Preview
FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024
File No. 1226-n1510
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No.
SANTANDER BANK, N.A., Date Purchased:
Plaintiff, SUMMONS
-against- Plaintiff’s Address
200 Liberty Street
HIDDEN OWL LLC d/b/a LAVITTA’S and JIMMY New York, New York 10281-
MARITON THOMAS, 1003
Defendants. Basis of Venue:
Corporate Defendant’s
Place of Business and
Individual Defendant’s
Residence.
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 plaintiff's Attorney(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 York, New York
April 16, 2024
PLATZER, SWERGOLD, GOLDBERG,
KATZ & JASLOW, LLP
By: /s/ Sydney Myones
Sydney Myones
475 Park Avenue South, 18th Floor
New York, New York 10016
Tel.: (212) 593-3000
Counsel for Plaintiff, Santander Bank, N.A.
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Defendants’ Addresses:
HIDDEN OWL LLC d/b/a LAVITTA’S
218 Lennox Avenue
New York, New York 10027-6444
JIMMY MARITON THOMAS
129 West 81st Street, Apartment 4
New York, New York 10024-7207
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No.
SANTANDER BANK, N.A.,
Plaintiff,
VERIFIED COMPLAINT
-against-
HIDDEN OWL LLC d/b/a LAVITTA’S and JIMMY
MARITON THOMAS,
Defendants.
Plaintiff, SANTANDER BANK, N.A. (“Santander” or “Plaintiff”), by its attorneys,
Platzer, Swergold, Goldberg, Katz & Jaslow, LLP, as and for its verified complaint, alleges as
follows:
I. THE PARTIES
1. Plaintiff is, and at all times hereinafter mentioned was, a national banking
association organized and existing under and by virtue of the laws of the United States of America,
with a place of business located at 200 Liberty Street, New York, New York 10281-1003.
2. Upon information and belief, defendant, HIDDEN OWL LLC d/b/a LAVITTA’S
(the “Borrower”), is, and at all times hereinafter mentioned was, a domestic limited liability
company organized and existing under the laws of the State of New York, with a place of business
located at 218 Lennox Avenue, New York, New York 10027-6444.
3. Upon information and belief, defendant, JIMMY MARITON THOMAS (the
“Guarantor” and jointly with the Borrower, the “Defendants”), is, and at all times hereinafter
mentioned was, an individual residing and domiciled 129 West 81st Street, Apartment 4, New
York, New York 10024-7207.
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II. RELEVANT FACTS
A. The 07 Note
4. On or about October 24, 2022, the Borrower executed a certain Promissory Note in
favor of the Plaintiff in the principal sum of Eighty Thousand Dollars ($80,000.00) (the “07
Note”), whereby the Plaintiff agreed to make a certain loan to the Borrower (the “07 Loan”) in
said amount. Annexed hereto as Exhibit “A” is a true and complete copy of the 07 Note.
5. Under the terms and conditions of the 07 Note, the Borrower agreed to remit certain
payments to the Plaintiff as follows:
ADVANCE PERIOD: The Advance Period shall commence with the date
of this Note and shall expire on October 24, 2027. During the Advance
Period, Borrower will make sixty (60) monthly payments of accrued unpaid
interest as of each payment due date. Borrower’s first payment is due on
month from the date of this Note, with all subsequent payments due during
both the Advance Period and the Conversion Period on the same day of each
month thereafter.
CONVERSION PERIOD: Effective October 24, 2027, the outstanding
principal balance of this Note shall be converted to a five (5) year fully
amortizing term loan (the “Conversion Period”). Beginning with payment
due on November 24, 2027, Borrower will make sixty (60) consecutive
monthly payments of principal and interest, and such monthly payment
amounts when aggregated shall be sufficient to repay this Note in full within
those sixty (60) months. Notwithstanding the foregoing, the final payment
of all outstanding principal, together with all accrued unpaid interest, late
fees and unpaid loan charges, if any, will be due and payable in full on
October 26, 2032 (the “Maturity Date”) without notice or demand….
(See Exhibit “A”, Page “1”, Paragraph entitled “Payment Terms”)
6. As set forth within the 07 Note,
INITIAL INTEREST RATE: The initial interest rate of this Note is
12.25%. This initial interest rate is based on the Index in effect on the first
business day of the month in which SBA received the completed loan
application, plus 6.00%. The first interest rate adjustment may occur on the
first calendar day of the month following initial disbursement, using the
Index in effect the first business day of the month, plus 6.00 percentage
points (Index + 6.00%).
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VARIABLE INTEREST RATE: Beginning with the first interest rate
adjustment until October 24, 2027, the interest rate on this Note is subject
to change from time to time based on changes in an independent index
which is the Wall Street Journal Prime Rate (the “Index”). The Index is not
necessarily the lowest rate charged by Lender on its loans. Lender will tell
Borrower the current Index rate upon Borrower’s request. The Interest rate
adjustment period is monthly. Beginning with the first interest rate
adjustment and continuing until October 24, 2027, the interest rate
adjustment will not occur more often than each month on the 1st of the
month, and the interest rate adjustment may occur as frequently as each
month on the 1st of the month. Borrower understands that Lender may make
loans based on other rates as well. Beginning with the first interest rate
adjustment and continuing until October 24, 2027, interest on the unpaid
principal balance of this Note will be calculated as described in the
“INTEREST CALCULATION METHOD” paragraph using a rate of 6.00
percentage points over the Index (Index + 6.00%). If Lender determines in
its sole discretion, that the Index has become unavailable or unreliable,
either temporarily, indefinitely, or permanently, during the term of this
Note, Lender may amend this Note be designating a substitute index
acceptable to SBA, as determined by Lender……
See Exhibit “A”, Pages “1-2”, Paragraphs entitled “Initial Interest Rate”,
“Variable Interest Rate”.
7. Pursuant to the 07 Note, “if the payment on this Note is 10 days or more late, Lender
may charge Borrower a late fee of up to 5% of the unpaid portion of the regularly scheduled
payment.” (See Exhibit “A”, Page “2”, Paragraph entitled “Late Charge”).
8. In connection with the 07 Note, on or about October 24, 2022, the Borrower and
the Plaintiff entered into and executed a certain Business Loan Agreement (the “07 Loan
Agreement”). Annexed hereto as Exhibit “B” is a true and complete copy of the 07 Loan
Agreement.
9. Upon an Event of Default (as defined in the 07 Note)
LENDERS RIGHTS IF THERE IS A DEFAULT: Without notice or
demand and without giving up any of its rights, Lender may: (a) require
immediate payment of all amounts owing under the Note; (b) collect all
amounts owing from any Borrower or Guarantor; (c) file suit and obtain
judgment; (d) take possession of any collateral; or (e) sell, lease or
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otherwise, dispose, of, any Collateral at public or private sale, with or
without advertisement.
See Exhibit “A”, Pages “2-3”, Paragraph Entitled “Lender’s Rights If There Is A
Default”.
