Preview
(FILED: NEW YORK COUNTY CLERK 09/07/2012) INDEX NO. 153511/2012
NYSCEF DOC. NO. 22 RECEIVED NYSCEF 09/07/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
mace nonce ent neen
nt ee mmee,
SCOTT W. WRIGHT, P.C., REPLY AFFIRMATION
Plaintiff(s),
-against-
MS GLOBAL FINANCE LLC, MUSDEN FINANCIAL
SERVICE LLC, MS GLOBAL HOUSING, LLC,
GLOBAL FUNDING, LLC, KEN MACKAY,
and MICHAEL SHORE, Index No.: 153511/12
Defendant(s).
--X
1, LORENZO V. DE LILLO, an attorney duly licensed and admitted to practice law
before the Courts of the State of New York, hereby affirm the following under penalty of
perjury, pursuant to CPLR 2106:
4
lam counsel to the Defendants, MS GLOBAL FINANCE LLC, MUSDEN FINANCIAL
SERVICE LLC, MS GLOBAL HOUSING, LLC, MS GLOBAL FUNDING, LLC (i/s/h/a
Global Funding, LLC), KEN MACKAY and MICHAEL SHORE (collectively
hereinafter, “Defendants’). | am fully familiar with the facts and circumstances
surrounding lawsuit based upon information contained in the legal file maintained by
my office and further upon discussions with the principal of Defendants herein.
This Affirmation is hereby submitted in Reply to Plaintiff's Affidavit in Opposition to
Defendants’ Motion, and is further submitted in Opposition to Plaintiff's cross-motion
for an order granting leave for Plaintiff to amend its Amended Complaint dated June
29, 2012, pursuant to CPLR 3025(b). This Reply Affirmation is further supported by
the supplemental Affidavit of Ken Mackay, attached and incorporated hereto as
Exhibit A.
The Defendants’ underlying motion should be granted (and Plaintiff's cross-motion
consequently denied) in that the Plaintiff's Amended Complaint admittedly failed to
satisfy the jurisdictional requirement of commencing a tawsuit in satisfaction of the
pleading requirements of 22 NYCRR Part 137. Hence, the Plaintiff's Amended
Complaint should be dismissed, or in the alternative this matter should be dismissed
or stayed and directed to resolution by arbitration pursuant to CPLR 7503. Plaintiff
never provided notice of Defendants’ right to seek arbitration, a right which
Defendants’ are categorically allowed consideration to pursue. Plaintiff's failure to
provide such notice, and to unilaterally determine that arbitration is not available,
serves only to undermine Defendants’ right to pursue an abbreviated and
economical method of dispute resolution available to them.
It is settled law that where a plaintiff-attorney fails to satisfy the mandatory notice
and pleading requirements of 22 NYCRR Part 137, et seq., the appropriate remedy
is dismissal of the action. See, Paiken v. Tsirelman, 266 AD2d 136 (1° Dept. 1999),
Abramson Law Group, PLLC v. Bell, 28 Misc 3d 135(A) (App. Term 1°' Dept. 2010);
Mintz & Gold LLP v. Daibes, 2011 NY Slip Op 30985(U) (Sup. Ct. New York County
2011); Wexler & Burhkart, LLP v. Grant, 12 Misc 3d 1162(A) (Sup. Ct. Nassau
County 2006); Lorin v. 501 Second Street LLC, 2 Mise 3d 646 (Civ. Ct. Kings County
2003). A plaintiff-attorney specifically cannot avoid the mandatory notice and
pleading requirements imposed upon lawyers on the basis that (1) the defendant-
client did not affirmatively object to the billings (See, Wexler, supra), (2) there is an
affirmative defense or some allegation of legal malpractice (See, Lorin, supra), or (3)
the total amount of the legal bills exceeds $50,000 but the disputed amount is within
$50,000 (See, Mintz & Gold, supra).
Plaintiff's contention that Defendants never objected to its bills is of no substance in
light of the fact that Defendant Mackay did raise concerns of the billings in their
meeting of on or about June 26, 2012 and, regardless of such indication to Plaintiff,
such notice is not required as a pre-requisite for Plaintiff's compliance with the notice
and pleading requirements of 22 NYCRR Part 137. See, Mackay Affidavit,
paragraph 10, ExhibitA to Defendants’ Notice of Motion. See, also, Wexler, supra.
