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E2019001885
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/27/2019
MONROE COUNTY CLERK'S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2000332
BARRY M. KAZAN
335 Madison Ave 's±rent: EFILING INDEX NUMBER
12th Floor
Index #: E2019001885
Date: 02/28/2019
Butt, Shaista
Green, Dianna
Management
ADAM J BELLO
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Plaintiff,
-against-
Defendants.
You are hereby summoned and required to serve upon the Plaintiff’s attorney an Answer
to the Verified Complaint in this action within twenty (20) days after the service of this
summons, exclusive of the day of service, or within thirty (30) days after service is complete if
this Summons is not personally delivered to you within the State of New York. In case of your
failure to answer, judgment will be taken against you by default for the relief demanded in the
Complaint.
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Pursuant to CPLR § 507, the venue designated is based on the location where the real property is
situated which is the subject matter of the Foreclosure Complaint as alleged in the Verified
Complaint.
Shaista Butt
52 Longview Road
Southampton, New York 11968
Dianna Green
41 Paige Street
Rochester, New York 14619
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Plaintiff,
-against-
VERIFIED COMPLAINT FOR
F.M. BUTT HOTELS CORP., SHAISTA MORTGAGE FORECLOSURE
BUTT, BILLITIER ELECTRIC, INC.,
DIANNA GREEN, SYSCO GUEST SUPPLY,
LLC, NEW YORK STATE DEPARTMENT
OF TAXATION AND FINANCE, and “JOHN
DOE NO. 1” through “JOHN DOE NO. 25,”
the last twenty-five names being fictitious
persons or parties unknown to the plaintiff , the
persons or parties intended being the tenants,
occupants, persons or corporations, if any,
having or claiming an interest in or lien upon
the premises, described in the Complaint,
Defendants.
INC.) (“Access Point”), by its attorneys, Thompson Hine LLP, for its Verified Complaint,
alleges as follows:
F.M. BUTT HOTELS CORP. (“Borrower”) as mortgagor to secure promissory notes in the
maximum aggregate principal amount of $5,880,000, encumbering real property located at the
street address 911 Brooks Avenue, Rochester, NY 14624 (the “Mortgaged Property”) along with
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THE PARTIES
2. Plaintiff Access Point Financial, LLC (f/k/a Access Point Financial, Inc.) is a duly
authorized limited liability company in good standing with and organized under the laws of the
state of Delaware. Access Point’s principal place of business is 1 Ravinia Drive, Atlanta,
Georgia 30346.
3. Defendant F.M. BUTT HOTELS CORP. (“Borrower”) is, upon information and
belief, a corporation organized and existing under the laws of the State of New York, with its
principal place of business located at 52 Longview Road, Southampton, New York 11968.
State of New York. Mrs. Butt executed a Guaranty Agreement with Access Point dated May 17,
2017, and therein consented to service of process at 52 Longview Road, Southampton, New
York 11968.
belief, a corporation organized under the laws of the State of New York with its principal place
of business located at 760 Brooks Avenue, Rochester, New York 14619. Billitier is named as a
defendant herein because, upon information and belief, it is the owner of a mechanic’s lien on
resident of the State of New York residing at 41 Paige Street, Rochester, New York 14619.
Dianna Green is named as a defendant herein because, upon information and belief, she is a
7. Defendant SYSCO GUEST SUPPLY, LLC (“Sysco”) is, upon information and
belief, a limited liability company organized under the laws of the State of Delaware and
registered to do business in the State of New York, with its principal place of business located at
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300 Davidson Avenue, Somerset, New Jersey 08873. The records of the New York State
Department of State, Division of Corporations, indicate that Sysco has appointed as its registered
agent Corporation Service Company, 80 State Street, Albany New York 12207. Sysco is joined
as a defendant herein because, upon information and belief, it is a judgment creditor of the
Borrower.
FINANCE (“NYS Department of Taxation”) is an agency of the State of New York located at
Building 9, W.A. Harriman Campus, Albany New York 12227. NYS Department of Taxation is
joined as a defendant herein because, upon information and belief, Borrower has unpaid New
9. Defendants “JOHN DOE” #1 THROUGH #25 represent individuals and entities the
names of whom and which are unknown to Access Point who have, claim to have, or may claim to
have some lien or other interest in or on the Mortgaged Property (as defined herein) or some part of
it, or are or were tenants or persons in possession of all or portions of the Mortgaged Property, and
are named and joined as parties defendant for the purpose of foreclosing any such fee or other lien or
interest that such persons or entities have or claim or may claim to have in the Mortgaged Property.
