Preview
FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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CONNECTONE BANK, :
: Index No.
Plaintiff, :
: Date Filed:
vs. :
: ACTION TO FORECLOSE
LINDEN OWNER LLC, GARY KASSIRER a/k/a : A MORTGAGE
GERSHON KASSIRER, ISAAC KASSIRER, NEW YORK :
STATE DEPT. OF TAXATION & FINANCE, NEW : Plaintiff designates Kings County
YORK CITY DEPT. OF FINANCE, NEW YORK CITY : as the place of trial. The basis of
ENVIRONMENTAL CONTROL BOARD, and “JOHN : the venue is the location of the real
DOE” NOS. 1-25, : property subject to lien of
: mortgage.
Defendants. :
: SUMMONS
The Names of the “John Doe” Defendants Being Fictitious :
and Unknown to Plaintiff, the Persons and Entities Intended :
Being Those Who Have Possessory Liens or Other Interests :
in, the Premises Herein Described. :
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YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action and
to serve a copy of your Answer, or, if the Verified Complaint is not served with this Summons, to
serve a Notice of Appearance, on the plaintiff’s attorneys within twenty (20) days after the service
of this Summons, exclusive of the day of service (or within thirty (30) days after the service is
complete if this Summons is not personally delivered to you within the State of New York). In
case of failure to appear or answer, a judgment will be taken against you by default for the relief
demanded in the Verified Complaint.
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Dated: New York, New York
March 5, 2024
ROSENBERG & ESTIS, P.C.
By: Richard Y. Im
Richard Y. Im
733 Third Avenue, 15th Floor
New York, NY 10017
(212) 867-6000
Attorneys for Plaintiff
TO: Linden Owner LLC
266 Broadway, Suite 602
Brooklyn, New York 11211
Gary Kassirer a/k/a Gershon Kassirer
c/o Emerald Equity Group
1 Battery Park Plaza, Suite 3100
New York, New York 10004
Isaac Kassirer
c/o Emerald Equity Group
1 Battery Park Plaza, Suite 3100
New York, New York 10004
NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE
Attn: Office of Counsel
Building 9, W A Harriman Campus
Albany, New York 12227
NEW YORK CITY DEPARTMENT OF FINANCE
100 Church Street
New York, New York 10007
NEW YORK CITY ENVIRONMENTAL CONTROL BOARD
66 John Street
New York, New York 10038
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------x
CONNECTONE BANK, :
: Index No.
Plaintiff, :
:
vs. : VERIFIED COMPLAINT
:
LINDEN OWNER LLC, GARY KASSIRER a/k/a :
GERSHON KASSIRER, ISAAC KASSIRER, NEW YORK :
STATE DEPT. OF TAXATION & FINANCE, NEW :
YORK CITY DEPT. OF FINANCE, NEW YORK CITY :
ENVIRONMENTAL CONTROL BOARD, and “JOHN :
DOE” NOS. 1-25, :
:
Defendants. :
:
The Names of the “John Doe” Defendants Being Fictitious :
and Unknown to Plaintiff, the Persons and Entities Intended :
Being Those Who Have Possessory Liens or Other Interests :
in, the Premises Herein Described. :
------------------------------------------x
Plaintiff, CONNECTONE BANK (“Plaintiff” or “Lender”), by its attorneys, Rosenberg &
Estis, P.C., as and for its Verified Complaint in this action, respectfully alleges:
THE PARTIES
1. Plaintiff, CONNECTONE BANK, is and at all relevant times hereinafter
mentioned was, a New Jersey commercial bank, having its principal place of business at 301
Sylvan Avenue, Englewood Cliffs, New Jersey 07632. Plaintiff brings this action as the lawful
owner and holder of the note and mortgage being foreclosed herein.
2. Upon information and belief, defendant LINDEN OWNER LLC (“Borrower” or
“Linden”) is, and at all relevant times hereinafter mentioned was, a limited liability company,
organized and existing under and by virtue of the laws of the State of New York, having its
principal place of business at 266 Broadway, Suite 602, Brooklyn, New York 11211.
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3. Upon information and belief, on the date hereof, Borrower was, at all relevant times
hereinafter mentioned, the owner of that certain real property located in the Borough of the
Brooklyn, County of Kings, City and State of New York, known as and by the address of 255-265
Linden Street, Brooklyn, New York 11237, and designated as Block 3326, Lots 65 and 62 on the
Official Tax Map of the City of New York, Borough of Kings, together with the buildings,
improvements, fixtures, machinery, equipment, personalty and other rights or interests of any kind
or nature owned or held thereon, all, as more specifically described in Exhibit “A” annexed hereto
(the “Mortgaged Property”).
4. Upon information and belief, defendant, GARY KASSIRER a/k/a GERSHON
KASSIRER (“Indemnitor” or “Gary” and collectively with Borrower, “Defendants”) is, and at all
relevant times hereinafter mentioned was, an individual with a last known address at 1 Battery
Park Plaza, Suite 3100, New York, New York 10004. Defendant Gary is made a party defendant
herein by reason of his execution and delivery to Plaintiff of an indemnity agreement in connection
with the note and mortgage at issue in this action and liability arising therefrom.
5. Upon information and belief, defendant, ISAAC KASSIRER (“Isaac” and together
with Gary, “Indemnitors”, and collectively with Borrower, “Defendants”) is, and at all relevant
times hereinafter mentioned was, an individual with a last known address at 1 Battery Park Plaza,
Suite 3100, New York, New York 10004. Defendant Isaac is made a party defendant herein by
reason of his execution and delivery to Plaintiff of an indemnity agreement in connection with the
note and mortgage at issue in this action and liability arising therefrom.
