FILED: NEW YORK COUNTY CLERK 08/17/2015 08:23 PM INDEX NO. 651841/2015 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 08/17/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x CAPITAL ONE TAXI MEDALLION FINANCE, : -against- PATTON R. CORRIGAN and MICHAEL LEVINE, Plaintiff, : Index No. 6518412015 Motion Seq. #001 : Affidavit of : MICHAEL SZWAJKOWSKI Defendants. x STATE OF NEW YORK COUNTY OF NEW YORK : SS.: MICHAEL SZWAJKOWSKI, being duly sworn, deposes and says: 1. I am Senior Vice President of Plaintiff Capital One Taxi Medallion Finance ("Capital One"). I am fully familiar with the facts set forth herein either on the basis of my personal knowledge or my examination of Capital One's records on this matter. 2. I submit this Affidavit in support of Capital One's Reply in further support of its Motion for Summary Judgment in Lieu of Complaint pursuant to CPLR 3213 against Defendants Patton R. Corrigan and Michael Levine (the "Guarantors"). 3. I have reviewed the Affidavits of Patton R. Corrigan and Michael Levine in Support of Defendants' Opposition to Plaintiffs Motion for Summary Judgment along with accompanying exhibits.
Capital One's Alleged Commitment to a Joint Venture 4. Mr. Corrigan claims that Capital One made a decision to exit the Chicago taxi medallion market sometime in or prior to April 2013, and failed to disclose this when the parties renewed the one year Loan Facility in July 2013. (Corrigan Aff. IN 41-45.) The purported basis for this assertion is an April 2013 Facebook post by a Capital One employee which mentions the "demise of specialty funding." (Id. 43.) 5. Mr. Corrigan's speculation is incorrect. Specialty funding was a separate Capital One business that financed loans for consumers interested in leasing luxury vehicles. It has no relation to the Chicago taxi medallion industry. Capital One wound down that business in April 2013 as part of a strategy shift in its loan financing business for leasing vehicles. 6. I made the distinction between the two businesses clear to Mr. Corrigan at a lunch on May 1, 2013, when I explained to him that Capital One was planning at that point to remain in the taxi medallion financing business. (See Corrigan Aff. 44.) I described the Facebook post as "unfortunate" because it is regrettable when employees comment publicly on internal business matters. Again, the decision with respect to specialty funding had no bearing on Capital One's decisions with respect to either the Chicago taxi medallion market or the TFA Loan Agreement. Indeed, the proof is in the pudding, as Capital One did agree to renew the Loan Facility in July 2013 for another year. Had Capital One decided at that point to exit that market as Mr. Corrigan wrongly asserts, it would not have renewed the Facility. 7. Mr. Corrigan also described TFA's payments to Capital One under the loan as "profits," suggesting that Capital One had earned $15 million from the "joint venture." (Corrigan Aff. 27.) But this is also wrong. The $15 million is comprised of TFA's repayments
on the loan based on the outstanding principal and applicable interest rates. These were not "profits" from TFA's business or the non-existent joint venture. Capital One's Alleged Refusal to Approve Requests for Advances 8. In support of their argument that Capital One refused to approve TFA's requests for advances under the Loan Facility beginning on February 25, 2014, Defendants submitted an email exchange between a Capital One officer and Mr. Corrigan regarding a funding request for TFA IV. (Corrigan Aff. 32; id. Ex. 4.) 9. However, TFA IV is a different entity who is not a party to this case, and which has a completely different agreement with Capital One. (See TFA IV Master Joint Participation Agreement, attached as Exhibit 1.) That request for an advance was not made under the Loan Facility at issue in this case. 10. The only other time Defendants allege that Capital One refused to approve an advance under the Loan Facility at issue in this case was in late June 2014 for $1.7 million, two weeks before the Loan Facility was set to expire. (Corrigan Aff. 32.) Given that the Loan Agreement was so close to its expiration, and Capital One had already extended $60 million in advances to TFA, it exercised its "sole and absolute discretion" as provided for in the Loan Agreement, see 2.1(g), to deny that single request. Partnership with Uber in 2015 11. Finally, Defendants allege that Capital One decided to stop lending to TFA in February 2014 in pursuit of a partnership with Uber. (Corrigan Aff. 33.) However, the exhibits to which Mr. Corrigan refer indicate that the partnership was not established until over a year later, in April 2015, well after the Loan Facility at issue expired (Corrigan Aff. Exs. 6, 8),
and was developed by Capital One Financial Corporation (Id. Ex. 6.) Capital One Financial Corporation is a wholly separate line of business within Capital One. Release of Medallions 12. Mr. Corrigan also stated that Capital One "arbitrarily" refused to release its liens on certain medallions. (Corrigan Aff. 39.) That is false. First, Mr. Corrigan's Affidavit refers in part to medallions that have nothing to do with the TFA Loan and Security Agreement. Rather they relate to medallions under a "Vasken" file (Corrigan Aff. Ex. 10), which relates to the Agreement with TFA IV, not the Loan Facility at issue here. 13. Second, Capital One's decision not to release the liens on the 48 medallions under TFA was for good reason. Mr. Corrigan was only willing to substitute a mix of cash and notes payable for the medallions, and was also not willing to provide Capital One with sufficient net proceeds from the sale. Capital One had previously approved sales of medallions by borrowers when Capital One would receive 90 0 of the net cash proceeds. (See Ex. 2 (approval for sale of 333 medallions by Yellow Group LLC when Capital One would receive 90 i) of the net proceeds of each medallion).) Mr. Corrigan was not willing to share that percentage with Capital One with respect to the 48 medallions at issue here. 14. Attached hereto as Exhibit 3 is a true and correct copy of the Second Amended and Restated Revolving Advised Line of Credit Promissory Note, dated July 1, 2013, which is cited in Capital One's Reply. 4
Sworn to before me this 1r4clay of August, 2015. Notar WILLIAM PATRICK BRANDT Notary Public, State of New York No. 01BR:3290190 (Notified in New York County My Commission Eqiros Oct. 7.2017 5