Mission Cantina Lawsuit

FILED: NEW YORK COUNTY CLERK 05/16/2017 02:11 PM INDEX NO.
652506/2017
NYSCEF
SUPREMEDOC.COURT
NO. 9 OF THE STATE OF NEW YORK RECEIVED NYSCEF:
Job 05/16/2017
#: 21391
COUNTY OF NEW YORK
Attorneys: Company: Judd Burstein I P,C, PH : (212) 974-2400
Address: 5 Columbus Circle New York NY 10019
Scott Kasen Index Number: 652506/2017
Date Filed:
V. Plaintiff Client's File No.:
Court/Return Date:
Mission Cantina, LLC, a New York Limited Liability Company
Oefendant
STATE OF NEW YORK, COUNTY OF NEW YORK, SS,:

AFFIDAVIT OF SERVICE
Reginald Hunter, being sworn says:
Deponent is not a party herein is over the age of 18 years and resides in the State of New York ,
On May 12, 2017, at 1:29 PM at 111 John Street Suite 2510, New York, NY 10038, Deponent served the within Summons, Notice of
Motion for Summary Judgment in Lieu of Complaint, RJI, Notice of Commencement of Action Subject to Mandatory Electronic
Filing
The index number and the filing date of the action were endorsed upon the face of the papers so served herein,
On: Mission Cantina, LLC clo Elke A. Hoffman Law, Pllc, Defendant therein named,
o #1 INDIVIDUAL
By delivering a true copy of each to said recip ient personally; Deponent knew the person so served to be the person described in as said recipient therein ,
o #2 SUITABLE AGE PERSON
By delivering thereat a true copy of each to (Designated Agent, authorized to accept) a person of suitable age and discretion, Said premises is
recipient's:[] actual place of business I employment [] dwelling house (usual place of abode) within the state ,
o #3 AFFIXING TO DOOR
By affixing a true copy of each to the door of said premises which is subjects
[] actual place of business I employment [] dwelling house (usual place of abode) within the state, Deponent was unable with due diligence to find subject
or person of suitable age and discretion thereat having called there
Address confirmation:
181 #4 Corporation or Partnership or Trust or LLC
By delivering thereat a true copy of each to Zahra Lucas personally, Deponent knew said entity so served to be the entity described in said
aforementioned document as said subject and knew said individual to be Designated Agent, authorized to accept thereof,
o #5 MAILING
On , service was completed by mailing a true copy of above document(s) to the above address in a 1st Class postpaid properly addressed
envelope marked "Personal and Confidential" from a depository under the exclusive care and custody of the United States Post Office in the State
of New York,
o An additional mailing was completed to the address above by certified mail.

181 #6 DESCRIPTION
Sex: Female Color of skin: Black Color of hair: Black Age: 25 - 35 Yrs,
Height: 5 ft 9 in - 6 ft 0 in Weight: 100-130 Lbs, Other Features:
o #7 MILITARY SERVICE
Deponent asked person spoken to whether the person to be served is currently active in the military service of the United States or of the State
of New York, and was informed that said person is not.
o #8 WITNESS FEES
Subpoena Fee Tendered in the amount of $
o #90THER
STATE OF NEW YORK
Qualified in Westchester County

My Commission Expires May 31, 2018
Ii
[!] ._- . /
eginald Hunter
1346142 ~
708 Third Avenue, New York, NY 10017
212-393-9070 www.legaleaseinc.com
LEGAL EASE INC.
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1 RECEIVED NYSCEF: 05/16/2017
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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
------------------------------------X
SCOTT KASEN,
Index No.
Plaintiff,
Date Summons filed:
- against-
Plaintiff designates New York
MISSION CANTINA, LLC, a New York County as the place of trial
Limited Liability Company,
Defendant. SUMMONS
------------------------------------x
TO THE ABOVE-NAMED DEFENDANT:
You are hereby summoned to serve a Notice of Appearance on the Plaintiff s attorneys,
and to respond to the attached Notice of Motion for Summary Judgment in Lieu of a Complaint,
with annexed supporting papers, 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, but in no event later
than June 28, 2017, as set forth in the accompanying Notice of Motion. In case of your failure to
appear or respond to the motion, judgment will be entered against you by default.
The basis of the venue designated is CPLR 503(a).
Dated: New York, New York

May 8, 2017
Yours, etc.,
JUDD BURSTEIN, P.C.
By: lsi Judd Burstein

Judd Burstein, Esq.
5 Columbus Circle, Suite 1501
New York, New York 10019
(212) 974-2400
(212) 974-2944 (Fax)
Attorneys for Plaintiff
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TO:
Mission Cantina, LLC

c/o Elke A. Hoffman Law, PLLC
11 Broadway, Suite 800
New York, New York, 10004
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COUNTY OF NEW YORK
------------------------------------X
SCOTT KASEN,
Index No. 652506/2017
Plaintiff,
- against-
NOTICE OF MOTION
MISSION CANTINA, LLC, a New York
Defendant.
------------------------------------x
PLEASE TAKE NOTICE THAT, based upon (a) the summons, dated May 8, 2017, (b)
the Affidavit of Scott Kasen sworn to on May 8, 2017, with annexed exhibits, and (c) the
accompanying Memorandum of Law, the undersigned, on behalf of Plaintiff, will move the
Court, before the Submissions Part, Room 130, at the Supreme Court of the State of New York,
County of New York, located at 60 Centre Street, New York, New York, on the 5th day of July,
2017, at 9:30 o'clock in the forenoon, or as soon thereafter as counsel may be heard, for an
Order, pursuant to CPLR 3213, directing the entry of judgment for the Plaintiff and against the
Defendants in the amount of $425,940.82, plus applicable interest and the costs of this motion,
and attorneys' fees, along with such other and further relief the Court deems just and proper.
PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 2214(b), answering
papers, if any, shall be served at least seven days prior to the return date, and reply papers shall
be served at least one day before the return date.
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May 9, 2017
URSTEIN, P.C.
By:_--\-~~_ _ _ _ __
urstein, Esq.
5 Columbus rcle, Suite 1501
(212) 974-2400
(212) 974-2944 (Fax)
Attorneys for Plaintiff
TO:
Mission Cantina, LLC