10. Each of the defendants has or may have or claim to have some right, title or interest
in or lien upon the Mortgaged Property, or some part thereof, which has accrued subsequent to the
BACKGROUND
11. In or around May 2017, Access Point agreed to loan Borrower Four Million Two
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12. In conjunction with the Mortgage Loan, Access Point, Borrower, and Mrs. Butt
13. Specifically, on or about May 17, 2017, Borrower executed and delivered to
Access Point that certain Promissory Note in the original principal amount of $4,280,000.00 (the
“Mortgage Note”). A true and correct copy of the Mortgage Note is attached hereto as Exhibit 1.
14. On or about May 17, 2017, as security for the Mortgage Note, Borrower executed
and delivered to Access Point at its Georgia address that certain Mortgage and Security
Agreement and Fixture Filing (the “Mortgage”), granting Access Point, among other things, a
first priority interest in certain real and personal property on the land as legally described in
Exhibit A to the Mortgage, located at 911 Brooks Avenue, Rochester, NY 14624 (i.e., the
Mortgaged Property). The Mortgage was electronically recorded in the public records of the
Monroe County Clerk’s Office in Rochester, Monroe County, New York on May 25, 2017 in
book 27153, pages 69-109, Control # 201705250208. A true and correct copy of the Mortgage
15. On or about May 17, 2017, in connection with the Mortgage Loan, Borrower
executed and delivered to Access Point at its Georgia address that certain Assignment of Rents
and Leases (the “Assignment”), absolutely and unconditionally assigning to Access Point all
current and future leases and other agreements, as well as any extensions or renewals of the
same, together with all current and future rents, income, fees, profits and other receivables (from
such leases or otherwise arising from and affecting the Mortgaged Property (“Rents”). Further,
under the Assignment, Access Point granted a revocable license to Borrower to collect and retain
the Rents so long as no Event of Default occurred and, upon the occurrence of an Event of
Default, the license would immediately and automatically be revoked without further notice to
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Borrower. The Assignment was electronically recorded in the public records of the Monroe
County Clerk’s Office in Rochester, Monroe County, New York on May 25, 2017 in book
11864, pages 224-236, Control # 201705250209. A true and correct copy of the Assignment as
16. The Mortgage and Assignment encumber real property situated in the City of
Rochester, Monroe County, New York, bearing the address 911 Brooks Avenue, Rochester, NY
14624, encompassing Tax Map and Parcel ID Section 135.10 Block 1 Lot 1 and Section 135.10
All that certain lot, piece or parcel of land, with buildings and improvements
thereon erected, situate, lying and being in the town of Gates, County of Monroe
and State of New York and being described as follows:
Parcel 1:
All that certain plot, piece or parcel of land, situate, lying and being in the town of
Gates, County of Monroe and State of New York and being bounded and
described as follows:
Thence (1) North 88 degrees 36 minutes 41 seconds east and along the Southerly
highway boundary line of Brooks Avenue as established by New York State and
filed in Monroe County Clerk's office in liber 1102 of maps, page 55 a distance of
65.96 feet to a point;
Thence (2) South 31 degrees 34 minutes 49 seconds East and along the Westerly
property line of the New York State Barge Canal A distance of 33.14 feet to a
point;
Thence (3) South 31 degrees 34 minutes 54 seconds East and continuing along the
Westerly property line of the New York State Barge Canal, a distance of 636.67
feet to a point;
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Thence (4) South 43 degrees 38 minutes 51 seconds East and continuing along the
Westerly property line of the New York State Barge Canal, a distance of 452.00
feet to a point;
Thence (7) North 37 degrees 19 minutes 45 seconds West along the Easterly
boundary line of the Rochester Outer Loop a distance of 353.00 feet to a point;
Thence (8) North 21 degrees 20 minutes 19 seconds West along the Easterly
boundary line of the Rochester Outer Loop a distance of 261.83 feet to a point;
Thence (9) North 01 degrees 11 minutes 59 seconds West along the Easterly
boundary line of the Rochester Outer Loop a distance of 555.86 feet to the point
of beginning.
