FILED: NEW YORK COUNTY CLERK 05/25/ :44 PM INDEX NO /2016 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 05/25/2016

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1 FILED: NEW YORK COUNTY CLERK 05/25/ :44 PM INDEX NO /2016 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 05/25/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x CAPITAL ONE TAXI MEDALLION FINANCE, : Plaintiff, : - against - : SAVAS TSITIRIDIS, : Defendant. : x Index No /2016 Motion Seq. # J. Oing MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF S MOTION FOR PRE-JUDGMENT ORDER OF ATTACHMENT AND TEMPORARY RESTRAINING ORDER George A. Zimmerman Robert L. Dunn SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York (212) Attorneys for Plaintiff Capital One Taxi Medallion Finance 1 of 20

2 TABLE OF CONTENTS TABLE OF CONTENTS... i INTRODUCTION...1 FACTUAL BACKGROUND...3 A. Capital One Extends Loans to Borrowers Evidenced By Promissory Notes and Guaranteed by Mr. Tsitiridis...3 B. Mr. Tsitiridis Engages in Fraudulent Conveyances Designed to Dissipate His Assets and Move Them Out of Capital One s Reach The Hudson Property Transfer The Vernon Property Transfer...5 ARGUMENT...7 I. CAPITAL ONE S MOTION FOR PRE-JUDGMENT ORDER OF ATTACHMENT SHOULD BE GRANTED...7 A. Applicable Legal Standard...7 B. Capital One Is Entitled to an Order of Attachment Capital One Is Seeking Money Damages Capital One Is Likely to Succeed on the Merits Capital One Has Demonstrated Grounds for Attachment Under CPLR The Amount Demanded Exceeds All Known Counterclaims There Is a Need for An Order of Attachment...13 C. Capital One Is Entitled to A Temporary Restraining Order Enjoining the Alienation of Defendant s Assets Until the Hearing Date...15 CONCLUSION...16 i 2 of 20

3 TABLE OF AUTHORITIES CASES Adelphia Recovery Trust v. Bank of America, N.A., 624 F. Supp. 2d 292 (S.D.N.Y. 2009)...11 Arzu v. Arzu, 190 A.D.2d 87 (1st Dep t 1993)...10, 13 Bernasconi v. Aeon, LLC, 105 A.D.3d 1167 (3d Dep t 2013)...10, 11 Bingham v. Struve, 184 A.D.2d 85 (1st Dep t 1992)...8 Board of Managers of 235 E. 22nd St. Condo. v. Lavy Corp., 233 A.D.2d 158 (1st Dep t 1996)...9 Capital Ventures International v. Republic of Argentina, 443 F.3d 214 (2d Cir. 2006)...14 Citibank. N.A. v. Bombshell Taxi LLC (In re Hypnotic Taxi), 543 B.R. 365 (Bankr. E.D.N.Y. 2016)...12, 14 Considar, Inc. v. Redi Corp. Establishment, 238 A.D.2d 111 (1st Dep t 1997)...8 Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., Rabobank Int l, N.Y. Branch v. Navarro, 25 N.Y.3d 485, 492 (2015)...9 Deutsche Anlagen-Leasing GMBH v. Kuehl, 111 A.D.2d 69 (1st Dep t 1985)...8 Experience Hendrix, LLC v. Chalpin, 461 F. Supp. 2d 165 (S.D.N.Y. 2006)...12 Hotel 71 Mezz Lender LLC v. Falor, 14 N.Y.3d 303 (2010)... passim Jackson Hewitt Inc. v. Adams, 22 Misc. 3d 1126(A) 2009 N.Y. Slip Op (U) at In re Kaiser, 722 F.2d 1574 (2d Cir. 1983)...11 ii 3 of 20

