17, 2022, with exhibits
(the “Makkos Reply Affidavit”) and the Affirmation of Amy D. Carlin in Further Support of
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Amounts Due dated October 17, 2022 with exhibits (the “Carlin Reply Affirmation”). Copies of
the Makkos Reply Affidavit and the Carlin Reply Affirmation are annexed hereto as Exhibit N
and Exhibit O respectively, and are hereby incorporated by reference.
25. The Makkos Reply Affidavit provided additional testimonial and documentary
evidence supporting Street Snacks’ claims for advances. For example, the Luckner Defendants
claimed that it was unclear how Street Snacks’ hiring of Arpad Baksa Architect P.C. could have
been an advance made to maintain the NYC Property or protect Street Snacks’ security. As set
forth in the Makkos Reply Affidavit, Street Snacks retained Mr. Baksa in 2010 to perform work
preparing a Local Law 11 report in connection the NYC Property. In fact, in 2002, Bridge
Associates had also retained the services of Mr. Baksa in connection with Local Law 11 work
performed at the NYC Property. Exhibit N at ¶¶ 17-18.
26. In response to the Luckner Defendants’ argument that the remaining canceled
checks produced by Street Snacks did not appear to have any connection with the Luckner
Defendants, Street Snacks produced, among other things, a report listing unpaid taxes, water rates,
and assessments that were indexed as liens against the NYC Property, an In Rem Installment
agreement entered into by Street Snacks relating to the NYC Property, property tax bills and
receipts, a water and sewer bill and receipt, and boiler inspection information. See, e.g., Exhibit
N at ¶¶ 11-16.
27. With respect to the Luckner Defendants’ request to toll the interest that accrued
from August 3, 2009 to November 10, 2015, Street Snacks addressed the Luckner Defendants’
mischaracterization of the factual record and procedural history of this action. Street Snacks
submitted proof to the Referee that in four decisions, the court addressed and conclusively rejected
the Luckner Defendants’ arguments that Street Snacks abandoned and/or delayed the prosecution
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of this action. Exhibit O at ¶¶ 5-28. Street Snacks established that there was no basis in law or
fact that would require the Referee to deviate from the multiple decisions holding that, to the extent
there is blame to be laid for the six years that passed after the commencement of the action, the
blame falls squarely with the Luckner Defendants. “[I]n an action of an equitable nature, the
recovery of interest is within the court’s discretion. The exercise of that discretion will be
governed by the particular facts in each case, including any wrongful conduct by either party.”
Prompt Mortg. Providers of N. Am., LLC v. Zarour, 155 A.D.3d 912, 915 (2d Dep’t 2017) (court
denied request to toll interest where plaintiffs’ conduct did not merit the imposition of sanctions
against them in the form of limiting the interest awarded to them).
28. The Luckner Defendants have not set forth any unfair or inequitable conduct on the
part of Street Snacks that would warrant the tolling of interest.2 See U.S. Bank Nat’l Ass’n v.
Haughton, 189 A.D.3d 1305, 1307 (2d Dept. 2020) (although action was plaintiff’s second attempt
to foreclose mortgage, defendant failed to establish that the circumstances surrounding the delay
were attributable to wrongdoing by plaintiff or its predecessor in interest). Here, there is nothing
inherently wrongful or unconscionable about Street Snacks’ efforts to support the Luckner
Defendants’ attempts to reach a complex global settlement. See Bank of N.Y. Mellon v. George,
186 A.D.3d 661, 664 (2d Dep’t 2020) (tolling of interest was not warranted where there was no
showing that plaintiff engaged in any wrongdoing, or engaged in any lengthy unexplained delay
in prosecution); Wells Fargo Bank v. Lee, 2022 WL 4489374, *2 (2d Dep’t September 28, 2022)
(defendants made no showing that there was any wrongdoing by mortgagee or that mortgagee
2
In the Objection, the Luckner Defendants urged the Referee to consider cherry-picked excerpts from the transcript
of Thomas Makkos’ deposition to paint the false picture that Street Snacks did not reasonably believe that a settlement
would be reached with the Luckner Defendants and sat idly by while default interest continued to accrue. In its reply
papers, Street Snacks established that the Luckner Defendants’ argument has no basis in reality.Mr. Makkos testified,
among other things, that although there were complicated circumstances surrounding the NYC Property, Mr. Makkos
recognized that Street Snacks would achieve a greater return on its investment through a negotiated resolution of the
liens on the NYC Property than it would collecting default interest.Exhibit O, ¶¶ 21-24.
