Preview
FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023
File No. 1023-N0951
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
HSBC BANK USA, NATIONAL ASSOCIATION, Index No. 534042/2022
Plaintiff,
AFFIRMATION IN
-against- SUPPORT OF MOTION
LL & C INTERNATIONAL INC. and
ZHOU HUI LIN,
Defendants.
Teresa Sadutto-Carley, an attorney duly admitted to practice law in the courts of the State
of New York, affirms the following under penalties of perjury:
INTRODUCTION
1. I am a Partner with the firm of Platzer, Swergold, Goldberg, Katz & Jaslow, LLP,
the attorneys for the plaintiff, HSBC BANK USA, NATIONAL ASSOCIATION (the “Plaintiff”),
and am fully familiar with the facts and circumstances herein by virtue of the records and
documents kept in the legal file maintained by this office.
2. I certify that to the best of my knowledge, on information and belief, formed after
an inquiry reasonable under the circumstances, the contentions made herein are not frivolous as
defined in subsection (c) of §130-1.1 of the New York Court Rules.
3. I submit this Affirmation in support of the Plaintiff’s Motion for an Order: (i)
pursuant to New York Civil Practice Law and Rules (“CPLR”) §3215, granting Plaintiff a default
judgment against LL & C INTERNATIONAL INC. (the “Borrower”) based upon its failure to
answer or otherwise appear in this Action; (ii) pursuant to CPLR §3212, granting the Plaintiff
summary judgment against ZHOU HUI LIN (the “Guarantor” together with the Borrower, the
“Defendants”) for the relief demanded in the Plaintiff’s Verified Complaint filed with the Court
1 of 10
FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023
on November 21, 2022 [NYSCEF Doc Nos. 1-6] (the “Complaint”); (iii) dismissing Guarantor’s
verified answer, dated April 5, 2023 [NYSCEF Doc No. 11] (the “Answer”) and affirmative
defenses, with prejudice, on the grounds that no triable issues of fact exist; and, (iv) granting
Plaintiff such other and further relief as this Court may deem just and proper (the “Motion”).
4. Accompanying this Motion and submitted in further support thereof is the Affidavit
of Christopher W. Gates dated August 24, 2023 (the “Gates Affidavit”), the Statement of Material
Facts and the Plaintiff’s Memorandum of Law (the “Memo of Law”). Capitalized terms utilized
herein and not otherwise defined shall have the same meaning ascribed to them as those set forth
in the Gates Affidavit.
PRELIMINARY STATEMENT
5. This action was initiated by the Plaintiff to recover, inter alia, the principal amount
of $60,000.00, plus interest accrued thereon through March 23, 2023 in the sum of $5,049.18, plus
additional interest at the Default Rate accruing thereon from March 24, 2023 through the date of
judgment herein, plus late fees in the sum of $402.90, plus reasonable and actual attorneys’ fees,
costs and expenses, all of which are due and owing to the Plaintiff from the Defendants arising
from the Defendants’ breach of the Loan Documents (as defined below) duly executed by the
Defendants in favor of the Plaintiff.
6. As set forth below and as more fully set forth in the Memo of Law, Plaintiff is
entitled to a default judgment against the Borrower, who has not, in any fashion, answered or
otherwise responded to the Complaint.
7. As further set forth below and as more fully set forth in the accompanying Memo
of Law, it is respectfully submitted that the Guarantor has failed to raise any valid triable issues of
2
2 of 10
FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023
fact within the Answer. As such, the Plaintiff is entitled to summary judgment against the
Guarantor.
PROCEDURAL HISTORY
8. On or about November 21, 2022, this action (the “Action”) was commenced by
purchasing Index Number “534042/2022” and filing the Complaint with the Clerk of the Court.
The Borrower was served with the Complaint on December 22, 2022 and an additional mailing of
the Complaint was sent to the Borrower on January 4, 2023. The Guarantor was served with the
Complaint on December 13, 2022 and an additional mailing of the Complaint was sent to the
Guarantor on December 15, 2022. Copies of the Complaint and Affidavits of Service confirming
service on the Defendants are collectively annexed hereto and made a part hereof as Exhibits “A”
and “B”.
