Preview
FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WARREN
WESTLAKE FLOORING COMPANY, LLC Index No.
D/B/A WESTLAKE FLOORING SERVICES,
Plaintiff, SUMMONS
Venue is proper pursuant to
v. § 503(a) and § 508 of New York Civil
Practice Law and Rules
MALTBIE'S GARAGE COMPANY, INC. D/B/A
MALTBIE CHEVROLET; WILLIAM F. MALTBIE;
JANETTE L. HAMMOND; AND WILLIAM D.
MALTBIE,
Defendants.
TO: THE ABOVE-NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the complaint in this action (the
"Complaint") and to serve a copy of your response, or, if the Complaint is not served with this
summons, to serve a notice of appearance, on the Plaintiff's attorney within 20 days after service
of this summons, exclusive of the day of service (or within 30 days after the service is complete
if this summons is not personally delivered to you within the State of New York); and in case of
your failure to appear or answer, judgment will be taken against you for the relief demanded in
the Complaint.
Dated: May 5, 2021
Respectfully submitted,
FOX ROTHSCHILD LLP
By: /s/ Matthew S. Adams
Matthew S. Adams
49 Market Street
Morristown, New Jersey 07960
Tel: 973-992-4800
Fax: 973-992-912
TO: Maltbie's Garage Company, Inc.
1794 State Route 9
P.O. Box 311
Lake George, New York 12845
121719787.1
1 of 19
FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021
William F. Maltbie
9 Victoria Dr.
Queensbury, New York 12804
Janette L. Hammond
5104 Forest Point Dr.
Clifton Park, New York 12065
William D. Maltbie
9 Victoria Dr.
Queensbury, New York 12804
121719787.1
2 of 19
FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WARREN
WESTLAKE FLOORING COMPANY, LLC Index No.
'
D/B/A WESTLAKE FLOORING SERVICES,
Plaintiff, ! VERIFIED COMPLAINT AND
APPLICATIONS FOR ORDER OF
v. SEIZURES OF CHATTEL, TEMPORARY
RESTRAINING ORDER AND
MALTBIE'S GARAGE COMPANY, INC. D/B/A PERMANENT INJUNCTION
MALTBIE CHEVROLET; WILLIAM F. MALTBIE;
JANETTE L. HAMMOND; AND WILLIAM D.
MALTBIE,
Defendants.
Plaintiff Westlake Flooring Company, LLC d/b/a Westlake Flooring Services ("Westlake
Flooring"), by and through itsattorneys, Fox Rothschild, LLP, as and for itsComplaint and
Application for Order of Seizure Without Notice against defendants Maltbie's Garage Company,
Inc. d/b/a Maltbie Chevrolet ("Dealer"); William F. Maltbie ("WF Maltbie"); Janette L. Hammond
("Hammond"); and William D. Maltbie ("WD Maltbie") (together, "Defendants"), hereby alleges
as follows:
I.
NATURE OF ACTION
1. This is an action seeking an order of seizure pursuant to New York Civil Practice
Law and Rules ("CPLR") § 7102 ordering Defendants to immediately surrender to Westlake
Flooring the following four motor vehicles (together, the "Dealer Cars"):
Year Make Model Vin Value
2020 Chevrolet Impala FFV 1G1105S31LU113180 $22,600
2021 Chevrolet Tahoe 4WD V8 1GNSKSKD4MR153147 $75,300
2018 Chevrolet Volt 1G1RC685XJUI50078 $19M
2021 Chevrolet Traverse AWD 1GNEVKKW8MJ106997 $30,000
Total $147,150.00
3 of 19
FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021
Westlake Flooring holds security interests in the Dealer Cars and, upon information and belief, the
Dealer Cars are currently located at the auto dealership owned and operated by Dealer, which is at
12845.1
1794 State Route 9, Lake George, New York In addition, Westlake Flooring brings this
action to recover the debt owed by Dealer and guaranteed by WF Maltbie, Hammond, and WD
Maltbie. Westlake Flooring has suffered damages in the amount of $578,375.52, plus interest,
attorneys'
reasonable fees, expenses, and collection costs. Further, Westlake Flooring seeks
temporary and permanent injunctive relief to protect and secure its security interest in Collateral
that Defendants are threatening to sell or otherwise transfer in direct violation of duties owed to
Westlake Flooring.
H.
THE PARTIES
2. Westlake Flooring is organized and existing under the laws of the State of
California with a principal place of business in Los Angeles, California.
3. Upon information and belief, Dealer is a domestic corporation organized and
existing under the laws of the State of New York with a principal place of business at 1794 State
Route 9, Lake George, New York 12845 and may there be served.
1 the above-described Traverse islocated at Hammend's personal residence and that she purports to have
Itappears that
purchased the Traverse from Dealer with financing from a creditunion. In Westlake
particular, Flooring's repossession
agent spotted the Traverse atthis address on April 2, 2021 with New York plates. In addition, on March 17, 2021,
Westlake Flooring had a call
with Hammond and WD Maltbie to discuss thevehicles and receipt of a potentialpaymcñt
of $75,000 (seventy-five thousand dollars).During thecallHammond advised Westlake Flooring thata 2021 Chevrolet
Traverse, bearing VIN 1GNEVKKW8MJ106997 (the"Traverse") was sold but waiting on funding and not delivered.
According to a DMV search performed by Westlake Flooring, the Traverse ispending titleto be issued to Pentagon
Federal Credit Union. See New York Department of Motor Vehiclestitle
search results,
attached hereto as Exhibit5. IL-ñmcñd
and Dealer, however, did not,as required by the Floorplan, repay Westlake Flooring the amounts due on the vehicle.