10. In connection with the 07 Note and as partial consideration for same, on or about
October 24, 2022, the Plaintiff and the Borrower entered into and executed a certain Commercial
Security Agreement (the “07 Security Agreement” and collectively with the 07 Note, the 07 Loan
Agreement and all other documents executed in conjunction therewith, the “07 Loan
Documents”). Annexed hereto as Exhibit “C” is a true and complete copy of the 07 Loan Security
Agreement.
11. Pursuant to the 07 Security Agreement, the Borrower granted the Plaintiff a security
interest in all of the Borrower’s assets and property (collectively, the “Collateral”). (See Exhibit
“C”, 07 Security Agreement, Page “1”, Paragraphs entitled “Grant of Security Interest” and
“Collateral Description”).
12. The Plaintiff duly perfected its first priority lien and senior security interest in the
Collateral by filing a UCC-1 Financing Statement against the Borrower with the New York
Secretary of State on December 02, 2022 (the “07 UCC”). Annexed hereto as Exhibit “D” is a
true and complete copy of the 07 UCC.
B. The 05 Note
13. On or about October 24, 2022, the Borrower executed a certain Promissory Note
in favor of the Plaintiff in the principal sum of One-Hundred Fifty-One Thousand Dollars
($151,000.00) (the “05 Note” and jointly with the 07 Note, the “Notes”) whereby the Plaintiff
agreed to make a certain loan to the Borrower (the “05 Loan” together the 07 Loan, the “Loans”)
in said amount. Annexed hereto as Exhibit “E” is a true and complete copy of the 05 Note.
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14. Under the terms and conditions of the 05 Note, the Borrower agreed to remit certain
payments to the Plaintiff as follows:
“The term of this Note shall not exceed seven (7) years. Borrower will make
eighty-three (83) equal monthly payments of principal and interest in the
amount of $2,630.08 based on a fixed rate of 11.55% (the “05 Interest
Rate”). Borrower’s first payment is due one month from the date of this
Note, with all subsequent payments to be due and payable on the same day
of each month thereafter. One final payment of all outstanding principal,
together with accrued unpaid interest, late fees and unpaid loan charges, if
any, will be due and payable in full on October 24, 2029 (the “Maturity
Date”).
(See Exhibit “E”, 05 Note, Page “1”, Paragraph entitled “Payment”).
15. In connection with the 05 Note, on or about October 24, 2022, the Borrower and
the Plaintiff entered into and executed a certain Business Loan Agreement (the “05 Loan
Agreement”). Annexed hereto as Exhibit “F” is a true and complete copy of the 05 Loan
Agreement.
16. Upon the occurrence of an Event of Default (as defined in the 05 Note), the
Borrower agreed to remit to Plaintiff, inter alia, the entire unpaid principal balance and all accrued
and unpaid interest due under the 05 Note. (See Exhibit “E”, Page “1”, Paragraph Entitled
“Lender’s Rights”).
17. Pursuant to the 05 Note, the Borrower agreed to pay all expenses including
reasonable attorneys’ fees incurred in pursuing any payment due to the Plaintiff. (Exhibit “E”,
Page “1”, Paragraph entitled “Attorneys’ Fees; Expenses”).
18. In connection with the 05 Note and as partial consideration for same, on or about
October 24, 2022, the Plaintiff and the Borrower entered into and executed a certain Commercial
Security Agreement (the “05 Security Agreement” and collectively with the 05 Note, the 05 Loan
Agreement and all other documents executed in conjunction therewith, the “05 Documents” and
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collectively with the 07 Loan Documents, the “Loan Documents”). Annexed hereto as Exhibit
“G” is a true and complete copy of the 05 Security Agreement.
19. As with the 07 Security Agreement, pursuant to the provisions of the 05 Security
Agreement, the Borrower further granted the Plaintiff a security interest in the Collateral. (See
Exhibit “G”, 05 Security Agreement. Page “1”, Paragraphs entitled “Grant of Security Interest”
and “Collateral Description”).
20. The Plaintiff duly perfected its first priority lien and senior security interest in the
Collateral by filing a UCC-1 Financing Statement against the Borrower with the New York
Secretary of State on November 02, 2022 (the “05 UCC” and collectively with the 07 UCC the
“UCCs”). Annexed hereto as Exhibit “H” is a true and complete copy of the 05 UCC.
C. The Guarantees
21. On or about October 24, 2022, as consideration for and to induce the Plaintiff to
continue to make the Loans to the Borrower, the Guarantor executed certain commercial
guarantees (collectively, the “Guarantees” and each a “Guaranty”). Annexed collectively hereto
as Exhibit “I” are true and complete copies of the Guarantees.
22. Pursuant to the provisions of each of the Guarantees, the Guarantor:
“…absolutely and unconditionally guarantee[d] full and punctual payment
and satisfaction of the Indebtedness of Borrower to Lender [Plaintiff]…”
(See Exhibit “I”, Pages Numbered “1”, Paragraphs entitled “Continuing
Guarantee of Payment and Performance”).
23. “Indebtedness” is defined under the Guarantees as:
“…all of the principal amount outstanding from time to time and at any one or
more times, accrued unpaid interest thereon and all collection costs and legal
expenses related thereto permitted by law, reasonable attorneys’ fees, arising
from any and all debts, liabilities and obligations of every nature or form, now
existing or hereafter arising or acquired, that Borrower individually or
collectively or interchangeably with others, owes or will owe Lender.
“Indebtedness” includes, without limitation, loans, advances, debts, overdraft
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indebtedness, credit card indebtedness, lease obligations…”
(See Exhibit “I”, Pages Numbered “1”, Paragraphs entitled “Indebtedness”).
24. As a result of the Borrower’s default under the Notes (as described immediately
below), the Guarantor is jointly and severally liable with the Borrower to the Plaintiff for the
outstanding amounts due thereunder.
D. The Plaintiff’s Demand Made Upon Defendants and the Borrower’s Breaches
of the Notes and Loan Documents
25. The Borrower defaulted under both Notes and the Loan Documents based upon,
inter alia, its failure to remit the required monthly payments due to Plaintiff under both Notes on
or about October 24, 2023, and continuing thereafter.
26. By letter dated November 09, 2023, Plaintiff advised Defendant of the forgoing
default under the Loan Documents (“Notice of Default”). Annexed hereto as Exhibit “J” is a
true and complete copy of Plaintiff’s Notice of Default.
27. By letter dated March 27, 2024, the Plaintiff, by its counsel, advised the Defendants
of the forgoing default and demanded that the Defendants remit all accelerated and outstanding
sums due thereunder. Annexed hereto as Exhibit “K” is a true and complete copy of the forgoing
letter.
28. Despite the Plaintiff’s demand, the Defendants have failed to remit the outstanding
and unpaid sums due under the Notes.
29. By virtue of the foregoing, the Borrower is liable to the Plaintiff, on an
unconditional instrument for the payment of money under the 07 Note, as of March 26, 2024 in
the principal sum of $79,850.00 plus accrued and unpaid interest through said date in the amount
of $5,836.71 plus accrued late fees through said date in the amount of $49.18 plus interest
continuing to accrue from said date plus late charges continuing to accrue from said date plus costs,
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expenses and attorneys’ fees and all other charges and the costs and expenses of this Action
(collectively, the “07 Indebtedness”).
