Preview
FILED: SUFFOLK COUNTY CLERK 04/22/2024 11:51 AM INDEX NO. 610232/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
________________________________________________________________-Ç
Date Summons Filed:
ISLIP 2 LLC
Index No.
Plaintiffs, SUMMONS
Plaintiff designates Suffolk
-against- as the place of trial
County
Venue is based upon the
PS FUNDING INC. and
FCI LENDER SERVICES INC. County in which the subject
premises is situated.
Defendants
__________________________________________________________Ç
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to
serve a copy of your answer, or, if the Complaint is not served with this summons, to serve a
Notice of Appearance on the attorneys for the Plaintiff 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); and
in case of your failure to appear or answer, judgement will be taken against you by default for the
relief demanded in the Complaint.
Dated: Lake Success, New York
April 19, 2024
Your etc.,
E RGE M. GAVALAS ESQ.
ttorney for Plaintiffs
2001 Marcus Avenue- Suite N125
Lake Success, New York 11042
(516) 746-1515
Defendants address:
PS Funding inc. FCI Lender Srvices Inc.
840 Apollo Street 8180 E. Kaiser Blvd.
Suite 100 Anaheim California 92808
El Segundo, California 90245
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
--___________________----_______________---------------______-------_____Ç
ISLIP 2 LLC
Index No.
Plaintiffs, VERIFIED COMPLAINT
-against-
PS FUNDING INC. and
FCI LENDER SERVICES INC.
Defendants.
_____________________________________--------------_____________--___x
SIRS:
Plaintiff, ISLIP 2 LLC as and for its complaint against the above named defendant
hereby alleges as follows:
1. At all times mentioned herein, the plaintiff ISLIP 2 LLC was and is a
domestic LLC with offices at 395 N. Service Road, Suite 112W, Melville, New York.
2. At all times mentioned herein, upon information and belief, the defendant
PS Funding Inc. was and is foreign entity which transacts business in the State of New
York, County of Suffolk with a principle offices at 840 Apollo Street, Suite 100, El
Segundo, California 90245
3. At all times mentioned herein, upon information and belief, the defendant
FCI Lender Services, Inc. was and is foreign entity which transacts business in the State
of New York, County of Suffolk with a principle offices at 8180 E. Kaiser Blvd.,
Anaheim California 92808.
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4. At all times mentioned herein, Plaintiff ISLIP 2 LLC is the titled owner of
the real property located at 2 Duffin Avenue, West Islip, New York 11795
5. That at al relevant times herein, defendant PS Funding Inc, is the owner of a
first mortgage on 2 Duffin Avenue, West Islip, New York 11795 by assignment dated
December 2, 2022.
6. That at al relevant times herein, defendant FCI Mortgage Services, Inc. is the
servicer of the first mortgage on 2 Duffin Avenue, West Islip, New York 11795 on behalf
of defendant PH Funding Inc.
7. That on December 2, 2022, plaintiff obtained a mortgage loan from ICON
Recap LLC in the principle face amount of $438,750.00. The loan was for acquisition of
the property located at 2 Duffin Avenue, West Islip New York and a construction
allowance for rehabilitation for resale of the property.
8. That plaintiff was unaware of an immediate assignment of the mortgage on
December 2, 2022 two plaintiff PS Funding Inc.
9. For reasons unknown to plaintiff, there were immediate problems with
disbursements for construction and rehabilitation of the property.
10. As a result of defendant's actions, plaintiff defaulted under the note on or
about March 1, 2023 when funds were not properly dispersed and plaintiff's own reserves
had already been put into the property for construction without reimbursement.
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11. As a result of the default, defendants improperly commenced charging
default interest.
12. As a result of the default, defendants ceased to advance the construction
funds causing additional damages and hardship to plaintiff.
13. Defendant's conduct constituted tortious interference with plaintiff's
business operations. Said business operations were known to defendants.
14. As a result of defendant's failure to tender reconstruction advances, plaintiff
was forced to seek alternate sources of funding to complete the renovations so that the
can be completed and sold to mitigate the accruing default interest with
property
defendants.
