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44CISDNY
APR O 1 2011
REV. 512010
PLAINTIFFS
DEFENDANTS
U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE)
(DO NOT CITE JURISDICTION,\L ST,\TUTES UNLESS DIVERSITY)
Dismissed. No D Yes
0 Yes? 0
NATURE OF SUIT
ACTIONS UNDER STATUTES
TORTI
FORFEITURE/PENALTY
[ 1610 AGRICUlTURE
OTHER FOOO &
[ ) 362 PERSONALINJURY
DRUG
MED MALPRACTICE
[ J 625 DRUG RB.ATED
[ J 365 PERSONALINJURY
SEIZURE OF
PRODUCT LWIIUTY
PROPERTY
21 USC881
[ J 388 ASBESTOS PERSONAL
LIQUOR L,\WS
INJURY PROOUCT
1J
630 LIABILITY
[ J 640
[ J 1!5D RR& TRUCK
PERSOLPROPERTY
( J 660 AIRLINE REGS
OCCUPATlONAL
[ )370 OTHER FRAUD
IJ 690 SAFETY/HEALTH
OTI'iER
[ J 371 TRUTHINLENDING
PERSONALINJtJRY
PeRSOHAI. INJIJRY
CONTRACT
[ 1110 INSURANCE
[ 1120 MARINE
( J 130 Mlll:R ACT
( 1140 NEGOTlABLE
INSTRUMEN
T
I 1150 RECOVERY OF
OVERPAYMENT &
ENFORCEMEPfT Of
JUDGMENT
( J 11 MEDICARE ACT
[ J 152 RECOVERY OF
DEFAULTED
STUOE"1' LOANS
(EXCL VETERANS)
( J 153 RECOVERY OF
OVERPAYMENT OF
VETERAN'S BENEFITS
[ J 160 STOCKHOLDERS
SUITS
M190 OTHER COPfTRACT
( 11&5 CONTAACT PRODUCT
LIABILITY
I1196
FRANCHISE
JIEAL PROPERTY
[ )310 AIRPLANE
AIRPI.ANE
PRODUCT
LIABILITY
( J 320 ASSAULT ,LIBB.&
SlANDER
{ ) 330 FEDERAL
EMPLOYERS'
[ J 315
LIABILITY
[ ]340 MARINE
{ J 345 MARINE PRODUCT
LIABILITY
( J 350 MOTOR VEHICLE
[ J 355 MOTOR VEHICLE
PROOUCT LIABILITY
I J 360
I)620
EJECTMENT
APPEAL
28 use 1ss
{ ] 423 WITHDRAWAL
2e use 1s1
PROPERTY RIGKTS
[ I830
PATENT
[ I!MO TRADEMARK
SOCIAL SECURITY
PROPERTY DAMAGE
PROOlJCTLIABILITY
( I861
HIA (13&5fl)
[ I883
DIWC/OIWW
OTHER PERSONAL
INJURY
l I710
1 1720
[ J730
F"1RLABOR
STANDARDS ACT
LABOR/MGt..lT
RELATIONS
LABOR/MGMT
REPORTING &
DISCLOSURE ACT
(405(g)>
[ 1864 SSID TITLE XVI
RSI(AOS(gl)
( J 865
[ 1790
PRISONER PETITIONS
[ I 1 VOTING
[ 'J
OTHER LABOR
LITIGATION
EMPL RETINC
SECURITY ACT
OTHER STATUTeS
I)400
ST,\TE
REAPPORTIONMENT
( J 410 ANTITRUST
( J 430 BANKS & BANKING
( J 450 COMMERCE
IJ 480 DEPORTATION
I J 470
[ J 820 COPYRIGHTS
BANKRUPTCY
[ J 422
J 870
RACKETEERINFLU
ENCED & CORRUPT
ORGANIZATION ACT
(RICO)
[ J 490
CABLE/$,\TELUTE TV
( 1810 SELECTIVE SERVICE
{ 1850 SECURmES/
COMMODmESI
EXCHAHGE
l I875 CUSTOMER
CHALLENGE
12 USC 3410
[ J 890 OTHER STATIJTORY
ACTIONS
[ J 891 ,\GR!CUlTURAL ACTS
[ J 892 ECONOMIC
STABILIZATION ACT
ant)
[ 1871 IRS-THIRD P,\RTY
26 USC 7609
MATIERS
[ J 894 ENERGY
A.U.OCATION /'CT
[ ) 895 FREEDOM OF
NFORMATK>N ACT
IJ 900 PEAL Of FEE
DETERt.l!Ni\TION
UNDER EQUAL ACCESS
TO.JUSTICE
[ J 950 CONSTITUTIONAUTY
OF STATE STATUTES
ION
F.R.C.P.23
Check
if UNDER
demanded
In complaint:
DEMAND $.
OTHER __
JUDGE
NO
NOTE: Please submit at the lime of filing an explanation of why cases are deemed related.
..
(PLACE AN
D1
Original
Proceeding
[Zj 2a.
