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FILED: SARATOGA COUNTY CLERK 04/16/2021 03:28 PM INDEX NO. 20162946
NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 04/16/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SARATOGA
_____________________________________________
WEN MEI LU, CHIN CHUNG LIN LU,
LI HUA LU AND LU HOLDING, LLC,
AFFIRMATION
Plaintiffs,
-against- Index No.: 2016-2946
RJI No.: 45-1-2016-1480
WEN YING GAMBA, YUEN HSIANG LU,
And WEN FU LU,
Defendants.
_____________________________________________
David A. Harper, Esq., an attorney duly admitted to practice before the Courts of the State of
New York, affirms the following to be true under the penalties of perjury:
1. The undersigned is the temporary receiver of the subject premises appointed under
order of the Hon. Thomas Nolan dated July 6, 2017. A copy of said order is annexed hereto as
Exhibit “A”.
2. I make this affidavit in support of my motion to the court for an order authorizing the
repair of the exterior walls of the premises known as 175 South Broadway, to approve the expenses
paid by the receiver to date, to pay interim commissions, to dispense with the need, if any, to place
monies held by me as temporary receiver in an interest bearing account and to transfer the sum of
$50,000 from the receivership account at the Adirondack Trust Company to the receivership account
at the Saratoga National Bank.
3. The court’s order appointing the receiver - Exhibit A - requires the temporary receiver
to receive the approval of the court for any repair in excess of $1,000.
MOTION TO REPAIR EXTERNAL WALLS
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4. Under the terms of said order, the Temporary receiver was “authorized to immediately
take charge and enter into possession of the Properties” and to “institute and carry on all legal
proceedings necessary for the protection of the Properties or to recover possession of the whole, or
any part thereof”.
5. By order to show cause executed November 4, 2020 by the Hon. Thomas D. Nolan Jr.,
I applied for permission to repair the external walls, eaves & foundation of 175 South Broadway and
other relief. By Decision and Order, dated December 10, 2020, the court approved the application. A
copy of said Decision and Order is annexed hereto as Exhibit B. Although the Decision and Order is
silent as to the process of how to have the wall repairs carried out, I understood that I was to follow
past protocol established by the court to gather estimates and exchange them amongst the attorneys
for the parties and to ask the court for an ultimate decision as to which contractor to use.
6. Following the receipt of said Decision and Order, an estimate was submitted by the
defendants’ attorney Timothy Brennan from Vish & Brother dated February 8, 2021 in the amount of
$4,400. A copy of the estimate is annexed hereto as Exhibit C.
7. The plaintiffs did not submit an estimate. I have received no objection from the
plaintiffs’ counsel to the estimate submitted on behalf of the defendants.
8. Therefore I request the authority of the court to proceed to repair the walls with the
one estimate that I have received (Exhibit C).
MOTION TO CONFIRM EXPENSES TO DATE
15. Your affiant has paid the expenses to date as set forth in the checkbook register, a
copy of which is annexed hereto as Exhibit “D”. This account is held at the Adirondack Trust
Company. A copy of the most recent monthly statement from the Adirondack Trust Company is
annexed hereto as Exhibit “E”.
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NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 04/16/2021
16. I heretofore moved the sum of $200,000 pursuant to the court’s letter order dated
December 2, 2019 to the Saratoga National Bank for the purpose of keeping the funds on deposit
with any particular bank under the FDIC insurance limit of $250,000. A copy of the court’s letter
order is annexed hereto as Exhibit “F”, and a copy of the most recent monthly statement from
Saratoga National Bank is annexed hereto as Exhibit “G”.
MOTION FOR COMMISSIONS TO DATE
17. Since the last time the court authorized the payment of interim commissions, I have
performed the additional services from October 21, 2020 to March 31, 2021 as set forth in the invoice
annexed hereto as Exhibit “H” in the amount of $12,510. My usual hourly rate remains at $300.
18. Civil Practice Laws and Rules 8004 (a) provides that a receiver is entitled to
commissions not exceeding 5% of the sums received and disbursed by him.
