FILED: NEW YORK COUNTY CLERK 12/15/ :45 PM INDEX NO /2016 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/15/2016

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1 FILED: NEW YORK COUNTY CLERK 12/15/ :45 PM INDEX NO /2016 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/15/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK )( CARNEGIE HILL PROPERTIES, LLC, ORMONDE EQUITIES, LLC, 2030 EMBASSY LLC, and 1641 PARK AVE. ASSOCIATES, Plaintiffs, v. MOTION SEQUENCE # 1 Index No.: (Kornreich, J.) CAPITAL ONE, N.A., Defendant )( MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT CAPITAL ONE, NATIONAL ASSOCIATION'S MOTION FOR SUMMARY JUDGMENT LAZER, APTHEKER, ROSELLA & YEDID, P.C. Attorneys for Defendants ATTORNEYS AT LAW MELVILLE LAW CENTER 225 OLD COUNTRY ROAD MELVILLE, NEW YORK (631) of 16

2 TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES... ii PRELIMINARY ST A TEMENT... I FACTS... I ARGUMENT... 5 A. Standard of Proof... 5 B. Without Regard To Care or Lack of Care of Any Party, Plaintiffs' Claims Warrant Dismissal as a Matter of Law Under N.Y. U.C.C (4), as Well as Under the Parties' Agreement... 5 C. Plaintiffs' Own Failure to Exercise Reasonable Care Precludes Their Claims CONCLUSION of 16

3 TABLE OF AUTHORITIES Page(s) Cases Alagappan v. Jaffer, 157 A.D.2d 687, 549 N.E.S.2d 786 (2nd Dep't 1990)... 5 Andre Romanelli, Inc. v Citibank, N.A., 2008 N.Y. Misc. LEXIS 8431, 2008 NY Slip Op 31105(U) (Sup. Ct. N.Y. County 2008)... 8 Catalano v. Marine Midland Bank, 303 A.D.2d 617, 756 N.Y.S.2d 770, (2d Dep 't 2003)... 9 Clemente Bros. Contracting Corp. v. Hafner-Milazzo, 100 A.D.3d 677, 954 N.Y.S.2d 156(2d Dep't 2012), affd in part, 23 N.Y.3d 277, 14 N.E.3d 367 (2014)... 7 Clemente Bros. Contracting Corp. v. Hafner-Milazzo, 23 N.Y.3d 277, 14 N.E.3d 367, 991N.Y.S.2d14(2014)... 6, 7 Dimovich v. OnBank & Trust Co., 242 A.D.2d 922, 662 N.Y.S.2d 644 (4th Dep't 1997)... 6 Garage Mgm't Corp. v. Chase Manhattan Bank, 22 A.D.3d 432, 803 N.Y.S.2d 60 (1st Dep't 2005)... 7 Gateway State Bank v. Shangri-La Private Club for Women, Inc., 113 A.D.2d 791, 493 N.Y.S.2d 226 (2nd Dep't 1985), affd, 67 N.Y.2d 627, 499 N.Y.S.2d 679 (1986)... 5 Mansi v. Gaines, 216 A.D.2d 536, 628 N.Y.S.2d 804 (2d Dep't 1995) Peter Marino Ltd. v. Bank ofn.y., 250 A.D.2d 485, 672 N.Y.S.2d 865 (1st Dep't 1998) Prudential-Bache Secur., Inc. v. Citibank, N.A., 73 N.Y.2d 263, 536 N.E.2d 1118, 539 N.Y.S.2d 699 (1989) 8 Radon Constr. Corp. v. Colwell, 248 A.D.2d 366, 669 N.Y.S.2d 839 (2d Dep't 1998) Royal Arcanum Hosp. Assn. of Kings County, Inc. v Herrnkind, 35 Misc 3d 1205[A], 2012 NY Slip Op 50562(U) (Sup. Ct. Kings County 2012)... 6 ii 3 of 16

4 Sears Coop. v. Norstar Bank of Upstate N.Y., 203 A.D.2d 904, 612 N.Y.S.2d 722 (4thDep't 1994) Wells v. Bank ofn.y. Co., Inc., 181 Misc. 2d 574, 694 N.Y.S.2d (Sup. Ct. N.Y. Cnty. 1999)... 7 Woods v. MONY Legacy Life Ins. Co., 84 N.Y.2d 280, 641N.E.2d1070 (1994)... 6, 9 Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980)... 5 iii 4 of 16