6. Upon information and belief, defendant NEW YORK STATE DEPT. OF
TAXATION & FINANCE (the “NYS Dept. of Taxation & Finance”), inter alia, assesses and
collects taxes, including New York State corporate franchise taxes. The NYS Dept. of Taxation
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& Finance is made a party defendant herein solely for the purpose of foreclosing those liens, if
any, against the Mortgaged Property which accrued, or may accrue, subsequent to the lien of
mortgage being foreclosed herein by virtue of possible unpaid operation franchise taxes or license
fees which are or may be due or which become due to the NYS Dept. of Taxation & Finance from
any owner of record of the Mortgaged Property.
7. Upon information and belief, defendant NEW YORK CITY DEPT. OF FINANCE
(the “NYC Dept. of Finance”), a municipal corporation, inter alia, assesses and collects taxes,
including New York City corporate taxes and taxes on real property situated in KINGS County.
The NYC Dept. of Finance is made a party defendant herein solely for the purpose of foreclosing
those liens, if any, against the Mortgaged Property which accrued, or may accrue, subsequent to
the lien of mortgage being foreclosed herein by virtue of possible general corporation or New York
City business taxes, which are or may become due to the City of New York from any owner of
record of the Mortgaged Property.
8. Upon information and belief, defendant NEW YORK CITY ENVIRONMENTAL
CONTROL BOARD (the “NYC ECB”) is the holder of the unpaid Environmental Control Board
Liens and a Judgment against Borrower which are subsequent and subordinate to Plaintiff’s
mortgage being foreclosed herein. The NYC ECB is made a party defendant herein for the sole
purpose of terminating any and all interest it may have in the Mortgaged Property.
9. Upon information and belief, the “JOHN DOE” defendants constitute tenants,
occupants, or other persons and entities who may be in possession of, or may have possessory liens
or other interests in, the Mortgaged Property and which possessory liens or other interests, if any,
are subsequent and/or subordinate to the mortgages being foreclosed herein. Said defendants are
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named as party defendants herein for the purpose of terminating any interests in the Mortgaged
Property.
THE LOAN DOCUMENTS
10. On or about December 20, 2018, Plaintiff, successor-in-interest by merger to Bank
of New Jersey, as lender, made a loan to Linden, as Borrower, in the principal amount of
$9,300,000.00 (the “Loan”).
11. The Loan is evidenced by that certain Mortgage Note, dated as of December 20,
2018, made by Borrower to Plaintiff, in the original principal amount of $9,300,000.00, which was
modified and extended by that certain Modification and Extension of Promissory Note, dated April
1, 2020, and further modified by that certain Modification of Promissory Note, dated as of January
1, 2022 (as such notes were consolidated, modified, and extended, hereafter the “Note”). A true
copy of the Note is annexed hereto as Exhibit “B”, and its terms are expressly incorporated herein
by reference and made a part hereof as though fully and completely set forth herein.
12. The Loan is secured by that certain Consolidated Mortgage and Security
Agreement, dated December 20, 2018, made by Borrower to Plaintiff, in the principal amount of
$9,300,000.00, which consolidated, amended and restated the following mortgages held by
Plaintiff, consisting of the: (i) mortgage made by Borrower to Santander Bank, N.A., in the
principal amount of $9,300,000.00, duly recorded in the Office of the City Register of New York,
County of Kings, on June 30, 2017, at CRFN 2017000242418, which mortgage was duly assigned
to Plaintiff on December 20, 2018, by assignment of mortgage, duly recorded on December 26,
2018, at CRFN 2018000423818; and the (ii) Gap Mortgage and Security Agreement, dated
December 20, 2018, in the amount of $238,197.47, duly recorded in the Office of the City Register
of New York, County of Kings, on December 26, 2018, at CRFN 2018000423819; so that together
they form a single first priority mortgage lien against the Mortgaged Property in the total principal
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sum of $9,300,000.00 (the mortgages, as such were consolidated, amended and restated, hereafter
the “Mortgage”), which Mortgage was recorded in the Office of the City Register of New York,
County of Kings, on December 26, 2018, at CRFN 2018000423820. A true copy of the Mortgage,
evidencing a lien in the aggregate sum of $9,300,000.00 is annexed hereto as Exhibit “C” and its
terms are expressly incorporated herein by reference and made a part hereof as though fully and
completely set forth herein.
13. The recording tax on each mortgage comprising the Mortgage has been duly paid
thereon.
14. For further security for the payment under the Note and Mortgage, on or about
December 20, 2018, Borrower executed and delivered to Plaintiff that certain Assignment of
Leases and Rents, which was recorded in the Office of the City Register of New York, County of
Kings, on December 26, 2018, at CRFN 2018000423821 (the “Assignment of Leases and Rents”).
A true copy of the Assignment of Leases and Rents is annexed hereto as Exhibit “D” and its terms
are expressly incorporated herein by reference and made part hereof as though fully and completely
set forth herein.
15. In order to induce Plaintiff to make the Loan, Isaac executed and delivered to
Plaintiff that certain Indemnity Agreement, dated as of December 20, 2018, in favor of Plaintiff.
In addition, on or about March 3, 2022, Gary executed and delivered to Plaintiff that certain
Indemnity Agreement, dated as of January 1, 2022, in favor of Plaintiff (collectively, the
“Indemnity Agreements”). True copies of the Indemnity Agreements are annexed hereto as Exhibit
“E”, and their terms are expressly incorporated herein by reference and made a part hereof as
though fully and completely set forth herein.
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16. To further secure the Note, Lender perfected a security interest against the personal
property commonly known as the Property, by filing a UCC-1 Financing Statement, which was
recorded in the Office of the City Register of New York, County of Kings, on December 26, 2018,
at CRFN 2018000423822 (the “UCC-1”). A true copy of the UCC-1 Financing Statement is
annexed hereto as Exhibit “F”.
17. On or about April 1, 2020, Borrower and Lender entered into a Modification and
Extension of Promissory Note dated April 1, 2020.