9. On or about April 5, 2023, the Guarantor filed his Answer to Complaint (the
“Answer”) containing general denials and three (3) unsubstantiated affirmative defenses (the
“Affirmative Defenses”). A true and complete copy of the Answer is annexed hereto and made a
part hereof as Exhibit “C”.
DISCUSSION
I. LIABILITY OF THE DEFENDANTS
A. Defendants’ Breach of the Loan Documents and Guaranty
10. On or about April 24, 2018, the Borrower executed a Revolving Term Note (the
“Note”) in the principal amount of Sixty-One Thousand Five Hundred Dollars and 00/100
($61,500.00) (the “Loan”) in favor of the Plaintiff. Annexed as Exhibit “A” to the Gates Affidavit
is a true and complete copy of the Note. See Gates Affidavit, ¶ 8 and Exhibit “A” thereto.
11. On or about April 24, 2018, in further consideration for the Plaintiff’s extension of
credit and other financial accommodations to the Borrower, the Borrower executed a Loan and
3
3 of 10
FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023
Security Agreement (the “Agreement”), granting the Plaintiff a security interest in certain
collateral (as defined in the Agreement) (the “Collateral”). Annexed as Exhibit “B” to the Gates
Affidavit is a true and complete copy of the Agreement. See Gates Affidavit, ¶ 14 and Exhibit “B”
thereto.
12. The Plaintiff perfected its security interest in the Collateral by duly filing a UCC-1
Financing Statement with the Office of the Secretary of State of the State of New York on May 3,
2018, bearing Filing No. “201805035541917” (the “UCC-1,” together with the Loan Agreement,
Note, and any and all related documents executed therewith shall collectively be referred to as the
“Loan Documents”). Annexed as Exhibit “C” to the Gates Affidavit is a true and complete copy
of the UCC-1. See Gates Affidavit, ¶ 15 and Exhibit “C” thereto.
13. In and around April 24, 2018, in order to induce the Plaintiff to make or to continue
to make loans, advances or grant other financial accommodations to the Borrower, the Guarantor
executed and delivered an Unlimited Guaranty (“Guaranty”) to the Plaintiff. Annexed as Exhibit
“D” to the Gates Affidavit is a true and complete copy of the Guaranty. See Gates Affidavit, ¶ 16
and Exhibit “D” thereto.
14. The Guaranty provides in relevant part as follows:
To induce the Bank to make or continue to make loans, advances, or
grant other financial accommodations to the Borrower, in
consideration thereof and for loans, advances or financial
accommodations heretofore or hereafter granted by the Bank to or
for the account of the Borrower, the undersigned Zhou Hui Lin (the
“Guarantor”) absolutely and unconditionally guarantees the full and
punctual payment to the Bank of all sums which may be presently
due and owing and of all sums which shall in the future become due
and owing to the Bank from the Borrower, whether direct or indirect,
whether as a borrower, guarantor, surety or otherwise, including,
without limitation, interest, attorneys’ fees…
See Gates Affidavit, ¶ 17 and Exhibit “D”, Page “1” thereto.
4
4 of 10
FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023
15. Pursuant to Paragraph “20” of the Guaranty, the Guarantor agreed to the following:
Guarantor agrees to pay any and all expenses incurred by the Bank
in enforcing any rights under this Guaranty or in defending any of
its rights or any amounts received hereunder. Without limiting the
foregoing, Guarantor agrees that whenever any attorney is used by
the Bank to obtain payment hereunder, to advise it as to its rights,
to adjudicate the rights of the parties hereunder or for the defense
of any of its rights or amounts received hereunder, the Bank shall
be entitled to recover all attorneys' fees, court costs, and expenses
attributable thereto;
See Gates Affidavit, ¶ 18 and Exhibit “D”, Page “3”, Paragraph numbered “20”
thereto.
16. Moreover, pursuant to the Guaranty, the Guarantor agreed to the following:
GUARANTOR HEREBY WAIVES THE RIGHT TO
INTERPOSE ANY DEFENSE, SET-OFF, COUNTERCLAIM
OR CROSS-CLAIM OF ANY NATURE OR DESCRIPTION,
AND OBJECTION BASED ON FORUM NON CONVENIENS
OR VENUE, AND ANY CLAIM FOR CONSEQUENTIAL,
PUNITIVE OR SPECIAL DAMAGES.