c/o Elke A. Hoffman Law, PLLC
111 John Street, Suite 2510
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COUNTY OF NEW YORK
---------------------------------------X
SCOTT KASEN,
Plaintiff, : Index No. 652506/2017
- against-
MISSION CANTINA, LLC, a New York Limited

Liability Company, : AFFIDAVIT OF
: SCOTT KASEN
Defendant.
---------------------------------------x
STATE OF NEW YORK )

)ss.:
COUNTY OF NEW YORK )
SCOTT KASEN, being duly sworn, deposes and says:
1. I am the Plaintiff in this action and make this Affidavit in support of my Motion
for Summary Judgment in Lieu of a Complaint based upon my personal knowledge.
2. Mission Cantina, LLC ("Mission Cantina") was created as the ownership vehicle
for a now-defunct restaurant that was located at 172 Orchard Street, New York, New York
10002. It was formed on June 28, 2013 under the laws of the state of New York and, according
to the New York Secretary of State, is still active as of the date of this filing. Annexed hereto as
Exhibit A is a true and accurate copy of a print-out from the New York Department of State,
Division of Corporations' web site regarding Mission Cantina.
3. I own 33 shares of Class B Investor Stock of Mission Cantina, which correlates to
33% of the company. I also provided Mission Cantina with $330,000 of its initial $390,000
capitalization.
4. On December 12,2016, James Daniel Bowien, Managing Member and CEO of
Mission Cantina, ("Bowien") executed a Secured Credit Line Note for a $425,940.82 debt to me
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personally (the "Note"). The Note served to consolidate prior notes I had held with Mission
Cantina. Annexed hereto as Exhibit B is a true and accurate copy of the Note.
5. The Note provides for a principal amount of $425,940.82 with an interest rate of
ten percent per annum. (See Exhibit B hereto at p. 1). It also states that upon default, "interest
shall accrue and be payable on any overdue principal and on any overdue charge, fee or expense,
and to the extent permitted by law, on any overdue interest, for each day from the date of
[d]efault ... until such sum is paid in full, at a rate of five (5%) percent in excess of the [i]nterest
[r]ate." (Id.).
6. The Note defines "Collateral" as
all assets of any kind or nature, including, without limitation, all

right, title and interest of Borrower in, to and under, whether now
existing or hereafter existing or acquired, (a) all accounts and
accounts receivables evidencing or relating to the right to receive
payment respecting any such accounts, (b) all chattel paper
(whether tangible or electronic), (c) all contracts, contract rights
or rights to the payment of money, (d) all documents, (e) all
general intangibles including, without limitation, all payment
intangibles, (f) all instruments (including promissory notes), (g)
all equipment, (h) all software, (i) all inventory, U) all patents,
patent applications, trademarks, trademark applications, trade
names, copyrights, copyright applications, goodwill, (k) all
machinery, apparatus, equipment, computers, software, fittings,
fixtures, furniture and furnishings, (1) all tort claims, (m) all
deposit accounts and securities accounts, (n) all letters of credit
(whether or not the letter of credit is evidenced by a writing) and
letters of credit rights, (0) all securities and other investment
property, (P) any and all deposits (general or special, including,
but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured) and any other liabilities
at any time held or owing by Lenders to or for the credit or the
account of the Borrower, (q) all supporting obligations, (r) any
and all insurance claims or payments and proceeds, and (s) any
and all products and proceeds of any of the foregoing whenever
generated.
(Id. at p. 2) (bold emphasis supplied)
7. The Note defines a "Default" as occurring when, inter alia,

2
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Any material portion of the Collateral is attached, seized,

subjected to a writ or distress warrant, or is levied upon, or comes
into the possession of any third person and the same is not lifted
or discharged before the earlier of twenty (20) days after the date
it first arises or five (5) days prior to the date on which such
property or asset is subject to forfeiture by Borrower[.]
(Id. at p. 3)
8. The Note also states that
Upon the occurrence of any Default hereunder, the entire unpaid

