Preview
INDEX NO. 850020/2014
(FILED: NEW YORK COUNTY CLERK 0172972014)
NYSCEF DOC. NO. 2 RECEIVED NYSCEF 01/29/2014
THIS ACTION DOES NOT INVOLVE A RESIDENTIAL MORTGAGE LOAN
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Xx
BRICK 838 CAPITAL LLC,
Plaintiff, VERIFIED COMPLAINT
- against - Index No. :
35 WEST 26™ STREET REALTY LLC
OSMAN BESSA,
HSBC BANK USA, NATIONAL ASSOCIATION
ENVIRONMENTAL CONTROL BOARD OF
THE CITY OF NEW YORK,
NEW YORK STATE DEPARTMENT OF
TAXATION & FINANCE,
JOHN DOE No.1 through JOHN DOE No.10,
the last ten (10) names being fictitious and unknown to the
plaintiff, the persons or parties intended being the
tenants, occupants, persons or parties, if any, having or
claiming an interest in or lien upon the premises described
in the Verified Complaint,
Defendants.
X
Plaintiff, Brick 838 Capital LLC, by its attomeys, LYNCH & ASSOCIATES,
complaining of the defendants, alleges upon information and belief as follows:
1 That the plaintiff herein is, and at all times hereinafter mentioned is a New York
Limited Liability Company organized and existing under and by virtue of the laws of the State of
New York, having its principal place of business at 381 Park Avenue South, Suite 1001, New
York, New York 10016.
2, Upon information and belief, at all times hereinafter mentioned, the defendants
set forth in "Schedule 1-Defendants" reside or have a place of business at the address set forth
{A268750;1}
therein (any that are corporations being organized and existing under the laws of the State set
forth therein) and are made defendants in this action in the capacities therein and for the reasons
set forth in said Schedule.
3 That the Environmental Control Board of the City of New York and New York
State Department of Taxation & Finance, and City of New York Department of Finance, and all
other agencies or instrumentalities of the Federal, State or local government (however
designated), if any, are made parties solely by reason of the facts set forth in "Schedule 2-
Defendants".
4. On or about April 27, 2012, defendant, 35 West 26" Street Realty LLC
("35 West”), executed and delivered to Brick Pacific Capital LLC, (herein “Brick Pacific”) a
Note ("Note") dated April 27, 2012, whereby 35 West promised to pay Brick Pacific, the
principal sum of $350,000.00.
5 On or about April 27, 2012, 35 West executed and delivered to Brick Pacific a
Mortgage ("Mortgage") in the principal sum of $350,000.00 with interest, mortgaging the
premises known as 35 West 26" Street, New York, New York ("Premises") as collateral security
for the Note. The Premises are more fully described in Exhibit "A" annexed hereto.
6 The Mortgage was duly recorded in the Office of the City Register of the City of
New York, New York County, on June 5, 2012, under CRFN: 2012000218182 and at the time of
recording the mortgage recording tax was duly paid.
7 The Mortgage was assigned by Assignment of Mortgage dated December 7, 2012
made by Brick Pacific Capital LLC, as assignor, to Brick 838 Capital LLC, (“Brick 838”) as
assignee, and recorded in the Recording Office on January 11, 2013 in CRFN 2013000013729.
8 On or about December 7, 2012, defendant, 35 West, executed and delivered to
{A268750;1}
Brick 838 a Gap Note (“Note No. 2”) dated December 7, 2012, whereby 35 West promised to
pay Brick 838, the principal sum of $350,000.00.
9 On or about December 7, 2012, 35 West executed and delivered to Brick Pacific a
Mortgage ("Mortgage No. 2”) in the principal sum of $350,000.00 with interest, mortgaging the
premises known as 35 West 26" Street, New York, New York as collateral security for the Note
No.2.
10. The Mortgage was duly recorded in the Office of the City Register of the City of
New York, New York County, on January 11, 2013, under CRFN: 2013000013732 and at the
time of recording the mortgage recording tax was duly paid.
1. Mortgage No.1 and Mortgage No.2 were consolidated to form a single lien by a
Consolidation, Extension and Modification Agreement dated December 7, 2012, in the principal
amount of $700,000.00, with interest, mortgaging the premises known as 35 West 26" Street,
New York, New York as collateral.
