Preview
INDEX NO. 650311/2014
(FILED: NEW YORK COUNTY CLERK 0172972014)
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/29/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
640 REALTY LLC and 86 REALTY LLC, Index No.
Date Purchased:
Plaintiffs,
SUMMONS
~ against -
Plaintiff designates New York
VILES CONTRACTING CORP. and FERNANDO County as the place for trial.
VIDAL,
The basis of venue is Plaintiff’s
Defendants. business address at:
745 Fifth Avenue, Suite 1250
New York, New York 10151
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’ attorneys 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
January 29, 2014
Yours, etc.,
Kaufman Friedman Plotnicki & Grun, LLP
Attorneys for Plaintiffs
300 East 42nd Sweet, 8" Fl.
New Yor! ork 10017
(212) 687-
By:
Howard Grun, Esq.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
640 REALTY LLC and 86 REALTY LLC,
Index No.
Plaintiffs,
VERIFIED
- against - COMPLAINT
VILES CONTRACTING CORP. and FERNANDO
VIDAL,
Defendants.
Plaintiffs 640 Realty LLC and 86 Realty LLC, by their attorneys Kaufman Friedman
Plotnicki & Grun, LLP, as and for their Complaint against defendants Viles Contracting Corp.
and Fernando Vidal, respectfully allege as follows:
1 Plaintiff 640 Realty LLC is, and was at all relevant times hereinafter mentioned, a
New York limited liability company with an address at c/o BMH Realty, Ltd. d/b/a Heller Realty
745 Fifth Avenue, Suite 1250, New York, New York 10151.
2 Plaintiff 86 Realty LLC is, and was at all relevant times hereinafter mentioned, a
New York limited liability company with an address at c/o BMH Realty, Ltd. d/b/a Heller Realty
745 Fifth Avenue, Suite 1250, New York, New York 10151. Plaintiffs 640 Realty LLC and 86
Realty LLC are collectively referred to herein as “Plaintiffs”.
3 At all relevant times set forth herein, Plaintiffs owned the property known as and
located at 640 Broadway, New York, New York as tenants-in-common.
4 Upon information and belief, defendant Viles Contracting Corp, (“Viles”) is, and
was at all relevant times herein alleged, a corporation organized under and existing under the
laws of the State of New Jersey, and registered to do business in New York as a foreign business
corporation, with an address at 243-247 Parkhurst Street, Newark, New Jersey 07114.
5 Upon information and belief defendant Fernando Vidal (“Vidal”) is, and was at
all relevant times herein mentioned, a resident of the State of New Jersey with an address at 147
Bathurst Avenue, North Arlington, New Jersey, and the sole shareholder, director and president
of Viles.
FACTS RELEVANT TO EACH CAUSE OF ACTION
The May 2011 Loan
6 Viles executed and delivered to Plaintiffs a “Note” for value received in the
amount of $500,000.00, dated as of May 19, 2011 (the “May 2011 Note”, a copy of which is
annexed as Exhibit A). Plaintiffs are referred to in the May 2011 Note as “Lender” and Viles is
referred to as “Borrower”.
7 Pursuant to paragraph | the May 2011 Note, Viles unconditionally promised to
pay Plaintiffs the principal sum of $500,000.00, together with interest on such principal sum
accrued from the date thereof at the rate of fifteen percent (15%) per annum.
8 Pursuant to paragraph 2 of the May 2011 Note, the amounts due under the May
2011 Note, were payable as follows:
a commencing on the Initial Payment Date (as such term is
hereinafter defined), and continuing monthly thereafier in
consecutive, monthly installments on the first day of each and
every calendar month thereafter through and including the
Maturity Date (as such term is hereinafter defined), for a total of
twenty-four (24) consecutive, monthly installments, the
principal amount of twenty- thousand eight hundred thirty-three
and 33/100 ($20,833.33) dollars per month, plus interest on each
such installment at the Interest Rate accrued from the date hereof
through the date such installment is due and payable; and
on the Maturity Date, the entire unpaid principal amount of this
note, together with all unpaid accrued interest on this note, shall
be due and payable.
9 Pursuant to paragraph 3 of the May 2011 Note, the Initial Payment date is defined
as follows:
The term “Initial Payment Date”, as used herein, shall mean the
earlier to occur of (i) the first day of the second calendar month
subsequent to the date on which the current construction project
at Lender’s property known as 640 Broadway, New York, New
York (the “Property”) shall be completed, as such date of
completion shall be determined by Lender in Lender’s sole and
absolute judgment, and (ii) the date title to the Property shall be
transferred by Lender to a third party. The term “Maturity
Date”, as used herein, shall mean the date which shall be twenty-
three (23) months after the Initial Payment Date. Lender shall
give Borrower written notice of the Initial Payment Date.
