Preview
FILED: KINGS COUNTY CLERK 11/18/2021 12:27 PM INDEX NO. 527230/2019
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/18/2021
EXHIBIT “1”
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NYSCEF DOC. NO. 36
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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SHELWOL LLC,
Date Filed:
Plaintiff,
Index No.
-against-
SUMMONS
1663 60TH ST LLC; BENJAMIN FRIEDMAN; MIRIAM
FRIEDMAN; CITY OF NEW YORK ENVIRONMENTAL
CONTROL BOARD; CHASKIEL STRULOVITCH and
JOHN DOE #1 through JOHN DOE # 99,
Defendants.
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TO THE ABOVE-NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED and required to serve upon the plaintiff’s
attorney an answer to the Complaint in this action, within twenty (20) days after the service
of this Summons, exclusive of the date of service, or within thirty (30) days after service is
complete if the summons is not personally delivered to you within the State of New York.
In case of your failure to answer, judgment will be taken against you by default for the
relief demanded in the Complaint.
Plaintiff designates Kings County as the place of trial. The basis for the venue is
that the situs of the real property is located at 1663 60th Street, Brooklyn, New York
11214, Block 5510; Lot 60.
Dated: Cedarhurst, New York
December 12, 2019 JACOBOWITZ NEWMAN TVERSKY LLP
By: /s/_Aviva Francis_______
Evan M. Newman
Aviva Francis
377 Pearsall Avenue
Cedarhurst, New York 11516
(516) 545-0343
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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SHELWOL LLC,
Index No:
Plaintiff,
VERIFIED COMPLAINT
-against- Commercial Foreclosure
1663 60TH ST LLC; BENJAMIN FRIEDMAN; MIRIAM
FRIEDMAN; CITY OF NEW YORK ENVIRONMENTAL
CONTROL BOARD; CHASKIEL STRULOVITCH and
JOHN DOE #1 through JOHN DOE # 99,
Defendants.
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Plaintiff SHELWOL LLC (“Shelwol” or “Plaintiff” or “Lender”), by its attorneys
Janowitz Newman Tversky LLP., for its verified complaint against defendants, alleges as
follows:
1. This is an action to foreclose on commercial real property located in the
County of Kings arising from defendant’s continuing failure to pay the amounts owed to
Plaintiff pursuant to a note and mortgage.
Parties
2. Plaintiff is a New York limited liability company and is the originating
lender regarding the loan documents subject to this foreclosure action.
3. Lender is the holder, owner and is in possession of the original loan
documents described below.
4. Defendant 1663 60TH ST LLC (the “Borrower”) is named a defendant in
this action as the owner of the Property subject to this action known as 1663 60th Street,
Brooklyn, New York (the “Property”). A legal description of the Property is attached to this
complaint as Exhibit A and is incorporated by reference.
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5. The Borrower is also named a defendant in the action as the Borrower of the
loan documents subject to this action.
6. Upon information and belief, Defendant Benjamin Friedman is an individual
residing in New York and is named in this action as the holder of a subordinate judgment
against the Property.
7. Upon information and belief, Defendant Miriam Friedman is an individual
residing in New York and is named in this action as the holder of a subordinate judgment
against the Property.
8. Defendant City of New York Environmental Control Board is a New York
City agency that protects the public’s health, safety, and clean environment. It is named as
a defendant in this action as a possible judgement creditor with an interest and/or lien in the
Property.
9. Upon information and belief, Defendant Chaskiel Strulovitch resides in the
State of New York and is named in this action as a guarantor.
10. Defendants John Doe #1 through John Doe # 99 are named as defendants
herein to represent all other parties, including, but not limited to, tenants, other occupants of
the Property, or lien holders who may have some interest in or lien upon the Property,
which interest or lien is subordinate and subject to plaintiff’s lien.
Cause of Action (Foreclosure)
11. For good and valuable consideration, on April 18, 2016, Plaintiff provided a
loan to the Borrower in the amount of $200,000 (the “Loan”). At the time, the Borrower
received the full amount of the Loan.
12. For good and valuable consideration, the Borrower made, executed and
delivered to Plaintiff a note in the principal amount of $200,000.00 with an effective date of
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April 18, 2016 (the “Note”). See Exhibit A for the Note.
13. To secure the payment of the sum represented by the Note, the Borrower
made, executed and delivered to Plaintiff a mortgage, in the principal amount of
$200,000.00 with an effective date of April 18, 2016 and recorded in Register of the Clerk
of the County of Kings on August 27, 2018 under CRFN2018000287587 and the mortgage
recording tax was duly paid at the time of recording (the “Mortgage”). See Exhibit B for the
Mortgage.
14. To further secure the Mortgage and the Note, on April 24, 2018, Chaskiel
Strulovitch (the “Guarantor”) executed a guarantee with an effective date of April 18, 2016.
See Exhibit C for the Guaranty. The Mortgage, Note and Guaranty shall collectively be
referred to as the “Loan Documents.”
15. Pursuant to the Loan Documents, the Borrower assigned to Plaintiff its
rights, title and interest to the Property, and the improvements and chattel located thereon.
16. The Mortgage provided, among other things, that upon the default in
payment of any payment due on the loan, the Lender may institute foreclosure proceedings
and sell the Property according to the law.