4 Mishcon de Reya New York LLP v. Grail Semiconductor, Inc., No. 11 Civ (RJH), 2011 WL (S.D.N.Y. Dec. 28, 2011)...14 N.Y. Janitorial Serv., Inc. v. Easthampton Dewitt Corp., 100 Misc. 2d 814 (N.Y. Sup. Ct. Onondaga County 1979)...16 Pen Pak Corp. v. LaSalle National Bank of Chicago, 240 A.D.2d 384 (2d Dep t 1997)...10 Poah One Acquisition Holdings V Ltd. v. Armenta, 96 A.D.3d 560, 560 (1st Dep t 2012)...9 Prudential Sec. Credit Corp., LLC. v. Teevee Toons, Inc., No /02, 2003 Slip Op (U) (Sup. Ct. N.Y. County Feb. 7, 2003)...14 Robles Transparent Products Corp. v. Dura-Wear Products Corp., 97 N.Y.S.2d 837 (1st Dep t 1950)...13 Shearson Hayden Stone, Inc. v. Scrivener, 480 F. Supp. 256 (S.D.N.Y. 1979)...13 Terrell v. Terrell, 279 A.D.2d 301 (1st Dep t 2001)...8 Wall St. Associates v. Brodsky, 257 A.D.2d 526 (1st Dep t 1999)...11, 12 RULES N.Y. C.P.L.R (McKinney 2010)...1 N.Y. C.P.L.R (McKinney 2010)... passim N.Y. C.P.L.R (McKinney 2010)...3, 15 N.Y. C.P.L.R. 6212(a) (McKinney 2010)... passim N.Y. C.P.L.R. 6312(c) (McKinney 2010)...9 OTHER AUTHORITIES Jack Weinstein, Harold L. Korn & Arthur R. Miller, New York Civil Practice: CPLR (David L. Ferstendig ed., LexisNexis Matthew Bender 2d ed. 2016)...16 iii 4 of 20

5 Plaintiff Capital One Taxi Medallion Finance ( Capital One ) 1 respectfully submits this memorandum of law in support of its Motion, pursuant to Section 6201 of the New York Civil Practice Law and Rules ( CPLR ), for: (i) a pre-judgment order of attachment of two real properties in New York; and (ii) a temporary restraining order prohibiting all transfers of Defendant Savas Tsitiridis s assets (including the assets he has fraudulently conveyed to nominal third-parties) pending adjudication of the instant Motion. INTRODUCTION Defendant Savas Tsitiridis and his business partner, Evgeny Freidman, own and operate taxi medallions and vehicles in several cities through various entities they own. From 2012 through 2014, Plaintiff Capital One extended loans to 26 LLCs in the taxi business (the Borrowers ) 2 that were owned by Mr. Tsitiridis and/or Mr. Freidman. The loans were evidenced by promissory notes (the Notes ) obligating Borrowers to repay the loans pursuant to certain conditions. Mr. Tsitiridis absolutely and unconditionally guaranteed Borrowers payment obligations to Capital One. Because Borrowers defaulted under the terms of the Notes, Mr. Tsitiridis currently owes Capital One $515, plus accrued interest and late fees under his personal guarantees (the Vehicle Loan Guarantees ). Capital One commenced this action by moving for summary judgment in lieu of complaint under CPLR 3213 to collect the 1 Capital One Taxi Medallion Finance is a trade name of Capital One Equipment Finance Corp., formerly known as All Points Capital Corporation, which is a subsidiary of Capital One Bank. Capital One Bank is a trade name of Capital One, N.A. 2 The Borrowers are collectively: Athens Taxi LLC; Birkin Cab Corp.; Broome Taxi LLC; Flatiron Taxi LLC; Greenvale Taxi LLC; Hunter Green Taxi Inc; Illinois Taxi LLC; Larissa Taxi LLC; Locust Taxi LLC; Malaga Taxi LLC; McCab, IX Corp.; Onz Taxi, LLC; Papa Bear Taxi, LLC; Perry Taxi LLC; Peyton Taxi Inc.; Pine Taxi LLC; Rhodes Taxi LLC; Santorini Five Cab Corp.; Santorini Four Cab Corp.; Santorini Six Cab Corp.; Santorini Two Cab Corp.; Spruce, Taxi, LLC; Tripoli Taxi LLC; University Taxi LLC; Wolf Pack Taxi LLC and Zaharia Taxi LLC. 1 5 of 20