10. Pursuant to paragraph 5 of the May 2011 Note, in the event of a default by Viles
in making payment under the May 2011 Note, Viles agreed to pay Plaintiffs damages, including
additional expense in handling overdue payments, including a late or collection charge equal to
four percent (4%) of the total amount of such payment which becomes overdue for a period
exceeding four (4) days, as a reasonable estimate of the amount of said damages.
ll. Pursuant to paragraph 7 of the May 2011 Note, the parties agreed that Plaintiffs
could declare the entire amount due under the May 2011 Note as follows:
If any monthly installment of principal and interest shall not be paid
within four (4) days after the due date thereof; or if the entire
principal balance due hereunder and all accrued interest thereon is
not paid by Borrower to Lender on or before the Maturity Date; or
if Borrower shall make, or attempt to make, any assignment for the
benefit of creditors or be adjudged to be insolvent or ‘be unable to
pay Borrower's debts as they mature, or should any receiver, trustee,
liquidator, custodian or like officer be appointed to take custody,
possession or control of any property of Borrower, or application be
made therefor; or should Borrower otherwise default hereunder;
then and in any of such events, Lender may, effective upon notice
to Borrower, declare the entire principal balance of this note, plus
all accrued unpaid interest thereon, immediately due and payable.
12. Pursuant to paragraph 8 of the May 2011 Note, from and after the Maturity Date
(whether by acceleration, extension or otherwise) and until the entire principal amount of the
May 2011 Note together with all accrued unpaid interest thereon shall be paid, the May 2011
Note shall bear interest at the lesser of twenty-four (24%) percent per annum or the then highest
rate permitted by applicable law.
13. Further pursuant to paragraph 8 of the May 2011 Note, if Viles defaults in making
any payment of the indebtedness under the May 2011 Note, Viles agreed to pay, in addition to all
principal and interest, (i) all costs and expenses incurred by Plaintiffs in connection with
enforcing the May 2011 Note, including, without limitation, attorneys' fees, disbursements and
court costs, all of which sums shall be deemed part of the indebtedness under the May 2011
Note, and (ii) all costs and expenses incurred by Plaintiffs if it is determined that there has
occurred a default under the May 2011 Note , or that any event has occurred which, with the
giving of notice or the passage of time, or both, would constitute a default under the May 2011
Note, regardless of whether Plaintiffs take any action to enforce the May 2011 Note.
14, Pursuant to Paragraph 16 of the May 2011 Note, Vidal, as the sole shareholder,
director and president of Viles, personally and individually guaranteed the May 2011 Note
pursuant to a separate guaranty agreement dated as of even date with the May 2011 Note.
15, Accordingly, by written guaranty dated as of May 19, 2011 (the “May 2011
Guaranty”), a copy of which is annexed hereto as Exhibit B, Vidal executed a personal and
individual guaranty of the May 2011 Note in favor of Plaintiffs.
16. Pursuant to paragraph 1 of the May 2011 Guaranty, Vidal agreed to
unconditionally guaranty to Plaintiffs:
... the full and prompt payment when due of all sums which shall
become due and owing from Borrower to Lender pursuant to the
[May 2011 Note]. If Borrower shall default under the [May 2011
Note], whether or not a notice of default has been served upon
Borrower, Guarantor shall thereupon pay all sums due to Lender
thereunder in lawful money of the United States of America.
17. Pursuant to paragraph 2 of the May 2011 Guaranty, Vidal agreed to absolutely
and unconditionally guaranty to Plaintiffs:
...payment, and not merely of collection, without regard to the
regularity, validity or enforceability of the [May 2011 Note]. The
liability of Guarantor hereunder is independent of the liability of
Borrower under the [May 2011 Note] and is exclusive and
independent of any security for or other guaranty of the [May 2011
Note], if any. Upon any default in payment pursuant to the [May
2011 Note], Lender may, at his option, proceed directly against
Guarantor in a separate action or actions, with or without proceeding
against Borrower or any other party, or foreclosing upon, selling or
otherwise disposing of or collecting any property or other collateral,
if any, which may secure payment of the [May 2011 Note].
18. Pursuant to paragraph 5 of the May 2011 Guaranty, Vidal agreed to
unconditionally guaranty to pay Plaintiffs all attorneys’ fees and all other costs and expenses
incurred by Plaintiffs in enforcing the May 2011 Guaranty and/or in any action or proceeding
arising out of or relating to the May 2011 Guaranty or the May 2011 Note.
19, By letter dated July 17, 2013 (Exhibit C hereto), sent to Viles via personal in-hand
delivery and Federal Express Mail, Plaintiffs notified Viles that the Property had been transferred
by Plaintiffs on February 8, 2012, and that, accordingly, the Initial Payment Date as defined in
the May 2011 Note was February 8, 2012.
