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FILED: MONROE COUNTY CLERK 02/27/2019 04:09 PM INDEX NO.

E2019001885
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/27/2019

MONROE COUNTY CLERK'S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.

Receipt # 2000332

Book Page CIVIL

Return To: No. Pages: 25

BARRY M. KAZAN
335 Madison Ave 's±rent: EFILING INDEX NUMBER
12th Floor

New York, NY 10017


Control #: 201902280065

Index #: E2019001885

Date: 02/28/2019

Access Point Financial, LLC Time: 6:07:00 AM

F.M. Butt Hotels Corp.

Butt, Shaista

Billitier Electric, Inc.

Green, Dianna

Sysco Guest Supply, LLC

State Fee Index Number $165.00

Foreclosure Case Fee $190.00

County Fee Index Number $26.00

State Fee Cultural Education $14.25 Employee: JM


State Fee Records $4.75

Management

Total Fees Paid: $400.00

State of New York

MONROE COUNTY CLERK'S OFFICE

WARNING - THIS SHEET CONSTITUTES THE CLERKS


ENDOR SRMENT, REQUIRED BY SECTION &
317-a(5)
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.

ADAM J BELLO

MONROE COUNTY CLERK

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SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF MONROE

ACCESS POINT FINANCIAL, LLC (f/k/a


ACCESS POINT FINANCIAL, INC.),
Index No.____________

Plaintiff,

-against-

F.M. BUTT HOTELS CORP., SHAISTA SUMMONS


BUTT, BILLITIER ELECTRIC, INC.,
DIANNA GREEN, SYSCO GUEST SUPPLY,
LLC, NEW YORK STATE DEPARTMENT
OF TAXATION AND FINANCE, and “JOHN
DOE NO. 1” through “JOHN DOE NO. 25,”
the last twenty-five names being fictitious
persons or parties unknown to the plaintiff , the
persons or parties intended being the tenants,
occupants, persons or corporations, if any,
having or claiming an interest in or lien upon
the premises, described in the Complaint,

Defendants.

TO THE ABOVE NAMED DEFENDANTS:

You are hereby summoned and required to serve upon the Plaintiff’s attorney an Answer

to the Verified Complaint in this action within twenty (20) days after the service of this

summons, exclusive of the day of service, or within thirty (30) days after service is complete if

this Summons is not personally delivered to you within the State of New York. In case of your

failure to answer, judgment will be taken against you by default for the relief demanded in the

Complaint.

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Pursuant to CPLR § 507, the venue designated is based on the location where the real property is

situated which is the subject matter of the Foreclosure Complaint as alleged in the Verified

Complaint.

Dated: February 27, 2019


New York, New York
THOMPSON HINE LLP

By: /s/Barry M. Kazan


Barry M. Kazan
335 Madison Avenue
New York, New York 10017
Telephone: (212) 908-3921

TO: F.M. Butt Hotels Corp.


52 Longview Road
Southampton, New York 11968

Shaista Butt
52 Longview Road
Southampton, New York 11968

Billitier Electric Inc.,


760 Brooks Avenue
Rochester, New York 14619

Dianna Green
41 Paige Street
Rochester, New York 14619

Sysco Guest Supply, LLC


300 Davidson Avenue
Somerset, New Jersey 08873

New York State Department of Taxation and Finance


Attn: Office of Counsel
Building 9, W.A. Harriman Campus
Albany, New York 12227

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SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF MONROE

ACCESS POINT FINANCIAL, LLC (f/k/a Index No._____________


ACCESS POINT FINANCIAL, INC.),

Plaintiff,

-against-
VERIFIED COMPLAINT FOR
F.M. BUTT HOTELS CORP., SHAISTA MORTGAGE FORECLOSURE
BUTT, BILLITIER ELECTRIC, INC.,
DIANNA GREEN, SYSCO GUEST SUPPLY,
LLC, NEW YORK STATE DEPARTMENT
OF TAXATION AND FINANCE, and “JOHN
DOE NO. 1” through “JOHN DOE NO. 25,”
the last twenty-five names being fictitious
persons or parties unknown to the plaintiff , the
persons or parties intended being the tenants,
occupants, persons or corporations, if any,
having or claiming an interest in or lien upon
the premises, described in the Complaint,

Defendants.

Plaintiff ACCESS POINT FINANCIAL, LLC (f/k/a ACCESS POINT FINANCIAL,

INC.) (“Access Point”), by its attorneys, Thompson Hine LLP, for its Verified Complaint,

alleges as follows:

1. This is an action to foreclose a mortgage and security interest given by defendant

F.M. BUTT HOTELS CORP. (“Borrower”) as mortgagor to secure promissory notes in the

maximum aggregate principal amount of $5,880,000, encumbering real property located at the

street address 911 Brooks Avenue, Rochester, NY 14624 (the “Mortgaged Property”) along with

certain other collateral.