Obligations shall, at the option of the Lender and without notice
or demand of any kind to Borrower or any other person,
immediately become due and payable, and Lender shall have and
may exercise any and all rights and remedies available to it at law
or in equity.
(Id.)
9. In early 2017, Mission Cantina was unable to make payments pursuant to its lease
and its landlord, Gatco, LLC, commenced an action in New York City Housing Court. On April
19, 2017, Mission Cantina and its landlord entered into a settlement agreement whereby Mission
Cantina would pay the landlord $80,000 to settle all claims, and immediately surrender
possession of the premises and fixtures therein. (Annexed hereto as Exhibit C is a true and
accurate copy of the Stipulation of Settlement between Gatco, LLC, and Mission Cantina, dated
Apri119, 2017 (the "Settlement Agreement")).
10. I, along with Bowien, had personally guaranteed Mission Cantina's lease in 2013,
and I was forced to make the $80,000 settlement payment to the landlord on behalf of Mission
Cantina as settlement of its remaining obligations and rights under the lease.
11. As a result of the Settlement Agreement, Mission Cantina's relinquished its rights
under the lease and the premises came into the possession of the landlord. As is the case with
most restaurants, one of Mission Cantina's most valuable assets was the lease for the premise in
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which it operated. When Mission Cantina lost its rights under the lease and turned over
possession of the premises to the landlord, it was no longer in possession of an asset constituting
"Collateral" under the lease. In doing so, Mission Cantina triggered the "Default" provision
under the Note as discussed above in detail.
12. The Note also provides that Mission Cantina "irrevocably submits to the
jurisdiction of any court sitting in The City of New York in any action arising out of or relating
to this Note .... [and] WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS NOTE."
(Id. at p. 4) (capitals in original).
13. Finally, the note states that
If this Note is not paid when due and if it is placed with an attorney
for collection, the Borrower agrees to pay all reasonable costs of
collection, including reasonable attorney's fees (whether or not an
action is commenced), which shall be added to the amount due
under this Note.
(Id. at p. 1)
Victor M Weberman
Notary Public, State of New York
Qualified in f\ifWi York County
Nn, :1 j WES']39552
r.1"I"~'" :.. '. "~xpires 04/04/2020
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EXHIBIT A
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EXHIBITB
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AMENDED AND RESTATED SECURED CREDIT LINE NOTE
$425,940.82 US New York, New York

December 8, 2016
FOR VALUE RECEIVED, the undersigned, MISSION CANTINA LLC, a New York
limited liability corporation with an address at 172 Orchard Street, New York, New York 10002
("Borrower"), DOES HEREBY PROMISE to pay to the order of SCOTT KASEN ("Lender"), at
320 East 65 th Street, New York, New York 10065 or at such other place or to such other party as
Lender may from time to time designate, on June 30, 2017 (the "Maturity Date") in lawful
money of the United States of America, in immediately available funds, the principal amount of
Four Hundred Twenty Five Thousand Nine Hundred Forty Dollars and Eighty Two Cents
($425,940.82) or, ifless than such principal amount, the aggregate unpaid principal amount of all
Loans (as defined below) made by Lender to Borrower and to pay interest from the date hereof
on the unpaid principal amount hereof, in like money, at said address, at a rate equal to ten
percent (10%) per annum (the "Interest Rate"), payable in full on the Maturity Date, provided
that upon Default (defined below), interest shall accrue and be payable on any overdue principal
and on any overdue charge, fee or expense, and to the extent permitted by law, on any overdue
interest, for each day from the date of Default (by acceleration or otherwise) until such sum is
paid in full, at a rate of five (5%) percent in excess of the Interest Rate.
This Amended and Restated Secured Credit Line Note (the "Note") shall constitute an
amendment and restatement (but shall not extinguish the indebtedness evidenced by) those
certain (1) Loan Agreement made effective as of September 13, 2013, (2) Loan Agreement made
effective as of February 4, 2014, (3) Loan Agreement made effective as of February 26, 2015
and (4) Loan Agreement made effective as of December 29, 2015 (collectively, the "Loan
Agreements"), and all indebtedness outstanding under the Loan Agreements shall be governed
by and payable in accordance with the terms of this Note.
For all purposes of this Note, the term "Loans" means all loans made by Lender to
Borrower from time to time in installments at the Lender's sole discretion, including without
limitation the loans made under the Loan Agreements.
All Loans made by Lender to the Borrower, together with all payments or prepayments of
principal shall be recorded by the Lender and endorsed on the Schedule attached hereto and
made a part of this Note, provided that the failure of Lender to make such notation or any error in
notation shall not effect the obligations of Borrower to make payments of principal and interest
in accordance with the terms of this Note. Borrower shall have the right to make prepayments of
principal at any time.
If this Note is not paid when due and if it is placed with an attorney for collection, the
Borrower agrees to pay all reasonable costs of collection, including reasonable attorney's fees
(whether or not an action is commenced), which shall be added to the amount due under this
Note.
{00261177.1 11166-001}
Page 1 of 4 ofAmended and Restated Secured Credit Line Note
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As collateral security for all indebtedness, obligations and other liabilities owed by the
Borrower to the Lender pursuant to this Note now or hereafter arising (collectively, the
"Obligations"), the Borrower hereby grants to the Lender a lien on and security interest (the
"Lien") in all assets of any kind or nature, including, without limitation, all right, title and
interest of Borrower in, to and under, whether now existing or hereafter existing or acquired, (a)
all accounts and accounts receivables evidencing or relating to the right to receive payment
respecting any such accounts, (b) all chattel paper (whether tangible or electronic), (c) all
contracts, contract rights or rights to the payment of money, (d) all documents, (e) all general
intangibles including, without limitation, all payment intangibles, (f) all instruments (including
promissory notes), (g) all equipment, (h) all software, (i) all inventory, G) all patents, patent
applications, trademarks, trademark applications, trade names, copyrights, copyright
applications, goodwill, (k) all machinery, apparatus, equipment, computers, software, fittings,
fixtures, furniture and furnishings, (1) all tort claims, (m) all deposit accounts and securities
accounts, (n) all letters of credit (whether or not the letter of credit is evidenced by a writing) and
letters of credit rights, (0) all securities and other investment property, (P) any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured) and any other liabilities at any time held or owing by
Lenders to or for the credit or the account of the Borrower, (q) all supporting obligations, (r) any
and all insurance claims or payments and proceeds, and (s) any and all products and proceeds of
any of the foregoing whenever generated. ("Collateral"). Borrower agrees to execute and deliver
to Lender all financing statements and other documents, from time to time reasonably requested
by the Lender to maintain a perfected security in the collateral in favor of the Lender. In
addition, Borrower hereby authorizes Lender and irrevocably appoints Lender, through its
authorized agents, as Borrower's attomey-in-fact, to do all acts and things that Lender may
reasonably deem necessary or required to preserve, perfect continue to perfect andlor maintain
the priority of the Lien in and to the Collateral, including, without limitation, the signing of
financing, continuation or other similar statements and notices on behalf of Borrower. Borrower
hereby authorizes Lender to file financing statements with respect to the Collateral and hereby
ratifies and consents to the filing of any such financing statement at any time by the Lender.
All payments made by the Borrower under this Note will be made without setoff,
counterclaim or other defense of any kind.
All notices or other communications provided for hereunder shall be in writing and shall
be mailed or delivered to the Borrower at the address of the Borrower set forth above, or at such
other address as may hereafter be specified by the Borrower to the Lender (at its address set forth
herein) in writing. All notices and communications shall be effective if mailed, when received or
three days after mailing, whichever is earlier, or if delivered by overnight mail, upon delivery.
No failure on the part of the Lender to exercise, and no delay in exercising, any right,
power, privilege or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof by the Lender preclude any other or further exercise thereof or the
exercise of any other right, power, privilege or remedy of the Lender. No amendment or waiver
of any provision of this Note, nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the Lender, and then
{00261177.1I1166-001 }
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such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given.
Anyone ofthe following occurrences shall constitute a "Default" under this Note:
(a) Borrower shall fail to pay any of the Obligations on the Maturity Date,
(b) Borrower becomes the subject of any bankruptcy or other proceedings or