19. To date I have received rental monies totaling the sum of $517,306.70 of which some
has been disbursed, and all of which will ultimately be disbursed. Applying the statutory 5% cap to
the total of rental monies received to date results in “maximum allowable commissions” of
$25,865.34.
20. I have heretofore been authorized by the court to receive the following interim
commissions:
Date of Order Amount of Interim Commissions
December 14, 2017 $2,021.25
December 18, 2018 $8,176.75
June 14, 2019 $1,924.16
June 3, 2020 $7,845.96
December 10, 2020 $2,904.88
Total authorized to date: $22,873.00
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The total of the interim commissions allowed by the court to date reduces the sum to be payable at
this date to be the sum of $2,992.34 [$25,865.34 - $22,873]. Therefore, I request authorization for
interim commissions in the amount of $2,992.34, even though I am owed more as set forth supra, but
for the 5% cap.
MOTION TO DISPENSE WITH ANY REQUIREMENT TO HOLD
MONIES IN AN INTEREST BEARING ACCOUNT
21. Upon my appointment as temporary receiver in July of 2017, I opened a separate bank
account at the Adirondack Trust Company, entitled “David A. Harper, as Receiver of 175 Broadway
and 3310 So. Broadway” and began depositing all monies received related to this receivership into
said account. Given that said bank account is a commercial checking account, it does not bear
interest.
22. After the passage of time, the funds in said account accumulated to the point where I
determined that I should endeavor to move a portion of said funds to an interest bearing account, and
I applied to the court via order to show cause dated November 16, 2018 to transfer the sum of
$125,000 to an interest-bearing Certificate of Deposit. Said application was granted by the Order of
the Court dated December 18, 2018, a copy of which is annexed hereto as Exhibit “I”.
23. A question then arose as to the tax identification number to be used for the new bank
account to report the receipt of interest to the IRS. Given that both parcels of real estate which are the
subject of this receivership are deeded in the name of Chuen Lou LLC, I decided to use the tax
identification number of said LLC for the new bank account. The bank then informed me, that given
that any interest paid on this account would be reported under an LLC’s tax identification number, I
must provide the bank with a form duly executed by the members of the LLC called “Certification of
Beneficial Owners of Legal Entities”, a copy of which is annexed hereto as Exhibit “J”.
24. Said form requires the disclosure of any member that has a 25% or more interest in the
LLC, together with copies of valid identification. I forwarded said form to be completed to the
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NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 04/16/2021
attorneys for the parties on January 2, 2019; I emailed a reminder to the attorneys on February 5,
2019 and on September 11, 2019. The form was never completed and returned to me.
25. By November of 2019, I had accumulated over $237,000 in the receivership account
and I became concerned about the FDIC limit on insured bank accounts of $250,000 per depositor in
one institution. I obtained a letter order of the court to move the sum of $200,000 to a second
receivership account, this time in the Saratoga National Bank (see Exhibit F). Because I lacked the
completed form (Certification of Beneficial Owners of Legal Entities - Exhibit J), I was obliged to
open the account as a non-interest bearing commercial checking account.
26. With the passage of time I became again concerned about the fact that such a large
sum of money is being held in a non-interest bearing account. On January 2, 2021 I emailed the
attorneys for the parties to remind them of the failure of Chuen Lou, LLC to return to me the duly
executed form. I have sent several follow-up emails. The executed form has not been returned to me.
27. I have no objection if the members of Chuen Lou, LLC decline to execute and return
the form to me. The interest to be earned is not a huge amount of money, the case is scheduled for
trial this summer and my receivership may be terminated this year. However, I request an order of the
court to absolve me of any further duty, if any, to place any receivership monies into an interest
bearing account.