30. By virtue of the foregoing, the Borrower is liable to the Plaintiff, on an
unconditional instrument for the payment of money under the 05 Note as of March 26, 2024 in the
principal sum of $138,649.92 plus accrued and unpaid interest through said date in the amount of
$6,851.42 plus accrued late fees through said date in the amount of $263.00 plus interest
continuing to accrue from said date plus late charges continuing to accrue from said date plus costs,
expenses and attorneys’ fees and all other charges and the costs and expenses of this Action
(collectively, the “05 Indebtedness” together with 07 Indebtedness, the “Indebtedness”).
AS AND FOR A FIRST CAUSE OF ACTION
AGAINST BORROWER
(Breach of the 07 Loan Documents)
31. The Plaintiff repeats, realleges and reiterates each and every allegation contained
in Paragraphs numbered “1” through “30” above as if fully set forth at length herein.
32. The 07 Loan Documents constitute valid and enforceable agreements and the 07
Note constitutes an unconditional instrument for the payment of money.
33. The Plaintiff has fully complied with and fully performed all of its obligations under
the 07 Note and the 07 Loan Documents.
34. As set forth above, the Borrower defaulted under the 07 Note based upon, inter
alia, its failure to remit the required monthly payments due to Plaintiff thereunder on or about
October 24, 2023 and continuing thereafter.
35. The Borrower has failed and refused to pay the accelerated and outstanding
balances due under the 07 to date despite the Plaintiff’s demand for same.
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36. By virtue of the foregoing, the Borrower is liable to the Plaintiff, on an
unconditional instrument for the payment of money under the 07 Note, as of March 26, 2024 in the
principal sum of $79,850.00 plus accrued and unpaid interest through said date in the amount of
$5,836.71 plus accrued late fees through said date in the amount of $49.18 plus interest continuing
to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses
and attorneys’ fees and all other charges and fees and the costs and expenses of this Action.
AS AND FOR A SECOND CAUSE OF ACTION
AGAINST BORROWER
(Account Stated-07 Note)
37. The Plaintiff repeats, realleges and reiterates each and every allegation contained
in Paragraphs numbered “1” through “36” above as if fully set forth at length herein.
38. The Plaintiff duly rendered periodic statements of account with regard to the 07
Note, which statements were received by the Borrower in the ordinary course of business.
39. The Borrower never objected or protested any such statements or any item
contained therein, as was its duty and obligation if any error existed.
40. By virtue of the above, an account stated has been taken between the Plaintiff and
the Borrower on the 07 Note, whereby the Borrower has admitted and acknowledged the debts as
accurate and correct in all respects.
41. As a result of the foregoing, Plaintiff has stated an account with the Borrower with
respect to the 07 Note as of March 26, 2024 in the principal sum of $79,850.00 plus accrued and
unpaid interest through said date in the amount of $5,836.71 plus accrued late fees through said
date in the amount of $49.18 plus interest continuing to accrue from said date plus late charges
continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges
and fees and the costs and expenses of this Action.
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AS AND FOR A THIRD CAUSE OF ACTION
AGAINST THE DEFENDANTS
(Unjust Enrichment- 07 Note)
42. The Plaintiff repeats, realleges and reiterates each and every allegation contained
in Paragraphs numbered “1” through “41” above as if fully set forth at length herein.
43. The Defendants utilized and/or benefitted from the funds subject of the 07 Note.
44. The Defendants failed to pay the amounts due and owing to the Plaintiff under the
07 Note despite its demand for same.
45. As a result, the Defendants have been unjustly enriched and are jointly and
severally liable to the Plaintiff as of March 26, 2024 in the principal sum of $79,850.00 plus
accrued and unpaid interest through said date in the amount of $5,836.71 plus accrued late fees
through said date in the amount of $49.18 plus interest continuing to accrue from said date plus
late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all
other charges and fees and the costs and expenses of this Action.
AS AND FOR A FOURTH CAUSE OF ACTION
AGAINST BORROWER
(Breach of the 05 Note and the 05 Loan Documents)
46. The Plaintiff repeats, realleges and reiterates each and every allegation contained
in Paragraphs numbered “1” through “45” above as if fully set forth at length herein.
47. The 05 Loan Documents constitute valid and enforceable agreements and the 05
Note constitutes an unconditional instrument for the payment of money.
48. The Plaintiff has fully complied with and fully performed all of its obligations under
the 05 Note and the 05 Loan Documents.
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49. As set forth above, the Borrower defaulted under the 05 Note based upon, inter
alia, its failure to remit the required monthly payments due to Plaintiff thereunder on or about
October 24, 2023 and continuing thereafter.
50. The Borrower has failed and refused to pay the accelerated and outstanding
balances due under the 05 Note to date despite the Plaintiff’s demand for same.
51. By virtue of the foregoing, the Borrower is liable to the Plaintiff, on an
unconditional instrument for the payment of money under the 05 Note, as of March 26, 2024 in
the principal sum of $138,649.92 plus accrued and unpaid interest through said date in the amount
of $6,851.42 plus accrued late fees through said date in the amount of $263.00 plus interest
continuing to accrue from said date plus late charges continuing to accrue from said date plus costs,
expenses and attorneys’ fees and all other charges and the costs and expenses of this Action.
AS AND FOR A FIFTH CAUSE OF ACTION
AGAINST BORROWER
(Account Stated-05 Note)
52. The Plaintiff repeats, realleges and reiterates each and every allegation contained
in Paragraphs numbered “1” through “51” above as if fully set forth at length herein.
53. The Plaintiff duly rendered periodic statements of account with regard to the 05
Note, which statements were received by the Borrower in the ordinary course of business..
54. The Borrower never objected or protested any such statements or any item
contained therein, as was its duty and obligation if any error existed.
55. By virtue of the above, an account stated has been taken between the Plaintiff and
the Borrower on the 05 Note, whereby the Borrower has admitted and acknowledged the debts as
accurate and correct in all respects.
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56. As a result of the foregoing, Plaintiff has stated an account with the Borrower with
respect to the 05 Note, as of March 26, 2024 in the principal sum of $138,649.92 plus accrued and
unpaid interest through said date in the amount of $6,851.42 plus accrued late fees through said
date in the amount of $263.00 plus interest continuing to accrue from said date plus late charges
continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges
and the costs and expenses of this Action.
AS AND FOR A SIXTH CAUSE OF ACTION
AGAINST THE DEFENDANTS
(Unjust Enrichment- 05 Note)
57. The Plaintiff repeats, realleges and reiterates each and every allegation contained
in Paragraphs numbered “1” through “56” above as if fully set forth at length herein.
58. The Defendants utilized and/or benefitted from the funds subject of the 05 Note.
59. The Defendants failed to pay the amounts due and owing to the Plaintiff under the
05 Note despite its demand for same.
60. As a result, the Defendants have been unjustly enriched and are jointly and
severally liable to the Plaintiff in the outstanding and unpaid principal amount as of March 26,
2024 in the principal sum of $138,649.92 plus accrued and unpaid interest through said date in the
amount of $6,851.42 plus accrued late fees through said date in the amount of $263.00 plus interest
continuing to accrue from said date plus late charges continuing to accrue from said date plus costs,
expenses and attorneys’ fees and all other charges and the costs and expenses of this Action.