15. Plaintiff subsequently requested a payoff from defendants.
16. Defendants took an excessive and unreasonable and unjustified time to
produce a legitimate payoff.
17. Defendant, wilfully, recklessly and/or negligently, forwarded an erroneous
payoff which computed interest and default interest on the entire $438,750.00 despite the
fact that defendants failed to advance $51,900.00 of construction reserves.
18. Defendant computed total interest, and then deducted the $51,900.00
default interest on funds never dispersed in reckless disregard of its
whereby charging
contractual obligations.
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19. Plaintiff repeatedly requested through counsel to have the payoff computed
correctly and in good faith and under the covenant of fair dealings.
20. Defendants improper actions and unjustifiable delays have caused
sixcontinuing accrual of interest, costs and attorneys fees.
NATURE OF THE ACTION
21. This is an action for declaratory judgment on the amounts due under the
mortgage and note; injunctive relief to prevent the Defendant from exercising any right to
foreclosure on the property and for an offset for damages caused to plaintiff as a result of
defendants breach of contract and subsequent interfering actions and delays.
JURISDICTION AND VENUE
22. This Court has personal jurisdiction over the Defendants, pursuant to New
York Civil Practice Law and Rules ("CPLR") because the causes of action asserted herein
Defendants'
arise directly from transacting of business in New York State. As well as the
fact that the property at issue is in the State of New York.
23. Venue is proper as the loan agreements each set forth that any action
brought are to be governed and construed under the laws of the State of New York.
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"clogging"
24. Defendants delays and interfering actions constitutes of plaintiff's
equity right of redemption and is a tortuous interference with such rights.
25. Defendants actions clearly demonstrate a lack of good faith and fair dealing.
The covenant of goof faith and fair dealing is implicit in each and every contract.
26. Defendants did not disclose that it did not intend to honor the disbursement
schedules and would otherwise interfere with plaintiff's business operations so as to
cause a default to obtain ill-gotten gains.
FIRST CAUSE OF ACTION
27. Plaintiff repeats the above paragraphs as if repeated herein at length
28. That as a result of filing false reports and misleading calculations defendants
were able to wrongfully calculate tens of thousands of dollars to which they were not
entitled.
29. By reason of defendants respective positions as a licensed mortgage lenders
and servicers, defendants owed plaintiff a fiduciary duty to, among other things: (1)
refrain from putting their own interests above the interests of plaintiff; (2) deal fairly with
plaintiff; (3) disclose all material information to plaintiff; (4) refrain from making false
statements or creating mis-impressions; (5) comply with those provisions of its contracts
with New York State Statutes that are intended to benefit the public and parties engaging
including plaintiff; (6) comply with all statutes, rules, regulations, customs and usages
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governing licensed businesses that are intended to benefit and protect the public,
including plaintiff; (7) comply with all covenants and implied covenants contained in its
contract with its customers; and (8) avoid placing themselves in a position of conflict of
interest with respect to plaintiff.
30. Defendants breached the aforesaid fiduciary duties owed to plaintiff by,
among other things: (1) putting their own interests above the interests of plaintiff; (2) not
dealing fairly with plaintiff; (3) failing to disclose all material information to plaintiff; (4)
failing to refrain from making false statements or creating mis-impressions; (5) failing to
comply with those provisions of its contract with the New York State Statutes that are
intended to benefit plaintiff; (6) failing to comply with all statutes, rules, regulations,
defendants'
customs and usages governing defendants that are intended to benefit
customers; (7) failing to comply with all covenants and implied covenants contained in its
contracts for the benefit of plaintiff; and (8) placing itself in a position of conflict of
interest with respect to plaintiff.
31. As a result of the foregoing, plaintiff has been damaged and seeks
compensatory damages in the sum of Two Hundred Fifty Thousand (250,000.00) Dollars
and/or such other and further relief as is just and proper.
