Preview
FILED: KINGS COUNTY CLERK 12/07/2023 04:15 PM INDEX NO. 535839/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/07/2023
SUPREME COURT OF THE STATE OF NEW YORK
COLTNTY OF KINGS
PULASKI DEVELOPMENT LLC. Index No.
Plaintiff, AFFIRMATION OF
ARON KAPELYUS
- against - IN SUPPORT OF
MOTION FOR
BUSHWICK ECONOMIC DEVELOPMENT CORP., SUMMARY JUDGMENT
IN LIEU OF COMPLAINT
Defendant.
STATE OF NEW YORK )
couNrY oF KrNGS ;t''
Aron Kapelyus, whose religious beliefs preclude him from swearing an oath, affirms the
following to be true under penalty of perjury:
l. I am the Managing Member of plaintiff Pulaski Development LLC ("Pulaski"), a
New York limited liability company. I have personal knowledge of the facts set forth below. I
submit this affirmation in support of Pulaski's motion for an Order: (a) pursuant to CPLR $
3213, directing the entry ofjudgment in favor of Pulaski against defendant in the amount of
$96,129.93, plus interest thereon from December l, 2023; (b) severing, for determination by the
Court or a Special Referee, the amount of costs, attorneys' fees and other expenses of collection
to be awarded to plaintiff; and (c) granting such other and further relief as the Court deems just
and proper.
2. This motion is based solely on instruments for the payment of money only: a
Promissory Note dated June 26,2017 (the "Note"), made by defendant Bushwick Economic
Development Corp. ("BEDCO"), a New York not-for-profit corporation. The Note was issued in
connection with the settlement of an action commenced by Pulaski against BEDCO in the Civil
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FILED: KINGS COUNTY CLERK 12/07/2023 04:15 PM INDEX NO. 535839/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/07/2023
Court of the City of New York, County of Kings: Commercial Part,L&T Index No. 100134-
KLT-2016 (the "L&T Action"). A true copy of the Note is attached to this Affirmation as
Exhibit A.
3. There can be no dispute that the Note was executed by BEDCO. The amount
owed to date under the Note is also not subject to dispute. There are no defenses to this action.
Therefore, the Court should grant plaintiff summary judgment in lieu of complaint.
The Terms of the Note
4. Pulaski commenced the L&T Action, a non-payment proceeding, in which it was
alleged that over $6 million was due and owing from BEDCO in base rent and additional rent
under a commercial lease. On October 10,2017,the parties entered into a Stipulation of
Settlement to settle the L&T Action. As part of that settlement, BEDCO agreed (l) to pay
Pulaski the sum of $1,800,000, and (2) to pay Pulaski an additional $400,000, under the Note.
5. The Note provides for BEDCO's promise to pay the principal sum of $400,000
together with interest at the rate of 5o/o per annum from July 1,2017, in 60 equal monthly
installments of $7,881.83 each, payable on the first day of each month commencing with July l,
2018 through and including June2023.
6. The Note provides further that after maturity (i.e., June 2023), any unpaid
amounts due under this Note shall bear interest at the rate of 18% per annum on any unpaid
balance."
7. The Note defines an "Event of Default" to include BEDCO's failure to pay any
installment of the Note within 5 days when it was due.
8. The Note provides further that BEDCO "agrees to indemni& arrd hold harmless
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FILED: KINGS COUNTY CLERK 12/07/2023 04:15 PM INDEX NO. 535839/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/07/2023
Pulaski Development from and against any and all costs and expenses (including attorney's fees)
incurred by Pulaski Development in any action, suit or proceeding relating to the enforcement of
this Note or to the collection of any amount due hereunder."
Payments to Date. Borrower's Default. and Amount Owing
9. Attached hereto as Exhibit B is a schedule of all payments received from BEDCO
and the amounts due under the Note, from the period commencing July 1,2018 through
December 1,2023. This schedule is generated in the regular course of Pulaski's business by the
accounting system in our office, which records each payment made, the date payments were
made, the charges that were due, and the date the charges were due. The entries were made
contemporaneously when the transactions occurred.
10. As reflected on the schedule attached as Exhibit B, no payments were made by
BEDCO since December 28, 2022, almost a year ago.
