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FILED: SARATOGA COUNTY CLERK 08/21/2020 01:11 PM INDEX NO. 20162946
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/21/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SARATOGA
WEN MEI LU, CHIN CHUNG LIN LU, AFFIDAVIT OF
LI HUA LU and LU HOLDING, LLC, WEN MEI LU
Plaintiffs,
Index No.: 2016-2946
-against-
Hon. Thomas D. Nolan
WEN YING GAMBA, YUEN HSIANG LU,
WEN FU LU, and CHUEN LOU, LLC,
Defendants.
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
WEN MEI LU a/k/a IRIS LU, being duly sworn, deposes and says as follows:
1. I am the daughter of Defendant Yuen Hsiang Lu (my "Father"), younger sister of
Defendant Wen Ying Gamba ("Gamba"), and older sister of Defendant Wen Fu Lu ("Wen Fu").
Defendants'
I respectfully submit this Affidavit in opposition to motion for summary judgment,
Plaintiffs'
and in support of cross-motion for partial summary judgment.
2. My sister Patty and I purchased the Properties at issue in this litigation in the 1980s.
We have devoted our entire adult life to managing the Properties. This includes paying for the
Properties, making all mortgage payments, paying the taxes on the Properties, paying all other
carrying costs including insurance premiums, making innumerable capital improvements, repairs
and maintenance, and working with a long line of commercial tenants. The Defendants never paid
anything for the Properties and never invested a minute of labor or energy into the Properties.
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3. I am now 56 years old. My sisterPatty is 54 years old. Our Mother is 80 years old
and now requires constant supervision. In 2015 we were robbed of the Properties, and since then
have been leftwith no income. As set forth below and in the accompanying papers, we are the
Defendants'
true owners of the Properties. I plead with the Court to deny motion for summary
judgment, and allow us our day in Court.
4. From a young age, I, along with some of my brothers and sisters, worked in my
family's business. We were always told that this work would earn us ownership in the family's
commercial properties and restaurants. Defendant Gamba described this arrangement in a sworn
affidavit filed in 1996. A copy of that Affidavit is attached hereto as Exhibit A. Specifically, she
interests" businesses."
averred that she had been promised "sweat equity in the "Lu family
5. In 1984, at age 59, my Father officially retired.
6. In 1984, I purchased a restaurant building located at 175 South Broadway, Saratoga
Springs, New York 12866 (the "Duo Property"), together with my sisters,Defendant Gamba and
Plaintiff Patty. We purchased the Duo Property for $225,000.00, making a $70,000.00 down
payment and taking a mortgage in the amount of $155,000.00, at 9% interest. A copy of the Deed
is attached hereto as Exhibit B. A copy of the mortgage is attached hereto as Exhibit C.
7. The next year, in January 1985, the three of us purchased another restaurant
property, located at 3310 South Broadway in Saratoga Springs, New York (the "Hibachi
Property") (together with the Duo Property, the "Saratoga Properties"). We purchased the Hibachi
Property for $215,000.00, making a $40,000.00 down payment, and taking a mortgage in the
amount of $175,000.00, at 10% interest. A copy of the deed is attached hereto as Exhibit D. A
copy of the mortgage is attached hereto as Exhibit E.
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8. In 1987, my parents divorced. My Father moved to Taiwan shortly thereafter. He
resided in Taiwan full time until April 2015.
9. The Saratoga Properties were initially titledin Defendant Gamba's name, with the
that she was the Properties as trustee for and me - all of
understanding holding herself, Patty,
whom then intended to actively manage the Properties and share in the proceeds.
10. In 1987, Gamba married Andrew Gamba, and leftthe family business. Patty and I
bought out Gamba's interest, and Gamba deeded the Saratoga Properties, and transferred the
mortgages, to Patty. See Affidavit of Patty Lu, sworn to August 21, 2020 ("Patty Affidavit"), Exs.
A-D thereto.
11. In 1988, Plaintiffs purchased a residential property located at 4 Christian Court in
the Town of Guilderland, Albany County (the "Christian Court Property") (together with the
Saratoga Properties, the "Properties"). We purchased the Christian Court Property for
$185,000.00, paying a $55,500.00 down payment. The Christian Court Property was titled in
Patty's name. See Patty Affidavit, Ex. E. Patty acquired a mortgage loan from Chase Lincoln First
Bank, N.A. for $129,500.00, at 10% interest. See Patty Affidavit, Ex. F. On or about February 22,
1994, Patty refinanced the mortgage with OnBank Trust & Co., at 7% interest. See Patty Affidavit,
Ex. G.