5 Other Authorities C.P.L.R N.Y. U.C.C (1) N.Y. U.C.C (2) N.Y. U.C.C (2)(b) N.Y. U.C.C (4)... 6, 7, 8, 9 N.Y. UCC N.Y. UCC IV 5 of 16

6 PRELIMINARY STATEMENT This Memorandum of Law is submitted by defendants Capital One, National Association ("Capital One") in support of its motion for an order granting summary judgment in its favor and against the Plaintiffs, Carnegie Hill Properties, LLC ("Carnegie"), Ormonde Equities, LLC ("Ormonde Equities"), 2030 Embassy LLC ("2030 Embassy") and 1641 Park Ave. Associates ("1641 Park") (collectively, "Plaintiffs"), on the claims raised against Capital One in Plaintiffs' Complaint, and for such other and further relief as this Court may deem just, proper and equitable. FACTS Plaintiffs were customers of Capital One and maintained depositary accounts with the bank. Plaintiffs commenced the underlying action on or about March 4, 2016 by electronically filing a Summons With Notice, a copy of which is annexed as Exhibit A 1 to the accompanying Affirmation of Todd M. Gardella dated March 4, 2016 (the "Gardella Aff."). Capital One electronically filed and served a Notice of Appearance and Demand For Complaint on March 11, See Exhibit B to the Gardella Aff. Plaintiffs filed the Complaint on March 31, See Exhibit C to the Gardella Aff. Capital One interposed its answer on May 27, See Exhibit D to the Gardella Aff. In the Complaint, Plaintiffs assert six causes of action against Capital One: Improper Payment Pursuant to N.Y. UCC 4-401; Lack of Ordinary Care as Required Pursuant to N.Y. UCC 4-406; Breach of Contract; Negligence; Money Had and Received; Conversion. These causes of action arise out of allegations that Bibi Khan ("Khan"), the controller who worked for the Plaintiffs from on or about October 8, 2012 until on or about March 19, 2015, engaged in a scheme to embezzle funds from Plaintiffs' accounts by creating fictitious entities which she controlled, utilizing 1 The term "Exhibit" throughout this memorandum will refer to the Exhibits annexed either to the accompanying Gardella Aff. or to the accompanying affidavit of Rich Jeremiah. 1 6 of 16

7 Plaintiffs' computer systems to prepare checks from Plaintiffs' accounts made payable to her own entities, forging the name of Plaintiffs' principal and/or managing member, Kayvan Hakim ("Hakim") on such checks without Hakim's authorization or knowledge, and then negotiating such checks to her own entities. See Complaint, Exhibit C, at ij Plaintiffs describe Khan's attempt to cover her tracks in Plaintiffs' computer systems and aver that they first learned of her scheme in May See Complaint, Exhibit C, at iii! 10, Plaintiffs allege that Khan engaged in fraudulent conduct for more than one year and that the checks drawn on accounts maintained at Capital One totaled more than $1. 7 million dollars. See Complaint, Exhibit C, at ij 24. By letter dated January 27, 2016 from Plaintiffs' counsel to Capital One ("Plaintiffs' January 27, 2016 Letter"), Plaintiffs identified 133 specific checks, totaling $1, 726,894.11, which it claims were forged (the "Challenged Transactions"). See Exhibit E; Joint Rule 19-a Statement of Material Facts ("Joint Statement of Facts"), at ij 2. The Challenged Transactions consist of checks drawn on four specific accounts: account ending in 4306 that belonged to Ormonde LLC (the "4306 Account"); 2 account ending in 8528 that belonged to Ormonde Equities (the "8528 Account"); account ending in 4216 that belonged to 1641 Park (the 2 Ormonde LLC, which held the 4306 Account, is not a Plaintiff to this action. It is a separate entity from Ormonde Equities, as evidenced by the New York State Department of State website record for each. See Exhibit Y to the Gardella Aff. Even though Plaintiffs lack standing to assert claims pertaining to the account of an entity not a party to this action, the signature cards for Ormonde LLC are included as exhibits and discussed, as are samples of statements and check images for the 4306 Account. In any event, any claim by Ormonde LLC pertaining to its accounts, including the 4306 Account, would be subject to summary dismissal on the grounds set forth in this motion and Capital One would request that any order granting summary judgment reflect as much. For convenience throughout this memorandum, even though Ormonde LLC is not a Plaintiff, any reference to Plaintiffs should be construed to also refer to Ormonde LLC, since the argument is essentially the same that its claims would be time-barred. 2 7 of 16

