NYCTL 2009-A Tr. v. Alaric Enters.

Full title: NYCTL 2019-A TRUST, AND THE BANK OF NEW YORK MELLON AS COLLATERAL AGENT…

Court: Supreme Court, New York County

Date published: Jun 9, 2022

2022 N.Y. Slip Op. 31836 (N.Y. Sup. Ct. 2022)

Opinion

Index No. 158737/2020 Motion Seq. No. 001

06-09-2022

NYCTL 2019-A TRUST, AND THE BANK OF NEW YORK MELLON AS COLLATERAL AGENT AND CUSTODIAN FOR THE NYCTL 2019-A TRUST, Plaintiff, v. ALARIC ENTERPRISES, LLC,NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, BOARD OF MANAGERS OF THE COPLEY CONDOMINIUM, JOHN DOE NO. 1 THROUGH JOHN DOE NO. 100 INCLUSIVE, THE NAMES OF THE LAST 100 DEFENDANTS BEING FICTITIOUS, THE TRUE NAMES OF SAID DEFENDANTS BEING UNKNOWN TO PLAINTIFF, IT BEING INTENDED TO DESIGNATE FEE OWNERS, TENANTS OR OCCUPANTS OF THE LIENED PREMISES, AND/OR PERSONS OR PARTIES HAVING OR CLAIMING AN INTEREST IN OR A LIEN UPON THE LIENED PREMISES, IF THE AFORESAID INDIVIDUAL DEFENDANTS ARE LIVING, AND IF ANY OR ALL OF SAID INDIVIDUAL DEFENDANTS BE DEAD, THEIR HEIRS AT LAW, NEXT OF KIN, DISTRIBUTEES, EXECUTORS, ADMINISTRATORS, TRUSTEES, COMMITTEES, DEVISEES, LEGATEES, AND THE ASSIGNEES, LIENORS, CREDITORS AND SUCCESSORS IN INTEREST OF THEM, AND GENERALLY ALL PERSONS HAVING OR CLAIMING UNDER, BY, THROUGH, OR AGAINST THE SAID DEFENDANTS NAMED AS A CLASS, OF ANY RIGHT, TITLE, OR INTEREST IN OR LIEN UPON THE PREMISES DESCRIBED IN THE COMPLAINT HEREIN Defendant.

HON. FRANCIS KAHN, III JUSTICE

Unpublished Opinion

PRESENT: HON. FRANCIS KAHN. III Justice

DECISION + ORDER ON MOTION

HON. FRANCIS KAHN, III JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 were read on this motion to/for APPOINT-REFEREE.

Upon the foregoing documents, the motion is determined as follows:

This is an action to foreclose on a tax lien on real property owned by Defendant Alaric Enterprises, LLC ("Alaric"). In its answer, Alaric asserted thirteen affirmative defenses including claiming Plaintiff lacks standing and that notices pursuant to RPAPL §§1303, 1304 and 1306 were not served.

Contrary to Defendant's assertion, the affidavit of Plaintiff s servicing agent and the tax lien ombudsman sufficiently established Plaintiffs demonstrated prima facie entitlement to summary judgment (see eg NYCTL 2008-A Trust v Livingston, 175 A.D.3d 1542 [2^nd Dept 2019]). Submission of the subject tax lien certificate, which was presumptive evidence of a valid and enforceable lien, proof that the outstanding balance due under the lien was not paid as well as evidence that constitutionally adequate notice of the sale of the tax lien justify accelerated judgment in Plaintiffs favor (see eg NYCTL 2009-A Trust v Morris, 164 A.D.3d 1249 [2^nd Dept 2018]; NYCTL 1998-2 Trustee v 2388 Nostrand Corp., 69 A.D.3d 594 [2^nd Dept 2010]).

In opposition, Defendant "failed to raise a triable issue of fact in opposition to the plaintiffs' showing or as to the merit of their affirmative defenses alleging that the subject tax lien is defective" (NYCTL 2011-A Trust v Evelyn, supra; see also NYCTL 2008-A Trust v Livingston, 175 A.D.3d 1542 [2^nd Dept 2019]; NYCTL 1998-2 Trust v 104-26 Jamaica Ave, LLC, 160 A.D.3d 974 [2^nd Dept 2018]; NYCTL 1998-2 Trustee v. 2388 Nostrand Corp., 69 A.D.3d 594 [2^nd Dept 2010]). To the extent there is a disputed at to the amount owed, that does not defeat summary judgment as that issue is properly resolved after a reference pursuant to RPAPL 1321 (see NYCTL 2009-A Trust v Tsafatinos, 101 A.D.3d 1092 [2^nd Dept 2012]; NYCTL 1999-1 Trust v Stark, 21 A.D.3d 402, 403, 800 N.Y.S.2d 198 [2^nd Dept 2005] see also Heywood Condominium v Rozencraft, 148 A.D.3d 38 [1^st Dept 2017]). Defendant abandoned any reliance on its affirmative when it failed to address same in its opposition (see U.S. Bank N.A. v Gonzalez, 172 A.D.3d 1273, 1275 [2d Dept 2019]; Flagstar Bank v Bellafwre, 94 A.D.3d 1044 [2d Dept 2012]; Wells Fargo Bank Minnesota, N.A v Perez, 41 A.D.3d 590 [2d Dept 2007]).