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AS AND FOR A SECOND CAUSE OF ACTION
32. Plaintiff repeats the above paragraphs as if repeated herein at length.
33. At all times relevant hereto, defendants omitted to state material facts to
plaintiffs as set forth in detail above. In addition, defendants made false statements to
Plaintiffs as set forth in detail above.
34. The omissions and the misrepresentations made by defendants were false as
set forth above.
35. At the time the misrepresentations were made, they were known by
defendants to be false, and at the time of the omissions, they were known by defendants
to be material. The misstatements were made and the material facts were omitted by
defendants with the intent to deceive and defraud plaintiff and to cover up defendants
wrongful conduct, fraud breach of fiduciary duties as a result of which defendants derived
commissions, fees, revenues and profits.
36. At the time the false representations and statements were made by defendants
and at the time defendants omitted to state material facts, plaintiff did not know the true
facts but justifiably believed the representations and statements made by defendants were
true, relied upon them.
37. That each of these false representations and knowing omissions or
concealments were made or effected by defendants with the knowledge that such
statements were false and misleading, or that plaintiff would be misled by said omissions
and/or concealments.
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38. That the concealments rendered the statements actually made misleading.
39. That these statements, made by defendants were made both on behalf of
themselves personally, or in any event as a tortfeasor in incurring personal liability, and as
an agent or principal of the corporate defendants (with the intent to assist the corporate
defendants in defrauding plaintiff), and to benefit both the individual and corporate
defendants; and to such extent, all defendants are liable for the statements,
misrepresentations and omissions made.
40. As a result of the foregoing, plaintiff has been damaged and seeks
compensatory damages in the sum of Two Hundred Fifty Thousand ($250,000.00)
Dollars and/or such other and further relief as is just and proper.
AS AND FOR A THIRD CAUSE OF ACTION
41. Plaintiff repeats the above paragraphs as if repeated herein at length.
42. That plaintiff and defendants entered into written and oral contractual
agreements regarding the loan and mortgage on the real property located at 2 Diffin
Avenue, West Islip, New York
43. That the defendants have breached these agreements, including but not
defendants'
limited to attempted to perpetrate fraud; violating fiduciary obligations to act
in plaintiff's best interests; and have failed to otherwise honor their general obligations
under the agreements as set forth above, breach of contract.
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44. The defendants collectively entered into several written agreements pursuant
to which defendants agreed, inter alia, to certain funds during the course of construction
as part of plaintiff's business model and practices which was fully disclosed and known to
defendants.
45. Defendants were under an obligation to advance construction funds as needed
which was part and parcel of the basis of the mortgage loan obtained by plaintiff from
defendants.
46. Each of the Defendants expressly and impliedly warranted that the funds
were readily available and would be dispersed as requested pursuant to the agreement.
47. Defendants breached the contract with plaintiff and obligations owed to
plaintiff.
48. As a result of the foregoing, plaintiff has been damaged and seeks
compensatory damages in the amount of Two hundred Fifty Thousand ($250,000.00)
Dollars and/or such other and further relief as is just and proper.
AS AND FOR A FOURTH CAUSE OF ACTION
49. Plaintiff repeats the above paragraphs as if repeated herein at length.
50. That as a result of the malicious and surreptitious conduct on the part of the
defendants, the plaintiff has been forced to sustain financial costs for attorney's fees,
litigation expenses, court costs, lost earnings and other incidental expenses incurred
through no fault of the plaintiff and through complete fault of the defendants.
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51. That in view of the resulting malicious conduct on the part of the defendants,
the plaintiff will continue to be forced to expend monies for attorney's fees, investigations
and other incidentally related litigation expenses.
52. That as a result thereof, the plaintiff has sustained injuries and damages and
is entitled to an award of attorneys fees and costs.
AS AND FOR A FIFTH CAUSE OF ACTION
53. Plaintiff repeats the above paragraphs as if repeated herein at length.
54. As a contractual instrument governed by the laws of New York, the Loan
Agreement contains an implied covenant of good faith and fair dealing which embraces a
pledge that no party will do anything that will have the effect of destroying or
injuring the right of another party to receive the fruits of the contract. A party breaches an
implied covenant of good faith and fair dealing when it acts in a manner that, although
not expressly forbidden by any contractual provision, would deprive another
party of the right to receive the benefits under the agreement.