8 "4216 Account"); and account ending in 4503 that belonged to Carnegie (the "4503 Account") (collectively, the "Relevant Accounts"). 3 As described in the accompanying affidavit of Rich Jeremiah ("Jeremiah Aff."), Plaintiffs opened their accounts at Capital One by executing and submitting to Capital One signature cards for the accounts. See Jeremiah Aff., at iii! 3-7. By opening these accounts and executing the signature cards, each of the Plaintiffs agreed to be bound by Capital One's Rules Governing Deposit Accounts as amended from time to time (the "Rules"). See Jeremiah Aff., at if 8. The Rules require, among other things, account holders to notify Capital One in writing within fourteen ( 14) days from the date the account statement is postmarked or otherwise made available to the customer of any errors, discrepancies or irregularities, including but not limited to, unauthorized signature, alterations, improper charges, m1authorized transfer or withdrawal of funds, nonreceipt of an expected statement. See Jeremiah Aff., at if 16; Exhibit N, at p.3; Exhibit 0, at p.2. Plaintiffs (and Ormonde LLC) agreed to abide by the Rules by virtue of having opened their accounts. See, e.g., Exhibit N, at p.1 ("By opening or continuing to maintain a deposit account with us, each customer... agrees to be bound by the applicable provisions of these Rules..."); see also Exhibits F through M (containing copies of the signature cards to all of Plaintiffs' accounts and those of Ormonde LLC, including the Relevant Accounts). 3 In "Attachment A" to Plaintiffs' January 27, 2016 Letter, Plaintiffs referenced the 4306 Account and the 8528 Account as having belonged to "Onnonde Equities/2030 Embassy." The 8528 Account actually belonged to Ormonde Equities, as the docmnentary evidence shows. The 4306 Account was maintained in the name of Orn10nde LLC. While one of the signature cards for the 4306 Account referenced "2030 Embassy LCC Lockbox Account," the accounts nevertheless had been set up and maintained under the name Ormonde LLC, and the account statements for the 4306 Accom1t were mailed to Ormonde LLC. See Jeremiah Aff., at if 7 and n of 16

9 Capital One mailed to Plaintiffs' address, on a monthly basis, account statements and images of cancelled checks for each of Plaintiffs' accounts, including the Relevant Accounts. See Jeremiah Aff., at~ 12. As demonstrated by the sampling of account statements and check images annexed to the Jeremiah Aff., the address for each is the same, which is also the same as the address Plaintiffs set forth in the complaint and acknowledged in the Joint Statement of Facts. Plaintiffs' accounts, including the Relevant Accounts, were closed by Capital One as of April 14, See Jeremiah Aff., at~ 18. Plaintiffs did not report any of the Challenged Transactions in a timely fashion upon receiving the monthly bank statements and check images, instead explaining that they did not even learn of the alleged fraudulent activity associated with the Challenged Transactions until May 2015, more than one year after the closure of the accounts. See Complaint, Exhibit C, at ~1 O; see also Joint Statement of Facts, at~ 3 (confirming that Plaintiffs did not contact Capital One regarding any of the Challenged Transactions or otherwise report any of the transactions as unauthorized or improper prior to the date of May 2015). Plaintiffs ultimately contacted the bank to report the Challenged Transactions (see Plaintiffs' January 27, 2016 Letter, Exhibit E) and commenced this action. At this juncture, pursuant to the procedure set forth by the Court in its orders (annexed as Exhibit A to the Gardella Aff.), Capital One moves for summary judgment on the limited, threshold ground that Plaintiffs' claims are timebarred under New York's Uniform Commercial Code ("UCC") and the terms of the parties' agreement, which permissibly limits the statutory period. In contemplation of this limited-scope motion, the parties have conducted certain discovery that has also been limited in scope to the issues on this motion. Capital One has reserved its rights, and maintains its reservation ofrights, to conduct further discovery and otherwise press its defenses and challenge Plaintiffs' claims on all grounds beyond this threshold issue. Accordingly, nothing in any of the papers on this motion should be 4 9 of 16