17. Plaintiff is the sole, true and lawful owner and holder of the Loan
Documents, including the originals thereof.
18. The Borrower has defaulted under the terms of the Loan Documents by,
inter alia, failing to timely pay the principal balance on the maturity date, April 18, 2017.
19. As a result, pursuant to the terms of the Loan Documents, one or more
defaults have occurred.
20. Pursuant to the terms of the Loan Documents upon occurrence of any
default, all outstanding indebtedness, together with accrued interest, may become
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immediately due and payable. Although not required, Lender sent a letter to the borrower
advising the borrower of his default and accelerating the outstanding indebtedness under
the Loan Documents. The most recent letter was sent to the Borrower on June 12, 2017,
and through the filing of this complaint the Plaintiff reaffirms its acceleration.
21. Pursuant to the terms of the Loan Documents, the Borrower is responsible
for costs and expenses, including attorney’s fees and costs, incurred by Plaintiff in
enforcing its rights under the Loan Documents.
22. By reason of the foregoing, there is now due and owing from Borrower to
Plaintiff, the unpaid principal balance of $200,000.00, plus accrued and accruing interest at
the rate set forth in the Loan Documents, escrow advances, late fees and attorneys’ fees and
costs.
23. The Mortgage being foreclosed is not a “high-cost home loan” or “subprime
home loan,” as such terms are defined in section six-l and six-m of the N.Y. Banking Law,
and is not a “home loan” for purposes of section 1304 of the N.Y. Real Property Actions
and Proceedings Law (“RPAPL”). Accordingly, the requirements of CPLR §§ 3012-b,
3408, and RPAPL §§ 1302 and 1304 are not applicable to this action and no 90-day notice,
Certificate of Merit, settlement conference or filing with the Superintendent is required.
24. The Property is one contiguous property and should be sold as one parcel.
25. To the extent that the amounts due pursuant to the Loan Documents are not
satisfied by this foreclosure proceeding, the Borrower may be liable for such deficiencies.
26. In order to protect its security during the pendency of this action, Plaintiff
and or its predecessors had to make payments towards protective advances such as water or
taxes and Plaintiff may be further compelled to pay sums for premiums on policies of fire
and other hazard insurance, taxes, and assessments, and/or other charges affecting the
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Property. Plaintiff prays that all sums so paid, together with interest at the default rate set
forth in the Loan Documents from the date of such payments, together with plaintiff’s costs
and expenses in enforcing the sums secured by the Loan Documents, including plaintiff’s
reasonable attorneys’ fees, shall be added to plaintiff’s claim as secured by the Loan
Documents, and be adjudged a valid lien on the Property such that the plaintiff should be
paid such sums out of the proceeds of the sale of the Property.
27. Each of the above-named defendants has or claims to have or may claim to
have some interest in or lien upon the Property.
28. No other action or proceeding has been commenced or maintained or is now
pending at law or otherwise for the foreclosure of the Mortgage or for recovery of the sums
secured by the Loan Documents.
29. In the event that Plaintiff possesses any other liens against the Property
either by way of judgment, junior mortgage or otherwise, Plaintiff requests that such other
liens shall not be merged in Plaintiff’s causes of action set forth herein, but that Plaintiff
shall be permitted to enforce said other liens and/or seek determination of priority thereof in
any independent actions or proceedings, including, without limitation, any surplus money
proceedings.
30. The Mortgage provides that in any foreclosure action, the holder shall be
entitled to the appointment of a receiver.
31. Plaintiff shall not be deemed to have waived, altered, released or changed
the election to accelerate the loans and foreclose on the mortgage by reason of any
payments made after the date of the commencement of this action.
Second Cause of Action (Breach of Guaranty)
32. Plaintiff repeats and re-alleges the allegations of paragraphs above of this
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verified complaint as if fully set forth herein.
33. The Guaranty of the Note executed by the Guarantor is a valid and binding
agreement, which mutual consideration was exchanged between the Guarantors and the
Plaintiff.
34. Plaintiff completed all performance required of it under the Guaranty.
35. Pursuant to the Guaranty, the Guarantor is unconditionally guaranteed
Plaintiff payment of the principal amount due on the Note, all accrued and unpaid interest
thereon and all fees and expenses and other liabilities relating thereto.
36. As set forth above, the Borrower defaulted on the Note and the amounts due
and owing under the Note is the unpaid principal balance in the amount of $200,000.00
plus interest at the rate set forth in the Loan Documents, late fees, other fees and attorneys’
fees.
37. The Guarantor failed to pay the amounts currently due to Plaintiff under the
terms of the Guaranty, thus the Guarantor breached the Guaranty. As a result of the
Guarantors’ breach of the Guaranty, Plaintiff has been damages in the amount of at least
$200,000.00 plus interest at the rate set forth in the Loan Documents, late fees, other fees
and attorneys’ fees.