55. An implied covenant of good faith and fair dealing is implicit in every verbal
and written agreement.
56. Defendants failure to tender the constructions proceeds and defendants
deliberate delays in delivering requested payoffs followed by erroneous and excessive
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payoff, was designed by defendants to deprive the plainitff-borrower of the obtained
incentives by depriving the plaintiff-borrower of value added as a result of their efforts in
achieving such incentives entitled to under the Loan Agreements.
57. The actions of the defendants has cost the Plaintiffs significant prejudice,
hardship and damages.
58. Defendant is interfering with plaintiff's right fo redemption and has placed
the property and plaintiff's business operation in jeopardy.
59. That as a result thereof, the plaintiff has sustained injuries and damages and is
entitled to an award of attorneys fees and costs and damages in the amount of Two
Hundred Fifty Thousand ($250,000.00) Dollars in addition to the other relief sought
herein.
AS AND FOR A SIXTH CAUSE OF ACTION
60. Plaintiff repeats the above paragraphs as if repeated herein at length.
61. The conduct of Defendants complained of herein was wanton, reckless and
malicious. In ignoring their duties and obligations to plaintiff, Defendants showed
heedlessness and utter disregard for the effect of its conduct upon the rights of
plaintiff that might have resulted
Preview
FILED: SUFFOLK COUNTY CLERK 04/22/2024 11:51 AM INDEX NO. 610232/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ________________________________________________________________-Ç Date Summons Filed: ISLIP 2 LLC Index No. Plaintiffs, SUMMONS Plaintiff designates Suffolk -against- as the place of trial County Venue is based upon the PS FUNDING INC. and FCI LENDER SERVICES INC. County in which the subject premises is situated. Defendants __________________________________________________________Ç TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a copy of your answer, or, if the Complaint is not served with this summons, to serve a Notice of Appearance on the attorneys for the Plaintiff 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); and in case of your failure to appear or answer, judgement will be taken against you by default for the relief demanded in the Complaint. Dated: Lake Success, New York April 19, 2024 Your etc., E RGE M. GAVALAS ESQ. ttorney for Plaintiffs 2001 Marcus Avenue- Suite N125 Lake Success, New York 11042 (516) 746-1515 Defendants address: PS Funding inc. FCI Lender Srvices Inc. 840 Apollo Street 8180 E. Kaiser Blvd. Suite 100 Anaheim California 92808 El Segundo, California 90245 1 of 15 FILED: SUFFOLK COUNTY CLERK 04/22/2024 11:51 AM INDEX NO. 610232/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --___________________----_______________---------------______-------_____Ç ISLIP 2 LLC Index No. Plaintiffs, VERIFIED COMPLAINT -against- PS FUNDING INC. and FCI LENDER SERVICES INC. Defendants. _____________________________________--------------_____________--___x SIRS: Plaintiff, ISLIP 2 LLC as and for its complaint against the above named defendant hereby alleges as follows: 1. At all times mentioned herein, the plaintiff ISLIP 2 LLC was and is a domestic LLC with offices at 395 N. Service Road, Suite 112W, Melville, New York. 2. At all times mentioned herein, upon information and belief, the defendant PS Funding Inc. was and is foreign entity which transacts business in the State of New York, County of Suffolk with a principle offices at 840 Apollo Street, Suite 100, El Segundo, California 90245 3. At all times mentioned herein, upon information and belief, the defendant FCI Lender Services, Inc. was and is foreign entity which transacts business in the State of New York, County of Suffolk with a principle offices at 8180 E. Kaiser Blvd., Anaheim California 92808. 2 of 15 FILED: SUFFOLK COUNTY CLERK 04/22/2024 11:51 AM INDEX NO. 610232/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 4. At all times mentioned herein, Plaintiff ISLIP 2 LLC is the titled owner of the real property located at 2 Duffin Avenue, West Islip, New York 11795 5. That at al relevant times herein, defendant PS Funding Inc, is the owner of a first mortgage on 2 Duffin Avenue, West Islip, New York 11795 by assignment dated December 2, 2022. 