20. The letter further notified Viles that the first monthly installment of principal in
the amount of $20,833.33, together with accrued interest on such installment from the date of the
Note (ie., May 19, 2011) at the rate of 15% per annum, in the amount of $6,883.68, was due and
payable on August 1, 2013. The letter further notified Viles that if the initial principal payment
was not made by August 5, 2013, Plaintiffs intended to declare the entire principal amount of the
May 2011 Note, together with all accrued interest thereon, immediately due and payable, and
that in such event Viles would owe the principal amount of $500,000.00, together with interest
accrued thereon at the rate of 24% per annum, pursuant to the acceleration clause set forth in
Paragraph 7 of the May 2011 Note.
21. By letter dated July 17, 2013 (Exhibit C hereto) sent to Vidal via personal in-hand
delivery and Federal Express Mail, Plaintiff notified Vidal that if the initial principal payment
was not made by August 5, 2013, Plaintiffs intended to declare the entire principal amount of the
May 2011 Note, together with all accrued interest thereon, immediately due and payable, and
that in such event Viles would owe the principal amount of $500,000.00, together with interest
accrued thereon at the rate of 24% per annum, pursuant to the acceleration clause set forth in
Paragraph 7 of the May 2011 Note.
22. To date, Viles and Vidal have each respectively failed pay any of the sums due
under the May 2011 Note and the May 2011 Guaranty.
AS AND FOR A FIRST CAUSE OF ACTION
(Against Viles on the May 2011 Note)
23. Plaintiffs hereby repeat and reallege each of the allegations set forth in Paragraphs
1 through 22 of this Complaint as if set forth in full herein.
24. By virtue of the foregoing, Vile owes Plaintiffs the amount due under the May
2011 Note, to wit the sum of $500,000.00, together with accrued interest thereon from the date of
the May 2011 Note through the date of judgment in this action, at the rate of the lesser of twenty-
four (24%) percent per annum or the highest rate permitted by applicable law.
25. By reason of the foregoing, Plaintiffs are entitled to a judgment against Viles in
the sum of $500,000.00, together with such interest as shall accrue through the date of judgment
in this action, plus the costs and disbursements of this action.
AS AND FOR A SECOND CAUSE OF ACTION
(Against Viles for Attorneys’ Fees due under the May 2011 Note)
26. Plaintiffs hereby repeat and reallege each of the allegations set forth in paragraphs
1 through 22 of this Complaint as if set forth in full herein.
27. Pursuant to paragraph 3 of the May 2011 Note, Viles is obligated to pay all
attorneys’ fees and all other costs and expenses incurred by Plaintiffs in enforcing the May 2011
Note and/or in any action or proceeding arising out of or relating to the May 2011 Note.
28. By virtue of the foregoing, Plaintiffs are entitled to recover from Viles all of
Plaintiffs’ attorneys’ fees, disbursements, and other litigation costs and expenses they have
incurred, and will incur, in connection with this action to enforce the May 2011 Note, in an
amount which is not yet ascertainable, but which will, upon information and belief, exceed the
sum of $10,000.00.
AS AND FOR A THIRD CAUSE OF ACTION
(Against Viles for Conversion)
29. Plaintiffs hereby repeat and reallege cach of the allegations set forth in Paragraphs
1 through 22 of this Complaint as if set forth in full herein.
30. As set forth above, Viles received and retained $500,000.00 belonging to
Plaintiffs.
il Viles has wrongfully retained and refused to return the $500,000.00 to Plaintiffs,
has exercised and assumed control over the $500,000.00 to the exclusion of Plaintiffs, and has
otherwise interfered with the Plaintiffs’ rights over the $500,000.00, despite Plaintiffs’ proper
demand for the return of the $500,000.00.
32. By reason of the foregoing, Plaintiffs are entitled to a judgment against Viles in
the amount of $500,000.00, together with such interest as shall accrue through the date of
judgment in this action, plus the costs and disbursements of this action,
AS AND FOR A FOURTH CAUSE OF ACTION
(Against Viles for Money Had and Received)
33. Plaintiffs hereby repeat and reallege each of the allegations set forth in Paragraphs
1 through 22 of this Complaint as if set forth in full herein.
34, As set forth above, Viles received $500,000.00 belonging to Plaintiffs.
35. Viles retained such sum of $500,000.00 without repaying Plaintiffs, despite
Plaintiffs’ proper demand therefor.
36. Viles has benefitted from the receipt of Plaintiffs’ money.
37. Under the principles of good conscience, Viles should not be allowed to retain
Plaintiffs’ money.
38. By reason of the foregoing, Plaintiffs are entitled to a judgment against Viles in
the amount of $500,000.00, together with such interest as shall accrue through the date of
judgment in this action, plus the costs and disbursements of this action.