WHEREFORE, Plaintiff demands judgment on
(A) Plaintiff’s First Cause of Action:
Plaintiff demands that the defendants and each of them and all persons claiming
under any of them, subsequent to the commencement of this action and the filing of the
notice of pendency thereof, be barred and foreclosed of and from all estate, right, title,
interest, claim, lien and equity of redemption of, in and to the Property and each and every
part and parcel thereof; that the Property may be decreed to be sold, according to the law;
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that the monies arising from the sale of the Property may be brought into Court; that
Plaintiff may be paid the amount due under the Loan Documents as set forth herein, with
interest and late charges to the time of such payment and the expense of such sale, plus
reasonable attorneys’ fees, together with the costs, allowances and disbursements of this
action, together with any sum incurred by plaintiff pursuant to any term or provision of the
Loan Documents as set forth herein, or to protect the lien of Plaintiff’s Mortgage, together
with interest upon said sums from the dates of the respective payments and advances
thereof, so far as the amount of such monies properly applicable thereto will pay the same;
that this Court forthwith appoint a receiver of the rents and profits of the Property, during
the pendency of this action with the usual powers and duties; that the Borrower be adjudged
to pay the whole residue, or so much thereof as the Court may determine to be just and
equitable, of the debt remaining unsatisfied after a sale of the Property and the application
of the proceeds pursuant to the directions contained in such judgment; that in the event
Plaintiff possesses any other liens against the Property either by way of judgment, junior
mortgage or otherwise, Plaintiff requests that such other lien shall not be merged in
Plaintiff’s causes of action set forth herein but that Plaintiff shall be permitted to enforce
said other liens and/or seek determination of priority thereof in any independent actions or
proceedings, including, without limitation, any surplus money proceedings, and that
Plaintiff may have such other and further relief, as may be just and equitable; and
(B) on its fourth cause of action against the Guarantor, to the extent there are
insufficient funds at a foreclosure sale Plaintiff seeks judgment against the Guarantor,
jointly and severally for breach of the Guaranty; and
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(C) such other and further relief, as may be just and equitable;
Dated: Cedarhurst, New York
December 12, 2019 JACOBOWITZ NEWMAN TVERSKY LLP
Attorneys for Plaintiff
By:/s Aviva Francis__________
Evan M. Newman
Aviva Francis
377 Pearsall Avenue, Suite C
Cedarhurst, New York 11516
(516) 545-0343
afrancis@jntllp.com
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VERIFICATION
STATE OF NEW YORK )
:ss:
COUNTY OF NASSAU )
HERBERT WOLOWITZ, who does not swear for religious reasons, hereby affirms the
truth of the truth of the following:
1. That I am the managing member of plaintiff in the above captioned matter and am
fully familiar with the facts and circumstances of this action.
2. That I have read the foregoing verified complaint and know the contents thereof.
3. That the same is true of my own knowledge, except as to those matters alleged
upon information and belief. As to those matters stated to be alleged upon information and
belief, I believe them to be true, based upon official coiift/p^jiers, (^mversations with my attorney
and others and independent investigations. //
/
i
HERBf[m wolc\' 1TZ
A (firmed to before me this
/ rYtlay of wptiWkfi 2019
AVIVA FRANCIS
Q/Ji. ~
Notary Pufcfllc
Notary Public, Slat* of Now Yortc
Reg. No. 02FR6236233
Qunilflod in Nassau Coimiy ■
My Commission Expim* r ^b. 28, 20 >
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EXHIBIT “A”
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NATIONWIDE COURT SERVICES, INC
TITLE NO. FC19-NL0082
SCHEDULE A
LEGAL DESCRIPTION
ALL that certain plot, piece or parcel of land situate, lying and being in the Borough of Brooklyn,
County of Kings, State of New York bounded and described as follows:
BEGINNING at a point on the northerly side of 60th Street, distant 240 feet westerly from the comer
formed by the intersection of the northerly side of 60th Street with the westerly side of 17th Avenue;
RUNNING THENCE northerly parallel with 17th Avenue, 100 feet 2 1/8 inches;
THENCE westerly parallel with 60th Street, 30 feet;
THENCE southerly parallel with 17th Avenue, 100 feet 2 1/8 inches to the northerly side of 60th
Street;
THENCE easterly along the northerly side of 60th Street, 30 feet to the point or place of
BEGINNING.
FOR INFORMATION ONLY 1663 60th Street
Premises also known as: Brooklyn NY 11214
5510 60
County of: KINGS
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"B"
EXHIBIT
EXHIBIT "B"
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MORTGAGE NOTE
1663 60TH ST LLC
- to -
HERBERT WOLOWITZ
PARCEL
Block: 5510
Lot: 60
County: Kings
Premises: 1663 60th Street, Brooklyn, New York
Owner: . 1663 60TH ST LLC .
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MORTGAGE NOTE ("Note")
$200,000.00 . Dated as of the 18th day of April, 2016
Brooklyn, New York
FOR VALUE RECEIVED, the undersigned, 1663 60TH ST LLC, a New York limited liability
company having an address at 116 Nostrand Avenue, Brooklyn, New York 11205 (hereinafter
referred to as the "Maker"), promises to pay to the order of HERBERT WOLOWITZ, having
an address at 88 Washington Avenue, Cedarhurst, New York 11516 (hereinafter referred to as
the "Payee") the principal sum of TWO HUNDRED THOUSAND AND 00/100 ($200,000.00)
DOLLARS, (hereinafter referred to as the "Principal Amount") lawful money of the United
States, payabic on April 18, 2017 (hereinafter referred to as the "Due Date"), with interest on the
outstanding principal balance to be computed at the rate of TWELVE (12%) PERCENT per
annum from the date of this Note to and including the date this Note is paid in full and payable in
1"
monthly installments of interest only commencing on June 1, 2016 and thereafter, on the day
of each month until the Principal Amount is paid in full, pursuant to the terms hereof. Interest on
the Principal Amount of the Note shall be calculated on the basis of the number of days elapsed
in a three hundred sixty (360) day year (i.e. twelve thirty day months).