12. The Christian Court Property has been my home (together with my Mother and
Patty) since itwas purchased.
13. From 1987 through 2015, my Mother, Patty, and I assumed sole responsibility for
allthree Properties at issue. In fact,for the past three decades, we have been the only members of
the Lu family to contribute any effort toward these Properties, and have contributed an enormous
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amount of money, time, and energy into managing them. Prior to this litigation, the Properties
were our only source of income.
Property,"
14. In 1991, Gamba and her husband moved into the "Hither House located
in Montauk. At that time, the Property was owned by Gamba's mother-in-law. The Hither House
Property consists of four separate buildings with year-round rental cottages for guests, a main
residence, a manager's office, and additional apartments.
15. In or around 1991, Gamba contacted Patty and I to request that we invest in Hither
House. We were happy to do so,and purchased Hither House by contract of sale dated May 12,
1992 for $474,900.00, with immediate payment of $31,900.00, a purchase money mortgage of
$225,000.00, and the balance of $188,000.00 due at closing. The resulting deed, a copy of which
is attached hereto as Exhibit F, was dated June 17, 1992, and listed the following titleholders: me
(36.5%), Patty (36.5%), Andrew Gamba (13.5%) and Defendant Gamba (13.5%). Patty and I
provided allthe funds at closing. Gamba and Andrew provided none. In exchange for their 27%
interest on the Hither House Property, they promised to invest time, work and effort.
16. In additional to assisting Gamba with the purchase of the Hither House Property,
Patty and I also acquired a parcel of vacant land in Saratoga, together with Gamba and Andrew
(the "32-acre Property"). We closed on the property on or about September 15, 1993 with Patty
and I owning 75% and Gamba and Andrew owning 25%.
17. The relationship between Patty and I, on the one hand, and Gamba, on the other
hand, quickly deteriorated while we were collectively managing Hither House. Things got bad
quickly. On one occasion, Andrew physically assaulted me while Gamba watched, providing no
assistance. Shortly thereafter, Andrew threw me down a stairwell. On a separate occasion, Gamba
herself assaulted me.
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18. In 1993, in the course of an argument, Gamba threatened to sue Patty to take back
the Saratoga Properties.
19. Gamba demonstrated that she was serious about these threats, filing fraudulent
criminal accusations against us, accusing Patty and I of stealing vehicles from her. Copies of the
pertinent court filings evidencing those fraudulent accusations, including the affidavits submitted
by my siblings attesting that Gamba was lying, are attached hereto as Exhibit G.
20. The foregoing are just some examples to show the extreme circumstances Patty and
I were facing at the time, and the volatility of the situation, leading up to me arranging for my
retired Father to return from Taiwan to help out. Under the advisement of our then-legal counsel,
Patty and I transferred the Properties to our Father, in an effort to protect the Properties from
Gamba. See Patty Affidavit, Exs. I and J.
21. At that time. my Father agreed and understood that he was holding the Properties
in trust for us, rather than receiving full ownership (as Defendants now dishonestly claim). My
Father was glad to help out under such dire circumstances.
22. At alltimes after these transfers. Patty and I continued to pay the mortgages on the
Properties, all the carrying costs, including but not limited to real property taxes. insuranc_e
p_remiums. maintenance and repairs.
23. In 1995, Gamba carried out her threat and sued Patty and I in Supreme Court,
Suffolk County, falsely claiming that the Saratoga Properties were being held in trust by Patty for
her benefit (ironically, Gamba asserted a constructive trust claim). Copies of the Summons and
Complaint, and other pertinent court papers are anached hereto as Exhibit H.
24. I understand that Defendants have attached a copy of my Affidavit from our defense
of that lawsuit to their motion for summary judgmeñt. My Father, Patty, and I were working
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together cooperatively, with our then-legal counsel, to defend against Gamba's false claims that
she was somehow entitled to a constructive trust in the Properties. We did not disclose the trust
agreement between my Father, Patty and me at that time, because itwas not relevant to the action.