AS AND FOR A SEVENTH CAUSE OF ACTION
AGAINST THE GUARANTOR
(Breach of the Guaranty-Borrower’s Obligations Under the 07 Note)
61. The Plaintiff repeats, realleges and reiterates each and every allegation contained
in Paragraphs numbered “1” through “60”.
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62. The Guaranty is an unconditional instrument for the payment of money.
63. As set forth above, the Borrower defaulted under the 07 Loan Documents based
upon, inter alia, its failure to remit the required monthly payments due to Plaintiff thereunder on
or about October 24, 2023, and continuing thereafter.
64. The Plaintiff has duly demanded that the Defendants remit the accelerated and
outstanding balances due under the 07 Note but the Defendants have failed and refused to do so to
date.
65. As a result, the Guarantor is jointly and severally liable to the Plaintiff under the
Guaranty with respect to the Borrower’s obligations under the 07 Note as of March 26, 2024 in the
principal sum of $79,850.00 plus accrued and unpaid interest through said date in the amount of
$5,836.71 plus accrued late fees through said date in the amount of $49.18 plus interest continuing
to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses
and attorneys’ fees and all other charges and fees and the costs and expenses of this Action.
AS AND FOR AN EIGHTH CAUSE OF ACTION
AGAINST THE GUARANTOR
(Breach of the Guaranty-Borrower’s Obligations Under the 05 Note)
66. The Plaintiff repeats, realleges and reiterates each and every allegation contained
in Paragraphs numbered “1” through “65”.
67. The Guaranty is an unconditional instruments for the payment of money.
68. As set forth above, the Borrower defaulted under the 05 Note and 05 Loan
Documents based upon, inter alia, its failure to remit the required monthly payments due to
Plaintiff thereunder on or about October 24, 2023 and continuing thereafter.
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69. The Plaintiff has duly demanded that the Defendants remit the accelerated and
outstanding balances due under the 05 Note but the Defendants have failed and refused to do so to
date.
70. As a result, the Guarantor is jointly and severally liable to the Plaintiff under the
Guaranty with respect to the Borrower’s obligations under the 05 Note as of March 26, 2024 in
the principal sum of $138,649.92 plus accrued and unpaid interest through said date in the amount
of $6,851.42 plus accrued late fees through said date in the amount of $263.00 plus interest
continuing to accrue from said date plus late charges continuing to accrue from said date plus costs,
expenses and attorneys’ fees and all other charges and the costs and expenses of this Action.
AS AND FOR A NINTH CAUSE OF ACTION
AGAINST THE BORROWER
(For Foreclosure of a Security Interest)
71. The Plaintiff repeats, realleges and reiterates each and every allegation contained
in Paragraphs numbered “1” through “70”.
72. The 07 Security Agreement and the 05 Security Agreement (jointly, the “Security
Agreements”) each granted Plaintiff a first priority lien and security interest in all of the Collateral
as security with respect to the Borrower’s obligations to the Plaintiff under the Notes and Loan
Documents.
73. Plaintiff perfected its security interest in the Collateral by filing the UCCs.
74. Pursuant to the terms and conditions of the Security Agreements, upon the
occurrence of an Event of Default under the Notes, the Plaintiff is entitled to pursue all of the rights
and remedies available to a secured party, at law or equity, against the Borrower, including the
rights and remedies of a secured party under the Uniform Commercial Code
75. As a result of the Borrower’s defaults under the Notes and Loan Documents set
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forth herein, and its failure to pay all outstanding and unpaid sums due under the Notes, the
Plaintiff is entitled to foreclose upon the Collateral.
76. By virtue of the forgoing, Plaintiff is entitled to a judgment granting foreclosure of
its security interests in the Collateral and permitting Plaintiff to pursue the rights and remedies
provided under the Uniform Commercial Code as well as such rights and remedies available under
applicable law.
AS AND FOR A TENTH CAUSE OF ACTION
AGAINST THE BORROWER
(For an Order of Replevin)
77. The Plaintiff repeats, realleges and reiterates each and every allegation contained
in Paragraphs numbered “1” through “76”.
78. As a result of the Borrower’s defaults under the Notes and the Loan Documents,
the Plaintiff is entitled to repossess the Collateral and the immediate possession of same.
79. By reason of the foregoing, Plaintiff is entitled to an order granting it possession of
the Collateral.
WHEREFORE, the Plaintiff, demands joint and several judgment against the Defendants
awarding the Plaintiff damages and judgment as follows:
(i) on its First, and Second Causes of Action against the Borrower as of March 26,
2024 in the principal sum of $79,850.00 plus accrued and unpaid interest through
said date in the amount of $5,836.71 plus accrued late fees through said date in the
amount of $49.18 plus interest continuing to accrue from said date plus late charges
continuing to accrue from said date plus costs, expenses and attorneys’ fees and all
other charges and fees and the costs and expenses of this Action; and,
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(ii) on its Third Cause of Action against the Defendants as of March 26, 2024 in the
principal sum of $79,850.00 plus accrued and unpaid interest through said date in
the amount of $5,836.71 plus accrued late fees through said date in the amount of
$49.18 plus interest continuing to accrue from said date plus late charges continuing
to accrue from said date plus costs, expenses and attorneys’ fees and all other
charges and fees and the costs and expenses of this Action; and,
(iii) on its Fourth and Fifth Causes of Action against the Borrower as of March 26, 2024
in the principal sum of $138,649.92 plus accrued and unpaid interest through said
date in the amount of $6,851.42 plus accrued late fees through said date in the
amount of $263.00 plus interest continuing to accrue from said date plus late
charges continuing to accrue from said date plus costs, expenses and attorneys’ fees
and all other charges and the costs and expenses of this Action; and,
(iv) on its Sixth Cause of Action against the Defendants as of March 26, 2024 in the
principal sum of $138,649.92 plus accrued and unpaid interest through said date in
the amount of $6,851.42 plus accrued late fees through said date in the amount of
$263.00 plus interest continuing to accrue from said date plus late charges
continuing to accrue from said date plus costs, expenses and attorneys’ fees and all
other charges and the costs and expenses of this Action; and,
(v) on its Seventh Cause of Action against the Guarantor as of March 26, 2024 in the
principal sum of $79,850.00 plus accrued and unpaid interest through said date in
the amount of $5,836.71 plus accrued late fees through said date in the amount of
$49.18 plus interest continuing to accrue from said date plus late charges continuing
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to accrue from said date plus costs, expenses and attorneys’ fees and all other
charges and fees and the costs and expenses of this Action; and,
(vi) on its Eighth Cause of Action against the Guarantor as of March 26, 2024 in the
principal sum of $138,649.92 plus accrued and unpaid interest through said date in
the amount of $6,851.42 plus accrued late fees through said date in the amount of
$263.00 plus interest continuing to accrue from said date plus late charges
continuing to accrue from said date plus costs, expenses and attorneys’ fees and all
other charges and the costs and expenses of this Action; and,
(vii) on its Ninth and Tenth Causes of Action against the Borrower as follows:
(a) Directing the foreclosure of Plaintiff’s security interests in all of the