6 $515, plus accrued interest and late fees owed on the absolute and unconditional Vehicle Loan Guarantees executed by Mr. Tsitiridis in favor of Capital One. Mr. Tsitiridis also executed similar guarantees (the Medallion Loan Guarantees ) for loans made to Kolara Trans LLC and Kickstand Trans LLC two of Mr. Tsitiridis s entities that own taxi medallions. Pursuant to those guarantees, Mr. Tsitiridis currently owes Capital One $985,188.14, exclusive of accrued interest and fees. The Medallion Loan Guarantees are not the subject of this action because they contain a Pennsylvania choice-of-venue clause. Capital One intends to commence suit shortly against Mr. Tsitiridis in Pennsylvania on the Medallion Loan Guarantees. Collectively, Mr. Tsitiridis is personally liable to Capital One for over $1.5 million plus accrued interest and late fees. Capital One urgently requires an order of attachment and temporary restraining order, because it has learned that Mr. Tsitiridis has engaged in the systematic dissipation of assets through fraudulent conveyances to his wife, Silke Tsitiridis, and Fidelity Corp Limited as Trustees of The Bridge Funding Trust. These transfers rendered Mr. Tsitiridis insolvent and were made to frustrate Capital One s ability to collect on Mr. Tsitiridis s personal guarantees. 3 This application is made to (i) attach two real properties in New York City that Mr. Tsitiridis fraudulently conveyed and (ii) temporary restrain any transfers of Mr. Tsitiridis s assets pending adjudication of the instant Motion, so that assets in the State may be attached without further dissipation. Absent such relief, Defendant s assets are in very real danger of being hidden or materially lost before this Court can resolve Capital One s Motion for Summary Judgment in Lieu of Complaint. 3 On May 20, 2016, Capital One filed a separate action seeking to set aside Mr. Tsitiridis s fraudulent conveyances under the New York Debtor and Creditor Law. 2 6 of 20

7 Preliminary relief in the form of an attachment is warranted because (1) Capital One has stated a claim for a money judgment, (2) Capital One has a probability of success on the merits on its claim, (3) the grounds listed in CPLR 6201 have been satisfied, (4) the amount demanded from Defendant is greater than the amount of all counterclaims known to Capital One, and (5) there is a need for an attachment. N.Y. C.P.L.R. 6212(a) (McKinney 2010); see also Hotel 71 Mezz Lender LLC v. Falor, 14 N.Y.3d 303, (2010) (affirming trial court s order of pre-judgment attachment of property controlled by guarantor where lender sought to ensure that there would be sufficient money to satisfy a judgment in its favor). Pursuant to CPLR 6210, Capital One is also entitled to a temporary restraining order prohibiting the transfer of assets by Defendant and the companies he controls pending the Court s decision on the Motion for Attachment. N.Y. C.P.L.R (McKinney 2010). FACTUAL BACKGROUND A. Capital One Extends Loans to Borrowers Evidenced By Promissory Notes and Guaranteed by Mr. Tsitiridis From 2012 through 2014, Capital One and Borrowers executed Notes, pursuant to which Borrowers promised to pay to the order of Capital One the principal of the Notes, plus interest thereon from the date of each Note s execution. (O Gorman TRO Aff., 4-6.) Mr. Tsitiridis executed the absolute and unconditional written Vehicle Loan Guarantees in which he guaranteed the prompt payment and performance of all present and future obligations, liabilities and indebtedness of each Borrower to Capital One. (Id. 7.) Mr. Tsitiridis s business partner, Mr. Freidman, executed similar guarantees. By August 8, 2014, Borrowers had defaulted on each of the Notes. (Id. 8.) Although Borrowers have made certain partial payments on the Notes, they currently owe unpaid principal in the amount of $515,973.44, plus accrued interest and fees. (Id. 9.) Accordingly, under the Vehicle Loan Guarantees, Mr. 3 7 of 20

8 Tsitiridis owes Capital One the unpaid principal on the Notes in the amount of $515,973.44, plus accrued interest and late fees. (Id.) Separately, Mr. Tsitiridis executed the absolute, irrevocable and unconditional Medallion Loan Guarantees. On July 23, 2015, the outstanding principal, interest and fees became due on the loans underlying the Medallion Loan Guarantees, and the borrowers have failed to pay. (Id. 10.) Pursuant to the Medallion Loan Guarantees, Mr. Tsitiridis owes Capital One $985,188.14, exclusive of accrued interest, fees and penalties. (Id.) Because the Medallion Loan Guarantees contain Pennsylvania forum selection clauses, they are not subject to this proceeding. B. Mr. Tsitiridis Engages in Fraudulent Conveyances Designed to Dissipate His Assets and Move Them Out of Capital One s Reach Mr. Freidman, a co-guarantor of the debts due under the Notes, was in deep financial distress by Spring (Id. 11.) On April 24, 2015, Capital One filed a judgment by confession against Mr. Freidman. On July 10, 2015 the Supreme Court of the State of New York, County of New York, entered a judgment by confession in favor of Capital One and against Mr. Freidman for the sum of $8,484, Keenly aware of Mr. Freidman s financial woes, Mr. Tsitiridis knew that Capital One would seek to enforce the guarantees executed by Mr. Tsitiridis in Capital One s favor. In June 2015, Mr. Tsitiridis engaged in the conveyances discussed below, the ultimate result of which was to transfer his interest in two real estate properties to The Bridge Funding Trust, in an attempt to put them out of Capital One s reach. Conveniently, Mr. Tsitiridis wife serves as trustee of The Bridge Funding Trust. Moreover, The Bridge Funding Trust s address is th Street, Long Island City, New York a property owned by LIC Realty Holdings, LLC. On information and belief, Mr. Tsitiridis is the sole member of LIC Realty Holdings, LLC. (Id. 18.) 4 8 of 20

