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FILED: RENSSELAER COUNTY CLERK 01/09/2024 02:56 PM INDEX NO. EF2023-274861
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/09/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RENSSELAER
BERKSHIRE BANK,
AFFIDAVIT IN SUPPORT OF
Plaintiff, EX PARTE MOTION FOR
ORDER GRANTING
- against - DEFAULT JUDGMENT AND
AWARDING ATTORNEYS’
LOCKROW CONTRACTING, LLC and FEES, COSTS AND
HERMAN J. LOCKROW, EXPENSES
Defendants. Index Number: EF2023-274861
Date of Filing:
STATE OF NEW YORK )
)SS.:
COUNTY OF ONIEDA )
FREDRICK FRANK, being duly sworn, deposes and states as follows:
1. I am a Business Banking Workout Officer for Berkshire Bank, the Plaintiff in the
within action (“Plaintiff’).
2. I am fully familiar with the matters stated herein, including the accuracy of the
documents in support of this motion, having been personally involved in administering the
collection of the underlying commercial loan.
3. I certify that during my employment I have become well-acquainted with Plaintiffs
books and records, including its electronic records, and the procedure utilized to document acts,
transactions, and occurrences involving borrower loan accounts and related records. I have
reviewed the books and records related to the underlying loan which are maintained by Plaintiff in
the ordinary course of its business and certify that the copies of the Loan Documents and exhibits
attached in support of this motion are true and accurate copies of the originals.
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4. I submit this affidavit in support to Plaintiff’s Motion for an Order (i) granting
Plaintiff a default judgment pursuant to CPLR § 3215 against the Defendant herein for the relief
sought in the Verified Complaint, (ii) for the award of attorney’s fees, costs and expenses in an
amount to be determined by the Court, and (iii) for such other and further relief as to this Court
seems just and proper.
BACKGROUND
5. By Promissory Note dated April 22, 2017, between Berkshire and Lockrow
Contracting, LLC (the “Borrower”) (the “Note”), Borrower agreed that in exchange for good and
valuable consideration, it would repay Berkshire the original principal amount of $80,000.00,
together with interest on the unpaid outstanding principal balance of each advance, as more fully
set forth in the Note, (see Note, annexed as Exhibit A to the Verified Complaint, annexed as Exhibit
1 to the Affirmation of Cassandra M. Gipe, Esq. [“Gipe Aff.”] being filed contemporaneously
herewith).
6. To further evidence the Note, its obligations to Berkshire and to further secure its
performance, Borrower delivered to Berkshire a Business Loan Agreement dated April 22, 2017
(the “Loan Agreement”) (see Loan Agreement, annexed as Exhibit B to the Verified Complaint,
annexed as Exhibit 1 to the Gipe Aff.).
7. To induce Plaintiff to lend the Borrower the funds referenced in the Note, the
Defendant Herman Lockrow (“Guarantor”), for good and valuable consideration, executed and
delivered to Plaintiff a Commercial Guaranty, dated April 22, 2017 (the “Guaranty”), pursuant to
which Guarantor unconditionally guaranteed payment of all amounts due from Borrower to
Plaintiff (see Guaranty, annexed as Exhibit C to the Verified Complaint, annexed as Exhibit 1 to
the Gipe Aff.).
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8. On April 4, 2022, Defendants executed and delivered to Berkshire a Change in
Terms Agreement, which extended the maturity date to July 22, 2022 (the “Maturity Date”), and
provided that Defendants would pay interest only payment until July 22, 2022, and would pay the
remaining principal balance on the Maturity Date (“Change in Terms Agreement #1) (see Change
in Terms Agreement #1, annexed as Exhibit D to the Verified Complaint, annexed as Exhibit 1 to
the Gipe Aff.).
9. On July 28, 2022, Defendants executed and delivered to Berkshire a second Change
in Terms Agreement modifying the terms of the Note, which extended the maturity date to July
22, 2032 (the “Extended Maturity Date”), and Defendants agreed to pay Berkshire monthly
payments of $977.99 per month for 10 years, beginning on August 22, 2022 (“Change in Terms
Agreement #2) (“Change in Terms Agreement #2) (see Change in Terms Agreement #1, annexed
as Exhibit E to the Verified Complaint, annexed as Exhibit 1 to the Gipe Aff.).