Together with a permanent easement over the existing right-of-way, adjoining the
second and third courses of the premises set forth above as "Parcel 1" and shown
on the survey above referred to as an "existing right-of-way" and running from
Brooks Avenue along its Southerly side a distance of 174.41 feet along said
second and third courses, to be used by party of the second part, its successors and
assigns, employees, agents, customers and business and other invitees, solely for
the purposes of ingress and egress from Brooks Avenue to the premises set forth
above as "Parcel 1".
Parcel 2:
All that certain plot, piece or parcel of land, situate, lying and being in the town of
Gates, County of Monroe and State of New York and being bounded and
described as follows:
Thence (1) North 88036'41" East and along the Southerly highway boundary line
of Brooks Avenue as established by New York State and filed in Monroe County
Clerk's office in Liber 1102 of Maps, page 55, a distance of 65.96 feet to a point;
Thence (2) South 31°34'49" East and along the Westerly property line of the New
York Barge Canal, a distance of 33.14 feet to a point;
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Thence (3) South 31°34'54' East and containing along the Westerly property line
of the New York State Barge canal a distance of 636.37 feet to a point;
Thence (4) South 43°38'51" East along the Westerly property line of the New
York State Barge Canal a distance of 452.00 feet to the point of beginning of the
parcel to be conveyed, bounded and described as follows:
Thence (A) continuing South 43°38'51" East along the Westerly property line of
the New York State Barge Canal a distance of 114.66 feet to a point;
Thence (B) South 02°22'36" West across lands now or formerly of Mobil Oil
Corporation a distance of 7.94 feet to a point.
Thence (D) North 53°27'34" West along the Easterly highway boundary line of
the Rochester Outer Loop a distance of 228.18 feet to a point;
Thence (E) North 37°19'45" West and continuing along the Easterly highway
boundary line of the Rochester Outer Loop a distance of 194.55 feet to a point;
Thence (G) North 46°21 '09 East a distance 210.00 feet to the point or place of
beginning.
Together with right-of-way and including all right, title and interest of the party of
the first part in and to a 25-foot right-of-way for ingress and egress along the
Westerly boundary line of other lands of the party of the first part joining and
immediately to the north of the premises set forth above as "Parcel II".
Being the same premises conveyed to Rochester Airport Holdings, LLC by the
Bargain and Sale Deed made by PWR16-HI Rochester LLC, a Delaware limited
liability company, dated May 1, 2013 recorded September 19, 2013 in Book
11305, page 137 in the Office of the Monroe County Clerk.
17. On or about May 17, 2017, as further security for the Mortgage Note, Mrs. Butt
executed and delivered to Access Point at its Georgia address that certain Guaranty Agreement
(the “Mortgage Guaranty”), under which Mrs. Butt irrevocably, absolutely, and unconditionally
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guaranteed to Access Point the prompt payment when due, whether at stated maturity, by
acceleration or otherwise, all payments owed by Borrower pursuant to the Mortgage Note in the
amount of $4,280,000.00. A true and correct copy of the Mortgage Guaranty is attached hereto
as Exhibit 4.
18. On or about May 17, 2017, Borrower executed and delivered to Access Point at
its Georgia address that certain Equipment Loan and Security Agreement (the “Equipment
LSA”) evidencing a loan from Access Point to Borrower in the principal amount of
$1,600,000.00 (the “Equipment Loan”). As part of the Equipment LSA, Borrower granted to
Access Point a security interest in certain collateral designated as “all furnishings, fixtures, and
substitutions, additions, and improvements thereto, and all service contracts, warranty claims and
other general intangibles relating thereto, and all insurance proceeds and condemnation awards
received or receivable with respect thereto, and all cash and non-cash proceeds of the foregoing,”
and as further listed in Exhibit B to the Equipment LSA (the “Collateral”). A true and correct
19. On or about May 17, 2017, Borrower also executed and delivered to Access Point
at its Georgia address that certain Promissory Note in the original principal amount of
$1,600,000.00 under which Borrower promised to pay to Access Point the funds being loaned to
Borrower under the Equipment LSA (the “Equipment Note,” together with the Equipment LSA,
the “Equipment Loan Documents”). A true and correct copy of the Equipment Note is attached
hereto as Exhibit 6.
