Motion for Writ in Td Bank, N.A. v. Meloww Llc, Yehuda Rosenstock| Trellis.Law

On March 19, 2024 a Complaint,Petition was filed involving a dispute between Td Bank, N.A., and Meloww Llc, Yehuda Rosenstock, for Other Matters - Contract - Other in the District Court of Rockland County.

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FILED: ROCKLAND COUNTY CLERK 03/19/2024 02:27 PM INDEX NO. 031481/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024

SUPREME COURT OF THE STATE OF NEW YORK File No. 01281-n1204
COUNTY OF ROCKLAND
Index No.
TD BANK, N.A., Date Purchased:

Plaintiff, SUMMONS

-against- Plaintiff’s Address
One Portland Square
Portland, Maine 04101

MELOWW LLC and YEHUDA ROSENSTOCK,
Place of Venue:
Defendants. Rockland County

Basis of Venue:
Corporate Defendant’s Place of
Business and Individual
Defendant’s Place of Residence

To The Above-Named Defendants:

YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a
copy of your answer, or, if the complaint is not served with this summons, to serve a notice of
appearance, on the plaintiff's Attorney(s) within 20 days after the 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 by default for the relief demanded in the complaint.

Dated: March 19, 2024
PLATZER, SWERGOLD, GOLDBERG,
KATZ & JASLOW, LLP

By: /s/ Mitchell L. Kaplan
Mitchell L. Kaplan
475 Park Avenue South, 18th Floor
New York, New York 10016
Tel.: (212) 593-3000
Counsel for Plaintiff, TD Bank, N.A.

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Defendants’ Address(es):

MELOWW LLC
24 Brockton Road
Spring Valley, New York 10977
Attn: Mr. Yehuda Rosenstock, Member

-and/or-

MELOWW LLC
228 East Route 59, Suite 382
Nanuet, New York 10954
Attn: Mr. Yehuda Rosenstock, Member

YEHUDA ROSENSTOCK
24 Brockton Road
Spring Valley, New York 10977

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SUPREME COURT OF THE STATE OF NEW YORK File No. 1281-n1204
COUNTY OF ROCKLAND
Index No.
TD BANK, N.A.,

Plaintiff, VERIFIED COMPLAINT

-against-

MELOWW LLC and YEHUDA ROSENSTOCK,

Defendants.

Plaintiff, TD BANK, N.A. (“TD Bank” or “Plaintiff”), by its attorneys, Platzer, Swergold,

Goldberg, Katz & Jaslow, LLP, as and for its verified complaint, alleges as follows:

I. THE PARTIES

1. Plaintiff is, and at all times hereinafter mentioned was, a national banking

association organized and existing under and by virtue of the laws of the United States of America,

with a place of business located at One Portland Square, Portland, Maine 04101.

2. Upon information and belief, defendant, MELOWW LLC (“Borrower”), at all

relevant times hereinafter stated, was a domestic limited liability company organized and existing

under the laws of the State of New York, with a place of business located at 24 Brockton Road,

Spring Valley, New York 10977 and/or 228 East Route 59, Suite 382, Nanuet, New York 10954.

3. Upon information and belief, defendant, YEHUDA ROSENSTOCK

(“Guarantor” and jointly with “Borrower”, the “Defendants”), is, and at all times hereinafter

mentioned was, an individual residing and domiciled at 24 Brockton Road, Spring Valley, New

York 10977.

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II. RELEVANT FACTS

A. The Loan Documents

4. On or about September 19, 2022, the Borrower executed a certain Revolving

Demand Note in favor of the Plaintiff in the principal sum of One Hundred Fifty Thousand Dollars

($150,000.00) (the “Note”) whereby the Plaintiff agreed to extend the Borrower a certain

commercial loan on a revolving basis (the “Loan”) up to said amount. Annexed hereto as Exhibit

“A” is a true and complete copy of the Note.

