FILED: NEW YORK COUNTY CLERK 11/17/2014 08:59 PM INDEX NO. 156210/2014 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK RCG LV DEBT NON-REIT ASSETS HOLDINGS, LLC, -against- Plaintiff, BENJAMIN RINGEL, TIBOR KLEIN, and GERSHON KLEIN, Index No. 156210/14 AFFIRMATION IN OPPOSITION TO MOTION TO DISMISS Defendants. DANI SCHWARTZ, an attorney admitted to practice before the Courts of the State of New York, hereby affirms the following under the penalties of perjury pursuant to CPLR 2106: 1. I am a member of the law firm of Rosenberg & Estis, P.C., attorneys for plaintiff RCG LV Debt IV Non-REIT Assets Holdings, LLC ("Plaintiff'). As such, I am fully familiar with the facts and circumstances set forth below. 2. This affirmation is respectfully submitted in opposition to the instant motion of defendant Benjamin Ringel (individually and collectively with Defendants Tibor Klein and Gershon Klein, as the context may require, "Guarantor") for an order, pursuant to CPLR 3211(a)(7), dismissing the amended complaint. PRELIMINARY STATEMENT 3. In this guaranty enforcement action, Guarantor moves for dismissal of the entire amended complaint on the grounds that the amended complaint purportedly fails to state a cause of action for money damages, account stated and attachment. 4. As a threshold matter, Guarantor has not submitted an answer and/or affidavit denying any of the allegations contained in the amended complaint, or denying that Guarantor is liable for the money sought in this action. Instead, Guarantor relies solely upon an attorney's R E\66473 \0040\5 6318 8 v2
hyper-technical arguments in an attempt to evade his obligations under the Guaranty (defined below). 5. The amended complaint clearly alleges that Guarantor guaranteed payment obligations under the Mezzanine Note (defined below), consented to the modification of the Mezzanine Note, and the increase in the principal amount due, and expressly reaffirmed the Guaranty of the revised amount. Accordingly, Guarantor is liable to Plaintiff for the money damages sought herein. 6. There is also no real dispute that the amended complaint states a viable cause of action against Guarantor for account stated. The amended complaint alleges that Guarantor received bills, invoices, demands and/or requests for payment from Plaintiff for amounts due and owing to Plaintiff from Guarantor, that Guarantor failed to pay same and did not object, which Guarantor has not denied. 7. Contrary to Guarantor's claim, Plaintiff is under no obligation to plead its cause of action with greater particularity. Nor is there any validity to Guarantor's claim that Plaintiff s cause of action for account stated is deficient because it is based upon the Mezzanine Loan (defined below). Pursuant to the terms of the Guaranty, defaults under the Mezzanine Loan trigger Guarantor's obligations under the Guaranty to repay the debt under the Mezzanine Loan. Thus, the account stated cause of action, whose allegations, Guarantor does not deny, is more than sufficiently pleaded. 8. As to the balance of Guarantor's motion with respect to Plaintiff's third cause of action for attachment, Plaintiff hereby withdraws its third cause of action without prejudice to its right to subsequently seek attachment relief. Therefore, the portion of Guarantor's motion that seeks dismissal of the third cause of action is moot. RE\66473\0040\563188 v2-2-
9. Accordingly, Guarantor's motion should be denied in its entirety. RELEVANT FACTS A. The Parties 10. Plaintiff is the lender under a certain Promissory Note, dated February 3, 2011, between Plaintiff, as lender, and AC I Manahawkin Mezz, LLC ('`Mezzanine Borrower"), as borrower (the"mezzanine Note"). The Mezzanine Note was amended by Amended and Restated Promissory Note, dated May 27, 2011 (the"amended Mezzanine Note"), executed by Guarantor on behalf of Mezzanine Borrower. Copies of the Mezzanine Note and the Amended Mezzanine Note are annexed hereto as Exhibits A and B, respectfully. 