Opinion
602186/08.
Decided on December 2, 2009.
The genesis of this action is a much-publicized crane collapse accident which occurred on March 15, 2008 at 303 East 51st Street, New York, New York (1344 Block, Lots 103, 104, and 105). Two workers were killed as a result of the accident. Plaintiff, Arbor Realty Funding, LLC, commenced this action to foreclose on certain mortgages that encumber the property, against, inter alia, mechanic's lienholders that performed work on or relating to the premises after the crane collapse. Non-party Lexington Insurance Company (Lexington) issued a builder's risk insurance policy, naming East 51st Street Development, LLC/Kennelly Development Company, LLC, the owner, as the named insured.
Plaintiff now moves, by order to show cause, for a declaration that all insurance proceeds under the policy, and any and all advances and/or installments of such proceeds, be paid to plaintiff as sole payee to the extent of its interest in the premises, pursuant to a mortgage endorsement in which it is named as sole mortgagee.
Defendants TMJ Plumbing and Heating Corp. (TMJ) and R J Construction Corp. (R J) cross-move for a declaration that any insurance proceeds payable because of destruction of the real property in issue are held as trust funds under article 3-A of the Lien Law and for the beneficiary interests of unpaid subcontractors, including TMJ and R J. Defendants ThyssenKrupp Safway, Inc. (ThyssenKrupp Safway), Empire Transit Mix Inc. (Empire), and Garrett Gourlay Architect PLLC (GGA) join in the cross motion by TMJ and R J.
BACKGROUND
According to the complaint, plaintiff seeks to foreclose on four mortgages which encumber the property: a project loan mortgage; a building loan mortgage; a second acquisition loan mortgage; and an original acquisition loan mortgage. Plaintiff seeks a principal balance in excess of seventy million dollars ($70,373,657.00), in addition to accrued and unpaid interest and all other charges due under the mortgages.
Cross-movants all filed mechanic's liens against the subject property after the crane collapse. TMJ filed a mechanic's lien against the property for $810,000.00 on April 10, 2008. R J has a mechanic's lien against the property in the amount of $131,753.00, which was filed with the County Clerk on October 20, 2008. Empire is the holder of a mechanic's lien in the amount of $585,324.10, which was filed with the County Clerk on May 8, 2008. ThyssenKrupp Safway filed a mechanic's lien against the property in the amount of $453,456.16 on May 7, 2008. GGA has a mechanic's lien in the amount of $137,059.83, filed on June 23, 2008.
Lexington issued a builder's risk insurance policy (policy number 7478361) naming East 51st Street Development, LLC/Kennelly Development Company, LLC as the named insured. The policy provided coverage for "all risks of direct physical loss of or damage to [the] insured property" (Hannigan Affirm., Exh. A, Part A-Coverage, § 1), and was effective from February 1, 2007 through December 1, 2008 ( id., Declarations page). The policy excluded claims for:
"Consequential loss, damage or expense of any kind or description including but not limited to loss of market or delay, liquidated damages, performance penalties, penalties for non-completion, delay in completion, or non compliance with contract conditions, whether caused by a peril insured or otherwise, however the foregoing shall not exclude Delay In Completion Coverage when it is endorsed to this policy"
( id., Part B-Exclusions and Limitations, § 1 [A]).
Upon plaintiff's application, the court appointed a receiver (Helene E. Blank, Esq.) to "receive and collect from the tenants or occupants, if any, . . . all of the rents and/or use and occupancy payments thereof now due and unpaid or hereafter to become due during the pendency of this action, and to collect all other rents, issues and profits and other benefits of or from the mortgaged premises" ( id., Exh. D, at 3-4).
Plaintiff contends that it was named as sole mortgagee under the policy, pursuant to a mortgage endorsement dated March 17, 2008, which provides that "[l]oss or damage to the insured property of the INSURED PROJECT* under the policy will be payable to the mortgagee (or trustee), as named on an Evidence of Insurance or as endorsed to the policy, as their interest may appear" ( id., Exh. B [emphasis in original]). According to plaintiff, this clause creates a separate and independent contractual right to receive insurance proceeds prior to any other party. Plaintiff submits a letter dated June 27, 2008, from plaintiff's counsel to Lexington, confirming a telephone conversation in which Lexington purportedly agreed that any loss or damage covered by the policy would be paid to plaintiff in its capacity as mortgagee, not to the insured or any other party ( id., Exh. C). Plaintiff further maintains that the receiver has no right to be a payee, either solely or jointly with plaintiff, on any insurance proceeds checks. Pursuant to the court's order appointing the receiver, the receiver was only authorized to receive "rents, issues and profits now due and unpaid, or which may become due during the pendency of this action, issuing out of the mortgaged premises herein" ( id., Exh. D, at 3). The insurance proceeds are contractual amounts due to plaintiff under the policy, but not "rents, issues and profits . . . issuing out of the mortgaged premises" ( id.).
In opposing the motion, TMJ and R J argue the following: (1) plaintiff's complaint seeks only foreclosure and does not in any manner address insurance proceeds; (2) plaintiff seeks an order as to payment of insurance proceeds by Lexington, although Lexington is not a party to this action; (3) the policy does not name plaintiff as a named insured, assignee or even a mortgagee; and (4) plaintiff cannot rely upon the mortgage endorsement dated March 17, 2008, since the accident occurred on March 15, 2008. TMJ and R J further point out, in support of their cross motion, that the building loan agreement is subject to Lien Law § 22. Because the owner was the only named insured on the date of the accident, all insurance proceeds received by the owner become trust assets pursuant to Lien Law article 3-A. Therefore, the owner is obligated to TMJ and R J because they filed mechanic's liens against the property.
The receiver, Helene E. Blank, Esq., submits an affirmation in response to the cross motion, in which she states that, after the crane collapse, the New York City Department of Buildings issued an emergency declaration requiring that certain work be performed at the premises (Albin Affirm., ¶ 4). She notes that the insurance proceeds that are being advanced by Lexington, a sum of approximately $200,000, should be paid to the contractors that performed emergency repairs at the premises ( id., ¶¶ 5-7).
In response to the cross motions, plaintiff contends that Lexington has always treated plaintiff as a loss payee under the policy. Plaintiff states that, in letters dated July 24, 2008 and August 27, 2008, