SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Application of PREFERRED BANK, successor in interest to UNITED INTERNATIONAL BANK, Index No: 150403/2017 NOTICE OF CROSS-PETITION And the Application of SMS FINANCIAL G, LLC, For a Judgment Pursuant to CPLR 5225(b) and 5227 to Compel Delivery of Property, Motion Sequence No. 3 - against - QUEEN ELIZABETH REALTY CORP., Respondent, LEWIS WU, Judgment Debtor, PLEASE TAKE NOTICE that, upon the Decision of this Court dated March 7, 2017 granting the motion to intervene of the SMS Financial G, LLC ( SMS ), and the annexed Verified Petition dated January 24, 2017, SMS will apply to IAS Part 32 of this Court, at Room 308 of the Courthouse located at 80 Centre Street, New York, New York, on May 16, 2017 at 9:30 a.m., or as soon thereafter as counsel can be heard, for an Order and Judgment: (a) pursuant to CPLR 5225, directing that Queen Elizabeth Realty Corp. ( Queen Elizabeth ) cancel and reissue those shares of stock owned by the Judgment Debtor Lewis Wu ( Debtor ) which are sufficient to satisfy the Judgment held by SMS and further delivering the shares of stock to the New York 1 of 7
County Sheriff so that they may be sold at auction, with the proceeds being paid to SMS, net of the Sheriff s costs and fees; (b) directing Queen Elizabeth to execute and deliver all documents necessary to effectuate the turnover of the ownership interests; (c) pursuant to CPLR 5227 directing Queen Elizabeth to turn over all property or monies held by it belonging to, or due to, Debtor, which are necessary to satisfy SMS Judgment; and (d) granting such other and further relief as the Court deems just and proper. PLEASE TAKE FURTHER NOTICE that demand is hereby made that service of an answer and supporting affidavits, if any, be made at least seven (7) days before the aforesaid date of hearing. The Petitioner designates New York County as the place of trial. The basis of venue is CPLR 5221(a)(1). Dated: New York, New York March 21, 2017 ANDRIOLA LAW, PLLC /s/ James M. Andriola James M. Andriola, Esq. 1385 Broadway, 22 nd Floor New York, New York 10018 (646) 209-9863 james@andriolalaw.com Attorneys for Petitioner SMS Financial G, LLC TO: ALL PARTIES AND COUNSEL OF RECORD (as more fully set forth on the affirmation of service submitted herewith) 2 of 7
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Application of PREFERRED BANK, successor in interest to UNITED INTERNATIONAL BANK, Index No: 150403/2017 VERIFIED PETITION SMS FINANCIAL G, LLC, Intervening For a Judgment Pursuant to CPLR 5225(b) and 5227 to Compel Delivery of Property, - against - QUEEN ELIZABETH REAL TY CORP., Respondent, LEWIS \VU, Judgment Debtor, The Intervening SMS Financial G, LLC, by and through its undersigned attorneys, Andriola Law, PLLC, as and for its Verified Petition, respectfully alleges as follows: I. The Intervening Petitioner SMS Financial G, LLC ("SMS") is an Arizona limited liability company, having an office at 6829 North 12'h Street, Phoenix, Arizona 85014. 2. The Petitioner Preferred Bank, successor in interest to United International Bank ("Preferred Bank") is, according to its own Petition, a California Banking Corporation authorized to do business in the State of New York with its principal place of business located at 41-60 Main Street, Flushing, New York 11355. 3 of 7
3. The Judgment Debtor Lewis Wu (the "Debtor") is an individual who, upon information and belief, resides at 157 Hester Street, New York, New York 10013. 4. The Respondent Queen Elizabeth Realty Corp. ("Queen Elizabeth") is a New York corporation with, upon infonnation and belief, its principal place of business located at 157 Hester Street, New York, New York 10013. 5. Queen Elizabeth is an active, domestic corporation that is domiciled in the State of New York. 6. Queen Elizabeth is a debtor in a bankmptcy proceeding pending in the Southern District of New York. 7. In connection with the Chapter 11 Plan of Reorganization, Queen Elizabeth issued one-third (1/3) of its shares in equity to the Debtor. The Chapter l l Plan of Reorganization of Queen Elizabeth was confinned by the Bankmptcy Court. 