11. Guarantor is the guarantor of Mezzanine Borrower's obligations under the Mezzanine Note and Amended Mezzanine Note pursuant to a written Mezzanine Guaranty of Recourse Obligations of Borrower, dated February 3, 2011 (the "Guaranty"), and a "Reaffirmation of Guarantees,'" date June 7, 2012. Copies of the Guaranty and Reaffirmation of Guarantees are annexed hereto as Exhibits C and D, respectfully. B. The Mezzanine Loan 12. The Mezzanine Note, originally in the amount of $370,000.00, is secured through a Pledge and Security Agreement, dated February 3, 2011 (the "Pledge Agreement"), by a first priority interest in all of Mezzanine Borrower's ownership interest in AC I Manahawkin, LLC (the "Mortgage Borrower"), the owner of the commercial real property (the "Property") known as The Commons at Manahawkin Village in Stafford Township, New Jersey (the "Mezzanine Loan"). A copy of the Pledge Agreement is annexed hereto as Exhibit E. 13. The Mezzanine Loan, as amended, is governed by a Mezzanine Loan Agreement, dated February 3, 2011 (the "MLA"), between Plaintiff and Mezzanine Borrower, as amended. A copy of the MLA is annexed hereto as Exhibit F. R E\66473\0040\563188v2-3-
14. Pursuant to a First Amendment to Mezzanine Loan Agreement and other loan documents, dated May 27, 2011 (the "First Amendment"), Plaintiff, Mortgage Borrower and Mezzanine Borrower restructured the Mezzanine Loan in order to reallocate a portion of the principal balance of the mortgage loan on the Property to the Mezzanine Loan. Plaintiff and Guarantor agreed that the principal amount of the Mezzanine Loan was increased from $370,000.00 to $4,941,009.59. A copy of the First Amendment is annexed hereto as Exhibit G. 15. Critically, the First Amendment, including Guarantor's acknowledgment of the guaranteed increase in debt, was "ACKNOWLEDGED AND AGREED TO BY GUARANTOR," and executed by all of the defendants herein: Benjamin Ringel, Tibor Klein and Gershon Klein. 16. The First Amendment to Mezzanine Loan was evidenced by the Amended Mezzanine Note. See Exhibit B. C. Guarantor's Obligations under Guaranty 17. Under the terms of the Guaranty, Guarantor jointly and severally "absolutely and unconditionally," guaranteed to Plaintiff "the prompt and unconditional payment" of certain obligations of Mezzanine Borrower to Plaintiff. See Exhibit C. 18. Pursuant to the Guaranty, Guarantor's obligations under the Mezzanine Note are absolute, without regard to the validity, regularity or enforceability of the Mezzanine Note, the MLA, or the other loan documents. See Exhibit C. 19. The Guaranty further provides that the Guaranty "shall remain and continue in full force and effect as to anv modification, extension or renewal of the Mezzanine Note, the MLA, or the other loan documents." See Exhibit C (emphasis supplied). R E\664 73 \0040\5 6318 8 v2-4-
D. Guarantor Reaffirmed the Guaranty and its Obligation to Guaranty Payment of the Increased Mezzanine Loan Debt Following Mezzanine Borrower's Default in Payments under the Mezzanine Loan 20. Following various payment defaults under the Mezzanine Loan by Mezzanine Borrower, on or about June 7, 2012, Mezzanine Borrower executed a Forbearance Agreement with Plaintiff (the "Forbearance Agreement") based upon a substantial payment tendered by Mezzanine Borrower to Plaintiff. A copy of the Forbearance Agreement is annexed hereto as Exhibit H. 21. Pursuant to the Forbearance Agreement, Mezzanine Borrower acknowledged that it had "failed to snake certain scheduled and required payments" due under the loan documents, as amended, to Plaintiff. See Exhibit H. 22. Pursuant to the Forbearance Agreement, Mezzanine Borrower acknowledged and agreed that as of June 6, 2012, the amount due and owing to Plaintiff under the Mezzanine Note was $5,643,361.90, in addition to certain fees, costs, expenses, and costs of collection, as described in the Forbearance Agreement. 23. The same day, Guarantor executed the Reaffirmation of Guarantees in Plaintiff's favor, wherein Defendant's acknowledge receipt of the Forbearance Agreement. See Exhibit D. See Exhibit D. 24. The Reaffirmation of Guarantees provides that: Guarantor hereby reaffirms each of its respective obligations arising under the Guaranty, and covenants and agrees that its obligations thereunder are in no way impaired or diminished as a result of the execution and delivery by Borrower and Lender [i.e., Plaintiffs of the Forbearance Agreement. 25. The Reaffirmation of Guarantees further provides that: RE\66473\0040\563188v2-5-
