On July 17, 2019 a
Motion-Secondary
was filed
involving a dispute between
31 East 28Th Street Note Buyer Llc,
and
Hagai Laniado,
Jack Terzi,
for Commercial Division
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 10/17/2019 12:15 PM INDEX NO. 654085/2019
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/17/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
31 EAST 28TH STREET NOTE BUYER LLC,
Plaintiff, REPLY AFFIRMATION
v.
Index No.: 654085/2019
JACK TERZI and HAGAI LANIADO,
Defendants.
JOHN K. McANDREW, an attorney duly permitted to practice before the Courts of the
State of New York, does hereby affirm under penalty of perjury pursuant to CPLR § 2106 as
follows:
1. I am a partner with the firm of Woods Oviatt Gilman LLP, attorneys for the Plaintiff
in the above-captioned matter. As such, I am familiar with the facts stated herein. I make this
affirmation in further support of Plaintiffs motion for summary judgment pursuant to CPLR §
3213, and in opposition to Defendant's cross-motion to dismiss or stay filed on October 11, 2019
[NYSCEF Doc. No. 14] (the "Cross-Motion").
2. I am fully familiar with the prior action commenced by Plaintiff in New York
Supreme Court, New York County wherein Plaintiff sought to foreclose his mortgage loan on real
property located at 31 East 28th Street, New York based upon a default by defendants-namely, the
failure to maintain minimum funds in a cash collateral account per the terms of the agreements
between the parties. (Index No. 850193/2017) (the "Prior Action").
3. After issue was joined in the Prior Action, Plaintiff moved for summary judgment
dismissing counterclaims asserted by defendants, as well as a third-party claim asserted by JTRE
Park 28 LLC.
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FILED: NEW YORK COUNTY CLERK 10/17/2019 12:15 PM INDEX NO. 654085/2019
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/17/2019
4. Defendants in the Prior Action cross-moved for summary judgment dismissing
the complaint in the Prior Action, and the prior Court ruled on both motions in a Decision and
Order dated May 21, 2019 [NYSCEF Doc. No. 163] (the "May 21 Order"). A copy of the May
21 Order is annexed hereto as Exhibit A.
5. In the May 21 Order, the prior Court held that the default notice precipitating the
foreclosure in that action was invalid because it gave defendants insufficient time to cure their
default.
6. As a result of this holding, the prior Court dismissed Plaintiffs motion for
summary judgment, granted defendants' motion for summary judgment dismissing the
complaint, and directed the clerk "to enter judgment accordingly with costs and disbursements."
7. I have reviewed filings in the Prior Action and had discussions with my client and its
attorneys in the Prior Action, and I therefore learned that following the May 21 Order, the Prior
Action was marked "disposed" by the court clerk.
8. I also learned that the defendants in the Prior Action subsequently expressed the
position that their counterclaims were still live and thus the Prior Action was still active.
9. In an effort to clarify that the May 21 Order disposed of the Prior Action in its
entirety, Plaintiff, through counsel in that case, filed a motion to modify or clarify the May 21
Order [NYSCEF Doc. Nos. 169-174]. A copy of Plaintiffs memorandum of law in support of
the motion to modify or clarify is annexed hereto as Exhibit B.
10. In addition, in order to preserve its rights with respect to the defendants'
counterclaims in the Prior Action, Plaintiff filed an appeal as of right with the Supreme Court of
the State of New York, Appellate Division, First Department, appealing those portions of the
May 21 Order which denied Plaintiffs motion for summary judgment to dismiss defendants'
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FILED: NEW YORK COUNTY CLERK 10/17/2019 12:15 PM INDEX NO. 654085/2019
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/17/2019
counterclaims and the third-party claim asserted by JTRE W72nd Street LLC [NYSCEF Doc. No.
168]. A copy of Plaintiffs Notice of Appeal is annexed hereto .as Exhibit C.
11. I am also familiar with an action commenced· by Plaintiff in New York Supreme
Court, New York County wherein Plaintiff is seeking to foreclose a second mortgage loan on the
real property located at 31 East 28th Street, New York (Index No. 850172/2019) (the "Second
Mortgage Action"). A copy of the Summons and Complaint in the Second Mortgage Action is
annexed hereto as Exhibit D.
12. The mortgage debt at issue in the Second Mortgage Action is a completely separate
debt from the mortgage debt involved in the above-captioned matter.
13. As the above facts demonstrate, Plaintiff has no currently pending claims in any
court related to the mortgage debt at issue here.
14. For these reasons, and those set forth in Plaintiffs accompanying Memorandum of
Law, Plaintiff respectfully requests that itsmotion for summary judgment be granted in full, and
that Defendant's Cross-Motion be denied in its entirety, together with such other and further relief
as this Court deems just and proper.
Dated: October 17, 2019
Rochester, New York
s/: John K. McAndrew
John K. McAndrew, Esq.