1. Events of Default.
Upon the occurrence of any of the following events (each an "Event of Default"):
(a) Maker shall fail to pay the Principal Amount when due in accordance with the
terms hereof; or
(b) Maker shall fail to pay interest on the Principal Amount when due in accordance
with the terms hereof; or
. (c) Maker shall commence any case, proceeding or other action (i) under
any existing
or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy,
. insolvency, reorganization or relief of debtors, seeking to have an order for relief
entered with respect to Maker, or seeking to adjudicate Maker a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
. . liquidation, dissolution, composition or other relief with respect to Maker or
Maker's debts, or (ii) seeking appointment of a receiver, trustee, custodian or
similar official for Maker or for all or any substantial part of Maker's creditors; or
(d) . There shall be commenced against
proceedingMakeror other actionin any case,
of a nature referred to in clause (c) above which (i) results in the entry of an order
for relief or any such adjudication or appointment, or (ii) remains undismissed,
undischarged or unbonded for a period of 60 days;
(e) Maker shall take any action indicating Maker's consent to, approval of, or
acquiescence in, any ofthe acts set forth in clauses (c) or (d);
(f) Maker shall have defaulted under any other note or mortgage secured by the same
property as the mortgage securing this note;
then, and in any such event (in addition to any other rights or remedies Payee may have
hereunder), all amounts owing under this Note shall immediately become due and payable. .
2. Notices.
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All notices or other communications required or permitted hereunder shall be in writing
and shall be deemed given or delivered (i) when delivered personally, (ii) on the next business
day if by overnight courier, or (iii) on the third business day after being sent by registered or
certified mail, to the address of each of the parties specified above or to such other address as .
such party may indicate by a notice given or delivered to the other party hereto. .
3. General Provisions.
Both principal and interest under this Note shall be payable at the office of the holder as above
set forth or such other place as the holder hereof may designate in writing.
In the event the date for payment of the principal sum secured hereunder or any part thereof falls
on a Sunday or any public holiday other than a half holiday, it is understood and agreed that
interest thereon at the rates provided for herein shall be paid to the actual date of payment of said
principal sum or any part thereof.
In the event that there is more than one maker or obligor under this Note, then the obligations all
such makers and obligors shall be joint and several.
In the event any payment to be made hereunder or under the terms of the mortgage collateral
hereto shall not be received by the holder within five (5) days from the due date, a late charge of
five percent (5%) for each $1.00 of such payment so overdue shall be charged by the holder
hereof for the purpose of defraying the expenses incidental to handling such delinquent payment.
Such charge may be added to the amount owing on the principal inde½dnêss and its payment
further secured by the mortgage collateral hereto.
In addition thereto, in the event any check delivered in payment of any sum or sums of money
due hereunder is dishonored, the holder hereof may charge and the undersigned shall pay $50.00
for the expense of handling such dishonored check.
It is hereby expressly agreed that the whole of the principal sum and interest secured by this Note
shall become due and payable, at the option of the holder hereof, after default in the payment of
any sum or sums of money payable hereunder or under the terms of the mortgage collateral
hereto for three (3) days after the due date thereof or upon the happening of any default or event
by which, under the terms of this Note or the mortgage collateral hereto, said principal sum may
or shall become due and payable, and further that all of the covenants, conditions and provisions
contained in said mortgage are hereby made a part of this Note.
It is further agreed that the obligation of this Note shall continue until the entire debt evidenced
hereby is paid notwithstanding any action or actions, whether by foreclosure or otherwise, which
may be brought to recover any sum or sums of money payable under the provisions of this Note
and the mortgage collateral hereto.
This note shall be governed by, and construed and interpreted in accordance with the laws of
New York, without giving effect to any of the conflict of law rules thereof.
Maker shall have the right to make prepayments of principal at any time before due without
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penalty, provided interest is paid to date of such prepayment. If Maker shall make a full payment
or a partial prepayment on or before November 1, 2016, Maker shall to the Payee a
pay
prepayment charge equal to the interest that would have otherwise been due on the amount of
such prepayment for the period on the date of the prepayment and on
beginning ending
November 1, 2016.