10. As Security for the Change in Terms Agreement #2, Borrower executed and
delivered to Berkshire a Commercial Security Agreement dated July 28, 2022 (the “Security
Agreement”), wherein and whereby Borrower pledged and granted to Berkshire a continuing
security interest in the property more particularly set forth therein (the “Collateral”) (see Security
Agreement, annexed as Exhibit F to the Verified Complaint, annexed as Exhibit 1 to the Gipe
Aff.).
11. Berkshire perfected its security interest in the pledged collateral by filing a UCC-1
Financing Statement with the New York State Department of State on August 8, 2022 (see UCC-
1 Financing Statement, annexed as Exhibit G to the Verified Complaint, annexed as Exhibit 1 to
the Gipe Aff.).
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12. Berkshire is the sole, true and lawful owner of the Note, Business Loan Agreement,
Security Agreement, Guaranty, and Change in Terms Agreements (the “Loan Documents”) and
possesses all rights set forth in those documents in favor of the lender, holder and/or secured party
identified therein.
BASIS FOR RELIEF
13. Borrower defaulted in payment of the Note by failing to make the principal and
interest payments which were due thereunder on March 1, 2023 and each month thereafter (see
Payment History and payoff Summary, Exhibit A hereto).
14. Likewise, Guarantor breached on the terms of the Guaranty by failing to pay
Plaintiff any of the amounts due from Borrower under the Note.
15. By written notice dated June 26, 2023, Plaintiff sent a Notice of Payment Default
and Demand for Payment to the Borrower and Guarantor which accelerated the Note and declared
the entire loan immediately due and payable (see Exhibit H to the Verified Complaint, annexed as
Exhibit 1 to the Gipe Aff.).
16. Plaintiff has exercised, and in its Verified Complaint exercised, its rights under the
Note and Guaranty, to declare the entire principal balance, plus accrued interest, and late charges,
due and owing from the Defendants.
17. As of December 12, 2023 the total amount of $79,086.68 was due and owing
consisting of principal in the amount of $73,994.79, interest in the amount of $4,700.69, and late
charges in the amount of $391.20. Interest accrues for each day after December 12, 2023 at a per
diem rate of $17.7384771. The Loan Payment History and Payoff summary which is annexed
hereto as Exhibit A, was retrieved directly from Berkshire’s books and records maintained in the
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regular and ordinary course of business (see Payment History and Payoff Summary, Exhibit A
hereto).
18. Plaintiff is entitled to judgment against Borrower and the Guarantor for the total
amount of $79,086.68, plus interest at the rate of $17.7384771 for each day after December 12,
2023.
19. Berkshire is also entitled to a judgment of replevin directing the Borrower and
Guarantor to assemble and deliver the Collateral as defined in the Security Agreement dated July
28, 2022 to Berkshire for liquidation and alternatively, a judgment directing the Sheriff of any
County where the Collateral is located to assemble and deliver the Collateral to Berkshire for
liquidation, pursuant to the terms of the Security Agreement, Article 9 of the Uniform Commercial
Code as adopted in the State of New York and/or Article 71 of the Civil Practice Law and Rules.
20. Finally, the Loan Documents provide that Borrower and Guarantor are liable to
Plaintiff for its costs and expenses, including reasonable attorney’s fees costs, expenses and
reasonable attorneys’ fees and legal expenses incurred in connection with enforcement of the loan
documents.
21. Plaintiffs reasonable attorney’s fees, costs and expenses are set forth in the
accompanying Gipe Aff.
22. It is my understanding that Defendants were properly served but defaulted by
failing to appear or otherwise put in an answer in this action.
23. Regardless, even if Defendants had appeared, I am not aware of any defenses that
would be available to the Defendants.
