Preview
FILED: KINGS COUNTY CLERK 04/23/2024 09:19 AM INDEX NO. 511529/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024
File No.: 1281-N1229
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------------------------------x Index No.
TD BANK, N.A., Date Purchased:
Plaintiff designates Kings
Plaintiff, County as the place of trial.
SUMMONS
-against- Plaintiff's address:
9000 Atrium Way
PRIME HEATING NY INC. and Mt. Laurel, NJ 08054
ABRAHAM KOENIG, Basis of Venue:
Defendants'
Place of
Defendants. Business/Residence
___-___________--------------____-..---.._________-------____--____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 Plaintiffs counsel(s) within 20 days after the service of this Summons,
exclusive of the day of service (or within 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, Judgment will be taken against you by default for the relief demanded in the
Complaint.
Dated: New Yo , New York
April , 2024 PLATZER, SWERGOLD,
GOLDBERG, KATZ & JASLOW, LLP
Counsel for Pl intiff
By: . k ,
Ter sa Sadutto-Carley, Esq.
18th
47 Park Avenue South, PlOOr
New York, New York 10016
(212) 593-3000
tsadulto platzerlaw.com
Addresses of Defendants:
PRIME HEATING NY INC.
16"
5314 Avenue
Brooklyn, New York 11204
ABRAHAM KOENIG
60th
1865 Street
Brooklyn, New York 11204
-and-
58th
2154 Street
Brooklyn, New York 11204
G:\wpdocs\working\COMMERCI\TD Bank\Prime Heating NY Inc\S&C.doc
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FILED: KINGS COUNTY CLERK 04/23/2024 09:19 AM INDEX NO. 511529/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024
File No,: 1281-N1229
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
__________________________-______________________----____----Ç
TD BANK, N.A.,
Index No.
Plaintiff,
-against- VERIFIED COMPLAINT
PRIME HEATING NY INC. and
ABRAHAM KOENIG,
Defendants.
__________________________________________________________________Ç
Plaintiff, TD BANK, N.A. ("Plaintiff"), by its attorneys, Platzer, Swergold, Goldberg,
Katz & Jaslow, LLP, as and for its verified complaint, alleges as follows:
THE PARTIES
1. Plaintiff is, and at all times hereinafter mentioned was, a national bank organized
and existing under and by virtue of the laws of the United States of America, with a place of
business located at 9000 Atrium Way, Mt. Laurel, New Jersey 08054.
2. Upon information and belief, defendant, PRIME HEATING NY INC. (the
"Borrower"), is and at all times hereinafter mentioned was a domestic business corporation
organized and existing under the laws of the State of New York, with its principal office located
16"
at 5314 Avenue, Brooklyn, New York 11204.
3. Upon information and belief, defendant, ABRAHAM KOENIG (the
"Guarantor,"
together with the Borrower, shall collectively be referred herein as the
"Defendants"), is and at all times hereinafter mentioned was, and is, an individual residing and
58* 60*
domiciled at 2154 Street, Brooklyn, New York 11204 and/or 1865 Street, Brooklyn,
New York 11204.
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THE LOAN DOCUMENTS
4. Pursuant to a certain Business Loan Agreement dated as of August 2, 2019,
between Borrower and Plaintiff (the "Loan Agreement"), Borrower executed and delivered to
Plaintiff a certain Promissory Note dated as of August 2, 2019 (the "Note") in the principal
amount of Eighty-Five Thousand and 00/100 Dollars ($85,000.00) (the "LOC") whereby the
Plaintiff agreed to make advances to Borrower up to the principal amount of the LOC. Annexed
"A"
hereto as Exhibit is a true and complete copy of the Loan Agreement and annexed hereto as
"B"
Exhibit is a true and complete copy of the Note.
5. Pursuant to the Note, the interest rate to be applied to the unpaid principal balance
under the Note is a rate of 1.490 percentage points over the Index (as defined in the Note) per
"B,"
annum (the "Interest Rate"). See Exhibit Page 1. However, the Interest Rate on the Note
would not be less than 5.250 % per annum or more than the maximum rate allowed by applicable
"B,"
law. See Exhibit Page 1.