When a prepayment is made, Maker must deliver to Payee at least days written
thirty (30) notice,
by certified
Preview
FILED: KINGS COUNTY CLERK 11/18/2021 12:27 PM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/18/2021 EXHIBIT “1” FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 1 RECEIVED NYSCEF: 11/18/2021 12/16/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X SHELWOL LLC, Date Filed: Plaintiff, Index No. -against- SUMMONS 1663 60TH ST LLC; BENJAMIN FRIEDMAN; MIRIAM FRIEDMAN; CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD; CHASKIEL STRULOVITCH and JOHN DOE #1 through JOHN DOE # 99, Defendants. ------------------------------------------------------------------------X TO THE ABOVE-NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED and required to serve upon the plaintiff’s attorney an answer to the Complaint in this action, within twenty (20) days after the service of this Summons, exclusive of the date of service, or within thirty (30) days after service is complete if the summons is not personally delivered to you within the State of New York. In case of your failure to answer, judgment will be taken against you by default for the relief demanded in the Complaint. Plaintiff designates Kings County as the place of trial. The basis for the venue is that the situs of the real property is located at 1663 60th Street, Brooklyn, New York 11214, Block 5510; Lot 60. Dated: Cedarhurst, New York December 12, 2019 JACOBOWITZ NEWMAN TVERSKY LLP By: /s/_Aviva Francis_______ Evan M. Newman Aviva Francis 377 Pearsall Avenue Cedarhurst, New York 11516 (516) 545-0343 1 1 of 10 FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 1 RECEIVED NYSCEF: 11/18/2021 12/16/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X SHELWOL LLC, Index No: Plaintiff, VERIFIED COMPLAINT -against- Commercial Foreclosure 1663 60TH ST LLC; BENJAMIN FRIEDMAN; MIRIAM FRIEDMAN; CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD; CHASKIEL STRULOVITCH and JOHN DOE #1 through JOHN DOE # 99, Defendants. ------------------------------------------------------------------------X Plaintiff SHELWOL LLC (“Shelwol” or “Plaintiff” or “Lender”), by its attorneys Janowitz Newman Tversky LLP., for its verified complaint against defendants, alleges as follows: 1. This is an action to foreclose on commercial real property located in the County of Kings arising from defendant’s continuing failure to pay the amounts owed to Plaintiff pursuant to a note and mortgage. Parties 2. Plaintiff is a New York limited liability company and is the originating lender regarding the loan documents subject to this foreclosure action. 3. Lender is the holder, owner and is in possession of the original loan documents described below. 4. Defendant 1663 60TH ST LLC (the “Borrower”) is named a defendant in this action as the owner of the Property subject to this action known as 1663 60th Street, Brooklyn, New York (the “Property”). A legal description of the Property is attached to this complaint as Exhibit A and is incorporated by reference. 2 2 of 10 FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 1 RECEIVED NYSCEF: 11/18/2021 12/16/2019 5. The Borrower is also named a defendant in the action as the Borrower of the loan documents subject to this action. 6. Upon information and belief, Defendant Benjamin Friedman is an individual residing in New York and is named in this action as the holder of a subordinate judgment against the Property. 7. Upon information and belief, Defendant Miriam Friedman is an individual residing in New York and is named in this action as the holder of a subordinate judgment against the Property. 8. Defendant City of New York Environmental Control Board is a New York City agency that protects the public’s health, safety, and clean environment. It is named as a defendant in this action as a possible judgement creditor with an interest and/or lien in the Property. 9. Upon information and belief, Defendant Chaskiel Strulovitch resides in the State of New York and is named in this action as a guarantor. 10. Defendants John Doe #1 through John Doe # 99 are named as defendants herein to represent all other parties, including, but not limited to, tenants, other occupants of the Property, or lien holders who may have some interest in or lien upon the Property, which interest or lien is subordinate and subject to plaintiff’s lien. Cause of Action (Foreclosure) 11. For good and valuable consideration, on April 18, 2016, Plaintiff provided a loan to the Borrower in the amount of $200,000 (the “Loan”). At the time, the Borrower received the full amount of the Loan. 12. For good and valuable consideration, the Borrower made, executed and delivered to Plaintiff a note in the principal amount of $200,000.00 with an effective date of 3 3 of 10 FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 1 RECEIVED NYSCEF: 11/18/2021 12/16/2019 April 18, 2016 (the “Note”). See Exhibit A for the Note. 13. To secure the payment of the sum represented by the Note, the Borrower made, executed and delivered to Plaintiff a mortgage, in the principal amount of $200,000.00 with an effective date of April 18, 2016 and recorded in Register of the Clerk of the County of Kings on August 27, 2018 under CRFN2018000287587 and the mortgage recording tax was duly paid at the time of recording (the “Mortgage”). See Exhibit B for the Mortgage. 14. To further secure the Mortgage and the Note, on April 24, 2018, Chaskiel Strulovitch (the “Guarantor”) executed a guarantee with an effective date of April 18, 2016. See Exhibit C for the Guaranty. The Mortgage, Note and Guaranty shall collectively be referred to as the “Loan Documents.” 15. Pursuant to the Loan Documents, the Borrower assigned to Plaintiff its rights, title and interest to the Property, and the improvements and chattel located thereon. 16. The Mortgage provided, among other things, that upon the default in payment of any payment due on the loan, the Lender may institute foreclosure proceedings and sell the Property according to the law. 17. Plaintiff is the sole, true and lawful owner and holder of the Loan Documents, including the originals thereof. 