18. On or about December 3, 2020, as a result of Borrower’s representations of
financial hardship due to the coronavirus pandemic (“COVID-19”), Borrower requested, and
Plaintiff agreed, to enter into a Forbearance Agreement (the “First Forbearance Agreement”).
Pursuant to paragraph 2 of the First Forbearance Agreement, Lender agreed to defer monthly
principal payments only on the Loan for the period commencing on November 1, 2020, through
April 1, 2021, in accordance with the terms of the First Forbearance Agreement.
19. On or about March 29, 2021, Defendant requested, and Plaintiff agreed, to enter
into a second Forbearance Agreement as a result of Borrower’s representations of financial
hardship due to COVID-19 (the “Second Forbearance Agreement”). Pursuant to Paragraph 2 of
the Second Forbearance Agreement, Plaintiff agreed to defer monthly principal payments only for
the period commencing on May 1, 2021, through October 1, 2021, in accordance with the terms
of the Second Forbearance Agreement.
20. Thereafter, on or about December 8, 2021, Defendant requested, and Plaintiff
agreed, to enter into a third Forbearance Agreement as a result of Borrower’s representations of
financial hardship due to COVID-19 (the “Third Forbearance Agreement”). Pursuant to paragraph
2 of the Third Forbearance Agreement, Plaintiff agreed to defer principal payments only on the
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Loan for the period commencing on May 1, 2021, and ending on December 1, 2021, in accordance
with the terms of the Third Forbearance Agreement.
21. True copies of the First Forbearance Agreement, the Second Forbearance
Agreement, and the Third Forbearance Agreement (collectively, the “Forbearance Agreements”)
are annexed hereto as Exhibit “G”, and its terms are expressly incorporated herein by reference
and made a part hereof as though fully and completely set forth herein.
22. On or about March 3, 2022, Plaintiff and Borrower entered into that certain
Modification of Promissory Note dated as of January 1, 2022, which amended, inter alia, the
Maturity Date (as hereinafter defined) of the Loan, the interest rate of the Loan, and the Default
Rate (as hereinafter defined). A true copy of the Note, as modified, is annexed hereto as Exhibit
“B” and its terms are expressly incorporated herein by reference and made part hereof as though
fully and completely set forth herein.
23. The Note, Mortgage, Assignment of Leases and Rents, Indemnity Agreements,
UCC-1, Forbearance Agreements, and all other documents executed in connection with the Loan,
as such may have thereafter been modified or amended, are hereinafter referred to, collectively, as
the “Loan Documents.”
PROVISIONS OF THE LOAN DOCUMENTS
24. The Loan Documents provide that the outstanding principal amount of the Loan
shall bear interest at the rate of 3.00% percent per annum. See Ex. H, Note, at § 2.
25. The Loan Documents further provide that monthly payments shall be made on the
first day of each month through January 1, 2024 (the “Maturity Date”), when all remaining
principal and accrued interest and all other sums shall become due and payable in full. Id. at § 3,
6.
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26. Upon the occurrence of an Event of Default, interest shall accrue at a default rate
equal to eighteen percent (18.00%) per annum (the “Default Rate”). Id. at § 4.
27. The Mortgage requires Borrower to pay all taxes, assessments, water rates, sewer
rents and other charges described therein (“Taxes”) prior to the date upon which any fine, penalty,
interest or cost may be added thereto or imposed by law for nonpayment thereof, and further
requires that Borrower deliver to Lender within fifteen (15) days of the due date and/or upon
request, receipted bills, canceled checks and other evidence satisfactory to Mortgagee evidenced
payment of the Taxes prior to the date upon which any fine, penalty, interest or cost may be added
thereto or imposed by law for nonpayment thereof. See Ex. C, Mortgage, § 4.
28. The Mortgage describes events that shall be deemed to be an Event of Default
thereunder, including, inter alia, if the entire Debt is not paid in full on the Maturity Date of the
Note; (o) if Borrower shall be in default beyond any applicable notice and/or grace period under
the Note, or under any other mortgage, instrument or document evidencing, securing or
guaranteeing payment of the Debt, or (s) Borrower’s continued default under any of the other
terms, covenants or conditions of the Mortgage for fifteen (15) days after notice from Lender in
the case of any default which can be cured by the payment of a sum of money or for thirty (30)
days after notice from the Lender in the case of any other default. Id. § 22(a), (o) and (s).
DEFAULTS UNDER THE LOAN DOCUMENTS
29. Borrower defaulted under the Loan Documents referenced above by reason of,
among other things, Borrower’s failure to repay the outstanding Loan amount due to Lender on
the Maturity Date.
30. By that certain maturity default letter dated February 8, 2024, Lender notified
Borrower and Indemnitor that certain Events of Default under the Mortgage have occurred
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including, among other things, the failure to pay the outstanding principal and outstanding accrued
and unpaid interest thereon that matured and became due and payable in full under the Loan on
the Maturity Date (the “Default Letter”). The Default Letter further demanded that Borrower
provide evidence of payment of all unpaid real estate taxes to the NYC Dept. of Finance and unpaid
water charges to the New York City Department of Environmental Protection on the Mortgaged
Property within fifteen (15) days of the Default Letter. A true and correct copy of the Default
Letter is annexed hereto as Exhibit “I.”
31. Plaintiff hereby again declares the Mortgage to be due and payable and demands
immediate payment in full of the outstanding principal, together with all accrued and unpaid
interest thereon, and all other charges due under the Mortgage.
32. Upon information and belief, Indemnitor is liable under Indemnity Agreement,
jointly and severally, by reason of triggering non-recourse exclusions for acts including, but not
limited to, (i) the misapplication or misappropriation of rents received by the Borrower after the
occurrence and/or during the continuance of an Event of Default under the Loan, and (ii) the failure
to pay real estate taxes and other levies constituting a lien against all or a portion of the Mortgaged
Property prior to the transfer of the Mortgaged Property to the Lender or a receiver.