Guarantor hereby consents to the agreements set forth in the Forbearance Agreement and expressly acknowledges, confirms, ratifies and reaffirms the terms, provisions, validity and binding nature, both at the time of delivery and on the date hereof, of its obligations under each guaranty and/or indemnity agreement executed by Guarantor in connection with the Loan, agrees that any reference made in such documents, the Loan Agreement, the Note or in any of the other documents evidencing, securing or guaranteeing the Loan and agrees that the obligations arising thereunder shall continue and remain in full force and effect and shall in no way be impaired or diminished as a result of the Forbearance Agreement. See Exhibit D. Exhibit D. 26. Each of the Guarantor defendants signed the Reaffirmation of Guarantees. See 27. By acknowledging and consenting to the representations in the Forbearance Agreement, including the increased debt, Guarantors also agreed that they would guaranty payment of such increased debt amount. E. Breaches of the MLA Triggered Full Recourse Liability from Guarantor to Plaintiff under the Guaranty 28. As alleged in the Amended Complaint, and as Guarantor has not denied, in 2013, Guarantor Ringel and/or an entity solely controlled by Ringel pledged all of his/its membership interests in AC I INV Manahawkin LLC, the sole owner of Mezzanine Borrower, in corulection with certain loans made by non-party Acadia Realty Limited Partnership ("Acadia"), and certain promissory notes made by Guarantor Ringel to Acadia. 29. Similarly, Guarantor Tibor Klein and/or an entity solely controlled by Guarantor Tibor Klein pledged all of his/its membership interests in AC I INV Manahawkin LLC in R E\66473 \0 040\5 6 318 8 v2-6-
connection with certain loans made by Acadia, and certain promissory notes made by Guarantor Tibor Klein to Acadia. 30. Such pledges expressly violated Section 5.2.10 of the MLA and, by the terms of the MLA and the Guaranty, triggered full recourse liability from Guarantor to Plaintiff. 31. On or about June 4, 2014, Mezzanine Borrower filed a voluntary petition pursuant to Chapter 11 of the United States Bankruptcy Code with the Clerk of the United States Bankruptcy Court, Southern District of New York, White Plains Division in a case entitled In re Manahawkin Mezz LLC, Case No. 14-22792. By the teens of the Guaranty, the bankruptcy filing triggered full recourse liability from Guarantor to Plaintiff. 32. In addition, without the prior written consent of Plaintiff, upon information and belief, Mezzanine Borrower transferred a beneficial interest in Mezzanine Borrower, or permitted a sale or pledge of an interest in Mezzanine Borrower. See amended verified complaint, dated September 18, 2014 (the "Amended Complaint"), a copy of which is annexed hereto as Exhibit I, 45. 33. This transfer was a violation of, and default under, inter alia, the MLA, and, by the terms of the MLA and the Guaranty, triggered full recourse liability from Guarantor to Plaintiff. 34. To date, Guarantor has not denied the foregoing allegations. F. Procedural History 35. Plaintiff commenced this action by Verified Complaint, dated June 25, 2014 (the "Complaint"). 36. On August 29, 2014, Guarantor, together with defendants Tibor Klein and Gershon Klein (the"klein Defendants"), filed motions to dismiss the Complaint. RE\66473\0040\563188 v2-7-