The statements in my Affidavit that the Properties were titled in my Father's name and that he
"owned"
them were in defense of Gamba's constructive trust claim. I vigorously dispute
Defendant Gamba's self-serving allegation, in this lawsuit, that my statemeñts in that Affidavit
somehow disprove the trust agreement between my Father, Patty and me.
25. At that time, the family attempted to resolve the dispute informally. These attempts
resulted in a 1997 settlement, wherein Gamba released all claims to the Properties, in exchange
for fulltitle to the Hither House Property, which is currently worth approximately $5 million and
generates several hundred thousand dollars in annual rental income for Gamba. A copy of the
stipulation of settlement setting forth these terms is attached hereto as Exhibit I.
26. My mother, Patty and I thereafter continued to serve as the sole managers and
operators of the Properties, which included paying down all mortgages and paying allcarrying
costs and real estate taxes, with no assistance from any of the Defendants. This includes but is not
limited to operating and managing the restaurants, renovating/remodeling the restaurants, finding
new tenants, obtaining approvals and licenses, dealing with issues regarding tenants,
maintenance/repairs, and making capital investments.
27. In or around 1996, I evicted a tenant from the Hibachi Property, operating the
"Chinese Bowl Restaurant", for non-payment of rent. The tenant destroyed the entire Property on
the way out to the extent of cutting out copper water pipes from the walls. The entire restaurant
required major restoration. Patty and I, with our Mother's help, worked tirelessly to restore the
property. I also paid my big brother, Wen Lung Lu, to come help with the restorations.
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28. The former Chinese Bowl Restaurant was restored and reopened by the Plaintiffs
as Nine Dragon Restaurant. We then sold the turn-key Nine Dragon Restaurant and business in
June 1996, and granted a lease to the purchaser. Unfortunately, the Nine Dragon Restaurant tenant
went out of business within a year.
29. Patty and I,with my Mother's help, then renovated the restaurant once again. We
Restaurant."
reopened the restaurant as the "New Nine Dragon The turn-key New Nine Dragon
Restaurant and business was then sold to a tenant DBA Chinatown Restaurant in 1997. After
Chinatown Restaurant went out of business within a year, the restaurant was restored once more,
and sold to a new tenant DBA Hibachi Taepan and Sushi Restaurant.
30. The foregoing are just a few examples to show the full-time nature of managing the
Saratoga Properties, and the significant investments in time and money that Patty, my Mother, and
I made over the years.
31. Attached hereto as Exhibit J are documents showing examples of the money that
Patty and I paid into, and for,the Properties.
32. Attached hereto as Exhibit K are documents showing some examples of the capital
investments and improvements Plaintiffs made into the Properties.
33. Attached hereto as Exhibit L are documents showing some examples of the work
we put in to managing the various commercial tenants that came and went over the years.
34. During this entire time, my Father depended on Patty and me for allliving expenses,
and we took care of him, as we were taught to do.
35. My Father had no relationship with Gamba during this time. He made clear
throughout this time that the Properties belonged to Patty and me and that he was holding them in
trust. He also made clear that he would never want Gamba to have the Properties. Attached hereto
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as Exhibit M is a copy of my Father's 2007 Will, in which he states, in no uncertain terms, that
would never want Defendants Gamba or Wen Fu to ever have access to any of the Properties.
36. In 2003, Plaintiffs leased the Duo Property to Defendant Wen Fu. In exchange for
a reduction in rent, Wen Fu agreed to allow Patty to use part of the space as a gallery to display
her oil paintings. Patty's name was thus included in the June 21, 2003 lease so that Wen Fu could
not change his mind about providing the free space he promised for her artworks in exchange for
the lower rental amount. This was not, as Defendants now dishonestly claim, evidence that Patty
did not own the Property. Patty's name was simply included because we did not trust Wen Fu to
honor his end of the bargain. Sure enough, Wen Fu quickly attempted to renege on his deal. Patty
then decided that she no longer wanted any part of it. I prepared a new lease on September 16,
2003, removing Patty's name from the June lease. Wen Fu was evicted in September 2006 for
non-payment of rent. Wen Fu refused to pay rent and carrying cost of the Duo Property totaling
over $146,000.00.
37. In retaliation, in 2006, Defendants Gamba and Wen Fu fraudulently commenced a
proceeding in New York Supreme Court, New York County, in my Mother's name, seeking to
parents'
have my divorce judgment vacated and seeking control of the Properties (then held by my
Father in trust). My Mother had no knowledge of this fraudulent proceeding at the time. This
fraudulent proceeding was Defendant Gamba's second attempt to steal the Properties from us.
