INDEX NO /2010 NYSCEF DOC. NO. 595 RECEIVED NYSCEF: 12/30/2011

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1 INDEX NO /2010 NYSCEF DOC. NO. 595 RECEIVED NYSCEF: 12/30/2011 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x DLJ MORTGAGE CAPITAL, INC., : : Index No Plaintiff, : : Justice Charles E. Ramos -against- : : NOTICE OF APPEAL THOMAS KONTOGIANNIS, et al., : : Defendants. : x PLEASE TAKE NOTICE that defendants Cross Island Plaza, Inc., 161 Hempstead Realty Corp., Yonah Real Estate Inc., and Block Realty Corp. (denominated by plaintiff as part of the New Kontogiannis Entity Defendants ), as well as defendants Georgia Kontogiannis, Lisa DiPinto, Annette Apergis, Chloe Kontogiannis, Adam DiPinto, Elias Apergis, Edgewater Development, Inc., Loring Estates LLC, and Parkview Financial Center, Inc. (denominated by plaintiff as part of the Kontogiannis Defendants ) (collectively Defendants-Appellants ) hereby appeal to the Appellate Division of the Supreme Court of the State of New York, First Department, from each and every part of 1) the Order granting plaintiff s omnibus motion brought by order to show cause seeking, among others, appointment of a receiver for the commercial real properties owned by defendants Cross Island Plaza, Inc. and 161 Hempstead Realty Corp., preliminary injunctive relief, and summary judgment on certain causes of action against defendants Georgia Kontogiannis, Adam DiPinto, Elias Apergis, Edgewater Development, Inc., Loring Estates LLC, and Parkview Financial Center, Inc., issued by the Honorable Charles E. Ramos of the Supreme Court of the State of New York, County of New York, dated and entered on December 1, 2011; 2) the Order of Attachment issued by the Honorable Charles E. Ramos against the New Kontogiannis Entity Defendantas, dated and

2 entered on November 16, 2011, which was granted as part of an order to show cause issued on November 16, 2011 and entered on November 17, 2011, as continued on the return date November 29, 2011; 3) the Temporary Restraining Order granted by the Honorable Charles E. Ramos as part of an order to show cause issued on November 16, 2011, as continued by the Order dated and entered on December 1, 2011, as modified by Order dated and entered on December 6, 2011; and 4) the Judgment entered against defendants Georgia Kontogiannis, Adam DiPinto, Elias Apergis, Edgewater Development, Inc., Loring Estates LLC, and Parkview Financial, Inc. on December 6, 2011, and the Judgment entered against Parkview Financial Center, Inc., d/b/a Parkview Center, Inc., on December 9, Dated: New York, New York December 29, 2011 By: DePetris & Bachrach, LLP /s/ Ronald E. DePetris (RD-8117) 240 Madison Avenue New York, NY Attorneys for Defendants-Appellants TO: John P. Amato, Esq. Hahn & Hessen LLP 488 Madison Avenue New York, NY Attorneys for Plaintiff 2

3 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT x DLJ MORTGAGE CAPITAL, INC., : : Index No Plaintiff, : : Justice Charles E. Ramos -against- : : PRE-ARGUMENT THOMAS KONTOGIANNIS, et al., : STATEMENT : Defendants. : x Pursuant to of the Rules of the Appellate Division, First Department, the following Pre-Argument Statement is respectfully submitted by defendants Cross Island Plaza, Inc., 161 Hempstead Realty Corp., Yonah Real Estate Inc., and Block Realty Corp. (denominated by plaintiff as part of the New Kontogiannis Entity Defendants ), as well as defendants Georgia Kontogiannis, Lisa DiPinto, Annette Apergis, Chloe Kontogiannis, Adam DiPinto, Elias Apergis, Edgewater Development, Inc., Loring Estates LLC, and Parkview Financial Center, Inc. (denominated by plaintiff as part of the Kontogiannis Defendants ) (collectively Defendants-Appellants ): 1. The title of the action and the index number of this case in the Supreme Court, New York County, are as set forth in the above caption. 2. The full name of the original plaintiff in the above-captioned action is DLJ Mortgage Capital, Inc. ( DLJ ). The full names of the six original defendants are Halifax Group LLC, Edgewater Development, Inc., Loring Estates LLC, Washington Title Insurance Company, Inc., Chicago Title Insurance Company, Inc., and United General Title Insurance Company, Inc. The full names of all defendants, including those added in the Amended Complaint, are contained in the caption of the Order granting plaintiff s omnibus motion annexed to the Notice of Appeal.