37. On September 18, 2014, Plaintiff filed the Amended Complaint. See Exhibit I. 38. Guarantor and the Klein Defendants subsequently withdrew the motions to dismiss the Complaint based upon the allegations in the Amended Complaint, but on October 29, 2014, Guarantor filed the instant motion to dismiss the Amended Complaint. APPLICABLE STANDARD OF REVIEW 39. As stated by the Court of Appeals in J.P. Morgan SecuYities Inc. v Vigilant Insurance Company, 21 NY3d 324, 334 (2013): the rules governing CPLR 3211 motions to dismiss are well established. In assessing the adequacy of a complaint under CPLR 3211(a)(7), the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable inference (internal quotations and citations omitted). 40. A "motion to dismiss will fail if, from the pleading's four corners factual allegations are discerned which taken together manifest anv cause of action cognizable at law (citations and internal quotation marks omitted)." Khan v Newsweek, Inc., 160 AD2d 425, 426 (1st Dept 1990). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss.'' EBC I, Inc. v Goldman, Sachs c~ Co., 5 NY3d 11, 19 (2005). 41. Indeed, "[s]o liberal is the standard that the test is simply whether the proponent of the pleading has a cause of action, not even whether he has stated one." Wiener v Laza~~d Ff~eres c4~ Co., 241 AD2d 114, 120 (1st Dept 1998) (internal quotations and citation omitted). 42. Moreover, in opposing a motion to dismiss, the allegations in the pleading maybe amplified or supplemented by additional submissions, which must also be accepted as true. Nat'l Puef~to Rican Day PaYade, Inc. v Casa Publications, Inc., 79 AD3d 592, 595 (1st Dept 2010. R E\66473\0040\5 6318 8 v2-8-
43. On a motion to dismiss based on documentary evidence, "the documentary evidence must resolve all factual issues and dispose of the plaintiffs claim as a matter of law." Foster v KovneY, 44 AD3d 23, 28 (1st Dept 2007). If such standard is not Inet, the motion must be denied. ARGUMENT THE AMENDED COMPLAINT STATES A CAUSE OF ACTION FOR MONEY DAMAGES AGAINST GUARANTOR PURSUANT TO THE GUARANTY 44. The Amended Complaint, on its face, pleads a claim for money damages against Guarantor for breach of the Guaranty, and pursuant to the terms of the Guaranty, as restated and affirmed by the Reaffirmation of Guarantees. 45. Specifically, the Amended Complaint states: Guarantor jointly and severally "absolutely and unconditionally" guaranteed to Plaintiff ``the prompt and unconditional payment" of certain obligations of Mezzanine Borrower to Plaintiff. See Exhibit I, 23. The Guaranty is continuing and Guarantor's obligations are absolute under any and all circumstances, without regard to the validity, regularity or enforceability of the Mezzanine Note, the MLA, or the other loan documents. See Exhibit I, 24. The Guaranty remains and continues in full force and effect notwithstanding any modification, extension or renewal of the Mezzanine Note or the MLA. See Exhibit I, 27. The Guaranty provides that upon any default of Mezzanine Borrower under the Mezzanine Note or the MLA, Plaintiff may, at its option, proceed directly and at once, without notice, against Guarantor to collect and recover the full amount of the liability or any portion thereof, without proceeding against Mezzanine Borrower or any other person, or foreclosing upon, selling, or otherwise disposing of or collecting or applying against any of the collateral for the loan. See Exhibit I, 28. Pursuant to a First Amendment to Mezzanine Loan Agreement and Other Loan Documents, dated as of May 27, 2011 (the "First Amendment"), Mezzanine Borrower and Guarantor agreed that the indebtedness evidenced R E\66473 \0040\5 6318 8 v2-9-
by the Mezzanine Note, which Mezzanine Borrower promised to repay t0 Plaintiff, was increased to the principal amount of $4,941,009.59. See Exhibit I, 30 (emphasis supplied). On or about June 7, 2012, Guarantors executed the Reaffirmation of Guarantees in Plaintiff's favor. See Exhibit I, 41. The Reaffirmation of Guarantees provides that: Guarantor hereby reaffirms each of its respective obligations arising under the Guaranty, and covenants and agrees that its obligations thereunder are in no way impaired or diminished as a result of the execution and delivery by Mortgage Borrower and Plaintiff of the Forbearance Agreement." See Exhibit I, 43. The Reaffirmation of Guarantees further provides that: Guarantor hereby consents to the agreements set forth in the Forbearance Agreement and expressly acknowledges, confirms, ratifies and reaffirms the terms, provisions, validity and binding nature, both at the time of delivery and on the date hereof, of its obligations