6. That at al relevant times herein, defendant FCI Mortgage Services, Inc. is the servicer of the first mortgage on 2 Duffin Avenue, West Islip, New York 11795 on behalf of defendant PH Funding Inc. 7. That on December 2, 2022, plaintiff obtained a mortgage loan from ICON Recap LLC in the principle face amount of $438,750.00. The loan was for acquisition of the property located at 2 Duffin Avenue, West Islip New York and a construction allowance for rehabilitation for resale of the property. 8. That plaintiff was unaware of an immediate assignment of the mortgage on December 2, 2022 two plaintiff PS Funding Inc. 9. For reasons unknown to plaintiff, there were immediate problems with disbursements for construction and rehabilitation of the property. 10. As a result of defendant's actions, plaintiff defaulted under the note on or about March 1, 2023 when funds were not properly dispersed and plaintiff's own reserves had already been put into the property for construction without reimbursement. 3 of 15 FILED: SUFFOLK COUNTY CLERK 04/22/2024 11:51 AM INDEX NO. 610232/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 11. As a result of the default, defendants improperly commenced charging default interest. 12. As a result of the default, defendants ceased to advance the construction funds causing additional damages and hardship to plaintiff. 13. Defendant's conduct constituted tortious interference with plaintiff's business operations. Said business operations were known to defendants. 14. As a result of defendant's failure to tender reconstruction advances, plaintiff was forced to seek alternate sources of funding to complete the renovations so that the can be completed and sold to mitigate the accruing default interest with property defendants. 15. Plaintiff subsequently requested a payoff from defendants. 16. Defendants took an excessive and unreasonable and unjustified time to produce a legitimate payoff. 17. Defendant, wilfully, recklessly and/or negligently, forwarded an erroneous payoff which computed interest and default interest on the entire $438,750.00 despite the fact that defendants failed to advance $51,900.00 of construction reserves. 18. Defendant computed total interest, and then deducted the $51,900.00 default interest on funds never dispersed in reckless disregard of its whereby charging contractual obligations. 4 of 15 FILED: SUFFOLK COUNTY CLERK 04/22/2024 11:51 AM INDEX NO. 610232/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 19. Plaintiff repeatedly requested through counsel to have the payoff computed correctly and in good faith and under the covenant of fair dealings. 20. Defendants improper actions and unjustifiable delays have caused sixcontinuing accrual of interest, costs and attorneys fees. NATURE OF THE ACTION 21. This is an action for declaratory judgment on the amounts due under the mortgage and note; injunctive relief to prevent the Defendant from exercising any right to foreclosure on the property and for an offset for damages caused to plaintiff as a result of defendants breach of contract and subsequent interfering actions and delays. JURISDICTION AND VENUE 22. This Court has personal jurisdiction over the Defendants, pursuant to New York Civil Practice Law and Rules ("CPLR") because the causes of action asserted herein Defendants' arise directly from transacting of business in New York State. As well as the fact that the property at issue is in the State of New York. 23. Venue is proper as the loan agreements each set forth that any action brought are to be governed and construed under the laws of the State of New York. 5 of 15 FILED: SUFFOLK COUNTY CLERK 04/22/2024 11:51 AM INDEX NO. 610232/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 "clogging" 24. Defendants delays and interfering actions constitutes of plaintiff's equity right of redemption and is a tortuous interference with such rights. 25. Defendants actions clearly demonstrate a lack of good faith and fair dealing. The covenant of goof faith and fair dealing is implicit in each and every contract. 26. Defendants did not disclose that it did not intend to honor the disbursement schedules and would otherwise interfere with plaintiff's business operations so as to cause a default to obtain ill-gotten gains. FIRST CAUSE OF ACTION 27. Plaintiff repeats the above paragraphs as if repeated herein at length 28. That as a result of filing false reports and misleading calculations defendants were able to wrongfully calculate tens of thousands of dollars to which they were not entitled. 