Borrower’s assets and personal property (previously defined as the
“Collateral”);
(b) Enjoining the Borrower and its respective servants, agents, employees,
officers, assigns, representatives and all other persons in active concert
and participation with the Borrower from moving, selling, assigning,
transferring, secreting or otherwise disposing of the Collateral;
(c) Directing the Borrower pursuant to New York Uniform Commercial
Code § 9-609 to assemble and deliver to Plaintiff possession of the
Collateral, including, but not limited to, inventory, equipment,
machinery, fixtures and furnishings, or in the alternative, make such
Collateral available to the Plaintiff at a reasonably convenient time and
place; and
(d) Issuing an order of seizure pursuant to Civil Practice Law and Rules §
7102 as to the Collateral or so much thereof which has not been
surrendered and delivered by the Borrower to Plaintiff and directing that
if the Borrower fails to assemble and deliv
Preview
FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. SANTANDER BANK, N.A., Date Purchased: Plaintiff, SUMMONS -against- Plaintiff’s Address 200 Liberty Street HIDDEN OWL LLC d/b/a LAVITTA’S and JIMMY New York, New York 10281- MARITON THOMAS, 1003 Defendants. Basis of Venue: Corporate Defendant’s Place of Business and Individual Defendant’s Residence. 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 plaintiff's Attorney(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 York, New York April 16, 2024 PLATZER, SWERGOLD, GOLDBERG, KATZ & JASLOW, LLP By: /s/ Sydney Myones Sydney Myones 475 Park Avenue South, 18th Floor New York, New York 10016 Tel.: (212) 593-3000 Counsel for Plaintiff, Santander Bank, N.A. 1 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 Defendants’ Addresses: HIDDEN OWL LLC d/b/a LAVITTA’S 218 Lennox Avenue New York, New York 10027-6444 JIMMY MARITON THOMAS 129 West 81st Street, Apartment 4 New York, New York 10024-7207 2 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. SANTANDER BANK, N.A., Plaintiff, VERIFIED COMPLAINT -against- HIDDEN OWL LLC d/b/a LAVITTA’S and JIMMY MARITON THOMAS, Defendants. Plaintiff, SANTANDER BANK, N.A. (“Santander” or “Plaintiff”), by its attorneys, Platzer, Swergold, Goldberg, Katz & Jaslow, LLP, as and for its verified complaint, alleges as follows: I. THE PARTIES 1. Plaintiff is, and at all times hereinafter mentioned was, a national banking association organized and existing under and by virtue of the laws of the United States of America, with a place of business located at 200 Liberty Street, New York, New York 10281-1003. 2. Upon information and belief, defendant, HIDDEN OWL LLC d/b/a LAVITTA’S (the “Borrower”), is, and at all times hereinafter mentioned was, a domestic limited liability company organized and existing under the laws of the State of New York, with a place of business located at 218 Lennox Avenue, New York, New York 10027-6444. 3. Upon information and belief, defendant, JIMMY MARITON THOMAS (the “Guarantor” and jointly with the Borrower, the “Defendants”), is, and at all times hereinafter mentioned was, an individual residing and domiciled 129 West 81st Street, Apartment 4, New York, New York 10024-7207. 3 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 II. RELEVANT FACTS A. The 07 Note 4. On or about October 24, 2022, the Borrower executed a certain Promissory Note in favor of the Plaintiff in the principal sum of Eighty Thousand Dollars ($80,000.00) (the “07 Note”), whereby the Plaintiff agreed to make a certain loan to the Borrower (the “07 Loan”) in said amount. Annexed hereto as Exhibit “A” is a true and complete copy of the 07 Note. 5. Under the terms and conditions of the 07 Note, the Borrower agreed to remit certain payments to the Plaintiff as follows: ADVANCE PERIOD: The Advance Period shall commence with the date of this Note and shall expire on October 24, 2027. During the Advance Period, Borrower will make sixty (60) monthly payments of accrued unpaid interest as of each payment due date. Borrower’s first payment is due on month from the date of this Note, with all subsequent payments due during both the Advance Period and the Conversion Period on the same day of each month thereafter. CONVERSION PERIOD: Effective October 24, 2027, the outstanding principal balance of this Note shall be converted to a five (5) year fully amortizing term loan (the “Conversion Period”). Beginning with payment due on November 24, 2027, Borrower will make sixty (60) consecutive monthly payments of principal and interest, and such monthly payment amounts when aggregated shall be sufficient to repay this Note in full within those sixty (60) months. Notwithstanding the foregoing, the final payment of all outstanding principal, together with all accrued unpaid interest, late fees and unpaid loan charges, if any, will be due and payable in full on October 26, 2032 (the “Maturity Date”) without notice or demand…. (See Exhibit “A”, Page “1”, Paragraph entitled “Payment Terms”) 6. As set forth within the 07 Note, INITIAL INTEREST RATE: The initial interest rate of this Note is 12.25%. This initial interest rate is based on the Index in effect on the first business day of the month in which SBA received the completed loan application, plus 6.00%. The first interest rate adjustment may occur on the first calendar day of the month following initial disbursement, using the Index in effect the first business day of the month, plus 6.00 percentage points (Index + 6.00%). 4 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 VARIABLE INTEREST RATE: Beginning with the first interest rate adjustment until October 24, 2027, the interest rate on this Note is subject to change from time to time based on changes in an independent index which is the Wall Street Journal Prime Rate (the “Index”). The Index is not necessarily the lowest rate charged by Lender on its loans. Lender will tell Borrower the current Index rate upon Borrower’s request. The Interest rate adjustment period is monthly. Beginning with the first interest rate adjustment and continuing until October 24, 2027, the interest rate adjustment will not occur more often than each month on the 1st of the month, and the interest rate adjustment may occur as frequently as each month on the 1st of the month. Borrower understands that Lender may make loans based on other rates as well. Beginning with the first interest rate adjustment and continuing until October 24, 2027, interest on the unpaid principal balance of this Note will be calculated as described in the “INTEREST CALCULATION METHOD” paragraph using a rate of 6.00 percentage points over the Index (Index + 6.00%). If Lender determines in its sole discretion, that the Index has become unavailable or unreliable, either temporarily, indefinitely, or permanently, during the term of this Note, Lender may amend this Note be designating a substitute index acceptable to SBA, as determined by Lender…… See Exhibit “A”, Pages “1-2”, Paragraphs entitled “Initial Interest Rate”, “Variable Interest Rate”. 7. Pursuant to the 07 Note, “if the payment on this Note is 10 days or more late, Lender may charge Borrower a late fee of up to 5% of the unpaid portion of the regularly scheduled payment.” (See Exhibit “A”, Page “2”, Paragraph entitled “Late Charge”). 8. In connection with the 07 Note, on or about October 24, 2022, the Borrower and the Plaintiff entered into and executed a certain Business Loan Agreement (the “07 Loan Agreement”). Annexed hereto as Exhibit “B” is a true and complete copy of the 07 Loan Agreement. 9. Upon an Event of Default (as defined in the 07 Note) LENDERS RIGHTS IF THERE IS A DEFAULT: Without notice or demand and without giving up any of its rights, Lender may: (a) require immediate payment of all amounts owing under the Note; (b) collect all amounts owing from any Borrower or Guarantor; (c) file suit and obtain judgment; (d) take possession of any collateral; or (e) sell, lease or 5 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 otherwise, dispose, of, any Collateral at public or private sale, with or without advertisement. See Exhibit “A”, Pages “2-3”, Paragraph Entitled “Lender’s Rights If There Is A Default”. 