9 1. The Hudson Property Transfer On November 30, 2004 Mr. Tsitiridis purchased Unit No. 7A in the building known as 161 Hudson Street, New York County, City and State of New York (the Hudson Property ) from 161 Hudson LLC for $2,138, The deed was recorded on February 3, 2005, in the Office of the City Register of the City of New York, City Register File No The Hudson Property is Mr. and Mrs. Tsitiridis s personal residence. (Id. 20.) On June 30, 2015, a few weeks after Capital One filed for judgment by confession against Mr. Freidman, Mr. Tsitiridis transferred the Hudson Property to 1617A LLC in consideration of Ten Dollars ($10.00) (the Hudson Conveyance ). That LLC was formed on June 22, 2015, and Mr. Tsitiridis and Mrs. Tsitiridis each owned a 50% percent interest in the LLC. (Id. 15.) The deed was recorded on August 18, 2015 in the Office of the City Register of the City of New York, City Register File No On June 22, 2015, the same day they formed the 1617A LLC, Mr. Tsitiridis assigned and transferred his 50% percent interest in 1617A LLC to Mrs. Tsitiridis and Fidelity Corp Limited, as Trustees of The Bridge Funding Trust. (Id. 16.) Mr. Tsitiridis recorded the assignment on October 14, 2015, in the Office of the City Register of the City of New York, City Register File No As a result of these conveyances, the Hudson Property is now wholly owned by 1617A LLC and 1617A LLC is 100% wholly owned by The Bridge Funding Trust, for which Mrs. Tsitiridis and Fidelity Corp Limited serve as trustees. (Id. 19.) Mr. Tsitiridis and Mrs. Tsitiridis continue to live in and use the Hudson Property. (Id. 20.) 2. The Vernon Property Transfer On December 27, 2012, Vernon Boulevard, LLC purchased from Lev Ventures, LLC and PNL Ventures, LLC commercial real estate property located at Vernon Boulevard and Vernon Boulevard located in the Borough and County of Queens, City and 5 9 of 20

10 State of New York (the Vernon Property ) for $1,077, (Id. 21.) The deed was recorded on February 6, 2013, in the Office of the City Register of the City of New York, City Register File No At the time of the purchase, Mr. Tsitiridis and Mr. Freidman each owned a 50% interest in Vernon Boulevard, LLC, which then in turn owned the Vernon Property. (Id. 22.) On June 22, 2015, Mr. Tsitiridis assigned and transferred his 50% percent interest in Vernon Boulevard, LLC to Mrs. Tsitiridis and Fidelity Corp Limited, as Trustees of The Bridge Funding Trust for no consideration. (Id. 24.) Mr. Tsitiridis recorded the assignment on July 17, 2015, in the Office of the City Register of the City of New York, City Register File No After transferring his interests in the Hudson Property and the Vernon Property, Mr. Tsitiridis s remaining assets consisted primarily of his interests in closely held entities holding taxi medallion rights and his interest in closely held taxi cab management companies. Notably, the value of these interests is dubious: because of the rising popularity of ride-sharing apps like Uber, taxi medallion prices have plummeted and, in turn, the value attributable to Mr. Tsitiridis s medallion holding entities likely have little to no residual value. (Id. 26.) Likewise, the value of Mr. Tsitiridis s taxi management companies is equally dubious given the general decline of market conditions in the taxi industry. (Id.) Therefore, Mr. Tsitiridis conveyed the Hudson Property and his interest in the Vernon Property for little or no consideration at a time when: (i) he was insolvent and/or with unreasonably small capital insufficient to pay his existing debts and probable liabilities, or (ii) such conveyances thereby rendered him insolvent and/or with unreasonably small capital insufficient to pay his existing debts and probable liabilities. Moreover, Mr. Tsitiridis made these transfers of his valuable real estate assets to The Bridge Funding Trust where his wife is 6 10 of 20