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engaged in any unexplained delay in prosecution that would warrant eliminating interest).
29. On October 31, 2022, after having considered the evidence submitted by Street
Snacks and the Objection, the Referee executed an Oath and Referee’s Report of Amount Due,
which computed the amount due to Street Snacks to be $7,924,441.80, plus interest thereon from
September 2, 2022, as provided for in the Loan Documents, exclusive of attorneys’ fees and costs
and disbursements. The Referee also determined that the mortgaged premises, being comprised
of two buildings on two separate parcels of land, should be sold as two parcels. The Referee’s
Oath and the Referee’s Report of Amount Due, together with the attached schedules, are annexed
hereto collectively as Exhibit P.
STREET SNACKS IS ENTITLED TO A
JUDGMENT OF FORECLOSURE AND SALE
30. In conjunction with the motion for summary judgment previously granted by this
Court, Street Snacks established all the required elements for a foreclosure. Street Snacks now
requests that the Woodmere Property and the Long Beach Property be sold pursuant to RPAPL
§1351 and that the sale proceeds be distributed in accordance with RPAPL §1354.
31. Street Snacks is entitled to a judgment that includes reimbursement for Street
Snacks’ reasonable attorney fees in accordance with the terms of the Note and Mortgage. A
detailed affirmation regarding the attorney fees is being filed contemporaneously herewith.
32. Street Snacks is also entitled to a judgment that includes reimbursement for Street
Snacks’ costs, allowances, and disbursements in this matter in accordance with the terms of the
Note, Mortgage, and CPLR Article 83. A detailed statement of Street Snacks’ costs and
disbursements (bill of costs) is being filed contemporaneously herewith.
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33. The Referee has computed that, as of September 1, 2022, Street Snacks is due the
sum of $7,924,441.80, pursuant to the Note and Mortgage (exclusive of attorneys’ fees and costs
and disbursements).
34. The whole amount secured by the Mortgage is due and payable. All of the
proceedings in this action have been regular and in accordance with the rules and practice of this
Court.
35. Since the filing of the notices of pendency of this action, the Complaint has not
been amended so as to make new parties to the action or so as to embrace real property other than
those described in the original complaint or so as to extend Street Snacks’ claim against the
mortgaged premises.
36. Street Snacks respectfully requests an order confirming the Referee’s Report of
Amount Due of Thomas Kleinberger, Esq. dated October 31, 2022, and granting Street Snacks a
judgment of foreclosure and sale in the amount of $7,924,441.80, with such other and further relief
as the Court may deem just and proper.