action of any regulatory agency or any court or makes an assignment for the benefit of its
creditors, or enters into any agreement for the composition, extension, or readjustment of all or
substantially all of the Obligations,
(c) Borrower fails to comply with any covenant contained in this Note and
does not cure such failure within five (5) days after receiving written notice thereof,
(d) Any failure of Borrower to perform or comply with any covenant or

provision of this Note,
(e) Any material portion of the Collateral is attached, seized, subjected to a

writ or distress warrant, or is levied upon, or comes into the possession of any third person and
the same is not lifted or discharged before the earlier of twenty (20) days after the date it first
arises or five (5) days prior to the date on which such property or asset is subject to forfeiture by
Borrower, or
(f) If a notice oflien, levy or attachment is filed or issued by the United States
or any department or instrumentality thereof or by any state, county, municipality or other
governmental agency against all or any portion of the Collateral, which levy, lien or attachment
(i) would be entitled to priority over the Lien on the Collateral (except for the right of New York
State Department of Finance with respect to Borrower's account number 483044144662 with
Bank of America) and (ii) is not lifted or discharged within the earlier of twenty (20) days of
issuance or five (5) days prior to the exercise of remedies with respect to any such levy,
assessment or attachment.
Upon the occurrence of any Default hereunder, the entire unpaid Obligations shall, at the
option of the Lender and without notice or demand of any kind to Borrower or any other person,
immediately become due and payable, and Lender shall have and may exercise any and all rights
and remedies available to it at law or in equity.
Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to

such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
Nothing herein shall obligate the Lender to make any additional loans to the Borrower.
{00261177.1 / 1166-001}
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Borrower for itself and its legal representatives, successors and assigns, waives
presentment, demand, protest, notice of dishonor, notice of acceleration, notice of intention to
accelerate and additional notice of any kind and waives any right to be released by reason of any
extension of time or change in terms of payment or any change, alteration, or release of any
security given for the payment hereof. The pleading of any statute of limitations as a defense to
any demand against Borrower is expressly waived by Borrower to the full extent permitted by
law.
This note shall bind the Borrower and his successors and assigns, and the benefits hereof
shall inure to the Lender and her successors and assigns.
No amendment or waiver of any provision of this Note, nor consent to any departure by
Borrower therefrom, shall in any event be effective unless the same shall be in writing and
signed by Lender, and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
This Note shall be governed by and construed in accordance with the internal substantive
law of the State ofNew York regardless of the laws that might otherwise govern under principles
of conflict of laws applicable thereto. The Borrower hereby (i) irrevocably submits to the
jurisdiction of any court sitting in The City of New York in any action or proceeding arising out
of or relating to this Note or the Loan Agreements, (ii) waives any defense based on doctrines of
venue or forum non conveniens, or similar rules or doctrines, and (iii) irrevocably agrees that all
claims in respect of such an action or proceeding may be heard and determined in such New
York State or federal court. THE BORROWER WAIVES ANY RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS NOTE.
MISSION CANTINA LLC
By:
James Daniel Bow~a~ember and CEO
STATE OF NEW YORK )

) ss:
COUNTY OF NEW YORK )
\'J,~
On the ~ day of December, 2016, before me, the undersigned, a Notary Public in and for
said State, personally appeared James Daniel Bowien, personally known to me or proved to me
on the basis of satisfactory evidence to be the individual whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person or entity upon behalf of which the
individual ac d, executed the instrument.
CHONGw. W
Notary Pub/' 00
Registratio~~:t~;ewbNew York
Com QUl!llified In Kings ~338807
miSSIon EXPires..A.31. ~~
{0026117 .1 / 1166-001 }
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SCHEDULE TO SECURED CREDIT LINE NOTE
Date Amount Notes