Fortunately, the Court recognized Gamba's fraud and dismissed the proceeding, sanctioning
Gamba $18,000 in punitive fees and sanctioning her then-counsel $5,000.
38. I understand that Defendants have attached my Affidavit submitted in our defense
of that fraudulent proceeding to their summary judgment motion. As with Gamba's first attempt
to steal the Properties, we did not disclose the trust agreement between my Father, Patty and me,
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because itwas not relevant to the proceeding. The statement in my Affidavit that the Properties
"owned"
were titledin my Father's name and that he them was in defense of the fraudulent marital
proceeding. I vigorously dispute Defendant Gamba's allegation, in thislawsuit, that my statements
in that Affidavit somehow disprove the trust agreenient between my Father, Patty and me.
39. In April of 2015, my Father, who was then 92 years old, visited the United States
from Taiwan. He was met by Defendant Gamba, who apparcñtly prearranged for her attorney to
prepare a power of attorney naming Gamba as his attorney-in-fact, as well as three separate deeds,
respectively conveying the Hibachi Property, the Duo Property, and the Christian Court Property
to Gamba, for zero consideration (the "Gamba Deeds"). Upon his arrival, my Father was
attorneys'
immediately taken by Gamba to her office, where he executed the power of attorney
and Deeds.
40. I was shocked when I learned of this. It completely contradicted everything my
Father had ever said to me.
41. I repeatedly tried to contact my Father, but his phone had been shut off. Since that
fateful day, I have never even had the chance to speak with him.
42. I laterlearned that, on or about April 10, 2015, Defendant Gamba impersonated me
at Citizens Bank in White Plains, New York, and closed four bank accounts (a Citizens Bank CD
account holding $50,296.32, a Citizens Bank checking account holding $517.16, a Citizens Bank
checking account holding $1,473.63, and a Citizens Bank Money Mark account holding
$41,977.92), withdrawing the total amount of $94,265.03. Bank records showing these
withdrawals are attached hereto as Exhibit N. Defendant Gamba does not deny this, but claims
that she somehow was granted authority to stealthis money by my Father.
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43. Gamba has kept my Father in isolation since his return to the United States in 2015,
and refuses to allow us to communicate with our Father, not even by telephone.
44. After this litigation was commenced, this Honorable Court established a
receivership for the Properties, including the Hibachi Property. Immediately upon entry of that
order, Defendants suddenly produced a lease between Gamba and Wen Fu, dated over a year prior,
claiming that Wen Fu was a lawful tenant of the Hibachi Property. This was an obvious attempt
"lease,"
to interfere with the receivership. When my counsel requested a copy of the with metadata
to see when the document was actually created, Defendants admitted that it had been created
immediately afterthe receivership was established, and had been fraudulently backdated. Attached
Defendants'
hereto as Exhibit O is a copy of the fraudulent lease and email admitting that ithad
been backdated and created when the receivership was established. Notably, even after admitting
this, Defendants perjured themselves in their depositions and claimed that the lease had been
reduced to writing a year prior to the receivership (apparently forgetting that they had already
admitted that this was not true).
45. I respectfully request that the Court issue an order and judgment (1) denying
Defendants' Plaintiffs'
motion for summary judgment in itsentirety, (2) granting cross-motion for
partial summary judgment, and (3) awarding Plaintiffs such further and other relief as the.Court
shall deem just and proper.
WEN MEI LU a/k/a IRIS LU
Swom to before me this
day of August, 2020
N ary Public
Jon E. Crain, Jr.