5. Under the original terms and conditions of the Note, the Borrower agreed to remit

certain payments to the Plaintiff:

“…ON DEMAND, the principal amount of One hundred fifty thousand and 00/100
dollars ($150,000.00) or, if less, such amount as may be the aggregate unpaid principal
amount of all loans or advances made by Lender [Plaintiff] to the Borrower pursuant
hereto, together with interest from the date hereof on the unpaid principal balance from
time to time outstanding until paid in full. The aggregate principal balance outstanding
shall bear interest thereon at a per annum rate equal to the Wall Street Journal Prime Rate
(as hereinafter defined). The current Wall Street Journal Prime Rate is 5.5% and the
initial applicable interest rate is equal to 5.5% until changed in accordance with the terms
of this Note. All accrued and unpaid interest shall be payable monthly in arrears on the
19th day of each month, commencing on October 19, 2022” (See Exhibit “A”, Page
“1”, Paragraph “1”).

6. In connection with the Note, on or about September 19, 2022, Borrower and

Plaintiff entered into and executed a certain Loan Agreement (the “Loan Agreement”). Annexed

hereto as Exhibit “B” is a true and complete copy of the Loan Agreement.

7. Upon demand, Borrower agreed to remit to Plaintiff, inter alia, the entire unpaid

principal balance and all accrued interest and other outstanding sums due under the Note. (See

Exhibit “A”, Page “1”, Paragraph “1” and Page “5”, Paragraph “25”).

8. Pursuant to the Note, Borrower agreed to pay all expenses including reasonable

attorneys’ fees incurred in pursuing any payment due to Plaintiff. (Exhibit “A”, Page “3”,

Paragraph “16”).

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9. Pursuant to the Note, interest shall accrue on the outstanding principal balance due

thereunder at a rate equal to the Wall Street Journal Prime Rate, provided that the minimum interest

rate is 5.5% per annum. (See Exhibit “A”, Page “1”, Paragraphs “1” and “2”).

10. Upon default and failure to pay, Borrower agreed that the interest rate for all

outstanding principal shall be increased to 18.00% per annum (the “Default Rate”). (See Exhibit

“A”, Page “3”, Paragraph entitled “16”).

11. In connection with the Note and as partial consideration for same, on or about

September 19, 2022, Borrower and Plaintiff executed a certain Security Agreement (the “Security

Agreement” and collectively with the Note, the Loan Agreement and all other documents

executed in conjunction therewith, the “Loan Documents”). Annexed hereto as Exhibit “C” is a

true and complete copy of the Security Agreement.

12. Pursuant to the Security Agreement, Borrower granted Plaintiff a security interest

in all of Borrower’s assets and property (collectively, the “Collateral”). (See Exhibit “C”,

Security Agreement, Page “2”, Section “2.1”).

13. Plaintiff duly perfected its senior security interest in and first priority lien against

the Collateral by filing a UCC-1 Financing Statement against Borrower with the New York

Secretary of State (the “UCC”). Annexed hereto as Exhibit “D” is a true and complete copy of

the UCC.

B. The Guaranty

14. On or about September 19, 2022, as consideration for and to induce the Plaintiff to

advance the Loan to the Borrower, the Guarantor executed a personal Unlimited Guaranty (the

“Guaranty”). Annexed hereto as Exhibit “E” is a true and complete copy of the Guaranty.

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15. Pursuant to the provisions of the Guaranty:

“To induce Lender [Plaintiff] to make or continue to make loans, advances, or grant other
financial accommodations to Borrower, in consideration thereof and for loans, advances
or financial accommodations heretofore or hereafter granted by Lender to or for the
account of the Borrower, the undersigned Yehuda Rosenstock (the "Guarantor")
absolutely, unconditionally and irrevocably guarantees the full and punctual payment to
Lender of all sums which may be presently due and owing and of all sums which shall in
the future become due and owing to Lender from the Borrower, whether direct or indirect,
whether as a borrower, guarantor, surety or otherwise, including, without limitation,
interest, attorneys' fees and other amounts accruing after the filing of a petition in
bankruptcy by or against Borrower, notwithstanding the discharge of Borrower from such
obligations, together with all costs and expenses incurred by Lender in connection with
such obligations, this Unlimited Guaranty (this "Guaranty") and the enforcement thereof,
and also guarantees the due performance by the Borrower of all its obligations under all
other present and future contracts and agreements with Lender. This is a guaranty of
payment and not collection.”
(See Exhibit “E”, Page “1’, “First Paragraph”)