12. The consolidation mortgage was duly recorded in the Office of the City Register
of the City of New York, New York County, on January 11, 2013, under CRFN: 2013000013733
and at the time of recording the mortgages recording tax was duly paid.
13. Pursuant to the consolidation, 35 West promised to make consecutive monthly
payments of principal and interest on the 10" day of each month as owed on its Consolidation,
Extension and Modification Agreement, until the entire principal amount and accrued interest
shali be due and payable.
14. 35 West defaulted on its obligations under the terms of the Notes and Mortgages
by failing and omitting to pay to the plaintiff payments due on August 1, 2013 and on each and
every month thereafter. More than fifteen (15) days have elapsed since the first of said defaults
{A268750;1}
occurred, and by reason thereof, plaintiff has elected by letter dated December 9, 2013
to declare immediately due and payable the entire unpaid principal balance. Pursuant to the terms
of the Mortgage, the plaintiff bas elected and does hereby reiterate by the filing of this complaint
its intention to declare the entire principal balance to be due and owing. Additionally, the
Mortgage also provided for the payment of all expenses incurred in any action or proceeding to
foreclose upon the premises or to collect the debt secured by same, including reasonable
attorneys’ fees.
15. The Note and Mortgage provides that in the event any installment shall become
overdue for a period in excess of ten (10) days a late charge of six (6.00%) percent of each
dollar so overdue may be charged for the purpose of defraying the expense in handling such
delinquent payment.
16. Pursuant to the Mortgage, 35 West promised to pay, in addition to principal and
interest, Default Rate interest, as such term is defined in the Mortgage, as well as any and all
amounts necessary to pay for taxes, assessments, leasehold payments or ground rents (if any),
and hazard insurance.
17. The Mortgage further provides that in the event of default by the mortgagor,
plaintiff may recover all costs, including reasonable attorneys’ fees, disbursements, and
allowances provided by law in bringing any action to protect or enforce its interest in the
Premises.
18. By reason of the foregoing default, there is now due and owing from 35 West to
plaintiff the principal sum of $700,000.00 plus interest at the rates contained in the Note and
Mortgage, late charges, prepayment fee, if any, attorney’s fees, escrow advances, and any other
fees to protect and preserve the Premises permitted by the Mortgage.
{A268750;1}
19. In the event that plaintiff possesses any other lien(s) against said mortgaged
Premises either by way of judgment, junior mortgage or otherwise, plaintiff requests that such
other lien(s) shall not be merged in plaintiffs cause(s) of action set forth in this complaint, but
that plaintiff shall be permitted to enforce said other lien(s) and/or seek determination of priority
thereof in any independent action(s) or proceeding(s), including, without limitation, any surplus
money proceedings.
20. Plaintiff shall not be deemed to have waived, altered, released, or changed the
election hereinbefore made by reason of the payment after the date of commencement of this
action of any or all of the defaults mentioned herein, and such election shall continue and remain.
effective until the costs and disbursements of this action and any and all future defaulted
payments under the aforesaid Mortgage occurring prior to the discontinuance of this action are
fully paid.
21. That in order to protect its security, plaintiff may be compelled, during the
pendency of this action, to pay taxes, assessments, water charges, sewer rents, vault charges, fire
insurance premiums or other charges affecting the Premises, including amounts that may be due
to any receiver appointed by the Court in this action and amounts that may be due for labor and
materials furnished or to be furnished thereto including materials and services to protect and
maintain the Premises and including materials and services to guard and secure the Premises,
(whether such amounts shall have been incurred by the present or any prior owner of the
Premises, any receiver who may be appointed in this action, or the plaintiff in exercise of its
rights under the Note and Mortgage), and will incur expenses (including counsel fees) for the
legal services of plaintiff's attorneys in the institution and prosecution of this action, and,
pursuant to the Mortgage, said expenditures are secured thereby; any sums so paid or incurred by
{A268750;1}
it shall be added to the sums otherwise due and be deemed secured by the Mortgage and
adjudged a valid lien on the Premises.