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Document Filed Date
October 17, 2019
Case Filing Date
July 17, 2019
Category
Commercial Division
Status
Disposed, Motion Pending
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FILED: NEW YORK COUNTY CLERK 10/17/2019 12:15 PM INDEX NO. 654085/2019 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/17/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 31 EAST 28TH STREET NOTE BUYER LLC, Plaintiff, REPLY AFFIRMATION v. Index No.: 654085/2019 JACK TERZI and HAGAI LANIADO, Defendants. JOHN K. McANDREW, an attorney duly permitted to practice before the Courts of the State of New York, does hereby affirm under penalty of perjury pursuant to CPLR § 2106 as follows: 1. I am a partner with the firm of Woods Oviatt Gilman LLP, attorneys for the Plaintiff in the above-captioned matter. As such, I am familiar with the facts stated herein. I make this affirmation in further support of Plaintiffs motion for summary judgment pursuant to CPLR § 3213, and in opposition to Defendant's cross-motion to dismiss or stay filed on October 11, 2019 [NYSCEF Doc. No. 14] (the "Cross-Motion"). 2. I am fully familiar with the prior action commenced by Plaintiff in New York Supreme Court, New York County wherein Plaintiff sought to foreclose his mortgage loan on real property located at 31 East 28th Street, New York based upon a default by defendants-namely, the failure to maintain minimum funds in a cash collateral account per the terms of the agreements between the parties. (Index No. 850193/2017) (the "Prior Action"). 3. After issue was joined in the Prior Action, Plaintiff moved for summary judgment dismissing counterclaims asserted by defendants, as well as a third-party claim asserted by JTRE Park 28 LLC. {7690246: } 1 1 of 3 FILED: NEW YORK COUNTY CLERK 10/17/2019 12:15 PM INDEX NO. 654085/2019 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/17/2019 4. Defendants in the Prior Action cross-moved for summary judgment dismissing the complaint in the Prior Action, and the prior Court ruled on both motions in a Decision and Order dated May 21, 2019 [NYSCEF Doc. No. 163] (the "May 21 Order"). A copy of the May 21 Order is annexed hereto as Exhibit A. 5. In the May 21 Order, the prior Court held that the default notice precipitating the foreclosure in that action was invalid because it gave defendants insufficient time to cure their default. 6. As a result of this holding, the prior Court dismissed Plaintiffs motion for summary judgment, granted defendants' motion for summary judgment dismissing the complaint, and directed the clerk "to enter judgment accordingly with costs and disbursements." 7. I have reviewed filings in the Prior Action and had discussions with my client and its attorneys in the Prior Action, and I therefore learned that following the May 21 Order, the Prior Action was marked "disposed" by the court clerk. 8. I also learned that the defendants in the Prior Action subsequently expressed the position that their counterclaims were still live and thus the Prior Action was still active. 9. In an effort to clarify that the May 21 Order disposed of the Prior Action in its entirety, Plaintiff, through counsel in that case, filed a motion to modify or clarify the May 21 Order [NYSCEF Doc. Nos. 169-174]. A copy of Plaintiffs memorandum of law in support of the motion to modify or clarify is annexed hereto as Exhibit B. 10. In addition, in order to preserve its rights with respect to the defendants' counterclaims in the Prior Action, Plaintiff filed an appeal as of right with the Supreme Court of the State of New York, Appellate Division, First Department, appealing those portions of the May 21 Order which denied Plaintiffs motion for summary judgment to dismiss defendants' {7690246: } 2 2 of 3 FILED: NEW YORK COUNTY CLERK 10/17/2019 12:15 PM INDEX NO. 654085/2019 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 10/17/2019 counterclaims and the third-party claim asserted by JTRE W72nd Street LLC [NYSCEF Doc. No. 168]. A copy of Plaintiffs Notice of Appeal is annexed hereto .as Exhibit C. 11. I am also familiar with an action commenced· by Plaintiff in New York Supreme Court, New York County wherein Plaintiff is seeking to foreclose a second mortgage loan on the real property located at 31 East 28th Street, New York (Index No. 850172/2019) (the "Second Mortgage Action"). A copy of the Summons and Complaint in the Second Mortgage Action is annexed hereto as Exhibit D. 12. The mortgage debt at issue in the Second Mortgage Action is a completely separate debt from the mortgage debt involved in the above-captioned matter. 13. As the above facts demonstrate, Plaintiff has no currently pending claims in any court related to the mortgage debt at issue here. 14. For these reasons, and those set forth in Plaintiffs accompanying Memorandum of Law, Plaintiff respectfully requests that itsmotion for summary judgment be granted in full, and that Defendant's Cross-Motion be denied in its entirety, together with such other and further relief as this Court deems just and proper. Dated: October 17, 2019 Rochester, New York s/: John K. McAndrew John K. McAndrew, Esq. {7690246: } 3 3 of 3