6. The Note further provides, in pertinent part, the following:
ATTORNEYS'
FEES; EXPENSES. Borrower agrees to pay all
costs and expenses Lender incurs to collect this Note. This
includes, subject to any limits under applicable law, Lender's
attorneys'
reasonable fees and Lender's legal expenses whether or
attorneys'
not there is a lawsuit, including reasonable fees and
expenses for bankruptcy proceedings (including efforts to modify
or vacate any automatic stay or injunction), and appeals. If not
prohibited by applicable law, Borrower also will pay any court
costs, in addition to all other sums provided by law.
"B,"
See Exhibit Page 1.
7. Pursuant to the Note, the default rate of interest ("the "Default Rate") applicable
to the LOC is as follows:
INTEREST AFTER DEFAULT. Upon default, including failure
to pay upon final maturity, the interest rate on this Note shall be
increased to 18.000% per annum based on a year of 360 days.
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NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024
However, in no event will the interest rate exceed the maximum
interest rate limitations under applicable law.
"B,"
See Exhibit Page 1.
8. The Note further provides, in pertinent part, as follows:
LATE CHARGE. If a regularly scheduled interest payment is 15
days or more late, Borrower will be charged 6.000% of the unpaid
portion of the regularly scheduled payment. If Lender demands
payment of this loan, and Borrower does not pay the loan in full
within 15 days after Lender's demand, Borrower also will be
charged 6.000% of the unpaid portion of the sum of the unpaid
principal plus accrued unpaid interest.
"B,"
See Exhibit Page 1.
9. The Note further provides, in pertinent part, as follows:
TERM NOTE CONVERSION OPTION. At any time prior to the
Bank demanding payment of this Note, the Bank may, at its option
(the "Conversion Option") upon written notice to the Borrower, in
its sole and unfettered discretion, terminate its obligation, if any, to
make advances to the Borrower and convert this Note to a term
note effective as of the next Scheduled Payment Date (the
"Conversion Date") with up to 60 months (the "Number of
Scheduled Payments") scheduled monthly installments of principal
and interest commencing on the scheduled payment date in the
month following the Conversion Date. The Number of Scheduled
Payments shall be determined by the Bank in its sole and
unfettered discretion. In the event the Bank shall exercise the
Conversion Option, this Note will convert from a Demand Note to
a Term Note and the maturity date of this Note shall be the last
scheduled payment date (the "Maturity Date") calculated by the
Bank, in its sole and unfettered discretion, based on the Number of
Scheduled Payments, and all amounts outstanding respecting this
Note shall be due and payable on the Maturity Date.
"B,"
See Exhibit Page 2.
10. In order to induce the Plaintiff to enter into the Loan Agreement and extend the
LOC to the Borrower, the Guarantor executed and delivered a Commercial Guaranty dated
August 2, 2019 (the "Guaranty"), pursuant to which the Guarantor guaranteed to Plaintiff the
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payment and performance of all of the Borrower's obligations to the Plaintiff. Annexed hereto
"C"
as Exhibit is a true and complete copy of the Guaranty.
11. In order to further induce the Plaintiff to enter into the Loan Agreement and
extend the LOC to the Borrower, the Borrower executed and delivered to Plaintiff a certain
Commercial Security Agreement dated as of August 2, 2019 (the "Security Agreement")
pursuant to which Borrower granted to Plaintiff a security interest in, and a lien on and pledge
and assignment of all of Borrower's assets (the "Collateral") to Plaintiff. Annexed hereto as
"D"
Exhibit is a true and complete copy of the Security Agreement.
12. The Plaintiff perfected its security interest in the Collateral by duly filing a UCC-
1 Financing Statement with the Office of the Secretary of State of the State of New York on
"201908136034277"
August 13, 2019, bearing Filing No. and continued thereafter pursuant to a
"20240314537172"
UCC-3 Continuation Statement filed on March 14, 2024, bearing Filing No.
"E"
(collectively, the "U_CC"). Annexed hereto as Exhibit is a true and complete copy of the
UCC.
13. On or about July 12, 2022, pursuant to a written letter to the Borrower, Plaintiff
notified the Borrower that Plaintiff elected to exercise the Conversion Option with respect to the
LOC, effective August 11, 2022 (the "Conversion Date"), and the Borrower would no longer be
Notice,"
able to draw any advances under the LOC (the "Term Note Conversion together with
the Loan Agreement, the Note, the Security Agreement, the UCC and the Guaranty, are
"F"
collectively referred to herein as the "Loan Documents"). Annexed hereto as Exhibit is a
true and complete copy of the Term Note Conversion Notice.