Further, at thetime ofthe purported sale,Dealer was indefault and thus thesale was prohibited. Accordingly, Hammóñd
was not a bona fide buyer and the purported transitionwas not in the ordinary course. See Flecrplañ Agreement ¶ 4(j)
[Exhibit A(1)]. ("So long as Borrower is not indefault of this Note or any other Loan Document, Borrower may sell
Lender Financed Iñvêñtery tobona fide buyers in theOrdinary Course of Business, but nothing herein shallbe deemed
towaive or releaseany interestLender may have hereunder or under any other agreement inany proceeds or replacements
of such Lender Financed Inventory"). See Decl. of Jonathan Zhan (the "Zhan Declaration") and Decl. of Vince
Struffolino (the"Struffolino Declaration"), attached hereto as ExhibitsA and B, respectively,and incornorated herein.
4 of 19
FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021
4. Upon information and belief, WF Maltbie is an individual residing at 9 Victoria
Dr., Queensbury, New York 12804 and may there be served.
5. Upon information and belief, Hammond is an individual residing at 5104 Forest
Point Dr., Clifton Park, New York 12065 and may there be served.
6. Upon information and belief, WD Maltbie is an individual residing at 9 Victoria
Dr., Queensbury, New York 12804 and may there be served.
III.
JURISDICTION AND VENUE
7. This Court has personal jurisdiction over Defendants pursuant to CPLR § 301
because WF Maltbie, Hammond, and WD Maltbie reside there and Defendants conduct business
in the State of New York.
8. Venue is proper in this Court pursuant to CPLR § 503 because WF Maltbie,
Hammond, and WD Maltbie reside there and Defêñdants have a principal place of business in this
County and pursuant to CPLR § 508 because the chattel that is the subject of this action is located
within this County.
IV.
FACTUAL BACKGROUND
A. The Floorplan Agreement
9. On March 7, 2019, Dealer, wishing to purchase motor vehicles from time to time
through various automotive auctions, directly from other motor vehicle dealers, or otherwise for
its inventory, executed a Promissory Note and Loan and Security Agreement (together, the
vehicles.2
"Floorplañ Agreement") to secure financing for the acquisition of eligible
A copy ofthe Promissory Note and Loan and Security Agreement, with allinternal exhibits,isattached as Exhibit 1
to the Zhan Declaration.
5 of 19
FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021
10. Dealer executed a $4,000,000.00 Promissory Note promising to pay to Westlake
Flooring so much of the principal sum of Four Million Dollars ($4,000,000), which has been
advanced by Westlake Flooring to Dealer pursuant to the terms of the Floorplan Agreement
together with all costs, interest, fees, and expenses as provided for under this Note and the
Documents.3
other Loan
11. Further, for the purpose of securing loans and other indebtedness from Westlake
Flooring for its purchase of motor vehicles and other inventory, Dealer granted Westlake Flooring:
a continuing security interest in all of Borrower's assets and
properties, wherever located, including, without limitation, all
equipment of any kind or nature; equipment, fixtures, goods; all
vehicles and vehicle parts; all Inventory now owned or hereafter
acquired, wherever located, including, without limitation, allLender
Financed Inventory now owned or hereafter acquired , wherever
located, including, without limitation, all Lender Financed Inventory
now owned or hereafter acquired; allamounts in Borrower's Reserve
held by or on behalf of Lender, ifany; alldocuments, documents of
title, deposit accounts, accounts receivable, manufacturer rebates
and incentive payments, chattel paper, including, without limitation,
all Receivables and general intangibles now owned or hereafter
acquired by Borrower; all cash reserves; all of Borrower's books and
records (including any books and records contained on computer
hardware or software or otherwise stored by or on behalf of
Borrower in electronic or digital form); and all additions, accessions,
accessories, replacements, substitutions, and proceeds of any of the
"Collateral").4
foregoing (collectively, the
Filing.5
12. Westlake Flooring's security interest is perfected as evidenced by the UCC
13. Among other motor vehicles of which Westlake Flooring, pursuant to the Floorplan
Agreement, financed the acquisition by Dealer are:
W437 1Wake lWodel to Value
2020 Chevrolet Impala FFV 1G1105S31LU113180 $22,600
2021 Chevrolet Tahoe 4WD V8 1GNSKSKD4MR153147 $75,300
3
See Ex. A(1).
4
See Ex. A(1), ¶ 1(a).
5
A copy of the UCC Filing is attached as Exhibit 2 to the Zhan Declaration.
6 of 19
FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021
2018 Chevrolet ] Volt 1G1RC6S5XJUI50078 $19,250
2021 Chevrolet Traverse AWD 1GNEVKKW8MJ106997 $30,000
TotalL$147,150.00
(as previously defined, the "Dealer Cars")
and
Year Make Model VIN Possession
2015 Chevrolet Yukon 1GKS2BKCXFR222849 Auction
2020 Chevrolet Sonic 1G1JF5SB6L4140347 Auction
|
(together, the "Auction Cars")
"Vehicles").6
(collectively, the
14. The Dealer Cars, as reflected above, have a reasonable wholesale market value of
$147,150 based on the Manheim Market Report, a source commonly relied on by Westlake Flooring
vehicles.7
and others in the industry in determining the value of
15. Dealer was required to make certain payments in accord with the terms of the
Floorplan Agreement. In particular, payments are required to be made by no later than the Maturity
Date,8
which is defined as the earlier of:
i) the last day of the current Period;
ii) the day on which an Event of Default occurs;
iii) the day on which a Maturity Event occurs;
iv) seven (7) days after the date of the Unit sale, as applicable, iffinañced;
v) within twenty-four (24) hours after the date Borrower receives payment
by or on behalf of the purchaser of such Unit, as applicable; or
Documents.9
vi) the termination of this Note and the other Loan
16. For the purpose of securing loans and other indebtedness from Westlake Flooring for
Dealer's purchase of various motor vehicles and other inventory, Dealer granted to Westlake
6
See Ex. A, ¶ 8.
7 Of theManheim Market Reports isattached as Exhibit 3 (Dealer to theZhan Declaration.
COpieS Cars)
8
See Ex. A(1),¶ 4(v).