AS AND FOR A FIFTH CAUSE OF ACTION
(Against Viles for Unjust Enrichment)
39. Plaintiffs hereby repeat and reallege each of the allegations set forth in Paragraphs
1 through 22 of this Complaint as if set forth in full herein.
40. Plaintiffs loaned and advanced to Viles the aggregate sum of $500,000.00, which
Viles accepted and received.
41. Viles has benefitted from the receipt of Plaintiffs’ money.
42. Viles has retained, and has failed to repay, the sum of $500,000.00 to Plaintiffs
despite due demand therefore.
43. Viles will be unjustly enriched if the $500,000.00 is not repaid to Plaintiffs.
44, By reason of the foregoing, Plaintiffs demand judgment against Viles in the
amount of $500,000.00, together with such interest as shall accrue through the date of judgment
in this action, plus the costs and disbursements of this action.
AS AND FOR A SIXTH CAUSE OF ACTION
(Against Vidal for Breach of May 2011 Guaranty)
45. Plaintiffs hereby repeat and reallege each of the allegations set forth in paragraphs
1 through 22 of this Complaint as if set forth in full herein.
46. Based upon Viles’ failure to repay the sums due under the May 2011 Note, as set
forth above, Vidal, as guarantor of the May 2011 Note under the May 2011 Guaranty, is
obligated to pay Plaintiffs the sums due thereunder, to wit, $500,000.00, together with such
interest as shall accrue through the date of judgment in this action, plus the costs and
disbursements of this action.
47. Vidal breached his obligation pursuant to the terms of the May 2011 Guaranty by
failing to pay to Plaintiffs the sums due under the May 2011 Note, despite due demand thereof.
48. By virtue of the foregoing, Vidal is obligated to make payment to Plaintiffs in the
amount of the entire principal amount due under the May 2011 Note, to wit, $500,000.00,
together with all accrued interest thereon, through the time this Court renders a determination in
this action.
AS AND FOR A SEVENTH CAUSE OF ACTION
(Against Vidal for Attorneys’ Fees under the May 2011 Guaranty)
49. Plaintiffs hereby repeat and reallege each of the allegations set forth in paragraphs
1 through 22 of this Complaint as if set forth in full herein.
50. Pursuant to paragraph 5 of the May 2011 Guaranty, Vidal agreed to pay Plaintiffs,
upon demand, all attorneys’ fees and all other costs and expenses incurred by Plaintiffs in
enforcing the May 2011 Guaranty and/or in any action or proceeding arising out of or relating to
the May 2011 Guaranty and the May 2011 Note.
Sl. By virtue of the foregoing, Plaintiffs are entitled to recover from Vidal all of
Plaintiffs’ attorneys’ fees, disbursements, and other litigation costs and expenses they have
incurred, and will incur, in connection with this action to enforce the May 2011 Guaranty, in an
amount which is not yet ascertainable, but which will, upon information and belief, exceed the
sum of $10,000.00.
WHEREFORE, Plaintiffs demands judgment against Defendants as follows:
a. On the First Cause of Action against Viles, in the amount of $500,000.00,
together with interest thereon through the date of judgment in this action;
On the Second Cause of Action against Viles, in an amount not yet ascertainable,
but which will, upon information and belief, exceed the sum of $10,000.00,
together with interest thereon through the date of judgment in this action;
On the Third Cause of Action against Viles, in the amount of $500,000.00,
together with interest thereon through the date of judgment in this action;
On the Fourth Cause of Action against Viles, in the amount of $500,000.00,
together with interest thereon through the date of judgment in this action;
On the Fifth Cause of Action against Viles, in the amount of $500,000.00,
together with interest thereon through the date of judgment in this action;
On the Sixth Cause of Action against Vidal, in the amount of $500,000.00,
together with interest thereon through the date of judgment in this action;
10
On the Seventh Cause of Action against Vidal, in an amount not yet ascertainable,
but which will, upon information and belief, exceed the sum of $10,000.00,
together with interest thereon through the date of judgment in this action;
For the costs and disbursements of this action, and
1 For such other and further relief as is deemed just and proper.
Dated: New York, New York
January 29, 2014
Yours, etc.,
Kaufman Friedman Plotnicki & Grun, LLP
Attorneys for Plaintiffs
300 East 42nd Street - 8"" Floor
New Yo ork 10017
(212)687-1
By
Howard run, Esq.
11
VERIFICATION
STATE OF NEW YORK )
2 SS.t
COUNTY OF NEW YORK )
ARNOLD SIMON, being duly sworn, deposes and says:
I am President of Realty Holding A.C., the Managing Member of both Plaintiffs
640 Realty LLC and 86 Realty LLC in the foregoing Complaint. I have read said Complaint,
and the contents of said Complaint are true to my knowledge, except those allegations which are
pleaded upon information and belief, and as to those allegations, I believe them to be true.