6. With respect to the amount in controversy, Defendants have stated in their prior
Affidavits that there is no expectation that the amount in controversy is to exceed
$50,000, thus substantiating from the Defendants its scope of claimed controversy of
the total legal bills in question. See, Mackay Affidavit, paragraph 10, Exhibit A to
Defendants’ Notice of Motion; see, also, Shore Affidavit, paragraph 13, Exhibit B to
Defendant's Notice of Motion. In Mintz & Gold, supra, the Court considered and
held that a matter which involved claimed unpaid legal bills in the amount of
$81,049.65 still required Plaintiff's pre-requisite satisfaction of the 22 NYCRR Part
137. Further, in Eisman Levine Lehrhaupt & Kakoviannis, P.C. v. Torino Jewelers,
44 AD3D 581 (1% Dept. 2007), citied in support by Plaintiff, although the Court
denied defendant's motion to stay the underlying court action in furtherance of
arbitration, the operative issue in Eisman Levine was not with respect to the amount
of bills in controversy, but rather as to the ceiling of the total amount that should
have been billed for work performed after an order to cease legal work was given to
the plaintiff-attorney ($49,000 vs. $60,000). Since a ceiling had not been
established, the Court in Eisman Levine as to the total amount that was billed
prevented was unable to approve procedure to arbitration. Here, however, the
parties recognize $180,000 as the ceiling, but Defendants have acknowledge an
amount of controversy not exceeding $50,000, hence warranting consideration by
arbitration.
Addressing the matter that 22 NYCRR Part 137 would not apply in the event of the
existence of arbitration with respect to substantial jegal questions, including
malpractice or misconduct, the Defendants have not commenced any claim of
malpractice against Plaintiff, but Defendants do raise questions as to affect of
mishandling certain corporate records modification of records without client approval
upon Plaintiffs billing. Such is not outside the scope of an arbitrator's consideration.
See, Lorin, supra, where the Court held that an allegation of malpractice as an
affirmative defense could not relieve a lawyer's requirement to comply with 22
NYCRR Rule 737 as said lawyer cannot be the one to determine if arbitration is
excepted.
8. Further, with respect to Plaintiff's allegations of fraud against Defendants, Ken
Mackay and Michael Shore, Defendants’ moving papers, Affidavits in Support, and
proposed Answer are replete with denials to the allegations as a matter of fact and
of law, and Defendants further raise as its First Affirmative Defense in their proposed
Answer that Plaintiff failed to state a cause of action in its Amended Complaint upon
which relief may be sought. Arbitration does not specifically exclude consideration
of fraud allegations, especially here since the factual basis of said fraud (although
vehemently denied by Defendants) is intertwined with Plaintiff's presumptions as to
the sources and uses of the third-party life-line of funds as it relates to the payment
of attorneys’ fees. See, MacKay’s Affidavit, Exhibit A hereto, whereby he states that
the life-line was paid in installments over time to, as reiterated from his prior
Affidavit, address certain necessary operating expenses that Plaintiff, in reality, was
simply not privy to, but Plaintiff's assumptions and guesswork form the basis of his
fraud claim against Mackay and Shore. Defendants operated openly and in good
faith with Plaintiff in difficult financial times, but Plaintiff's response of suing Mackay
and Shore in fraud was simply unfounded. The Court here (if it decides not to
dismiss the lawsuit) is empowered to make such determination to move this matter
to arbitration, or to otherwise (in the alternative) stay these proceedings while the fee
dispute is resolved between the parties at arbitration.
Additionally, with respect to Defendants’ motion to dismiss the Third and Fourth
Causes of Action of Plaintiff's Amended Complaint, the documentary evidence in the
form of the letter agreements attached as Exhibits C, D and E of Defendants’
underlying motion papers, clearly shows that the obligors of the attorney retention
was Musden Global Finance, LLC and Musden Financial Services, LLC. Whether
Plaintiff seeks payment of attorney's fees for any minimal work performed for MS
Global Housing, LLC or MS Global Funding, LLC is moot since these entities are not
a party or bound to the underlying retainer agreements before this Court, especially
parties to a continued monthly payment agreement which forms the basis of
Plaintiff's lawsuit in chief. The documents evidence and leave no ambiguity that the
obligors of the fee arrangement between the parties was to be paid by Global
Finance and Musden Financial, whether minimal additional work was performed for
Housing and Funding.