December 8, 2016 $425,940.82 Total Obligations under the Note comprising
additional advances plus outstanding Obligations
under the Loan Agreements
{00261177.1I1166-00 I }
Schedule to Amended and Restated Secured Credit Line Note
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EXHIBIT C
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CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK: NON-HOUSING PART 52
==========================================X
GATCO LLC,
Index No. L& T 55471 f20 17
Petitioner-Landlord.
STIPULA TION
- against - OF SETTLEMENT
MISSION CANTINA, LLC,
Respondent- Tenant.
=========================================X
Both sides, by and through their atton1eys, hereby agree to settle the within Inatter as
follows:
1. Respondent, effective iInInediately, hereby surrenders possession of the
subject prelnises as well as any and all right, title and/or interest and any of the fixtures located
in or on the subject prelnises.
2. In consideration of the paYInent of $80,000.00 in certified funds tnade
payab Ie to the Petitioner which In ust be rccci vcd on or before M~ 2- ,20 I 7, and
.fJ,v, ,,\\ ('l.u..)~ s J1&' f\ rr
Respondent providing to Petitioner written proof that Respondent haslsurrender~Respondent's
liquor license to the State Liquor Authority by ~r'\_G_1t-\---.,;....l)_~_ _ , 2017, the Petitioner waives any C4 J-k
and all rights as against the Guarantors of the Lease Agreement between Petitioner and
Respondent including the Guaranty by Scott Kasen executed on or July 8, 2013, as well as the
Guaranty by James Daniel Bowien executed on or July 24,2013.
3. The Lease Agrecn1ent by and betwecn "Petitioner and Respondent is
hereby tern1inated and of no further force and effect. Petitioner can, therefore, ilnn1ediately take
possession of the subject preInises and secure Saine without further notice to the Respondent.
w:lselella leric\slipulali(}lIsl/)(lmch (slip-10 16)

- I -
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Any and all property which cUITently rClnains in the subject premises shall be deemed abandoned
and lnay be disposed of by the Petitioner without any liability whatsoever to the Respondent or
Respondent's Guarantors.
4. By executing this Agreenlent, the parties, Petitioner and Respondent as
,J a.s RCSP()I!~f.inaJWators, hereby deeln this Agreelnent to be a mutual General Release
of any and all claims which have arisen by and between the parties frOln the beginning of time to
date such that the parties no longer have any clailns whatsoever as against each other as a result
of this AgreeJnent and the Release set t()J1h herein. However, should the $80,000.00 payment
not be made on tiJne and in full or should Respondent fail to sun'ender the liquor license as
required, Petitioner shall have the right to fully cnforce the tenns of the two Guaranty
Agreelnents referenced in paragraph :2 which were executed in favor of Petitioner as an
inducelnent for Petitioner to enter into the Lease and/or Lease Assigl1lncnt to the Respondent-
Corporation.
5. All parties have been represented by counsel of the negotiation and
execution of this Agreenlent such that no negativc inference can be Inade against any of the
parties hereto.
6. Facsbllile allti/or electrollic (e-111ail) .\igllatures shall be deel1led
originals for purposes offilillg this Agree111ent with the Clerk of COllrt.
Dated:
+,
New York, New York
April 2017
SPERBER DENENBERG & KAHAN, P.C. MEISTER SEELING & FEIN LLP
AUornev (or Respondent
By: _ _ _ _-+--:A'---_ _ _ _ _ __
w: Ise/elluleric\stiplI/utioIlS\clllltil111 (sos-20 /7)

By: ,"~OH' ESQ
-2-
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COUNTY OF NEW YORK
------------------------------------X
SCOTT KASEN,
Index No. 652506/2017
Plaintiff,
- against-
MISSION CANTINA, LLC, a New York

Defendant.
------------------------------------x
PLAINTIFF SCOTT KASEN'S MEMORANDUM OF LAW IN SUPPORT OF MOTION

FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT
JUDD BURSTEIN, P.C.

5 Columbus Circle, Suite 1501
(212) 974-2400
(212) 974-2944 (Fax)
Attorneys for PlaintiffScott Kasen
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INTRODUCTION
Plaintiff Scott Kasen ("Plaintiff') brings this Motion for Summary Judgment in Lieu of a
Complaint to recover monies owed pursuant to a Promissory Note executed by Defendant
Mission Cantina, LLC ("Mission Cantina").
FACTUAL BACKGROUND
Mission Cantina is a New York Limited Liability Company formed on June 23,2013 for
the purpose of operating a restaurant located at 172 Orchard Street, New York, New York 10002.
(See the Affidavit ("Aff.") of Scott Kasen, dated May 8, 2017, ("Kasen Aff.") at ~ 2). On
December 12, 2016, James Daniel Bowien, Managing Member and CEO of Mission Cantina,
("Bowien") executed a Promissory Note (the "Note") that memorialized a $425,940.82 loan from
Plaintiff. (See id. at ~~ 4-5).
The Note provides for a principal amount of $425,940.82 with an interest rate of ten
percent per annum. (See Exhibit B to Kasen Aff. at p. 1). It also states that upon default,
"interest shall accrue and be payable on any overdue principal and on any overdue charge, fee or
expense, and to the extent permitted by law, on any overdue interest, for each day from the date
of [d]efault ... until such sum is paid in full, at a rate of five (5%) percent in excess of the
[i]nterest [r]ate." (Jd.)
The Note defines "Collateral" as
all assets of any kind or nature, including, without limitation, all right, title and
interest of Borrower in, to and under, whether now existing or hereafter existing
or acquired, (a) all accounts and accounts receivables evidencing or relating to the
right to receive payment respecting any such accounts, (b) all chattel paper
(whether tangible or electronic), (c) all contracts, contract rights or rights to the
payment of money, (d) all documents, (e) all general intangibles including,
without limitation, all payment intangibles, (f) all instruments (including
promissory notes), (g) all equipment, (h) all software, (i) all inventory, U) all
patents, patent applications, trademarks, trademark applications, trade names,
copyrights, copyright applications, goodwill, (k) all machinery, apparatus,
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equipment, computers, software, fittings, fixtures, furniture and furnishings, (1)