I l. As of December 1, 2023, the total of the principal and interest payable under the
Note is $476,487.84. As of December 1,2023, the total principal and interest paid by BEDCO
under the Note is $380,357.91. This leaves a balance owing to Pulaski in the amount of
$96,129.93.
12. Pursuant to the terms of the Note, BEDCO is in default of its obligations under
the Note, and such default has existed for a period of time far greater than five days after
payment of any installment was due. Further, as provided in the Note, interest after the maturity
date (June 2023) is at the annual rate of l8%. Therefore, in addition to the sum of $96 ,129.93
owed by BEDCO under the Note, the amount of $96,129.93 should bear interest at the rate of
18% per annum from December 2,2023, all of which should be awarded by the Court.
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FILED: KINGS COUNTY CLERK 12/07/2023 04:15 PM INDEX NO. 535839/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/07/2023
J3. I raqrilfull.v submir &at thcrr- is no tl,rfcnse t* this acrion end rhat plainriff is
cntitled to sumrnary judgrnr:nt a$ a nrattsr ollarv.
wHEn'-L'r$Rfi" plaintiff pulaski Developrncnr LL{'rcspccrluil}, rc{.{usrr$ thauhc (bun
cn{sr an ttrdrr granting plaintiff summary.ludgrncnt in its {avor as asain.rt drlendant in rhe sum
oI
Sgs.l2$-t3- plus prejudgrnent intcrcst at thc ratc of I $% psr armum lrom Dcccnrber ?, I0I3, anrt
stch oth$ rclie f as th{: {'ourt deeru jurt aml prqper. Pl*intilT {urrher rcqucsls rhx ths Court ser
dor.vn lbr $cpsrale hearing before the Court or a $pecial Rcfcrso ihc anrount of 6osls. cxpcnses
and allomeys' fccs incurrcrl by pl*inrifl which should be awanlcd in irs favor as apinsl
dcfcndant frur$uartr to thc tcrms ef t]rc ],iotc.
A{li*"d to bcforc mc this
l: day of l)cccmhcr.202i.
ElrAS
Norary #fifl:g#il
#d*Li:",*ir,,i;%
4
4 of 4
Preview
FILED: KINGS COUNTY CLERK 12/07/2023 04:15 PM INDEX NO. 535839/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/07/2023 SUPREME COURT OF THE STATE OF NEW YORK COLTNTY OF KINGS PULASKI DEVELOPMENT LLC. Index No. Plaintiff, AFFIRMATION OF ARON KAPELYUS - against - IN SUPPORT OF MOTION FOR BUSHWICK ECONOMIC DEVELOPMENT CORP., SUMMARY JUDGMENT IN LIEU OF COMPLAINT Defendant. STATE OF NEW YORK ) couNrY oF KrNGS ;t'' Aron Kapelyus, whose religious beliefs preclude him from swearing an oath, affirms the following to be true under penalty of perjury: l. I am the Managing Member of plaintiff Pulaski Development LLC ("Pulaski"), a New York limited liability company. I have personal knowledge of the facts set forth below. I submit this affirmation in support of Pulaski's motion for an Order: (a) pursuant to CPLR $ 3213, directing the entry ofjudgment in favor of Pulaski against defendant in the amount of $96,129.93, plus interest thereon from December l, 2023; (b) severing, for determination by the Court or a Special Referee, the amount of costs, attorneys' fees and other expenses of collection to be awarded to plaintiff; and (c) granting such other and further relief as the Court deems just and proper. 2. This motion is based solely on instruments for the payment of money only: a Promissory Note dated June 26,2017 (the "Note"), made by defendant Bushwick Economic Development Corp. ("BEDCO"), a New York not-for-profit corporation. The Note was issued in connection with the settlement of an action commenced by Pulaski against BEDCO in the Civil 1 of 4 FILED: KINGS COUNTY CLERK 12/07/2023 04:15 PM INDEX NO. 535839/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/07/2023 Court of the City of New York, County of Kings: Commercial Part,L&T Index No. 100134- KLT-2016 (the "L&T Action"). A true copy of the Note is attached to this Affirmation as Exhibit A. 3. There can be no dispute that the Note was executed by BEDCO. The amount owed to date under the Note is also not subject to dispute. There are no defenses to this action. Therefore, the Court should grant plaintiff summary judgment in lieu of complaint. The Terms of