10. Moreover, with respect to Plaintiff's cross-motion, Plaintiff's attempt to remedy its
jurisdictional defect by adding procedural language that merely states that arbitration
pursuant to 22 NYCRR Rule 137 is not applicable in this matter is palpably improper.
Based on the arguments raised in Defendants’ underlying motion and further
supported in these Reply papers, arbitration is warranted notice should have been
given to Defendants. Defendants, therefore, shall in fact be prejudiced by not having
the right to proceed to arbitration if such cross-motion is granted. Further prejudice
is had by Defendants in that a proposed Amended Complaint is not even attached to
Plaintiff's cross-motion papers for Defendants’ (or this Court’s) review of substance
and content. The remedy Plaintiff seeks here is simply not available to Plaintiff,
especially where Plaintiff unilaterally determines that the dispute is not covered by
22 NYCRR Part 137, when in fact it is.
WHEREFORE, it is respectfully prayed to this honorable Court dismiss the Summons
and Amended Complaint of Plaintiff, or in the alternative to stay the instant action and to direct
the parties to arbitration, and to (ii) dismiss the Third and Fourth Causes of Action against MS
GLOBAL HOUSING, LLC and MS GLOBAL FUNDING, LLC, together with such other and
further relief this court deems just and proper.
Dated: September 6, 2012
New York, New York
yf,
LORENZO V. DE/LILLO
Exhibit “A”
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
o ———-X
SCOTT W. WRIGHT, P.C., AFFIDAVIT
Plaintiff(s),
-against-
MS GLOBAL FINANCE LLC, MUSDEN FINANCIAL
SERVICE LLC, MS GLOBAL HOUSING, LLC,
GLOBAL FUNDING, LLC, KEN MACKAY,
and MICHAEL SHORE, Index No.: 153511/12
Defendant(s).
—-X
STATE OF NEW YORK
COUNTY OF NEW YORK } ss:
|, KEN MACKAY, being duly sworn, depose and say the following as true under penalty
of perjury:
1 | am the Chief Executive of MS GLOBAL FINANCE LLC, MUSDEN FINANCIAL
SERVICE LLC, MS GLOBAL HOUSING, LLC, MS GLOBAL FUNDING, LLC
(collectively with reference to myself as a co-defendant hereinafter, “Defendants”),
and, as such, | am fully and personally familiar with the facts and circumstances
surrounding the matter which is the subject matter of this lawsuit.
This Affidavit is submitted to supplement my prior Affidavit in Support of Motion so
as to address certain allegations contained in Plaintiff's opposition to Defendants’
motion before this Court.
In 2010 the Defendants obtained an investment from third-party Roberto Yacobi as a
“life-line” to cover actual and projected operational cash flow for the Defendants.
Contrary to Plaintiffs belief, the monies received by Mr. Yacobi were made on a
monthly basis in amounts ranging from $25,000 to $50,000, which was in fact
conditioned on the basis to cover monthly operating expenses and carrying costs
including but not limited to office rent, insurance, market data expenses, financial
reserves necessary to maintain brokerage licensing, and other expenses necessary
to keep the business running. The life-line was not a lump sum loan that included
the flexibility to cover past due amounts to any vendors, including any amounts
claimed by Plaintiff to be due. Plaintiff has not been exposed by Defendants, nor
does Plaintiff possess, the firsthand-knowledge or familiarity of Defendants’ business
operation and expenses necessary to form a basis that the Yacobi life line was not
used solely to cover expenses.
All representations made to Plaintiff regarding the fact that financial closings did not
occur from and after the Termination Notice of 2010 were true. At no time since
2010 did the Defendants close any financial closings that would have generated the
necessary income to pay Plaintiff's claimed legal fees. Plaintiff is aware of certain
bond closings and settlements which occurred in 2009 in which Plaintiff was paid
percentage commission rates pursuant to our agreement with him. We have always
operated with an open book as far with Plaintiff as far as deals that have closed and
deals that were in the pipe line to expect to close, and for Plaintiff to now suggest
that we kept back the closing of deals is simply baseless and untrue.
For additional clarity, Plaintiff notes that the in our June 26, 2012 meeting, | had
referenced in my prior Affidavit that at the conclusion of the meeting that Plaintiff
threatened to sue “us”. The meaning of that statement was that Plaintiff advised that
he would sue myself and Mr. Shore (“us”), as individuals, to the earlier-filed lawsuit.
| respectfully request that this Court grant my application herein to dismiss this
lawsuit or to otherwise move this matter to arbitration accordingly.