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THE PARTIES

2. Plaintiff Access Point Financial, LLC (f/k/a Access Point Financial, Inc.) is a duly

authorized limited liability company in good standing with and organized under the laws of the

state of Delaware. Access Point’s principal place of business is 1 Ravinia Drive, Atlanta,

Georgia 30346.

3. Defendant F.M. BUTT HOTELS CORP. (“Borrower”) is, upon information and

belief, a corporation organized and existing under the laws of the State of New York, with its

principal place of business located at 52 Longview Road, Southampton, New York 11968.

4. Defendant SHAISTA BUTT (“Mrs. Butt”) is an individual and resident of the

State of New York. Mrs. Butt executed a Guaranty Agreement with Access Point dated May 17,

2017, and therein consented to service of process at 52 Longview Road, Southampton, New

York 11968.

5. Defendant BILLITIER ELECTRIC, INC. (“Billitier”), is, upon information and

belief, a corporation organized under the laws of the State of New York with its principal place

of business located at 760 Brooks Avenue, Rochester, New York 14619. Billitier is named as a

defendant herein because, upon information and belief, it is the owner of a mechanic’s lien on

the Mortgaged Property.

6. Defendant DIANNA GREEN is an individual and, upon information and belief, a

resident of the State of New York residing at 41 Paige Street, Rochester, New York 14619.

Dianna Green is named as a defendant herein because, upon information and belief, she is a

judgment creditor of the Borrower.

7. Defendant SYSCO GUEST SUPPLY, LLC (“Sysco”) is, upon information and

belief, a limited liability company organized under the laws of the State of Delaware and

registered to do business in the State of New York, with its principal place of business located at

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300 Davidson Avenue, Somerset, New Jersey 08873. The records of the New York State

Department of State, Division of Corporations, indicate that Sysco has appointed as its registered

agent Corporation Service Company, 80 State Street, Albany New York 12207. Sysco is joined

as a defendant herein because, upon information and belief, it is a judgment creditor of the

Borrower.

8. Defendant NEW YORK STATE DEPARTMENT OF TAXATION AND

FINANCE (“NYS Department of Taxation”) is an agency of the State of New York located at

Building 9, W.A. Harriman Campus, Albany New York 12227. NYS Department of Taxation is

joined as a defendant herein because, upon information and belief, Borrower has unpaid New

York State Franchise Taxes related to the Mortgaged Property.

9. Defendants “JOHN DOE” #1 THROUGH #25 represent individuals and entities the

names of whom and which are unknown to Access Point who have, claim to have, or may claim to

have some lien or other interest in or on the Mortgaged Property (as defined herein) or some part of

it, or are or were tenants or persons in possession of all or portions of the Mortgaged Property, and

are named and joined as parties defendant for the purpose of foreclosing any such fee or other lien or

interest that such persons or entities have or claim or may claim to have in the Mortgaged Property.

10. Each of the defendants has or may have or claim to have some right, title or interest

in or lien upon the Mortgaged Property, or some part thereof, which has accrued subsequent to the

lien of the Mortgage and/or otherwise is subject or subordinate to the Mortgage.

BACKGROUND

11. In or around May 2017, Access Point agreed to loan Borrower Four Million Two

Hundred Eighty Thousand Dollars ($4,280,000.00) (the “Mortgage Loan”) to be used to

purchase a hotel located in Rochester, New York (the “Hotel”).

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12. In conjunction with the Mortgage Loan, Access Point, Borrower, and Mrs. Butt

executed a series of loan documents.

13. Specifically, on or about May 17, 2017, Borrower executed and delivered to

Access Point that certain Promissory Note in the original principal amount of $4,280,000.00 (the

“Mortgage Note”). A true and correct copy of the Mortgage Note is attached hereto as Exhibit 1.

14. On or about May 17, 2017, as security for the Mortgage Note, Borrower executed

and delivered to Access Point at its Georgia address that certain Mortgage and Security

Agreement and Fixture Filing (the “Mortgage”), granting Access Point, among other things, a

first priority interest in certain real and personal property on the land as legally described in

Exhibit A to the Mortgage, located at 911 Brooks Avenue, Rochester, NY 14624 (i.e., the

Mortgaged Property). The Mortgage was electronically recorded in the public records of the

Monroe County Clerk’s Office in Rochester, Monroe County, New York on May 25, 2017 in

book 27153, pages 69-109, Control # 201705250208. A true and correct copy of the Mortgage

as recorded is attached hereto as Exhibit 2.