11 trustee and bearing the address of a property which Mr. Tsitiridis indirectly owns at a time when he knew Capital One would seek to enforce his guarantees. Such transfers were made to hinder, delay or defraud Capital One and to prevent Capital One from collecting an eventual judgment in its favor. As a result of his fraudulent conveyances, Mr. Tsitiridis left himself principally with his taxi holdings, which are woefully incapable of providing the necessary required payment for the amount due under his guarantees. On May 20, 2016, Capital One filed a separate fraudulent conveyance action pursuant to the New York Debtor and Creditor Law seeking, inter alia, to have the Hudson Property Transfer and Vernon Property Transfer set aside to satisfy Capital One s claims on the Vehicle Loan Guarantees and the Medallion Loan Guarantees. ARGUMENT I. CAPITAL ONE S MOTION FOR PRE-JUDGMENT ORDER OF ATTACHMENT SHOULD BE GRANTED A. Applicable Legal Standard Attachments are governed by Article 62 of the CPLR. An order of attachment is a provisional remedy that gives a prejudgment creditor the ability to secure a defendant s property pending the entry of a final judgment. Hotel 71, 14 N.Y.3d at (in guaranty enforcement action by lender, affirming trial court s order of pre-judgment attachment of property controlled by guarantor, where lender sought to ensure that there would be sufficient money to satisfy a judgment in its favor). To obtain an order of attachment, a plaintiff must establish four elements by affidavit or other written evidence: (1) it has stated a claim for a money judgment, (2) it has a probability of success on the merits (3) at least one of the five attachment grounds listed in CPLR 6201 has been satisfied, and (4) the amount demanded from the defendant is greater 7 11 of 20

12 than the amount of all counterclaims known to plaintiff. N.Y. C.P.L.R. 6212(a), 6201 (McKinney 2010). Plaintiff must also demonstrate a need for the attachment. B. Capital One Is Entitled to an Order of Attachment As set forth more fully below, Capital One satisfies each of the elements for an Order of Attachment. 1. Capital One Is Seeking Money Damages Capital One has stated a claim for money damages in this Action. Defendant, as absolute and unconditional guarantor of the loans to Borrowers, owes Capital One $515, plus accrued interest and late fees under his personal Vehicle Loan Guarantees. 2. Capital One Is Likely to Succeed on the Merits In order to demonstrate likelihood of ultimate success of the merits, it is sufficient for Plaintiff to make a prima facie showing of a right to relief, while actual proof of the case should be left to further court proceedings. Terrell v. Terrell, 279 A.D.2d 301, 303 (1st Dep t 2001). For the purposes of provisional relief, the evidence demonstrating a likelihood of success on the merits need not be conclusive. See Bingham v. Struve, 184 A.D.2d 85, 88 (1st Dep t 1992) (the plaintiff need not show a certainty of success (citation omitted)). The plaintiff is given the benefit of all legitimate inferences and deductions that can be made from the facts stated. Considar, Inc. v. Redi Corp. Establishment, 238 A.D.2d 111, 111 (1st Dep t 1997); see also Deutsche Anlagen-Leasing GMBH v. Kuehl, 111 A.D.2d 69, 71 (1st Dep t 1985) (finding allegations of misappropriation of corporate funds by executive officer were more than sufficient to establish a prima facie claim for damages in fraud action instituted by corporations, for purposes of establishing probability of ultimate success on the merits as required for attachment.). Moreover, it is well settled that a plaintiff may show a likelihood of success on the 8 12 of 20

13 merits even where a factual dispute exists. See N.Y. C.P.L.R. 6312(c) (McKinney 2010); Bd. of Managers of 235 E. 22nd St. Condo. v. Lavy Corp., 233 A.D.2d 158, 161 (1st Dep t 1996). Capital One has demonstrated a clear likelihood of success on the merits of its claims. The O Gorman Affidavit and attached documents, submitted in support thereof, set forth all the elements for a judgment on the Vehicle Loan Guarantees under CPLR 3213, i.e. the existence of the underlying indebtedness (O Gorman TRO Aff., 4-6), the giving of the Vehicle Loan Guarantees (id. 7), the default on the indebtedness (id. 8), and nonpayment of the Vehicle Loan Guarantees (id. 9). See Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., Rabobank Int l, N.Y. Branch v. Navarro, 25 N.Y.3d 485, 492 (2015) ( To meet its prima facie burden on its summary judgment motion, [Plaintiff] must prove the existence of the guaranty, the underlying debt and the guarantor s failure to perform under the guaranty. (citation omitted)); Poah One Acquisition Holdings V Ltd. v. Armenta, 96 A.D.3d 560, 560 (1st Dep t 2012) (stating that [p]laintiff appropriately moved based on the absolute and unconditional guaranty and demonstrated its entitlement to summary judgment as against [guarantor] by submitting the guaranty executed by him and an affidavit of nonpayment ). Capital One has demonstrated a clear likelihood to succeed on the merits for purposes of obtaining an order of attachment. 3. Capital One Has Demonstrated Grounds for Attachment Under CPLR 6201 The third required element is also met here because one or more grounds for attachment provided in section 6201 exist. N.Y. C.P.L.R. 6212(a) (McKinney 2010). In particular, CPLR 6201 provides that: An order of attachment may be granted in any action... where the plaintiff has demanded and would be entitled, in whole or in part, or in the alternative, to a money judgment against one or more defendants, when: 9 13 of 20