[Signature Page to Follow]
rn to,before me on 1S
da September, 12
Not Public
LORENZO V. DeLt! LLO
NEW YORK
* STATE O! fF
PUBLIC
NOTARY Reg. No. O2DB6038738
Qualified in Nassau County
pad
:
Commission Expires May 24,
Attorney’s Certification
i
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to prac tice . the courts of the State of
New York, certifies that, upon information and belief and reasonabl Inquipy, tl ntepitions contained in the
annexed document are not frivolous.
i
Dated: September 6, 2012 Signature
Print Signer’s me: orenzo V. reLillo, Esq
VERIFICATION
I, the undersigned, am an attorney admitted to practice in the courts of New York, herby certify the following
pursuant to CPLR 2106:
Tam an the attomey of record, or of counsel with the attorney(s) of record for the Defendants MS GLOBAL
FINANCE LLC, MUSDEN FINANCIAL SERVICE LLC, MS GLOBAL HOUSING, LLC MS GLOBAL
FUNDING LLC (i/s/h/a Global Funding LLC), KEN MACKAY and MICHAEL SHORE, in the within action.
I the annexed Reply Affirmation and attached documents and know the contents thereof and the same are true to
my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to
those matters | believe them to be true. The reason I make this affirmation instead of the Defendants herein
listed is that said Defendants are unavailable in the County where your affirmant maintains his office as of the
date and time when such Verification was to be made.
I affirm that the foregoing statements are true under penalties of perjury.
Dated: September 6, 2012 Signature Ve I
Print Signer’s N : Logenzo V. DeLiffo, Esq.
State of New York
County of New York } ss:
|, ALEX CARINI, being duly sworn, depose and say the following as true under penalty
of perjury:
lam over the age of eighteen and am not a party to the above-entitled action. |
reside in New York County, State of New York.
That on the 6™ day of September, | served a copy of the Reply Affirmation
upon the plaintiff, SCOTT W. WRIGHT, P.C., in a sealed envelope and
addressed to 166 Edgars Lane, Hastings-on-Hudson, New York 10706, and
placed the same in a depository or postal box maintained and under the
exclusive control of the United States Postal Service.
GLE.
Alex Carini
Gi
m to before me on this
lay/of September/2012,
uf
Nofary
P ic
RENZOV ‘OF NEW YORE
NOTARY
PUBLY gDe
5738
ed in Nassau Coun!
Quali Expitt
24,
Preview
(FILED: NEW YORK COUNTY CLERK 09/07/2012) INDEX NO. 153511/2012 NYSCEF DOC. NO. 22 RECEIVED NYSCEF 09/07/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK mace nonce ent neen nt ee mmee, SCOTT W. WRIGHT, P.C., REPLY AFFIRMATION Plaintiff(s), -against- MS GLOBAL FINANCE LLC, MUSDEN FINANCIAL SERVICE LLC, MS GLOBAL HOUSING, LLC, GLOBAL FUNDING, LLC, KEN MACKAY, and MICHAEL SHORE, Index No.: 153511/12 Defendant(s). --X 1, LORENZO V. DE LILLO, an attorney duly licensed and admitted to practice law before the Courts of the State of New York, hereby affirm the following under penalty of perjury, pursuant to CPLR 2106: 4 lam counsel to the Defendants, MS GLOBAL FINANCE LLC, MUSDEN FINANCIAL SERVICE LLC, MS GLOBAL HOUSING, LLC, MS GLOBAL FUNDING, LLC (i/s/h/a Global Funding, LLC), KEN MACKAY and MICHAEL SHORE (collectively hereinafter, “Defendants’). | am fully familiar with the facts and circumstances surrounding lawsuit based upon information contained in the legal file maintained by my office and further upon discussions with the principal of Defendants herein. This Affirmation is hereby submitted in Reply to Plaintiff's Affidavit in Opposition to Defendants’ Motion, and is further submitted in Opposition to Plaintiff's cross-motion for an order granting leave for Plaintiff to amend its Amended Complaint dated June 29, 2012, pursuant to CPLR 3025(b). This Reply Affirmation is further supported by the supplemental Affidavit of Ken Mackay, attached and incorporated hereto as Exhibit A. The Defendants’ underlying motion should be granted (and Plaintiff's cross-motion consequently denied) in that the Plaintiff's Amended Complaint admittedly failed to satisfy the jurisdictional requirement of commencing a tawsuit in satisfaction of the pleading requirements of 22 NYCRR Part 137. Hence, the Plaintiff's Amended Complaint should be dismissed, or in the alternative this matter should be dismissed or stayed and directed to resolution by arbitration pursuant to CPLR 7503. Plaintiff never provided notice of Defendants’ right to seek arbitration, a right which Defendants’ are categorically allowed consideration to pursue. Plaintiff's failure to