9
See Ex. A(1),App. ¶ 38.
7 of 19
FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021
Flooring a security interest in the Vehicle. In particular, the Floorplan Agreement grants Westlake a
security interest in all of Dealer's "assets and properties . . . now owned or hereafter acquired,
located"
wherever including, without limitation, all Lender Financed Inventory now owned or
hereafter acquired, all Vehicles, inventory, parts and accessories inventory, equipment, goods,
. fixtures, accounts, deposit accounts, accounts receivable, holdback reserves, and as further
enumerated in Paragraph la of the Floorplan Agreement, and particularly included therein is the
Collateral.
B. Dealer Is in Default of the Floorplan Agreement.
17. Dealer is in default of the above-referenced Floorplan Agreement, having failed to
make the payments due thereon.
18. Dealer was required to make certain payments in accord with the terms of the
Floorplan Agreement. Further, payment is required to be made within seven days of the sale of any
vehicle or within twenty-four hours of the receipt of payment from a purchaser.
19. In addition, Dealer is in default because, despite demand, ithas failed and refused to
Agreement.10
assemble and surrender the Dealer Cars as required by Paragraph 6 of the Floorplan
20. Subsequent to the default, Westlake Flooring gave written notice to Dealer of the
default.11
default and the opportunity to cure the
21. Despite demand, Dealer has failed, and continues to fail, to cure the default. Dealer
has failed and continues to fail to pay the sums due and owing to Dealer, to cure the default.
22. Pursuant to Paragraph 6(a) of the Floorplan Agreement entitled "Rights and
Remedies,"
following an event of default, Dealer shall, if Westlake Flooring so requests, assemble
10 an event of default:"At Lender's and to the extent Borrower do
See Ex. A(1), ¶ 6 (following request, may lawfülly
so,Borrower shallassemble, prepare forremoval, and make availdble to Lender ata place designated by Lender which
isreasonably convenient for Lender and Borrower such Collateral as Lender may request").
1¹
A trueand correctcopy ofthe Demand Letter isanached hereto as Exhibit 4 tothe Zhan Declaration.
8 of 19
FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021
the Dealer Cars or other Collateral and make them available to Westlake Flooring. Westlake Flooring
further has the right to take immediate possession of any vehicles fiñãñced and any other Collateral,
due,12 attorneys'
accelerate the entire outstanding amount and recover all reasonable fees and other
costs.13
collection
23. Itis within the power of Dealer to conceal, dispose of, destroy, or waste the Collateral
or remove the Collateral from the County of Warren and/or the State of New York during the
pendency of this suit. Indeed, there is an immediate danger that the Collateral will be sold, as Dealer
is in the business of selling vehicles. Westlake Flooring's security interest in the Collateral may be
lost if Dealer sells the Collateral to an innocent purchaser. Further, the Collateral is rapidly
depreciating and the resale value will decline over time. An Order of Seizure without notice,
therefore is,necessary to protect Westlake Flooring's rights in the Collateral.
24. Westlake Flooring has exercised its right to accelerate the entire unpaid balance of
$578,375.52 as of April 26, 2021, with interest accruing thereafter at the fluctuating rate per annum
attorneys'
agreed, plus reasonable fees, expenses, and collection costs.
25. Westlake Flooring repossessed four vehicles on March 9, 2021, and repossessed a
fifth vehicle on April 2, 2021, three of which have been sold at auction. Two have yet to be sold (the
Auction Cars) and will be credited against the balance.
26. Further, on March 30, 2021, Westlake Flooring learned that Defendants are
attempting to sell all Dealer assets. In particular, Defendants intend to close an asset sale with
Adirondack Auto Group, LLC, pursuant to which Dealer would sell,liquidate, or otherwise transfer
Sale").14
all or substantially all of itsassets (the "Asset
12
See Ex. A(1), ¶ 6(a),(d).
13
See Ex. A(1), ¶¶ 6(d), 17.
14
A copy of theAsset Sale Agiccmcnt isattached hereto as Exhibit 6 tothe Zhan Declaration.
9 of 19
FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021
27. The Asset Sale violates paragraph 3(h) of the Floorplan Agrccmeñt, which provides
in relevant part:
That, without Lender's prior written consent (which consent
may be withheld by Lender in itssole discretion), Borrower shall
not . .. engage in any transaction or series of transactions to sell,
liquidate, or otherwise transfer, all or substantially all of its assets.
If Borrower desires to engage in any transaction or series of
transactions that would, absent the written consent of Lender, be
prohibited under this Section 4(i), Borrower shall provide Lender
days'
with no less than thirty (30) prior written notice describing
the proposed transaction or series of transactions in reasonable
detail, and Lender may, in its sole discretion, consent in writing to
such transaction or series of transactions, as the case may be.
28. Westlake Flooring has not consented to the Asset Sale and has not been provided the
required thirty-day notice. Further, no adequate provision has been made to ensure that proceeds of
the Asset Sale will be transferred to Westlake Flooring to pay the outstanding debt that is secured by
all of Dealer's assets and the assets of Guarantors (as defined below at ¶ 31). The Asset Sale, if
allowed to proceed, would improperly reduce Westlake Flooring to an unsecured creditor as to
Dealer.
C. The Guaranties
29. On or about March 8, 2019, WF Maltbie entered into an Individual and Personal
Guaranty with Westlake Flooring (the "WF Maltbie Guaranty") whereby WF Maltbie personally
and individually guaranteed the Floorplan Agreement and allobligations thereunder.
30. On or about March 8, 2019, Hammond entered into an Individual and Personal
Guaranty with Westlake Flooring (the "Hammond Guaranty") whereby Hammond personally and
individually guaranteed the Floorplan Agreement and all obligations thereunder.
