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FILED: NEW YORK COUNTY CLERK 03/13/2017 03:33 PM INDEX NO. 150210/2017
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 03/13/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
__________________________________________________
TOWER INSURANCE COMPANY OF NEW YORK,
Plaintiff, Index No. 150210/2017
- against -
TYPHYNE JOHNSON and YVETTE BRANTLEY, AFFIRMATION
Defendants.
TYPHYNE JOHNSON,
Third-Party Plaintiff,
- against -
HSBC MORTGAGE CORPORATION (USA),
NORTHEAST AGENCIES, INC., and
LESTER DAVIS,
Third-Party Defendants.
Preston L. Zarlock, Esq., an attorney admitted to practice before the Courts of
the State of New York, herby affirms the following pursuant to CPLR 2106 and under
penalty of perjury:
1. I am a partner with the firm Phillips Lytle LLP, counsel to third-party
defendant HSBC Mortgage Corporation (USA) (“HSBC”). I am familiar with the facts
stated herein.
2. This affirmation is submitted by HSBC in support of its motion to
dismiss the third-party complaint against HSBC in this action and to assess costs and
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FILED: NEW YORK COUNTY CLERK 03/13/2017 03:33 PM INDEX NO. 150210/2017
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 03/13/2017
attorneys’ fees against defendant/third-party plaintiff Typhyne Johnson (“Johnson”) and
her counsel (the “Motion”).
3. The Motion should be granted.
4. Attached as Exhibit 1 is a true copy of defendant/third-party plaintiff
Johnson’s Third-Party Summons and Complaint in this action, e-filed on February 8, 2017
as Doc. No. 10.
5. Attached as Exhibit 2 is a true copy of the Complaint (with exhibits)
filed by plaintiff Tower Insurance Company of New York (“Tower”) in this action, e-filed
on January 9, 2017 as Doc. Nos. 1-3. Exhibit A to the Complaint is the complaint filed
against Johnson in the Supreme Court of the State of New York, County of Bronx, in the
action captioned Yvette Brantley v. Typhyne Johnson, Index No. 26276/2016E. Exhibit B to
the Complaint is a copy of Johnson’s insurance policy with Tower numbered DPP2652045.
6. Attached as Exhibit 3 is a true copy of Johnson’ s Answer and
Counterclaims in this action, e-filed on January 29, 2017 as Doc. No. 5.
7. Attached as Exhibit 4 is a true copy of the mortgage in the amount of
$244,000 executed and delivered by Johnson to First Federal Savings and Loan Association
(HSBC’s predecessor) (the “First Mortgage”), with proof of recording in the Office of the
City Register, Bronx County, on January 2, 1992.
8. Attached as Exhibit 5 is a true copy of the mortgage in the amount of
$7,669.63 executed and delivered by Johnson to HSBC (the “Second Mortgage”), with
proof of recording in the Office of the City Register, Bronx County, on February 24, 2003.
9. Attached as Exhibit 6 is a true copy of the Consolidation, Extension
and Modification Agreement (“CEMA”) executed by Johnson, consolidating the First and
2
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FILED: NEW YORK COUNTY CLERK 03/13/2017 03:33 PM INDEX NO. 150210/2017
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 03/13/2017
Second Mortgages into a single consolidated mortgage in the amount of $165,000 (the
“Consolidated Mortgage”), with proof of recording in the Office of the City Register, Bronx
County, on February 24, 2003.
10. HSBC requests that the Court take judicial notice of these exhibits,
which are a matter of public record.
11. Upon information and belief, on February 23, 2017, internal counsel at
HSBC called Johnson’s counsel and left a message explaining that HSBC had no duty to
obtain insurance coverage (or any particular type of coverage) for Johnson, and asking that
Johnson’s counsel contact him to discuss further. Johnson’s counsel did not return the call.
12. On March 7, 2017, our firm sent Johnson’s counsel a letter demanding
that he withdraw the frivolous third-party complaint against HSBC or face a sanctions
motion. Attached as Exhibit 7 is a copy of the letter.
13. On March 10, 2017, Johnson’s counsel advised our firm that the third-
party complaint against HSBC would not be withdrawn.
14. Johnson’s actions in bringing this third-party action, and her refusal to
withdraw it, have compelled HSBC to incur significant expenses.
15. For the reasons stated in HSBC’s memorandum of law, the Motion
should be granted.