See Gates Affidavit, ¶ 19 and Exhibit “D”, Page “4” thereto.
17. The Guaranty unconditionally obligates the Guarantor to the Plaintiff for any and
all indebtedness of the Borrower, without any qualifications or presentation. See Gates Affidavit,
¶ 20.
18. The Plaintiff has not sold transferred, conveyed or otherwise assigned its interest in
the Loan Documents and Guaranty to any third Party. See Gates Affidavit, ¶ 22.
19. The Plaintiff is the holder and owner of the Loan Documents and Guaranty. See
Gates Affidavit, ¶ 23.
5
5 of 10
FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023
B. Default under the Loan Documents and Guaranty
20. The Borrower defaulted under the terms of the Loan Documents when the Borrower
failed, inter alia, to remit the required payments thereunder on or about September 23, 2021 and
thereafter (the “Event of Default”). See Gates Affidavit, ¶ 24.
21. On or about October 25, 2022 (the “Demand Letter”), the Plaintiff, through its
counsel, notified the Defendants of the Event of Default and demanded payment for the
outstanding amounts owed to the Plaintiff pursuant to the Note. Annexed as Exhibit “E” to the
Gates Affidavit is a true and complete copy of the Demand Letter. See Gates Affidavit, ¶ 25 and
Exhibit “E” thereto.
22. Subsequent to the Demand Letter, the Defendants failed to pay the aggregate unpaid
balance due under the Loan Documents and Guaranty, and therefore remain in default. Annexed
as Exhibit “F” to the Gates Affidavit are the Loan Interest and Principal Bills for the Statement
Dates August 23, 2021 through March 29, 2023 (each a “Billing Statement” and collectively, the
“Billing Statements”). As set forth in the Monthly Billing Statement for Statement Date March
29, 2023, the Defendants are indebted to the Plaintiff in in the principal sum of $60,000.00, plus
interest accrued thereon through March 23, 2023 in the sum of $5,049.18, plus additional interest
at the Default Rate accruing thereon from March 24, 2023 through the date of judgment herein,
plus late fees in the sum of $402.90, plus reasonable and actual attorneys’ fees, costs and expenses.
Annexed as Exhibit “G” to the Gates Affidavit is a true and complete copy of the Monthly Billing
Statement for Statement Date March 29, 2023. See also, Gates Affidavit, ¶ 26.
II. PLAINTIFF IS ENTITLED TO A DEFAULT JUDGMENT
AGAINST THE BORROWER
PURSUANT TO CPLR § 3215
23. As stated herein, and as more fully set forth in the Memo of Law, the Borrower has
not, in any fashion answered or otherwise responded to the Complaint despite being properly
6
6 of 10
FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023
served with same. The Borrower is therefore in default of pleading and the Plaintiff is entitled to
a Default Judgment against the Borrower pursuant to CPLR § 3215.
24. Section 3215(a) of the CPLR provides in pertinent part that:
“When a defendant has failed to appear, plead or proceed to
trial…the plaintiff may seek a default judgment against him…”
25. Under the provisions of CPLR § 3215(a), unless the damages sought are for a sum
certain or can by computation be made certain, judgment against a defaulting party may only be
sought upon application to the Court along with notice to the defaulting party. See, Rokina Optical
Co., Inc. v. Camera King, Inc., 63 N.Y.2d 728, 480 N.Y.S.2d 197 (1984). Although the Plaintiff
is seeking to enter a default judgment for a sum certain, the Plaintiff now moves by notice of
motion requesting that this Court issue an order granting it leave to enter a default judgment against
the Borrower for the amounts demanded in the Complaint contemporaneously with its motion
requesting summary judgment against the Guarantor.
26. As a result of the failure of the Borrower to answer or otherwise proceed with
respect to the Complaint and as more fully set forth in the Memo of Law, the Plaintiff is entitled
to entry of a default judgment against the Borrower pursuant to CPLR § 3215.