10. In connection with the 07 Note and as partial consideration for same, on or about October 24, 2022, the Plaintiff and the Borrower entered into and executed a certain Commercial Security Agreement (the “07 Security Agreement” and collectively with the 07 Note, the 07 Loan Agreement and all other documents executed in conjunction therewith, the “07 Loan Documents”). Annexed hereto as Exhibit “C” is a true and complete copy of the 07 Loan Security Agreement. 11. Pursuant to the 07 Security Agreement, the Borrower granted the Plaintiff a security interest in all of the Borrower’s assets and property (collectively, the “Collateral”). (See Exhibit “C”, 07 Security Agreement, Page “1”, Paragraphs entitled “Grant of Security Interest” and “Collateral Description”). 12. The Plaintiff duly perfected its first priority lien and senior security interest in the Collateral by filing a UCC-1 Financing Statement against the Borrower with the New York Secretary of State on December 02, 2022 (the “07 UCC”). Annexed hereto as Exhibit “D” is a true and complete copy of the 07 UCC. B. The 05 Note 13. On or about October 24, 2022, the Borrower executed a certain Promissory Note in favor of the Plaintiff in the principal sum of One-Hundred Fifty-One Thousand Dollars ($151,000.00) (the “05 Note” and jointly with the 07 Note, the “Notes”) whereby the Plaintiff agreed to make a certain loan to the Borrower (the “05 Loan” together the 07 Loan, the “Loans”) in said amount. Annexed hereto as Exhibit “E” is a true and complete copy of the 05 Note. 6 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 14. Under the terms and conditions of the 05 Note, the Borrower agreed to remit certain payments to the Plaintiff as follows: “The term of this Note shall not exceed seven (7) years. Borrower will make eighty-three (83) equal monthly payments of principal and interest in the amount of $2,630.08 based on a fixed rate of 11.55% (the “05 Interest Rate”). Borrower’s first payment is due one month from the date of this Note, with all subsequent payments to be due and payable on the same day of each month thereafter. One final payment of all outstanding principal, together with accrued unpaid interest, late fees and unpaid loan charges, if any, will be due and payable in full on October 24, 2029 (the “Maturity Date”). (See Exhibit “E”, 05 Note, Page “1”, Paragraph entitled “Payment”). 15. In connection with the 05 Note, on or about October 24, 2022, the Borrower and the Plaintiff entered into and executed a certain Business Loan Agreement (the “05 Loan Agreement”). Annexed hereto as Exhibit “F” is a true and complete copy of the 05 Loan Agreement. 16. Upon the occurrence of an Event of Default (as defined in the 05 Note), the Borrower agreed to remit to Plaintiff, inter alia, the entire unpaid principal balance and all accrued and unpaid interest due under the 05 Note. (See Exhibit “E”, Page “1”, Paragraph Entitled “Lender’s Rights”). 17. Pursuant to the 05 Note, the Borrower agreed to pay all expenses including reasonable attorneys’ fees incurred in pursuing any payment due to the Plaintiff. (Exhibit “E”, Page “1”, Paragraph entitled “Attorneys’ Fees; Expenses”). 18. In connection with the 05 Note and as partial consideration for same, on or about October 24, 2022, the Plaintiff and the Borrower entered into and executed a certain Commercial Security Agreement (the “05 Security Agreement” and collectively with the 05 Note, the 05 Loan Agreement and all other documents executed in conjunction therewith, the “05 Documents” and 7 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 collectively with the 07 Loan Documents, the “Loan Documents”). Annexed hereto as Exhibit “G” is a true and complete copy of the 05 Security Agreement. 19. As with the 07 Security Agreement, pursuant to the provisions of the 05 Security Agreement, the Borrower further granted the Plaintiff a security interest in the Collateral. (See Exhibit “G”, 05 Security Agreement. Page “1”, Paragraphs entitled “Grant of Security Interest” and “Collateral Description”). 20. The Plaintiff duly perfected its first priority lien and senior security interest in the Collateral by filing a UCC-1 Financing Statement against the Borrower with the New York Secretary of State on November 02, 2022 (the “05 UCC” and collectively with the 07 UCC the “UCCs”). Annexed hereto as Exhibit “H” is a true and complete copy of the 05 UCC. C. The Guarantees 21. On or about October 24, 2022, as consideration for and to induce the Plaintiff to continue to make the Loans to the Borrower, the Guarantor executed certain commercial guarantees (collectively, the “Guarantees” and each a “Guaranty”). Annexed collectively hereto as Exhibit “I” are true and complete copies of the Guarantees. 22. Pursuant to the provisions of each of the Guarantees, the Guarantor: “…absolutely and unconditionally guarantee[d] full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender [Plaintiff]…” (See Exhibit “I”, Pages Numbered “1”, Paragraphs entitled “Continuing Guarantee of Payment and Performance”). 23. “Indebtedness” is defined under the Guarantees as: “…all of the principal amount outstanding from time to time and at any one or more times, accrued unpaid interest thereon and all collection costs and legal expenses related thereto permitted by law, reasonable attorneys’ fees, arising from any and all debts, liabilities and obligations of every nature or form, now existing or hereafter arising or acquired, that Borrower individually or collectively or interchangeably with others, owes or will owe Lender. “Indebtedness” includes, without limitation, loans, advances, debts, overdraft 8 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 indebtedness, credit card indebtedness, lease obligations…” (See Exhibit “I”, Pages Numbered “1”, Paragraphs entitled “Indebtedness”). 24. As a result of the Borrower’s default under the Notes (as described immediately below), the Guarantor is jointly and severally liable with the Borrower to the Plaintiff for the outstanding amounts due thereunder. D. The Plaintiff’s Demand Made Upon Defendants and the Borrower’s Breaches of the Notes and Loan Documents 25. The Borrower defaulted under both Notes and the Loan Documents based upon, inter alia, its failure to remit the required monthly payments due to Plaintiff under both Notes on or about October 24, 2023, and continuing thereafter. 26. By letter dated November 09, 2023, Plaintiff advised Defendant of the forgoing default under the Loan Documents (“Notice of Default”). Annexed hereto as Exhibit “J” is a true and complete copy of Plaintiff’s Notice of Default. 27. By letter dated March 27, 2024, the Plaintiff, by its counsel, advised the Defendants of the forgoing default and demanded that the Defendants remit all accelerated and outstanding sums due thereunder. Annexed hereto as Exhibit “K” is a true and complete copy of the forgoing letter. 28. Despite the Plaintiff’s demand, the Defendants have failed to remit the outstanding and unpaid sums due under the Notes. 29. By virtue of the foregoing, the Borrower is liable to the Plaintiff, on an unconditional instrument for the payment of money under the 07 Note, as of March 26, 2024 in the principal sum of $79,850.00 plus accrued and unpaid interest through said date in the amount of $5,836.71 plus accrued late fees through said date in the amount of $49.18 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, 9 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 expenses and attorneys’ fees and all other charges and the costs and expenses of this Action (collectively, the “07 Indebtedness”). 