MOTION TO MOVE $50,000 FROM THE ADIRONDACK TRUST COMPANY
TO THE SARATOGA NATIONAL BANK
28. As noted supra, I previously moved the sum of $200,000 from the receivership
account at the Adirondack Trust Company to the Saratoga National Bank. Now the account at the
Adirondack Trust Company has grown to over $100,000, and combined with my other accounts at
the Adirondack Trust Company, my total deposits may exceed the sum of $250,000 at that institution
later this year. Therefore I believe it would be prudent to move $50,000 from the receivership
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account at the Adirondack Trust Company to the Saratoga National Bank, which will now equal the
FDIC insurance cap of $250,000.
WHEREFORE, your affirmant as temporary receiver requests an order:
(A) Authorizing the repair of the walls, eaves & foundation of 175 South Broadway in
accordance with the estimate of Vish & Brother, dated February 8, 2021 @ $4,400,
(B) Approving the payment of all of the expenses set forth supra and as attached hereto,
(C) Awarding interim commissions in the amount of $2,992.34 to the undersigned as
temporary receiver,
(E) Dispensing with any requirement to deposit the monies collected during this
receivership into an interest bearing account.
(F) Authorizing the transfer of the sum of $50,000 from the receivership account at the
Adirondack Trust Company to the receivership account at the Saratoga National Bank.
_____________________________________
Dated: April 16, 2021 David A. Harper, Esq., temporary receiver
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NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 04/16/2021
Exhibits annexed to the affidavit:
A. Order of the Hon. Thomas D. Nolan, Jr. dated July 6, 2017
B. Decision and Order, dated December 10, 2020
C. Estimate from Vish & Brother, dated February 8, 2021
D. Checkbook register
E. Monthly statement from Adirondack Trust Company
F. Letter order, dated December 2, 2019
G. Monthly statement from Saratoga National
H. Harper’s invoices for services, 10-21-20 to 03-31-21
I. Order, dated December 18, 2018
J. Certificate of Beneficial Owners of Legal Entities
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Preview
FILED: SARATOGA COUNTY CLERK 04/16/2021 03:28 PM INDEX NO. 20162946 NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 04/16/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SARATOGA _____________________________________________ WEN MEI LU, CHIN CHUNG LIN LU, LI HUA LU AND LU HOLDING, LLC, AFFIRMATION Plaintiffs, -against- Index No.: 2016-2946 RJI No.: 45-1-2016-1480 WEN YING GAMBA, YUEN HSIANG LU, And WEN FU LU, Defendants. _____________________________________________ David A. Harper, Esq., an attorney duly admitted to practice before the Courts of the State of New York, affirms the following to be true under the penalties of perjury: 1. The undersigned is the temporary receiver of the subject premises appointed under order of the Hon. Thomas Nolan dated July 6, 2017. A copy of said order is annexed hereto as Exhibit “A”. 2. I make this affidavit in support of my motion to the court for an order authorizing the repair of the exterior walls of the premises known as 175 South Broadway, to approve the expenses paid by the receiver to date, to pay interim commissions, to dispense with the need, if any, to place monies held by me as temporary receiver in an interest bearing account and to transfer the sum of $50,000 from the receivership account at the Adirondack Trust Company to the receivership account at the Saratoga National Bank. 3. The court’s order appointing the receiver - Exhibit A - requires the temporary receiver to receive the approval of the court for any repair in excess of $1,000. MOTION TO REPAIR EXTERNAL WALLS 1 1 of 7 FILED: SARATOGA COUNTY CLERK 04/16/2021 03:28 PM INDEX NO. 20162946 NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 04/16/2021 4. Under the terms of said order, the Temporary receiver was “authorized to immediately take charge and enter into possession of the Properties” and to “institute and carry on all legal proceedings necessary for the protection of the Properties or to recover possession of the whole, or any part thereof”. 