POINT III
GUARANTOR FAILS TO RAISE TRIABLE ISSUES OF FACT AND
ACCORDINGLY, THE ANSWER SHOULD BE DISMISSED
27. In a motion for summary judgment, where a defendant must rebut the plaintiff’s
allegations of fact and assertions of law, it is the defendant’s burden to come forward with
sufficient facts, not merely of a conclusory nature, to support its defenses. It is respectfully
submitted that the Plaintiff has conclusively established that it is entitled to judgment against the
Guarantor on both the issues of liability and damages. It is further submitted that the Answer with
7
7 of 10
FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023
its three (3) affirmative defenses constitutes nothing more than “boiler-plate” legal conclusions,
entirely unsupported by facts, which fails to raise material issues of fact requiring a trial on either
the question of liability or damages, as is necessary to defeat Plaintiff’s instant Motion. In short,
the Answer represents a brazen attempt to avoid bona fide obligations from which they clearly
benefited.
POINT IV
THE AFFIRMATIVE DEFENSES MUST BE DISMISSED DUE TO
INADEQUATE PLEADING PURSUANT TO CPLR § 3013
28. The Guarantor’s three (3) unsubstantiated Affirmative Defenses should be
summarily dismissed due to inadequate pleading.
29. As a threshold matter, as further discussed in the Memo of Law, the Guarantor has
waived his right to assert the Affirmative Defenses by virtue of the absolute and unconditional
nature of the Guaranty he executed.
30. Pursuant to the Guaranty, the Guarantor agreed to the following:
GUARANTOR HEREBY WAIVES THE RIGHT TO
INTERPOSE ANY DEFENSE, SET-OFF, COUNTERCLAIM
OR CROSS-CLAIM OF ANY NATURE OR DESCRIPTION,
AND OBJECTION BASED ON FORUM NON CONVENIENS
OR VENUE, AND ANY CLAIM FOR CONSEQUENTIAL,
PUNITIVE OR SPECIAL DAMAGES.
See Gates Affidavit, ¶ 16 and Exhibit “C”, Page “3” thereto.
31. In any event, as will also be addressed in the Memo of Law, all three (3) of the
Affirmative Defenses are independently devoid of merit and consist of unsubstantiated “boiler-
plate” legal conclusions and terminology such as, inter alia, the use of the words, “unclean hands”,
“equitable estoppel” and “laches”.
8
8 of 10
FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023
32. New York Courts have been clear that defenses which merely plead conclusions of
law without supporting facts are insufficient. In addition, CPLR §3013 supports this position,
setting forth, inter alia, that “statements in a pleading shall be sufficiently particular to give the
court and the parties notice of the transactions, occurrences, or series of transactions or occurrences,
intended to be proved and the material elements of each cause of action or defense.
33. It is respectfully further submitted that the Plaintiff’s causes of action against the
Defendants have been established by the Gates Affidavit, the Loan Documents, this Affirmation
and the Complaint which allege, inter alia, that the Plaintiff extended the Loan to the Borrower,
which was personally guaranteed by the Guarantor pursuant to the Guaranty. Plaintiff has clearly
presented a prima facie case for the existence of the Loan Documents and the Guaranty, the
Defendants’ respective obligations to the Plaintiff thereunder, the defaults and the damages suffered
as a result of same.
34. In conclusion, as further set forth in the Memo of Law, the Guarantor’s Affirmative
Defenses fail to raise a material issue of fact which would preclude this Court from awarding
summary judgment to the Plaintiff.
CONCLUSION
35. It is respectfully submitted that Plaintiff’s causes of action are sufficiently
established by the Complaint, this Affirmation, the Gates Affidavit and the Exhibits thereto, and
the Exhibits annexed hereto, and that the granting of a default judgment against the Borrower and
summary judgment against the Guarantor and in favor of Plaintiff is warranted and proper.
36. There are no issues of fact presented on the question of liability or damages.
37. A prior application for the relief sought herein has not been made to this Court.
WHEREFORE, it is respectfully requested that this Court grant an Order: (i) pursuant to
CPLR §3215, granting the Plaintiff a default judgment against the Borrower based upon its failure
9
9 of 10
FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023
to answer or otherwise appear in this Action; (ii) pursuant to CPLR §3212, granting the Plaintiff
summary judgment against the Guarantor for the relief demanded in the Complaint; (iii) dismissing
the Answer, with prejudice, on the grounds that no triable issues of fact exist; and, (iv) granting
Plaintiff such other and further relief as this Court may deem just and proper.