22. That the plaintiff is now the sole, true and lawful owner of the said Note and
Mortgage securing the same and there are no pending proceedings at law or otherwise to collect
or enforce Plaintiff's interest therein.
23. On or about December 7, 2012, defendant Osman Bessa (the “Guarantor")
individually, executed and delivered to plaintiff a guaranty of payment (the “Guaranty") whereby
said defendant, guaranteed payment of the debt secured by the Mortgage.
24. Upon information and belief, each of the defendants, including but not limited to
the aforementioned defendants, have or claim to have some interest in, or lien upon, the said
Premises or some part thereof, which interest or lien, if any, is subject and subordinate to the lien
of the plaintiff's Mortgage.
25. That Schedule "1" and “2” are expressly incorporated and made a part of the
Verified Complaint for all purposes with the same force and effect as if they were completely
and fully set forth herein whenever reference has been made to each or any of them.
26. That if the Premises consist of more than one parcel, plaintiff respectfully
requests that the judgment of foreclosure provide for the parcels to be sold as one parcel.
27. Plaintiff has no adequate remedy at law.
28. No other action has been commenced at law or otherwise for the recovery of the
indebtedness evidenced and secured by the Mortgage.
29. That the defendants, "JOHN DOE NO. 1” “JOHN DOE NO. 10" are fictitious
persons who ate unknown to plaintiff, who may claim to have some interest in, tenancy at, or
lien upon the Premises, or some part thereof, which interest or lien, if any, is subject and
{A268750;1}
subordinate to the lien of the Mortgage.
30. The Premises are subject to, and should be sold subject to the following and as
existing at the time of delivery of the Referee's deed:
(a) any state of facts an accurate survey of the Premises would show;
(b) encroachments, covenants, restrictions and easements of record;
© the lien of street vault charges, if any;
@ any violations of record, including but not limited to any sidewalk
repair notices and violations,
) building and zoning restrictions and ordinances of the municipality
in which the Premises are located and possible violations of same;
@ any state of facts a physical inspection of the Premises would
disclose;
) rights, if any, of tenants or persons in possession of the subject
Premises;
@) the right, if any, of the United States of America to redeem as
stated by law.
WHEREFORE, plaintiff demands judgment:
1 That the defendants and each of them and all persons claiming
under them or any of them, subsequent to the commencement of this action and the filing of a
notice of pendency thereof, be barred and foreclosed of and from all estate, right, title, interest,
claim, lien and equity of redemption of, in and to the Premises and each and every part and
parcel thereof;
2. That the Premises be decreed to be sold subject to the provisions of
paragraph 26 herein and according to law;
3 That the monies arising from the sale thereof may be brought into
Court;
{A268750;1}
4. That plaintiff may be paid the amount due on the Note and
Mortgage, and as hereinbefore set forth, with interest and all other charges due thereon,
computed as provided therein to the time of such payment, and also be paid the expense of such
sale, together with the costs, allowances and disbursements of this action, and the expense
(including counsel fees) for the legal services of plaintiff's attorneys in the institution and
prosecution of this action, together with any monies advanced and paid pursuant to any term or
provision of the Note and Mortgage, or advanced and paid to protect the liens of the Mortgage,
together with taxes, water and sewer charges and other charges and liens thereon to be paid,
including amounts that may be due to any receiver appointed by the Court in this action, and
amounts that may be due for labor and materials furnished or to be furnished thereto including
materials and services to protect and maintain the Premises and including materials and services
to guard and secure the Premises (whether such amounts shall have been incurred by the present
or any prior owner of the Premises, and receiver who may be appointed in this action), with
interest upon said amounts from the dates of the respective payments and advances thereof, so
far as the amount of such monies properly applicable thereto will pay the same.
5 That the defendant 35 West be adjudged to pay the whole residue,
or-so much thereof as the Court may determine to be just and equitable, of the debt remaining
unsatisfied after a sale of the Premises and the application of the proceeds pursuant to the
direction contained in such judgment; and that the defendant, Osman Bessa, be adjudged to pay
the amount due upon a deficiency after foreclosure pursuant to the Guaranty, together with
interest thereon.