under each guaranty and/or indemnity agreement executed by Guarantor in connection with the Loan, agrees that any reference made in such documents, the Loan Agreement, the Note or in any of the other documents evidencing, securing or guaranteeing the Loan and agrees that the obligations arising thereunder shall continue and remain in full force and effect and shall in no way be impaired or diminished as a result of the Forbearance Agreement. See Exhibit I, 44 (emphasis supplied). In 2013, Guarantor Ringel and/or an entity solely controlled by Ringel pledged all of his/its membership interests in AC I INV Manahawkin LLC, the sole owner of Mezzanine Borrower, in connection with certain loans made by non-party Acadia Realty Limited Partnership, and certain promissory notes made by Guarantor to Acadia. Plaintiff also learned that Guarantor Tibor and/or an entity solely controlled by Tibor pledged all of his/its membership interests in AC I INV Manahawkin LLC in connection with certain loans made by Acadia, and certain promissory notes made by Guarantor to Acadia. See Exhibit I, 45. These pledges expressly violated Section 5.2.10 of the MLA and triggered full recourse liability from Guarantor to Plaintiff. See Exhibit I, 46-47. On or about June 4, 2014, Mezzanine Borrower filed a voluntary petition pursuant to Chapter 11 of the United States Bankruptcy Code, which triggered full recourse liability from Guarantor to Plaintiff. See Exhibit I, ~ 48 51. RE\66473\0040\563 18 8v2-10-
The MLA bars Mezzanine Borrower from transferring an interest in Mezzanine Borrower without Plaintiff's prior written consent unless certain inapplicable circumstances pertain, See Exhibit I, 54. Upon information and belief, Mezzanine Borrower transferred an interest in Mezzanine Borrower to GC Realty Advisors, LLC without Plaintiff's prior written consent, which triggered full recourse liability from Guarantor to Plaintiff. See Exhibit I, 55-58. 46. Because the Amended Complaint indisputably alleges that Guarantor is liable pursuant to the Guaranty, the Amended Complaint clearly states a claim for money damages against Guarantors. A. Guarantor Ratified and Consented to the Increase in Principle under the Amended Mezzanine Note 47. Guarantor argues that Plaintiff's first cause of action for money damages should be dismissed because "[t]he Amended Complaint alleges that defendant Guarantor acknowledged receipt of the forbearance agreement but does not speak to any consent or ratification by the defendant Guarantors as to the modification of the subject loan." See Madeline Greenblatt Affirmation, dated October 29, 2014 (the "Greenblatt Affm."), 14. 48. Guarantor is wrong. 49. As an initial matter, Guarantor does not deny that consent was given for the modification and increase in principal to the Mezzanine Note. Rather, Guarantor argues only that Plaintiff did not allege that Guarantor consented to the modification in the Amended Complaint. 50. Guarantor also fails to provide an affidavit from Guarantor attesting to the fact that Guarantor did not consent to the increased principal or modification of the Mezzanine Note. Guarantor therefore has failed to rebut the allegations of the Amended Complaint. RE\66473\0040\563188 v2-11-
51. Moreover, the Amended Complaint plainly alleges that Guarantor consented to the modification of the Mezzanine Note and to the increase in principal thereof. 52. Specifically, the Amended Complaint alleges that, "Guarantor agreed that the indebtedness evidenced by the Mezzanine Note, which Mezzanine Borrower promised to repay to Plaintiff, was increased to the principal amount of $4,941,009.59." See Exhibit I, 30. 53. The Amended Complaint also alleges that "pursuant to the Forbearance Agreement, Mezzanine Borrower acknowledged and agreed that as of June 6, 2012, the amount due and owing to Plaintiff under the Mezzanine Note was $5,643,361.90, in addition to certain fees, costs, expenses, and costs of collection." See Exhibit I, 35 Guarantees: 54. The Amended Complaint further alleges that Guarantor, in the Reaffirmation of See Exhibit I, 44. consents to the agreements set forth in the Forbearance Agreement and expressly acknowledges, confirms, ratifies and reaffirms the terms, provisions, validity and binding nature, both at the time of delivery and on the date hereof, of its obligations under each guaranty and/or indemnity agreement executed by Guarantor in connection with the Loan... (emphasis supplied). 