33. By reason of the foregoing, there is now justly due and owing upon the Note and
the Mortgage to Plaintiff the outstanding principal balance of $7,945,937.59 together with all
accrued and unpaid interest thereon, and all other charges as more fully provided in the Loan
Documents, which sums are due and owing in additional to any usual costs and allowances to
which Plaintiff may be entitled to and awarded under any law or statute applicable to this action.
34. In order to protect its security, Plaintiff may be compelled to pay during the
pendency of this action, among other things, taxes, assessments, water rates, insurance premiums
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and other charges affecting the Mortgaged Property, and Plaintiff requests that any sums thus paid
by it for said purposes (together with interest thereon) be added to the sum otherwise due and be
deemed secured by the Mortgage and be adjudged a valid lien on the Mortgaged Property.
35. No other action or proceeding has been brought to recover the sums secured by the
Mortgage or any part thereof.
36. The Loan was made to a commercial entity, was not incurred for personal, family
or household purposes and the Borrower does not reside at the Mortgaged Property. As a result,
this is not a residential foreclosure involving a home loan and this action is not subject to the
provisions of CPLR § 3408.
37. Upon information and belief, all the defendants named in this action have, or claim
to have, some claim to, interest in or lien upon the Mortgaged Property or some part thereof, which
claim, interest or lien, if any, has accrued subsequent to the Mortgage and to the liens of Plaintiff,
and is subject and subordinate to the liens of Plaintiff.
38. Upon information and belief, no persons or entities other than those described
herein have, may have, or claim to have, any interest in, or lien upon, the Mortgaged Property.
AS AND FOR A FIRST CAUSE OF ACTION
(For Foreclosure of the Mortgage Against All Defendants)
39. Plaintiff repeats and realleges all of the allegations set forth in paragraphs 1 through
38 above with the same force and effect as if set forth fully herein.
40. Plaintiff demands that Defendants, or any of them, and all persons claiming by,
through or under all or any of them, any and all mechanic’s lien holders, all subsequent and
subordinate lien and/or judgment holders, and every person or entity whose right, title, conveyance
or encumbrance is recorded subsequent to the filing of a notice of pendency of this action in the
KINGS County Clerk’s Office, be barred and forever foreclosed of all right, title, interest, claim,
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lien and equity of redemption in and to the Mortgaged Property and in and to the fixtures and
articles of personalty upon which the Mortgage and UCC-1 is a lien attached to or used in
connection with said premises.
AS AND FOR A SECOND CAUSE OF ACTION
(For A Deficiency Judgment Against Borrower and Indemnitor On The Loan)
41. Plaintiff repeats and realleges all of the allegations set forth in paragraphs 1 through
40 above with the same force and effect as if set forth fully herein.
42. Borrower and Indemnitor have failed to comply with the terms and provisions of
the Loan Documents and the Indemnity Agreement.
43. Indemnitor is personally liable under the Indemnity Agreement for breaches of the
Indemnity Agreement and all damages arising therefrom.
44. Accordingly, Plaintiff requests judgment against Borrower and Indemnitor for any
deficiency and damages, claims, costs, expenses and other liabilities arising under the Loan
Documents which may remain following the foreclosure sale of the Mortgaged Property, to the
extent permitted by the Loan Documents and the applicable law.
WHEREFORE, Plaintiff demands judgment as follows:
a. The defendants, or any of them, and all persons claiming by, through or under all
or any of them and every person or entity whose right, title, conveyance or encumbrance is
recorded subsequent to the filing of a notice of pendency of this action in the Kings County Clerk’s
Office be barred and forever foreclosed of all right, title, interest, claim, lien and equity of
redemption in and to the Mortgaged Property and in and to the fixtures and articles of personalty
upon which the Mortgage is a lien attached to or used in connection with said premises; the said
Mortgaged Property be decreed to be sold as one parcel, along with the fixtures and articles of
personalty, and that the monies arising from such sale be brought into Court;
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b. Plaintiff be paid the amounts due upon the above referenced Note, Mortgage, and
Loan Documents with interest thereon to the time of such payment, together with the expenses of
the sale, the costs, allowances and disbursements of this action, Plaintiff’s attorneys’ fees, other
charges, any monies advanced or paid to protect the liens of the Mortgage, and the taxes,
assessments, water charges and sewer rents, premiums for insurance, repairs to the Mortgaged
Property, and all other charges which may have been made by Plaintiff to protect the security
afforded by the Mortgage and the lien thereon to be paid, with interest upon said amounts from the
dates of the respective payments and advances thereof, so far as the amounts of such monies
properly applicable thereto will pay the same;
c. The Court issue a Final Judgment of Foreclosure and Sale on the Mortgage and
permit Plaintiff the right to schedule the foreclosure sale as it so chooses;
d. Borrower pay to Plaintiff, in accordance with the Note, Mortgage and Indemnity
Agreement, the amount of any deficiency which may remain or so much thereof as the Court may
determine to be just and equitable, of the debt remaining unsatisfied after a sale of the Mortgaged
Property and the application of the proceeds pursuant to the directions contained in such judgment,
the amount thereof to be determined by the Court, as provided in Section 1371 of the Real Property
Actions and Proceedings Law;
e. Indemnitor pay to Plaintiff, in accordance with the Indemnity Agreement and the
Loan Documents, damages arising thereunder which may remain or so much thereof as the Court
may determine to be just and equitable;
f. The Referee (or other officer) making such sale be directed to pay from the proceeds
thereof all taxes, assessments, water rates, sewer rents and other charges which are liens on the
property sold; and
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g. A receiver be appointed to manage the Mortgaged Property; and
h. Plaintiff has such other and further relief as may be just and equitable.
Dated: New York, New York
March 5, 2024
ROSENBERG & ESTIS, P.C.