37. No previous application has been made for the Order herein requested.
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
December 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 2,808. 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
December 14, 2022
/s/ Amy D. Carlin
Amy D. Carlin
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FILED: NEW YORK COUNTY CLERK 12/14/2022 06:03 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X STREET SNACKS, LLC, Index No.: 602374/09 Plaintiff, Motion Seq. No. 007 -against- AFFIRMATION IN SUPPORT OF PLAINTIFF’S BRIDGE ASSOCIATES OF SOHO, INC., MOTION TO CONFIRM ADAM D. LUCKNER, MIDWAY HOLDINGS CORP., REFEREE REPORT AND YORK RESOURCES LLC, STERLING NATIONAL FOR JUDGMENT OF BANK, NEW YORK STATE DISTRICT ATTORNEY, FORECLOSURE AND SALE STATE OF NEW YORK, CITY OF NEW YORK, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY DEPARTMENT OF FINANCE, Defendants. --------------------------------------------------------------------X STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) 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 to confirm the Referee’s Report of Amount Due and for a judgment of foreclosure and sale. 2. This action was brought to foreclose the commercial mortgage on the properties located at: (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 L:\18222.03\Judgment Motion\Carlin Affirm of Regularity (Final) 12.14..22.docx 1 of 11 FILED: NEW YORK COUNTY CLERK 12/14/2022 06:03 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2022 Clark Street, Long Beach, New York (the “Long Beach Property”).1 3. True and accurate copies of the following documents are annexed hereto: Document Exhibit NYC Property Foreclosure Action Surplus Monies Form Exhibit A Affidavit of Joseph Pistilli Exhibit B Affidavit in Support of Thomas Makkos Exhibit C Summons, Complaint, and Help for Homeowners Notice Exhibit D Notices of Pendency Exhibit E Affidavits of Service Exhibit F Department of Defense Search Results Exhibit G Luckner Defendants’ Verified Answer Exhibit H NYC Property Tenants’ Answer Exhibit I Notices of Appearance Exhibit J Notice of Entry of Order granting summary judgment Exhibit K Notice of Computation with Attachments: Exhibit L Proposed Referee’s Oath Proposed Referee’s Report of Amount Due with Schedules A-E Objection to Proposed Computation and Referee’s Exhibit M Report & Demand for Hearing Affidavit of Thomas Makkos in Further Support of Amounts Due Exhibit N Affirmation of Amy D. Carlin in Further Support of Amounts Due Exhibit O Oath and Referee’s Report of Amount Due Exhibit P 4. In addition, an Affirmation of Legal Services, Costs of Plaintiff, and a Proposed Judgment of Foreclosure and Sale are being filed contemporaneously herewith. PROCEDURAL HISTORY 5. 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”). 1 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 tax lien foreclosure action entitled 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 Lien Foreclosure”). The sale of the NYC Property by the court in the Tax Lien Foreclosure did not produce any surplus monies. Annexed hereto as Exhibit A is a copy of the completed Foreclosure Action Surplus Monies Form filed in the Tax Lien Foreclosure. 2 2 of 11 FILED: NEW YORK COUNTY CLERK 12/14/2022 06:03 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2022 6. Pursuant to the express terms of the subject note (the “Note”), Bridge Associates 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. See Exhibit B, ¶ 36. 7. Pursuant to the terms of the Note, provided that Bridge Associates 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. Exhibit B, ¶ 36. 8. Simultaneous with the execution of the Note, and as security for its payment, Borrower and Luckner, duly executed, acknowledged and delivered to First Central Savings Bank (“FCSB”) a Consolidation, Modification and Extension Agreement (the “Mortgage”), wherein and whereby it mortgaged to FCSB the NYC Property, Woodmere Property and Long Beach Property. Exhibit C, ¶43. 9. Simultaneous with the execution of the Note, which was executed by Adam Luckner, as President of Bridge Associates, and the Mortgage, Adam Luckner, individually, and Midway executed and delivered a Guaranty (the “Guaranty”) dated May 16, 2005 that was an absolute and unconditional guaranty of payment of all sums owed by Bridge Associates and performance of all obligations of Bridge Associates under the Note and the Mortgage. Exhibit B, ¶49. 