16. As a result of Plaintiff’s demands under the Note and/or Borrower’s default

thereunder (as described immediately below), Guarantor is liable to Plaintiff for the outstanding

amounts due thereunder

C. Plaintiff’s Demands Under the Note

17. As set forth in the Note, Borrower agreed to pay all amounts advanced by Plaintiff

to Borrower thereunder in full immediately upon Plaintiff’s demand. (See Exhibit “A”, Page “1”,

Paragraph “1” and Page “5”, Paragraph “25”).

18. Although the Note is due and payable on demand at any time and no default is

actually required prior to such demand, in any event, Borrower breached the Loan Documents and

became immediately liable to Plaintiff based upon, inter alia, its failure to remit the required

monthly payments due to Plaintiff under the Note beginning August 19, 2023 and continuing

thereafter.

19. By prior letters dated November 29, 2023, Plaintiff made demand upon Defendants

to immediately remit all accelerated and outstanding sums due under the Note, pursuant to

Plaintiff’s rights thereunder to demand payment in full at any time and/or as a result of Borrower’s

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forgoing default. Annexed collectively hereto as Exhibit “F” are true and complete copies of said

letters.

20. By prior letter dated February 13, 2024, Plaintiff’s counsel further demanded that

Defendants remit all accelerated, outstanding and unpaid sums due under the Note and Guaranty

pursuant to Plaintiff’s rights thereunder to demand payment in full at any time and/or as a result

of Borrower’s forgoing default. Annexed hereto as Exhibit “G” is a true and complete copy of

this letter.

21. Borrower and Guarantor have failed and refused to remit the accelerated and

outstanding indebtedness due under the Note to Plaintiff to date, despite Plaintiff’s demands for

same, which constitutes a further breach of the Loan Documents and a breach of the Guaranty.

22. By virtue of the foregoing, Defendants are both jointly and severally liable to

Plaintiff, on unconditional instruments for the payment of money under the Note and Guaranty in

the outstanding and unpaid principal amount of $149,961.42 as of January 5, 2024 plus unpaid

interest accrued through said date in the amount of $6,423.34 plus unpaid late charges accrued

through said date in the amount of $323.79 plus accrued and unpaid annual fees through said date

in the amount of $750.00 plus accrued and unpaid miscellaneous/UCC fees through said date in

the amount of $116.31 plus additional interest continuing to accrue at the Default Rate from

January 6, 2024 plus additional late charges continuing to accrue from January 6, 2024 plus all of

Plaintiff’s reasonable attorneys’ fees, other charges, and the costs and expenses of this Action, as

have accrued and which continue to accrue.

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AS AND FOR A FIRST CAUSE OF ACTION
AGAINST BORROWER
(Demand Note)

23. Plaintiff repeats, realleges and reiterates each and every allegation contained in

Paragraphs numbered “1” through “22” above as if fully set forth at length herein.

24. The Note represents an unconditional instrument for the payment of money only,

which is due and payable and to which no genuine defense exists.

25. Plaintiff has fully complied with and fully performed all of its obligations under the

Loan Documents.

26. As set forth above, Plaintiff has duly demanded payment of all accelerated and

outstanding sums due under the Note.

27. Despite Plaintiff’s demands, Borrower has failed and refused to remit payment of

all accelerated and outstanding sums due under the Note to Plaintiff.

28. By virtue of the foregoing, Borrower is liable to Plaintiff, on an unconditional

instrument for the payment of money under the Note in the outstanding and unpaid principal

amount of $149,961.42 as of January 5, 2024 plus unpaid interest accrued through said date in the

amount of $6,423.34 plus unpaid late charges accrued through said date in the amount of $323.79

plus accrued and unpaid annual fees through said date in the amount of $750.00 plus accrued and

unpaid miscellaneous/UCC fees through said date in the amount of $116.31 plus additional interest

continuing to accrue at the Default Rate from January 6, 2024 plus additional late charges

continuing to accrue from January 6, 2024 plus all of Plaintiff’s reasonable attorneys’ fees, other

charges, and the costs and expenses of this Action, as have accrued and which continue to accrue.