5. By order to show cause executed November 4, 2020 by the Hon. Thomas D. Nolan Jr., I applied for permission to repair the external walls, eaves & foundation of 175 South Broadway and other relief. By Decision and Order, dated December 10, 2020, the court approved the application. A copy of said Decision and Order is annexed hereto as Exhibit B. Although the Decision and Order is silent as to the process of how to have the wall repairs carried out, I understood that I was to follow past protocol established by the court to gather estimates and exchange them amongst the attorneys for the parties and to ask the court for an ultimate decision as to which contractor to use. 6. Following the receipt of said Decision and Order, an estimate was submitted by the defendants’ attorney Timothy Brennan from Vish & Brother dated February 8, 2021 in the amount of $4,400. A copy of the estimate is annexed hereto as Exhibit C. 7. The plaintiffs did not submit an estimate. I have received no objection from the plaintiffs’ counsel to the estimate submitted on behalf of the defendants. 8. Therefore I request the authority of the court to proceed to repair the walls with the one estimate that I have received (Exhibit C). MOTION TO CONFIRM EXPENSES TO DATE 15. Your affiant has paid the expenses to date as set forth in the checkbook register, a copy of which is annexed hereto as Exhibit “D”. This account is held at the Adirondack Trust Company. A copy of the most recent monthly statement from the Adirondack Trust Company is annexed hereto as Exhibit “E”. 2 2 of 7 FILED: SARATOGA COUNTY CLERK 04/16/2021 03:28 PM INDEX NO. 20162946 NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 04/16/2021 16. I heretofore moved the sum of $200,000 pursuant to the court’s letter order dated December 2, 2019 to the Saratoga National Bank for the purpose of keeping the funds on deposit with any particular bank under the FDIC insurance limit of $250,000. A copy of the court’s letter order is annexed hereto as Exhibit “F”, and a copy of the most recent monthly statement from Saratoga National Bank is annexed hereto as Exhibit “G”. MOTION FOR COMMISSIONS TO DATE 17. Since the last time the court authorized the payment of interim commissions, I have performed the additional services from October 21, 2020 to March 31, 2021 as set forth in the invoice annexed hereto as Exhibit “H” in the amount of $12,510. My usual hourly rate remains at $300. 18. Civil Practice Laws and Rules 8004 (a) provides that a receiver is entitled to commissions not exceeding 5% of the sums received and disbursed by him. 19. To date I have received rental monies totaling the sum of $517,306.70 of which some has been disbursed, and all of which will ultimately be disbursed. Applying the statutory 5% cap to the total of rental monies received to date results in “maximum allowable commissions” of $25,865.34. 20. I have heretofore been authorized by the court to receive the following interim commissions: Date of Order Amount of Interim Commissions December 14, 2017 $2,021.25 December 18, 2018 $8,176.75 June 14, 2019 $1,924.16 June 3, 2020 $7,845.96 December 10, 2020 $2,904.88 Total authorized to date: $22,873.00 3 3 of 7 FILED: SARATOGA COUNTY CLERK 04/16/2021 03:28 PM INDEX NO. 20162946 NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 04/16/2021 The total of the interim commissions allowed by the court to date reduces the sum to be payable at this date to be the sum of $2,992.34 [$25,865.34 - $22,873]. Therefore, I request authorization for interim commissions in the amount of $2,992.34, even though I am owed more as set forth supra, but for the 5% cap. MOTION TO DISPENSE WITH ANY REQUIREMENT TO HOLD MONIES IN AN INTEREST BEARING ACCOUNT 21. Upon my appointment as temporary receiver in July of 2017, I opened a separate bank account at the Adirondack Trust Company, entitled “David A. Harper, as Receiver of 175 Broadway and 3310 So. Broadway” and began depositing all monies received related to this receivership into said account. Given that said bank account is a commercial checking account, it does not bear interest. 22. After the passage of time, the funds in said account accumulated to the point where I determined that I should endeavor to move a portion of said funds to an interest bearing account, and I applied to the court via order to show cause dated November 16, 2018 to transfer the sum of $125,000 to an interest-bearing Certificate of Deposit. Said application was granted by the Order of the Court dated December 18, 2018, a copy of which is annexed hereto as Exhibit “I”. 