8. In an action entitled All Points Capital Co,p. v. Foodmart International II, Co,p., et al. (Supreme Court, Nassau County, index No. 14966/201 1), the court, on February 13, 2013, entered a Judgment in favor of All Points Capital Corp. and against the Debtor (and others) in the amount of$!,500.000, plus interest at the statutory rate of nine (9) percent (the "Judgment"). A copy of the Judgment is annexed hereto at Exhibit I. 9. Pursuant to a General Assignment and Assumption dated December 8, 2015, Capital One Equipment Finance Corp. f/k/a All Points Capital Corp. assigned all of its rights, title and interests in, among other things, the Judf,'!llent to SMS. A copy of General Assignment and Assumption is annexed hereto at Exhibit 2. A copy of a separate Assignment of Judgment, filed in the County Clerk's Office of the Supreme Court of the State ofnew York, County ofnassau is annexed hereto at Exhibit 3. 2 4 of 7
10. As a result of the foregoing, SMS is now the proper holder of the Judgment. 11. No part of the Judgment has been paid, leaving a Judgment due and owing from the Judgment Debtor Lewis Wu (and others) to SMS in the sum of $1,500,000.00, with statutory interest due thereon from February 13, 2013. FIRST CAUSE OF ACTION FOR TURNOVER 12. SMS repeats and re-alleges the allegations contained in paragraphs l through 11 as if fully set forth herein. 13. Pursuant to CPLR 5225(b ), "a person who is in possession or custody of money or other personal property in which the judgment debtor has an interest" may be required "to pay the money... to the judgment creditor...." 14. Pursuant to CPLR 5227, "any person who it is shown is or will become indebted to the j udgment debtor" may be required "to pay the judgment creditor the debt upon maturity..." 15. Pursuant to CPLR 5201(c)(l), the Debtor's ownership interest in Queen Elizabeth is a property interest of the Debtor which is in the possession of Queen Elizabeth and which can be assigned or transferred to SMS or the Sheriff of the County of New York pursuant to CPLR 520 l(b), 520l(c) and 5225(b). 16. Queen Elizabeth is, upon infomiation and belief, indebted to the Debtor and is in custody of money or other personal property in which the Debtor has an interest. 17. Queen Elizabeth will become, upon information and belief, indebted to the Debtor and will, at that time, be in custody of money or other personal property in which the Debtor has an interest. 18. Based on the foregoing, SMS is entitled to the relief requested herein. 19. There has been no prior application for the relief requested herein. 3 5 of 7
WHEREFORE, SMS respectfully requests that an Order and Judgment be entered: (a) pursuant to CPLR 5225, directing that Queen Elizabeth cancel and reissue those shares of stock owned by the Debtor which are sufficient to satisfy the Judgment held by SMS and further delivering the shares of stock to the New York County Sheriff so that they may be sold at auction, with the proceeds being paid to SMS, net of the Sheriff's costs and fees; (b) directing Queen Elizabeth to execute and deliver all documents necessary to effectuate the turnover of the ownership interests; (c) pursuant to CPLR 5227 directing Queen Elizabeth to turn over all property or monies held by it belonging to, or due to, Debtor, which are necessary to satisfy SMS' Judgment; and ( d) granting such other and further relief as the Court deems just and proper. Dated: New York, New York January 24, 2017 ANDRIOLA LAW, PLLC /s/ James M. Andriola James M. Andriola, Esq. 1385 Broadway, 22nd Floor New York, New York 10018 ( 646) 209-9863 james@andriolalaw.com Attorneys for Intervening Petitioner SMS Financial G, LLC 4 6 of 7
VERIFICATION STATE OF A RIZONA ) ss.: COUNTY OF MARJCOP1\ ) Daniel S. Shorr, being duly sworn. states that he is the M,magcr of SMS Management. LLC, the Manager of SMS Financial G. LLC and is duly authoriicd to submit this verification on behalf of SMS Financial G. U.C and that the foregoing petition is true to his 0\\11 knowledge. except as to matters therein stated to be alleged upon information and belief and as to those matters he believes them to be true. Sworn 10 before me this _2~ da)' of January, 2017 -~4:~0A ~ ORLI J<APLAN ~ No1ary Public; Arizona 2. f'!-_~ ; Maucopa County ~/ E,p11as 05128/2020 5 7 of 7