15. On or about May 17, 2017, in connection with the Mortgage Loan, Borrower

executed and delivered to Access Point at its Georgia address that certain Assignment of Rents

and Leases (the “Assignment”), absolutely and unconditionally assigning to Access Point all

current and future leases and other agreements, as well as any extensions or renewals of the

same, together with all current and future rents, income, fees, profits and other receivables (from

such leases or otherwise arising from and affecting the Mortgaged Property (“Rents”). Further,

under the Assignment, Access Point granted a revocable license to Borrower to collect and retain

the Rents so long as no Event of Default occurred and, upon the occurrence of an Event of

Default, the license would immediately and automatically be revoked without further notice to

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Borrower. The Assignment was electronically recorded in the public records of the Monroe

County Clerk’s Office in Rochester, Monroe County, New York on May 25, 2017 in book

11864, pages 224-236, Control # 201705250209. A true and correct copy of the Assignment as

recorded is attached hereto as Exhibit 3.

16. The Mortgage and Assignment encumber real property situated in the City of

Rochester, Monroe County, New York, bearing the address 911 Brooks Avenue, Rochester, NY

14624, encompassing Tax Map and Parcel ID Section 135.10 Block 1 Lot 1 and Section 135.10

Block 1 Lot 5, legally described as follows:

All that certain lot, piece or parcel of land, with buildings and improvements
thereon erected, situate, lying and being in the town of Gates, County of Monroe
and State of New York and being described as follows:

Parcel 1:

All that certain plot, piece or parcel of land, situate, lying and being in the town of
Gates, County of Monroe and State of New York and being bounded and
described as follows:

Commencing at a point being the intersection of the Easterly highway boundary


line of the Rochester Outer Loop and the Southerly highway boundary line of
Brooks Avenue per State of New York map filed in Monroe County Clerk's office
in liber 1102 of maps, page 55, said point also being 368.98 feet easterly
measured at right angles from survey base line for the construction of the
Rochester Outer Loop Station 545+89.99;

Thence (1) North 88 degrees 36 minutes 41 seconds east and along the Southerly
highway boundary line of Brooks Avenue as established by New York State and
filed in Monroe County Clerk's office in liber 1102 of maps, page 55 a distance of
65.96 feet to a point;

Thence (2) South 31 degrees 34 minutes 49 seconds East and along the Westerly
property line of the New York State Barge Canal A distance of 33.14 feet to a
point;

Thence (3) South 31 degrees 34 minutes 54 seconds East and continuing along the
Westerly property line of the New York State Barge Canal, a distance of 636.67
feet to a point;

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Thence (4) South 43 degrees 38 minutes 51 seconds East and continuing along the
Westerly property line of the New York State Barge Canal, a distance of 452.00
feet to a point;

Thence (5) South 46 degrees 21 minutes 09 seconds West a distance of 210.00


feet to a point;

Thence (6) South 81 degrees 16 minutes 09 seconds West a distance of 258.78


feet to a point, on the Easterly boundary line of Rochester Outer Loop.

Thence (7) North 37 degrees 19 minutes 45 seconds West along the Easterly
boundary line of the Rochester Outer Loop a distance of 353.00 feet to a point;

Thence (8) North 21 degrees 20 minutes 19 seconds West along the Easterly
boundary line of the Rochester Outer Loop a distance of 261.83 feet to a point;

Thence (9) North 01 degrees 11 minutes 59 seconds West along the Easterly
boundary line of the Rochester Outer Loop a distance of 555.86 feet to the point
of beginning.

Together with a permanent easement over the existing right-of-way, adjoining the
second and third courses of the premises set forth above as "Parcel 1" and shown
on the survey above referred to as an "existing right-of-way" and running from
Brooks Avenue along its Southerly side a distance of 174.41 feet along said
second and third courses, to be used by party of the second part, its successors and
assigns, employees, agents, customers and business and other invitees, solely for
the purposes of ingress and egress from Brooks Avenue to the premises set forth
above as "Parcel 1".

Parcel 2:

All that certain plot, piece or parcel of land, situate, lying and being in the town of
Gates, County of Monroe and State of New York and being bounded and
described as follows:

Commencing at a point being the intersection of the Easterly highway boundary


line of the Rochester Outer Loop and the Southerly highway boundary line of
Brooks Avenue per State of New York map filed in Monroe County Clerk's office
in Liber 1102 of maps, page 55, said point being 368.98 feet easterly measured at
right angles from survey base line for the construction of the Rochester Outer
Loop Station 545+89.99;

Thence (1) North 88036'41" East and along the Southerly highway boundary line
of Brooks Avenue as established by New York State and filed in Monroe County
Clerk's office in Liber 1102 of Maps, page 55, a distance of 65.96 feet to a point;

Thence (2) South 31°34'49" East and along the Westerly property line of the New
York Barge Canal, a distance of 33.14 feet to a point;

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Thence (3) South 31°34'54' East and containing along the Westerly property line
of the New York State Barge canal a distance of 636.37 feet to a point;

Thence (4) South 43°38'51" East along the Westerly property line of the New
York State Barge Canal a distance of 452.00 feet to the point of beginning of the
parcel to be conveyed, bounded and described as follows:

Thence (A) continuing South 43°38'51" East along the Westerly property line of
the New York State Barge Canal a distance of 114.66 feet to a point;

Thence (B) South 02°22'36" West across lands now or formerly of Mobil Oil
Corporation a distance of 7.94 feet to a point.