ARNOLD SIMON
Sworn to before me this
day of January 2014
Notary Public
DIANA AN WAL FITANG
Notary net ic, < York
O1Al 5
Qualified in C unty
Commission Expi pril 30, 2
Preview
INDEX NO. 650311/2014 (FILED: NEW YORK COUNTY CLERK 0172972014) NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/29/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 640 REALTY LLC and 86 REALTY LLC, Index No. Date Purchased: Plaintiffs, SUMMONS ~ against - Plaintiff designates New York VILES CONTRACTING CORP. and FERNANDO County as the place for trial. VIDAL, The basis of venue is Plaintiff’s Defendants. business address at: 745 Fifth Avenue, Suite 1250 New York, New York 10151 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’ attorneys 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 January 29, 2014 Yours, etc., Kaufman Friedman Plotnicki & Grun, LLP Attorneys for Plaintiffs 300 East 42nd Sweet, 8" Fl. New Yor! ork 10017 (212) 687- By: Howard Grun, Esq. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 640 REALTY LLC and 86 REALTY LLC, Index No. Plaintiffs, VERIFIED - against - COMPLAINT VILES CONTRACTING CORP. and FERNANDO VIDAL, Defendants. Plaintiffs 640 Realty LLC and 86 Realty LLC, by their attorneys Kaufman Friedman Plotnicki & Grun, LLP, as and for their Complaint against defendants Viles Contracting Corp. and Fernando Vidal, respectfully allege as follows: 1 Plaintiff 640 Realty LLC is, and was at all relevant times hereinafter mentioned, a New York limited liability company with an address at c/o BMH Realty, Ltd. d/b/a Heller Realty 745 Fifth Avenue, Suite 1250, New York, New York 10151. 2 Plaintiff 86 Realty LLC is, and was at all relevant times hereinafter mentioned, a New York limited liability company with an address at c/o BMH Realty, Ltd. d/b/a Heller Realty 745 Fifth Avenue, Suite 1250, New York, New York 10151. Plaintiffs 640 Realty LLC and 86 Realty LLC are collectively referred to herein as “Plaintiffs”. 3 At all relevant times set forth herein, Plaintiffs owned the property known as and located at 640 Broadway, New York, New York as tenants-in-common. 4 Upon information and belief, defendant Viles Contracting Corp, (“Viles”) is, and was at all relevant times herein alleged, a corporation organized under and existing under the laws of the State of New Jersey, and registered to do business in New York as a foreign business corporation, with an address at 243-247 Parkhurst Street, Newark, New Jersey 07114. 5 Upon information and belief defendant Fernando Vidal (“Vidal”) is, and was at all relevant times herein mentioned, a resident of the State of New Jersey with an address at 147 Bathurst Avenue, North Arlington, New Jersey, and the sole shareholder, director and president of Viles. FACTS RELEVANT TO EACH CAUSE OF ACTION The May 2011 Loan 6 Viles executed and delivered to Plaintiffs a “Note” for value received in the amount of $500,000.00, dated as of May 19, 2011 (the “May 2011 Note”, a copy of which is annexed as Exhibit A). Plaintiffs are referred to in the May 2011 Note as “Lender” and Viles is referred to as “Borrower”. 7 Pursuant to paragraph | the May 2011 Note, Viles unconditionally promised to pay Plaintiffs the principal sum of $500,000.00, together with interest on such principal sum accrued from the date thereof at the rate of fifteen percent (15%) per annum. 8 Pursuant to paragraph 2 of the May 2011 Note, the amounts due under the May 2011 Note, were payable as follows: a commencing on the Initial Payment Date (as such term is hereinafter defined), and continuing monthly thereafier in consecutive, monthly installments on the first day of each and every calendar month thereafter through and including the Maturity Date (as such term is hereinafter defined), for a total of twenty-four (24) consecutive, monthly installments, the principal amount of twenty- thousand eight hundred thirty-three and 33/100 ($20,833.33) dollars per month, plus interest on each such installment at the Interest Rate accrued from the date hereof through the date such installment is due and payable; and on the Maturity Date, the entire unpaid principal amount of this note, together with all unpaid accrued interest on this note, shall be due and payable. 9 Pursuant to paragraph 3 of the May 2011 Note, the Initial Payment date is defined as follows: The term “Initial Payment Date”, as used herein, shall mean the earlier to occur of (i) the first day of the second calendar month subsequent to the date on which the current construction project at Lender’s property known as 640 Broadway, New York, New York (the “Property”) shall be completed, as such date of completion shall be determined by Lender in Lender’s sole and absolute judgment, and (ii) the date title to the Property shall be transferred by Lender to a third party. The term “Maturity Date”, as used herein, shall mean the date which shall be twenty- three (23) months after the Initial Payment Date. Lender shall give Borrower written notice of the Initial Payment Date. 10. Pursuant to paragraph 5 of the May 2011 Note, in the event of a