NotaryPublic, State of New York
Qualified
in AlbanyCounty
No. O2CR6303945
Commission Expires October
10, 2o__ 10
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FILED: SARATOGA COUNTY CLERK 08/21/2020 01:11 PM INDEX NO. 20162946 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/21/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SARATOGA WEN MEI LU, CHIN CHUNG LIN LU, AFFIDAVIT OF LI HUA LU and LU HOLDING, LLC, WEN MEI LU Plaintiffs, Index No.: 2016-2946 -against- Hon. Thomas D. Nolan WEN YING GAMBA, YUEN HSIANG LU, WEN FU LU, and CHUEN LOU, LLC, Defendants. STATE OF NEW YORK ) ) ss.: COUNTY OF ALBANY ) WEN MEI LU a/k/a IRIS LU, being duly sworn, deposes and says as follows: 1. I am the daughter of Defendant Yuen Hsiang Lu (my "Father"), younger sister of Defendant Wen Ying Gamba ("Gamba"), and older sister of Defendant Wen Fu Lu ("Wen Fu"). Defendants' I respectfully submit this Affidavit in opposition to motion for summary judgment, Plaintiffs' and in support of cross-motion for partial summary judgment. 2. My sister Patty and I purchased the Properties at issue in this litigation in the 1980s. We have devoted our entire adult life to managing the Properties. This includes paying for the Properties, making all mortgage payments, paying the taxes on the Properties, paying all other carrying costs including insurance premiums, making innumerable capital improvements, repairs and maintenance, and working with a long line of commercial tenants. The Defendants never paid anything for the Properties and never invested a minute of labor or energy into the Properties. 1 of 10 FILED: SARATOGA COUNTY CLERK 08/21/2020 01:11 PM INDEX NO. 20162946 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/21/2020 3. I am now 56 years old. My sisterPatty is 54 years old. Our Mother is 80 years old and now requires constant supervision. In 2015 we were robbed of the Properties, and since then have been leftwith no income. As set forth below and in the accompanying papers, we are the Defendants' true owners of the Properties. I plead with the Court to deny motion for summary judgment, and allow us our day in Court. 4. From a young age, I, along with some of my brothers and sisters, worked in my family's business. We were always told that this work would earn us ownership in the family's commercial properties and restaurants. Defendant Gamba described this arrangement in a sworn affidavit filed in 1996. A copy of that Affidavit is attached hereto as Exhibit A. Specifically, she interests" businesses." averred that she had been promised "sweat equity in the "Lu family 5. In 1984, at age 59, my Father officially retired. 6. In 1984, I purchased a restaurant building located at 175 South Broadway, Saratoga Springs, New York 12866 (the "Duo Property"), together with my sisters,Defendant Gamba and Plaintiff Patty. We purchased the Duo Property for $225,000.00, making a $70,000.00 down payment and taking a mortgage in the amount of $155,000.00, at 9% interest. A copy of the Deed is attached hereto as Exhibit B. A copy of the mortgage is attached hereto as Exhibit C. 7. The next year, in January 1985, the three of us purchased another restaurant property, located at 3310 South Broadway in Saratoga Springs, New York (the "Hibachi Property") (together with the Duo Property, the "Saratoga Properties"). We purchased the Hibachi Property for $215,000.00, making a $40,000.00 down payment, and taking a mortgage in the amount of $175,000.00, at 10% interest. A copy of the deed is attached hereto as Exhibit D. A copy of the mortgage is attached hereto as Exhibit E. 2 2 of 10 FILED: SARATOGA COUNTY CLERK 08/21/2020 01:11 PM INDEX NO. 20162946 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/21/2020 8. In 1987, my parents divorced. My Father moved to Taiwan shortly thereafter. He resided in Taiwan full time until April 2015. 9. The Saratoga Properties were initially titledin Defendant Gamba's name, with the that she was the Properties as trustee for and me - all of understanding holding herself, Patty, whom then intended to actively manage the Properties and share in the proceeds. 10. In 1987, Gamba married Andrew Gamba, and leftthe family business. Patty and I bought out Gamba's interest, and Gamba deeded the Saratoga Properties, and transferred the mortgages, to Patty. See Affidavit of Patty Lu, sworn to August 21, 2020 ("Patty Affidavit"), Exs. A-D thereto. 11. In 1988, Plaintiffs purchased a residential property located at 4 Christian Court in the Town of Guilderland, Albany County (the "Christian Court Property") (together with the Saratoga Properties, the "Properties"). We purchased the Christian Court Property for $185,000.00, paying a $55,500.00 down payment. The Christian Court Property was titled in Patty's name. See Patty Affidavit, Ex. E. Patty acquired a mortgage loan from Chase Lincoln First Bank, N.A. for $129,500.00, at 10% interest. See Patty Affidavit, Ex. F. On or about February 22, 1994, Patty refinanced the mortgage with OnBank Trust & Co., at 7% interest. See Patty Affidavit, Ex. G. 12. The Christian Court Property has been my home (together with my Mother and Patty) since itwas purchased. 