Preview
FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/14/2023
FileNo. 1023-N0951
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
HSBC BANK USA, NATIONAL ASSOCIATION, Index No. 534042/2022
Plaintiff,
AFFIDAVIT IN SUPPORT OF
-against- MOTION
LL & C INTERNATIONAL INC. and
ZHOU HUI LIN,
Defendants.
STATE OF NEW YORK )
) ss.:
COUNTY OF ERIE )
Christopher W. Gates, being duly sworn, deposes and says:
1. I am a Vice President of HSBC BANK USA, NATIONAL ASSOCIATION
("Plaintiff"). I am over the age of 18 and competent to testify as to the matters stated herein. I
execute this Affidavit on behalf of the Plaintiff as its representative.
2. In my capacity as a Vice President of the Plaintiff, I have access to Plaintiff's
business records, maintained in the ordinary course of regularly conducted business activity,
including the business records for and relating to LL & C INTERNATIONAL INC. ("Borrower")
"Guarantor"
and ZHOU HUI LIN (the and together with the Borrower, the "Defendants"). I
make this affidavit based upon my review of those records relating to the Defendants and from my
own personal knowledge of how they are kept and maintained. The records for the Defendants are
maintained Plaintiff in the course of its regularly conducted business activities and are made at
by
or near the time of the event, by or from information transmitted by a person with knowledge. As
to Plaintiff's business records that consist of documents created by third parties, if any, Plaintiff
relies on the accuracy of such records in conducting its business.
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3. The facts contained in this Affidavit are within my personal knowledge, except for
those matters that are stated on information and belief. The facts stated as to my personal
knowledge are true and, as to the matters stated on information and belief, I believe them to be
true. I am competent to testify to those facts stated of my personal knowledge and I will do so if
called as a witness.
4. This Affidavit is submitted in support of the Plaintiff's Motion for an Order: (i)
pursuant to New York Civil Practice Law and Rules ("CPLR") §3215, granting the Plaintiff a
default judgment against 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 the
Guarantor for the relief demanded in the Plaintiff's Verified Complaint filed with the Court 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").
5. I have searched the Service Members Civil Relief Act ("SCRA") website and did
not find that either Guarantor is currently on active duty.
6. This Affidavit is submitted in conjunction with the accompanying Affirmation of
Plaintiff's counsel, Teresa Sadutto-Carley, Esq. (the "Sadutto-Carley Affirmation"), the
accompanying Plaintiff's Memorandum of Law in Support of the Motion (the "Memo of Law")
and Statement of Material Facts.
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I. FACTUAL BACKGROUND
7. A complete procedural history of the above-captioned legal action (the "Action")
is contained in the Affirmation. The Court is respectfully referred to the Sadutto-
Sadutto-Carley
Carley Affirmation and the exhibits annexed thereto with respect to the details concerning same.
II. LOAN DOCUMENTS AND GUARANTY
8. 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
"A"
($61,500.00) (the "Loan") in favor of the Plaintiff. Annexed hereto as Exhibit is a true and
complete copy of the Note.
9. The Note provides in pertinent part as follows:
For value received, the undersigned LL & C International Inc., a
New York corporation, with an address of 664 Bergen Street,
Brooklyn, New York 11238-3505 (the "Borrower"), promises to pay
to the order of HSBC Bank USA, National Association ... the
principal amount of Sixty-One Thousand, Five Hundred Dollars
and Zero Cents (S61,500.00), or, if less, such amount as may be
the aggregate unpaid principal amount of all loans or advances made
by the Bank to the Borrower pursuant hereto, on or before 84 months
from the date of this Note (the "Maturity Date"), together with
interest from the date hereof on the unpaid principal balance from
time to time outstanding until paid in full ...
"A,"
See Exhibit Page "1".
10. The Note provides that the aggregate principal balance shall bear interest thereon
at a rate per annum equal to Four and One-Quarter Percent (4.25%) above the Prime Rate (as
defined in the Note) (the "Interest Rate"). See Exhibit "A", Page "1".