ORIGIN
Romoved from
03 Rsmanded from O
Stole Court
Appellate Court
Reinstated or
Ropenad
Transferred from
Multidistnct
Litigation
(Specify District)
2b.Romovad from
Stoll> Court
ANO at reast
one perty is pro
H.
BASIS OF JURISDICTION
Appeal to Di trict
Judgo from
Magi1tr1te Judga
Judgmant
IF DIVERSITY, INDICATE
CITIZENSHIP BELOW.
04
DIVERSITY
(U.S. NOT A PARTY)
1
1
PTF
PTF
DEF
2'
DEF
[]
( J3 !I3
CITIZEN OR SUBJECT OF A
FOREIGN COUNTRY
INCORPORATED
2! PRINCIPAL PLACE
(]5
FOREIGN NATION
[ ls
[ J
J/11::
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l I6
Surrey Equities, LLC and Surrey Property Management, LLC, 40 Fulton Street, 6th Floor, New York, NY 10038; New York
County
Capital One, National Association, 1680 Capital One Drive, Mclean, VA 22102-3491; Fairfax County
DEFENDANT(S) ADDRESS UNKNOWN
REPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, IHAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN THE
RESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:
Check one:
WHITE PLAINS
[Z] MANHATTAN
DATE
[ I NO
A1ist1999
kl
Yr. J
.
Carla R. Walworth (CW5401) Cynthia A. Curtin
PAUL, HASTINGS, JANOFSKY & WALKER LL
75 East 55th Street
.
.
N
e
NOTICE OF REMOVAL
To:
One" or "Defendant"), through their undersigned counsel, hereby removes this civil action
from the Supreme Court of the State of New York, County of the Bronx, where it is now
pending, to the United States District Court for the Southern District of New York pursuant to
28 U.S.C.
1332 and state as follows:
1.
Property Management, LLC ("Plaintiffs") filed a Complaint in the Supreme Court of the State of
New York, County of the Bronx, captioned Surrey Equities LLC and Surrey Property
Management, LLC, Suing on behalf of themselves and their Manager and Guarantors v.
Capital One, N A., as Successor to Northfork Bank. A true and correct copy of the Complaint
and is attached hereto as Exhibit A.
2.
same court. The Amended Complaint also was captioned Surrey Equities LLC and Surrey
Property Management, LLC, Suing on behalf of themselves and their Manager and Guarantors
v. Capital One, N A., as Successor to Northfork Bank. A true and correct copy of the
Amended Complaint and is attached hereto as Exhibit B.
3.
Both the Complaint and the Amended Complaint were assigned to the County Clerk's Index
No. 301848/2011.
4.
Plaintiffs served a copy of the Complaint on Defendant's agent on March 2, 2011. Plaintiffs
served a copy of the Amended Complaint on Defendant's agent on March 16, 2011.
This action is removable under 28 U.S.C. 1332 because (i) complete diversity of
citizenship exists between the parties and (ii) the amount in controversy exceeds
$75,000 exclusive of interest and costs.
6.
On information and belief, plaintiff Surrey Equities, LLC is a New York limited liability
company with its principal place of business at 40 Fulton Street, Floor 6, New York, NY
10038. On information and belief, Surrey Equities, LLC is a citizen of New York and New
Jersey.
-2-
7.
On information and belief, plaintiff Surrey Property Management, LLC is a New York limited
liability company with its principal place of business at 40 Fulton Street, Floor 6, New York,
NY 10038. On information and belief, defendant Surrey Property Management, LLC is a
citizen of New York and New Jersey.
Defendant Capital One, National Association is a national bank with its principal
place of business located.at 1680 Capital One Drive, McLean, Virginia 22102.
Capital One is a successor by merger to North Fork Bank ("North Fork"), which
merged with and into Capital One, N.A., on or about August 1, 2007.
8.
1.7 million dollars." See Complaint at 4-5. In their Amended Complaint, Plaintiffs seek
damages "believed to be in excess of 15 million dollars." See Amended Complaint at 5-6. The
damages sought by Plaintiffs are well in excess of the $75,000 minimum required to confer
jurisdiction on this .Court.
9.
Removal to this Court is proper under 28 U.S.C. 1446(a), as the Southern District of
New York is the district within which the lawsuit was pending prior to removal.
This Notice of Removal is timely under 28 U.S.C. Section 1446(b) because it is being
filed within thirty days of receipt by Defendant of a service copy of the Complaint setting
forth the claims for relief upon which this action is based.
11.
Pursuant to 28 U.S.C. 1446(b), Defendant will promptly give written notice of this filing of
this Notice of Removal to Plaintiff, and will file a copy of this Notice with the clerk of the
Supreme Court of the State of New York, County of the Bronx.
-3-
Respectfully submitted,
-4-
SUMMONS
Swnmons and Complaint
Filed on March l_, 2011
-- --- - ------------.---------------x
defe
ndan
To the above-named
You are hereby summoned to answer the complaint in this action and to serve a copy of
your answer on plaintiffs' attorney within 20 days after service of this summons, exclusive of the
date of service, or within 30 days after completion of service where service is made in any other
manner than by personal service within the state. In case of your failure to appear or answer,
judgment will be taken against you by default for the relief demanded in the complaint.
t:
Pursuant to CPLR 503(a), Plaintiffs designate the County of Bronx as the place of
trial.