6. That in the event that plaintiff possesses any other lien(s) against
said Premises either by way of judgment, junior mortgage or otherwise, plaintiff requests that
{A268750;1}
such other lien(s) shall not be merged in plaintiff's cause(s) of action set forth in this complaint
but that plaintiff shall be permitted to enforce said other lien(s) and/or seek determination of
priority thereof in any independent action(s) or proceedings(s), including, without limitation, any
surplus money proceedings, and that the plaintiff may have such other and further relief, or both,
in the Premises, as may be just and equitable.
7. That this Court, if requested, forthwith appoint a Receiver of the
rents and profits of said Premises with the usual powers and duties;
8. That Brick 838 Capital LLC may have such other and further
relief, or both, in the Premises, as may be just and equitable.
Dated: Huntington, New York
January 28, 2014 ‘Yours etc.,
LYNCH & ASSOCIATES
B
Ronni J. Ginsberg.
Attorneys for Plaintiff
462 Seventh Avenue, 12" Floor
New York, New York 10018
(631) 547-1000
{A268750;1}
Schedule 1-Defendants
35 West 26™ Street Realty LLC Record owner of Premises being foreclosed
35 West 26™ Street herein by virtue of Mortgages recited herein.
Ground Floor
New York, NY 10010
Osman Bessa Guarantor
35 West 26™ Street
Ground Floor
New York, NY 10010
HSBC Bank, USA, National Association Senior lien holder
Documenation Avenue
18" Floor
Buffalo, New York 14203
JOHN DOE No.1 through Said name being fictitious, it being the
JOHN DOE No.10 intention of plaintiff to designate any and ail
occupants of Premises being foreclosed
herein, and generally all persons or parties,
if any, having or claiming an interest in or
lien upon the Premises described in the
Verified Complaint.
{A268750;1}
edule -2 Defendants
Environmental Control Board Named as a party defendant to extinguish
Control Board of the City of New York any and all liens it has against the Premises
505 Fulton Street being foreclosed herein which liens are due
Brooklyn, New York 11201 to any possible outstanding New York City
Environmental Control Board liens as set
forth in the Exhibit “B” annexed hereto.
New York State Named as a party defendant to extinguish
Department of Taxation & Finance any and all liens it has or may have against
WA Harriman Campus the Premises being foreclosed herein.
Albany, New York 12227
{A268750;2)}
Preview
INDEX NO. 850020/2014 (FILED: NEW YORK COUNTY CLERK 0172972014) NYSCEF DOC. NO. 2 RECEIVED NYSCEF 01/29/2014 THIS ACTION DOES NOT INVOLVE A RESIDENTIAL MORTGAGE LOAN SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Xx BRICK 838 CAPITAL LLC, Plaintiff, VERIFIED COMPLAINT - against - Index No. : 35 WEST 26™ STREET REALTY LLC OSMAN BESSA, HSBC BANK USA, NATIONAL ASSOCIATION ENVIRONMENTAL CONTROL BOARD OF THE CITY OF NEW YORK, NEW YORK STATE DEPARTMENT OF TAXATION & FINANCE, JOHN DOE No.1 through JOHN DOE No.10, the last ten (10) names being fictitious and unknown to the plaintiff, the persons or parties intended being the tenants, occupants, persons or parties, if any, having or claiming an interest in or lien upon the premises described in the Verified Complaint, Defendants. X Plaintiff, Brick 838 Capital LLC, by its attomeys, LYNCH & ASSOCIATES, complaining of the defendants, alleges upon information and belief as follows: 1 That the plaintiff herein is, and at all times hereinafter mentioned is a New York Limited Liability Company organized and existing under and by virtue of the laws of the State of New York, having its principal place of business at 381 Park Avenue South, Suite 1001, New York, New York 10016. 2, Upon information and belief, at all times hereinafter mentioned, the defendants set forth in "Schedule 1-Defendants" reside or have a place of business at the address set forth {A268750;1} therein (any that are corporations being organized and existing under the laws of the State set forth therein) and are made defendants in this action in the capacities therein and for the reasons set forth in said Schedule. 3 That the Environmental Control Board of the City of New York and New York State Department of Taxation & Finance, and City of New York Department of Finance, and all other agencies or instrumentalities of the Federal, State or local government (however designated), if any, are made parties solely by reason of the facts set forth in "Schedule 2- Defendants". 4. On or about April 27, 2012, defendant, 35 West 26" Street Realty LLC ("35 West”), executed and delivered to Brick Pacific Capital LLC, (herein “Brick Pacific”) a Note ("Note") dated April 27, 2012, whereby 35 West promised to pay Brick Pacific, the principal sum of $350,000.00. 