11. Pursuant to the Note, all accrued and unpaid interest shall be payable monthly in
24th Page "1".
arrears on the day of each month, commencing on May 24, 2018. See Exhibit "A",
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12. The Note further provides that the Borrower and the Guarantor agree to pay, upon
demand, costs of collection of all amounts under the Note including, without limitation, principal
and interest, or in connection with the enforcement of, or realization on, any security for the Note,
attorneys'
including, without limitation, to the extent permitted by applicable law, reasonable fees
and expenses. See Exhibit "A", Page "3".
13. Additionally, the Note further provides that upon the occurrence and during the
continuance of an Event of Default (as defined therein), interest shall accrue at a rate per annum
equal to the aggregate of 3.0% above the Interest Rate (the "Default Interest Rate"). See Exhibit
"A", Page "3".
14. 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
Security Agreement (the "Agreement"), granting the Plaintiff a security interest in certain
"B"
collateral (as defined in the Agreement) (the "Collateral"). Annexed hereto as Exhibit is a
true and complete copy of the Agreement.
15. 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,
"201805035541917" "UCC-1,"
2018, bearing Filing No. (the together with the Loan Agreement,
Note, and any and all related documents executed therewith shall collectively be referred to as the
"C"
"Loan Documents"). Annexed hereto as Exhibit is a true and complete copy of the UCC-1.
16. 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 hereto as
"D"
Exhibit is a copy of the Guaranty.
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17. 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,
attorneys'
without limitation, interest, fees...
See Exhibit "D", Page "1".
"20"
18. Pursuant to Paragraph 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
attorneys'
be entitled to recover all fees, court costs, and expenses
attributable thereto;
See Exhibit "D", Page "3", Paragraph numbered "20".
19. 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 Exhibit "D", Page "4".
20. The obligates the Guarantor to the Plaintiff for any and
Guaranty unconditionally
all indebtedness of the Borrower, without any qualifications or presentation.
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21. The terms of the Guaranty have never been amended, modified, or altered to any
degree and remains in full force and effect. The Guarantor is unconditionally bound to make
payment to the Plaintiff in connection with the terms and conditions of the Loan Documents and
Guaranty.
22. The Plaintiff has not sold transferred, conveyed or otherwise assigned its interest in
the Loan Documents and Guaranty to any third Party.
23. The Plaintiff is the holder and owner of the Loan Documents and Guaranty.
HL THE DEFENDANTS'
BREACH OF THE LOAN DOCUMENTS AND
GUARANTY
24. 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").
25. 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
"E"
outstanding amounts owed to the Plaintiff pursuant to the Note. Annexed hereto as Exhibit
is a true and complete copy of the Demand Letter.
26. 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
"F"
hereto as Exhibit are the Loan Interest and Principal Bills for the Statement Dates August 23,
Statement"
2021 through March 29, 2023 (each a "Billing 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 thereon from March 24, 2023 through the date of judgment herein, plus late
accruing
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attorneys'
fees in the sum of $402.90, plus reasonable and actual fees, costs and expenses.
"G"
Annexed hereto as Exhibit is a true and complete copy of the Monthly Billing Statement for
Statement Date March 29, 2023.
27. As set forth above, the Plaintiff is the holder and owner of the Loan Documents and
Guaranty. The Plaintiff has not modified or released the Defendants subsequent to their execution
thereof, and the Loan Documents and Guaranty remain in full force and effect.
28. The Defendants expressly agreed to the unambiguous terms clearly set forth within
the Loan Documents and Guaranty and yet the Plaintiff has not been paid and has not realized its
equitable return on its investment and outlay on behalf of the Borrower.
29. The Defendants never revoked, denied nor disputed the existence of the Loan
Documents and Guaranty.
30. The Defendants were not forced to do business with the Plaintiff and chose to
accept the terms of the Loan Documents and Guaranty with the Plaintiff in order for the Borrower
to receive the Loan.
arms'
31. The Defendants dealt with the Plaintiff in a commercial setting, dealing at
length.