31. On or about March 8, 2019, WD Maltbie entered into an Individual and Personal
Guaranty with Westlake Flooring (the "WD Maltbie Guaranty") whereby WD Maltbie personally
and individually guaranteed the Floorplan Agreement and all obligations thereunder. Together,
10 of 19
FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021
"Guarantors,"
WF Maltbie, Hammond, and WD Maltbie are referred to herein as and the WF
Maltbie Guaranty, Hammond Guaranty, and WD Maltbie Guaranty together are referred to
"Guaranties."15
herein as the
32. The Guaranties provide:
Guarantor hereby voluntarily, unconditionally, and absolutely
guarantees: (i) the full and prompt payment when due, whether by
acceleration or otherwise, and at all times hereafter, of all
Liabilities; and (ii)the full and prompt performance of all the terms,
covenants, conditions, and agreements related to the Liabilities.
attorneys'
Guarantor further agrees to pay all expenses, including
fees and court costs (including, in each case those relating to
bankruptcy and appeals), paid or incurred by Lender or its Affiliates
in endeavoring to collect on any Liabilities, and in enforcing this
Guaranty or in defending any claims by Borrower or any Guarantor
related to any of the Liabilities, plus interest on such amounts at the
lesser of (A) fifteen percent (15%) per annum, compounded daily or
(B) the maximum rate permitted by Law. Interest on such amounts
paid or incurred by Lender shall be computed from the date of
demand.16
payment made by Lender and shall be payable on
33. The Guaranties further provide:
For the purpose of securing this Guaranty, Guarantor hereby grants
Lender a security interest in all of Guarantor's assets and personal
properties, now owned and hereinafter acquired, wherever located,
including all vehicles, inventory, parts and accessories inventory,
equipment, goods, fixtures, accounts, deposit accounts, accounts
receivable holdback reserves, manufacturer rebates and incentive
payments, payment intangibles instruments, commercial tort claims,
letter of credit rights, investment property, securities and securities
accounts, and general intangibles of Guarantor; any cash, money, or
other property of Guarantor; all accessions to, substitutions for, and
all replacements of any of the foregoing all chattel paper,
documents, instruments, monies, documents of title,residues and
property of any kind related to any of the foregoing; all books and
records of Guarantor related to any of the foregoing, including
without limitation, computer programs, print-outs, and other
computer hardware and software materials and records pertaining to
15 and correct copies of theGuaranties are attachedas Exhibit 7 tothe Zhan Declration.
True
16 of theWF Maltbie of theHammond and ofthe WD Maltbie
See Ex. A(6), ¶¶¶ 12(w) Guaranty,7(1) Guaranty, 2(a)
Guaranty.
11 of 19
FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021
any of the foregoing. together with allproceeds and products of the
foregoing, including, without limitation. proceeds of insurance
policies insuring any of the foregoing (collectively, "Collateral").
The security interest granted in this Guaranty is in addition to and
not in substitution of any right of offset, netting, or reclamation that
Lender may have against Guarantor pursuant to an) contract or
law.17
applicable
34. As set forth above, Dealer breached the: (1) the Floorplan Agreement dated
March 7, 2019; and (2) Promissory Note for $4,000,000 dated March 7, 2019 (collectively, the
"Floorplan Agreement"), by failing to make payments due. Guarantors breached the Guaranties by
failing to pay the amounts due.
35. Pursuant to the Guaranties, Guarantors are liable to Westlake Flooring in the
attorneys'
amount of $578,375.52, plus fees, costs, and interest.
36. As a result of the foregoing, Westlake Flooring was forced to retain counsel to file
and prosecute this action.
V.
APPLICATION FOR ORDER FOR SEIZURE OF CHATTEL-NAMELY. THE DEALER
CARS
37. Westlake Flooring realleges all allegations set forth above and incorporates the
herein.18
same as if set forth verbatim
Defendants'
38. Westlake Flooring, as a result of defaults, is entitled to immediate
parties'
possession of the Dealer Cars based on the terms of the Floorplan Agreement and pursuant
to itsUCC Filing. Defendants, however, are wrongfully detaining the Dealer Cars.
39. The Dealer Cars are being wrongfully held by Dealer as described above.
40. Despite demand, Dealer has failed, and continues to fail,to cure the default. Dealer
has failed and continues to fail to pay the sums due and owing to Westlake Flooring, to cure the
17 ofthe WF Maltbie ofthe Hemmed and of theWD Maltbie
See Ex. A(6), ¶¶¶ 12(bb) Guaranty,7(q) Guaranty, 2(f)
Guaranty.
18 ThisApplication suppGited theZhan Dalavarian and the Struffolino Declaration.
is by
12 of 19
FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021
default, or to allow Westlake Flooring to recover the Dealer Cars. Moreover, despite demand,
Defendants have failed to surrender the Dealer Cars to Westlake Flooring.
41. Pursuant to this action, Westlake Flooring seeks to recover the Dealer Cars.
Defendants have not yet appeared. They may be served at the addresses set forth above.
42. The individual and total value of the Dealer Cars are set forth in paragraph 1 above.
43. Westlake Flooring requests a break order allowing the Sheriff to break open, enter,
and search for the Dealer Cars. Westlake Flooring believes the Dealer Cars are located at 1794 State
Route 9, Lake George, New York 12845 because: (1) that is the location of Dealer, which is an auto
dealership; and (2) pursuant to the Floorplan, Dealer is required to keep the Dealer Cars at that
location, and at 5104 Forest Point Dr., Clifton Park, New York 12065 because: (1) this is the
personal residence of Guarantor Hammond; and (2) Westlake Flooring's repossession agent
2021.19
located the Traverse at this address on April 2,
44. Westlake Flooring is not aware of any bonafide defense Dealer or Guarantors have to
Westlake Flooring's right for immediate possession of the Dealer Cars or the claims asserted.