14 3. the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff s favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts. N.Y. C.P.L.R (McKinney 2010). Capital One readily satisfies CPLR 6201(3), because Defendant has transferred or concealed property with intent to defraud creditor Capital One or to frustrate an ultimate judgment in Capital One s favor. See Arzu v. Arzu, 190 A.D.2d 87, (1st Dep t 1993) (finding ex parte order of attachment against defendants real and personal property proper where it was reasonable to infer that defendants disposed of or secreted creditor s property). New York law is clear that [b]ecause direct proof of actual [fraudulent] intent is rare, creditors may rely on badges of fraud to establish an inference of fraudulent intent. Bernasconi v. Aeon, LLC, 105 A.D.3d 1167, 1167 (3d Dep t 2013) (quoting Shelly v. Doe, 249 A.D.2d 756, 758 (3d Dep t 1998)). Badges of fraud are circumstances that accompany fraudulent transfers so commonly that their presence gives rise to an inference of intent. Pen Pak Corp. v. LaSalle Nat l Bank of Chi., 240 A.D.2d 384, 386 (2d Dep t 1997). Among such circumstances are: (1) a close relationship between the parties to the alleged fraudulent transaction; (2) retention of control of the property by the transferor after the conveyance; (3) inadequacy of the consideration; (4) the transferor s knowledge of the creditor s claim and the inability to pay it; and (5) a questionable transfer not in the usual course of business. See Bernasconi 105 A.D.3d at ; Wall St. Assocs. v. Brodsky, 257 A.D.2d 526, 529 (1st Dep t 1999). Other widely known badges of fraud include the transferor s insolvency and an unusual course of conduct or pattern of transactions occurring after the onset of financial difficulties. See of 20

15 In re Kaiser, 722 F.2d 1574, 1583 (2d Cir. 1983); Adelphia Recovery Trust v. Bank of Am., N.A., 624 F. Supp. 2d 292, 335 (S.D.N.Y. 2009). Mr. Tsitiridis s transfers are replete with badges of fraud. Mr. Tsitiridis transferred the Hudson Property, purchased in 2004 for more than $2 million, to 1617A LLC for a mere $10.00 in consideration. Through a series of conveyances by Mr. and Mrs. Tsitiridis, 1617A LLC is 100% wholly owned by The Bridge Funding Trust, for which Mrs. Tsitiridis and Fidelity Corp Limited serve as trustees. Mr. Tsitiridis continues to live in and use the Hudson Property along with his wife, and he thus retains the full benefit of the property despite having transferred it. (See supra at 5.) Moreover, Mr. Tsitiridis s transfer of the Hudson Property took place in June 2015, around the same time he learned that Mr. Freidman was insolvent and that Capital One would seek to enforce the absolute and unconditional guarantees executed by Mr. Tsitiridis. (See supra at 4-5.) The close relationship between the transferor and transferee, the inadequacy of consideration, Mr. Tsitiridis s knowledge of Capital One s claim and his inability to pay it, Mr. Tsitiridis s retention of the use and benefit of the property, and Mr. Tsitiridis s insolvency as a result of the transfer are classic badges of fraud giving rise to an inference of intent. See, e.g., Bernasconi, 105 A.D.3d at ; Adelphia Recovery Trust, 624 F. Supp. 2d at 335. Moreover, with respect to the Vernon Property, Mr. Tsitiridis assigned and transferred his 50% percent interest in Vernon Boulevard, LLC to Mrs. Tsitiridis and Fidelity Corp Limited, as Trustees of The Bridge Funding Trust, for no consideration. (See supra at 6.) As a result of these conveyances, the Vernon Property is now wholly owned by Vernon Boulevard, LLC and Vernon Boulevard, LLC is 50% owned by The Bridge Funding Trust, for which Mrs. Tsitiridis and Fidelity Corp Limited serve as trustees. Notably, of 20