all tort claims, (m) all deposit accounts and securities accounts, (n) all letters of
credit (whether or not the letter of credit is evidenced by a writing) and letters of
credit rights, (0) all securities and other investment property, (p) any and all
deposits (general or special, including, but not limited to, indebtedness evidenced
by certificates of deposit, whether matured or unmatured) and any other liabilities
at any time held or owing by Lenders to or for the credit or the account of the
Borrower, (q) all supporting obligations, (r) any and all insurance claims or
payments and proceeds, and (s) any and all products and proceeds of any of the
foregoing whenever generated.
(Id. at p. 2) (bold emphasis supplied).
The Note defines a "Default" as occurring when, inter alia,
Any material portion of the Collateral is attached, seized, subjected to a writ or

distress warrant, or is levied upon, or comes into the possession of any third
person and the same is not lifted or discharged before the earlier of twenty (20)
days after the date it first arises or five (5) days prior to the date on which such
property or asset is subject to forfeiture by Borrower [.]
(Id. at p. 3).
The Note also states that
Upon the occurrence of any Default hereunder, the entire unpaid Obligations
shall, at the option of the Lender and without notice or demand of any kind to
Borrower or any other person, immediately become due and payable, and
Lender shall have and may exercise any and all rights and remedies available to it
at law or in equity.
(Id.) (bold emphasis supplied).
Soon thereafter, Mission Cantina became insolvent and was unable to make payments on
its lease. (See Kasen Aff. at ,-r 9). In particular, Mission Cantina entered into a settlement
agreement with its landlord on April 19, 2017, pursuant to which it surrendered possession of the
building and Plaintiff paid an additional $80,000 to release Mission Cantina from its remaining
obligations under the lease. (See id. at,-r,-r 9-10, and Exhibit C to Kassen Aff.).
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ARGUMENT
PLAINTIFF IS ENTITLED TO A JUDGMENT IN THE AMOUNT OF $425,940.82
A. A Promissory Note is a Proper Instrument Under CPLR 3213
CPLR 3213 provides that when "an action is based upon an instrument for the payment
of money only ... the plaintiff may serve with the summons a notice of motion for summary
judgment and the supporting papers in lieu of a complaint." A promissory note qualifies as such
an instrument provided that a Plaintiff can "establish a prima facie case via 'proof of the note and
a failure to make the payments called for by its terms. '" Bonds Fin., Inc. v. Kestrel Techs., LLC,
48 A.D.3d 230, 231 (lst Dep't 2008) (internal citations omitted); see also Seaman-Andwall
Corp. v. Wright Mach. Corp., 31 A.D.2d 136, 137 (lst Dep't 1968); Zyskind v. FaceCake Mktg.
Tech., Inc., 101 A.D.3d 550, 551 (lst Dep't 2012). In fact, "[t]he prototypical example of an
instrument within the ambit of the statute is of course a negotiable instrument for the payment of
money--an unconditional promise to pay a sum certain, signed by the maker and due on demand
or at a definite time." Weissman v. Sinorm Deli, Inc., 88 N.Y.2d 437, 444 (1996) (internal
citation omitted).
B. Plaintiff Has Made a Prima Facie Showing That the Note is Due
"To establish prima facie entitlement to summary judgment in lieu of complaint, a
plaintiff must show the existence of a promissory note executed by the defendant containing an
unequivocal and unconditional obligation to repay and the failure of the defendant to pay in
accordance with the note's terms." Zyskind, 101 A.D.3d at 551 (internal citation omitted).
Here, it is undisputable that the Note, executed by Bowien on behalf of Mission Cantina,
constitutes an unequivocal obligation to repay upon the occurrence of a default as defined by the
Note. In this regard, the Note is clear that a default occurs if
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Any material portion of the Collateral is attached, seized, subjected to a writ or