14. Pursuant to the Term Note Conversion Notice, on the Conversion Date, the
aggregate principal balance outstanding under the Note would bear interest at a fixed per annum
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rate of 7.24% per annum pursuant to the terms and conditions of the Note (the "Term Note
Conversion Interest Rate"). See Exhibit "F".
15. The Term Note Conversion Notice further provided that the new monthly
payment would be approximately $1,697.06 with the first payment using the Term Note
Conversion Interest Rate due on September 11, 2022. See Exhibit "F".
16. The Plaintiff is the holder and owner of the Loan Documents.
THE DEFAULT UNDER THE LOAN DOCUMENTS
17. The Defendants have defaulted under the terms of Loan Documents as a result of,
inter alia, a payment default pursuant to the Loan Documents on December 11, 2023, and
continuing thereafter (collectively, the "Event of Default").
18. By letter dated March 22, 2024 (the "Default Letter"), the Plaintiff, through its
counsel, notified the Defendants of the Event of Default, accelerated the outstanding balance due
"G"
and demanded 15ayment. Annexed hereto as Exhibit is a true and complete copy of-the
Default Letter.
19. Despite Plaintiff's demand, the Defendants have failed to pay the outstanding
amounts due and owing pursuant to the Loan Documents.
20. The amount due and outstanding to the Plaintiff pursuant to the Loan Documents
as of March 18, 2024, is as follows:
Principal: $74,664.32
Interest: $1,916.62
Late Fees: $305.55
Termination Fee: $20.00
Total as of March 18, 2024: $76,906.49
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AS AND FOR A FIRST CAUSE OF ACTION
AGAINST THE BORROWER FOR BREACH OF CONTRACT
21. The Plaintiff repeats and realleges each and every allegation contained in
"1" "20"
Paragraphs numbered through above as if fully set forth at length herein.
22. The Note executed by the Borrower represents an unconditional instrument for
the payment of money only, which is due and payable and to which no genuine defense exists.
23. The Note has not been altered, modified, or revoked in whole or in part, is
incontestable, and remains in full force and effect.
24. The Borrower has defaulted under the Note as a result of the Event of Default.
25. By virtue of the foregoing, the Borrower is liable to the Plaintiff on an
unconditional instrument for the payment of money only in the principal amount of $74,664.32,
plus interest accrued thereon through March 18, 2024 in the amount of $1,916.62, together with
interest from March 18, 2024 accruing thereon at the Default Rate, plus late fees in the amount
of $305.55 through March 18, 2024, plus a termination fee in the amount of $20.00 through
March 18, 2024, together with other charges and fees subsequent to March 18, 2024 to the date
attorneys'
of entry of the judgment herein, plus reasonable and actual fees, costs and expenses.
AS AND FOR A SECOND CAUSE OF ACTION
AGAINST THE BORROWER FOR AN ACCOUNT STATED
26. The Plaintiff repeats and realleges each and every allegation contained in
"1" "25"
Paragraphs numbered through above as if fully set forth at length herein.
27. The Plaintiff duly rendered periodic statements of account with regard to the LOC
to the Borrower, which statements were received by the Borrower in the ordinary course of its
business.
28. The Borrower never objected or protested any such statements or any item
contained therein, as was its duty and obligation if any error existed.
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29. By virtue of the above, an account stated has been taken between the Plaintiff and
the Borrower on the LOC, whereby the Borrower has admitted and acknowledged the debt as
accurate and correct in all respects.
30. The Borrower, therefore, is liable to the Plaintiff on an account stated in the
principal amount of $74,664.32, plus interest accrued thereon through March 18, 2024 in the
amount of $1,916.62, together with interest from March 18, 2024 accruing thereon at the Default
Rate, plus late fees in the amount of $305.55 through March 18, 2024, plus a termination fee in
the amount of $20.00 through March 18, 2024, together with other charges and fees subsequent
to March 18, 2024 to the date of entry of the judgment herein, plus reasonable and actual
attorneys'
fees, costs and expenses.
AS AND FOR A THIRD CAUSE OF ACTION AGAINST THE BORROWER
FOR UNJUST ENRICHMENT
31. The Plaintiff repeats and realleges each and every allegation contained in
"1" "30"
Paragraphs numbered through above as if fully set forth at length herein.
32. The Borrower utilized and enjoyed the proceeds of the LOC and failed to pay
amounts due and owing despite the Borrower's demand.
33. As a consequence, the Borrower has been unjustly enriched by its retention of the
amounts outstanding under the LOC.