default by Viles in making payment under the May 2011 Note, Viles agreed to pay Plaintiffs damages, including additional expense in handling overdue payments, including a late or collection charge equal to four percent (4%) of the total amount of such payment which becomes overdue for a period exceeding four (4) days, as a reasonable estimate of the amount of said damages. ll. Pursuant to paragraph 7 of the May 2011 Note, the parties agreed that Plaintiffs could declare the entire amount due under the May 2011 Note as follows: If any monthly installment of principal and interest shall not be paid within four (4) days after the due date thereof; or if the entire principal balance due hereunder and all accrued interest thereon is not paid by Borrower to Lender on or before the Maturity Date; or if Borrower shall make, or attempt to make, any assignment for the benefit of creditors or be adjudged to be insolvent or ‘be unable to pay Borrower's debts as they mature, or should any receiver, trustee, liquidator, custodian or like officer be appointed to take custody, possession or control of any property of Borrower, or application be made therefor; or should Borrower otherwise default hereunder; then and in any of such events, Lender may, effective upon notice to Borrower, declare the entire principal balance of this note, plus all accrued unpaid interest thereon, immediately due and payable. 12. Pursuant to paragraph 8 of the May 2011 Note, from and after the Maturity Date (whether by acceleration, extension or otherwise) and until the entire principal amount of the May 2011 Note together with all accrued unpaid interest thereon shall be paid, the May 2011 Note shall bear interest at the lesser of twenty-four (24%) percent per annum or the then highest rate permitted by applicable law. 13. Further pursuant to paragraph 8 of the May 2011 Note, if Viles defaults in making any payment of the indebtedness under the May 2011 Note, Viles agreed to pay, in addition to all principal and interest, (i) all costs and expenses incurred by Plaintiffs in connection with enforcing the May 2011 Note, including, without limitation, attorneys' fees, disbursements and court costs, all of which sums shall be deemed part of the indebtedness under the May 2011 Note, and (ii) all costs and expenses incurred by Plaintiffs if it is determined that there has occurred a default under the May 2011 Note , or that any event has occurred which, with the giving of notice or the passage of time, or both, would constitute a default under the May 2011 Note, regardless of whether Plaintiffs take any action to enforce the May 2011 Note. 14, Pursuant to Paragraph 16 of the May 2011 Note, Vidal, as the sole shareholder, director and president of Viles, personally and individually guaranteed the May 2011 Note pursuant to a separate guaranty agreement dated as of even date with the May 2011 Note. 15, Accordingly, by written guaranty dated as of May 19, 2011 (the “May 2011 Guaranty”), a copy of which is annexed hereto as Exhibit B, Vidal executed a personal and individual guaranty of the May 2011 Note in favor of Plaintiffs. 16. Pursuant to paragraph 1 of the May 2011 Guaranty, Vidal agreed to unconditionally guaranty to Plaintiffs: ... the full and prompt payment when due of all sums which shall become due and owing from Borrower to Lender pursuant to the [May 2011 Note]. If Borrower shall default under the [May 2011 Note], whether or not a notice of default has been served upon Borrower, Guarantor shall thereupon pay all sums due to Lender thereunder in lawful money of the United States of America. 17. Pursuant to paragraph 2 of the May 2011 Guaranty, Vidal agreed to absolutely and unconditionally guaranty to Plaintiffs: ...payment, and not merely of collection, without regard to the regularity, validity or enforceability of the [May 2011 Note]. The liability of Guarantor hereunder is independent of the liability of Borrower under the [May 2011 Note] and is exclusive and independent of any security for or other guaranty of the [May 2011 Note], if any. Upon any default in payment pursuant to the [May 2011 Note], Lender may, at his option, proceed directly against Guarantor in a separate action or actions, with or without proceeding against Borrower or any other party, or foreclosing upon, selling or otherwise disposing of or collecting any property or other collateral, if any, which may secure payment of the [May 2011 Note]. 18. Pursuant to paragraph 5 of the May 2011 Guaranty, Vidal agreed to unconditionally guaranty to pay Plaintiffs all attorneys’ fees and all other costs and expenses incurred by Plaintiffs in enforcing the May 2011 Guaranty and/or in any action or proceeding arising out of or relating to the May 2011 Guaranty or the May 2011 Note. 19, By letter dated July 17, 2013 (Exhibit C hereto), sent to Viles via personal in-hand delivery and Federal Express Mail, Plaintiffs notified Viles that the Property had been transferred by Plaintiffs on February 8, 2012, and that, accordingly, the Initial Payment Date as defined in the May 2011 Note was February 8, 2012. 