18. The Borrower has defaulted under the terms of the Loan Documents by, inter alia, failing to timely pay the principal balance on the maturity date, April 18, 2017. 19. As a result, pursuant to the terms of the Loan Documents, one or more defaults have occurred. 20. Pursuant to the terms of the Loan Documents upon occurrence of any default, all outstanding indebtedness, together with accrued interest, may become 4 4 of 10 FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 1 RECEIVED NYSCEF: 11/18/2021 12/16/2019 immediately due and payable. Although not required, Lender sent a letter to the borrower advising the borrower of his default and accelerating the outstanding indebtedness under the Loan Documents. The most recent letter was sent to the Borrower on June 12, 2017, and through the filing of this complaint the Plaintiff reaffirms its acceleration. 21. Pursuant to the terms of the Loan Documents, the Borrower is responsible for costs and expenses, including attorney’s fees and costs, incurred by Plaintiff in enforcing its rights under the Loan Documents. 22. By reason of the foregoing, there is now due and owing from Borrower to Plaintiff, the unpaid principal balance of $200,000.00, plus accrued and accruing interest at the rate set forth in the Loan Documents, escrow advances, late fees and attorneys’ fees and costs. 23. The Mortgage being foreclosed is not a “high-cost home loan” or “subprime home loan,” as such terms are defined in section six-l and six-m of the N.Y. Banking Law, and is not a “home loan” for purposes of section 1304 of the N.Y. Real Property Actions and Proceedings Law (“RPAPL”). Accordingly, the requirements of CPLR §§ 3012-b, 3408, and RPAPL §§ 1302 and 1304 are not applicable to this action and no 90-day notice, Certificate of Merit, settlement conference or filing with the Superintendent is required. 24. The Property is one contiguous property and should be sold as one parcel. 25. To the extent that the amounts due pursuant to the Loan Documents are not satisfied by this foreclosure proceeding, the Borrower may be liable for such deficiencies. 26. In order to protect its security during the pendency of this action, Plaintiff and or its predecessors had to make payments towards protective advances such as water or taxes and Plaintiff may be further compelled to pay sums for premiums on policies of fire and other hazard insurance, taxes, and assessments, and/or other charges affecting the 5 5 of 10 FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 1 RECEIVED NYSCEF: 11/18/2021 12/16/2019 Property. Plaintiff prays that all sums so paid, together with interest at the default rate set forth in the Loan Documents from the date of such payments, together with plaintiff’s costs and expenses in enforcing the sums secured by the Loan Documents, including plaintiff’s reasonable attorneys’ fees, shall be added to plaintiff’s claim as secured by the Loan Documents, and be adjudged a valid lien on the Property such that the plaintiff should be paid such sums out of the proceeds of the sale of the Property. 27. Each of the above-named defendants has or claims to have or may claim to have some interest in or lien upon the Property. 28. No other action or proceeding has been commenced or maintained or is now pending at law or otherwise for the foreclosure of the Mortgage or for recovery of the sums secured by the Loan Documents. 29. In the event that Plaintiff possesses any other liens against the Property either by way of judgment, junior mortgage or otherwise, Plaintiff requests that such other liens shall not be merged in Plaintiff’s causes of action set forth herein, but that Plaintiff shall be permitted to enforce said other liens and/or seek determination of priority thereof in any independent actions or proceedings, including, without limitation, any surplus money proceedings. 30. The Mortgage provides that in any foreclosure action, the holder shall be entitled to the appointment of a receiver. 31. Plaintiff shall not be deemed to have waived, altered, released or changed the election to accelerate the loans and foreclose on the mortgage by reason of any payments made after the date of the commencement of this action. Second Cause of Action (Breach of Guaranty) 32. Plaintiff repeats and re-alleges the allegations of paragraphs above of this 6 6 of 10 FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 1 RECEIVED NYSCEF: 11/18/2021 12/16/2019 verified complaint as if fully set forth herein. 33. The Guaranty of the Note executed by the Guarantor is a valid and binding agreement, which mutual consideration was exchanged between the Guarantors and the Plaintiff. 34. Plaintiff completed all performance required of it under the Guaranty. 35. Pursuant to the Guaranty, the Guarantor is unconditionally guaranteed Plaintiff payment of the principal amount due on the Note, all accrued and unpaid interest thereon and all fees and expenses and other liabilities relating thereto. 36. As set forth above, the Borrower defaulted on the Note and the amounts due and owing under the Note is the unpaid principal balance in the amount of $200,000.00 plus interest at the rate set forth in the Loan Documents, late fees, other fees and attorneys’ fees. 37. The Guarantor failed to pay the amounts currently due to Plaintiff under the terms of the Guaranty, thus the Guarantor breached the Guaranty. As a result of the Guarantors’ breach of the Guaranty, Plaintiff has been damages in the amount of at least $200,000.00 plus interest at the rate set forth in the Loan Documents, late fees, other fees and attorneys’ fees. WHEREFORE, Plaintiff demands judgment on (A) Plaintiff’s First Cause of Action: Plaintiff demands that the defendants and each of them and all persons claiming under any of them, subsequent to the commencement of this action and the filing of the notice of pendency thereof, be