By: /s/ Richard Y. Im
Richard Y. Im
733 Third Avenue, 15th Floor
New York, NY 10017
(212) 867-6000
Attorneys for Plaintiff
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Preview
FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------x CONNECTONE BANK, : : Index No. Plaintiff, : : Date Filed: vs. : : ACTION TO FORECLOSE LINDEN OWNER LLC, GARY KASSIRER a/k/a : A MORTGAGE GERSHON KASSIRER, ISAAC KASSIRER, NEW YORK : STATE DEPT. OF TAXATION & FINANCE, NEW : Plaintiff designates Kings County YORK CITY DEPT. OF FINANCE, NEW YORK CITY : as the place of trial. The basis of ENVIRONMENTAL CONTROL BOARD, and “JOHN : the venue is the location of the real DOE” NOS. 1-25, : property subject to lien of : mortgage. Defendants. : : SUMMONS The Names of the “John Doe” Defendants Being Fictitious : and Unknown to Plaintiff, the Persons and Entities Intended : Being Those Who Have Possessory Liens or Other Interests : in, the Premises Herein Described. : ------------------------------------------x YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action and to serve a copy of your Answer, or, if the Verified Complaint is not served with this Summons, to serve a Notice of Appearance, on the plaintiff’s attorneys within twenty (20) days after the service of this Summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this Summons is not personally delivered to you within the State of New York). In case of failure to appear or answer, a judgment will be taken against you by default for the relief demanded in the Verified Complaint. 1 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 Dated: New York, New York March 5, 2024 ROSENBERG & ESTIS, P.C. By: Richard Y. Im Richard Y. Im 733 Third Avenue, 15th Floor New York, NY 10017 (212) 867-6000 Attorneys for Plaintiff TO: Linden Owner LLC 266 Broadway, Suite 602 Brooklyn, New York 11211 Gary Kassirer a/k/a Gershon Kassirer c/o Emerald Equity Group 1 Battery Park Plaza, Suite 3100 New York, New York 10004 Isaac Kassirer c/o Emerald Equity Group 1 Battery Park Plaza, Suite 3100 New York, New York 10004 NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE Attn: Office of Counsel Building 9, W A Harriman Campus Albany, New York 12227 NEW YORK CITY DEPARTMENT OF FINANCE 100 Church Street New York, New York 10007 NEW YORK CITY ENVIRONMENTAL CONTROL BOARD 66 John Street New York, New York 10038 2 2 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------x CONNECTONE BANK, : : Index No. Plaintiff, : : vs. : VERIFIED COMPLAINT : LINDEN OWNER LLC, GARY KASSIRER a/k/a : GERSHON KASSIRER, ISAAC KASSIRER, NEW YORK : STATE DEPT. OF TAXATION & FINANCE, NEW : YORK CITY DEPT. OF FINANCE, NEW YORK CITY : ENVIRONMENTAL CONTROL BOARD, and “JOHN : DOE” NOS. 1-25, : : Defendants. : : The Names of the “John Doe” Defendants Being Fictitious : and Unknown to Plaintiff, the Persons and Entities Intended : Being Those Who Have Possessory Liens or Other Interests : in, the Premises Herein Described. : ------------------------------------------x Plaintiff, CONNECTONE BANK (“Plaintiff” or “Lender”), by its attorneys, Rosenberg & Estis, P.C., as and for its Verified Complaint in this action, respectfully alleges: THE PARTIES 1. Plaintiff, CONNECTONE BANK, is and at all relevant times hereinafter mentioned was, a New Jersey commercial bank, having its principal place of business at 301 Sylvan Avenue, Englewood Cliffs, New Jersey 07632. Plaintiff brings this action as the lawful owner and holder of the note and mortgage being foreclosed herein. 2. Upon information and belief, defendant LINDEN OWNER LLC (“Borrower” or “Linden”) is, and at all relevant times hereinafter mentioned was, a limited liability company, organized and existing under and by virtue of the laws of the State of New York, having its principal place of business at 266 Broadway, Suite 602, Brooklyn, New York 11211. 3 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 3. Upon information and belief, on the date hereof, Borrower was, at all relevant times hereinafter mentioned, the owner of that certain real property located in the Borough of the Brooklyn, County of Kings, City and State of New York, known as and by the address of 255-265 Linden Street, Brooklyn, New York 11237, and designated as Block 3326, Lots 65 and 62 on the Official Tax Map of the City of New York, Borough of Kings, together with the buildings, improvements, fixtures, machinery, equipment, personalty and other rights or interests of any kind or nature owned or held thereon, all, as more specifically described in Exhibit “A” annexed hereto (the “Mortgaged Property”). 4. Upon information and belief, defendant, GARY KASSIRER a/k/a GERSHON KASSIRER (“Indemnitor” or “Gary” and collectively with Borrower, “Defendants”) is, and at all relevant times hereinafter mentioned was, an individual with a last known address at 1 Battery Park Plaza, Suite 3100, New York, New York 10004. Defendant Gary is made a party defendant herein by reason of his execution and delivery to Plaintiff of an indemnity agreement in connection with the note and mortgage at issue in this action and liability arising therefrom. 5. Upon information and belief, defendant, ISAAC KASSIRER (“Isaac” and together with Gary, “Indemnitors”, and collectively with Borrower, “Defendants”) is, and at all relevant times hereinafter mentioned was, an individual with a last known address at 1 Battery Park Plaza, Suite 3100, New York, New York 10004. Defendant Isaac is made a party defendant herein by reason of his execution and delivery to Plaintiff of an indemnity agreement in connection with the note and mortgage at issue in this action and liability arising therefrom. 6. Upon information and belief, defendant NEW YORK STATE DEPT. OF TAXATION & FINANCE (the “NYS Dept. of Taxation & Finance”), inter alia, assesses and collects taxes, including New York State corporate franchise taxes. The NYS Dept. of Taxation 4 4 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 & Finance is made a party defendant herein solely for the purpose of foreclosing those liens, if any, against the Mortgaged Property which accrued, or may accrue, subsequent to the lien of mortgage being foreclosed herein by virtue of possible unpaid operation franchise taxes or license fees which are or may be due or which become due to the NYS Dept. of Taxation & Finance from any owner of record of the Mortgaged Property. 