5 On or about April 27, 2012, 35 West executed and delivered to Brick Pacific a Mortgage ("Mortgage") in the principal sum of $350,000.00 with interest, mortgaging the premises known as 35 West 26" Street, New York, New York ("Premises") as collateral security for the Note. The Premises are more fully described in Exhibit "A" annexed hereto. 6 The Mortgage was duly recorded in the Office of the City Register of the City of New York, New York County, on June 5, 2012, under CRFN: 2012000218182 and at the time of recording the mortgage recording tax was duly paid. 7 The Mortgage was assigned by Assignment of Mortgage dated December 7, 2012 made by Brick Pacific Capital LLC, as assignor, to Brick 838 Capital LLC, (“Brick 838”) as assignee, and recorded in the Recording Office on January 11, 2013 in CRFN 2013000013729. 8 On or about December 7, 2012, defendant, 35 West, executed and delivered to {A268750;1} Brick 838 a Gap Note (“Note No. 2”) dated December 7, 2012, whereby 35 West promised to pay Brick 838, the principal sum of $350,000.00. 9 On or about December 7, 2012, 35 West executed and delivered to Brick Pacific a Mortgage ("Mortgage No. 2”) in the principal sum of $350,000.00 with interest, mortgaging the premises known as 35 West 26" Street, New York, New York as collateral security for the Note No.2. 10. The Mortgage was duly recorded in the Office of the City Register of the City of New York, New York County, on January 11, 2013, under CRFN: 2013000013732 and at the time of recording the mortgage recording tax was duly paid. 1. Mortgage No.1 and Mortgage No.2 were consolidated to form a single lien by a Consolidation, Extension and Modification Agreement dated December 7, 2012, in the principal amount of $700,000.00, with interest, mortgaging the premises known as 35 West 26" Street, New York, New York as collateral. 12. The consolidation mortgage was duly recorded in the Office of the City Register of the City of New York, New York County, on January 11, 2013, under CRFN: 2013000013733 and at the time of recording the mortgages recording tax was duly paid. 13. Pursuant to the consolidation, 35 West promised to make consecutive monthly payments of principal and interest on the 10" day of each month as owed on its Consolidation, Extension and Modification Agreement, until the entire principal amount and accrued interest shali be due and payable. 14. 35 West defaulted on its obligations under the terms of the Notes and Mortgages by failing and omitting to pay to the plaintiff payments due on August 1, 2013 and on each and every month thereafter. More than fifteen (15) days have elapsed since the first of said defaults {A268750;1} occurred, and by reason thereof, plaintiff has elected by letter dated December 9, 2013 to declare immediately due and payable the entire unpaid principal balance. Pursuant to the terms of the Mortgage, the plaintiff bas elected and does hereby reiterate by the filing of this complaint its intention to declare the entire principal balance to be due and owing. Additionally, the Mortgage also provided for the payment of all expenses incurred in any action or proceeding to foreclose upon the premises or to collect the debt secured by same, including reasonable attorneys’ fees. 15. The Note and Mortgage provides that in the event any installment shall become overdue for a period in excess of ten (10) days a late charge of six (6.00%) percent of each dollar so overdue may be charged for the purpose of defraying the expense in handling such delinquent payment. 16. Pursuant to the Mortgage, 35 West promised to pay, in addition to principal and interest, Default Rate interest, as such term is defined in the Mortgage, as well as any and all amounts necessary to pay for taxes, assessments, leasehold payments or ground rents (if any), and hazard insurance. 17. The Mortgage further provides that in the event of default by the mortgagor, plaintiff may recover all costs, including reasonable attorneys’ fees, disbursements, and allowances provided by law in bringing any action to protect or enforce its interest in the Premises. 18. By reason of the foregoing default, there is now due and owing from 35 West to plaintiff the principal sum of $700,000.00 plus interest at the rates contained in the Note and Mortgage, late charges, prepayment fee, if any, attorney’s fees, escrow advances, and any other fees to protect and preserve the Premises permitted by the Mortgage. {A268750;1} 19. In the event that plaintiff possesses any other lien(s) against said mortgaged Premises either by way of judgment, junior mortgage or otherwise, plaintiff requests that such other lien(s) shall not be merged in plaintiffs cause(s) of action set forth in this complaint, but that plaintiff shall be permitted to enforce said other lien(s) and/or seek determination of priority thereof in any independent action(s) or proceeding(s), including, without limitation, any surplus money proceedings. 