20. The letter further notified Viles that the first monthly installment of principal in the amount of $20,833.33, together with accrued interest on such installment from the date of the Note (ie., May 19, 2011) at the rate of 15% per annum, in the amount of $6,883.68, was due and payable on August 1, 2013. The letter further notified Viles that if the initial principal payment was not made by August 5, 2013, Plaintiffs intended to declare the entire principal amount of the May 2011 Note, together with all accrued interest thereon, immediately due and payable, and that in such event Viles would owe the principal amount of $500,000.00, together with interest accrued thereon at the rate of 24% per annum, pursuant to the acceleration clause set forth in Paragraph 7 of the May 2011 Note. 21. By letter dated July 17, 2013 (Exhibit C hereto) sent to Vidal via personal in-hand delivery and Federal Express Mail, Plaintiff notified Vidal that if the initial principal payment was not made by August 5, 2013, Plaintiffs intended to declare the entire principal amount of the May 2011 Note, together with all accrued interest thereon, immediately due and payable, and that in such event Viles would owe the principal amount of $500,000.00, together with interest accrued thereon at the rate of 24% per annum, pursuant to the acceleration clause set forth in Paragraph 7 of the May 2011 Note. 22. To date, Viles and Vidal have each respectively failed pay any of the sums due under the May 2011 Note and the May 2011 Guaranty. AS AND FOR A FIRST CAUSE OF ACTION (Against Viles on the May 2011 Note) 23. Plaintiffs hereby repeat and reallege each of the allegations set forth in Paragraphs 1 through 22 of this Complaint as if set forth in full herein. 24. By virtue of the foregoing, Vile owes Plaintiffs the amount due under the May 2011 Note, to wit the sum of $500,000.00, together with accrued interest thereon from the date of the May 2011 Note through the date of judgment in this action, at the rate of the lesser of twenty- four (24%) percent per annum or the highest rate permitted by applicable law. 25. By reason of the foregoing, Plaintiffs are entitled to a judgment against Viles in the sum of $500,000.00, together with such interest as shall accrue through the date of judgment in this action, plus the costs and disbursements of this action. AS AND FOR A SECOND CAUSE OF ACTION (Against Viles for Attorneys’ Fees due under the May 2011 Note) 26. Plaintiffs hereby repeat and reallege each of the allegations set forth in paragraphs 1 through 22 of this Complaint as if set forth in full herein. 27. Pursuant to paragraph 3 of the May 2011 Note, Viles is obligated to pay all attorneys’ fees and all other costs and expenses incurred by Plaintiffs in enforcing the May 2011 Note and/or in any action or proceeding arising out of or relating to the May 2011 Note. 28. By virtue of the foregoing, Plaintiffs are entitled to recover from Viles all of Plaintiffs’ attorneys’ fees, disbursements, and other litigation costs and expenses they have incurred, and will incur, in connection with this action to enforce the May 2011 Note, in an amount which is not yet ascertainable, but which will, upon information and belief, exceed the sum of $10,000.00. AS AND FOR A THIRD CAUSE OF ACTION (Against Viles for Conversion) 29. Plaintiffs hereby repeat and reallege cach of the allegations set forth in Paragraphs 1 through 22 of this Complaint as if set forth in full herein. 30. As set forth above, Viles received and retained $500,000.00 belonging to Plaintiffs. il Viles has wrongfully retained and refused to return the $500,000.00 to Plaintiffs, has exercised and assumed control over the $500,000.00 to the exclusion of Plaintiffs, and has otherwise interfered with the Plaintiffs’ rights over the $500,000.00, despite Plaintiffs’ proper demand for the return of the $500,000.00. 32. By reason of the foregoing, Plaintiffs are entitled to a judgment against Viles in the amount of $500,000.00, together with such interest as shall accrue through the date of judgment in this action, plus the costs and disbursements of this action, AS AND FOR A FOURTH CAUSE OF ACTION (Against Viles for Money Had and Received) 33. Plaintiffs hereby repeat and reallege each of the allegations set forth in Paragraphs 1 through 22 of this Complaint as if set forth in full herein. 34, As set forth above, Viles received $500,000.00 belonging to Plaintiffs. 35. Viles retained such sum of $500,000.00 without repaying Plaintiffs, despite Plaintiffs’ proper demand therefor. 36. Viles has benefitted from the receipt of Plaintiffs’ money. 37. Under the principles of good conscience, Viles should not be allowed to retain Plaintiffs’ money. 38. By reason of the foregoing, Plaintiffs are entitled to a judgment against Viles in the amount of $500,000.00, together with such interest as shall accrue through the date of judgment in this action, plus the costs and disbursements of this action. AS AND FOR A FIFTH CAUSE OF ACTION (Against Viles for Unjust Enrichment) 39. Plaintiffs hereby repeat and reallege each of the allegations set forth in Paragraphs 1 through 22 of this Complaint as if set forth in full herein. 