32. The Plaintiff never breached the Loan Documents or the Guaranty and fully
performed all obligations thereunder in a commercially reasonable manner.
33. Accordingly, as of March 29, 2023, the Plaintiff is entitled to 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 thereon from March 24, 2023 through the date of
accruing
attorneys'
judgment herein, plus late fees in the sum of $402.90, plus reasonable and actual fees,
costs and expenses. See Exhibit "G".
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34. Solely for the purposes of entering the default judgment and summary judgment
herein and expressly provided that there is no inquest or hearing on damages, the Plaintiff will
attorneys'
agree to waive its right to recover its reasonable fees. In the event that default judgment
and summary judgment is denied or the Court requires an inquest or other hearing on damages,
attorneys'
the Plaintiff will not so agree to waive its right to recover its reasonable fees.
IV. CONCLUSION
35. I am advised by Plaintiff's counsel that the Borrower has defaulted by failing to
answer or otherwise appear in this Action. As a result, I am advised that Plaintiff's branch of the
Motion for a Default Judgment as against the Borrower should be granted.
36. I am further advised by counsel that the Guarantor has failed to raise either an_n_y
valid triable issues of fact within his Answer or any justifiable or meritorious defense to excuse
his respective defaults under the Loan Documents and the respective Guaranty.
37. Based upon the foregoing, it is respectfully requested that this Court grant the
Plaintiff's Motion in its entirety and for such other and further relief as this Court deems just and
proper.
38. As further detailed in the Sadutto-Carley Affirmation, no prior applications for the
relief sought herein has been to this Court.
THRISTOPHER W. GATES
Sworn to before me this
AMh day of August, 2023
kYYfhli b. WJ C ci.
Notary Public
LORRAINE BLUBECKI
- 5tate of New York
Notary Public
No, 01LU6205277
Qualified in Erie County
My Comm. Expires May 4, 2025
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Preview
FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/14/2023 FileNo. 1023-N0951 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS HSBC BANK USA, NATIONAL ASSOCIATION, Index No. 534042/2022 Plaintiff, AFFIDAVIT IN SUPPORT OF -against- MOTION LL & C INTERNATIONAL INC. and ZHOU HUI LIN, Defendants. STATE OF NEW YORK ) ) ss.: COUNTY OF ERIE ) Christopher W. Gates, being duly sworn, deposes and says: 1. I am a Vice President of HSBC BANK USA, NATIONAL ASSOCIATION ("Plaintiff"). I am over the age of 18 and competent to testify as to the matters stated herein. I execute this Affidavit on behalf of the Plaintiff as its representative. 2. In my capacity as a Vice President of the Plaintiff, I have access to Plaintiff's business records, maintained in the ordinary course of regularly conducted business activity, including the business records for and relating to LL & C INTERNATIONAL INC. ("Borrower") "Guarantor" and ZHOU HUI LIN (the and together with the Borrower, the "Defendants"). I make this affidavit based upon my review of those records relating to the Defendants and from my own personal knowledge of how they are kept and maintained. The records for the Defendants are maintained Plaintiff in the course of its regularly conducted business activities and are made at by or near the time of the event, by or from information transmitted by a person with knowledge. As to Plaintiff's business records that consist of documents created by third parties, if any, Plaintiff relies on the accuracy of such records in conducting its business. 1 of 8 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/14/2023 3. The facts contained in this Affidavit are within my personal knowledge, except for those matters that are stated on information and belief. The facts stated as to my personal knowledge are true and, as to the matters stated on information and belief, I believe them to be true. I am competent to testify to those facts stated of my personal knowledge and I will do so if called as a witness. 4. This Affidavit is submitted in support of the Plaintiff's Motion for an Order: (i) pursuant to New York Civil Practice Law and Rules ("CPLR") §3215, granting the Plaintiff a default judgment against 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 the Guarantor for the relief demanded in the Plaintiff's Verified Complaint filed with the Court 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"). 