4 follows: follows: 3. The name, address and telephone number of counsel for Defendants-Appellants is as DePetris & Bachrach, LLP 240 Madison Avenue New York, NY (212) The name, address and telephone number of counsel for Plaintiff-Respondent is as Hahn & Hessen LLP 488 Madison Avenue New York, NY (212) This is an appeal from the following orders and judgment: 1) the Order granting plaintiff s omnibus motion brought by order to show cause seeking, among others, appointment of a receiver for the commercial real properties owned by defendants Cross Island Plaza, Inc. and 161 Hempstead Realty Corp., preliminary injunctive relief, and summary judgment on certain causes of action against defendants Georgia Kontogiannis, Adam DiPinto, Elias Apergis, Edgewater Development, Inc., Loring Estates LLC, and Parkview Financial Center, Inc., issued by the Honorable Charles E. Ramos of the Supreme Court of the State of New York, County of New York, dated and entered on December 1, 2011; 2) the Order of Attachment issued by the Honorable Charles E. Ramos against the New Kontogiannis Entity Defendantas, dated and entered on November 16, 2011, which was granted as part of an order to show cause issued on November 16, 2011, as continued on the return date November 29, 2011; 3) the Temporary Restraining Order granted by the Honorable Charles E. Ramos as part of an order to show cause issued on November 16, 2011, as continued by the Order dated and entered on December 1, 2

5 2011, as modified by Order dated and entered on December 6, 2011; and 4) the Judgment entered against defendants Georgia Kontogiannis, Adam DiPinto, Elias Apergis, Edgewater Development, Inc., Loring Estates LLC, and Parkview Financial, Inc. on December 6, 2011, and the Judgment entered against Parkview Financial Center, Inc., d/b/a Parkview Center, Inc., on December 9, There is no current related action or proceeding involving plaintiff s causes of action alleged herein. There are prior federal proceedings involving plaintiff s claims, which are described in the motion papers underlying this appeal. 6. Plaintiff alleges that the central defendants, Thomas Kontogiannis and a real estate lending company, defendant Coastal Capital Corporation ( Coastal Capital ), engaged in a massive mortgage fraud that caused DLJ to suffer $50 million dollars in damages. The other defendants were alleged to have participated in the central defendants mortgage fraud scheme. The gravamen of the mortgage fraud claim is that (1) Coastal Capital engaged in mortgage loan transactions in connection with real estate sales; (2) Coastal Capital then sold the mortgage loans to DLJ pursuant to written agreements in which Coastal Capital represented that the mortgages were recorded, thereby giving DLJ first priority mortgage liens on the subject properties; and (3) Coastal Capital s representations were fraudulent, in that the mortgages were never recorded. In addition to the conspiracy-based mortgage fraud claim, the Amended Complaint also includes claims for conversion, unjust enrichment, constructive trusts, fraudulent conveyances, and breach of contract. Plaintiff brings these claims seeking $50 million dollars in monetary damages and various equitable relief, while ignoring the fact that a modicum of due diligence on its part (a simple public records search) would have revealed that Coastal Capital never recorded the 3

6 mortgages long before DLJ supposedly suffered massive damages. 7. Result reached in the court below: The Supreme Court granted plaintiff s motion for an order of attachment under Article 62 of the CPLR, for preliminary injunctive relief under Article 63 of the CPLR, and for appointment of a receiver under Article 64 of the CPLR. The Supreme Court also granted plaintiff s motion for summary judgment under CPLR 3212 against certain defendants on certain causes of action, and Judgment was entered against said defendants. 8. Grounds for seeking reversal: The Supreme Court committed reversible error in granting the above-stated provisional relief against Defendants-Appellants, in that it misapplied the law, misconstrued the essential elements of the conspiracy-based fraud cause of action, and disregarded the lack of evidence presented by plaintiff and the showing made by Defendants- Appellants that plaintiff failed to satisfy the stringent statutory requirements for provisional relief, including the requirements of a probability of success on the merits, secreting assets with intent to defraud creditors under CPLR 6201(3), irreparable injury warranting preliminary injunctive relief or the appointment of a receiver, and the posting of a substantial undertaking for attachment and preliminary injunctive relief. The Supreme Court also committed reversible error in granting the above-stated motion for partial summary judgment against certain Defendants- Appellants, in that it misapplied the law and standard for obtaining summary judgment, misconstrued the essential elements of the causes of action, misapplied the doctrine of collateral estoppel, and disregarded the viable defense based on plaintiff s utter lack of due diligence and the superseding cause doctrine with respect to plaintiff s claimed damages. Dated: New York, New York 4

7 December 29, 2011 By: DePetris & Bachrach, LLP /s/ Ronald E. DePetris (RD-8117) 240 Madison Avenue New York, NY Attorneys for Defendants-Appellants 5

8 FILED: NEW YORK COUNTY CLERK 12/01/2011 INDEX NO /2010 NYSCEF DOC. NO. 569 RECEIVED NYSCEF: 12/01/2011

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31 FILED: NEW YORK COUNTY CLERK 11/16/2011 INDEX NO /2010 NYSCEF DOC. NO. 534 RECEIVED NYSCEF: 11/16/2011

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38 FILED: NEW YORK COUNTY CLERK 12/06/2011 INDEX NO /2010 NYSCEF DOC. NO. 577 RECEIVED NYSCEF: 12/06/2011

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40 FILED: NEW YORK COUNTY CLERK 12/06/2011 INDEX NO /2010 NYSCEF DOC. NO. 576 RECEIVED NYSCEF: 12/06/2011

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54 FILED: NEW YORK COUNTY CLERK 12/12/2011 INDEX NO /2010 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 12/12/2011

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