3 3 of 11 FILED: NEW YORK COUNTY CLERK 12/14/2022 06:03 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2022 10. On November 3, 2008, FCSB sold, assigned and transferred all its right, title and interest to the Note, the Mortgage, the Guaranty, and the underlying loan documents (the “Loan Documents”) to Street Snacks. Exhibit B, ¶¶53-56; Exhibit C, ¶¶10-15. 11. This action was commenced because of the Luckner Defendants’ failure to pay the outstanding principal, unpaid and accrued interest, default interest, late fees, attorneys’ fees, and all other sums due and owing under the Note on or before June 1, 2006, the final maturity date of the Note. Exhibit B, ¶¶57-60; Exhibit C, ¶¶18, 23-24. 12. The Summons and Complaint were duly filed 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 D. 13. Notices of Pendency in due form and containing correctly and truly all the particulars required by law to be stated in such notice were duly filed in the New York County Clerk’s Office on August 3, 2009 and the Nassau County Clerk’s Office on August 24, 2009 and supplemented thereafter. Copies of the Notices of Pendency filed to date are annexed hereto collectively as Exhibit E. 14. All of the defendants were served with the Summons, Complaint, and Help for Homeowners in Foreclosure notice. Copies of the Affidavits of Service are annexed hereto collectively as Exhibit F. 15. I conducted a Department of Manpower Data Center search to determine the current military status of defendant Adam D. Luckner, prior to submitting this application. The search results indicate that Mr. Luckner is not actively enrolled with the military. A copy of the Service Member Relief Act search results is annexed hereto as Exhibit G. 4 4 of 11 FILED: NEW YORK COUNTY CLERK 12/14/2022 06:03 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2022 16. All of the necessary defendants are of full age and sound mind and no necessary defendant is an absentee, or prior encumbrancer. 17. On or about August 17, 2016, the Luckner Defendants interposed a Verified Answer, a copy of which is annexed hereto as Exhibit H. 18. 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, Virginia Sheridan and Conrad Vogel sued here as “John Does” (collectively, the “NYC Property Tenants”), interposed a Verified Answer, a copy of which is annexed hereto as Exhibit I. The NYC Property Tenants occupy certain units situated in the NYC Property. 19. Defendants York Resources, LLC, Sterling National Bank, New York District Attorney, State of New York, City of New York, and New York City Department of Finance interposed Notices of Appearance, copies of which are annexed hereto collectively as Exhibit J. 20. On June 14, 2022, Street Snacks moved for summary judgment, an order of reference, and related relief. Street Snacks’ motion was granted by the Decision and Order on Motion dated August 19, 2022 and entered in the Supreme Court, New York County Clerk’s Office on August 22, 2022 (the “Reference Order”). A copy of the Reference Order with Notice of Entry is annexed hereto as Exhibit K. 21. Pursuant to the Reference Order, Thomas Kleinberger, Esq. (the “Referee”), was appointed referee to hear and compute the amount due Street Snacks on the Loan and determine whether the Woodmere Property and the Long Beach Property should be sold in separate parcels. 22. On September 15, 2022, Street Snacks served and filed a Notice of Computation, proposed Referee’s Oath, and proposed Referee’s Report of Amounts Due which included: (a) the 5 5 of 11 FILED: NEW YORK COUNTY CLERK 12/14/2022 06:03 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2022 Affidavit of Amount Due of Thomas Makkos sworn to on September 13, 2022 with exhibits annexed as Schedule A to the proposed Report; (b) an abstract of documentary evidence attached as Schedule B to the proposed Report; (c) proposed details of the Referee’s computation of the amount due attached as Schedule C to the proposed Report; (d) the Reference Order attached as Schedule D to the proposed Report; and (e) proof of mailing on all defendants requiring notice of same attached as Schedule E to the proposed Report. The Notice of Computation, proposed Referee’s Oath, and proposed Referee’s Report of Amounts Due with the attached Schedules A-E are annexed hereto collectively as Exhibit L. 23. On or about September 29, 2022, the Luckner Defendants submitted to the Referee an “Objection to Proposed Computation and Referee’s Report & Demand for Hearing” with exhibits (the “Objection”), copy of which is annexed hereto as Exhibit M. The Luckner Defendants objected to Street Snacks recovering the expenses it advanced to protect the NYC Property based on their belief that Street Snacks did not produce sufficient evidence in support of each and every expense. The Luckner Defendants also argued in their Objection that interest on the Loan should be tolled from August 3, 2009 to November 10, 2015 on the theory that Street Snacks allegedly unreasonably delayed the prosecution of this action. Notably, the Luckner Defendants failed to disclose to the Referee the multiple well-reasoned decisions finding that Bridge Associates induced Street Snacks to forebear from prosecuting this action during complex on-going global settlement negotiations and then resorted to legal maneuvers to take advantage of that same forbearance. 