40. Plaintiffs loaned and advanced to Viles the aggregate sum of $500,000.00, which Viles accepted and received. 41. Viles has benefitted from the receipt of Plaintiffs’ money. 42. Viles has retained, and has failed to repay, the sum of $500,000.00 to Plaintiffs despite due demand therefore. 43. Viles will be unjustly enriched if the $500,000.00 is not repaid to Plaintiffs. 44, By reason of the foregoing, Plaintiffs demand judgment against Viles in the amount of $500,000.00, together with such interest as shall accrue through the date of judgment in this action, plus the costs and disbursements of this action. AS AND FOR A SIXTH CAUSE OF ACTION (Against Vidal for Breach of May 2011 Guaranty) 45. Plaintiffs hereby repeat and reallege each of the allegations set forth in paragraphs 1 through 22 of this Complaint as if set forth in full herein. 46. Based upon Viles’ failure to repay the sums due under the May 2011 Note, as set forth above, Vidal, as guarantor of the May 2011 Note under the May 2011 Guaranty, is obligated to pay Plaintiffs the sums due thereunder, to wit, $500,000.00, together with such interest as shall accrue through the date of judgment in this action, plus the costs and disbursements of this action. 47. Vidal breached his obligation pursuant to the terms of the May 2011 Guaranty by failing to pay to Plaintiffs the sums due under the May 2011 Note, despite due demand thereof. 48. By virtue of the foregoing, Vidal is obligated to make payment to Plaintiffs in the amount of the entire principal amount due under the May 2011 Note, to wit, $500,000.00, together with all accrued interest thereon, through the time this Court renders a determination in this action. AS AND FOR A SEVENTH CAUSE OF ACTION (Against Vidal for Attorneys’ Fees under the May 2011 Guaranty) 49. Plaintiffs hereby repeat and reallege each of the allegations set forth in paragraphs 1 through 22 of this Complaint as if set forth in full herein. 50. Pursuant to paragraph 5 of the May 2011 Guaranty, Vidal agreed to pay Plaintiffs, upon demand, all attorneys’ fees and all other costs and expenses incurred by Plaintiffs in enforcing the May 2011 Guaranty and/or in any action or proceeding arising out of or relating to the May 2011 Guaranty and the May 2011 Note. Sl. By virtue of the foregoing, Plaintiffs are entitled to recover from Vidal all of Plaintiffs’ attorneys’ fees, disbursements, and other litigation costs and expenses they have incurred, and will incur, in connection with this action to enforce the May 2011 Guaranty, in an amount which is not yet ascertainable, but which will, upon information and belief, exceed the sum of $10,000.00. WHEREFORE, Plaintiffs demands judgment against Defendants as follows: a. On the First Cause of Action against Viles, in the amount of $500,000.00, together with interest thereon through the date of judgment in this action; On the Second Cause of Action against Viles, in an amount not yet ascertainable, but which will, upon information and belief, exceed the sum of $10,000.00, together with interest thereon through the date of judgment in this action; On the Third Cause of Action against Viles, in the amount of $500,000.00, together with interest thereon through the date of judgment in this action; On the Fourth Cause of Action against Viles, in the amount of $500,000.00, together with interest thereon through the date of judgment in this action; On the Fifth Cause of Action against Viles, in the amount of $500,000.00, together with interest thereon through the date of judgment in this action; On the Sixth Cause of Action against Vidal, in the amount of $500,000.00, together with interest thereon through the date of judgment in this action; 10 On the Seventh Cause of Action against Vidal, in an amount not yet ascertainable, but which will, upon information and belief, exceed the sum of $10,000.00, together with interest thereon through the date of judgment in this action; For the costs and disbursements of this action, and 1 For such other and further relief as is deemed just and proper. Dated: New York, New York January 29, 2014 Yours, etc., Kaufman Friedman Plotnicki & Grun, LLP Attorneys for Plaintiffs 300 East 42nd Street - 8"" Floor New Yo ork 10017 (212)687-1 By Howard run, Esq. 11 VERIFICATION STATE OF NEW YORK ) 2 SS.t COUNTY OF NEW YORK ) ARNOLD SIMON, being duly sworn, deposes and says: I am President of Realty Holding A.C., the Managing Member of both Plaintiffs 640 Realty LLC and 86 Realty LLC in the foregoing Complaint. I have read said Complaint, and the contents of said Complaint are true to my knowledge, except those allegations which are pleaded upon information and belief, and as to those allegations, I believe them to be true. ARNOLD SIMON Sworn to before me this day of January 2014 Notary Public DIANA AN WAL FITANG Notary net ic, < York O1Al 5 Qualified in C unty Commission Expi pril 30, 2