distress warrant, or is levied upon, or comes into the possession of any third
person and the same is not lifted or discharged before the earlier of twenty (20)
days after the date it first arises or five (5) days prior to the date on which such
property or asset is subject to forfeiture by Borrower[.]
(Exhibit B to Kasen Aff. at p. 3) (bold emphasis supplied).
Importantly, the Note defines "Collateral" as, inter alia, "all assets of any kind or
nature[.]" (Id. at p. 2) (bold emphasis supplied). Mission Cantina's lease is clearly an
intangible asset, given that (a) it was formed to operate a restaurant, (b) without a lease it has no
premises in which to operate, and therefore (c) it cannot do business. In this respect, as
discussed above in the "STATEMENT OF FACTS," supra, Mission Cantina surrendered its
lease to its landlord on April 19, 2017. (See Exhibit C to Kassen Aff.). This triggered the Note's
default provision, which states that "[u ]pon the occurrence of any Default hereunder, the entire
unpaid Obligations shall ... immediately become due and payable[.]" (Exhibit B to Kasen Aff.
at p. 3).
As such, Plaintiff has made a prima facie showing that the Note is due and he is entitled
to judgment in the principal amount of the note, $425,940.82, with interest to be calculated by
the Clerk of the Court at the following rates: (i) 10% from December 12, 2016, the date of the
Note, to April 19, 2017\ the date of Default as triggered by Mission Cantina's having
surrendered its lease, and then (ii) 15% through entry of judgment.
C. Plaintiff is Entitled to Reasonable Attorneys' Fees
Plaintiff is entitled to reasonable attorneys' fees in bringing this action to collect monies
due under the Note.
To this end, the Note provides that
The interest accrued from December 12, 2016 to April 19, 2017 is $14,198.03.
4
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If this Note is not paid when due and if it is placed with an attorney for collection,
the Borrower agrees to pay all reasonable costs of collection, including reasonable
attorney's fees (whether or not an action is commenced), which shall be added to
the amount due under this Note.
(Id. at p. 1)
Clearly, the parties consented to the award of reasonable attorneys' fees incurred in
collecting monies due pursuant to the Note. As such, the Court should award Plaintiff
reasonable attorneys' fees to be determined after this Motion has been decided.
CONCLUSION
WHEREFORE, for the foregoing reasons, Plaintiffs Motion for Summary Judgment in
Lieu of a Complaint should be granted and a judgment entered in his favor for the principal
amount of $425,940.82, plus applicable interest, and reasonable attorneys' fees and costs.

May 8, 2017
Respectfully submitted,
"",~.,-'-"'!llrstein
. Ie, Suite 1501
ork 10019
27
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REQUEST FOR JUDICIAL INTERVENTION
UCS-840 (7/2012)
_S_u~pr_e_m_e_____________COURT, COUNTYOF~__~__N_e_W~Y=or=k~~____t:::::::::::~~~~~::::::::::j
Index No: ____6_5_25_0_6_'_20_'_7_____ Date Index Issued:____O_S'_0_9_'2_0_'_7_____
ISSION CANTINA, LCC, a New York Limited Liability Company,
Business Entity (including corporations, partnerships, LLCs, etc.)

o Contract
o Insurance (where insurer is a party, except arbitration)
h-~---~---~~---~---------~---------~------------------~---------~
o UCC (including sales, negotiable instruments)
h~::"':";';:;;""";'~---------~----------------~---------------------------------~ 0 Other Commercial._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _---1
(specify)
Asbestos
oo Breast Implant
Environmental: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
NOTE: For Commercial Division assignment requests [22 NYCRR
202.70(d)], complete and attach the COMMERCIAL DlV RJI Addendum.
(specify) ~~~~~~~~~~~~~
o Medical, Dental, or Podiatric Malpractice
o Motor Vehicle 0 Mortgage Foreclosure (specify): o Residential o Commercial
o Products -'--.. "'~. _ _ _ _ _ _~_ _ _ _ _ _ _ _ _ _ _ _ _--1 Property Address: - - - - - - - - - - - - - - - - - - - - - - - - i
(specify) Street Address City State Zip
o Other 1\1""1 I in.",". "_"'_" _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _---1 NOTE: For Mortgage Foreclosure actions involving a one- to four-family,
(specify) owner-occupied, residential property, or an owner-occupied
o Other Professional Malprcactiice:_ _ _ _(specify)
_ _ _ _ _ _ _ _ _ _ _-I condominium, complete and attach the FORECLOSURE RJI Addendum.
o Tax Certiorari - Section: Block: Lot: _ _ __
o Other -.-.---------------------~
o Tax Foreclosure
h-~...-~~..._-...._...._--~~--....-....--...._-------_f 0 Other Real Property._- - - - - - - - - - - - - - - - - - - - - f
Certificate of Incorporation/Dissolution [see NOTE under Commercial]

o Emergency Medical Treatment CPLR Article 75 (Arbitration) [see NOTE under Commercial]
o Habeas Corpus o CPLR Article 78 (Body or Officer)
o Local Court Appeal o Election Law
o Mechanic's Lien o MHL Article 9.60 (Kendra's Law)
o Name Change o MHL Article 10 (Sex Offender Confinement-Initial)
o Pistol Permit Revocation Hearing o MHL Article 10 (Sex Offender Confinement-Review)
o Sale or Finance of Religious/Not-for-Profit Property o MHL Article 81 (Guardianship)
<:) Other.Breach of Contract
(specify)
o Other Mental Hyg (specify)
o Other Special Prn,r.AFlnin,g._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ -I
Has a summons and complaint or summons w/notice been filed? If yes, date filed: _ _ _ _ _ _ _ _ _ _ __
Has a summons and complaint or summons w/notice been served? o
o <:) If yes, date served: _ _ _ _ _ _ _ _ _ _ __
Is this action/proceeding being filed post-judgment? o If yes, judgment date: _ _ _ _ _ _ _ _ _ _ __
28
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Infant.s Compromise
o Note of Issue and/or Certificate of Readiness
o Notice of Medical, Dental, or Podiatric Malpractice Date Issue Joined: _ _ _ _ _ _ _ _ _ _ _ __
o Notice of Motion Relief Sought: Return Date:
__71_0_5_1_2_0_17_________
Judgment - Summary in Lieu of Complaint
o Notice of Petition Relief Sought: _ _ _ _ _ _ _ _ _ _ _ Return Date: _ _ _ _ _ _ _ _ _ _ _ __
o Order to Show Cause Relief Sought: _ _ _ _ _ _ _ _ _ _ _ Return Date: _ _ _ _ _ _ _ _ _ _ _ __
o Other Ex Parte Application Relief Sought: _ _ _ _ _ _ _ _ _ __
o Poor Person Application
o Request for Preliminary Conference
o Residential Mortgage Foreclosure Settlement Conference
o Writ of Habeas Corpus
Other fS[JIBCifvl _ _ _ _ _ --===__________
Provide attorney name, firm name, business address, phone number and e-mail Insurance
address of all attorneys that have appeared in the case. For unrepresented Carrier{s):
litigants, provide address, phone number and e-mail address.
Judd
Last Name Last Name First Name
Scott
o Plaintiff
First Name
Primary Role:
Columbus Circle, Suite 1501
Street Address
Firm Name
New York
City
New York
State
10019
Zip
Secondary Role (If any):
+1 (212) 974-2944 jburstein@burlaw.com
Fax e-mail
Cantina, LLC
Elke A. Hoffman Law, PLLC