The branch of Plaintiff s motion to amend the caption to remove Defendants Angela Pereira and Juciele Amaral is granted without opposition (see generally CPLR §3025; JP Morgan Chase Bank, N.A. v Laszio, 169 A.D.3d 885, 887 [2d Dept 2019]).

Accordingly, it is

ORDERED that the motion for summary judgment against the Defendant Alaric Enterprises, LLC and a default judgment against the non-appearing parties is granted; and it is

ORDERED that Hayley Greenberg 521 5^th Avenue Suite 1700 New York NY 10175 (212) 593-6111 is hereby appointed Referee in accordance with RPAPL § 1321 to compute the amount due to Plaintiff and to examine whether the property identified in the notice of pendency can be sold in parcels; and it is further

ORDERED that in the discretion of the Referee, a hearing may be held, and testimony taken; and it is further

ORDERED that by accepting this appointment the Referee certifies that he is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to §36.2 (c) ("Disqualifications from appointment"), and §36.2 (d) ("Limitations on appointments based upon compensation"), and, if the Referee is disqualified from receiving an appointment pursuant to the provisions of that Rule, the Referee shall immediately notify the Appointing Judge; and it is further

ORDERED that, pursuant to CPLR 8003(a), and in the discretion of the court, a fee of $350 shall be paid to the Referee for the computation of the amount due and upon the filing of his report and the Referee shall not request or accept additional compensation for the computation unless it has been fixed by the court in accordance with CPLR 8003(b); and it is further

ORDERED that the Referee is prohibited from accepting or retaining any funds for himself or paying funds to himself without compliance with Part 36 of the Rules of the Chief Administrative Judge; and it is further

ORDERED that if the Referee holds a hearing, the Referee may seek additional compensation at the Referee's usual and customary hourly rate; and it is further

ORDERED that plaintiff shall forward all necessary documents to the Referee and to defendants who have appeared in this case within 30 days of the date of this order and shall promptly respond to every inquiry made by the referee (promptly means within two business days); and it is further

ORDERED that if defendant(s) have objections, they must submit them to the referee within 14 days of the mailing of plaintiff s submissions; and include these objections to the Court if opposing the motion for a judgment of foreclosure and sale; and it is further

ORDERED the failure by defendants to submit objections to the referee shall be deemed a waiver of objections before the Court on an application for a judgment of foreclosure and sale; and it is further

ORDERED that plaintiff must bring a motion for a judgment of foreclosure and sale within 30 days of receipt of the referee's report; and it is further

ORDERED that if plaintiff fails to meet these deadlines, then the Court may sua sponte vacate this order and direct plaintiff to move again for an order of reference and the Court may sua sponte toll interest depending on whether the delays are due to plaintiffs failure to move this litigation forward; and it further

ORDERED, the caption be amended to reflect that the names of defendants "JOHN DOE No. 1" through "JOHN DOE No. 100" be severed and stricken from the caption herein and that the action be discontinued as to them, all of the foregoing without prejudice to any of the proceedings heretofore had herein or to be had herein, and the caption hereinafter to read as follows:

NYCTL 2019-A TRUST, and THE BANK OF NEW YORK MELLON as Collateral Agent and Custodian for the NYCTL 2019-A Trust, Plaintiff, -against-

ALARIC ENTERPRISES, LLC, NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE and BOARD OF MANAGERS OF THE COPLEY CONDOMINIUM Defendants

Index No. 158737/2020

and it is further

ORDERED that counsel for plaintiff shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the parties being removed pursuant hereto; and it is further

ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address (www.nycourts.gov/supctmanh)]; and it is further

ORDERED that Plaintiff shall serve a copy of this Order with notice of entry on all parties and persons entitled to notice, including the Referee appointed herein.

All parties are to appear for a virtual conference via Microsoft Teams on October 6, 2022, at 10:40 am. If a motion for judgment of foreclosure and sale has been filed Plaintiff may contact the Part Clerk Tamika Wright (tswright@nvcourt.gov) in writing to request that the conference be cancelled. If a motion has not been made, then a conference is required to explore the reasons for the delay.