16 the Vernon Property is 50% owned by the Evelyn Funding Trust, because Mr. Freidman (Mr. Tsitiridis s partner) assigned and transferred his 50% percent interest in the property to Everett Abitbol and Ellen M. Walker, as Trustees of The Evelyn Funding Trust, located in Belize, for no consideration. (O Gorman TRO Aff., 23.) The Honorable Judge Carla E. Craig of the United States Bankruptcy Court for the Eastern District of New York has already held that Mr. Freidman illegally transferred more than $60 million in real estate assets into offshore trusts, including The Evelyn Funding Trust, as a means of evading ex-lender Citibank. See Citibank. N.A. v. Bombshell Taxi LLC (In re Hypnotic Taxi), 543 B.R. 365 (Bankr. E.D.N.Y. 2016). Likewise, Mr. Tsitiridis s transfers constitute fraudulent conveyances that should be set aside. These overwhelming badges of fraud are more than adequate to support a finding of fraudulent intent and a desire to frustrate the enforcement of any eventual judgment. See, e.g., Wall St. Assocs., 257 A.D.2d at 529 (finding badges of fraud where Wise and Friedman caused a company they organized and controlled, Enseco, to issue their respective 25% shares of its stock to their spouses for a consideration of questionable fairness; that Friedman caused his stock to be transferred to his spouse with the express intent to remove those assets from the reach of anticipated judgment creditors; and that these transfers rendered Wise and Friedman judgment proof ); Experience Hendrix, LLC v. Chalpin, 461 F. Supp. 2d 165, 173 (S.D.N.Y. 2006) (attachment warranted where defendant, one of plaintiff s creditors, caused a co-defendant, another of plaintiff s creditors, to fraudulently transfer valuable assets to a defendant-controlled entity, with the purpose and effect of hindering plaintiff s ability to collect an ultimate judgment). Defendant s rampant fraudulent conduct also suggests he will continue to dissipate assets unless he is restrained from doing so. See Arzu, 190 A.D.2d at 92 (order of attachment of 20

17 justified where facts showing fraudulent conduct warranted the inference that defendants are about to do one of the acts specified in CPLR 6201(3) ). These overwhelming badges of fraud more than adequately establish for purposes of this motion that Mr. Tsitiridis s transfers of the Hudson and Vernon Properties were unquestionably made to hinder, delay or defraud Capital One and to prevent Capital One from collecting an eventual judgment in its favor. This justifies an order of attachment under CPLR 6201(3). See Arzu, 190 A.D.2d at The Amount Demanded Exceeds All Known Counterclaims In this Action, Capital One seeks the balance due on the Loan, $515,973.44, with interest, plus the costs and expenses, including legal fees. Capital One is not aware of any existing counterclaims by Mr. Tsitiridis, but in any event intends to vigorously dispute any counterclaims he may raise. Thus, even if Mr. Tsitiridis were to raise a counterclaim, the Court need only consider those counterclaims which the plaintiff is willing to concede as just. Plaintiff vigorously disputes the validity of defendant s counterclaim, and we therefore find that it has satisfied its burden as to the final requirement of New York s attachment statute. Shearson Hayden Stone, Inc. v. Scrivener, 480 F. Supp. 256, 259 (S.D.N.Y. 1979); Robles Transparent Prods. Corp. v. Dura-Wear Prods. Corp., 97 N.Y.S.2d 837, 838 (1st Dep t 1950) ( The required statement that the sum claimed is due over and above all counterclaims known to him means over and above all counterclaims which plaintiff is willing to concede as just. (citation omitted)). 5. There Is a Need for An Order of Attachment Finally, Capital One is entitled to relief because there is a clear need for the order of attachment. See, e.g., Capital Ventures Int l v. Republic of Argentina, 443 F.3d 214, 223 (2d Cir. 2006). Capital One will be irreparably harmed by the conduct sought to be enjoined. Mr of 20

