The Bd. of Managers of Savoy Condo. v. Shmueli

Full title: THE BOARD OF MANAGERS OF SAVOY CONDOMINIUM, Plaintiff, v. SARIT SHMUELI…

Court: Supreme Court, New York County

Date published: Jun 14, 2022

2022 N.Y. Slip Op. 31917 (N.Y. Sup. Ct. 2022)

Opinion

Index Nos. 155705/2021 003

06-14-2022

THE BOARD OF MANAGERS OF SAVOY CONDOMINIUM, Plaintiff, v. SARIT SHMUELI, CITY OF NEW YORK, PEOPLE OF THE STATE OF NEW YORK, JOHN DOE, JANE DOE, Defendant.

HON. FRANCIS KAHN, III JUSTICE

Unpublished Opinion

DECISION + ORDER ON MOTION

HON. FRANCIS KAHN, III JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 003) 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 149, 150, 151, 152, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER .

Upon the foregoing documents, the motion and cross-motion are determined as follows:

This is an action to foreclose on a lien for unpaid common charges on a residential condominium unit located at 200 East 61^st Street, Unit 32F, New York, New York. Defendant Sarit Shmeuli ("Shmeuli"), the unit owner, served a pro se answer containing counterclaims and crossclaims. By decision and order dated October 26, 2021, the counterclaims and crossclaims were dismissed.

Now, Plaintiff moves pursuant to CPLR §3212 for summary judgment against Shmeuli, dismissing any affirmative defenses, for the appointment of a referee to compute, and for summary judgment on its entitlement to legal fees. Defendant Shmeuli opposes the motion and cross-moves for the following relief, which Plaintiff opposes:

(i) The plaintiffs summary judgment should be denied in its entirety, (ii) This case should go to trial, (iii) The Appellate Division First Department should be involved in this case, (iv) Sanction against law firm SMITH &KRANTZ and their removal from this case, (v) Removal of SMITH &KRANTZ from any representation of Savoy Condominium, (vi) The common charges payment should be deposited into escrow account until all the thefts will be stopped and all the stolen money from the Savoy unit owners will be restored, (vii) The plaintiff should clean up the monthly common charges bill and remove all the 200+ fake charges, and such other and further relief as may be just and proper.

With respect to an action foreclose a lien for common charges, Real Property Law §339-aa provides that such claims "may be foreclosed by suit authorized by and brought in the name of the board of managers, acting on behalf of the unit owners, in like manner as a mortgage of real property" (see Board of Mgrs. of the Parkchester N. Condominium v Alaska Seaboard Partners Ltd. Partnership, 37 A.D.3d 332 [1^st Dept 2007]). To foreclose on a lien for common charges, Plaintiff must submit proof of its "authority to collect common charges from the owners of units and, in the event of nonpayment, to add late fees, interest, attorneys' fees and other costs of collection to the assessment" (Board of Mgrs. of W. Amherst Off. Park Condominium v RMFSG, LLC, 153 A.D.3d 1611 [4^th Dept 2017]). In addition, Plaintiff must demonstrate the manner in which the amounts were calculated (see Board of Mgrs. of Natl. Plaza Condominium I v. Astoria Plaza, LLC, 40 A.D.3d 564 [2d Dept 2007]). Proof supporting a prima facie case on a motion for summary judgment must be in admissible form (see CPLR §3212[b]; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 A.D.3d 780 [1^st Dept 2019]).

In support of the motion, Plaintiff submitted an affidavit from Salvatore Catinella ("Catinella"), the Vice-President of Maxwell-Kates, Inc., Plaintiff s managing agent. Catinella's affidavit and annexed documents established Plaintiffs right to collect common charges, late charges and attorney's fees. Further, the copy of the ledger for Shmueli's unit demonstrated how the amounts were calculated. Plaintiff has, therefore, has demonstrated its entitlement to a default judgment against Shmueli and the other Defendants.

Defendant Shmueli's opposition is a hodge-podge of arguments most of which are either irrelevant or incomprehensible. Those urgings that are discernable fail to defeat summary judgment. Shmueli's claim the amount due is incorrect is not a defense to summary judgment (see 1855 E. Tremont Corp, v Collado Holdings LLC, 102 A.D.3d 567 [1^st Dept 2013], but may be raised before the referee appointed to compute (see Heywood Condominium v Wozencraft, 148 A.D.3d 38, 46 [1^st Dept 2017]). Further, her assertion Plaintiff acted selectively in enforcing its common charges lien against her is unavailing as such a claim does not lie against a private actor (see Silver v Murray House Owners Corp., 126 A.D.3d 655, 656 [1^st Dept 2015]). To the extent Shmueli may be arguing Plaintiff breached a fiduciary duty owed to her, "seeking to collect monies due to the condominium or in allegedly being unwilling to settle its claims against her" does not constitute such a breach (see Board of Mgrs. of the Park Ave. Ct. Condominium v Sandler, 48 Misc.3d 1230[A][Sup Ct NY Cty 2015]). Shmueli's appeals for equity and sympathy are ineffective as application of the former in foreclosure proceedings is rare and the latter cannot undermine the stability of contractual relations (see L &L Assoc. Holding Corp, v Seventh Day Church of God of the Apostolic Faith, 188 A.D.3d 1180 [2d Dept 2020]).

The relief requested by Shmueli's in her cross-motion is also predominantly unintelligible. The first two branches fail based upon the Court's findings supra. The sixth and seventh demands are denied as they seek relief as to all unit owners, but this litigation only concerns Shmueli's unit. The request thai the Appellate Division, First Department "be involved in this case" is without merit. To involve the Appellate Division in this matter, Shmueli may file an appeal of any of this Court's orders. The branches of the cross-motion requesting "removal" of Plaintiff s counsel and for sanctions against same are denied. The claim of conflict of interest is inapplicable as there is no allegation Plaintiffs counsel ever represented Shmueli (see HSBC Bank USA, N.A. v Santos, 185 A.D.3d 475 [1^st Dept 2020]). The claims of misconduct in the litigation are based on nothing more than self-serving allegations and it appears disqualification is being sought for strategic purposes rather than protection of the integrity of . the profession (see S&S Hotel Ventures Ltd. Partnership v. 777 S. H. Corp., 69 N.Y.2d 437 [1987]).

The branch of Plaintiff s motion to dismiss Shmueli's affirmative defenses is denied as unnecessary as no affirmative defenses were pled in accordance with the requisites of the Civil Practice Law and Rules (see CPLR §§3018[b], 3013 and 3014).

Accordingly, it is

ORDERED that Plaintiffs motion for a summary judgment, including its entitlement to legal fees¹, against Sarit Shmueli is granted; and it is further

1 The amount of same will be determining and set by the Court in any judgment of foreclosure and sale issued herein.

ORDERED that the cross-motion is denied in its entirety; and it is

ORDERED that Bruce Lederman Esq., 7473rd Avenue Floor 23, New York, NY -- (917) 612-9298 is hereby appointed Referee in accordance with RPAPL § 1321 to compute the amount due to Plaintiff and to examine whether the tax parcel 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 they are 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 plaintiffs 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 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 September 28, 2022 at 10:00 a.m. If a motion for judgment of foreclosure and sale has been filed Plaintiff may contact the Par Clerk Tamika Wright (tswright@nycourt.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.