----------------------------------------------- - - - -x
SURREY EQUITIES, LLC and
SURREY PROPERTY MANAGEMENT , LLC,
Suing on behalf of themselves and their
Index No.
/2011
Plaintiffs,
COMPLAINT
NORTHFORK BANK,
Defendant.
---------------------------------------------------------------x
Plaintiffs Surrey Equities, LLC and Surrey Property Management, LLC, suing
herein on behalf of themselves and their Guarantors, by and through their attorneys,
Wrobel & Schatz LLP, as and for their Complaint against defendant Capital One, N.A. as
Successor to Northfork Bank, N.A., allege as follows:
Introduction
1. Both plaintiff Surrey Equities, LLC and plaintiff Surrey Property Management, LLC,
(hereinafter, collectively, the "Surrey Plaintiffs") are limited liability companies
organized and existing under the laws of the State of New York.
2.
Upon information and belief, defendant Capital One, N.A. as Successor to Northfork
Bank ("Capital One") is a national banking association with branches in the Bronx,
New York.
Both plaintiff Surrey Equities, LLC and plaintiff Surrey Property Management, LLC, at
all times relevant hereto, were owned by Leon Silvera, Edward Silvera, and Tivoli
Partners, LLC, an entity controlled by Jacob Frydman and managed by Leon Silvera,
Edward Silvera, and Jacob Frydman.
4.
5.
According to the explicit terms of the relevant account agreements, no checks could be
drawn on the checking accounts without the signatures of at least two
signatories, one of whom was required to be Jacob Frydman.
Notwithstanding its blatant violation of the relevant account agreements, Capital One has
recently started demanding from guarantors of the Surrey Plaintiffs, including Jacob
Frydman, payment in respect of certain sums allegedly due.
8.
Specifically, Capital One has demanded : $345,689.93 plus interest from Jacob
Frydman in respect of a line of credit issued by Capital One; $330,264.00 plus interest
from Jacob Frydman in respect of a letter of credit issued by Capital One for the benefit
of White Acre Equities, LLC; and $628,674.00 plus interest from Jacob Frydman, Leon
Silvera, and Ed Silvera in respect of a line of credit issued by Capital one in favor of
Surrey Equities, LLC.
Plaintiffs repeat and reallege each and every allegation set forth herein in paragraphs 1
through 8 above.
10. Capital One breached its contractual obligations to plaintiffs when it allowed the
clearance of checks that did not contain the signature of Jacob Frydman.
11. As a result of the foregoing, Plaintiffs have been damaged in an amount to be
determined at trial, believed to be in excess of $1.7 milJion.
16. Capital One was negligent when it allowed the clearance of checks that did not
contain the signature of Jacob Frydman.
17. As a result of the foregoing, Plaintiffs have been damaged in an amount to be
determined at trial, believed to be in excess of $ J .7 mil1ion.
1 through 8 above.
19. As a result of the foregoing, the guarantors of the Surrey Plaintiffs, including Jacob
Frydman, are entitled to a Declaration that they may set off, against any sums allegedly
due from them, such amounts as Capital One improperly cleared, in an amount to be
proven at trial, believed to be in excess of $1.7 million.
WHEREFORE, Plaintiffs Surrey Equities, LLC and Surrey Management, LLC,
on behalf of themselves and their Managers and Guarantors, demand judgment against
Capital One, N.A. as follows:
a. On the First Cause of Action, a judgment in an amount to be determined at
trial and believed to be i n excess of $1.7 million, together with interest,
reasonable attorney's fees and costs, and such further relief as the Court
may deem just and proper;
b. On the Second Cause of Action, a judgment in an amount to be
determined at trial and believed to be in excess of $ J .7 million,
together
with interest, reasonable attorney's fees and costs, and such further relief as
the Court may deem just and proper;
$1.7 million.
e. The costs and disbursements incurred in this action, together with such
other and further relief as this Court deems just and proper.
Dated: New York, New York
March 1, 2011
5
Case 1:11-cv-02247-DAB Document 31
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF' NEW YORK
.
.
4""'
SURREYEQUITIES, LLC und
SURR.BY PROPERTY MANAOEMBNT, LLC. and
IACOB FRYDMAN,
-against,.
NORTHFORK.BANK.
Defendant.
. ST!PULATION OF DISMISSAL
Plaintiffs Surrey Equities, LLC, Surrey Property Management, LLC, and Jacob Frydman, and Defendent
Capital 0.110, N.A.,hereby stipulate that this matter shall be dismissed with prejudice and wi1hout fees or costs to any party.
Dated: New York, New York
September
2012
r.-t"'
cl Wrobel_(DW-524
Mary Katherine Shcmtn.
wa. .
Attorneyfor PlaJ.ntJ.ffe
PAUL
&w,......,
:
Carle
al.worth (CW-5401)
Cynthfa C. Cortin
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