13. From 1987 through 2015, my Mother, Patty, and I assumed sole responsibility for allthree Properties at issue. In fact,for the past three decades, we have been the only members of the Lu family to contribute any effort toward these Properties, and have contributed an enormous 3 3 of 10 FILED: SARATOGA COUNTY CLERK 08/21/2020 01:11 PM INDEX NO. 20162946 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/21/2020 amount of money, time, and energy into managing them. Prior to this litigation, the Properties were our only source of income. Property," 14. In 1991, Gamba and her husband moved into the "Hither House located in Montauk. At that time, the Property was owned by Gamba's mother-in-law. The Hither House Property consists of four separate buildings with year-round rental cottages for guests, a main residence, a manager's office, and additional apartments. 15. In or around 1991, Gamba contacted Patty and I to request that we invest in Hither House. We were happy to do so,and purchased Hither House by contract of sale dated May 12, 1992 for $474,900.00, with immediate payment of $31,900.00, a purchase money mortgage of $225,000.00, and the balance of $188,000.00 due at closing. The resulting deed, a copy of which is attached hereto as Exhibit F, was dated June 17, 1992, and listed the following titleholders: me (36.5%), Patty (36.5%), Andrew Gamba (13.5%) and Defendant Gamba (13.5%). Patty and I provided allthe funds at closing. Gamba and Andrew provided none. In exchange for their 27% interest on the Hither House Property, they promised to invest time, work and effort. 16. In additional to assisting Gamba with the purchase of the Hither House Property, Patty and I also acquired a parcel of vacant land in Saratoga, together with Gamba and Andrew (the "32-acre Property"). We closed on the property on or about September 15, 1993 with Patty and I owning 75% and Gamba and Andrew owning 25%. 17. The relationship between Patty and I, on the one hand, and Gamba, on the other hand, quickly deteriorated while we were collectively managing Hither House. Things got bad quickly. On one occasion, Andrew physically assaulted me while Gamba watched, providing no assistance. Shortly thereafter, Andrew threw me down a stairwell. On a separate occasion, Gamba herself assaulted me. 4 4 of 10 FILED: SARATOGA COUNTY CLERK 08/21/2020 01:11 PM INDEX NO. 20162946 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/21/2020 18. In 1993, in the course of an argument, Gamba threatened to sue Patty to take back the Saratoga Properties. 19. Gamba demonstrated that she was serious about these threats, filing fraudulent criminal accusations against us, accusing Patty and I of stealing vehicles from her. Copies of the pertinent court filings evidencing those fraudulent accusations, including the affidavits submitted by my siblings attesting that Gamba was lying, are attached hereto as Exhibit G. 20. The foregoing are just some examples to show the extreme circumstances Patty and I were facing at the time, and the volatility of the situation, leading up to me arranging for my retired Father to return from Taiwan to help out. Under the advisement of our then-legal counsel, Patty and I transferred the Properties to our Father, in an effort to protect the Properties from Gamba. See Patty Affidavit, Exs. I and J. 21. At that time. my Father agreed and understood that he was holding the Properties in trust for us, rather than receiving full ownership (as Defendants now dishonestly claim). My Father was glad to help out under such dire circumstances. 22. At alltimes after these transfers. Patty and I continued to pay the mortgages on the Properties, all the carrying costs, including but not limited to real property taxes. insuranc_e p_remiums. maintenance and repairs. 23. In 1995, Gamba carried out her threat and sued Patty and I in Supreme Court, Suffolk County, falsely claiming that the Saratoga Properties were being held in trust by Patty for her benefit (ironically, Gamba asserted a constructive trust claim). Copies of the Summons and Complaint, and other pertinent court papers are anached hereto as Exhibit H. 24. I understand that Defendants have attached a copy of my Affidavit from our defense of that lawsuit to their motion for summary judgmeñt. My Father, Patty, and I were working 5 5 of 10 FILED: SARATOGA COUNTY CLERK 08/21/2020 01:11 PM INDEX NO. 20162946 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/21/2020 together cooperatively, with our then-legal counsel, to defend against Gamba's false claims that she was somehow entitled to a constructive trust in the Properties. We did not disclose the