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AS AND FOR A SECOND CAUSE OF ACTION
AGAINST BORROWER
(Account Stated)

29. Plaintiff repeats, realleges and reiterates each and every allegation contained in

Paragraphs numbered “1” through “28” above as if fully set forth at length herein.

30. Plaintiff duly rendered periodic statements of account with regard to the Loan made

by Plaintiff to Borrower under the Note, which statements were received by Borrower in the

ordinary course of business.

31. Borrower never objected or protested any such statements or any item contained

therein, as was its duty and obligation if any error existed.

32. By virtue of the above, an account stated has been taken between Plaintiff and

Borrower on the Note, whereby Borrower has admitted and acknowledged the debts as accurate

and correct in all respects.

33. As a result of the foregoing, Plaintiff has a stated account with Borrower in the

outstanding and unpaid principal amount of $149,961.42 as of January 5, 2024 plus unpaid interest

accrued through said date in the amount of $6,423.34 plus unpaid late charges accrued through

said date in the amount of $323.79 plus accrued and unpaid annual fees through said date in the

amount of $750.00 plus accrued and unpaid miscellaneous/UCC fees through said date in the

amount of $116.31 plus additional interest continuing to accrue at the Default Rate from January

6, 2024 plus additional late charges continuing to accrue from January 6, 2024 plus all of Plaintiff’s

reasonable attorneys’ fees, other charges, and the costs and expenses of this Action, as have

accrued and which continue to accrue.

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AS AND FOR A THIRD CAUSE OF ACTION
AGAINST DEFENDANTS
(Unjust Enrichment)

34. Plaintiff repeats, realleges and reiterates each and every allegation contained in

Paragraphs numbered “1” through “33” above as if fully set forth at length herein.

35. Defendants utilized the funds pursuant to the terms of the Note.

36. Defendants have failed to pay the amounts due and owing to the Plaintiff despite

its demands for same and it is against equity and good conscience to allow Defendants to retain

the funds that Plaintiff is seeking to recover.

37. As a result, Defendants have been unjustly enriched at Plaintiff’s expense and are

jointly and severally liable to Plaintiff in the outstanding and unpaid principal amount of

$149,961.42 plus statutory interest accruing from August 19, 2023 plus all of Plaintiff’s reasonable

attorneys’ fees plus the costs and expenses of this Action, as have accrued and which continue to

accrue.

AS AND FOR A FOURTH CAUSE OF ACTION
AGAINST GUARANTOR
(Breach of the Guaranty)

38. Plaintiff repeats, realleges and reiterates each and every allegation contained in

Paragraphs numbered “1” through “37” above as if fully set forth at length herein.

39. The Guaranty is a valid and enforceable unconditional instrument for the payment

of money only, which is due and payable and to which no genuine defense exists.

40. As set forth above, Plaintiff has duly demanded payment of all accelerated and

outstanding sums due under the Note.

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41. Despite Plaintiff’s demands that Guarantor remit all accelerated and outstanding

sums due under the Note, Guarantor has failed and refused to do so to date, which constitutes a

breach of the Guaranty.

42. As a result, Guarantor is jointly and severally liable to Plaintiff under the Guaranty

in the outstanding and unpaid principal amount of $149,961.42 as of January 5, 2024 plus unpaid

interest accrued through said date in the amount of $6,423.34 plus unpaid late charges accrued

through said date in the amount of $323.79 plus accrued and unpaid annual fees through said date

in the amount of $750.00 plus accrued and unpaid miscellaneous/UCC fees through said date in

the amount of $116.31 plus additional interest continuing to accrue at the Default Rate from

January 6, 2024 plus additional late charges continuing to accrue from January 6, 2024 plus all of

Plaintiff’s reasonable attorneys’ fees, other charges, and the costs and expenses of this Action, as

have accrued and which continue to accrue.

AS AND FOR A FIFTH CAUSE OF ACTION
AGAINST BORROWER
(For Foreclosure of Security Interest)

43. Plaintiff repeats, realleges and reiterates each and every allegation contained in

Paragraphs numbered “1” through “42” above as if fully set forth at length herein.