10 construed as a waiver of any right of Capital One in connection with this action. For the reasons set forth below, it is respectfully submitted that summary judgment should be granted in favor of Capital One as a matter of law. ARGUMENT A. Standard of Proof When a movant establishes prima facie proof ofits entitlement to summary judgment, under established case law, the burden shifts to the non-movant to furnish documentary evidence establishing a triable issue of fact. See Alagappan v. Jaffer, 157 A.D.2d 687, 549 N.E.S.2d 786 (2nd Dep't 1990); Gateway State Bank v. Shangri-La Private Club for Women, Inc., 113 A.D.2d 791, 493 N.Y.S.2d 226 (2nd Dep't 1985), affd, 67 N.Y.2d 627, 499 N.Y.S.2d 679 (1986). Conclusory allegations are insufficient to defeat a motion for summary judgment. See Zuckerman v. City ofnew York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue of fact. For the reasons that follow, together with the facts established by, and the exhibits annexed to, the accompanying Jeremiah Aff. and the accompanying Gardella Aff., Plaintiffs' claims are barred by the UCC and the terms of the parties' agreement, and summary judgment should therefore be awarded to Capital One. B. Without Regard To Care or Lack of Care of Any Party, Plaintiffs' Claims Warrant Dismissal as a Matter of Law Under N.Y. U.C.C (4), as Well as Under the Parties' Agreement Under New York State law, a customer who fails to report an unauthorized signature or withdrawal to his bank within a year after his bank statement is made available to him is not entitled to any recovery against the bank for said unauthorized withdrawal, even if the customer exercised 5 10 of 16

11 reasonable care when monitoring his bank statements. N.Y. U.C.C ( 4) (providing that this statutory bar governs"[ w ]ithout regard to care or lack of care of either the customer or the bank); see also,~ Dimovich v. OnBank & Trust Co., 242 A.D.2d 922, 922, 662 N.Y.S.2d 644, 644 (4th Dep't 1997) ("Pursuant to UCC ( 4 ), without regard to care or lack of care, a bank customer who does not within one year from the date when his statements and items, such as withdrawal slips, are made available to him 'discover and report his unauthorized signature... on the face... of the item[s]... is precluded from asserting against the bank such unauthorized signature'"). "UCC 4-406( 4) bars claims to recover amounts paid on an unauthorized signature where the customer fails to give notice of the unauthorized signature within one year of the time the account statement was made available." Royal Arcanum Hosp. Assn. of Kings Counjy, Inc. v Herrnkind, 35 Misc 3d 1205[A], 2012 NY Slip Op 50562(U) (Sup. Ct. Kings County 2012) (holding that the plaintifi's claims fail as a matter of law due to the plaintiffs failure to examine its bank statement and to timely notify Capital One of the alleged unauthorized withdrawals in accordance with the duty imposed upon it by the U CC). "This section codifies the common law duty of a depositor to examine bank drafts and statements furnished by the bank and to report an unauthorized signature within a reasonable time." Id. (citing Woods v. MONY Legacy Life Ins. Co., 84 N.Y.2d 280, 286, 641N.E.2d1070, (1994). The time period within which a customer must report an unauthorized signature or withdrawal may also be shortened by agreement, with such shortened time limits having been held by the Court of Appeals to be enforceable. See Clemente Bros. Contracting Corp. v. Hafner Milazzo, 23 N.Y.3d 277, 289, 14 N.E.3d 367, 374, 991N.Y.S.2d14, 21 (2014). In Clemente Bros., the Court of Appeals expressly held that parties may modify by agreement the one-year period in 6 11 of 16