29. By reason of defendants respective positions as a licensed mortgage lenders and servicers, defendants owed plaintiff a fiduciary duty to, among other things: (1) refrain from putting their own interests above the interests of plaintiff; (2) deal fairly with plaintiff; (3) disclose all material information to plaintiff; (4) refrain from making false statements or creating mis-impressions; (5) comply with those provisions of its contracts with New York State Statutes that are intended to benefit the public and parties engaging including plaintiff; (6) comply with all statutes, rules, regulations, customs and usages 6 of 15 FILED: SUFFOLK COUNTY CLERK 04/22/2024 11:51 AM INDEX NO. 610232/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 governing licensed businesses that are intended to benefit and protect the public, including plaintiff; (7) comply with all covenants and implied covenants contained in its contract with its customers; and (8) avoid placing themselves in a position of conflict of interest with respect to plaintiff. 30. Defendants breached the aforesaid fiduciary duties owed to plaintiff by, among other things: (1) putting their own interests above the interests of plaintiff; (2) not dealing fairly with plaintiff; (3) failing to disclose all material information to plaintiff; (4) failing to refrain from making false statements or creating mis-impressions; (5) failing to comply with those provisions of its contract with the New York State Statutes that are intended to benefit plaintiff; (6) failing to comply with all statutes, rules, regulations, defendants' customs and usages governing defendants that are intended to benefit customers; (7) failing to comply with all covenants and implied covenants contained in its contracts for the benefit of plaintiff; and (8) placing itself in a position of conflict of interest with respect to plaintiff. 31. As a result of the foregoing, plaintiff has been damaged and seeks compensatory damages in the sum of Two Hundred Fifty Thousand (250,000.00) Dollars and/or such other and further relief as is just and proper. 7 of 15 FILED: SUFFOLK COUNTY CLERK 04/22/2024 11:51 AM INDEX NO. 610232/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 AS AND FOR A SECOND CAUSE OF ACTION 32. Plaintiff repeats the above paragraphs as if repeated herein at length. 33. At all times relevant hereto, defendants omitted to state material facts to plaintiffs as set forth in detail above. In addition, defendants made false statements to Plaintiffs as set forth in detail above. 34. The omissions and the misrepresentations made by defendants were false as set forth above. 35. At the time the misrepresentations were made, they were known by defendants to be false, and at the time of the omissions, they were known by defendants to be material. The misstatements were made and the material facts were omitted by defendants with the intent to deceive and defraud plaintiff and to cover up defendants wrongful conduct, fraud breach of fiduciary duties as a result of which defendants derived commissions, fees, revenues and profits. 36. At the time the false representations and statements were made by defendants and at the time defendants omitted to state material facts, plaintiff did not know the true facts but justifiably believed the representations and statements made by defendants were true, relied upon them. 37. That each of these false representations and knowing omissions or concealments were made or effected by defendants with the knowledge that such statements were false and misleading, or that plaintiff would be misled by said omissions and/or concealments. 8 of 15 FILED: SUFFOLK COUNTY CLERK 04/22/2024 11:51 AM INDEX NO. 610232/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 38. That the concealments rendered the statements actually made misleading. 39. That these statements, made by defendants were made both on behalf of themselves personally, or in any event as a tortfeasor in incurring personal liability, and as an agent or principal of the corporate defendants (with the intent to assist the corporate defendants in defrauding plaintiff), and to benefit both the individual and corporate defendants; and to such extent, all defendants are liable for the statements, misrepresentations and omissions made. 40. As a result of the foregoing, plaintiff has been damaged and seeks compensatory damages in the sum of Two Hundred Fifty Thousand ($250,000.00) Dollars and/or such other and further relief as is just and proper. AS AND FOR A THIRD CAUSE OF ACTION 41. Plaintiff repeats the above paragraphs as if repeated herein at length. 