20. Plaintiff shall not be deemed to have waived, altered, released, or changed the election hereinbefore made by reason of the payment after the date of commencement of this action of any or all of the defaults mentioned herein, and such election shall continue and remain. effective until the costs and disbursements of this action and any and all future defaulted payments under the aforesaid Mortgage occurring prior to the discontinuance of this action are fully paid. 21. That in order to protect its security, plaintiff may be compelled, during the pendency of this action, to pay taxes, assessments, water charges, sewer rents, vault charges, fire insurance premiums or other charges affecting the Premises, including amounts that may be due to any receiver appointed by the Court in this action and amounts that may be due for labor and materials furnished or to be furnished thereto including materials and services to protect and maintain the Premises and including materials and services to guard and secure the Premises, (whether such amounts shall have been incurred by the present or any prior owner of the Premises, any receiver who may be appointed in this action, or the plaintiff in exercise of its rights under the Note and Mortgage), and will incur expenses (including counsel fees) for the legal services of plaintiff's attorneys in the institution and prosecution of this action, and, pursuant to the Mortgage, said expenditures are secured thereby; any sums so paid or incurred by {A268750;1} it shall be added to the sums otherwise due and be deemed secured by the Mortgage and adjudged a valid lien on the Premises. 22. That the plaintiff is now the sole, true and lawful owner of the said Note and Mortgage securing the same and there are no pending proceedings at law or otherwise to collect or enforce Plaintiff's interest therein. 23. On or about December 7, 2012, defendant Osman Bessa (the “Guarantor") individually, executed and delivered to plaintiff a guaranty of payment (the “Guaranty") whereby said defendant, guaranteed payment of the debt secured by the Mortgage. 24. Upon information and belief, each of the defendants, including but not limited to the aforementioned defendants, have or claim to have some interest in, or lien upon, the said Premises or some part thereof, which interest or lien, if any, is subject and subordinate to the lien of the plaintiff's Mortgage. 25. That Schedule "1" and “2” are expressly incorporated and made a part of the Verified Complaint for all purposes with the same force and effect as if they were completely and fully set forth herein whenever reference has been made to each or any of them. 26. That if the Premises consist of more than one parcel, plaintiff respectfully requests that the judgment of foreclosure provide for the parcels to be sold as one parcel. 27. Plaintiff has no adequate remedy at law. 28. No other action has been commenced at law or otherwise for the recovery of the indebtedness evidenced and secured by the Mortgage. 29. That the defendants, "JOHN DOE NO. 1” “JOHN DOE NO. 10" are fictitious persons who ate unknown to plaintiff, who may claim to have some interest in, tenancy at, or lien upon the Premises, or some part thereof, which interest or lien, if any, is subject and {A268750;1} subordinate to the lien of the Mortgage. 30. The Premises are subject to, and should be sold subject to the following and as existing at the time of delivery of the Referee's deed: (a) any state of facts an accurate survey of the Premises would show; (b) encroachments, covenants, restrictions and easements of record; © the lien of street vault charges, if any; @ any violations of record, including but not limited to any sidewalk repair notices and violations, ) building and zoning restrictions and ordinances of the municipality in which the Premises are located and possible violations of same; @ any state of facts a physical inspection of the Premises would disclose; ) rights, if any, of tenants or persons in possession of the subject Premises; @) the right, if any, of the United States of America to redeem as stated by law. WHEREFORE, plaintiff demands judgment: 1 That the defendants and each of them and all persons claiming under them or any of them, subsequent to the commencement of this