7. Upon information and belief, defendant NEW YORK CITY DEPT. OF FINANCE (the “NYC Dept. of Finance”), a municipal corporation, inter alia, assesses and collects taxes, including New York City corporate taxes and taxes on real property situated in KINGS County. The NYC Dept. of Finance is made a party defendant herein solely for the purpose of foreclosing those liens, if any, against the Mortgaged Property which accrued, or may accrue, subsequent to the lien of mortgage being foreclosed herein by virtue of possible general corporation or New York City business taxes, which are or may become due to the City of New York from any owner of record of the Mortgaged Property. 8. Upon information and belief, defendant NEW YORK CITY ENVIRONMENTAL CONTROL BOARD (the “NYC ECB”) is the holder of the unpaid Environmental Control Board Liens and a Judgment against Borrower which are subsequent and subordinate to Plaintiff’s mortgage being foreclosed herein. The NYC ECB is made a party defendant herein for the sole purpose of terminating any and all interest it may have in the Mortgaged Property. 9. Upon information and belief, the “JOHN DOE” defendants constitute tenants, occupants, or other persons and entities who may be in possession of, or may have possessory liens or other interests in, the Mortgaged Property and which possessory liens or other interests, if any, are subsequent and/or subordinate to the mortgages being foreclosed herein. Said defendants are 5 5 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 named as party defendants herein for the purpose of terminating any interests in the Mortgaged Property. THE LOAN DOCUMENTS 10. On or about December 20, 2018, Plaintiff, successor-in-interest by merger to Bank of New Jersey, as lender, made a loan to Linden, as Borrower, in the principal amount of $9,300,000.00 (the “Loan”). 11. The Loan is evidenced by that certain Mortgage Note, dated as of December 20, 2018, made by Borrower to Plaintiff, in the original principal amount of $9,300,000.00, which was modified and extended by that certain Modification and Extension of Promissory Note, dated April 1, 2020, and further modified by that certain Modification of Promissory Note, dated as of January 1, 2022 (as such notes were consolidated, modified, and extended, hereafter the “Note”). A true copy of the Note is annexed hereto as Exhibit “B”, and its terms are expressly incorporated herein by reference and made a part hereof as though fully and completely set forth herein. 12. The Loan is secured by that certain Consolidated Mortgage and Security Agreement, dated December 20, 2018, made by Borrower to Plaintiff, in the principal amount of $9,300,000.00, which consolidated, amended and restated the following mortgages held by Plaintiff, consisting of the: (i) mortgage made by Borrower to Santander Bank, N.A., in the principal amount of $9,300,000.00, duly recorded in the Office of the City Register of New York, County of Kings, on June 30, 2017, at CRFN 2017000242418, which mortgage was duly assigned to Plaintiff on December 20, 2018, by assignment of mortgage, duly recorded on December 26, 2018, at CRFN 2018000423818; and the (ii) Gap Mortgage and Security Agreement, dated December 20, 2018, in the amount of $238,197.47, duly recorded in the Office of the City Register of New York, County of Kings, on December 26, 2018, at CRFN 2018000423819; so that together they form a single first priority mortgage lien against the Mortgaged Property in the total principal 6 6 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 sum of $9,300,000.00 (the mortgages, as such were consolidated, amended and restated, hereafter the “Mortgage”), which Mortgage was recorded in the Office of the City Register of New York, County of Kings, on December 26, 2018, at CRFN 2018000423820. A true copy of the Mortgage, evidencing a lien in the aggregate sum of $9,300,000.00 is annexed hereto as Exhibit “C” and its terms are expressly incorporated herein by reference and made a part hereof as though fully and completely set forth herein. 13. The recording tax on each mortgage comprising the Mortgage has been duly paid thereon. 14. For further security for the payment under the Note and Mortgage, on or about December 20, 2018, Borrower executed and delivered to Plaintiff that certain Assignment of Leases and Rents, which was recorded in the Office of the City Register of New York, County of Kings, on December 26, 2018, at CRFN 2018000423821 (the “Assignment of Leases and Rents”). A true copy of the Assignment of Leases and Rents is annexed hereto as Exhibit “D” and its terms are expressly incorporated herein by reference and made part hereof as though fully and completely set forth herein. 15. In order to induce Plaintiff to make the Loan, Isaac executed and delivered to Plaintiff that certain Indemnity Agreement, dated as of December 20, 2018, in favor of Plaintiff. In addition, on or about March 3, 2022, Gary executed and delivered to Plaintiff that certain Indemnity Agreement, dated as of January 1, 2022, in favor of Plaintiff (collectively, the “Indemnity Agreements”). True copies of the Indemnity Agreements are annexed hereto as Exhibit “E”, and their terms are expressly incorporated herein by reference and made a part hereof as though fully and completely set forth herein. 7 7 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 16. To further secure the Note, Lender perfected a security interest against the personal property commonly known as the Property, by filing a UCC-1 Financing Statement, which was recorded in the Office of the City Register of New York, County of Kings, on December 26, 2018, at CRFN 2018000423822 (the “UCC-1”). A true copy of the UCC-1 Financing Statement is annexed hereto as Exhibit “F”. 17. On or about April 1, 2020, Borrower and Lender entered into a Modification and Extension of Promissory Note dated April 1, 2020. 18. On or about December 3, 2020, as a result of Borrower’s representations of financial hardship due to the coronavirus pandemic (“COVID-19”), Borrower requested, and Plaintiff agreed, to enter into a Forbearance Agreement (the “First Forbearance Agreement”). Pursuant to paragraph 2 of the First Forbearance Agreement, Lender agreed to defer monthly principal payments only on the Loan for the period commencing on November 1, 2020, through April 1, 2021, in accordance with the terms of the First Forbearance Agreement. 