20. Under the Equipment Loan Documents Borrower agreed to pay the principal sum
of $1,600,000.00 plus interest thereon which accrued at the rate of six and one-half percent
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(6.5%). In the event Borrower failed to make a required payment when due (a default), Access
Point would be entitled to collect a late charge equal to five percent (5%) of the overdue amount
and interest would accrue on the outstanding principal at a rate of eighteen percent (18%) per
annum until the default was cured. Further, if Borrower failed to make a required payment when
due, Access Point was entitled to accelerate the maturity date and demand prompt repayment of
the entire outstanding principal balance plus any interest accrued thereon and other sums due.
21. In the Mortgage Note, Borrower agreed to pay the principal sum of $4,280,000.00
plus interest thereon at a rate of seven and one-half percent (7.5%) per annum (the “Note Rate”)
at the rates and at the times as specified in Article I of the Mortgage Note. Borrower further
agreed that the outstanding balance of the principal sum of the Mortgage Note and all accrued
and unpaid interest thereon would be due and payable on the Maturity Date. See Exhibit 1.
22. The Mortgage Note provides that “[i]nterest only shall be payable monthly, in
arrears, during the term of the Loan commencing on the first (1st) day of July, 2017, and
continuing on the first (1st) day of each month thereafter until November 1, 2018 (the
and “continuing on the first (1st) day of each month thereafter during the term of the Loan,
23. The Mortgage Note provides that in the event the entire principal balance is
prepaid after the Amortization Commencement Date, Borrower is obligated to pay to Access
Point an additional sum equal to one percent (1%) of the original principal balance (the
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25. The Mortgage Note, in Article II, provides that Borrower’s failure to make any
required payment of interest or principal when due constitutes an Event of Default. See Exhibit
1. The Mortgage contains an analogous provision. See Exhibit 2 (at Article 7).
26. In the case of any Event of Default, the Note Rate “shall be increased to five
percent (5%) per annum above the original Note Rate (“Default Rate”)” (i.e., 12.5%) and shall
accrue from the date of the Event of Default until the date upon which the Event of Default is
cured. Further, “[i]t is a condition precedent to the cure of any Event of Default” that Borrower
shall pay all principal and accrued interest as required under the Mortgage Note that would have
been paid but for the Event of Default up to the current payment date, plus any additional amount
due owing to application of the Default Rate to the period of the Event of Default. See Exhibit 1.
27. Further, in the case of Borrower’s failure to make a required payment of principal
or accrued interest when due, Access Point may demand payment of a late charge in the amount
of the lesser of five percent (5%) of the unpaid amount or the highest rate allowed by applicable
28. The Mortgage Note provides that in the case of any Event of Default by
Borrower, Access Point, at its option and without further notice, may declare any unpaid balance,
including principal and any interest thereon, immediately due and payable. See Exhibit 1. The
29. The Mortgage Note further provides that, in the event Access Point shall take
legal action to enforce Borrower’s obligations under the Mortgage Loan Documents, Access
Point shall be entitled to recover, in addition to any unpaid principal and interest thereon,
reasonable attorneys’ fees actually incurred and collection costs and expenses. The Equipment
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30. On or around July 25, 2017, Access Point’s predecessor, Access Point Financial,
Inc., assigned the Mortgage to an affiliate, APF-CS, LLC. On August 2, 2017, that assignment
was recorded in the public records of the Monroe County Clerk’s Office in Rochester, Monroe
County, New York in book 1823, page 310. That assignment persisted while Access Point
Financial, Inc. reorganized and converted into a limited liability company i.e., Access Point
Fniancial, LLC, the Plaintiff. On January 9, 2019, APF-CS, LLC assigned the Mortgage back to
Access Point. That assignment was recorded in the public records of the Monroe County Clerk’s
Office in Rochester, Monroe County, New York on January 29, 2019 in book 1853, page 571.
31. Access Point Financial, LLC, the Plaintiff herein, is the current and true owner of
the Mortgage.