trust agreement between my Father, Patty and me at that time, because itwas not relevant to the action. The statements in my Affidavit that the Properties were titled in my Father's name and that he "owned" them were in defense of Gamba's constructive trust claim. I vigorously dispute Defendant Gamba's self-serving allegation, in this lawsuit, that my statemeñts in that Affidavit somehow disprove the trust agreement between my Father, Patty and me. 25. At that time, the family attempted to resolve the dispute informally. These attempts resulted in a 1997 settlement, wherein Gamba released all claims to the Properties, in exchange for fulltitle to the Hither House Property, which is currently worth approximately $5 million and generates several hundred thousand dollars in annual rental income for Gamba. A copy of the stipulation of settlement setting forth these terms is attached hereto as Exhibit I. 26. My mother, Patty and I thereafter continued to serve as the sole managers and operators of the Properties, which included paying down all mortgages and paying allcarrying costs and real estate taxes, with no assistance from any of the Defendants. This includes but is not limited to operating and managing the restaurants, renovating/remodeling the restaurants, finding new tenants, obtaining approvals and licenses, dealing with issues regarding tenants, maintenance/repairs, and making capital investments. 27. In or around 1996, I evicted a tenant from the Hibachi Property, operating the "Chinese Bowl Restaurant", for non-payment of rent. The tenant destroyed the entire Property on the way out to the extent of cutting out copper water pipes from the walls. The entire restaurant required major restoration. Patty and I, with our Mother's help, worked tirelessly to restore the property. I also paid my big brother, Wen Lung Lu, to come help with the restorations. 6 6 of 10 FILED: SARATOGA COUNTY CLERK 08/21/2020 01:11 PM INDEX NO. 20162946 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/21/2020 28. The former Chinese Bowl Restaurant was restored and reopened by the Plaintiffs as Nine Dragon Restaurant. We then sold the turn-key Nine Dragon Restaurant and business in June 1996, and granted a lease to the purchaser. Unfortunately, the Nine Dragon Restaurant tenant went out of business within a year. 29. Patty and I,with my Mother's help, then renovated the restaurant once again. We Restaurant." reopened the restaurant as the "New Nine Dragon The turn-key New Nine Dragon Restaurant and business was then sold to a tenant DBA Chinatown Restaurant in 1997. After Chinatown Restaurant went out of business within a year, the restaurant was restored once more, and sold to a new tenant DBA Hibachi Taepan and Sushi Restaurant. 30. The foregoing are just a few examples to show the full-time nature of managing the Saratoga Properties, and the significant investments in time and money that Patty, my Mother, and I made over the years. 31. Attached hereto as Exhibit J are documents showing examples of the money that Patty and I paid into, and for,the Properties. 32. Attached hereto as Exhibit K are documents showing some examples of the capital investments and improvements Plaintiffs made into the Properties. 33. Attached hereto as Exhibit L are documents showing some examples of the work we put in to managing the various commercial tenants that came and went over the years. 34. During this entire time, my Father depended on Patty and me for allliving expenses, and we took care of him, as we were taught to do. 35. My Father had no relationship with Gamba during this time. He made clear throughout this time that the Properties belonged to Patty and me and that he was holding them in trust. He also made clear that he would never want Gamba to have the Properties. Attached hereto 7 7 of 10 FILED: SARATOGA COUNTY CLERK 08/21/2020 01:11 PM INDEX NO. 20162946 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/21/2020 as Exhibit M is a copy of my Father's 2007 Will, in which he states, in no uncertain terms, that would never want Defendants Gamba or Wen Fu to ever have access to any of the Properties. 36. In 2003, Plaintiffs leased the Duo Property to Defendant Wen Fu. In exchange for a reduction in rent, Wen Fu agreed to allow Patty to use part of the space as a gallery to display her oil paintings. Patty's name was thus included in the June 21, 2003 lease so that Wen Fu could not change his mind about providing the free space he promised for her artworks in exchange for the lower rental amount. This was not, as Defendants now dishonestly claim, evidence that Patty did not own the Property. Patty's name was simply included because we did not trust Wen Fu to honor his end of the bargain. Sure enough, Wen Fu quickly attempted to renege on his deal. Patty then decided that she no longer wanted any part of it. I prepared a new lease on September 16, 2003, removing Patty's name from the June lease. Wen Fu was evicted in September 2006 for non-payment of rent. Wen Fu refused to pay rent and carrying cost of the Duo Property totaling over $146,000.00. 