34. By reason of the foregoing, the Borrower is l
Preview
FILED: KINGS COUNTY CLERK 04/23/2024 09:19 AM INDEX NO. 511529/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 File No.: 1281-N1229 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------x Index No. TD BANK, N.A., Date Purchased: Plaintiff designates Kings Plaintiff, County as the place of trial. SUMMONS -against- Plaintiff's address: 9000 Atrium Way PRIME HEATING NY INC. and Mt. Laurel, NJ 08054 ABRAHAM KOENIG, Basis of Venue: Defendants' Place of Defendants. Business/Residence ___-___________--------------____-..---.._________-------____--____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 Plaintiffs counsel(s) within 20 days after the service of this Summons, exclusive of the day of service (or within 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, Judgment will be taken against you by default for the relief demanded in the Complaint. Dated: New Yo , New York April , 2024 PLATZER, SWERGOLD, GOLDBERG, KATZ & JASLOW, LLP Counsel for Pl intiff By: . k , Ter sa Sadutto-Carley, Esq. 18th 47 Park Avenue South, PlOOr New York, New York 10016 (212) 593-3000 tsadulto platzerlaw.com Addresses of Defendants: PRIME HEATING NY INC. 16" 5314 Avenue Brooklyn, New York 11204 ABRAHAM KOENIG 60th 1865 Street Brooklyn, New York 11204 -and- 58th 2154 Street Brooklyn, New York 11204 G:\wpdocs\working\COMMERCI\TD Bank\Prime Heating NY Inc\S&C.doc 1 of 15 FILED: KINGS COUNTY CLERK 04/23/2024 09:19 AM INDEX NO. 511529/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 File No,: 1281-N1229 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS __________________________-______________________----____----Ç TD BANK, N.A., Index No. Plaintiff, -against- VERIFIED COMPLAINT PRIME HEATING NY INC. and ABRAHAM KOENIG, Defendants. __________________________________________________________________Ç Plaintiff, TD BANK, N.A. ("Plaintiff"), by its attorneys, Platzer, Swergold, Goldberg, Katz & Jaslow, LLP, as and for its verified complaint, alleges as follows: THE PARTIES 1. Plaintiff is, and at all times hereinafter mentioned was, a national bank organized and existing under and by virtue of the laws of the United States of America, with a place of business located at 9000 Atrium Way, Mt. Laurel, New Jersey 08054. 2. Upon information and belief, defendant, PRIME HEATING NY INC. (the "Borrower"), is and at all times hereinafter mentioned was a domestic business corporation organized and existing under the laws of the State of New York, with its principal office located 16" at 5314 Avenue, Brooklyn, New York 11204. 3. Upon information and belief, defendant, ABRAHAM KOENIG (the "Guarantor," together with the Borrower, shall collectively be referred herein as the "Defendants"), is and at all times hereinafter mentioned was, and is, an individual residing and 58* 60* domiciled at 2154 Street, Brooklyn, New York 11204 and/or 1865 Street, Brooklyn, New York 11204. 2 2 of 15 FILED: KINGS COUNTY CLERK 04/23/2024 09:19 AM INDEX NO. 511529/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 THE LOAN DOCUMENTS 4. Pursuant to a certain Business Loan Agreement dated as of August 2, 2019, between Borrower and Plaintiff (the "Loan Agreement"), Borrower executed and delivered to Plaintiff a certain Promissory Note dated as of August 2, 2019 (the "Note") in the principal amount of Eighty-Five Thousand and 00/100 Dollars ($85,000.00) (the "LOC") whereby the Plaintiff agreed to make advances to Borrower up to the principal amount of the LOC. Annexed "A" hereto as Exhibit is a true and complete copy of the Loan Agreement and annexed hereto as "B" Exhibit is a true and complete copy of the Note. 5. Pursuant to the Note, the interest rate to be applied to the unpaid principal balance under the Note is a rate of 1.490 percentage points over the Index (as defined in the Note) per "B," annum (the "Interest Rate"). See Exhibit Page 1. However, the Interest Rate on the Note would not be less than 5.250 % per annum or more than the maximum rate allowed by applicable "B," law. See Exhibit Page 1. 6. The Note further provides, in pertinent part, the following: ATTORNEYS' FEES; EXPENSES. Borrower agrees to pay all costs and expenses Lender incurs to collect this Note. This includes, subject to any limits under applicable law, Lender's attorneys' reasonable fees and Lender's legal expenses whether or attorneys' not there is a lawsuit, including reasonable fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. "B," See Exhibit Page 1. 