Dated: New York, New York
September 11, 2023
PLATZER, SWERGOLD,
GOLDBERG, KATZ & JASLOW, LLP
Attorneys for Plaintiff
By: /s/ Teresa Sadutto-Carley
Teresa Sadutto-Carley
475 Park Avenue South, 18th Floor
New York, New York 10016
Tel: (212) 593-3000-
Fax (212) 593-0353
10
10 of 10
Preview
FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023 File No. 1023-N0951 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS HSBC BANK USA, NATIONAL ASSOCIATION, Index No. 534042/2022 Plaintiff, AFFIRMATION IN -against- SUPPORT OF MOTION LL & C INTERNATIONAL INC. and ZHOU HUI LIN, Defendants. Teresa Sadutto-Carley, an attorney duly admitted to practice law in the courts of the State of New York, affirms the following under penalties of perjury: INTRODUCTION 1. I am a Partner with the firm of Platzer, Swergold, Goldberg, Katz & Jaslow, LLP, the attorneys for the plaintiff, HSBC BANK USA, NATIONAL ASSOCIATION (the “Plaintiff”), and am fully familiar with the facts and circumstances herein by virtue of the records and documents kept in the legal file maintained by this office. 2. I certify that to the best of my knowledge, on information and belief, formed after an inquiry reasonable under the circumstances, the contentions made herein are not frivolous as defined in subsection (c) of §130-1.1 of the New York Court Rules. 3. I submit this Affirmation in support of the Plaintiff’s Motion for an Order: (i) pursuant to New York Civil Practice Law and Rules (“CPLR”) §3215, granting Plaintiff a default judgment against LL & C INTERNATIONAL INC. (the “Borrower”) based upon its failure to answer or otherwise appear in this Action; (ii) pursuant to CPLR §3212, granting the Plaintiff summary judgment against ZHOU HUI LIN (the “Guarantor” together with the Borrower, the “Defendants”) for the relief demanded in the Plaintiff’s Verified Complaint filed with the Court 1 of 10 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023 on November 21, 2022 [NYSCEF Doc Nos. 1-6] (the “Complaint”); (iii) dismissing Guarantor’s verified answer, dated April 5, 2023 [NYSCEF Doc No. 11] (the “Answer”) and affirmative defenses, with prejudice, on the grounds that no triable issues of fact exist; and, (iv) granting Plaintiff such other and further relief as this Court may deem just and proper (the “Motion”). 4. Accompanying this Motion and submitted in further support thereof is the Affidavit of Christopher W. Gates dated August 24, 2023 (the “Gates Affidavit”), the Statement of Material Facts and the Plaintiff’s Memorandum of Law (the “Memo of Law”). Capitalized terms utilized herein and not otherwise defined shall have the same meaning ascribed to them as those set forth in the Gates Affidavit. PRELIMINARY STATEMENT 5. This action was initiated by the Plaintiff to recover, inter alia, the principal amount of $60,000.00, plus interest accrued thereon through March 23, 2023 in the sum of $5,049.18, plus additional interest at the Default Rate accruing thereon from March 24, 2023 through the date of judgment herein, plus late fees in the sum of $402.90, plus reasonable and actual attorneys’ fees, costs and expenses, all of which are due and owing to the Plaintiff from the Defendants arising from the Defendants’ breach of the Loan Documents (as defined below) duly executed by the Defendants in favor of the Plaintiff. 6. As set forth below and as more fully set forth in the Memo of Law, Plaintiff is entitled to a default judgment against the Borrower, who has not, in any fashion, answered or otherwise responded to the Complaint. 7. As further set forth below and as more fully set forth in the accompanying Memo of Law, it is respectfully submitted that the Guarantor has failed to raise any valid triable issues of 2 2 of 10 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023 fact within the Answer. As such, the Plaintiff is entitled to summary judgment against the Guarantor. PROCEDURAL HISTORY 8. On or about November 21, 2022, this action (the “Action”) was commenced by purchasing Index Number “534042/2022” and filing the Complaint with the Clerk of the Court. The Borrower was served with the Complaint on December 22, 2022 and an additional mailing of the Complaint was sent to the Borrower on January 4, 2023. The Guarantor was served with the Complaint on December 13, 2022 and an additional mailing of the Complaint was sent to the Guarantor on December 15, 2022. Copies of the Complaint and Affidavits of Service confirming service on the Defendants are collectively annexed hereto and made a part hereof as Exhibits “A” and “B”. 