BORROWER’S DEFAULTS
32. Beginning in February 2018, Borrower failed to make payments due under the
Mortgage Loan Documents and Equipment Loan Documents. This constitutes an Event of
Default under the Mortgage Loan Documents and Equipment Loan Documents, respectively.
33. On or about July 9, 2018, Access Point sent a letter to Borrower and Mrs. Butt,
notifying them of the defaults under the Mortgage Loan Documents and Equipment Loan
Documents (the “Default Letter”). A true and correct copy of the Default Letter is attached
hereto as Exhibit 7.
34. As identified in the Default Letter, interest on the unpaid amounts due under the
Mortgage Loan Documents has and shall accrue at the Default Rate (12.5% per annum) from and
after February 1, 2018, and interest on the unpaid amounts due under the Equipment Loan
Documents has and shall accrue at the rate of 18% per annum..
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35. As set forth in the Default Letter, the aggregate amount of unpaid monies owed to
Access Point under the terms of the Mortgage Loan Documents was $263,165.10 and under the
36. Access Point demanded that Borrower and Mrs. Butt, as guarantor, cure the
defaults.
37. Notwithstanding the Default Letter and the notice contained therein, the Events of
38. On or around July 20, 2018, Access Point sent another letter to Borrower and
Mrs. Butt, notifying them of the failure to make payment of the amounts due and owing to
Access Point as set forth in the Default Letter, and exercising Access Point’s rights under the
Mortgage Loan Documents to declare the entire principal balance, together with all accrued and
unpaid interest thereon and all other sums or payments required under the Mortgage Loan
Documents, including the Late Charge, due and payable immediately (the “First Acceleration
Letter”). The First Acceleration Letter similarly exercised Access Point’s right under the
Equipment Loan Documents to declare the entire principal balance, together with all accrued and
unpaid interest thereon and all other sums or payments required thereunder, including the Late
Charge, due and payable immediately. A true and correct copy of the First Acceleration Letter is
39. By the First Acceleration Letter, Access Point provided notice that it intended to
enforce its rights under the Mortgage Loan Documents and Equipment Loan Documents to
recover its reasonable attorney’s fees and costs unless all amounts due and owing were paid
within ten (10) days from receipt of the First Acceleration Letter.
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40. Further, the First Acceleration Letter expressly notified Borrower that under the
Assignment, and as a result of the occurrence of the Events of Default, Borrower’s license to
41. Notwithstanding the Default Letter and the First Acceleration Letter, the Events of
42. On or about December 28, 2018, Access Point sent another letter to Borrower and
Mrs. Butt, reiterating its demands as set forth in the Default Letter and First Acceleration Letter and
again exercising Access Point’s rights under the Mortgage Loan Documents and Equipment Loan
Documents to declare the entire principal balances, together with all accrued and unpaid interest
thereon and all other sums or payments required under thereunder, including the Late Charge, due
and payable immediately (the “Second Acceleration Letter”). A true and correct copy of the Second
43. By the Second Acceleration Letter, Access Point again provided notice that it
intended to enforce its rights under the Mortgage Loan Documents and Equipment Loan Documents
to recover its reasonable attorney’s fees and costs unless all amounts due and owing were paid within
44. The Second Acceleration Letter further reiterated that pursuant to the Assignment, as
a result of the occurrence of the Events of Default, Borrower’s license to retain Rents was
45. Notwithstanding the Default Letter, and the First and Second Acceleration Letters,
the Events of Default have continued and, to date, have not been cured.
notified the Borrower that its insurance coverage for the Mortgaged Property would be cancelled,
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effective February 25, 2019, if the Borrower did not remit payment of past due premium
payments (the “First Notice of Cancellation”). A true and correct copy of the First Notice of
47. On or about February 11, 2019, Preferred Mutual Insurance Company further
notified the Borrower that the insurance coverage for the Mortgaged Property would be
cancelled effective March 19, 2019 due to an “increased hazard or material change in the risk
assumed” resulting from one of the buildings on the Mortgaged Property being vacant (the
“Second Notice of Cancellation”). A true and correct copy of the Second Notice of Cancellation
48. As a result of the First Notice of Cancellation, insurance coverage for the
Mortgaged Property will lapse on February 25, 2019. Even if the Borrower makes the required
payments, the Second Notice of Cancellation demonstrates that the Mortgaged Property will no
49. Section 4.3 of the Mortgage requires the Borrower to maintain insurance on the
Mortgaged Property against casualty and loss for the duration of the Mortgage Loan.