barred and foreclosed of and from all estate, right, title, interest, claim, lien and equity of redemption of, in and to the Property and each and every part and parcel thereof; that the Property may be decreed to be sold, according to the law; 7 7 of 10 FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 1 RECEIVED NYSCEF: 11/18/2021 12/16/2019 that the monies arising from the sale of the Property may be brought into Court; that Plaintiff may be paid the amount due under the Loan Documents as set forth herein, with interest and late charges to the time of such payment and the expense of such sale, plus reasonable attorneys’ fees, together with the costs, allowances and disbursements of this action, together with any sum incurred by plaintiff pursuant to any term or provision of the Loan Documents as set forth herein, or to protect the lien of Plaintiff’s Mortgage, together with interest upon said sums from the dates of the respective payments and advances thereof, so far as the amount of such monies properly applicable thereto will pay the same; that this Court forthwith appoint a receiver of the rents and profits of the Property, during the pendency of this action with the usual powers and duties; that the Borrower be adjudged to pay the whole residue, or so much thereof as the Court may determine to be just and equitable, of the debt remaining unsatisfied after a sale of the Property and the application of the proceeds pursuant to the directions contained in such judgment; that in the event Plaintiff possesses any other liens against the Property either by way of judgment, junior mortgage or otherwise, Plaintiff requests that such other lien shall not be merged in Plaintiff’s causes of action set forth herein but that Plaintiff shall be permitted to enforce said other liens and/or seek determination of priority thereof in any independent actions or proceedings, including, without limitation, any surplus money proceedings, and that Plaintiff may have such other and further relief, as may be just and equitable; and (B) on its fourth cause of action against the Guarantor, to the extent there are insufficient funds at a foreclosure sale Plaintiff seeks judgment against the Guarantor, jointly and severally for breach of the Guaranty; and 8 8 of 10 FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 1 RECEIVED NYSCEF: 11/18/2021 12/16/2019 (C) such other and further relief, as may be just and equitable; Dated: Cedarhurst, New York December 12, 2019 JACOBOWITZ NEWMAN TVERSKY LLP Attorneys for Plaintiff By:/s Aviva Francis__________ Evan M. Newman Aviva Francis 377 Pearsall Avenue, Suite C Cedarhurst, New York 11516 (516) 545-0343 afrancis@jntllp.com 9 9 of 10 FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 1 RECEIVED NYSCEF: 11/18/2021 12/16/2019 VERIFICATION STATE OF NEW YORK ) :ss: COUNTY OF NASSAU ) HERBERT WOLOWITZ, who does not swear for religious reasons, hereby affirms the truth of the truth of the following: 1. That I am the managing member of plaintiff in the above captioned matter and am fully familiar with the facts and circumstances of this action. 2. That I have read the foregoing verified complaint and know the contents thereof. 3. That the same is true of my own knowledge, except as to those matters alleged upon information and belief. As to those matters stated to be alleged upon information and belief, I believe them to be true, based upon official coiift/p^jiers, (^mversations with my attorney and others and independent investigations. // / i HERBf[m wolc\' 1TZ A (firmed to before me this / rYtlay of wptiWkfi 2019 AVIVA FRANCIS Q/Ji. ~ Notary Pufcfllc Notary Public, Slat* of Now Yortc Reg. No. 02FR6236233 Qunilflod in Nassau Coimiy ■ My Commission Expim* r ^b. 28, 20 > 9 10 of 10 FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 2 RECEIVED NYSCEF: 11/18/2021 12/16/2019 EXHIBIT “A” FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 2 RECEIVED NYSCEF: 11/18/2021 12/16/2019 NATIONWIDE COURT SERVICES, INC TITLE NO. FC19-NL0082 SCHEDULE A LEGAL DESCRIPTION ALL that certain plot, piece or parcel of land situate, lying and being in the Borough of Brooklyn, County of Kings, State of New York bounded and described as follows: BEGINNING at a point on the northerly side of 60th Street, distant 240 feet westerly from the comer formed by the intersection of the northerly side of 60th Street with the westerly side of 17th Avenue; RUNNING THENCE northerly parallel with 17th Avenue, 100 feet 2 1/8 inches; THENCE westerly parallel with 60th Street, 30 feet; THENCE southerly parallel with 17th Avenue, 100 feet 2 1/8 inches to the northerly side of 60th Street; THENCE easterly along the northerly side of 60th Street, 30 feet to the point or place of BEGINNING. FOR INFORMATION ONLY 1663 60th Street Premises also known as: Brooklyn NY 11214 5510 60 County of: KINGS (FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 3 RECEIVED NYSCEF: 11/18/2021 12/16/2019 "B" EXHIBIT EXHIBIT "B" FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 3 RECEIVED NYSCEF: 11/18/2021 12/16/2019 MORTGAGE NOTE 1663 60TH ST LLC - to - HERBERT WOLOWITZ PARCEL Block: 5510 Lot: 60 County: Kings Premises: 1663 60th Street, Brooklyn, New York Owner: . 1663 60TH ST LLC . FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 3 RECEIVED NYSCEF: 11/18/2021 12/16/2019 MORTGAGE NOTE ("Note") $200,000.00 . Dated as of the 18th day of April, 2016 Brooklyn, New York FOR VALUE RECEIVED, the undersigned, 1663 60TH ST LLC, a New York limited liability company having an address at 116 Nostrand Avenue, Brooklyn, New York 11205 (hereinafter referred to as the "Maker"), promises to pay to the order of HERBERT WOLOWITZ, having an address at 88 Washington Avenue, Cedarhurst, New York 11516 (hereinafter referred to as the "Payee") the principal sum of TWO HUNDRED THOUSAND AND 00/100 ($200,000.00) DOLLARS, (hereinafter referred to as the "Principal Amount") lawful money of the United States, payabic on April 18, 2017 (hereinafter referred to as the "Due Date"), with interest on the outstanding principal balance to be computed at the rate of TWELVE (12%) PERCENT per annum from the date of this Note to and including the date this Note is paid in full and payable in 1" monthly installments of interest only commencing on June 1, 2016 and thereafter, on the day of each month until the Principal Amount is paid in full, pursuant to the terms hereof. Interest on the Principal Amount of the Note shall be calculated on the basis of the number of days elapsed in a three hundred sixty (360) day year (i.e. twelve thirty day months). 