9. On or about April 5, 2023, the Guarantor filed his Answer to Complaint (the “Answer”) containing general denials and three (3) unsubstantiated affirmative defenses (the “Affirmative Defenses”). A true and complete copy of the Answer is annexed hereto and made a part hereof as Exhibit “C”. DISCUSSION I. LIABILITY OF THE DEFENDANTS A. Defendants’ Breach of the Loan Documents and Guaranty 10. On or about April 24, 2018, the Borrower executed a Revolving Term Note (the “Note”) in the principal amount of Sixty-One Thousand Five Hundred Dollars and 00/100 ($61,500.00) (the “Loan”) in favor of the Plaintiff. Annexed as Exhibit “A” to the Gates Affidavit is a true and complete copy of the Note. See Gates Affidavit, ¶ 8 and Exhibit “A” thereto. 11. On or about April 24, 2018, in further consideration for the Plaintiff’s extension of credit and other financial accommodations to the Borrower, the Borrower executed a Loan and 3 3 of 10 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023 Security Agreement (the “Agreement”), granting the Plaintiff a security interest in certain collateral (as defined in the Agreement) (the “Collateral”). Annexed as Exhibit “B” to the Gates Affidavit is a true and complete copy of the Agreement. See Gates Affidavit, ¶ 14 and Exhibit “B” thereto. 12. The Plaintiff perfected its security interest in the Collateral by duly filing a UCC-1 Financing Statement with the Office of the Secretary of State of the State of New York on May 3, 2018, bearing Filing No. “201805035541917” (the “UCC-1,” together with the Loan Agreement, Note, and any and all related documents executed therewith shall collectively be referred to as the “Loan Documents”). Annexed as Exhibit “C” to the Gates Affidavit is a true and complete copy of the UCC-1. See Gates Affidavit, ¶ 15 and Exhibit “C” thereto. 13. In and around April 24, 2018, in order to induce the Plaintiff to make or to continue to make loans, advances or grant other financial accommodations to the Borrower, the Guarantor executed and delivered an Unlimited Guaranty (“Guaranty”) to the Plaintiff. Annexed as Exhibit “D” to the Gates Affidavit is a true and complete copy of the Guaranty. See Gates Affidavit, ¶ 16 and Exhibit “D” thereto. 14. The Guaranty provides in relevant part as follows: To induce the Bank to make or continue to make loans, advances, or grant other financial accommodations to the Borrower, in consideration thereof and for loans, advances or financial accommodations heretofore or hereafter granted by the Bank to or for the account of the Borrower, the undersigned Zhou Hui Lin (the “Guarantor”) absolutely and unconditionally guarantees the full and punctual payment to the Bank of all sums which may be presently due and owing and of all sums which shall in the future become due and owing to the Bank from the Borrower, whether direct or indirect, whether as a borrower, guarantor, surety or otherwise, including, without limitation, interest, attorneys’ fees… See Gates Affidavit, ¶ 17 and Exhibit “D”, Page “1” thereto. 4 4 of 10 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023 15. Pursuant to Paragraph “20” of the Guaranty, the Guarantor agreed to the following: Guarantor agrees to pay any and all expenses incurred by the Bank in enforcing any rights under this Guaranty or in defending any of its rights or any amounts received hereunder. Without limiting the foregoing, Guarantor agrees that whenever any attorney is used by the Bank to obtain payment hereunder, to advise it as to its rights, to adjudicate the rights of the parties hereunder or for the defense of any of its rights or amounts received hereunder, the Bank shall be entitled to recover all attorneys' fees, court costs, and expenses attributable thereto; See Gates Affidavit, ¶ 18 and Exhibit “D”, Page “3”, Paragraph numbered “20” thereto. 16. Moreover, pursuant to the Guaranty, the Guarantor agreed to the following: GUARANTOR HEREBY WAIVES THE RIGHT TO INTERPOSE ANY DEFENSE, SET-OFF, COUNTERCLAIM OR CROSS-CLAIM OF ANY NATURE OR DESCRIPTION, AND OBJECTION BASED ON FORUM NON CONVENIENS OR VENUE, AND ANY CLAIM FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES. See Gates Affidavit, ¶ 19 and Exhibit “D”, Page “4” thereto. 