19. On or about March 29, 2021, Defendant requested, and Plaintiff agreed, to enter into a second Forbearance Agreement as a result of Borrower’s representations of financial hardship due to COVID-19 (the “Second Forbearance Agreement”). Pursuant to Paragraph 2 of the Second Forbearance Agreement, Plaintiff agreed to defer monthly principal payments only for the period commencing on May 1, 2021, through October 1, 2021, in accordance with the terms of the Second Forbearance Agreement. 20. Thereafter, on or about December 8, 2021, Defendant requested, and Plaintiff agreed, to enter into a third Forbearance Agreement as a result of Borrower’s representations of financial hardship due to COVID-19 (the “Third Forbearance Agreement”). Pursuant to paragraph 2 of the Third Forbearance Agreement, Plaintiff agreed to defer principal payments only on the 8 8 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 Loan for the period commencing on May 1, 2021, and ending on December 1, 2021, in accordance with the terms of the Third Forbearance Agreement. 21. True copies of the First Forbearance Agreement, the Second Forbearance Agreement, and the Third Forbearance Agreement (collectively, the “Forbearance Agreements”) are annexed hereto as Exhibit “G”, and its terms are expressly incorporated herein by reference and made a part hereof as though fully and completely set forth herein. 22. On or about March 3, 2022, Plaintiff and Borrower entered into that certain Modification of Promissory Note dated as of January 1, 2022, which amended, inter alia, the Maturity Date (as hereinafter defined) of the Loan, the interest rate of the Loan, and the Default Rate (as hereinafter defined). A true copy of the Note, as modified, is annexed hereto as Exhibit “B” and its terms are expressly incorporated herein by reference and made part hereof as though fully and completely set forth herein. 23. The Note, Mortgage, Assignment of Leases and Rents, Indemnity Agreements, UCC-1, Forbearance Agreements, and all other documents executed in connection with the Loan, as such may have thereafter been modified or amended, are hereinafter referred to, collectively, as the “Loan Documents.” PROVISIONS OF THE LOAN DOCUMENTS 24. The Loan Documents provide that the outstanding principal amount of the Loan shall bear interest at the rate of 3.00% percent per annum. See Ex. H, Note, at § 2. 25. The Loan Documents further provide that monthly payments shall be made on the first day of each month through January 1, 2024 (the “Maturity Date”), when all remaining principal and accrued interest and all other sums shall become due and payable in full. Id. at § 3, 6. 9 9 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 26. Upon the occurrence of an Event of Default, interest shall accrue at a default rate equal to eighteen percent (18.00%) per annum (the “Default Rate”). Id. at § 4. 27. The Mortgage requires Borrower to pay all taxes, assessments, water rates, sewer rents and other charges described therein (“Taxes”) prior to the date upon which any fine, penalty, interest or cost may be added thereto or imposed by law for nonpayment thereof, and further requires that Borrower deliver to Lender within fifteen (15) days of the due date and/or upon request, receipted bills, canceled checks and other evidence satisfactory to Mortgagee evidenced payment of the Taxes prior to the date upon which any fine, penalty, interest or cost may be added thereto or imposed by law for nonpayment thereof. See Ex. C, Mortgage, § 4. 28. The Mortgage describes events that shall be deemed to be an Event of Default thereunder, including, inter alia, if the entire Debt is not paid in full on the Maturity Date of the Note; (o) if Borrower shall be in default beyond any applicable notice and/or grace period under the Note, or under any other mortgage, instrument or document evidencing, securing or guaranteeing payment of the Debt, or (s) Borrower’s continued default under any of the other terms, covenants or conditions of the Mortgage for fifteen (15) days after notice from Lender in the case of any default which can be cured by the payment of a sum of money or for thirty (30) days after notice from the Lender in the case of any other default. Id. § 22(a), (o) and (s). DEFAULTS UNDER THE LOAN DOCUMENTS 29. Borrower defaulted under the Loan Documents referenced above by reason of, among other things, Borrower’s failure to repay the outstanding Loan amount due to Lender on the Maturity Date. 30. By that certain maturity default letter dated February 8, 2024, Lender notified Borrower and Indemnitor that certain Events of Default under the Mortgage have occurred 10 10 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 including, among other things, the failure to pay the outstanding principal and outstanding accrued and unpaid interest thereon that matured and became due and payable in full under the Loan on the Maturity Date (the “Default Letter”). The Default Letter further demanded that Borrower provide evidence of payment of all unpaid real estate taxes to the NYC Dept. of Finance and unpaid water charges to the New York City Department of Environmental Protection on the Mortgaged Property within fifteen (15) days of the Default Letter. A true and correct copy of the Default Letter is annexed hereto as Exhibit “I.” 31. Plaintiff hereby again declares the Mortgage to be due and payable and demands immediate payment in full of the outstanding principal, together with all accrued and unpaid interest thereon, and all other charges due under the Mortgage. 32. Upon information and belief, Indemnitor is liable under Indemnity Agreement, jointly and severally, by reason of triggering non-recourse exclusions for acts including, but not limited to, (i) the misapplication or misappropriation of rents received by the Borrower after the occurrence and/or during the continuance of an Event of Default under the Loan, and (ii) the failure to pay real estate taxes and other levies constituting a lien against all or a portion of the Mortgaged Property prior to the transfer of the Mortgaged Property to the Lender or a receiver. 33. By reason of the foregoing, there is now justly due and owing upon the Note and the Mortgage to Plaintiff the outstanding principal balance of $7,945,937.59 together with all accrued and unpaid interest thereon, and all other charges as more fully provided in the Loan Documents, which sums are due and owing in additional to any usual costs and allowances to which Plaintiff may be entitled to and awarded under any law or statute applicable to this action. 