Thence (C) Southwesterly on a curve to the left, which curve is subtended by a


chord bearing south 25°45'38" West and having a length of 426.24 feet, said
curve having a radius of 410.00 feet and a central angle of 62°38'20", an arc
distance of 448.23 feet to a point on the easterly boundary line of Rochester Outer
Loop;

Thence (D) North 53°27'34" West along the Easterly highway boundary line of
the Rochester Outer Loop a distance of 228.18 feet to a point;

Thence (E) North 37°19'45" West and continuing along the Easterly highway
boundary line of the Rochester Outer Loop a distance of 194.55 feet to a point;

Thence (F) North 81°16'09" East a distance of 258.78 feet to a point;

Thence (G) North 46°21 '09 East a distance 210.00 feet to the point or place of
beginning.

Together with right-of-way and including all right, title and interest of the party of
the first part in and to a 25-foot right-of-way for ingress and egress along the
Westerly boundary line of other lands of the party of the first part joining and
immediately to the north of the premises set forth above as "Parcel II".

Being the same premises conveyed to Rochester Airport Holdings, LLC by the
Bargain and Sale Deed made by PWR16-HI Rochester LLC, a Delaware limited
liability company, dated May 1, 2013 recorded September 19, 2013 in Book
11305, page 137 in the Office of the Monroe County Clerk.

See Exhibit 2 (at Exh. A).

17. On or about May 17, 2017, as further security for the Mortgage Note, Mrs. Butt

executed and delivered to Access Point at its Georgia address that certain Guaranty Agreement

(the “Mortgage Guaranty”), under which Mrs. Butt irrevocably, absolutely, and unconditionally

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guaranteed to Access Point the prompt payment when due, whether at stated maturity, by

acceleration or otherwise, all payments owed by Borrower pursuant to the Mortgage Note in the

amount of $4,280,000.00. A true and correct copy of the Mortgage Guaranty is attached hereto

as Exhibit 4.

18. On or about May 17, 2017, Borrower executed and delivered to Access Point at

its Georgia address that certain Equipment Loan and Security Agreement (the “Equipment

LSA”) evidencing a loan from Access Point to Borrower in the principal amount of

$1,600,000.00 (the “Equipment Loan”). As part of the Equipment LSA, Borrower granted to

Access Point a security interest in certain collateral designated as “all furnishings, fixtures, and

equipment together with all attachments, accessories, accessions, parts, replacements

substitutions, additions, and improvements thereto, and all service contracts, warranty claims and

other general intangibles relating thereto, and all insurance proceeds and condemnation awards

received or receivable with respect thereto, and all cash and non-cash proceeds of the foregoing,”

and as further listed in Exhibit B to the Equipment LSA (the “Collateral”). A true and correct

copy of the Equipment LSA is attached hereto as Exhibit 5.

19. On or about May 17, 2017, Borrower also executed and delivered to Access Point

at its Georgia address that certain Promissory Note in the original principal amount of

$1,600,000.00 under which Borrower promised to pay to Access Point the funds being loaned to

Borrower under the Equipment LSA (the “Equipment Note,” together with the Equipment LSA,

the “Equipment Loan Documents”). A true and correct copy of the Equipment Note is attached

hereto as Exhibit 6.

20. Under the Equipment Loan Documents Borrower agreed to pay the principal sum

of $1,600,000.00 plus interest thereon which accrued at the rate of six and one-half percent

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(6.5%). In the event Borrower failed to make a required payment when due (a default), Access

Point would be entitled to collect a late charge equal to five percent (5%) of the overdue amount

and interest would accrue on the outstanding principal at a rate of eighteen percent (18%) per

annum until the default was cured. Further, if Borrower failed to make a required payment when

due, Access Point was entitled to accelerate the maturity date and demand prompt repayment of

the entire outstanding principal balance plus any interest accrued thereon and other sums due.

See Exhibit 5 §§ 12-13; Exhibit 6 §§ 4-5.

21. In the Mortgage Note, Borrower agreed to pay the principal sum of $4,280,000.00

plus interest thereon at a rate of seven and one-half percent (7.5%) per annum (the “Note Rate”)

at the rates and at the times as specified in Article I of the Mortgage Note. Borrower further

agreed that the outstanding balance of the principal sum of the Mortgage Note and all accrued

and unpaid interest thereon would be due and payable on the Maturity Date. See Exhibit 1.