24. No application for the relief herein sought is pending before any Judge or Court.
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25. Based upon the foregoing, Plaintiff respectfully requests that this Court issue an
Order as follows: (i) granting Plaintiff a default judgment pursuant to CPLR §3215 against the
Defendants, jointly and severally, in the amount of $79,086.68, with interest accruing after
December 12, 2023 at a per diem rate of $17.7384771; (ii) a judgment of replevin directing
Defendants to assemble and deliver the collateral to Berkshire for liquidation and, alternatively, a
judgment directing the Sheriff of any County where the collateral is located to assemble and deliver
the collateral to Berkshire for Iiquidation;(iii) granting Berkshire’s reasonable attorney's fees,
costs, and expenses incurred in connection with the action; and (iv) such other and further relief
as may be deemed just, equitable, necessary, and proper.
Fredrick Frank '
Sworn to before me this
day of January, 2024
l/U 7 JU
Noi
MARY ANNE SWERDAN
Notary Public in the State of New York
Qualified in Oneida County 01SW6117636
My Commission Expires Nov. 1,
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CERTIFICATE OF WORD COUNT
Pursuant to Rule 202. 8-b of the Uniform Civil Rules for the Supreme Court and County
Court, I certify that the accompanying Lender Affidavit, contains 1,544 excluding the parts of the
document exempted by Rule 202. 8-b (b) of the Uniform Civil Rules for the Supreme Court and
County Court (Case Caption/Signature Block), and is in compliance with the word-count limit set
forth by Rule 202. 8-b (a). This certificate was prepared in reliance on the wordcount function of
the word processing system (Microsoft Word) used to prepare the document.
DATED: January ^ , 2024
Albany, New York Cassandra M. Gipe, Esq.
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FILED: RENSSELAER COUNTY CLERK 01/09/2024 02:56 PM INDEX NO. EF2023-274861 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/09/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RENSSELAER BERKSHIRE BANK, AFFIDAVIT IN SUPPORT OF Plaintiff, EX PARTE MOTION FOR ORDER GRANTING - against - DEFAULT JUDGMENT AND AWARDING ATTORNEYS’ LOCKROW CONTRACTING, LLC and FEES, COSTS AND HERMAN J. LOCKROW, EXPENSES Defendants. Index Number: EF2023-274861 Date of Filing: STATE OF NEW YORK ) )SS.: COUNTY OF ONIEDA ) FREDRICK FRANK, being duly sworn, deposes and states as follows: 1. I am a Business Banking Workout Officer for Berkshire Bank, the Plaintiff in the within action (“Plaintiff’). 2. I am fully familiar with the matters stated herein, including the accuracy of the documents in support of this motion, having been personally involved in administering the collection of the underlying commercial loan. 3. I certify that during my employment I have become well-acquainted with Plaintiffs books and records, including its electronic records, and the procedure utilized to document acts, transactions, and occurrences involving borrower loan accounts and related records. I have reviewed the books and records related to the underlying loan which are maintained by Plaintiff in the ordinary course of its business and certify that the copies of the Loan Documents and exhibits attached in support of this motion are true and accurate copies of the originals. {LG 00712920 1 } 1 of 7 FILED: RENSSELAER COUNTY CLERK 01/09/2024 02:56 PM INDEX NO. EF2023-274861 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/09/2024 4. I submit this affidavit in support to Plaintiff’s Motion for an Order (i) granting Plaintiff a default judgment pursuant to CPLR § 3215 against the Defendant herein for the relief sought in the Verified Complaint, (ii) for the award of attorney’s fees, costs and expenses in an amount to be determined by the Court, and (iii) for such other and further relief as to this Court seems just and proper. BACKGROUND 5. By Promissory Note dated April 22, 2017, between Berkshire and Lockrow Contracting, LLC (the “Borrower”) (the “Note”), Borrower agreed that in exchange for good and valuable consideration, it would repay Berkshire the original principal amount of $80,000.00, together with interest on the unpaid outstanding principal balance of each advance, as more fully set forth in the Note, (see Note, annexed as Exhibit A to the Verified Complaint, annexed as Exhibit 1 to the Affirmation of Cassandra M. Gipe, Esq. [“Gipe Aff.”] being filed contemporaneously herewith). 