provide such notice, and to unilaterally determine that arbitration is not available, serves only to undermine Defendants’ right to pursue an abbreviated and economical method of dispute resolution available to them. It is settled law that where a plaintiff-attorney fails to satisfy the mandatory notice and pleading requirements of 22 NYCRR Part 137, et seq., the appropriate remedy is dismissal of the action. See, Paiken v. Tsirelman, 266 AD2d 136 (1° Dept. 1999), Abramson Law Group, PLLC v. Bell, 28 Misc 3d 135(A) (App. Term 1°' Dept. 2010); Mintz & Gold LLP v. Daibes, 2011 NY Slip Op 30985(U) (Sup. Ct. New York County 2011); Wexler & Burhkart, LLP v. Grant, 12 Misc 3d 1162(A) (Sup. Ct. Nassau County 2006); Lorin v. 501 Second Street LLC, 2 Mise 3d 646 (Civ. Ct. Kings County 2003). A plaintiff-attorney specifically cannot avoid the mandatory notice and pleading requirements imposed upon lawyers on the basis that (1) the defendant- client did not affirmatively object to the billings (See, Wexler, supra), (2) there is an affirmative defense or some allegation of legal malpractice (See, Lorin, supra), or (3) the total amount of the legal bills exceeds $50,000 but the disputed amount is within $50,000 (See, Mintz & Gold, supra). Plaintiff's contention that Defendants never objected to its bills is of no substance in light of the fact that Defendant Mackay did raise concerns of the billings in their meeting of on or about June 26, 2012 and, regardless of such indication to Plaintiff, such notice is not required as a pre-requisite for Plaintiff's compliance with the notice and pleading requirements of 22 NYCRR Part 137. See, Mackay Affidavit, paragraph 10, ExhibitA to Defendants’ Notice of Motion. See, also, Wexler, supra. 6. With respect to the amount in controversy, Defendants have stated in their prior Affidavits that there is no expectation that the amount in controversy is to exceed $50,000, thus substantiating from the Defendants its scope of claimed controversy of the total legal bills in question. See, Mackay Affidavit, paragraph 10, Exhibit A to Defendants’ Notice of Motion; see, also, Shore Affidavit, paragraph 13, Exhibit B to Defendant's Notice of Motion. In Mintz & Gold, supra, the Court considered and held that a matter which involved claimed unpaid legal bills in the amount of $81,049.65 still required Plaintiff's pre-requisite satisfaction of the 22 NYCRR Part 137. Further, in Eisman Levine Lehrhaupt & Kakoviannis, P.C. v. Torino Jewelers, 44 AD3D 581 (1% Dept. 2007), citied in support by Plaintiff, although the Court denied defendant's motion to stay the underlying court action in furtherance of arbitration, the operative issue in Eisman Levine was not with respect to the amount of bills in controversy, but rather as to the ceiling of the total amount that should have been billed for work performed after an order to cease legal work was given to the plaintiff-attorney ($49,000 vs. $60,000). Since a ceiling had not been established, the Court in Eisman Levine as to the total amount that was billed prevented was unable to approve procedure to arbitration. Here, however, the parties recognize $180,000 as the ceiling, but Defendants have acknowledge an amount of controversy not exceeding $50,000, hence warranting consideration by arbitration. Addressing the matter that 22 NYCRR Part 137 would not apply in the event of the existence of arbitration with respect to substantial jegal questions, including malpractice or misconduct, the Defendants have not commenced any claim of malpractice against Plaintiff, but Defendants do raise questions as to affect of mishandling certain corporate records modification of records without client approval upon Plaintiffs billing. Such is not outside the scope of an arbitrator's consideration. See, Lorin, supra, where the Court held that an allegation of malpractice as an affirmative defense could not relieve a lawyer's requirement to comply with 22 NYCRR Rule 737 as said lawyer cannot be the one to determine if arbitration is excepted. 