24. On October 17, 2022, Street Snacks submitted to the Referee the Affidavit of Thomas Makkos in Further Support of Amounts Due, sworn to on October 17, 2022, with exhibits (the “Makkos Reply Affidavit”) and the Affirmation of Amy D. Carlin in Further Support of 6 6 of 11 FILED: NEW YORK COUNTY CLERK 12/14/2022 06:03 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2022 Amounts Due dated October 17, 2022 with exhibits (the “Carlin Reply Affirmation”). Copies of the Makkos Reply Affidavit and the Carlin Reply Affirmation are annexed hereto as Exhibit N and Exhibit O respectively, and are hereby incorporated by reference. 25. The Makkos Reply Affidavit provided additional testimonial and documentary evidence supporting Street Snacks’ claims for advances. For example, the Luckner Defendants claimed that it was unclear how Street Snacks’ hiring of Arpad Baksa Architect P.C. could have been an advance made to maintain the NYC Property or protect Street Snacks’ security. As set forth in the Makkos Reply Affidavit, Street Snacks retained Mr. Baksa in 2010 to perform work preparing a Local Law 11 report in connection the NYC Property. In fact, in 2002, Bridge Associates had also retained the services of Mr. Baksa in connection with Local Law 11 work performed at the NYC Property. Exhibit N at ¶¶ 17-18. 26. In response to the Luckner Defendants’ argument that the remaining canceled checks produced by Street Snacks did not appear to have any connection with the Luckner Defendants, Street Snacks produced, among other things, a report listing unpaid taxes, water rates, and assessments that were indexed as liens against the NYC Property, an In Rem Installment agreement entered into by Street Snacks relating to the NYC Property, property tax bills and receipts, a water and sewer bill and receipt, and boiler inspection information. See, e.g., Exhibit N at ¶¶ 11-16. 27. With respect to the Luckner Defendants’ request to toll the interest that accrued from August 3, 2009 to November 10, 2015, Street Snacks addressed the Luckner Defendants’ mischaracterization of the factual record and procedural history of this action. Street Snacks submitted proof to the Referee that in four decisions, the court addressed and conclusively rejected the Luckner Defendants’ arguments that Street Snacks abandoned and/or delayed the prosecution 7 7 of 11 FILED: NEW YORK COUNTY CLERK 12/14/2022 06:03 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2022 of this action. Exhibit O at ¶¶ 5-28. Street Snacks established that there was no basis in law or fact that would require the Referee to deviate from the multiple decisions holding that, to the extent there is blame to be laid for the six years that passed after the commencement of the action, the blame falls squarely with the Luckner Defendants. “[I]n an action of an equitable nature, the recovery of interest is within the court’s discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party.” Prompt Mortg. Providers of N. Am., LLC v. Zarour, 155 A.D.3d 912, 915 (2d Dep’t 2017) (court denied request to toll interest where plaintiffs’ conduct did not merit the imposition of sanctions against them in the form of limiting the interest awarded to them). 28. The Luckner Defendants have not set forth any unfair or inequitable conduct on the part of Street Snacks that would warrant the tolling of interest.2 See U.S. Bank Nat’l Ass’n v. Haughton, 189 A.D.3d 1305, 1307 (2d Dept. 2020) (although action was plaintiff’s second attempt to foreclose mortgage, defendant failed to establish that the circumstances surrounding the delay were attributable to wrongdoing by plaintiff or its predecessor in interest). Here, there is nothing inherently wrongful or unconscionable about Street Snacks’ efforts to support the Luckner Defendants’ attempts to reach a complex global settlement. See Bank of N.Y. Mellon v. George, 186 A.D.3d 661, 664 (2d Dep’t 2020) (tolling of interest was not