22. The Mortgage Note provides that “[i]nterest only shall be payable monthly, in

arrears, during the term of the Loan commencing on the first (1st) day of July, 2017, and

continuing on the first (1st) day of each month thereafter until November 1, 2018 (the

“Amortization Commencement Date”).” Beginning on the Amortization Commencement Date

and “continuing on the first (1st) day of each month thereafter during the term of the Loan,

monthly payments of principal and interest shall be payable.” Exhibit 1.

23. The Mortgage Note provides that in the event the entire principal balance is

prepaid after the Amortization Commencement Date, Borrower is obligated to pay to Access

Point an additional sum equal to one percent (1%) of the original principal balance (the

“Prepayment Consideration”). See Exhibit 1.

24. The Maturity Date is May 1, 2020.

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25. The Mortgage Note, in Article II, provides that Borrower’s failure to make any

required payment of interest or principal when due constitutes an Event of Default. See Exhibit

1. The Mortgage contains an analogous provision. See Exhibit 2 (at Article 7).

26. In the case of any Event of Default, the Note Rate “shall be increased to five

percent (5%) per annum above the original Note Rate (“Default Rate”)” (i.e., 12.5%) and shall

accrue from the date of the Event of Default until the date upon which the Event of Default is

cured. Further, “[i]t is a condition precedent to the cure of any Event of Default” that Borrower

shall pay all principal and accrued interest as required under the Mortgage Note that would have

been paid but for the Event of Default up to the current payment date, plus any additional amount

due owing to application of the Default Rate to the period of the Event of Default. See Exhibit 1.

27. Further, in the case of Borrower’s failure to make a required payment of principal

or accrued interest when due, Access Point may demand payment of a late charge in the amount

of the lesser of five percent (5%) of the unpaid amount or the highest rate allowed by applicable

law (the “Late Charge”). See Exhibit 1.

28. The Mortgage Note provides that in the case of any Event of Default by

Borrower, Access Point, at its option and without further notice, may declare any unpaid balance,

including principal and any interest thereon, immediately due and payable. See Exhibit 1. The

Mortgage contains an analogous provision. See Exhibit 2 (at Article 7).

29. The Mortgage Note further provides that, in the event Access Point shall take

legal action to enforce Borrower’s obligations under the Mortgage Loan Documents, Access

Point shall be entitled to recover, in addition to any unpaid principal and interest thereon,

reasonable attorneys’ fees actually incurred and collection costs and expenses. The Equipment

Note contains an analogous provision. See Exhibit 6 § 4.

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30. On or around July 25, 2017, Access Point’s predecessor, Access Point Financial,

Inc., assigned the Mortgage to an affiliate, APF-CS, LLC. On August 2, 2017, that assignment

was recorded in the public records of the Monroe County Clerk’s Office in Rochester, Monroe

County, New York in book 1823, page 310. That assignment persisted while Access Point

Financial, Inc. reorganized and converted into a limited liability company i.e., Access Point

Fniancial, LLC, the Plaintiff. On January 9, 2019, APF-CS, LLC assigned the Mortgage back to

Access Point. That assignment was recorded in the public records of the Monroe County Clerk’s

Office in Rochester, Monroe County, New York on January 29, 2019 in book 1853, page 571.

31. Access Point Financial, LLC, the Plaintiff herein, is the current and true owner of

the Mortgage.

BORROWER’S DEFAULTS

32. Beginning in February 2018, Borrower failed to make payments due under the

Mortgage Loan Documents and Equipment Loan Documents. This constitutes an Event of

Default under the Mortgage Loan Documents and Equipment Loan Documents, respectively.

33. On or about July 9, 2018, Access Point sent a letter to Borrower and Mrs. Butt,

notifying them of the defaults under the Mortgage Loan Documents and Equipment Loan

Documents (the “Default Letter”). A true and correct copy of the Default Letter is attached

hereto as Exhibit 7.

34. As identified in the Default Letter, interest on the unpaid amounts due under the

Mortgage Loan Documents has and shall accrue at the Default Rate (12.5% per annum) from and

after February 1, 2018, and interest on the unpaid amounts due under the Equipment Loan

Documents has and shall accrue at the rate of 18% per annum..

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35. As set forth in the Default Letter, the aggregate amount of unpaid monies owed to

Access Point under the terms of the Mortgage Loan Documents was $263,165.10 and under the

terms of the Equipment Loan Documents was $58,684.84 as of July 9, 2018.

36. Access Point demanded that Borrower and Mrs. Butt, as guarantor, cure the

defaults.

37. Notwithstanding the Default Letter and the notice contained therein, the Events of

Default continued and were not cured.