23. A question then arose as to the tax identification number to be used for the new bank account to report the receipt of interest to the IRS. Given that both parcels of real estate which are the subject of this receivership are deeded in the name of Chuen Lou LLC, I decided to use the tax identification number of said LLC for the new bank account. The bank then informed me, that given that any interest paid on this account would be reported under an LLC’s tax identification number, I must provide the bank with a form duly executed by the members of the LLC called “Certification of Beneficial Owners of Legal Entities”, a copy of which is annexed hereto as Exhibit “J”. 24. Said form requires the disclosure of any member that has a 25% or more interest in the LLC, together with copies of valid identification. I forwarded said form to be completed to the 4 4 of 7 FILED: SARATOGA COUNTY CLERK 04/16/2021 03:28 PM INDEX NO. 20162946 NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 04/16/2021 attorneys for the parties on January 2, 2019; I emailed a reminder to the attorneys on February 5, 2019 and on September 11, 2019. The form was never completed and returned to me. 25. By November of 2019, I had accumulated over $237,000 in the receivership account and I became concerned about the FDIC limit on insured bank accounts of $250,000 per depositor in one institution. I obtained a letter order of the court to move the sum of $200,000 to a second receivership account, this time in the Saratoga National Bank (see Exhibit F). Because I lacked the completed form (Certification of Beneficial Owners of Legal Entities - Exhibit J), I was obliged to open the account as a non-interest bearing commercial checking account. 26. With the passage of time I became again concerned about the fact that such a large sum of money is being held in a non-interest bearing account. On January 2, 2021 I emailed the attorneys for the parties to remind them of the failure of Chuen Lou, LLC to return to me the duly executed form. I have sent several follow-up emails. The executed form has not been returned to me. 27. I have no objection if the members of Chuen Lou, LLC decline to execute and return the form to me. The interest to be earned is not a huge amount of money, the case is scheduled for trial this summer and my receivership may be terminated this year. However, I request an order of the court to absolve me of any further duty, if any, to place any receivership monies into an interest bearing account. MOTION TO MOVE $50,000 FROM THE ADIRONDACK TRUST COMPANY TO THE SARATOGA NATIONAL BANK 28. As noted supra, I previously moved the sum of $200,000 from the receivership account at the Adirondack Trust Company to the Saratoga National Bank. Now the account at the Adirondack Trust Company has grown to over $100,000, and combined with my other accounts at the Adirondack Trust Company, my total deposits may exceed the sum of $250,000 at that institution later this year. Therefore I believe it would be prudent to move $50,000 from the receivership 5 5 of 7 FILED: SARATOGA COUNTY CLERK 04/16/2021 03:28 PM INDEX NO. 20162946 NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 04/16/2021 account at the Adirondack Trust Company to the Saratoga National Bank, which will now equal the FDIC insurance cap of $250,000. WHEREFORE, your affirmant as temporary receiver requests an order: (A) Authorizing the repair of the walls, eaves & foundation of 175 South Broadway in accordance with the estimate of Vish & Brother, dated February 8, 2021 @ $4,400, (B) Approving the payment of all of the expenses set forth supra and as attached hereto, (C) Awarding interim commissions in the amount of $2,992.34 to the undersigned as temporary receiver, (E) Dispensing with any requirement to deposit the monies collected during this receivership into an interest bearing account. (F) Authorizing the transfer of the sum of $50,000 from the receivership account at the Adirondack Trust Company to the receivership account at the Saratoga National Bank. _____________________________________ Dated: April 16, 2021 David A. Harper, Esq., temporary receiver 6 6 of 7 FILED: SARATOGA COUNTY CLERK 04/16/2021 03:28 PM INDEX NO. 20162946 NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 04/16/2021 Exhibits annexed to the affidavit: A. Order of the Hon. Thomas D. Nolan, Jr. dated July 6, 2017 B. Decision and Order, dated December 10, 2020 C. Estimate from Vish & Brother, dated February 8, 2021 D. Checkbook register E. Monthly statement from Adirondack Trust Company F. Letter order, dated December 2, 2019 G. Monthly statement from Saratoga National H. Harper’s invoices for services, 10-21-20 to 03-31-21 I. Order, dated December 18, 2018 J. Certificate of Beneficial Owners of Legal Entities 7 7 of 7