30. By virtue of the foregoing, the Borrower is liable to the Plaintiff, on an unconditional instrument for the payment of money under the 05 Note as of March 26, 2024 in the principal sum of $138,649.92 plus accrued and unpaid interest through said date in the amount of $6,851.42 plus accrued late fees through said date in the amount of $263.00 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and the costs and expenses of this Action (collectively, the “05 Indebtedness” together with 07 Indebtedness, the “Indebtedness”). AS AND FOR A FIRST CAUSE OF ACTION AGAINST BORROWER (Breach of the 07 Loan Documents) 31. The Plaintiff repeats, realleges and reiterates each and every allegation contained in Paragraphs numbered “1” through “30” above as if fully set forth at length herein. 32. The 07 Loan Documents constitute valid and enforceable agreements and the 07 Note constitutes an unconditional instrument for the payment of money. 33. The Plaintiff has fully complied with and fully performed all of its obligations under the 07 Note and the 07 Loan Documents. 34. As set forth above, the Borrower defaulted under the 07 Note based upon, inter alia, its failure to remit the required monthly payments due to Plaintiff thereunder on or about October 24, 2023 and continuing thereafter. 35. The Borrower has failed and refused to pay the accelerated and outstanding balances due under the 07 to date despite the Plaintiff’s demand for same. 10 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 36. By virtue of the foregoing, the Borrower is liable to the Plaintiff, on an unconditional instrument for the payment of money under the 07 Note, as of March 26, 2024 in the principal sum of $79,850.00 plus accrued and unpaid interest through said date in the amount of $5,836.71 plus accrued late fees through said date in the amount of $49.18 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and fees and the costs and expenses of this Action. AS AND FOR A SECOND CAUSE OF ACTION AGAINST BORROWER (Account Stated-07 Note) 37. The Plaintiff repeats, realleges and reiterates each and every allegation contained in Paragraphs numbered “1” through “36” above as if fully set forth at length herein. 38. The Plaintiff duly rendered periodic statements of account with regard to the 07 Note, which statements were received by the Borrower in the ordinary course of business. 39. The Borrower never objected or protested any such statements or any item contained therein, as was its duty and obligation if any error existed. 40. By virtue of the above, an account stated has been taken between the Plaintiff and the Borrower on the 07 Note, whereby the Borrower has admitted and acknowledged the debts as accurate and correct in all respects. 41. As a result of the foregoing, Plaintiff has stated an account with the Borrower with respect to the 07 Note as of March 26, 2024 in the principal sum of $79,850.00 plus accrued and unpaid interest through said date in the amount of $5,836.71 plus accrued late fees through said date in the amount of $49.18 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and fees and the costs and expenses of this Action. 11 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 AS AND FOR A THIRD CAUSE OF ACTION AGAINST THE DEFENDANTS (Unjust Enrichment- 07 Note) 42. The Plaintiff repeats, realleges and reiterates each and every allegation contained in Paragraphs numbered “1” through “41” above as if fully set forth at length herein. 43. The Defendants utilized and/or benefitted from the funds subject of the 07 Note. 44. The Defendants failed to pay the amounts due and owing to the Plaintiff under the 07 Note despite its demand for same. 45. As a result, the Defendants have been unjustly enriched and are jointly and severally liable to the Plaintiff as of March 26, 2024 in the principal sum of $79,850.00 plus accrued and unpaid interest through said date in the amount of $5,836.71 plus accrued late fees through said date in the amount of $49.18 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and fees and the costs and expenses of this Action. AS AND FOR A FOURTH CAUSE OF ACTION AGAINST BORROWER (Breach of the 05 Note and the 05 Loan Documents) 46. The Plaintiff repeats, realleges and reiterates each and every allegation contained in Paragraphs numbered “1” through “45” above as if fully set forth at length herein. 47. The 05 Loan Documents constitute valid and enforceable agreements and the 05 Note constitutes an unconditional instrument for the payment of money. 48. The Plaintiff has fully complied with and fully performed all of its obligations under the 05 Note and the 05 Loan Documents. 12 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 49. As set forth above, the Borrower defaulted under the 05 Note based upon, inter alia, its failure to remit the required monthly payments due to Plaintiff thereunder on or about October 24, 2023 and continuing thereafter. 50. The Borrower has failed and refused to pay the accelerated and outstanding balances due under the 05 Note to date despite the Plaintiff’s demand for same. 51. By virtue of the foregoing, the Borrower is liable to the Plaintiff, on an unconditional instrument for the payment of money under the 05 Note, as of March 26, 2024 in the principal sum of $138,649.92 plus accrued and unpaid interest through said date in the amount of $6,851.42 plus accrued late fees through said date in the amount of $263.00 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and the costs and expenses of this Action. AS AND FOR A FIFTH CAUSE OF ACTION AGAINST BORROWER (Account Stated-05 Note) 52. The Plaintiff repeats, realleges and reiterates each and every allegation contained in Paragraphs numbered “1” through “51” above as if fully set forth at length herein. 53. The Plaintiff duly rendered periodic statements of account with regard to the 05 Note, which statements were received by the Borrower in the ordinary course of business.. 54. The Borrower never objected or protested any such statements or any item contained therein, as was its duty and obligation if any error existed. 55. By virtue of the above, an account stated has been taken between the Plaintiff and the Borrower on the 05 Note, whereby the Borrower has admitted and acknowledged the debts as accurate and correct in all respects. 13 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 56. As a result of the foregoing, Plaintiff has stated an account with the Borrower with respect to the 05 Note, as of March 26, 2024 in the principal sum of $138,649.92 plus accrued and unpaid interest through said date in the amount of $6,851.42 plus accrued late fees through said date in the amount of $263.00 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and the costs and expenses of this Action. AS AND FOR A SIXTH CAUSE OF ACTION AGAINST THE DEFENDANTS (Unjust Enrichment- 05 Note) 57. The Plaintiff repeats, realleges and reiterates each and every allegation contained in Paragraphs numbered “1” through “56” above as if fully set forth at length herein. 58. The Defendants utilized and/or benefitted from the funds subject of the 05 Note. 59. The Defendants failed to pay the amounts due and owing to the Plaintiff under the 05 Note despite its demand for same. 60. As a result, the Defendants have been unjustly enriched and are jointly and severally liable to the Plaintiff in the outstanding and unpaid principal amount as of March 26, 2024 in the principal sum of $138,649.92 plus accrued and unpaid interest through said date in the amount of $6,851.42 plus accrued late fees through said date in the amount of $263.00 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and the costs and expenses of this Action. AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST THE GUARANTOR (Breach of the Guaranty-Borrower’s Obligations Under the 07 Note) 61. The Plaintiff repeats, realleges and reiterates each and every allegation contained in Paragraphs numbered “1” through “60”. 14 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 62. The Guaranty is an unconditional instrument for the payment of money. 