45. For the reasons set forth above and in the attached Declarations, itis probable that the
Dealer Cars will become unavailable for seizure by reason of being transferred, concealed, disposed
of, or removed from the State, or will become substantially impaired in value. Indeed, Westlake
Flooring's security interest may be lost if Dealer sells a vehicle. Westlake Flooring, therefore,
requests that an Order of Seizure be issued without notice in order to protect itssecurity interest in
the Collateral.
V.
APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY AND
PERMANENT INJUNCTIVE RELIEF
19
See StruffOlinO Declaration ¶ 5.
13 of 19
FILED: WARREN
Preview
FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WARREN WESTLAKE FLOORING COMPANY, LLC Index No. D/B/A WESTLAKE FLOORING SERVICES, Plaintiff, SUMMONS Venue is proper pursuant to v. § 503(a) and § 508 of New York Civil Practice Law and Rules MALTBIE'S GARAGE COMPANY, INC. D/B/A MALTBIE CHEVROLET; WILLIAM F. MALTBIE; JANETTE L. HAMMOND; AND WILLIAM D. MALTBIE, Defendants. TO: THE ABOVE-NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the complaint in this action (the "Complaint") and to serve a copy of your response, or, if the Complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's attorney within 20 days after service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you for the relief demanded in the Complaint. Dated: May 5, 2021 Respectfully submitted, FOX ROTHSCHILD LLP By: /s/ Matthew S. Adams Matthew S. Adams 49 Market Street Morristown, New Jersey 07960 Tel: 973-992-4800 Fax: 973-992-912 TO: Maltbie's Garage Company, Inc. 1794 State Route 9 P.O. Box 311 Lake George, New York 12845 121719787.1 1 of 19 FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021 William F. Maltbie 9 Victoria Dr. Queensbury, New York 12804 Janette L. Hammond 5104 Forest Point Dr. Clifton Park, New York 12065 William D. Maltbie 9 Victoria Dr. Queensbury, New York 12804 121719787.1 2 of 19 FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WARREN WESTLAKE FLOORING COMPANY, LLC Index No. ' D/B/A WESTLAKE FLOORING SERVICES, Plaintiff, ! VERIFIED COMPLAINT AND APPLICATIONS FOR ORDER OF v. SEIZURES OF CHATTEL, TEMPORARY RESTRAINING ORDER AND MALTBIE'S GARAGE COMPANY, INC. D/B/A PERMANENT INJUNCTION MALTBIE CHEVROLET; WILLIAM F. MALTBIE; JANETTE L. HAMMOND; AND WILLIAM D. MALTBIE, Defendants. Plaintiff Westlake Flooring Company, LLC d/b/a Westlake Flooring Services ("Westlake Flooring"), by and through itsattorneys, Fox Rothschild, LLP, as and for itsComplaint and Application for Order of Seizure Without Notice against defendants Maltbie's Garage Company, Inc. d/b/a Maltbie Chevrolet ("Dealer"); William F. Maltbie ("WF Maltbie"); Janette L. Hammond ("Hammond"); and William D. Maltbie ("WD Maltbie") (together, "Defendants"), hereby alleges as follows: I. NATURE OF ACTION 1. This is an action seeking an order of seizure pursuant to New York Civil Practice Law and Rules ("CPLR") § 7102 ordering Defendants to immediately surrender to Westlake Flooring the following four motor vehicles (together, the "Dealer Cars"): Year Make Model Vin Value 2020 Chevrolet Impala FFV 1G1105S31LU113180 $22,600 2021 Chevrolet Tahoe 4WD V8 1GNSKSKD4MR153147 $75,300 2018 Chevrolet Volt 1G1RC685XJUI50078 $19M 2021 Chevrolet Traverse AWD 1GNEVKKW8MJ106997 $30,000 Total $147,150.00 3 of 19 FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021 Westlake Flooring holds security interests in the Dealer Cars and, upon information and belief, the Dealer Cars are currently located at the auto dealership owned and operated by Dealer, which is at 12845.1 1794 State Route 9, Lake George, New York In addition, Westlake Flooring brings this action to recover the debt owed by Dealer and guaranteed by WF Maltbie, Hammond, and WD Maltbie. Westlake Flooring has suffered damages in the amount of $578,375.52, plus interest, attorneys' reasonable fees, expenses, and collection costs. Further, Westlake Flooring seeks temporary and permanent injunctive relief to protect and secure its security interest in Collateral that Defendants are threatening to sell or otherwise transfer in direct violation of duties owed to Westlake Flooring. H. THE PARTIES 2. Westlake Flooring is organized and existing under the laws of the State of California with a principal place of business in Los Angeles, California. 3. Upon information and belief, Dealer is a domestic corporation organized and existing under the laws of the State of New York with a principal place of business at 1794 State Route 9, Lake George, New York 12845 and may there be served. 1 the above-described Traverse islocated at Hammend's personal residence and that she purports to have Itappears that purchased the Traverse from Dealer with financing from a creditunion. In Westlake particular, Flooring's repossession agent spotted the Traverse atthis address on April 2, 2021 with New York plates. In addition, on March 17, 2021, Westlake Flooring had a call with Hammond and WD Maltbie to discuss thevehicles and receipt of a potentialpaymcñt of $75,000 (seventy-five thousand dollars).During thecallHammond advised Westlake Flooring thata 2021 Chevrolet Traverse, bearing VIN 1GNEVKKW8MJ106997 (the"Traverse") was sold but waiting on funding and not delivered. According to a DMV search performed by Westlake Flooring, the Traverse ispending titleto be issued to Pentagon Federal Credit Union. See New York Department of Motor Vehiclestitle search results, attached hereto as Exhibit5. IL-ñmcñd and Dealer, however, did not,as required by the Floorplan, repay Westlake Flooring the amounts due on the vehicle. Further, at thetime ofthe purported sale,Dealer was indefault and thus thesale was prohibited. Accordingly, Hammóñd was not a bona fide buyer and the purported transitionwas not in the ordinary course. See Flecrplañ Agreement ¶ 4(j) [Exhibit A(1)]. ("So long as Borrower is not indefault of this Note or any other Loan Document, Borrower may sell Lender Financed Iñvêñtery tobona fide buyers in theOrdinary Course of Business, but nothing herein shallbe deemed towaive or releaseany interestLender may have hereunder or under any other agreement inany proceeds or replacements of such Lender Financed Inventory"). See Decl. of Jonathan Zhan (the "Zhan Declaration") and Decl. of Vince Struffolino (the"Struffolino Declaration"), attached hereto as ExhibitsA and B, respectively,and incornorated herein. 