8. Further, with respect to Plaintiff's allegations of fraud against Defendants, Ken Mackay and Michael Shore, Defendants’ moving papers, Affidavits in Support, and proposed Answer are replete with denials to the allegations as a matter of fact and of law, and Defendants further raise as its First Affirmative Defense in their proposed Answer that Plaintiff failed to state a cause of action in its Amended Complaint upon which relief may be sought. Arbitration does not specifically exclude consideration of fraud allegations, especially here since the factual basis of said fraud (although vehemently denied by Defendants) is intertwined with Plaintiff's presumptions as to the sources and uses of the third-party life-line of funds as it relates to the payment of attorneys’ fees. See, MacKay’s Affidavit, Exhibit A hereto, whereby he states that the life-line was paid in installments over time to, as reiterated from his prior Affidavit, address certain necessary operating expenses that Plaintiff, in reality, was simply not privy to, but Plaintiff's assumptions and guesswork form the basis of his fraud claim against Mackay and Shore. Defendants operated openly and in good faith with Plaintiff in difficult financial times, but Plaintiff's response of suing Mackay and Shore in fraud was simply unfounded. The Court here (if it decides not to dismiss the lawsuit) is empowered to make such determination to move this matter to arbitration, or to otherwise (in the alternative) stay these proceedings while the fee dispute is resolved between the parties at arbitration. Additionally, with respect to Defendants’ motion to dismiss the Third and Fourth Causes of Action of Plaintiff's Amended Complaint, the documentary evidence in the form of the letter agreements attached as Exhibits C, D and E of Defendants’ underlying motion papers, clearly shows that the obligors of the attorney retention was Musden Global Finance, LLC and Musden Financial Services, LLC. Whether Plaintiff seeks payment of attorney's fees for any minimal work performed for MS Global Housing, LLC or MS Global Funding, LLC is moot since these entities are not a party or bound to the underlying retainer agreements before this Court, especially parties to a continued monthly payment agreement which forms the basis of Plaintiff's lawsuit in chief. The documents evidence and leave no ambiguity that the obligors of the fee arrangement between the parties was to be paid by Global Finance and Musden Financial, whether minimal additional work was performed for Housing and Funding. 10. Moreover, with respect to Plaintiff's cross-motion, Plaintiff's attempt to remedy its jurisdictional defect by adding procedural language that merely states that arbitration pursuant to 22 NYCRR Rule 137 is not applicable in this matter is palpably improper. Based on the arguments raised in Defendants’ underlying motion and further supported in these Reply papers, arbitration is warranted notice should have been given to Defendants. Defendants, therefore, shall in fact be prejudiced by not having the right to proceed to arbitration if such cross-motion is granted. Further prejudice is had by Defendants in that a proposed Amended Complaint is not even attached to Plaintiff's cross-motion papers for Defendants’ (or this Court’s) review of substance and content. The remedy Plaintiff seeks here is simply not available to Plaintiff, especially where Plaintiff unilaterally determines that the dispute is not covered by 22 NYCRR Part 137, when in fact it is. WHEREFORE, it is respectfully prayed to this honorable Court dismiss the Summons and Amended Complaint of Plaintiff, or in the alternative to stay the instant action and to direct the parties to arbitration, and to (ii) dismiss the Third and Fourth Causes of Action against MS GLOBAL HOUSING, LLC and MS GLOBAL FUNDING, LLC, together with such other and further relief this court deems just and proper. Dated: September 6, 2012 New York, New York yf, LORENZO V. DE/LILLO Exhibit “A” SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK o ———-X SCOTT W. WRIGHT, P.C., AFFIDAVIT Plaintiff(s), -against- MS GLOBAL FINANCE LLC, MUSDEN FINANCIAL SERVICE LLC, MS GLOBAL HOUSING, LLC, GLOBAL FUNDING, LLC, KEN MACKAY, and MICHAEL SHORE, Index No.: 153511/12 Defendant(s). —-X STATE OF NEW YORK COUNTY OF NEW YORK } ss: |, KEN MACKAY, being duly sworn, depose and say the following as true under penalty of perjury: 1 | am the Chief Executive of MS GLOBAL FINANCE LLC, MUSDEN FINANCIAL SERVICE LLC, MS GLOBAL HOUSING, LLC, MS GLOBAL FUNDING, LLC (collectively with reference to myself as a co-defendant hereinafter, “Defendants”), and, as such, | am fully and personally familiar with the facts and circumstances surrounding the matter which is the subject matter of this lawsuit. This Affidavit is submitted to supplement my prior Affidavit in Support of Motion so as to address certain allegations contained in Plaintiff's opposition to Defendants’ motion before this Court. In 2010 