50. Section 7.1(a) expressly defines the Borrower’s failure to maintain insurance
insurance coverage for the Mortgaged Property constitutes an Event of Default in addition to
Borrower’s failure to make the payments required under the Mortgage Loan Documents and
52. Access Point hereby repeats and realleges all of the preceding allegations set forth
in paragraphs 1 through 51, inclusive, above, to the same extent as if fully set forth herein.
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53. Borrower has defaulted under the terms of the Mortgage Loan Documents and
Equipment Loan Documents and failed to repay the indebtedness when due as promised. For
these reasons and others, Borrower is in default, giving Access Point the right to foreclose on the
Mortgaged Property and Collateral and sue for recovery of any sums due to it.
54. As stated in the First and Second Acceleration Letters, Access Point has elected
and hereby confirms its election to declare immediately due and owing the entire unpaid
principal together with all accrued and unpaid interest thereon and all other sums or payments
required under the Mortgage Loan Documents and Equipment Loan Documents, including the
55. Borrower has failed to remit the amounts referred to in the Default Letter, First
Acceleration Letter, and Second Acceleration Letter, and has failed to remit any part thereof.
56. Borrower has not disputed the Notice of Default, the First Acceleration Letter, or
57. Further, Borrower has failed to make payments required to maintain insurance on
the Mortgaged Property, an express covenant in Section 4.3 of the Mortgage, and that failure
58. As of December 28, 2018, the date of the Second Acceleration Letter, the
following amounts (exclusive of costs and fees, including attorney’s fees) were due and owing to
Access Point under the Mortgage Loan Documents, no part of which has been paid although duly
demanded:
Principal $4,280,000.00
Interest $190,816.67
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Total $4,734,867.23
59. As of December 28, 2018, the date of the Second Acceleration Letter, the
following amounts (exclusive of costs and fees, including attorney’s fees) are now due and
owing to Access Point under the Equipment Loan Documents, no part of which has been paid
Principal $1,600,000.00
Interest $79,444.44
Total $1,825,065.86
60. In addition to the amounts listed above, which continue to accrue, Access Point is
entitled to any other charges, indebtedness and interest that may have accrued since the date of
the Second Acceleration Letter and the costs of this collection, including reasonable attorney's
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fees and disbursements, and the costs, disbursements and allowances to which Access Point may
61. Per diem interest in the amount of $1,486.11 continues to accrue on the Mortgage
Loan at the Default Rate. Per diem interest in the amount of $800.00 continues to accrue on the
Equipment Loan.
62. Upon information and belief, all of the Defendants’ interests in the Mortgaged
Property, if any, are subject and subordinate to the lien of the Mortgage and Assignment, and all
interests in the Collateral, if any, are subject and subordinate to the lien of the Equipment LSA.
63. Access Point requests that if this action proceeds to judgment of foreclosure and
sale, the Mortgaged Property and Collateral be sold, subject to the following:
64. If Access Point possesses any other liens against the Mortgaged Property either by
way of judgment, junior mortgage, or otherwise, Access Point requests that it be permitted to
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elect prior to judgment that only such other liens shall not be merged in Access Point’s cause of
action set forth in this Complaint, but that Access Point shall be permitted to enforce said other
liens and/or seek determination of priority thereof in any independent actions or proceedings
65. Access Point reserves the right: (1) to sue for judgment on any guaranty for any
funds received from the Mortgaged Property or for any acts of waste, conversion or malfeasance
and (3) to make such protective advances as may be necessary for the protection and
preservation of Access Point's collateral, and requests that such other rights and liens shall not be
merged in Access Point's cause of action set forth in this Complaint, but that Access Point shall
be permitted to enforce said other rights and liens in any independent actions or proceedings, or
66. Access Point shall not be deemed to have waived any default not specified herein,
nor to have waived, altered, released, or changed any election hereinbefore made by reason of
any payment made after default and acceleration of the Mortgage Loan by Access Point, or by
reason of any cure or remedy, or attempted cure or remedy, of any or all of the defaults or Events
of Default named herein, and any such election shall continue and remain effective.