12 UCC 4-406(4) and, moreover, upheld as reasonable Capital One's shortening of the reporting period to 14 days. Id. In the case leading up to the Court of Appeals' Clemente Bros. case, the Appellate Division stated that when a bank "makes statements of the account and the allegedly forged items available to the customer, and the customer fails to report the alleged forgery to the bank" within the agreed-upon time period (here, fourteen days), the bank generally will not be held liable for the alleged forgery. Clemente Bros. Contracting Corp. v. Hafner-Milazzo, 100 A.D.3d 677, 678, 954 N.Y.S.2d 156, 158 (2d Dep't 2012), affd in part, 23 N.Y.3d 277, 14 N.E.3d 367 (2014) (internal citations omitted) (finding that Capital One established its prima facie entitlement to summary dismissal by demonstrating that the monthly account statements were "made available" to the plaintiffs within the meaning ofucc (4) and that the plaintiffs failed to discover and report each octhe alleged forgeries within the applicable 14-day period). The First Department accords. See Garage Mgm't Corp. v. Chase Manhattan Bank, 22 A.D.3d 432, , 803 N.Y.S.2d 60, 61 (!st Dep't 2005) ("The court properly held that recovery for payment on most of the checks comprising plaintiff's claim is time-barred since any disputed checks bearing the alleged unauthorized signature were returned to plaintiff with monthly account statements" and plaintiff failed to object within the applicable time period) (citing N.Y. U.C.C (4)); see also Wells v. Bank ofn.y. Co., Inc., 181 Misc. 2d 574, 578, 694 N.Y.S.2d 570, 574 (Sup. Ct. N.Y. Cnty. 1999) ("Pursuant to UCC ( 4 ), [plaintiff] is precluded from continuing any action... where it did not report the alleged fraud within [the applicable time period] after... the bank statements with respect thereto were made available to it"). Here, Plaintiffs not only failed to notify Capital One of any of the allegedly unauthorized Challenged Transactions within 14 days of the provision of the account statements, they also failed 7 12 of 16

13 to make such notification within the one-year period established in UCC 4-406(4) for any of the Challenged Transactions. Plaintiffs' claims are thus untimely regardless of which time limitation this Court would choose to apply. Moreover, the mere fact that Plaintiffs couch their claims in different causes of action does not alter their preclusion. Where the UCC bars recovery, a plaintiff cannot resort to common-law claims (such as money had and received, common-law conversion, negligence or unjust enrichment) in order to nullify or avoid the UCC provisions. See Andre Romanelli, Inc. v Citibank, N.A., 2008 N.Y. Misc. LEXIS 8431, 23, 2008 NY Slip Op 31105(U), 16 (Sup. Ct. N.Y. County 2008) (citing Prudential-Bache Secur., Inc. v. Citibank, N.A., 73 N.Y.2d 263, , 536 N.E.2d 1118, 1123, 539 N.Y.S.2d 699, 704 (1989) (finding that claims for money had and received and conversion are properly dismissed in instances where the UCC precludes recovery). Plaintiffs received regular monthly statements throughout the relevant time period of the Challenged Transactions. See Jeremiah Aff., at if 12. Plaintiffs did not identify any of the Challenged Transactions as unauthorized to Capital One within either the contractual (14-day) or statutory (one-year) period. Indeed, the date of the very last of the Challenged Transactions was March 21, 2014, for Check No drawn on the 4216 Account. See Plaintiffs' January 27, 2016 Letter, Exhibit E. This transaction was contained in the account statement for the 4216 Account for the period March 1, 2014 through March 31, 2014, and a copy of the check was provided with the accompanying check images. See Jeremiah Aff., at ir 12 and Exhibit U. Thus, this statement had been made available more than one year prior to Plaintiffs having even identified the Challenged Transactions. See Complaint, Exhibit C, at iii! 10 (admitting that they only discovered the alleged fraudulent scheme in May 2015). Moreover, Plaintiffs concede that they did not report any of the transactions as unauthorized or improper prior to May See Joint Statement of Facts, at if 3. Accordingly, even the most recent of the Challenged Transactions fell beyond the one-year statutory 8 13 of 16