6. To further evidence the Note, its obligations to Berkshire and to further secure its performance, Borrower delivered to Berkshire a Business Loan Agreement dated April 22, 2017 (the “Loan Agreement”) (see Loan Agreement, annexed as Exhibit B to the Verified Complaint, annexed as Exhibit 1 to the Gipe Aff.). 7. To induce Plaintiff to lend the Borrower the funds referenced in the Note, the Defendant Herman Lockrow (“Guarantor”), for good and valuable consideration, executed and delivered to Plaintiff a Commercial Guaranty, dated April 22, 2017 (the “Guaranty”), pursuant to which Guarantor unconditionally guaranteed payment of all amounts due from Borrower to Plaintiff (see Guaranty, annexed as Exhibit C to the Verified Complaint, annexed as Exhibit 1 to the Gipe Aff.). {LG 00712920 1 } 2 of 7 FILED: RENSSELAER COUNTY CLERK 01/09/2024 02:56 PM INDEX NO. EF2023-274861 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/09/2024 8. On April 4, 2022, Defendants executed and delivered to Berkshire a Change in Terms Agreement, which extended the maturity date to July 22, 2022 (the “Maturity Date”), and provided that Defendants would pay interest only payment until July 22, 2022, and would pay the remaining principal balance on the Maturity Date (“Change in Terms Agreement #1) (see Change in Terms Agreement #1, annexed as Exhibit D to the Verified Complaint, annexed as Exhibit 1 to the Gipe Aff.). 9. On July 28, 2022, Defendants executed and delivered to Berkshire a second Change in Terms Agreement modifying the terms of the Note, which extended the maturity date to July 22, 2032 (the “Extended Maturity Date”), and Defendants agreed to pay Berkshire monthly payments of $977.99 per month for 10 years, beginning on August 22, 2022 (“Change in Terms Agreement #2) (“Change in Terms Agreement #2) (see Change in Terms Agreement #1, annexed as Exhibit E to the Verified Complaint, annexed as Exhibit 1 to the Gipe Aff.). 10. As Security for the Change in Terms Agreement #2, Borrower executed and delivered to Berkshire a Commercial Security Agreement dated July 28, 2022 (the “Security Agreement”), wherein and whereby Borrower pledged and granted to Berkshire a continuing security interest in the property more particularly set forth therein (the “Collateral”) (see Security Agreement, annexed as Exhibit F to the Verified Complaint, annexed as Exhibit 1 to the Gipe Aff.). 11. Berkshire perfected its security interest in the pledged collateral by filing a UCC-1 Financing Statement with the New York State Department of State on August 8, 2022 (see UCC- 1 Financing Statement, annexed as Exhibit G to the Verified Complaint, annexed as Exhibit 1 to the Gipe Aff.). {LG 00712920 1 } 3 of 7 FILED: RENSSELAER COUNTY CLERK 01/09/2024 02:56 PM INDEX NO. EF2023-274861 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/09/2024 12. Berkshire is the sole, true and lawful owner of the Note, Business Loan Agreement, Security Agreement, Guaranty, and Change in Terms Agreements (the “Loan Documents”) and possesses all rights set forth in those documents in favor of the lender, holder and/or secured party identified therein. BASIS FOR RELIEF 13. Borrower defaulted in payment of the Note by failing to make the principal and interest payments which were due thereunder on March 1, 2023 and each month thereafter (see Payment History and payoff Summary, Exhibit A hereto). 14. Likewise, Guarantor breached on the terms of the Guaranty by failing to pay Plaintiff any of the amounts due from Borrower under the Note. 15. By written notice dated June 26, 2023, Plaintiff sent a Notice of Payment Default and Demand for Payment to the Borrower and Guarantor which accelerated the Note and declared the entire loan immediately due and payable (see Exhibit H to the Verified Complaint, annexed as Exhibit 1 to the Gipe Aff.). 16. Plaintiff has exercised, and in its Verified Complaint exercised, its rights under the Note and Guaranty, to declare the entire principal balance, plus accrued interest, and late charges, due and owing from the Defendants. 