17. The Guaranty unconditionally obligates the Guarantor to the Plaintiff for any and all indebtedness of the Borrower, without any qualifications or presentation. See Gates Affidavit, ¶ 20. 18. The Plaintiff has not sold transferred, conveyed or otherwise assigned its interest in the Loan Documents and Guaranty to any third Party. See Gates Affidavit, ¶ 22. 19. The Plaintiff is the holder and owner of the Loan Documents and Guaranty. See Gates Affidavit, ¶ 23. 5 5 of 10 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023 B. Default under the Loan Documents and Guaranty 20. The Borrower defaulted under the terms of the Loan Documents when the Borrower failed, inter alia, to remit the required payments thereunder on or about September 23, 2021 and thereafter (the “Event of Default”). See Gates Affidavit, ¶ 24. 21. On or about October 25, 2022 (the “Demand Letter”), the Plaintiff, through its counsel, notified the Defendants of the Event of Default and demanded payment for the outstanding amounts owed to the Plaintiff pursuant to the Note. Annexed as Exhibit “E” to the Gates Affidavit is a true and complete copy of the Demand Letter. See Gates Affidavit, ¶ 25 and Exhibit “E” thereto. 22. Subsequent to the Demand Letter, the Defendants failed to pay the aggregate unpaid balance due under the Loan Documents and Guaranty, and therefore remain in default. Annexed as Exhibit “F” to the Gates Affidavit are the Loan Interest and Principal Bills for the Statement Dates August 23, 2021 through March 29, 2023 (each a “Billing Statement” and collectively, the “Billing Statements”). As set forth in the Monthly Billing Statement for Statement Date March 29, 2023, the Defendants are indebted to the Plaintiff in in the principal sum of $60,000.00, plus interest accrued thereon through March 23, 2023 in the sum of $5,049.18, plus additional interest at the Default Rate accruing thereon from March 24, 2023 through the date of judgment herein, plus late fees in the sum of $402.90, plus reasonable and actual attorneys’ fees, costs and expenses. Annexed as Exhibit “G” to the Gates Affidavit is a true and complete copy of the Monthly Billing Statement for Statement Date March 29, 2023. See also, Gates Affidavit, ¶ 26. II. PLAINTIFF IS ENTITLED TO A DEFAULT JUDGMENT AGAINST THE BORROWER PURSUANT TO CPLR § 3215 23. As stated herein, and as more fully set forth in the Memo of Law, the Borrower has not, in any fashion answered or otherwise responded to the Complaint despite being properly 6 6 of 10 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023 served with same. The Borrower is therefore in default of pleading and the Plaintiff is entitled to a Default Judgment against the Borrower pursuant to CPLR § 3215. 24. Section 3215(a) of the CPLR provides in pertinent part that: “When a defendant has failed to appear, plead or proceed to trial…the plaintiff may seek a default judgment against him…” 25. Under the provisions of CPLR § 3215(a), unless the damages sought are for a sum certain or can by computation be made certain, judgment against a defaulting party may only be sought upon application to the Court along with notice to the defaulting party. See, Rokina Optical Co., Inc. v. Camera King, Inc., 63 N.Y.2d 728, 480 N.Y.S.2d 197 (1984). Although the Plaintiff is seeking to enter a default judgment for a sum certain, the Plaintiff now moves by notice of motion requesting that this Court issue an order granting it leave to enter a default judgment against the Borrower for the amounts demanded in the Complaint contemporaneously with its motion requesting summary judgment against the Guarantor. 26. As a result of the failure of the Borrower to answer or otherwise proceed with respect to the Complaint and as more fully set forth in the Memo of Law, the Plaintiff is entitled to entry of a default judgment against the Borrower pursuant to CPLR § 3215. POINT III GUARANTOR FAILS TO RAISE TRIABLE ISSUES OF FACT AND ACCORDINGLY, THE ANSWER SHOULD BE DISMISSED 27. In a motion for summary judgment, where a defendant must rebut the plaintiff’s allegations of fact and assertions of law, it is the defendant’s burden to come forward with sufficient facts, not merely of a conclusory nature, to support its defenses. It is respectfully submitted that the Plaintiff has conclusively established that it is entitled to