7. Pursuant to the Note, the default rate of interest ("the "Default Rate") applicable to the LOC is as follows: INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this Note shall be increased to 18.000% per annum based on a year of 360 days. 3 3 of 15 FILED: KINGS COUNTY CLERK 04/23/2024 09:19 AM INDEX NO. 511529/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law. "B," See Exhibit Page 1. 8. The Note further provides, in pertinent part, as follows: LATE CHARGE. If a regularly scheduled interest payment is 15 days or more late, Borrower will be charged 6.000% of the unpaid portion of the regularly scheduled payment. If Lender demands payment of this loan, and Borrower does not pay the loan in full within 15 days after Lender's demand, Borrower also will be charged 6.000% of the unpaid portion of the sum of the unpaid principal plus accrued unpaid interest. "B," See Exhibit Page 1. 9. The Note further provides, in pertinent part, as follows: TERM NOTE CONVERSION OPTION. At any time prior to the Bank demanding payment of this Note, the Bank may, at its option (the "Conversion Option") upon written notice to the Borrower, in its sole and unfettered discretion, terminate its obligation, if any, to make advances to the Borrower and convert this Note to a term note effective as of the next Scheduled Payment Date (the "Conversion Date") with up to 60 months (the "Number of Scheduled Payments") scheduled monthly installments of principal and interest commencing on the scheduled payment date in the month following the Conversion Date. The Number of Scheduled Payments shall be determined by the Bank in its sole and unfettered discretion. In the event the Bank shall exercise the Conversion Option, this Note will convert from a Demand Note to a Term Note and the maturity date of this Note shall be the last scheduled payment date (the "Maturity Date") calculated by the Bank, in its sole and unfettered discretion, based on the Number of Scheduled Payments, and all amounts outstanding respecting this Note shall be due and payable on the Maturity Date. "B," See Exhibit Page 2. 10. In order to induce the Plaintiff to enter into the Loan Agreement and extend the LOC to the Borrower, the Guarantor executed and delivered a Commercial Guaranty dated August 2, 2019 (the "Guaranty"), pursuant to which the Guarantor guaranteed to Plaintiff the 4 4 of 15 FILED: KINGS COUNTY CLERK 04/23/2024 09:19 AM INDEX NO. 511529/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 payment and performance of all of the Borrower's obligations to the Plaintiff. Annexed hereto "C" as Exhibit is a true and complete copy of the Guaranty. 11. In order to further induce the Plaintiff to enter into the Loan Agreement and extend the LOC to the Borrower, the Borrower executed and delivered to Plaintiff a certain Commercial Security Agreement dated as of August 2, 2019 (the "Security Agreement") pursuant to which Borrower granted to Plaintiff a security interest in, and a lien on and pledge and assignment of all of Borrower's assets (the "Collateral") to Plaintiff. Annexed hereto as "D" Exhibit is a true and complete copy of the Security Agreement. 12. The Plaintiff perfected its security interest in the Collateral by duly filing a UCC- 1 Financing Statement with the Office of the Secretary of State of the State of New York on "201908136034277" August 13, 2019, bearing Filing No. and continued thereafter pursuant to a "20240314537172" UCC-3 Continuation Statement filed on March 14, 2024, bearing Filing No. "E" (collectively, the "U_CC"). Annexed hereto as Exhibit is a true and complete copy of the UCC. 13. On or about July 12, 2022, pursuant to a written letter to the Borrower, Plaintiff notified the Borrower that Plaintiff elected to exercise the Conversion Option with respect to the LOC, effective August 11, 2022 (the "Conversion Date"), and the Borrower would no longer be Notice," able to draw any advances under the LOC (the "Term Note Conversion together with the Loan Agreement, the Note, the Security Agreement, the UCC and the Guaranty, are "F" collectively referred to herein as the "Loan Documents"). Annexed hereto as Exhibit is a true and complete copy of the Term Note Conversion Notice. 14. Pursuant to the Term Note Conversion Notice, on the Conversion Date, the aggregate principal balance outstanding under the Note would bear interest at a fixed per annum 5 5 of 15 FILED: KINGS COUNTY CLERK 04/23/2024 09:19 AM INDEX NO. 511529/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 rate of 7.24% per annum pursuant to the terms and conditions of the Note (the "Term Note Conversion Interest Rate"). See Exhibit "F". 