38. On or around July 20, 2018, Access Point sent another letter to Borrower and

Mrs. Butt, notifying them of the failure to make payment of the amounts due and owing to

Access Point as set forth in the Default Letter, and exercising Access Point’s rights under the

Mortgage Loan Documents to declare the entire principal balance, together with all accrued and

unpaid interest thereon and all other sums or payments required under the Mortgage Loan

Documents, including the Late Charge, due and payable immediately (the “First Acceleration

Letter”). The First Acceleration Letter similarly exercised Access Point’s right under the

Equipment Loan Documents to declare the entire principal balance, together with all accrued and

unpaid interest thereon and all other sums or payments required thereunder, including the Late

Charge, due and payable immediately. A true and correct copy of the First Acceleration Letter is

attached hereto as Exhibit 8.

39. By the First Acceleration Letter, Access Point provided notice that it intended to

enforce its rights under the Mortgage Loan Documents and Equipment Loan Documents to

recover its reasonable attorney’s fees and costs unless all amounts due and owing were paid

within ten (10) days from receipt of the First Acceleration Letter.

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40. Further, the First Acceleration Letter expressly notified Borrower that under the

Assignment, and as a result of the occurrence of the Events of Default, Borrower’s license to

retain Rents was automatically revoked and terminated.

41. Notwithstanding the Default Letter and the First Acceleration Letter, the Events of

Default continued and were not cured.

42. On or about December 28, 2018, Access Point sent another letter to Borrower and

Mrs. Butt, reiterating its demands as set forth in the Default Letter and First Acceleration Letter and

again exercising Access Point’s rights under the Mortgage Loan Documents and Equipment Loan

Documents to declare the entire principal balances, together with all accrued and unpaid interest

thereon and all other sums or payments required under thereunder, including the Late Charge, due

and payable immediately (the “Second Acceleration Letter”). A true and correct copy of the Second

Acceleration Letter is attached hereto as Exhibit 9.

43. By the Second Acceleration Letter, Access Point again provided notice that it

intended to enforce its rights under the Mortgage Loan Documents and Equipment Loan Documents

to recover its reasonable attorney’s fees and costs unless all amounts due and owing were paid within

ten (10) days from receipt of the Second Acceleration Letter.

44. The Second Acceleration Letter further reiterated that pursuant to the Assignment, as

a result of the occurrence of the Events of Default, Borrower’s license to retain Rents was

automatically revoked and terminated.

45. Notwithstanding the Default Letter, and the First and Second Acceleration Letters,

the Events of Default have continued and, to date, have not been cured.

46. Further, on or about February 8, 2019, Preferred Mutual Insurance Company

notified the Borrower that its insurance coverage for the Mortgaged Property would be cancelled,

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effective February 25, 2019, if the Borrower did not remit payment of past due premium

payments (the “First Notice of Cancellation”). A true and correct copy of the First Notice of

Cancellation is attached hereto as Exhibit 10.

47. On or about February 11, 2019, Preferred Mutual Insurance Company further

notified the Borrower that the insurance coverage for the Mortgaged Property would be

cancelled effective March 19, 2019 due to an “increased hazard or material change in the risk

assumed” resulting from one of the buildings on the Mortgaged Property being vacant (the

“Second Notice of Cancellation”). A true and correct copy of the Second Notice of Cancellation

is attached hereto as Exhibit 11.

48. As a result of the First Notice of Cancellation, insurance coverage for the

Mortgaged Property will lapse on February 25, 2019. Even if the Borrower makes the required

payments, the Second Notice of Cancellation demonstrates that the Mortgaged Property will no

longer be insured as of March 19, 2019.

49. Section 4.3 of the Mortgage requires the Borrower to maintain insurance on the

Mortgaged Property against casualty and loss for the duration of the Mortgage Loan.

50. Section 7.1(a) expressly defines the Borrower’s failure to maintain insurance

coverage for the Mortgaged Property as an Event of Default.

51. Therefore, Borrower’s failure to make the payments required to maintain

insurance coverage for the Mortgaged Property constitutes an Event of Default in addition to

Borrower’s failure to make the payments required under the Mortgage Loan Documents and

Equipment Loan Documents. All of these defaults have continued to date.

AS AND FOR A FIRST CAUSE OF ACTION

52. Access Point hereby repeats and realleges all of the preceding allegations set forth

in paragraphs 1 through 51, inclusive, above, to the same extent as if fully set forth herein.

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53. Borrower has defaulted under the terms of the Mortgage Loan Documents and

Equipment Loan Documents and failed to repay the indebtedness when due as promised. For

these reasons and others, Borrower is in default, giving Access Point the right to foreclose on the

Mortgaged Property and Collateral and sue for recovery of any sums due to it.

54. As stated in the First and Second Acceleration Letters, Access Point has elected

and hereby confirms its election to declare immediately due and owing the entire unpaid

principal together with all accrued and unpaid interest thereon and all other sums or payments

required under the Mortgage Loan Documents and Equipment Loan Documents, including the

Late Charge, as well as attorney’s fees.

55. Borrower has failed to remit the amounts referred to in the Default Letter, First

Acceleration Letter, and Second Acceleration Letter, and has failed to remit any part thereof.