63. As set forth above, the Borrower defaulted under the 07 Loan Documents based upon, inter alia, its failure to remit the required monthly payments due to Plaintiff thereunder on or about October 24, 2023, and continuing thereafter. 64. The Plaintiff has duly demanded that the Defendants remit the accelerated and outstanding balances due under the 07 Note but the Defendants have failed and refused to do so to date. 65. As a result, the Guarantor is jointly and severally liable to the Plaintiff under the Guaranty with respect to the Borrower’s obligations under the 07 Note as of March 26, 2024 in the principal sum of $79,850.00 plus accrued and unpaid interest through said date in the amount of $5,836.71 plus accrued late fees through said date in the amount of $49.18 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and fees and the costs and expenses of this Action. AS AND FOR AN EIGHTH CAUSE OF ACTION AGAINST THE GUARANTOR (Breach of the Guaranty-Borrower’s Obligations Under the 05 Note) 66. The Plaintiff repeats, realleges and reiterates each and every allegation contained in Paragraphs numbered “1” through “65”. 67. The Guaranty is an unconditional instruments for the payment of money. 68. As set forth above, the Borrower defaulted under the 05 Note and 05 Loan Documents based upon, inter alia, its failure to remit the required monthly payments due to Plaintiff thereunder on or about October 24, 2023 and continuing thereafter. 15 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 69. The Plaintiff has duly demanded that the Defendants remit the accelerated and outstanding balances due under the 05 Note but the Defendants have failed and refused to do so to date. 70. As a result, the Guarantor is jointly and severally liable to the Plaintiff under the Guaranty with respect to the Borrower’s obligations under the 05 Note as of March 26, 2024 in the principal sum of $138,649.92 plus accrued and unpaid interest through said date in the amount of $6,851.42 plus accrued late fees through said date in the amount of $263.00 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and the costs and expenses of this Action. AS AND FOR A NINTH CAUSE OF ACTION AGAINST THE BORROWER (For Foreclosure of a Security Interest) 71. The Plaintiff repeats, realleges and reiterates each and every allegation contained in Paragraphs numbered “1” through “70”. 72. The 07 Security Agreement and the 05 Security Agreement (jointly, the “Security Agreements”) each granted Plaintiff a first priority lien and security interest in all of the Collateral as security with respect to the Borrower’s obligations to the Plaintiff under the Notes and Loan Documents. 73. Plaintiff perfected its security interest in the Collateral by filing the UCCs. 74. Pursuant to the terms and conditions of the Security Agreements, upon the occurrence of an Event of Default under the Notes, the Plaintiff is entitled to pursue all of the rights and remedies available to a secured party, at law or equity, against the Borrower, including the rights and remedies of a secured party under the Uniform Commercial Code 75. As a result of the Borrower’s defaults under the Notes and Loan Documents set 16 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 forth herein, and its failure to pay all outstanding and unpaid sums due under the Notes, the Plaintiff is entitled to foreclose upon the Collateral. 76. By virtue of the forgoing, Plaintiff is entitled to a judgment granting foreclosure of its security interests in the Collateral and permitting Plaintiff to pursue the rights and remedies provided under the Uniform Commercial Code as well as such rights and remedies available under applicable law. AS AND FOR A TENTH CAUSE OF ACTION AGAINST THE BORROWER (For an Order of Replevin) 77. The Plaintiff repeats, realleges and reiterates each and every allegation contained in Paragraphs numbered “1” through “76”. 78. As a result of the Borrower’s defaults under the Notes and the Loan Documents, the Plaintiff is entitled to repossess the Collateral and the immediate possession of same. 79. By reason of the foregoing, Plaintiff is entitled to an order granting it possession of the Collateral. WHEREFORE, the Plaintiff, demands joint and several judgment against the Defendants awarding the Plaintiff damages and judgment as follows: (i) on its First, and Second Causes of Action against the Borrower as of March 26, 2024 in the principal sum of $79,850.00 plus accrued and unpaid interest through said date in the amount of $5,836.71 plus accrued late fees through said date in the amount of $49.18 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and fees and the costs and expenses of this Action; and, 17 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 (ii) on its Third Cause of Action against the Defendants as of March 26, 2024 in the principal sum of $79,850.00 plus accrued and unpaid interest through said date in the amount of $5,836.71 plus accrued late fees through said date in the amount of $49.18 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and fees and the costs and expenses of this Action; and, (iii) on its Fourth and Fifth Causes of Action against the Borrower as of March 26, 2024 in the principal sum of $138,649.92 plus accrued and unpaid interest through said date in the amount of $6,851.42 plus accrued late fees through said date in the amount of $263.00 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and the costs and expenses of this Action; and, (iv) on its Sixth Cause of Action against the Defendants as of March 26, 2024 in the principal sum of $138,649.92 plus accrued and unpaid interest through said date in the amount of $6,851.42 plus accrued late fees through said date in the amount of $263.00 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and the costs and expenses of this Action; and, (v) on its Seventh Cause of Action against the Guarantor as of March 26, 2024 in the principal sum of $79,850.00 plus accrued and unpaid interest through said date in the amount of $5,836.71 plus accrued late fees through said date in the amount of $49.18 plus interest continuing to accrue from said date plus late charges continuing 18 of 21 FILED: NEW YORK COUNTY CLERK 06/11/2024 03:45 PM INDEX NO. 155385/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/11/2024 File No. 1226-n1510 to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and fees and the costs and expenses of this Action; and, (vi) on its Eighth Cause of Action against the Guarantor as of March 26, 2024 in the principal sum of $138,649.92 plus accrued and unpaid interest through said date in the amount of $6,851.42 plus accrued late fees through said date in the amount of $263.00 plus interest continuing to accrue from said date plus late charges continuing to accrue from said date plus costs, expenses and attorneys’ fees and all other charges and the costs and expenses of this Action; and, (vii) on its Ninth and Tenth Causes of Action against the Borrower as follows: (a) Directing the foreclosure of Plaintiff’s security interests in all of the Borrower’s assets and personal property (previously defined as the “Collateral”); (b) Enjoining the Borrower and its respective servants, agents, employees, officers, assigns, representatives and all other persons in active concert and participation with the Borrower from moving, selling, assigning, transferring, secreting or otherwise disposing of the Collateral; (c) Directing the Borrower pursuant to New York Uniform Commercial Code § 9-609 to assemble and deliver to Plaintiff possession of the Collateral, including, but not limited to, inventory, equipment, machinery, fixtures and furnishings, or in the alternative, make such Collateral available to the Plaintiff at a reasonably convenient time and place; and (d) Issuing an order of seizure pursuant to Civil Practice Law and Rules § 7102 as to the Collateral or so much thereof which has not been surrendered and delivered by the Borrower to Plaintiff and directing that if the Borrower fails to assemble and deliv