action and the filing of a notice of pendency thereof, be barred and foreclosed of and from all estate, right, title, interest, claim, lien and equity of redemption of, in and to the Premises and each and every part and parcel thereof; 2. That the Premises be decreed to be sold subject to the provisions of paragraph 26 herein and according to law; 3 That the monies arising from the sale thereof may be brought into Court; {A268750;1} 4. That plaintiff may be paid the amount due on the Note and Mortgage, and as hereinbefore set forth, with interest and all other charges due thereon, computed as provided therein to the time of such payment, and also be paid the expense of such sale, together with the costs, allowances and disbursements of this action, and the expense (including counsel fees) for the legal services of plaintiff's attorneys in the institution and prosecution of this action, together with any monies advanced and paid pursuant to any term or provision of the Note and Mortgage, or advanced and paid to protect the liens of the Mortgage, together with taxes, water and sewer charges and other charges and liens thereon to be paid, including amounts that may be due to any receiver appointed by the Court in this action, and amounts that may be due for labor and materials furnished or to be furnished thereto including materials and services to protect and maintain the Premises and including materials and services to guard and secure the Premises (whether such amounts shall have been incurred by the present or any prior owner of the Premises, and receiver who may be appointed in this action), with interest upon said amounts from the dates of the respective payments and advances thereof, so far as the amount of such monies properly applicable thereto will pay the same. 5 That the defendant 35 West be adjudged to pay the whole residue, or-so much thereof as the Court may determine to be just and equitable, of the debt remaining unsatisfied after a sale of the Premises and the application of the proceeds pursuant to the direction contained in such judgment; and that the defendant, Osman Bessa, be adjudged to pay the amount due upon a deficiency after foreclosure pursuant to the Guaranty, together with interest thereon. 6. That in the event that plaintiff possesses any other lien(s) against said Premises either by way of judgment, junior mortgage or otherwise, plaintiff requests that {A268750;1} such other lien(s) shall not be merged in plaintiff's cause(s) of action set forth in this complaint but that plaintiff shall be permitted to enforce said other lien(s) and/or seek determination of priority thereof in any independent action(s) or proceedings(s), including, without limitation, any surplus money proceedings, and that the plaintiff may have such other and further relief, or both, in the Premises, as may be just and equitable. 7. That this Court, if requested, forthwith appoint a Receiver of the rents and profits of said Premises with the usual powers and duties; 8. That Brick 838 Capital LLC may have such other and further relief, or both, in the Premises, as may be just and equitable. Dated: Huntington, New York January 28, 2014 ‘Yours etc., LYNCH & ASSOCIATES B Ronni J. Ginsberg. Attorneys for Plaintiff 462 Seventh Avenue, 12" Floor New York, New York 10018 (631) 547-1000 {A268750;1} Schedule 1-Defendants 35 West 26™ Street Realty LLC Record owner of Premises being foreclosed 35 West 26™ Street herein by virtue of Mortgages recited herein. Ground Floor New York, NY 10010 Osman Bessa Guarantor 35 West 26™ Street Ground Floor New York, NY 10010 HSBC Bank, USA, National Association Senior lien holder Documenation Avenue 18" Floor Buffalo, New York 14203 JOHN DOE No.1 through Said name being fictitious, it being the JOHN DOE No.10 intention of plaintiff to designate any and ail occupants of Premises being foreclosed herein, and generally all persons or parties, if any, having or claiming an interest in or lien upon the Premises described in the Verified Complaint. {A268750;1} edule -2 Defendants Environmental Control Board Named as a party defendant to extinguish Control Board of the City of New York any and all liens it has against the Premises 505 Fulton Street being foreclosed herein which liens are due Brooklyn, New York 11201 to any possible outstanding New York City Environmental Control Board liens as set forth in the Exhibit “B” annexed hereto. New York State Named as a party defendant to extinguish Department of Taxation & Finance any and all liens it has or may have against WA Harriman Campus the Premises being foreclosed herein. Albany, New York 12227 {A268750;2)}