56. Borrower has not disputed the Notice of Default, the First Acceleration Letter, or

the Second Acceleration Letter.

57. Further, Borrower has failed to make payments required to maintain insurance on

the Mortgaged Property, an express covenant in Section 4.3 of the Mortgage, and that failure

constitutes an additional Event of Default.

58. As of December 28, 2018, the date of the Second Acceleration Letter, the

following amounts (exclusive of costs and fees, including attorney’s fees) were due and owing to

Access Point under the Mortgage Loan Documents, no part of which has been paid although duly

demanded:

Principal $4,280,000.00

Interest $190,816.67

Interest at Default Rate $180,116.67

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Prepayment Consideration $48,000

Late Payment Charge $41,033.90

NSF Charge $100.00

Attorney’s Fees [To be determined]

Total $4,734,867.23

59. As of December 28, 2018, the date of the Second Acceleration Letter, the

following amounts (exclusive of costs and fees, including attorney’s fees) are now due and

owing to Access Point under the Equipment Loan Documents, no part of which has been paid

although duly demanded:

Principal $1,600,000.00

Interest $79,444.44

Interest at Default Rate $119,088.89

Prepayment Consideration $16,000.00

Late Payment Charge $10,232.53

NSF Charge $300.00

Attorney’s Fees [To be determined]

Total $1,825,065.86

60. In addition to the amounts listed above, which continue to accrue, Access Point is

entitled to any other charges, indebtedness and interest that may have accrued since the date of

the Second Acceleration Letter and the costs of this collection, including reasonable attorney's

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fees and disbursements, and the costs, disbursements and allowances to which Access Point may

be entitled under any applicable law.

61. Per diem interest in the amount of $1,486.11 continues to accrue on the Mortgage

Loan at the Default Rate. Per diem interest in the amount of $800.00 continues to accrue on the

Equipment Loan.

62. Upon information and belief, all of the Defendants’ interests in the Mortgaged

Property, if any, are subject and subordinate to the lien of the Mortgage and Assignment, and all

interests in the Collateral, if any, are subject and subordinate to the lien of the Equipment LSA.

63. Access Point requests that if this action proceeds to judgment of foreclosure and

sale, the Mortgaged Property and Collateral be sold, subject to the following:

a. Any state of facts that an inspection of the Mortgaged Property


would disclose.

b. The state of facts that accurate survey of the Mortgaged Property


might disclose.

c. The liens, if any, of real estate taxes, and assessments, water,


sewer, and vault charges, with interest and penalties, including lien
and certificate sales for delinquent items, unless paid from the
proceeds of the foreclosure sale.

d. Covenants, reservations, restrictions, easements, and public utility


agreements of record, if any.

e. Building and zoning ordinances of the municipalities in which the


Mortgaged Property is located and possible violations of same.

f. All rights of tenants or persons in possession of the Mortgaged


Property other than tenants and occupants, if any, named as
Defendants in this action.

g. Terms and conditions of any other documents of record.

h. Prior liens of record, if any.

64. If Access Point possesses any other liens against the Mortgaged Property either by

way of judgment, junior mortgage, or otherwise, Access Point requests that it be permitted to

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elect prior to judgment that only such other liens shall not be merged in Access Point’s cause of

action set forth in this Complaint, but that Access Point shall be permitted to enforce said other

liens and/or seek determination of priority thereof in any independent actions or proceedings

including, without limitation, any surplus money proceedings.

65. Access Point reserves the right: (1) to sue for judgment on any guaranty for any

deficiency or unpaid guaranteed obligation of Borrower; (2) to recover any misappropriated

funds received from the Mortgaged Property or for any acts of waste, conversion or malfeasance

and (3) to make such protective advances as may be necessary for the protection and

preservation of Access Point's collateral, and requests that such other rights and liens shall not be

merged in Access Point's cause of action set forth in this Complaint, but that Access Point shall

be permitted to enforce said other rights and liens in any independent actions or proceedings, or

pursuant to any relevant provision of the UCC or applicable law.

66. Access Point shall not be deemed to have waived any default not specified herein,

nor to have waived, altered, released, or changed any election hereinbefore made by reason of

any payment made after default and acceleration of the Mortgage Loan by Access Point, or by

reason of any cure or remedy, or attempted cure or remedy, of any or all of the defaults or Events

of Default named herein, and any such election shall continue and remain effective.

67. In order to protect its security, Access Point may be compelled, during the pendency

of this action, to pay sums for premiums on insurance policies, real estate taxes, assessments, water

charges, sewer rents and other utility obligations, which are or may become liens on the Mortgaged

Property, and other charges which may be necessary for the protection of the Mortgaged Property,

and Access Point prays that any sum or sums so paid, together with interest from the date of

payments, shall be added to Access Point’s claim and be deemed secured by the Mortgage Note ,

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Assignment, and Mortgage and adjudged a valid lien on the Property, and that the plaintiff be paid

such sums, together with interest thereon, out of the proceeds of the sale of the Mortgaged Property.