1. Events of Default. Upon the occurrence of any of the following events (each an "Event of Default"): (a) Maker shall fail to pay the Principal Amount when due in accordance with the terms hereof; or (b) Maker shall fail to pay interest on the Principal Amount when due in accordance with the terms hereof; or . (c) Maker shall commence any case, proceeding or other action (i) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, . insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Maker, or seeking to adjudicate Maker a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, . . liquidation, dissolution, composition or other relief with respect to Maker or Maker's debts, or (ii) seeking appointment of a receiver, trustee, custodian or similar official for Maker or for all or any substantial part of Maker's creditors; or (d) . There shall be commenced against proceedingMakeror other actionin any case, of a nature referred to in clause (c) above which (i) results in the entry of an order for relief or any such adjudication or appointment, or (ii) remains undismissed, undischarged or unbonded for a period of 60 days; (e) Maker shall take any action indicating Maker's consent to, approval of, or acquiescence in, any ofthe acts set forth in clauses (c) or (d); (f) Maker shall have defaulted under any other note or mortgage secured by the same property as the mortgage securing this note; then, and in any such event (in addition to any other rights or remedies Payee may have hereunder), all amounts owing under this Note shall immediately become due and payable. . 2. Notices. FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 3 RECEIVED NYSCEF: 11/18/2021 12/16/2019 All notices or other communications required or permitted hereunder shall be in writing and shall be deemed given or delivered (i) when delivered personally, (ii) on the next business day if by overnight courier, or (iii) on the third business day after being sent by registered or certified mail, to the address of each of the parties specified above or to such other address as . such party may indicate by a notice given or delivered to the other party hereto. . 3. General Provisions. Both principal and interest under this Note shall be payable at the office of the holder as above set forth or such other place as the holder hereof may designate in writing. In the event the date for payment of the principal sum secured hereunder or any part thereof falls on a Sunday or any public holiday other than a half holiday, it is understood and agreed that interest thereon at the rates provided for herein shall be paid to the actual date of payment of said principal sum or any part thereof. In the event that there is more than one maker or obligor under this Note, then the obligations all such makers and obligors shall be joint and several. In the event any payment to be made hereunder or under the terms of the mortgage collateral hereto shall not be received by the holder within five (5) days from the due date, a late charge of five percent (5%) for each $1.00 of such payment so overdue shall be charged by the holder hereof for the purpose of defraying the expenses incidental to handling such delinquent payment. Such charge may be added to the amount owing on the principal inde½dnêss and its payment further secured by the mortgage collateral hereto. In addition thereto, in the event any check delivered in payment of any sum or sums of money due hereunder is dishonored, the holder hereof may charge and the undersigned shall pay $50.00 for the expense of handling such dishonored check. It is hereby expressly agreed that the whole of the principal sum and interest secured by this Note shall become due and payable, at the option of the holder hereof, after default in the payment of any sum or sums of money payable hereunder or under the terms of the mortgage collateral hereto for three (3) days after the due date thereof or upon the happening of any default or event by which, under the terms of this Note or the mortgage collateral hereto, said principal sum may or shall become due and payable, and further that all of the covenants, conditions and provisions contained in said mortgage are hereby made a part of this Note. It is further agreed that the obligation of this Note shall continue until the entire debt evidenced hereby is paid notwithstanding any action or actions, whether by foreclosure or otherwise, which may be brought to recover any sum or sums of money payable under the provisions of this Note and the mortgage collateral hereto. This note shall be governed by, and construed and interpreted in accordance with the laws of New York, without giving effect to any of the conflict of law rules thereof. Maker shall have the right to make prepayments of principal at any time before due without FILED: KINGS COUNTY CLERK 11/18/2021 12/16/2019 12:27 10:00 PM AM INDEX NO. 527230/2019 NYSCEF DOC. NO. 36 3 RECEIVED NYSCEF: 11/18/2021 12/16/2019 penalty, provided interest is paid to date of such prepayment. If Maker shall make a full payment or a partial prepayment on or before November 1, 2016, Maker shall to the Payee a pay prepayment charge equal to the interest that would have otherwise been due on the amount of such prepayment for the period on the date of the prepayment and on beginning ending November 1, 2016. When a prepayment is made, Maker must deliver to Payee at least days written thirty (30) notice, by certified