judgment against the Guarantor on both the issues of liability and damages. It is further submitted that the Answer with 7 7 of 10 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023 its three (3) affirmative defenses constitutes nothing more than “boiler-plate” legal conclusions, entirely unsupported by facts, which fails to raise material issues of fact requiring a trial on either the question of liability or damages, as is necessary to defeat Plaintiff’s instant Motion. In short, the Answer represents a brazen attempt to avoid bona fide obligations from which they clearly benefited. POINT IV THE AFFIRMATIVE DEFENSES MUST BE DISMISSED DUE TO INADEQUATE PLEADING PURSUANT TO CPLR § 3013 28. The Guarantor’s three (3) unsubstantiated Affirmative Defenses should be summarily dismissed due to inadequate pleading. 29. As a threshold matter, as further discussed in the Memo of Law, the Guarantor has waived his right to assert the Affirmative Defenses by virtue of the absolute and unconditional nature of the Guaranty he executed. 30. Pursuant to the Guaranty, the Guarantor agreed to the following: GUARANTOR HEREBY WAIVES THE RIGHT TO INTERPOSE ANY DEFENSE, SET-OFF, COUNTERCLAIM OR CROSS-CLAIM OF ANY NATURE OR DESCRIPTION, AND OBJECTION BASED ON FORUM NON CONVENIENS OR VENUE, AND ANY CLAIM FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES. See Gates Affidavit, ¶ 16 and Exhibit “C”, Page “3” thereto. 31. In any event, as will also be addressed in the Memo of Law, all three (3) of the Affirmative Defenses are independently devoid of merit and consist of unsubstantiated “boiler- plate” legal conclusions and terminology such as, inter alia, the use of the words, “unclean hands”, “equitable estoppel” and “laches”. 8 8 of 10 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023 32. New York Courts have been clear that defenses which merely plead conclusions of law without supporting facts are insufficient. In addition, CPLR §3013 supports this position, setting forth, inter alia, that “statements in a pleading shall be sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense. 33. It is respectfully further submitted that the Plaintiff’s causes of action against the Defendants have been established by the Gates Affidavit, the Loan Documents, this Affirmation and the Complaint which allege, inter alia, that the Plaintiff extended the Loan to the Borrower, which was personally guaranteed by the Guarantor pursuant to the Guaranty. Plaintiff has clearly presented a prima facie case for the existence of the Loan Documents and the Guaranty, the Defendants’ respective obligations to the Plaintiff thereunder, the defaults and the damages suffered as a result of same. 34. In conclusion, as further set forth in the Memo of Law, the Guarantor’s Affirmative Defenses fail to raise a material issue of fact which would preclude this Court from awarding summary judgment to the Plaintiff. CONCLUSION 35. It is respectfully submitted that Plaintiff’s causes of action are sufficiently established by the Complaint, this Affirmation, the Gates Affidavit and the Exhibits thereto, and the Exhibits annexed hereto, and that the granting of a default judgment against the Borrower and summary judgment against the Guarantor and in favor of Plaintiff is warranted and proper. 36. There are no issues of fact presented on the question of liability or damages. 37. A prior application for the relief sought herein has not been made to this Court. WHEREFORE, it is respectfully requested that this Court grant an Order: (i) pursuant to CPLR §3215, granting the Plaintiff a default judgment against the Borrower based upon its failure 9 9 of 10 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 09/14/2023 to answer or otherwise appear in this Action; (ii) pursuant to CPLR §3212, granting the Plaintiff summary judgment against the Guarantor for the relief demanded in the Complaint; (iii) dismissing the Answer, with prejudice, on the grounds that no triable issues of fact exist; and, (iv) granting Plaintiff such other and further relief as this Court may deem just and proper. Dated: New York, New York September 11, 2023 PLATZER, SWERGOLD, GOLDBERG, KATZ & JASLOW, LLP Attorneys for Plaintiff By: /s/ Teresa Sadutto-Carley Teresa Sadutto-Carley 475 Park Avenue South, 18th Floor New York, New York 10016 Tel: (212) 593-3000- Fax (212) 593-0353 10 10 of 10