42. That plaintiff and defendants entered into written and oral contractual agreements regarding the loan and mortgage on the real property located at 2 Diffin Avenue, West Islip, New York 43. That the defendants have breached these agreements, including but not defendants' limited to attempted to perpetrate fraud; violating fiduciary obligations to act in plaintiff's best interests; and have failed to otherwise honor their general obligations under the agreements as set forth above, breach of contract. 9 of 15 FILED: SUFFOLK COUNTY CLERK 04/22/2024 11:51 AM INDEX NO. 610232/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 44. The defendants collectively entered into several written agreements pursuant to which defendants agreed, inter alia, to certain funds during the course of construction as part of plaintiff's business model and practices which was fully disclosed and known to defendants. 45. Defendants were under an obligation to advance construction funds as needed which was part and parcel of the basis of the mortgage loan obtained by plaintiff from defendants. 46. Each of the Defendants expressly and impliedly warranted that the funds were readily available and would be dispersed as requested pursuant to the agreement. 47. Defendants breached the contract with plaintiff and obligations owed to plaintiff. 48. As a result of the foregoing, plaintiff has been damaged and seeks compensatory damages in the amount of Two hundred Fifty Thousand ($250,000.00) Dollars and/or such other and further relief as is just and proper. AS AND FOR A FOURTH CAUSE OF ACTION 49. Plaintiff repeats the above paragraphs as if repeated herein at length. 50. That as a result of the malicious and surreptitious conduct on the part of the defendants, the plaintiff has been forced to sustain financial costs for attorney's fees, litigation expenses, court costs, lost earnings and other incidental expenses incurred through no fault of the plaintiff and through complete fault of the defendants. 10 of 15 FILED: SUFFOLK COUNTY CLERK 04/22/2024 11:51 AM INDEX NO. 610232/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 51. That in view of the resulting malicious conduct on the part of the defendants, the plaintiff will continue to be forced to expend monies for attorney's fees, investigations and other incidentally related litigation expenses. 52. That as a result thereof, the plaintiff has sustained injuries and damages and is entitled to an award of attorneys fees and costs. AS AND FOR A FIFTH CAUSE OF ACTION 53. Plaintiff repeats the above paragraphs as if repeated herein at length. 54. As a contractual instrument governed by the laws of New York, the Loan Agreement contains an implied covenant of good faith and fair dealing which embraces a pledge that no party will do anything that will have the effect of destroying or injuring the right of another party to receive the fruits of the contract. A party breaches an implied covenant of good faith and fair dealing when it acts in a manner that, although not expressly forbidden by any contractual provision, would deprive another party of the right to receive the benefits under the agreement. 55. An implied covenant of good faith and fair dealing is implicit in every verbal and written agreement. 56. Defendants failure to tender the constructions proceeds and defendants deliberate delays in delivering requested payoffs followed by erroneous and excessive 11 of 15 FILED: SUFFOLK COUNTY CLERK 04/22/2024 11:51 AM INDEX NO. 610232/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/22/2024 payoff, was designed by defendants to deprive the plainitff-borrower of the obtained incentives by depriving the plaintiff-borrower of value added as a result of their efforts in achieving such incentives entitled to under the Loan Agreements. 57. The actions of the defendants has cost the Plaintiffs significant prejudice, hardship and damages. 58. Defendant is interfering with plaintiff's right fo redemption and has placed the property and plaintiff's business operation in jeopardy. 59. That as a result thereof, the plaintiff has sustained injuries and damages and is entitled to an award of attorneys fees and costs and damages in the amount of Two Hundred Fifty Thousand ($250,000.00) Dollars in addition to the other relief sought herein. AS AND FOR A SIXTH CAUSE OF ACTION 60. Plaintiff repeats the above paragraphs as if repeated herein at length. 61. The conduct of Defendants complained of herein was wanton, reckless and malicious. In ignoring their duties and obligations to plaintiff, Defendants showed heedlessness and utter disregard for the effect of its conduct upon the rights of plaintiff that might have resulted