14 look back. What is more, Plaintiffs' accounts had been closed since April 2014, more than one year before their discovery of the Khan's purported scheme in May Consequently, Plaintiffs are precluded, as a matter of law, from bringing claims on any transactions in the accounts since they did not do so within the one-year statutory time period, let alone the 14-day contractual timeframe. It bears noting that Plaintiffs allege that the purported fraudster, their employee Khan, had arranged for the discontinuance of paper statements so that Plaintiffs' principals did not receive them. See Complaint, Exhibit C, at '11' This is factually incorrect as the bank never stopped the delivery of paper statements to any of the accounts. See Jeremiah Aff., at '1112. Also, it is, in any event, immaterial whether Plaintiffs' principals actually received and read them. There is no record nor allegation that Plaintiffs notified Capital One that the account statements were being interfered with in any way. Capital One's delivery of the statements to Plaintiffs' actual address is thus sufficient to constitute notice pursuant to UCC 4-406( 4), and Plaintiffs may not manufacture a "triable issue of fact" with unsubstantiated allegations to the contrary. See,~ Woods v. MONY Legacy Life Ins. Co., 84 N.Y.2d 280,286, 641 N.E.2d 1070, (1994)(holding the plaintiffs claims to be time-barred by U. C. C ( 4) because the plaintiff had "failed to raise a triable issue of fact" as to whether her account statements were sent to fill appropriate address without evidence to the contrary). Here, since all of the allegedly unauthorized transactions occurred beyond one year (and certainly beyond 14 days) prior to the Challenged Transactions having even been discovered, let alone reported, Plaintiffs' claims in the instant suit are time-barred, and summary judgment should therefore be awarded in Capital One's favor. See,~ Catalano v. Marine Midland Bank, 303 A.D.2d 617, 618, 756 N.Y.S.2d 770, (2d Dep't2003)(upholding summary judgment in favor of bm1k where plaintiff failed to timely notify bank of unauthorized transaction); Radon Constr of 16

15 Corp. v. Colwell, 248 A.D.2d 366, 366, 669 N.Y.S.2d 839, 839 (2d Dep't 1998) (same); Peter Marino Ltd. v. Bank ofn.y., 250 A.D.2d 485, 486, 672 N.Y.S.2d 865, 865 (!st Dep't 1998) (same). C. Plaintiffs' Own Failure to Exercise Reasonable Care Precludes Their Claims The UCC provides that: When a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries or holds the statement and items pursuant to a request or instructions ofits customer or otherwise in a reasonable manner makes the statement and items available to the customer, the customer must exercise reasonable care and promptness to examine the statement and items to discover his unauthorized signature or any alteration on an item and must notify the bank promptly after discove1y thereof. See N.Y. U.C.C (1) (emphasis added). The U.C.C. further provides that, if a customer does not comply with these duties, the customer is precluded from making a claim against a bank if an unauthorized payment is made by the bank in good faith, before the bank has received notice of the unauthorized activity. See N.Y. U.C.C (2). Thus, pursuant to U.C.C (1), Plaintiffs should be held responsible for their own losses. Plaintiffs failed to exercise reasonable care and promptness in examining the statements sent to them. Had Plaintiffs talcen prompt action, Capital One could have investigated the allegedly fraudulent transactions, and may have been able to talce steps to prevent further unauthorized activity. By failing to exercise reasonable care in monitoring their account statements, and failing to promptly notify Capital One of the Challenged Transactions, Plaintiffs failed to meet their UCCimposed obligations as a customer, and their claims here are, therefore, barred. Mansi v. Gaines, 216 A.D.2d 536, 538, 628 N.Y.S.2d 804, (2d Dep't 1995) (holding that "liability was barred by UCC 4-406(2)(b) since it was established that the plaintiff failed to exercise reasonable care to examine her bank statements"); Sears Coop. v. Norstar Bank of Upstate N.Y., 203 A.D.2d 904, 904, 612 N.Y.S.2d 722, 722 (4th Dep't 1994) (holding that "the action was time barred pursuant to of 16

16 Uniform Commercial Code 4-406(2)(b) and ( 4 )" where plaintiff failed to notify bank of allegedly unauthorized transactions until after the time period for reporting the first of the transactions had elapsed). CONCLUSION For the foregoing reasons, as well as those set forth in, and the documentary evidence annexed to, the accompanying Jeremiah Aff. and Gardella Aff., Capital One respectfully requests that an order be entered granting Capital One's motion for summary judgment pursuant to C.P.L.R together with such other and further relief as this Court may deem just, proper and equitable. Dated: Melville, New York December 14, 2016 TODD Att~r ey for apital One, National Association 22 Id Co ntry Road M?i'ue, New York (631) of 16