67. In order to protect its security, Access Point may be compelled, during the pendency
of this action, to pay sums for premiums on insurance policies, real estate taxes, assessments, water
charges, sewer rents and other utility obligations, which are or may become liens on the Mortgaged
Property, and other charges which may be necessary for the protection of the Mortgaged Property,
and Access Point prays that any sum or sums so paid, together with interest from the date of
payments, shall be added to Access Point’s claim and be deemed secured by the Mortgage Note ,
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Assignment, and Mortgage and adjudged a valid lien on the Property, and that the plaintiff be paid
such sums, together with interest thereon, out of the proceeds of the sale of the Mortgaged Property.
68. Access Point is the sole, true and lawful owner of the Mortgage Note, Assignment,
and Mortgage securing the Mortgage Loan and that there are no pending proceedings at law or
otherwise to collect or enforce the Mortgage Note, Assignment or the Mortgage, and no other action
or proceeding has been commenced or maintained at law or otherwise for the foreclosure of the
Mortgage or for recovery of the indebtedness evidenced and secured by the Mortgage Loan
69. Access Point repeats and realleges all of the preceding allegations set forth in
paragraphs 1 through 68, inclusive, above, to the same extent as if fully set forth herein.
70. The Mortgage Note and Equipment Note provide that upon the occurrence of an
Event of Default, Lender may recover all costs, including reasonable attorneys’ fees, costs,
disbursements, and allowances provided by law in bringing any action to protect its interest in
the premises, including foreclosure of the Mortgage, and the Equipment Note and the Collateral.
(A) That the defendant(s) and all persons claiming under them or any of them,
subsequent to the commencement of this action and to the filing of the Notice of
Pendency of this action, may be barred and foreclosed of all right, title, claim, lien and
equity of redemption in the Mortgaged Property and each and every part thereof and, to
the extent said defendant occupies any part of the Mortgaged Property, foreclosing any
(B) That each common address comprising the Mortgaged Property be sold in
one parcel according to law subject to any state of facts an accurate survey would show,
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agreements of record, zoning regulations and ordinances of the city, town, or village
wherein the Mortgaged Property is located, any state of facts a physical inspection would
disclose, rights of tenants and other persons in possession of the Mortgaged Property,
prior judgments, liens, and mortgages or record and any and all rights of the United
(C) That personal property specified in the Mortgage (also included in the
Mortgaged Property) as well as the Collateral specified in the Equipment LSA, be sold
according to law;
(D) Adjudging the amount due Access Point as demanded in this Complaint,
in accordance with the Mortgage Loan Documents and Equipment Loan Documents;
(E) That the Mortgaged Property be sold in accordance with Title 28, Section
2410 of the United States Code preserving all rights of redemption, if any, of the United
States of America;
(F) That the monies received from the sale be brought into Court and that
Access Point be paid the amount adjudged to be due it with interest thereon to the time of
such payment, together with late charges, any sums paid by the Access Point for real
estate taxes, assessments, water charges and sewer rents, insurances premiums, sums
expended for the protection or preservation of the property, together with attorneys’ fees
and costs as demanded in Count II, the costs and disbursements of this action and any
other necessary expenses to protect the lien of the Mortgage to the extent that the amount
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(G) That this Court appoint a receiver of the rents and profits of said premises,
during the pendency of this action with the usual powers and duties;
(H) That Defendant F.M. Butt Hotels Corp. be adjudged to pay any deficiency
which may remain after applying all of such monies as aforesaid in accordance with the
(I) That in the event Access Point possesses any other liens against the
Point requests that such other liens not be merged in Access Point’s causes of action set
forth in this Complaint but that Access Point shall be permitted to enforce said other liens
(J) Such other and further relief in the Mortgaged Property and Collateral as
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VERIFICATION
Barry M. Kazan, an attorney duly admitted to practice before the Courts of the State of
I have read the foregoing Verified Complaint, know the contents thereof, and the same
are true and correct to my knowledge and belief, except for those statements made upon
information and belief, and as to such statements, I believe them to be true, based upon my own
personal knowledge.
corporation and does not maintain an office in the County in which I maintain my offices in the
/s/Barry M. Kazan
Barry M. Kazan
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