4 of 19 FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021 4. Upon information and belief, WF Maltbie is an individual residing at 9 Victoria Dr., Queensbury, New York 12804 and may there be served. 5. Upon information and belief, Hammond is an individual residing at 5104 Forest Point Dr., Clifton Park, New York 12065 and may there be served. 6. Upon information and belief, WD Maltbie is an individual residing at 9 Victoria Dr., Queensbury, New York 12804 and may there be served. III. JURISDICTION AND VENUE 7. This Court has personal jurisdiction over Defendants pursuant to CPLR § 301 because WF Maltbie, Hammond, and WD Maltbie reside there and Defendants conduct business in the State of New York. 8. Venue is proper in this Court pursuant to CPLR § 503 because WF Maltbie, Hammond, and WD Maltbie reside there and Defêñdants have a principal place of business in this County and pursuant to CPLR § 508 because the chattel that is the subject of this action is located within this County. IV. FACTUAL BACKGROUND A. The Floorplan Agreement 9. On March 7, 2019, Dealer, wishing to purchase motor vehicles from time to time through various automotive auctions, directly from other motor vehicle dealers, or otherwise for its inventory, executed a Promissory Note and Loan and Security Agreement (together, the vehicles.2 "Floorplañ Agreement") to secure financing for the acquisition of eligible A copy ofthe Promissory Note and Loan and Security Agreement, with allinternal exhibits,isattached as Exhibit 1 to the Zhan Declaration. 5 of 19 FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021 10. Dealer executed a $4,000,000.00 Promissory Note promising to pay to Westlake Flooring so much of the principal sum of Four Million Dollars ($4,000,000), which has been advanced by Westlake Flooring to Dealer pursuant to the terms of the Floorplan Agreement together with all costs, interest, fees, and expenses as provided for under this Note and the Documents.3 other Loan 11. Further, for the purpose of securing loans and other indebtedness from Westlake Flooring for its purchase of motor vehicles and other inventory, Dealer granted Westlake Flooring: a continuing security interest in all of Borrower's assets and properties, wherever located, including, without limitation, all equipment of any kind or nature; equipment, fixtures, goods; all vehicles and vehicle parts; all Inventory now owned or hereafter acquired, wherever located, including, without limitation, allLender Financed Inventory now owned or hereafter acquired , wherever located, including, without limitation, all Lender Financed Inventory now owned or hereafter acquired; allamounts in Borrower's Reserve held by or on behalf of Lender, ifany; alldocuments, documents of title, deposit accounts, accounts receivable, manufacturer rebates and incentive payments, chattel paper, including, without limitation, all Receivables and general intangibles now owned or hereafter acquired by Borrower; all cash reserves; all of Borrower's books and records (including any books and records contained on computer hardware or software or otherwise stored by or on behalf of Borrower in electronic or digital form); and all additions, accessions, accessories, replacements, substitutions, and proceeds of any of the "Collateral").4 foregoing (collectively, the Filing.5 12. Westlake Flooring's security interest is perfected as evidenced by the UCC 13. Among other motor vehicles of which Westlake Flooring, pursuant to the Floorplan Agreement, financed the acquisition by Dealer are: W437 1Wake lWodel to Value 2020 Chevrolet Impala FFV 1G1105S31LU113180 $22,600 2021 Chevrolet Tahoe 4WD V8 1GNSKSKD4MR153147 $75,300 3 See Ex. A(1). 4 See Ex. A(1), ¶ 1(a). 5 A copy of the UCC Filing is attached as Exhibit 2 to the Zhan Declaration. 6 of 19 FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021 2018 Chevrolet ] Volt 1G1RC6S5XJUI50078 $19,250 2021 Chevrolet Traverse AWD 1GNEVKKW8MJ106997 $30,000 TotalL$147,150.00 (as previously defined, the "Dealer Cars") and Year Make Model VIN Possession 2015 Chevrolet Yukon 1GKS2BKCXFR222849 Auction 2020 Chevrolet Sonic 1G1JF5SB6L4140347 Auction | (together, the "Auction Cars") "Vehicles").6 (collectively, the 14. The Dealer Cars, as reflected above, have a reasonable wholesale market value of $147,150 based on the Manheim Market Report, a source commonly relied on by Westlake Flooring vehicles.7 and others in the industry in determining the value of 15. Dealer was required to make certain payments in accord with the terms of the Floorplan Agreement. In particular, payments are required to be made by no later than the Maturity Date,8 which is defined as the earlier of: i) the last day of the current Period; ii) the day on which an Event of Default occurs; iii) the day on which a Maturity Event occurs; iv) seven (7) days after the date of the Unit sale, as applicable, iffinañced; v) within twenty-four (24) hours after the date Borrower receives payment by or on behalf of the purchaser of such Unit, as applicable; or Documents.9 vi) the termination of this Note and the other Loan 16. For the purpose of securing loans and other indebtedness from Westlake Flooring for Dealer's purchase of various motor vehicles and other inventory, Dealer granted to Westlake 6 See Ex. A, ¶ 8. 7 Of theManheim Market Reports isattached as Exhibit 3 (Dealer to theZhan Declaration. COpieS Cars) 8 See Ex. A(1),¶ 4(v). 9 See Ex. A(1),App. ¶ 38. 7 of 19 FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021 Flooring a security interest in the Vehicle. In particular, the Floorplan Agreement grants Westlake a security interest in all of Dealer's "assets and properties . . . now owned or hereafter acquired, located" wherever including, without limitation, all Lender Financed Inventory now owned or hereafter acquired, all Vehicles, inventory, parts and accessories inventory, equipment, goods, . fixtures, accounts, deposit accounts, accounts receivable, holdback reserves, and as further enumerated in Paragraph la of the Floorplan Agreement, and particularly included therein is the Collateral. B. Dealer Is in Default of the Floorplan Agreement. 