55. Thus, Guarantor expressly consented to the modification of the Mezzanine Note and increase in principal thereunder. 56. Accordingly, the authority relied upon by Guarantor -- Excelsior Capital, LLC v Superior Broadcasting Co., Inc., 82 AD3d 696 (2d Dept 2011); Bier Pension Plan Trust v Estate of Schneirson, 99 NY2d 312 (1989); and MackleY v Burke, 2 AD3d 505 (2d Dept 2003) for the proposition that a guarantor's obligation is discharged where the guarantor does not consent to a modification of the underlying obligation, has no relevance here. RE\66473\0040\563 188v2-12-
57. Thus, there is no basis to dismiss Plaintiffs cause of action for damages. THE AMENDED COMPLAINT STATES A CAUSE OF ACTION FOR ACCOUNT STATED AGAINST GUARANTOR 58. "An account stated is an account, balanced and rendered, with an assent to the balance either express or implied.'" Abbott Duncan c~c WieneY v Ragusa, 214 AD2d 412, 413 (1st Dept 1995). 59. It is well-settled that a party's ``receipt and retention of plaintiffs invoices seeking payment...without objection within a reasonable time, [gives] rise to an actionable account stated." Manhattan Telecommunications Corpof-ation v Best Payphones, Inc., 299 AD2d 178, 178 (1st Dept 2002); Ruskin, Moscou, Evans ~c Faltischek, P. C. v FGH Realty Credit Cojp., 228 AD2d 294, 295 (1st Dept 1996); Miller v Nadler, 60 AD3d 499, 499 (1st Dept 2009). 60. Here, the Amended Complaint alleges: "Guarantor received bills, invoices, demands, and/or requests for payments and amounts due and owing to Plaintiff under the Mezzanine Loan, but failed and refused to pay same." See Exhibit I, 74; and "Guarantor did not object to or protest Plaintiff's demands for payments due to Plaintiff pursuant to the Mezzanine Loan Documents." See Exhibit I, 75. "By reason of the foregoing, an account stated exists with respect to the amounts due and owing from Guarantor to Plaintiff." See Exhibit I, 76. "By reason of the foregoing, Plaintiff is entitled to a money judgment against Guarantor for all sums due and owing to Plaintiff pursuant to the Mezzanine Loan Documents, in an amount to be determined at trial, but in no event less than $7,100,000.00." See Exhibit I, 77. 61. Thus, the Amended Complaint clearly states a cause of action against Guarantor for an account stated. R E\66473 \0040\563 18 8 v2-13-
A. Plaintiff s Second Cause of Action for Account Stated Plainly States a Claim 62. Without providing any supporting legal authority whatsoever, Guarantor argues that Plaintiff's second cause of action for account stated is '`defective" because "plaintiff alleges gross generalities without giving particularity to even one bill or invoice that Guarantor received." Greenblatt Affin., 19-20. 63. Guarantor" s argument is meritless. 64. As a threshold matter, Guarantor has neither denied that bills, invoices, demands and/or requests for payments were received, nor has Guarantor objected to their validity. In fact, noticeably lacking from Guarantor's moving papers is an affidavit from the Guarantor addressing any of the allegations in the Amended Complaint. Guarantor instead relies solely upon an attorney's technical legal argument that Plaintiff has not inet the pleading requirements to state a cause of action. 65. Moreover, Guarantor fails to cite any authority which requires a plaintiff to plead a cause of action based upon account stated with particularity. The reason is simply: there is no such requirement. 66. As explained by the Court of Appeals over a century ago in Critten v Vi~edenburgh, 151 NY 536, 539 (1897): the statement showed an account stated between the parties and a resulting indebtedness. There was enough in either statement to comply with the statute, which requires that it shall be concise, and it is not material that there was not eater particularity or definiteness in regard to the times and amounts of the loans of money, or of the sales of merchandise upon commission. This statement satisfies the object of the statute, because it indicates the facts out of which the indebtedness R E\66473\0040\563188v2-14-