68. Access Point is the sole, true and lawful owner of the Mortgage Note, Assignment,

and Mortgage securing the Mortgage Loan and that there are no pending proceedings at law or

otherwise to collect or enforce the Mortgage Note, Assignment or the Mortgage, and no other action

or proceeding has been commenced or maintained at law or otherwise for the foreclosure of the

Mortgage or for recovery of the indebtedness evidenced and secured by the Mortgage Loan

Documents, or any part thereof.

AS AND FOR A SECOND CAUSE OF ACTION

69. Access Point repeats and realleges all of the preceding allegations set forth in

paragraphs 1 through 68, inclusive, above, to the same extent as if fully set forth herein.

70. The Mortgage Note and Equipment Note provide that upon the occurrence of an

Event of Default, Lender may recover all costs, including reasonable attorneys’ fees, costs,

disbursements, and allowances provided by law in bringing any action to protect its interest in

the premises, including foreclosure of the Mortgage, and the Equipment Note and the Collateral.

WHEREFORE, Access Point demands judgment against the Defendant(s) as follows:

(A) That the defendant(s) and all persons claiming under them or any of them,

subsequent to the commencement of this action and to the filing of the Notice of

Pendency of this action, may be barred and foreclosed of all right, title, claim, lien and

equity of redemption in the Mortgaged Property and each and every part thereof and, to

the extent said defendant occupies any part of the Mortgaged Property, foreclosing any

oral or non-arm’s length right of tenancy;

(B) That each common address comprising the Mortgaged Property be sold in

one parcel according to law subject to any state of facts an accurate survey would show,

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any covenants, easements, encroachments, reservations, and restrictions, violations and

agreements of record, zoning regulations and ordinances of the city, town, or village

wherein the Mortgaged Property is located, any state of facts a physical inspection would

disclose, rights of tenants and other persons in possession of the Mortgaged Property,

prior judgments, liens, and mortgages or record and any and all rights of the United

States of American to redeem the subject premises;

(C) That personal property specified in the Mortgage (also included in the

Mortgaged Property) as well as the Collateral specified in the Equipment LSA, be sold

according to law;

(D) Adjudging the amount due Access Point as demanded in this Complaint,

in accordance with the Mortgage Loan Documents and Equipment Loan Documents;

(E) That the Mortgaged Property be sold in accordance with Title 28, Section

2410 of the United States Code preserving all rights of redemption, if any, of the United

States of America;

(F) That the monies received from the sale be brought into Court and that

Access Point be paid the amount adjudged to be due it with interest thereon to the time of

such payment, together with late charges, any sums paid by the Access Point for real

estate taxes, assessments, water charges and sewer rents, insurances premiums, sums

expended for the protection or preservation of the property, together with attorneys’ fees

and costs as demanded in Count II, the costs and disbursements of this action and any

other necessary expenses to protect the lien of the Mortgage to the extent that the amount

of such monies applicable thereto will pay the same;

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(G) That this Court appoint a receiver of the rents and profits of said premises,

during the pendency of this action with the usual powers and duties;

(H) That Defendant F.M. Butt Hotels Corp. be adjudged to pay any deficiency

which may remain after applying all of such monies as aforesaid in accordance with the

law and provided that Access Point have execution therefore;

(I) That in the event Access Point possesses any other liens against the

Mortgaged Property either by way of judgment, junior mortgage or otherwise, Access

Point requests that such other liens not be merged in Access Point’s causes of action set

forth in this Complaint but that Access Point shall be permitted to enforce said other liens

and/or seek determination or priority thereof in any independent actions or proceedings

including, without limitation, any surplus money proceedings;

(J) Such other and further relief in the Mortgaged Property and Collateral as

may be just and equitable.

Dated: February 27, 2019


New York, New York
THOMPSON HINE LLP

By: /s/Barry M. Kazan


Barry M. Kazan
335 Madison Avenue
New York, New York 10017
Telephone: (212) 908-3921

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VERIFICATION

STATE OF NEW YORK )


: ss.:
COUNTY OF NEW YORK )

Barry M. Kazan, an attorney duly admitted to practice before the Courts of the State of

New York, hereby affirms under penalty of perjury:

I have read the foregoing Verified Complaint, know the contents thereof, and the same

are true and correct to my knowledge and belief, except for those statements made upon

information and belief, and as to such statements, I believe them to be true, based upon my own

personal knowledge.

The reason that this Verification is signed by me is because Plaintiff is foreign

corporation and does not maintain an office in the County in which I maintain my offices in the

State of New York.

Dated: February 27, 2019

/s/Barry M. Kazan
Barry M. Kazan

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