17. As of December 12, 2023 the total amount of $79,086.68 was due and owing consisting of principal in the amount of $73,994.79, interest in the amount of $4,700.69, and late charges in the amount of $391.20. Interest accrues for each day after December 12, 2023 at a per diem rate of $17.7384771. The Loan Payment History and Payoff summary which is annexed hereto as Exhibit A, was retrieved directly from Berkshire’s books and records maintained in the {LG 00712920 1 } 4 of 7 FILED: RENSSELAER COUNTY CLERK 01/09/2024 02:56 PM INDEX NO. EF2023-274861 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/09/2024 regular and ordinary course of business (see Payment History and Payoff Summary, Exhibit A hereto). 18. Plaintiff is entitled to judgment against Borrower and the Guarantor for the total amount of $79,086.68, plus interest at the rate of $17.7384771 for each day after December 12, 2023. 19. Berkshire is also entitled to a judgment of replevin directing the Borrower and Guarantor to assemble and deliver the Collateral as defined in the Security Agreement dated July 28, 2022 to Berkshire for liquidation and alternatively, a judgment directing the Sheriff of any County where the Collateral is located to assemble and deliver the Collateral to Berkshire for liquidation, pursuant to the terms of the Security Agreement, Article 9 of the Uniform Commercial Code as adopted in the State of New York and/or Article 71 of the Civil Practice Law and Rules. 20. Finally, the Loan Documents provide that Borrower and Guarantor are liable to Plaintiff for its costs and expenses, including reasonable attorney’s fees costs, expenses and reasonable attorneys’ fees and legal expenses incurred in connection with enforcement of the loan documents. 21. Plaintiffs reasonable attorney’s fees, costs and expenses are set forth in the accompanying Gipe Aff. 22. It is my understanding that Defendants were properly served but defaulted by failing to appear or otherwise put in an answer in this action. 23. Regardless, even if Defendants had appeared, I am not aware of any defenses that would be available to the Defendants. 24. No application for the relief herein sought is pending before any Judge or Court. {LG 00712920 1 } 5 of 7 FILED: RENSSELAER COUNTY CLERK 01/09/2024 02:56 PM INDEX NO. EF2023-274861 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/09/2024 25. Based upon the foregoing, Plaintiff respectfully requests that this Court issue an Order as follows: (i) granting Plaintiff a default judgment pursuant to CPLR §3215 against the Defendants, jointly and severally, in the amount of $79,086.68, with interest accruing after December 12, 2023 at a per diem rate of $17.7384771; (ii) a judgment of replevin directing Defendants to assemble and deliver the collateral to Berkshire for liquidation and, alternatively, a judgment directing the Sheriff of any County where the collateral is located to assemble and deliver the collateral to Berkshire for Iiquidation;(iii) granting Berkshire’s reasonable attorney's fees, costs, and expenses incurred in connection with the action; and (iv) such other and further relief as may be deemed just, equitable, necessary, and proper. Fredrick Frank ' Sworn to before me this day of January, 2024 l/U 7 JU Noi MARY ANNE SWERDAN Notary Public in the State of New York Qualified in Oneida County 01SW6117636 My Commission Expires Nov. 1, {LG 00712920 1 } 6 of 7 FILED: RENSSELAER COUNTY CLERK 01/09/2024 02:56 PM INDEX NO. EF2023-274861 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/09/2024 CERTIFICATE OF WORD COUNT Pursuant to Rule 202. 8-b of the Uniform Civil Rules for the Supreme Court and County Court, I certify that the accompanying Lender Affidavit, contains 1,544 excluding the parts of the document exempted by Rule 202. 8-b (b) of the Uniform Civil Rules for the Supreme Court and County Court (Case Caption/Signature Block), and is in compliance with the word-count limit set forth by Rule 202. 8-b (a). This certificate was prepared in reliance on the wordcount function of the word processing system (Microsoft Word) used to prepare the document. DATED: January ^ , 2024 Albany, New York Cassandra M. Gipe, Esq. 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