44. The Security Agreement granted Plaintiff a lien and security interest in all of the

Collateral as security with respect to Borrower’s obligations to Plaintiff under the Loan

Documents.

45. Plaintiff duly perfected its senior security interest in and first priority lien against

the Collateral by filing the UCC.

46. Pursuant to the terms and conditions of the Security Agreement, upon demand

under the Note and the failure to pay all sums immediately thereafter, Plaintiff is entitled to pursue

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all of the rights and remedies available to a secured party, at law or equity, against Borrower,

including the rights and remedies of a secured party under the Uniform Commercial Code.

47. As a result of Borrower’s failure to pay all sums due under the Note upon demand

and/or Borrower’s default thereunder, Plaintiff is entitled to foreclose upon the Collateral.

48. By virtue of the forgoing, Plaintiff is entitled to a judgment granting foreclosure of

its security interest in the Collateral and permitting Plaintiff to pursue the rights and remedies

provided under the Uniform Commercial Code as well as such rights and remedies available under

applicable law.

AS AND FOR A SIXTH CAUSE OF ACTION
AGAINST DEFENDANTS
(For an Order of Replevin)

49. Plaintiff repeats, realleges and reiterates each and every allegation contained in

Paragraphs numbered “1” through “48” above as if fully set forth at length herein.

50. Pursuant to the Security Agreement, Borrower granted Plaintiff a security interest

in the Collateral. (See Exhibit “C”, Security Agreement, Page “2”, Section “2.1”).

51. Plaintiff duly perfected its senior security interest in and first priority lien against

the Collateral by filing the UCC with the New York Secretary of State. (See Exhibit “D”).

52. As a result of Plaintiff’s demand upon under the Note and/or Borrower’s default

under the Note and the Loan Documents, and its failure to pay all outstanding sums due thereunder,

Plaintiff is entitled to repossess the Collateral and the immediate possession of same.

53. Plaintiff has demanded that Defendants relinquish and deliver immediate

possession of the Collateral. (See Exhibit “G”).

54. Despite due demand, Defendants have failed and refused to deliver the Collateral

to Plaintiff or to permit Plaintiff to remove said Collateral from their possession.

55. By not surrendering and delivering the Collateral to Plaintiff, Defendants have

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violated Plaintiff’s rights therein, which rights are superior to any and all rights of Defendants to

retain possession of said Collateral. The failure and refusal of Defendants to turnover the

Collateral to Plaintiff unjustly enriches Defendants to the detriment of the Plaintiff.

56. Plaintiff’s present possessory rights to the Collateral are superior to any right of

possession Defendants may have.

57. By reason of the forgoing, Plaintiff is entitled to a judgment of possession and an

Order of Replevin as to the Collateral, which has not been surrendered and delivered by

Defendants.

WHEREFORE, Plaintiff, demands joint and several judgment awarding the Plaintiff

damages against Defendants as follows: (i) on its First and Second Causes of Action against

Borrower in the outstanding and unpaid principal amount of $149,961.42 as of January 5, 2024

plus unpaid interest accrued through said date in the amount of $6,423.34 plus unpaid late charges

accrued through said date in the amount of $323.79 plus accrued and unpaid annual fees through

said date in the amount of $750.00 plus accrued and unpaid miscellaneous/UCC fees through said

date in the amount of $116.31 plus additional interest continuing to accrue at the Default Rate from

January 6, 2024 plus additional late charges continuing to accrue from January 6, 2024 plus all of

Plaintiff’s reasonable attorneys’ fees, other charges, and the costs and expenses of this Action, as

have accrued and which continue to accrue; (ii) on its Third Cause of Action against Defendants

in the outstanding and unpaid principal amount of $149,961.42 plus statutory interest accruing

from August 19, 2023 plus all of Plaintiff’s reasonable attorneys’ fees plus the costs and expenses

of this Action, as have accrued and which continue to accrue; (iii) on its Fourth Cause of Action

against Guarantor in the outstanding and unpaid principal amount of $149,961.42 as of January 5,