Dated: Buffalo, New York
March 13, 2017
/s/ Preston L. Zarlock______
Preston L. Zarlock
Doc #05-483711
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FILED: NEW YORK COUNTY CLERK 03/13/2017 03:33 PM INDEX NO. 150210/2017 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 03/13/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK __________________________________________________ TOWER INSURANCE COMPANY OF NEW YORK, Plaintiff, Index No. 150210/2017 - against - TYPHYNE JOHNSON and YVETTE BRANTLEY, AFFIRMATION Defendants. TYPHYNE JOHNSON, Third-Party Plaintiff, - against - HSBC MORTGAGE CORPORATION (USA), NORTHEAST AGENCIES, INC., and LESTER DAVIS, Third-Party Defendants. Preston L. Zarlock, Esq., an attorney admitted to practice before the Courts of the State of New York, herby affirms the following pursuant to CPLR 2106 and under penalty of perjury: 1. I am a partner with the firm Phillips Lytle LLP, counsel to third-party defendant HSBC Mortgage Corporation (USA) (“HSBC”). I am familiar with the facts stated herein. 2. This affirmation is submitted by HSBC in support of its motion to dismiss the third-party complaint against HSBC in this action and to assess costs and 1 of 3 FILED: NEW YORK COUNTY CLERK 03/13/2017 03:33 PM INDEX NO. 150210/2017 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 03/13/2017 attorneys’ fees against defendant/third-party plaintiff Typhyne Johnson (“Johnson”) and her counsel (the “Motion”). 3. The Motion should be granted. 4. Attached as Exhibit 1 is a true copy of defendant/third-party plaintiff Johnson’s Third-Party Summons and Complaint in this action, e-filed on February 8, 2017 as Doc. No. 10. 5. Attached as Exhibit 2 is a true copy of the Complaint (with exhibits) filed by plaintiff Tower Insurance Company of New York (“Tower”) in this action, e-filed on January 9, 2017 as Doc. Nos. 1-3. Exhibit A to the Complaint is the complaint filed against Johnson in the Supreme Court of the State of New York, County of Bronx, in the action captioned Yvette Brantley v. Typhyne Johnson, Index No. 26276/2016E. Exhibit B to the Complaint is a copy of Johnson’s insurance policy with Tower numbered DPP2652045. 6. Attached as Exhibit 3 is a true copy of Johnson’ s Answer and Counterclaims in this action, e-filed on January 29, 2017 as Doc. No. 5. 7. Attached as Exhibit 4 is a true copy of the mortgage in the amount of $244,000 executed and delivered by Johnson to First Federal Savings and Loan Association (HSBC’s predecessor) (the “First Mortgage”), with proof of recording in the Office of the City Register, Bronx County, on January 2, 1992. 8. Attached as Exhibit 5 is a true copy of the mortgage in the amount of $7,669.63 executed and delivered by Johnson to HSBC (the “Second Mortgage”), with proof of recording in the Office of the City Register, Bronx County, on February 24, 2003. 9. Attached as Exhibit 6 is a true copy of the Consolidation, Extension and Modification Agreement (“CEMA”) executed by Johnson, consolidating the First and 2 2 of 3 FILED: NEW YORK COUNTY CLERK 03/13/2017 03:33 PM INDEX NO. 150210/2017 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 03/13/2017 Second Mortgages into a single consolidated mortgage in the amount of $165,000 (the “Consolidated Mortgage”), with proof of recording in the Office of the City Register, Bronx County, on February 24, 2003. 10. HSBC requests that the Court take judicial notice of these exhibits, which are a matter of public record. 11. Upon information and belief, on February 23, 2017, internal counsel at HSBC called Johnson’s counsel and left a message explaining that HSBC had no duty to obtain insurance coverage (or any particular type of coverage) for Johnson, and asking that Johnson’s counsel contact him to discuss further. Johnson’s counsel did not return the call. 12. On March 7, 2017, our firm sent Johnson’s counsel a letter demanding that he withdraw the frivolous third-party complaint against HSBC or face a sanctions motion. Attached as Exhibit 7 is a copy of the letter. 13. On March 10, 2017, Johnson’s counsel advised our firm that the third- party complaint against HSBC would not be withdrawn. 14. Johnson’s actions in bringing this third-party action, and her refusal to withdraw it, have compelled HSBC to incur significant expenses. 15. For the reasons stated in HSBC’s memorandum of law, the Motion should be granted. Dated: Buffalo, New York March 13, 2017 /s/ Preston L. Zarlock______ Preston L. Zarlock Doc #05-483711 3 3 of 3