warranted where there was no showing that plaintiff engaged in any wrongdoing, or engaged in any lengthy unexplained delay in prosecution); Wells Fargo Bank v. Lee, 2022 WL 4489374, *2 (2d Dep’t September 28, 2022) (defendants made no showing that there was any wrongdoing by mortgagee or that mortgagee 2 In the Objection, the Luckner Defendants urged the Referee to consider cherry-picked excerpts from the transcript of Thomas Makkos’ deposition to paint the false picture that Street Snacks did not reasonably believe that a settlement would be reached with the Luckner Defendants and sat idly by while default interest continued to accrue. In its reply papers, Street Snacks established that the Luckner Defendants’ argument has no basis in reality.Mr. Makkos testified, among other things, that although there were complicated circumstances surrounding the NYC Property, Mr. Makkos recognized that Street Snacks would achieve a greater return on its investment through a negotiated resolution of the liens on the NYC Property than it would collecting default interest.Exhibit O, ¶¶ 21-24. 8 8 of 11 FILED: NEW YORK COUNTY CLERK 12/14/2022 06:03 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2022 engaged in any unexplained delay in prosecution that would warrant eliminating interest). 29. On October 31, 2022, after having considered the evidence submitted by Street Snacks and the Objection, the Referee executed an Oath and Referee’s Report of Amount Due, which computed the amount due to Street Snacks to be $7,924,441.80, plus interest thereon from September 2, 2022, as provided for in the Loan Documents, exclusive of attorneys’ fees and costs and disbursements. The Referee also determined that the mortgaged premises, being comprised of two buildings on two separate parcels of land, should be sold as two parcels. The Referee’s Oath and the Referee’s Report of Amount Due, together with the attached schedules, are annexed hereto collectively as Exhibit P. STREET SNACKS IS ENTITLED TO A JUDGMENT OF FORECLOSURE AND SALE 30. In conjunction with the motion for summary judgment previously granted by this Court, Street Snacks established all the required elements for a foreclosure. Street Snacks now requests that the Woodmere Property and the Long Beach Property be sold pursuant to RPAPL §1351 and that the sale proceeds be distributed in accordance with RPAPL §1354. 31. Street Snacks is entitled to a judgment that includes reimbursement for Street Snacks’ reasonable attorney fees in accordance with the terms of the Note and Mortgage. A detailed affirmation regarding the attorney fees is being filed contemporaneously herewith. 32. Street Snacks is also entitled to a judgment that includes reimbursement for Street Snacks’ costs, allowances, and disbursements in this matter in accordance with the terms of the Note, Mortgage, and CPLR Article 83. A detailed statement of Street Snacks’ costs and disbursements (bill of costs) is being filed contemporaneously herewith. 9 9 of 11 FILED: NEW YORK COUNTY CLERK 12/14/2022 06:03 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2022 33. The Referee has computed that, as of September 1, 2022, Street Snacks is due the sum of $7,924,441.80, pursuant to the Note and Mortgage (exclusive of attorneys’ fees and costs and disbursements). 34. The whole amount secured by the Mortgage is due and payable. All of the proceedings in this action have been regular and in accordance with the rules and practice of this Court. 35. Since the filing of the notices of pendency of this action, the Complaint has not been amended so as to make new parties to the action or so as to embrace real property other than those described in the original complaint or so as to extend Street Snacks’ claim against the mortgaged premises. 36. Street Snacks respectfully requests an order confirming the Referee’s Report of Amount Due of Thomas Kleinberger, Esq. dated October 31, 2022, and granting Street Snacks a judgment of foreclosure and sale in the amount of $7,924,441.80, with such other and further relief as the Court may deem just and proper. 37. No previous application has been made for the Order herein requested. 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 December 14, 2022 /s/ Amy D. Carlin Amy D. Carlin 10 10 of 11 FILED: NEW YORK COUNTY CLERK 12/14/2022 06:03 PM INDEX NO. 602374/2009 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/14/2022 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 2,808. 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 December 14, 2022 /s/ Amy D. Carlin Amy D. Carlin 11 11 of 11