particularity. arose, and the form which it assumed in the account stated between the parties (emphasis supplied). 67. Thus, Plaintiff was under no obligation to plead account stated with more 68. The case of Fendt Finding Company, Inc. v Private B~~ands, Inc., 182 A.D.2d 548, 549 (1st Dept 1992) is also instructive. There, plaintiff moved for summary judgment on account stated. The Court denied summary judgment with respect to the account stated because "Plaintiffs papers on the initial motion failed to assert that the invoices had been sent to said defendant, let alone retained by it without objection." Id. 69. Accordingly, a claim for account stated need only state that invoices were sent and that they were retained without objection. Had the plaintiff in Fendt Findi~zg Company, Inc. done so, according to the Appellate Division, it would have been entitled to summary judgment. 70. Here, the Amended Complaint unquestionably states a claim for account stated. B. Guarantor is Liable for Payments Due Under the Mezzanine Loan pursuant to the Guaranty 71. Guarantor argues that Plaintiff's claim for account states is "defective as it is based solely on liability under the Mezzanine Loan rather than the Guaranty thereof.'' Greenblatt Affin., 20. However, the very terms of the Guaranty, as pleaded in the Amended Complaint, fatally undermines Guarantor's argument. 72. Specifically, the Guaranty provides: upon any default of Borrower under the Note, the Loan Agreement, or the other Loan Documents, Lender mav, at its option, proceed directly and at once, without notice, against Guarantor to collect and recover the full amount of the liability hereunder or any portion thereof, without proceeding against Borrower or any other person, or foreclosing upon, selling, or otherwise disposing of RE\66473\0040\563188 v2-15-
or collecting or applying against any of the Collateral for the Loan (emphasis supplied). See Exhibit I, 28. 73. Thus, pursuant to the terms of the Guaranty, defaults under the Mezzanine Loan trigger Guarantor's obligations under the Guaranty to repay the debt under the Mezzanine Loan. 74. Put differently, Guarantor's obligation under the Guaranty is inextricably intertwined with Mezzanine Borrower's obligation under Mezzanine Loan, and demands for payments resulting from defaults under the Mezzanine Loan due pursuant to the Guaranty are demands for payments under the Guaranty. 75. By Guarantor's logic, a plaintiff could never have an account stated where a guarantor guarantees payments under a separate document. However, the Appellate Division has held that such relief is available where, as here, the elements of the cause of action are set forth. See Fendt Finding Company, Inc., 182 A.D.2d at 549. 76. Guarantor never denied receipt of demands for payments under the Mezzanine Loan. 77. As such, the Amended Complaint states a viable claim for account stated against Guarantor and there is no basis for dismissal of Plaintiff s account stated cause of action. 78. We also note that, to the extent that Guarantor attempts to rely upon and incorporate by reference the arguments set forth in the motion to dismiss of the Klein Defendants, dated October 8, 2014 (the "Klein Motion"), such attempt fails and should be disregarded by the Court since Guarantor failed to attach a copy of the Klein Motion, or set forth the purported arguments made by the Klein Defendants pursuant to which Guarantor seeks dismissal. RE\66473\0040\563188 v2-16-
79. In the event the Court is inclined to consider the instant motion with the Klein Motion, a copy of Plaintiffs opposition to the Klein Motion is annexed hereto as Exhibit J, and incorporated herein. R E\66473 \0040\56318 8 v2-17-
denied in its entirety. Dated: New York, New York November ~ ~, 2014 CONCLUSION For all of the foregoing reasons, Guarantor's motion for dismissal should be RE\66473\0040\563188 v2