5. I have searched the Service Members Civil Relief Act ("SCRA") website and did not find that either Guarantor is currently on active duty. 6. This Affidavit is submitted in conjunction with the accompanying Affirmation of Plaintiff's counsel, Teresa Sadutto-Carley, Esq. (the "Sadutto-Carley Affirmation"), the accompanying Plaintiff's Memorandum of Law in Support of the Motion (the "Memo of Law") and Statement of Material Facts. 2 2 of 8 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/14/2023 I. FACTUAL BACKGROUND 7. A complete procedural history of the above-captioned legal action (the "Action") is contained in the Affirmation. The Court is respectfully referred to the Sadutto- Sadutto-Carley Carley Affirmation and the exhibits annexed thereto with respect to the details concerning same. II. LOAN DOCUMENTS AND GUARANTY 8. 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 "A" ($61,500.00) (the "Loan") in favor of the Plaintiff. Annexed hereto as Exhibit is a true and complete copy of the Note. 9. The Note provides in pertinent part as follows: For value received, the undersigned LL & C International Inc., a New York corporation, with an address of 664 Bergen Street, Brooklyn, New York 11238-3505 (the "Borrower"), promises to pay to the order of HSBC Bank USA, National Association ... the principal amount of Sixty-One Thousand, Five Hundred Dollars and Zero Cents (S61,500.00), or, if less, such amount as may be the aggregate unpaid principal amount of all loans or advances made by the Bank to the Borrower pursuant hereto, on or before 84 months from the date of this Note (the "Maturity Date"), together with interest from the date hereof on the unpaid principal balance from time to time outstanding until paid in full ... "A," See Exhibit Page "1". 10. The Note provides that the aggregate principal balance shall bear interest thereon at a rate per annum equal to Four and One-Quarter Percent (4.25%) above the Prime Rate (as defined in the Note) (the "Interest Rate"). See Exhibit "A", Page "1". 11. Pursuant to the Note, all accrued and unpaid interest shall be payable monthly in 24th Page "1". arrears on the day of each month, commencing on May 24, 2018. See Exhibit "A", 3 3 of 8 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/14/2023 12. The Note further provides that the Borrower and the Guarantor agree to pay, upon demand, costs of collection of all amounts under the Note including, without limitation, principal and interest, or in connection with the enforcement of, or realization on, any security for the Note, attorneys' including, without limitation, to the extent permitted by applicable law, reasonable fees and expenses. See Exhibit "A", Page "3". 13. Additionally, the Note further provides that upon the occurrence and during the continuance of an Event of Default (as defined therein), interest shall accrue at a rate per annum equal to the aggregate of 3.0% above the Interest Rate (the "Default Interest Rate"). See Exhibit "A", Page "3". 14. 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 Security Agreement (the "Agreement"), granting the Plaintiff a security interest in certain "B" collateral (as defined in the Agreement) (the "Collateral"). Annexed hereto as Exhibit is a true and complete copy of the Agreement. 15. 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, "201805035541917" "UCC-1," 2018, bearing Filing No. (the together with the Loan Agreement, Note, and any and all related documents executed therewith shall collectively be referred to as the "C" "Loan Documents"). Annexed hereto as Exhibit is a true and complete copy of the UCC-1. 16. 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 hereto as "D" Exhibit is a copy of the Guaranty. 4 4 of 8 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/14/2023 17. 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, attorneys' without limitation, interest, fees... See Exhibit "D", Page "1". "20" 18. Pursuant to Paragraph 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 attorneys' be entitled to recover all fees, court costs, and expenses attributable thereto; See Exhibit "D", Page "3", Paragraph numbered "20". 19. 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 Exhibit "D", Page "4". 20. The obligates the Guarantor to the Plaintiff for any and Guaranty unconditionally all indebtedness of the Borrower, without any qualifications or presentation. 