37. In retaliation, in 2006, Defendants Gamba and Wen Fu fraudulently commenced a proceeding in New York Supreme Court, New York County, in my Mother's name, seeking to parents' have my divorce judgment vacated and seeking control of the Properties (then held by my Father in trust). My Mother had no knowledge of this fraudulent proceeding at the time. This fraudulent proceeding was Defendant Gamba's second attempt to steal the Properties from us. Fortunately, the Court recognized Gamba's fraud and dismissed the proceeding, sanctioning Gamba $18,000 in punitive fees and sanctioning her then-counsel $5,000. 38. I understand that Defendants have attached my Affidavit submitted in our defense of that fraudulent proceeding to their summary judgment motion. As with Gamba's first attempt to steal the Properties, we did not disclose the trust agreement between my Father, Patty and me, 8 8 of 10 FILED: SARATOGA COUNTY CLERK 08/21/2020 01:11 PM INDEX NO. 20162946 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/21/2020 because itwas not relevant to the proceeding. The statement in my Affidavit that the Properties "owned" were titledin my Father's name and that he them was in defense of the fraudulent marital proceeding. I vigorously dispute Defendant Gamba's allegation, in thislawsuit, that my statements in that Affidavit somehow disprove the trust agreenient between my Father, Patty and me. 39. In April of 2015, my Father, who was then 92 years old, visited the United States from Taiwan. He was met by Defendant Gamba, who apparcñtly prearranged for her attorney to prepare a power of attorney naming Gamba as his attorney-in-fact, as well as three separate deeds, respectively conveying the Hibachi Property, the Duo Property, and the Christian Court Property to Gamba, for zero consideration (the "Gamba Deeds"). Upon his arrival, my Father was attorneys' immediately taken by Gamba to her office, where he executed the power of attorney and Deeds. 40. I was shocked when I learned of this. It completely contradicted everything my Father had ever said to me. 41. I repeatedly tried to contact my Father, but his phone had been shut off. Since that fateful day, I have never even had the chance to speak with him. 42. I laterlearned that, on or about April 10, 2015, Defendant Gamba impersonated me at Citizens Bank in White Plains, New York, and closed four bank accounts (a Citizens Bank CD account holding $50,296.32, a Citizens Bank checking account holding $517.16, a Citizens Bank checking account holding $1,473.63, and a Citizens Bank Money Mark account holding $41,977.92), withdrawing the total amount of $94,265.03. Bank records showing these withdrawals are attached hereto as Exhibit N. Defendant Gamba does not deny this, but claims that she somehow was granted authority to stealthis money by my Father. 9 9 of 10 FILED: SARATOGA COUNTY CLERK 08/21/2020 01:11 PM INDEX NO. 20162946 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/21/2020 43. Gamba has kept my Father in isolation since his return to the United States in 2015, and refuses to allow us to communicate with our Father, not even by telephone. 44. After this litigation was commenced, this Honorable Court established a receivership for the Properties, including the Hibachi Property. Immediately upon entry of that order, Defendants suddenly produced a lease between Gamba and Wen Fu, dated over a year prior, claiming that Wen Fu was a lawful tenant of the Hibachi Property. This was an obvious attempt "lease," to interfere with the receivership. When my counsel requested a copy of the with metadata to see when the document was actually created, Defendants admitted that it had been created immediately afterthe receivership was established, and had been fraudulently backdated. Attached Defendants' hereto as Exhibit O is a copy of the fraudulent lease and email admitting that ithad been backdated and created when the receivership was established. Notably, even after admitting this, Defendants perjured themselves in their depositions and claimed that the lease had been reduced to writing a year prior to the receivership (apparently forgetting that they had already admitted that this was not true). 45. I respectfully request that the Court issue an order and judgment (1) denying Defendants' Plaintiffs' motion for summary judgment in itsentirety, (2) granting cross-motion for partial summary judgment, and (3) awarding Plaintiffs such further and other relief as the.Court shall deem just and proper. WEN MEI LU a/k/a IRIS LU Swom to before me this day of August, 2020 N ary Public Jon E. Crain, Jr. NotaryPublic, State of New York Qualified in AlbanyCounty No. O2CR6303945 Commission Expires October 10, 2o__ 10 10 of 10