First Name Firm Name
Primary Role:
11 John Street, Suite 2510 New York New York 10038
Street Address City State Zip
Secondary Role (if any):
1 (212) 487-9100 +1 (212) 487-9131 elke@eahlaw.com
Phone Fax e-mail
Firm Name
D First Name
Primary Role:

Phone Fax e-mail
D First Name
Primary Role:
Firm Name

Phone Fax e-mail
I AFFIRM UNDER THE PENALTY OF PERJURY THAT, TO MY KNOWLEDGE, OTHER THAN AS NOTED ABOVE, THERE ARE AND HAVE
BEEN NO RELATED ACTIONS OR PROCEEDINGS, NOR HAS A REQUEST~N PREVIOUSLY BEEN FILED IN
THIS ACTION OR P R O C E E D I N G . "
Dated: 05109/2017
i~TURE
1753045 Judd Burstein
ATTORNEY REGISTRATION NUMBER PRINT OR TYPE NAME
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FILED: NEW YORK COUNTY CLERK 05/16/2017 02:11 PM INDEX NO.

STATE OF NEW YORK, COUNTY OF NEW YORK, SS,:

o An additional mailing was completed to the address above by certified mail.

STATE OF NEW YORK

Qualified in Westchester County

SUPREME COURT OF THE STATE OF NEW YORK

The basis of the venue designated is CPLR 503(a).

Dated: New York, New York

JUDD BURSTEIN, P.C.

By: lsi Judd Burstein

Mission Cantina, LLC

SUPREME COURT OF THE STATE OF NEW YORK

PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 2214(b), answering

be served at least one day before the return date.

Dated: New York, New York

Mission Cantina, LLC

SUPREME COURT OF THE STATE OF NEW YORK

Plaintiff, : Index No. 652506/2017

MISSION CANTINA, LLC, a New York Limited

STATE OF NEW YORK )

SCOTT KASEN, being duly sworn, deposes and says:

for Summary Judgment in Lieu of a Complaint based upon my personal knowledge.

Division of Corporations' web site regarding Mission Cantina.

3. I own 33 shares of Class B Investor Stock of Mission Cantina, which correlates to

4. On December 12,2016, James Daniel Bowien, Managing Member and CEO of

6. The Note defines "Collateral" as

all assets of any kind or nature, including, without limitation, all

(Id. at p. 2) (bold emphasis supplied)

7. The Note defines a "Default" as occurring when, inter alia,

Any material portion of the Collateral is attached, seized,

8. The Note also states that

Upon the occurrence of any Default hereunder, the entire unpaid

Apri119, 2017 (the "Settlement Agreement")).

under the Note as discussed above in detail.

PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS NOTE."

(Id. at p. 4) (capitals in original).

13. Finally, the note states that

AMENDED AND RESTATED SECURED CREDIT LINE NOTE

$425,940.82 US New York, New York

Page 1 of 4 ofAmended and Restated Secured Credit Line Note

Page 2 of 4 ofAmended and Restated Secured Credit Line Note

(b) Borrower becomes the subject of any bankruptcy or other proceedings or

(d) Any failure of Borrower to perform or comply with any covenant or

(e) Any material portion of the Collateral is attached, seized, subjected to a

Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to

Page 3 of 4 ofAmended and Restated Secured Credit Line Note

MISSION CANTINA LLC

STATE OF NEW YORK )

Page 4 of 4 ofAmended and Restated Secured Credit Line Note

SCHEDULE TO SECURED CREDIT LINE NOTE

Date Amount Notes

Schedule to Amended and Restated Secured Credit Line Note

CIVIL COURT OF THE CITY OF NEW YORK

MISSION CANTINA, LLC,

1. Respondent, effective iInInediately, hereby surrenders possession of the

in or on the subject prelnises.

2. In consideration of the paYInent of $80,000.00 in certified funds tnade

Guaranty by James Daniel Bowien executed on or July 24,2013.

3. The Lease Agrecn1ent by and betwecn "Petitioner and Respondent is

w:lselella leric\slipulali(}lIsl/)(lmch (slip-10 16)

4. By executing this Agreenlent, the parties, Petitioner and Respondent as

,J a.s RCSP()I!~f.inaJWators, hereby deeln this Agreelnent to be a mutual General Release

Agreelnents referenced in paragraph :2 which were executed in favor of Petitioner as an

5. All parties have been represented by counsel of the negotiation and