17. Dealer is in default of the above-referenced Floorplan Agreement, having failed to make the payments due thereon. 18. Dealer was required to make certain payments in accord with the terms of the Floorplan Agreement. Further, payment is required to be made within seven days of the sale of any vehicle or within twenty-four hours of the receipt of payment from a purchaser. 19. In addition, Dealer is in default because, despite demand, ithas failed and refused to Agreement.10 assemble and surrender the Dealer Cars as required by Paragraph 6 of the Floorplan 20. Subsequent to the default, Westlake Flooring gave written notice to Dealer of the default.11 default and the opportunity to cure the 21. Despite demand, Dealer has failed, and continues to fail, to cure the default. Dealer has failed and continues to fail to pay the sums due and owing to Dealer, to cure the default. 22. Pursuant to Paragraph 6(a) of the Floorplan Agreement entitled "Rights and Remedies," following an event of default, Dealer shall, if Westlake Flooring so requests, assemble 10 an event of default:"At Lender's and to the extent Borrower do See Ex. A(1), ¶ 6 (following request, may lawfülly so,Borrower shallassemble, prepare forremoval, and make availdble to Lender ata place designated by Lender which isreasonably convenient for Lender and Borrower such Collateral as Lender may request"). 1¹ A trueand correctcopy ofthe Demand Letter isanached hereto as Exhibit 4 tothe Zhan Declaration. 8 of 19 FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021 the Dealer Cars or other Collateral and make them available to Westlake Flooring. Westlake Flooring further has the right to take immediate possession of any vehicles fiñãñced and any other Collateral, due,12 attorneys' accelerate the entire outstanding amount and recover all reasonable fees and other costs.13 collection 23. Itis within the power of Dealer to conceal, dispose of, destroy, or waste the Collateral or remove the Collateral from the County of Warren and/or the State of New York during the pendency of this suit. Indeed, there is an immediate danger that the Collateral will be sold, as Dealer is in the business of selling vehicles. Westlake Flooring's security interest in the Collateral may be lost if Dealer sells the Collateral to an innocent purchaser. Further, the Collateral is rapidly depreciating and the resale value will decline over time. An Order of Seizure without notice, therefore is,necessary to protect Westlake Flooring's rights in the Collateral. 24. Westlake Flooring has exercised its right to accelerate the entire unpaid balance of $578,375.52 as of April 26, 2021, with interest accruing thereafter at the fluctuating rate per annum attorneys' agreed, plus reasonable fees, expenses, and collection costs. 25. Westlake Flooring repossessed four vehicles on March 9, 2021, and repossessed a fifth vehicle on April 2, 2021, three of which have been sold at auction. Two have yet to be sold (the Auction Cars) and will be credited against the balance. 26. Further, on March 30, 2021, Westlake Flooring learned that Defendants are attempting to sell all Dealer assets. In particular, Defendants intend to close an asset sale with Adirondack Auto Group, LLC, pursuant to which Dealer would sell,liquidate, or otherwise transfer Sale").14 all or substantially all of itsassets (the "Asset 12 See Ex. A(1), ¶ 6(a),(d). 13 See Ex. A(1), ¶¶ 6(d), 17. 14 A copy of theAsset Sale Agiccmcnt isattached hereto as Exhibit 6 tothe Zhan Declaration. 9 of 19 FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021 27. The Asset Sale violates paragraph 3(h) of the Floorplan Agrccmeñt, which provides in relevant part: That, without Lender's prior written consent (which consent may be withheld by Lender in itssole discretion), Borrower shall not . .. engage in any transaction or series of transactions to sell, liquidate, or otherwise transfer, all or substantially all of its assets. If Borrower desires to engage in any transaction or series of transactions that would, absent the written consent of Lender, be prohibited under this Section 4(i), Borrower shall provide Lender days' with no less than thirty (30) prior written notice describing the proposed transaction or series of transactions in reasonable detail, and Lender may, in its sole discretion, consent in writing to such transaction or series of transactions, as the case may be. 28. Westlake Flooring has not consented to the Asset Sale and has not been provided the required thirty-day notice. Further, no adequate provision has been made to ensure that proceeds of the Asset Sale will be transferred to Westlake Flooring to pay the outstanding debt that is secured by all of Dealer's assets and the assets of Guarantors (as defined below at ¶ 31). The Asset Sale, if allowed to proceed, would improperly reduce Westlake Flooring to an unsecured creditor as to Dealer. C. The Guaranties 29. On or about March 8, 2019, WF Maltbie entered into an Individual and Personal Guaranty with Westlake Flooring (the "WF Maltbie Guaranty") whereby WF Maltbie personally and individually guaranteed the Floorplan Agreement and allobligations thereunder. 30. On or about March 8, 2019, Hammond entered into an Individual and Personal Guaranty with Westlake Flooring (the "Hammond Guaranty") whereby Hammond personally and individually guaranteed the Floorplan Agreement and all obligations thereunder. 