2024 plus unpaid interest accrued through said date in the amount of $6,423.34 plus unpaid late

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charges accrued through said date in the amount of $323.79 plus accrued and unpaid annual fees

through said date in the amount of $750.00 plus accrued and unpaid miscellaneous/UCC fees

through said date in the amount of $116.31 plus additional interest continuing to accrue at the

Default Rate from January 6, 2024 plus additional late charges continuing to accrue from January

6, 2024 plus all of Plaintiff’s reasonable attorneys’ fees, other charges, and the costs and expenses

of this Action, as have accrued and which continue to accrue; and, (iv) on its Fifth and Sixth Causes

of Action against Defendant(s) as follows:

(a) Directing the foreclosure of Plaintiff’s security interests in all of the
Borrower’s assets and personal property (previously defined as the
“Collateral”);

(b) Enjoining Defendants and their respective servants, agents, employees,
officers, assigns, representatives and all other persons in active concert
and participation with Defendants from moving, selling, assigning,
transferring, secreting or otherwise disposing of the Collateral;

(c) Directing Defendants pursuant to New York Uniform Commercial Code
§ 9-609 to assemble and deliver to Plaintiff possession of the Collateral,
including, but not limited to, inventory, equipment, machinery, fixtures
and furnishings, or in the alternative, make such Collateral available to
Plaintiff at a reasonably convenient time and place; and

(d) Issuing an order of seizure pursuant to Civil Practice Law and Rules §
7102 as to the Collateral or so much thereof which has not been
surrendered and delivered by Defendants to Plaintiff and directing that
if Defendants fail to assemble and deliver to Plaintiff possession of the
Collateral, that Defendants turnover the Collateral to the Marshal,
Sheriff and/or any other appropriate legal authority, and if Defendants
fail to turnover the Collateral as aforesaid that the Marshal, Sheriff
and/or any other appropriate legal authority may break open, enter and
search for the Collateral and/or proceeds thereof at 24 Brockton Road,
Spring Valley, New York 10977 and/or 228 East Route 59, Suite 382,
Nanuet, New York 10954, or wherever such Collateral and/or the
proceeds thereof may be located whether within or without the State of
New York; and,

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and, (v) granting such other and further relief as this Court deems just, proper and

equitable.

Dated: February 23, 2024
PLATZER, SWERGOLD, GOLDBERG, KATZ &
JASLOW, LLP

By: /s/ Mitchell L. Kaplan
Mitchell L. Kaplan
475 Park Avenue South, 18th Floor
New York, New York 10016
Tel.: (212) 593-3000
Counsel for Plaintiff, TD Bank, N.A.

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SUPREME COURT OF THE STATE OF NEW YORK File No. 1281-n1204
COUNTY OF ROCKLAND
Index No.
TD BANK, N.A.,

Plaintiff, VERIFICATION AND
AFFIRMATION OF
-against- TRUTH OF STATEMENT

MELOWW LLC and YEHUDA ROSENSTOCK,

Defendants.

ERIKA CHAMBERLAIN hereby affirms as follows:

1. Under the penalties of perjury under the laws of New York, which may include a
fine or imprisonment, that the following is true, and I understand that this document may be filed
in an action or proceeding in a court of law.

2. I am a Vice President for TD Bank, N.A., plaintiff (“Plaintiff”) in the within action.

3. I have read the annexed Verified Complaint, know the contents thereof and the
same are true to my knowledge, except those matters thereon which are stated to be alleged upon
information and belief, and as to those matters I believe them to be true. I certify to the best of my
knowledge, information and belief, formed after reasonable inquiry under the circumstances, the
contentions made herein are not frivolous as defined in N.Y. Ct. Rule 130-1.1(c).

4. My belief as to those matters therein not stated upon knowledge, is based upon my
review of books and records held in Plaintiff’s offices.

23 2024
Dated: February ___,
____
ERIKA CHAMBERLAIN

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Document Filed Date

March 19, 2024

Case Filing Date

March 19, 2024

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Complaint,Petition: Td Bank, N.A. v. Meloww Llc, Yehuda Rosenstock

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