the Defendants obtained an investment from third-party Roberto Yacobi as a “life-line” to cover actual and projected operational cash flow for the Defendants. Contrary to Plaintiffs belief, the monies received by Mr. Yacobi were made on a monthly basis in amounts ranging from $25,000 to $50,000, which was in fact conditioned on the basis to cover monthly operating expenses and carrying costs including but not limited to office rent, insurance, market data expenses, financial reserves necessary to maintain brokerage licensing, and other expenses necessary to keep the business running. The life-line was not a lump sum loan that included the flexibility to cover past due amounts to any vendors, including any amounts claimed by Plaintiff to be due. Plaintiff has not been exposed by Defendants, nor does Plaintiff possess, the firsthand-knowledge or familiarity of Defendants’ business operation and expenses necessary to form a basis that the Yacobi life line was not used solely to cover expenses. All representations made to Plaintiff regarding the fact that financial closings did not occur from and after the Termination Notice of 2010 were true. At no time since 2010 did the Defendants close any financial closings that would have generated the necessary income to pay Plaintiff's claimed legal fees. Plaintiff is aware of certain bond closings and settlements which occurred in 2009 in which Plaintiff was paid percentage commission rates pursuant to our agreement with him. We have always operated with an open book as far with Plaintiff as far as deals that have closed and deals that were in the pipe line to expect to close, and for Plaintiff to now suggest that we kept back the closing of deals is simply baseless and untrue. For additional clarity, Plaintiff notes that the in our June 26, 2012 meeting, | had referenced in my prior Affidavit that at the conclusion of the meeting that Plaintiff threatened to sue “us”. The meaning of that statement was that Plaintiff advised that he would sue myself and Mr. Shore (“us”), as individuals, to the earlier-filed lawsuit. | respectfully request that this Court grant my application herein to dismiss this lawsuit or to otherwise move this matter to arbitration accordingly. [Signature Page to Follow] rn to,before me on 1S da September, 12 Not Public LORENZO V. DeLt! LLO NEW YORK * STATE O! fF PUBLIC NOTARY Reg. No. O2DB6038738 Qualified in Nassau County pad : Commission Expires May 24, Attorney’s Certification i Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to prac tice . the courts of the State of New York, certifies that, upon information and belief and reasonabl Inquipy, tl ntepitions contained in the annexed document are not frivolous. i Dated: September 6, 2012 Signature Print Signer’s me: orenzo V. reLillo, Esq VERIFICATION I, the undersigned, am an attorney admitted to practice in the courts of New York, herby certify the following pursuant to CPLR 2106: Tam an the attomey of record, or of counsel with the attorney(s) of record for the Defendants MS GLOBAL FINANCE LLC, MUSDEN FINANCIAL SERVICE LLC, MS GLOBAL HOUSING, LLC MS GLOBAL FUNDING LLC (i/s/h/a Global Funding LLC), KEN MACKAY and MICHAEL SHORE, in the within action. I the annexed Reply Affirmation and attached documents and know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters | believe them to be true. The reason I make this affirmation instead of the Defendants herein listed is that said Defendants are unavailable in the County where your affirmant maintains his office as of the date and time when such Verification was to be made. I affirm that the foregoing statements are true under penalties of perjury. Dated: September 6, 2012 Signature Ve I Print Signer’s N : Logenzo V. DeLiffo, Esq. State of New York County of New York } ss: |, ALEX CARINI, being duly sworn, depose and say the following as true under penalty of perjury: lam over the age of eighteen and am not a party to the above-entitled action. | reside in New York County, State of New York. That on the 6™ day of September, | served a copy of the Reply Affirmation upon the plaintiff, SCOTT W. WRIGHT, P.C., in a sealed envelope and addressed to 166 Edgars Lane, Hastings-on-Hudson, New York 10706, and placed the same in a depository or postal box maintained and under the exclusive control of the United States Postal Service. GLE. Alex Carini Gi m to before me on this lay/of September/2012, uf Nofary P ic RENZOV ‘OF NEW YORE NOTARY PUBLY gDe 5738 ed in Nassau Coun! Quali Expitt 24,