15. The Term Note Conversion Notice further provided that the new monthly payment would be approximately $1,697.06 with the first payment using the Term Note Conversion Interest Rate due on September 11, 2022. See Exhibit "F". 16. The Plaintiff is the holder and owner of the Loan Documents. THE DEFAULT UNDER THE LOAN DOCUMENTS 17. The Defendants have defaulted under the terms of Loan Documents as a result of, inter alia, a payment default pursuant to the Loan Documents on December 11, 2023, and continuing thereafter (collectively, the "Event of Default"). 18. By letter dated March 22, 2024 (the "Default Letter"), the Plaintiff, through its counsel, notified the Defendants of the Event of Default, accelerated the outstanding balance due "G" and demanded 15ayment. Annexed hereto as Exhibit is a true and complete copy of-the Default Letter. 19. Despite Plaintiff's demand, the Defendants have failed to pay the outstanding amounts due and owing pursuant to the Loan Documents. 20. The amount due and outstanding to the Plaintiff pursuant to the Loan Documents as of March 18, 2024, is as follows: Principal: $74,664.32 Interest: $1,916.62 Late Fees: $305.55 Termination Fee: $20.00 Total as of March 18, 2024: $76,906.49 6 6 of 15 FILED: KINGS COUNTY CLERK 04/23/2024 09:19 AM INDEX NO. 511529/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 AS AND FOR A FIRST CAUSE OF ACTION AGAINST THE BORROWER FOR BREACH OF CONTRACT 21. The Plaintiff repeats and realleges each and every allegation contained in "1" "20" Paragraphs numbered through above as if fully set forth at length herein. 22. The Note executed by the Borrower represents an unconditional instrument for the payment of money only, which is due and payable and to which no genuine defense exists. 23. The Note has not been altered, modified, or revoked in whole or in part, is incontestable, and remains in full force and effect. 24. The Borrower has defaulted under the Note as a result of the Event of Default. 25. By virtue of the foregoing, the Borrower is liable to the Plaintiff on an unconditional instrument for the payment of money only in the principal amount of $74,664.32, plus interest accrued thereon through March 18, 2024 in the amount of $1,916.62, together with interest from March 18, 2024 accruing thereon at the Default Rate, plus late fees in the amount of $305.55 through March 18, 2024, plus a termination fee in the amount of $20.00 through March 18, 2024, together with other charges and fees subsequent to March 18, 2024 to the date attorneys' of entry of the judgment herein, plus reasonable and actual fees, costs and expenses. AS AND FOR A SECOND CAUSE OF ACTION AGAINST THE BORROWER FOR AN ACCOUNT STATED 26. The Plaintiff repeats and realleges each and every allegation contained in "1" "25" Paragraphs numbered through above as if fully set forth at length herein. 27. The Plaintiff duly rendered periodic statements of account with regard to the LOC to the Borrower, which statements were received by the Borrower in the ordinary course of its business. 28. The Borrower never objected or protested any such statements or any item contained therein, as was its duty and obligation if any error existed. 7 7 of 15 FILED: KINGS COUNTY CLERK 04/23/2024 09:19 AM INDEX NO. 511529/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/23/2024 29. By virtue of the above, an account stated has been taken between the Plaintiff and the Borrower on the LOC, whereby the Borrower has admitted and acknowledged the debt as accurate and correct in all respects. 30. The Borrower, therefore, is liable to the Plaintiff on an account stated in the principal amount of $74,664.32, plus interest accrued thereon through March 18, 2024 in the amount of $1,916.62, together with interest from March 18, 2024 accruing thereon at the Default Rate, plus late fees in the amount of $305.55 through March 18, 2024, plus a termination fee in the amount of $20.00 through March 18, 2024, together with other charges and fees subsequent to March 18, 2024 to the date of entry of the judgment herein, plus reasonable and actual attorneys' fees, costs and expenses. AS AND FOR A THIRD CAUSE OF ACTION AGAINST THE BORROWER FOR UNJUST ENRICHMENT 31. The Plaintiff repeats and realleges each and every allegation contained in "1" "30" Paragraphs numbered through above as if fully set forth at length herein. 32. The Borrower utilized and enjoyed the proceeds of the LOC and failed to pay amounts due and owing despite the Borrower's demand. 33. As a consequence, the Borrower has been unjustly enriched by its retention of the amounts outstanding under the LOC. 34. By reason of the foregoing, the Borrower is l