FILED: NEW YORK COUNTY CLERK 03/28/ :08 PM INDEX NO /2016 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/28/2016

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1 FILED NEW YORK COUNTY CLERK 03/28/ PM INDEX NO /2016 NYSCEF DOC. NO. 6 RECEIVED NYSCEF 03/28/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x CAPITAL ONE TAXI MEDALLION FINANCE, Plaintiff, Index No. - against - SAVAS TSITIRIDIS, Defendant x MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT PURSUANT TO CPLR 3213 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP George A. Zimmerman Robert L. Dunn Four Times Square New York, NY george.zimmerman@skadden.com robert.dunn@skadden.com Attorneys for Plaintiff Capital One Taxi Medallion Finance 1 of 7

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii SUMMARY OF MOTION...1 ARGUMENT...2 CONCLUSION...4 i 2 of 7

3 TABLE OF AUTHORITIES CASES Banco Popular North America v. Victory Taxi Management, Inc., 1 N.Y.3d 381 (2004)...2 Bank of America, N.A. v. Solow, 59 A.D.3d 304 (1st Dep't 2009)...3 Bank of America, N.A. v. Tatham, 305 A.D.2d 183 (1st Dep't 2003)...2 Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., "Rabobank International," New York Branch v. Navarro, 25 N.Y.3d 485 (2015)...2, 3 Digestive Disease & Nutrition Center of Westchester, LLP v. Abrams, 112 A.D.3d 778 (2d Dep't 2013)...2 Poah One Acquisition Holdings V Ltd. v. Armenta, 96 A.D.3d 560 (1st Dep't 2012)...3 STATUTES N.Y. C.P.L.R. 301 (McKinney 2010)...3 N.Y. C.P.L.R. 503 (McKinney 2010)...3 N.Y. C.P.L.R. 509 (McKinney 2010)...3 N.Y. C.P.L.R (McKinney 2015)...2, 3 ii 3 of 7

4 Plaintiff Capital One Taxi Medallion Finance ("Capital One") 1 respectfully submits this memorandum in support of its motion for summary judgment in lieu of complaint to enforce Guarantees given by Savas Tsitiridis (the "Guarantor"). SUMMARY OF MOTION This is an action to collect on Guarantees executed by Guarantor in favor of Capital One, under which Guarantor Savas Tsitiridis absolutely and unconditionally guaranteed the payment obligations of 26 affiliated LLCs (the "Borrowers"), which are owned by Evgeny Freidman, under Promissory Notes (the "Notes") given by Borrowers to Capital One. As set forth in greater detail in the supporting Affidavit of John O'Gorman, 2 Borrowers and Capital One executed Promissory Notes pursuant to which Borrowers promised to pay to the order of Capital One the principal of each Note, plus interest thereon from the date of each Notes' execution. (Aff. 9.) Borrowers are in default under the Notes. (Aff. 11, 15.) Under the terms of the "absolute" and "unconditional" Guarantees, Savas Tsitiridis guaranteed to Capital One "the prompt payment and performance of all present and future obligations, liabilities and indebtedness of the [] 'Borrower'." (Exh. 1 at 2.) Guarantor has failed to make complete payment on the Notes. (Aff. 15, 18.) Accordingly, Guarantor is liable to Capital One in the amount of $515,973.44, the total balance due on the Notes, plus interest, costs and fees. 1 2 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. The O'Gorman Affidavit is cited as "Aff." Exhibits to the O'Gorman Affidavit are cited as "Exh." 4 of 7

5 ARGUMENT LENDER IS ENTITLED TO AN IMMEDIATE JUDGMENT CPLR 3213 "'provide[s] a speedy and effective means' for resolving 'presumptively meritorious' claims." Banco Popular N. Am. v. Victory Taxi Mgmt., Inc., 1 N.Y.3d 381, 383 (2004) (alteration in original) (citation omitted). The O'Gorman Affidavit sets forth all of the elements, with supporting documents attached, for a judgment on the Guarantees under CPLR 3213, i.e., the existence of the underlying indebtedness (Aff. 9), the giving of the Guarantees (Aff. 16), the default on the indebtedness (Aff. 11), and nonpayment of the Guarantees (Aff. 15, 18.) Therefore, Capital One has established a prima facie case for summary judgment. 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); Digestive Disease & Nutrition Ctr. of Westchester, LLP v. Abrams, 112 A.D.3d 778, 779 (2d Dep't 2013) (finding that plaintiff had made a prima facie showing of its entitlement to judgment as a matter of law on guarantees by submitting proof of the existence of promissory notes, which contained the guarantees executed by defendant, and a failure to make payment in accordance with the terms of the notes and guarantees); Bank of Am., N.A. v. Tatham, 305 A.D.2d 183, 183 (1st Dep't 2003) (explaining that plaintiff's motion for summary judgment to enforce a guaranty on a loan was properly granted upon proof of the loan documents, guaranty agreement, and failure to pay in accordance therewith). 2 5 of 7

6 This action to enforce the Guarantees is properly brought by a motion for summary judgment in lieu of a complaint pursuant to CPLR As the only proof necessary in this action is the Note documents, the Guarantees and nonpayment, the Guarantees are instruments for the payment of money only. See Digestive Disease & Nutrition Ctr., 112 A.D.3d at 779; Poah One Acquisition Holdings V Ltd. v. Armenta, 96 A.D.3d 560, 560 (1st Dep't 2012) ("Plaintiff 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."); Bank of Am., N.A. v. Solow, 59 A.D.3d 304, (1st Dep't 2009) (recourse to CPLR 3213 deemed appropriate where, among other things, the "guaranty was absolute and unconditional"). The Guarantees here provide that Guarantor's obligations thereunder are "absolute, continuing and unconditional" and that Capital One "does not have to proceed against Borrower or any collateral before seeking recovery" from Guarantor. (Exh. 1 at 2.) See also Cooperatieve Centrale Raiffeisen- Boerenleenbank, 25 N.Y.3d at 493 ("Guaranties that contain language obligating the guarantor to payment without recourse to any defenses or counterclaims, i.e., guaranties that are 'absolute and unconditional,' have been consistently upheld by New York courts.") (citations omitted). As Plaintiff has set forth all of the necessary elements of a claim to enforce the Guarantees pursuant to CPLR 3213, judgment should issue for the full amount due. CONCLUSION For all of the reasons set forth above, judgment should be entered for Capital One for the balance due on the Notes in the amount of $515, against Savas Tsitiridis, with 3 This action is properly brought in this Court. See N.Y. C.P.L.R. 301, 503(a), 509 (McKinney 2010).) The Notes and Guarantees are governed by New York law, without regard to its conflicts of laws rules. (Exh. 1 at 2.) 3 6 of 7

7 interest and fees, plus the costs and expenses, including legal fees of this action, and for such other and further relief as the Court deems just and proper. Dated New York, New York March 28, 2016 Respectfully submitted, SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP By /s/ George A. Zimmerman George A. Zimmerman Robert L. Dunn Four Times Square New York, NY T F george.zimmerman@skadden.com robert.dunn@skadden.com Attorneys for Plaintiff Capital One Taxi Medallion Finance 4 7 of 7