31. On or about March 8, 2019, WD Maltbie entered into an Individual and Personal Guaranty with Westlake Flooring (the "WD Maltbie Guaranty") whereby WD Maltbie personally and individually guaranteed the Floorplan Agreement and all obligations thereunder. Together, 10 of 19 FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021 "Guarantors," WF Maltbie, Hammond, and WD Maltbie are referred to herein as and the WF Maltbie Guaranty, Hammond Guaranty, and WD Maltbie Guaranty together are referred to "Guaranties."15 herein as the 32. The Guaranties provide: Guarantor hereby voluntarily, unconditionally, and absolutely guarantees: (i) the full and prompt payment when due, whether by acceleration or otherwise, and at all times hereafter, of all Liabilities; and (ii)the full and prompt performance of all the terms, covenants, conditions, and agreements related to the Liabilities. attorneys' Guarantor further agrees to pay all expenses, including fees and court costs (including, in each case those relating to bankruptcy and appeals), paid or incurred by Lender or its Affiliates in endeavoring to collect on any Liabilities, and in enforcing this Guaranty or in defending any claims by Borrower or any Guarantor related to any of the Liabilities, plus interest on such amounts at the lesser of (A) fifteen percent (15%) per annum, compounded daily or (B) the maximum rate permitted by Law. Interest on such amounts paid or incurred by Lender shall be computed from the date of demand.16 payment made by Lender and shall be payable on 33. The Guaranties further provide: For the purpose of securing this Guaranty, Guarantor hereby grants Lender a security interest in all of Guarantor's assets and personal properties, now owned and hereinafter acquired, wherever located, including all vehicles, inventory, parts and accessories inventory, equipment, goods, fixtures, accounts, deposit accounts, accounts receivable holdback reserves, manufacturer rebates and incentive payments, payment intangibles instruments, commercial tort claims, letter of credit rights, investment property, securities and securities accounts, and general intangibles of Guarantor; any cash, money, or other property of Guarantor; all accessions to, substitutions for, and all replacements of any of the foregoing all chattel paper, documents, instruments, monies, documents of title,residues and property of any kind related to any of the foregoing; all books and records of Guarantor related to any of the foregoing, including without limitation, computer programs, print-outs, and other computer hardware and software materials and records pertaining to 15 and correct copies of theGuaranties are attachedas Exhibit 7 tothe Zhan Declration. True 16 of theWF Maltbie of theHammond and ofthe WD Maltbie See Ex. A(6), ¶¶¶ 12(w) Guaranty,7(1) Guaranty, 2(a) Guaranty. 11 of 19 FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021 any of the foregoing. together with allproceeds and products of the foregoing, including, without limitation. proceeds of insurance policies insuring any of the foregoing (collectively, "Collateral"). The security interest granted in this Guaranty is in addition to and not in substitution of any right of offset, netting, or reclamation that Lender may have against Guarantor pursuant to an) contract or law.17 applicable 34. As set forth above, Dealer breached the: (1) the Floorplan Agreement dated March 7, 2019; and (2) Promissory Note for $4,000,000 dated March 7, 2019 (collectively, the "Floorplan Agreement"), by failing to make payments due. Guarantors breached the Guaranties by failing to pay the amounts due. 35. Pursuant to the Guaranties, Guarantors are liable to Westlake Flooring in the attorneys' amount of $578,375.52, plus fees, costs, and interest. 36. As a result of the foregoing, Westlake Flooring was forced to retain counsel to file and prosecute this action. V. APPLICATION FOR ORDER FOR SEIZURE OF CHATTEL-NAMELY. THE DEALER CARS 37. Westlake Flooring realleges all allegations set forth above and incorporates the herein.18 same as if set forth verbatim Defendants' 38. Westlake Flooring, as a result of defaults, is entitled to immediate parties' possession of the Dealer Cars based on the terms of the Floorplan Agreement and pursuant to itsUCC Filing. Defendants, however, are wrongfully detaining the Dealer Cars. 39. The Dealer Cars are being wrongfully held by Dealer as described above. 40. Despite demand, Dealer has failed, and continues to fail,to cure the default. Dealer has failed and continues to fail to pay the sums due and owing to Westlake Flooring, to cure the 17 ofthe WF Maltbie ofthe Hemmed and of theWD Maltbie See Ex. A(6), ¶¶¶ 12(bb) Guaranty,7(q) Guaranty, 2(f) Guaranty. 18 ThisApplication suppGited theZhan Dalavarian and the Struffolino Declaration. is by 12 of 19 FILED: WARREN COUNTY CLERK 05/05/2021 07:12 PM INDEX NO. EF2021-68992 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/05/2021 default, or to allow Westlake Flooring to recover the Dealer Cars. Moreover, despite demand, Defendants have failed to surrender the Dealer Cars to Westlake Flooring. 41. Pursuant to this action, Westlake Flooring seeks to recover the Dealer Cars. Defendants have not yet appeared. They may be served at the addresses set forth above. 42. The individual and total value of the Dealer Cars are set forth in paragraph 1 above. 43. Westlake Flooring requests a break order allowing the Sheriff to break open, enter, and search for the Dealer Cars. Westlake Flooring believes the Dealer Cars are located at 1794 State Route 9, Lake George, New York 12845 because: (1) that is the location of Dealer, which is an auto dealership; and (2) pursuant to the Floorplan, Dealer is required to keep the Dealer Cars at that location, and at 5104 Forest Point Dr., Clifton Park, New York 12065 because: (1) this is the personal residence of Guarantor Hammond; and (2) Westlake Flooring's repossession agent 2021.19 located the Traverse at this address on April 2, 44. Westlake Flooring is not aware of any bonafide defense Dealer or Guarantors have to Westlake Flooring's right for immediate possession of the Dealer Cars or the claims asserted. 45. For the reasons set forth above and in the attached Declarations, itis probable that the Dealer Cars will become unavailable for seizure by reason of being transferred, concealed, disposed of, or removed from the State, or will become substantially impaired in value. Indeed, Westlake Flooring's security interest may be lost if Dealer sells a vehicle. Westlake Flooring, therefore, requests that an Order of Seizure be issued without notice in order to protect itssecurity interest in the Collateral. V. APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY AND PERMANENT INJUNCTIVE RELIEF 19 See StruffOlinO Declaration ¶ 5. 13 of 19 FILED: WARREN