18 Tsitiridis s clear objective is to shield his assets and frustrate an eventual judgment in Capital One s favor. Absent an injunction to prevent Defendant from further dissipating his assets or the assets of entities under his control, Capital One s rights against Defendant will be insufficient and hollow because it may be impossible to satisfy a future judgment. See In re Hypnotic Taxi, 543 B.R. at 381 (finding the need for attachment has been amply demonstrated by the overwhelming evidence that [Defendant] made transfers to [] Trusts in an effort to strip himself of assets a judgment creditor could readily execute on and noting that the creditor s claims were unsecured); Prudential Sec. Credit Corp., LLC. v. Teevee Toons, Inc., No /02, 2003 Slip Op (U), at *4 (Sup. Ct. N.Y. County Feb. 7, 2003) ( [W]ithout an injunction against dissipation or transfer of the assets, plaintiff s rights therein are at risk of irreparable harm and any future judgment in its favor might be rendered futile. ). Such an Order should attach all of Defendant s property interests, including intangible interests (even in entities formed outside of New York), because Mr. Tsitiridis is present in New York. See Hotel 71, 14 N.Y.3d at ( Just as a debt clings to the debtor when he enters a state other than the state where the debt was incurred, it follows that defendants uncertificated ownership interests, which defendant Mitchell possesses or has custody over, travel with him, and were attachable in New York based on his presence in this state. ); Mishcon de Reya N.Y. LLP v. Grail Semiconductor, Inc., No. 11 Civ (RJH), 2011 WL , at *6 (S.D.N.Y. Dec. 28, 2011) ( Here, like in Hotel 71, the defendant[]... voluntarily submitted to the personal jurisdiction of the court.... Therefore, the Court may properly order the attachment of the property of the defendant, even if the situs of the property is outside New York. (alteration in original) (citing Hotel 71, 14 N.Y.3d at 307, 312)). Capital of 20

19 One is prepared to post an appropriate undertaking. Accordingly, Capital One satisfies all of the required elements for a pre-judgment attachment. C. Capital One Is Entitled to A Temporary Restraining Order Enjoining the Alienation of Defendant s Assets Until the Hearing Date Because Capital One is moving on notice for its prejudgment attachment, pursuant to CPLR 6210, Capital One respectfully requests entry of a temporary restraining order prohibiting Defendant and his successors, assigns, agents and all other persons acting in concert or in participation with him from transferring, disposing of, encumbering or otherwise diminishing or secreting any money, real or personal property until such time as an order of attachment is issued or denied. Where, as here, the plaintiff makes a motion upon notice for attachment, the court may, without notice to the defendant, grant a temporary restraining order prohibiting the transfer of assets so as to preserve the assets of the defendant pending the Court s decision on the motion for attachment. N.Y. C.P.L.R (McKinney 2010); see also Jackson Hewitt Inc. v. Adams, 22 Misc. 3d 1126(A), 2009 N.Y. Slip Op (U), at *8 (Sup. Ct. Nassau County 2009) ( A temporary restraining order against the dissipation or transfer of [respondent s] assets pursuant to CPLR 6210 is appropriate to maintain the status quo pending disclosure by respondents as to [the] assets; maintaining the status quo until specific property can be identified is the very reason for this provision. ). Temporary restraining orders are designed to protect the plaintiff during the period that will elapse from the time the plaintiff moves for an order of attachment to the time the sheriff is able to levy upon each garnishee under the order, after it has been granted. 12 Jack B. Weinstein, Harold L. Korn & Arthur R. Miller, New York Civil Practice: CPLR (David L. Ferstendig ed., LexisNexis Matthew Bender 2d ed. 2016); see also N.Y. Janitorial Serv., Inc. v. Easthampton Dewitt Corp., 100 Misc. 2d 814, 815 (N.Y. Sup. Ct of 20

20 Onondaga County 1979) ( Attachment on notice has long been possible, but was seldom used since it offered plaintiffs no assurance whatever even that of surprise that assets would still be available by the time an order of attachment was granted. This defect has now been remedied by CPLR 6210, which allows a plaintiff to obtain an ex parte temporary restraining order to protect its interests until a hearing can be held and an attachment order granted. (citation omitted)). Defendant s efforts to move and conceal assets by transferring them to insiders and to trusts controlled by insiders for little or no consideration puts Capital One at significant risk of Defendant becoming judgment proof absent the requested attachment and temporary restraining order. Accordingly, Capital One faces immediate and irreparable injury, loss and damages unless Defendant is restrained from transferring assets pending this Court s determination of Capital One s request for an order of attachment. CONCLUSION For the foregoing reasons, Capital One respectfully seeks an order from this Court (1) granting its Motion for a Pre-Judgment Order of Attachment Pursuant to CPLR 6201; (2) granting a Temporary Restraining Order pursuant to CPLR 6210; and (3) granting such other and further relief as the Court may deem just and proper. Dated: May 25, 2016 New York, New York SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP By: /s/ George A. Zimmerman George A. Zimmerman Robert L. Dunn Four Times Square New York, New York (212) Attorneys for Plaintiff Capital One Taxi Medallion Finance of 20