SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------X Index No. 510166/2015 MARTIN MOSCOVICS, Plaintiffs, -against- AFFIDAVIT OF MARTIN MOSCOVICS IN SUPPORT OF WINSOME ATKINSON a/k/a WINSOME CAMPBELL CROSS-MOTION Individually, And as a Proposed Co-Administrator of ESTATE OF OTHLYN KELLY a/k/a OTHLYN GENNERLIN KELLY, DESMOND RICHARDS As Proposed Co-Administrator of ESTATE OF OTHLYN KELLY a/k/a OTHLYN GENNERLIN KELLY, DELROY HENRY, and ELLERY 168 HOLDING CORP., NASIR 168 ELLERY CORP., Defendants. -----------------------------------------------------------------X STATE OF NEW YORK ) ) SS: COUNTY OF KINGS ) MARTIN MOSCOVICS, being duly sworn deposes and states as follows: 1. I am the Plaintiff in this action and I make this Affidavit based upon my own personal knowledge. I respectfully submit this Affidavit in support of the cross-motion seeking (a) an Order permitting the Plaintiff to amend and file the affidavit of service upon Defendant Ellery 168 Holding Corp. and to deem it timely filed nunc pro tunc; and (b) an Order pursuant to CPLR 3212 granting Plaintiff summary judgment on its claims against Defendants and awarding Plaintiff the relief demanded in its Complaint, i.e., (i) an order of sale according to the terms of the Contract of Sale; and (ii) a judgment setting aside the deeds from Defendant ATKINSON to Defendants ELLERY 168 HOLDING CORP. and NASIR 168 ELLERY CORP. and rendering those deeds null and void; and (c) for such other and further relief as this Court deems 1 of 5
just and proper. 2. By way of background I entered into this transaction nearly four (4) ago with the intention and dream of purchasing and owning a home for myself and my growing family to reside in. To date, this dream of owning my own home has been hampered by the illegal transactions entered into by the Defendants, who are simply real estate investors in search of a good deal in today s hot real estate market. Indeed, upon information and belief, the corporate Defendant is already profiting off of its illicit transaction by collecting rent of the tenants who are residing at the premises. 3. So I entered into the contract of sale with Defendants Winsome Atkinson, Desmond Richards & Delroy Henry on August 27, 2013 for the purchase of the property known as 168 Ellery Street Brooklyn, New York (hereinafter the property ) in which the aforementioned Defendants each agreed to convey their respective ownership interests in the property. 4. Pursuant to the terms of the contract of sale, the Plaintiff tendered a contract deposit check in the sum of Thirty Thousand Dollars ($30,000.00) to be deposited in escrow pending the closing. A copy of the contract of sale and contract deposit check is annexed hereto as Exhibit A. 5. As can be seen by the attached Exhibit copy of the down payment check, the down payment check was made payable to Isaac Scheiner, as attorney, and was issued by me. Mr. Scheiner was my transactional attorney and pursuant to paragraph 26 of the Contract of Sale Mr. Scheiner was to hold the down payment in escrow. 6. Moreover, I paid Defendant Winsome Atkinson additional monies which she demanded during the pendency of the contract in anticipation of the closing. On 2 of 5
occasion, Defendant Atkinson would call me and ask that I give her money before the holidays. Attached hereto is a copy of one such payment a cleared check endorsed by Defendant Atkinson clearly specifying that it was paid toward the purchase price of the premises address. 7. We signed a Memorandum of Contract and duly recorded it with the Kings County City Register under CRFN 2014000041125. A copy of the Memorandum of Contract is annexed hereto as Exhibit B. 8. I complied with all my obligations under the contract of sale. Notwithstanding same, Defendant Winsome Atkinson refused to close and instead proceeded to breach the contract of sale and on July 2, 2015 she conveyed her interest in the property to Defendant Ellery 168 Holding Corp. A copy of the deed from Defendant Winsome Atkinson to Defendant Ellery 168 Holding Corp. is annexed hereto as Exhibit C. 9. Furthermore, not only did Defendant Winsome Atkinson breach the contract of sale she had with me when she conveyed her interest in the property to Defendant Ellery 168 Holding Corp., she also breached the terms of a Surrogate s Court Order dated June 26, 2015 which expressly directed that The co-administrators are hereby restrained from transferring or encumbering any real property owned by the decedent without further order of this Court. A copy of the June 26, 2015 Surrogate s Court Order is annexed hereto as Exhibit D. 10. Thereafter, by deed dated February 7, 2016, the remaining individual Defendants conveyed their respective ownership interests in the property to Defendant Nasir 168 Ellery Corp. A copy of the recorded deed is annexed hereto as Exhibit E. 11. This deed transfer was also in violation of the June 16, 2015 Surrogate s Court Order. 3 of 5
12. My attorney informs me that the aforementioned facts entitle me to summary judgment against the Defendants and for cancellation of the subsequent deeds recorded against the property. 13. Therefore, in light of the above, this Honorable Court should grant the following relief: (a) an Order permitting the Plaintiff to amend and file the affidavit of service upon Defendant Ellery 168 Holding Corp. and to deem it timely filed nunc pro tunc; and (b) an Order pursuant to CPLR 3212 granting Plaintiff summary judgment on its claims against Defendants and awarding Plaintiff the relief demanded in its Complaint, i.e., (i) an order of sale according to the terms of the Contract of Sale; and (ii) a judgment setting aside the deeds from Defendant ATKINSON to Defendants ELLERY 168 HOLDING CORP. and NASIR 168 ELLERY CORP. and rendering those deeds null and void; and (c) for such other and further relief as this Court deems just and proper. BELOW PORTION INTENTIONALLY LEFT BLANK 4 of 5
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