the Note 4. Pulaski commenced the L&T Action, a non-payment proceeding, in which it was alleged that over $6 million was due and owing from BEDCO in base rent and additional rent under a commercial lease. On October 10,2017,the parties entered into a Stipulation of Settlement to settle the L&T Action. As part of that settlement, BEDCO agreed (l) to pay Pulaski the sum of $1,800,000, and (2) to pay Pulaski an additional $400,000, under the Note. 5. The Note provides for BEDCO's promise to pay the principal sum of $400,000 together with interest at the rate of 5o/o per annum from July 1,2017, in 60 equal monthly installments of $7,881.83 each, payable on the first day of each month commencing with July l, 2018 through and including June2023. 6. The Note provides further that after maturity (i.e., June 2023), any unpaid amounts due under this Note shall bear interest at the rate of 18% per annum on any unpaid balance." 7. The Note defines an "Event of Default" to include BEDCO's failure to pay any installment of the Note within 5 days when it was due. 8. The Note provides further that BEDCO "agrees to indemni& arrd hold harmless 2 of 4 FILED: KINGS COUNTY CLERK 12/07/2023 04:15 PM INDEX NO. 535839/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/07/2023 Pulaski Development from and against any and all costs and expenses (including attorney's fees) incurred by Pulaski Development in any action, suit or proceeding relating to the enforcement of this Note or to the collection of any amount due hereunder." Payments to Date. Borrower's Default. and Amount Owing 9. Attached hereto as Exhibit B is a schedule of all payments received from BEDCO and the amounts due under the Note, from the period commencing July 1,2018 through December 1,2023. This schedule is generated in the regular course of Pulaski's business by the accounting system in our office, which records each payment made, the date payments were made, the charges that were due, and the date the charges were due. The entries were made contemporaneously when the transactions occurred. 10. As reflected on the schedule attached as Exhibit B, no payments were made by BEDCO since December 28, 2022, almost a year ago. I l. As of December 1, 2023, the total of the principal and interest payable under the Note is $476,487.84. As of December 1,2023, the total principal and interest paid by BEDCO under the Note is $380,357.91. This leaves a balance owing to Pulaski in the amount of $96,129.93. 12. Pursuant to the terms of the Note, BEDCO is in default of its obligations under the Note, and such default has existed for a period of time far greater than five days after payment of any installment was due. Further, as provided in the Note, interest after the maturity date (June 2023) is at the annual rate of l8%. Therefore, in addition to the sum of $96 ,129.93 owed by BEDCO under the Note, the amount of $96,129.93 should bear interest at the rate of 18% per annum from December 2,2023, all of which should be awarded by the Court. 3 of 4 FILED: KINGS COUNTY CLERK 12/07/2023 04:15 PM INDEX NO. 535839/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/07/2023 J3. I raqrilfull.v submir &at thcrr- is no tl,rfcnse t* this acrion end rhat plainriff is cntitled to sumrnary judgrnr:nt a$ a nrattsr ollarv. wHEn'-L'r$Rfi" plaintiff pulaski Developrncnr LL{'rcspccrluil}, rc{.{usrr$ thauhc (bun cn{sr an ttrdrr granting plaintiff summary.ludgrncnt in its {avor as asain.rt drlendant in rhe sum oI Sgs.l2$-t3- plus prejudgrnent intcrcst at thc ratc of I $% psr armum lrom Dcccnrber ?, I0I3, anrt stch oth$ rclie f as th{: {'ourt deeru jurt aml prqper. Pl*intilT {urrher rcqucsls rhx ths Court ser dor.vn lbr $cpsrale hearing before the Court or a $pecial Rcfcrso ihc anrount of 6osls. cxpcnses and allomeys' fccs incurrcrl by pl*inrifl which should be awanlcd in irs favor as apinsl dcfcndant frur$uartr to thc tcrms ef t]rc ],iotc. A{li*"d to bcforc mc this l: day of l)cccmhcr.202i. ElrAS Norary #fifl:g#il #d*Li:",*ir,,i;% 4 4 of 4