34. In order to protect its security, Plaintiff may be compelled to pay during the pendency of this action, among other things, taxes, assessments, water rates, insurance premiums 11 11 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 and other charges affecting the Mortgaged Property, and Plaintiff requests that any sums thus paid by it for said purposes (together with interest thereon) be added to the sum otherwise due and be deemed secured by the Mortgage and be adjudged a valid lien on the Mortgaged Property. 35. No other action or proceeding has been brought to recover the sums secured by the Mortgage or any part thereof. 36. The Loan was made to a commercial entity, was not incurred for personal, family or household purposes and the Borrower does not reside at the Mortgaged Property. As a result, this is not a residential foreclosure involving a home loan and this action is not subject to the provisions of CPLR § 3408. 37. Upon information and belief, all the defendants named in this action have, or claim to have, some claim to, interest in or lien upon the Mortgaged Property or some part thereof, which claim, interest or lien, if any, has accrued subsequent to the Mortgage and to the liens of Plaintiff, and is subject and subordinate to the liens of Plaintiff. 38. Upon information and belief, no persons or entities other than those described herein have, may have, or claim to have, any interest in, or lien upon, the Mortgaged Property. AS AND FOR A FIRST CAUSE OF ACTION (For Foreclosure of the Mortgage Against All Defendants) 39. Plaintiff repeats and realleges all of the allegations set forth in paragraphs 1 through 38 above with the same force and effect as if set forth fully herein. 40. Plaintiff demands that Defendants, or any of them, and all persons claiming by, through or under all or any of them, any and all mechanic’s lien holders, all subsequent and subordinate lien and/or judgment holders, and every person or entity whose right, title, conveyance or encumbrance is recorded subsequent to the filing of a notice of pendency of this action in the KINGS County Clerk’s Office, be barred and forever foreclosed of all right, title, interest, claim, 12 12 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 lien and equity of redemption in and to the Mortgaged Property and in and to the fixtures and articles of personalty upon which the Mortgage and UCC-1 is a lien attached to or used in connection with said premises. AS AND FOR A SECOND CAUSE OF ACTION (For A Deficiency Judgment Against Borrower and Indemnitor On The Loan) 41. Plaintiff repeats and realleges all of the allegations set forth in paragraphs 1 through 40 above with the same force and effect as if set forth fully herein. 42. Borrower and Indemnitor have failed to comply with the terms and provisions of the Loan Documents and the Indemnity Agreement. 43. Indemnitor is personally liable under the Indemnity Agreement for breaches of the Indemnity Agreement and all damages arising therefrom. 44. Accordingly, Plaintiff requests judgment against Borrower and Indemnitor for any deficiency and damages, claims, costs, expenses and other liabilities arising under the Loan Documents which may remain following the foreclosure sale of the Mortgaged Property, to the extent permitted by the Loan Documents and the applicable law. WHEREFORE, Plaintiff demands judgment as follows: a. The defendants, or any of them, and all persons claiming by, through or under all or any of them and every person or entity whose right, title, conveyance or encumbrance is recorded subsequent to the filing of a notice of pendency of this action in the Kings County Clerk’s Office be barred and forever foreclosed of all right, title, interest, claim, lien and equity of redemption in and to the Mortgaged Property and in and to the fixtures and articles of personalty upon which the Mortgage is a lien attached to or used in connection with said premises; the said Mortgaged Property be decreed to be sold as one parcel, along with the fixtures and articles of personalty, and that the monies arising from such sale be brought into Court; 13 13 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 b. Plaintiff be paid the amounts due upon the above referenced Note, Mortgage, and Loan Documents with interest thereon to the time of such payment, together with the expenses of the sale, the costs, allowances and disbursements of this action, Plaintiff’s attorneys’ fees, other charges, any monies advanced or paid to protect the liens of the Mortgage, and the taxes, assessments, water charges and sewer rents, premiums for insurance, repairs to the Mortgaged Property, and all other charges which may have been made by Plaintiff to protect the security afforded by the Mortgage and the lien thereon to be paid, with interest upon said amounts from the dates of the respective payments and advances thereof, so far as the amounts of such monies properly applicable thereto will pay the same; c. The Court issue a Final Judgment of Foreclosure and Sale on the Mortgage and permit Plaintiff the right to schedule the foreclosure sale as it so chooses; d. Borrower pay to Plaintiff, in accordance with the Note, Mortgage and Indemnity Agreement, the amount of any deficiency which may remain or so much thereof as the Court may determine to be just and equitable, of the debt remaining unsatisfied after a sale of the Mortgaged Property and the application of the proceeds pursuant to the directions contained in such judgment, the amount thereof to be determined by the Court, as provided in Section 1371 of the Real Property Actions and Proceedings Law; e. Indemnitor pay to Plaintiff, in accordance with the Indemnity Agreement and the Loan Documents, damages arising thereunder which may remain or so much thereof as the Court may determine to be just and equitable; f. The Referee (or other officer) making such sale be directed to pay from the proceeds thereof all taxes, assessments, water rates, sewer rents and other charges which are liens on the property sold; and 14 14 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 g. A receiver be appointed to manage the Mortgaged Property; and h. Plaintiff has such other and further relief as may be just and equitable. Dated: New York, New York March 5, 2024 ROSENBERG & ESTIS, P.C. By: /s/ Richard Y. Im Richard Y. Im 733 Third Avenue, 15th Floor New York, NY 10017 (212) 867-6000 Attorneys for Plaintiff 15 15 of 16 FILED: KINGS COUNTY CLERK 03/05/2024 04:51 PM INDEX NO. 506522/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/05/2024 16 16 of 16