5 5 of 8 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/14/2023 21. The terms of the Guaranty have never been amended, modified, or altered to any degree and remains in full force and effect. The Guarantor is unconditionally bound to make payment to the Plaintiff in connection with the terms and conditions of the Loan Documents and Guaranty. 22. The Plaintiff has not sold transferred, conveyed or otherwise assigned its interest in the Loan Documents and Guaranty to any third Party. 23. The Plaintiff is the holder and owner of the Loan Documents and Guaranty. HL THE DEFENDANTS' BREACH OF THE LOAN DOCUMENTS AND GUARANTY 24. 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"). 25. 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 "E" outstanding amounts owed to the Plaintiff pursuant to the Note. Annexed hereto as Exhibit is a true and complete copy of the Demand Letter. 26. 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 "F" hereto as Exhibit are the Loan Interest and Principal Bills for the Statement Dates August 23, Statement" 2021 through March 29, 2023 (each a "Billing 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 thereon from March 24, 2023 through the date of judgment herein, plus late accruing 6 6 of 8 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/14/2023 attorneys' fees in the sum of $402.90, plus reasonable and actual fees, costs and expenses. "G" Annexed hereto as Exhibit is a true and complete copy of the Monthly Billing Statement for Statement Date March 29, 2023. 27. As set forth above, the Plaintiff is the holder and owner of the Loan Documents and Guaranty. The Plaintiff has not modified or released the Defendants subsequent to their execution thereof, and the Loan Documents and Guaranty remain in full force and effect. 28. The Defendants expressly agreed to the unambiguous terms clearly set forth within the Loan Documents and Guaranty and yet the Plaintiff has not been paid and has not realized its equitable return on its investment and outlay on behalf of the Borrower. 29. The Defendants never revoked, denied nor disputed the existence of the Loan Documents and Guaranty. 30. The Defendants were not forced to do business with the Plaintiff and chose to accept the terms of the Loan Documents and Guaranty with the Plaintiff in order for the Borrower to receive the Loan. arms' 31. The Defendants dealt with the Plaintiff in a commercial setting, dealing at length. 32. The Plaintiff never breached the Loan Documents or the Guaranty and fully performed all obligations thereunder in a commercially reasonable manner. 33. Accordingly, as of March 29, 2023, the Plaintiff is entitled to 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 thereon from March 24, 2023 through the date of accruing attorneys' judgment herein, plus late fees in the sum of $402.90, plus reasonable and actual fees, costs and expenses. See Exhibit "G". 7 7 of 8 FILED: KINGS COUNTY CLERK 09/14/2023 10:43 AM INDEX NO. 534042/2022 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/14/2023 34. Solely for the purposes of entering the default judgment and summary judgment herein and expressly provided that there is no inquest or hearing on damages, the Plaintiff will attorneys' agree to waive its right to recover its reasonable fees. In the event that default judgment and summary judgment is denied or the Court requires an inquest or other hearing on damages, attorneys' the Plaintiff will not so agree to waive its right to recover its reasonable fees. IV. CONCLUSION 35. I am advised by Plaintiff's counsel that the Borrower has defaulted by failing to answer or otherwise appear in this Action. As a result, I am advised that Plaintiff's branch of the Motion for a Default Judgment as against the Borrower should be granted. 36. I am further advised by counsel that the Guarantor has failed to raise either an_n_y valid triable issues of fact within his Answer or any justifiable or meritorious defense to excuse his respective defaults under the Loan Documents and the respective Guaranty. 37. Based upon the foregoing, it is respectfully requested that this Court grant the Plaintiff's Motion in its entirety and for such other and further relief as this Court deems just and proper. 38. As further detailed in the Sadutto-Carley Affirmation, no prior applications for the relief sought herein has been to this Court. THRISTOPHER W. GATES Sworn to before me this AMh day of August, 2023 kYYfhli b. WJ C ci. Notary Public LORRAINE BLUBECKI - 5tate of New York Notary Public No, 01LU6205277 Qualified in Erie County My Comm. Expires May 4, 2025 8 of 8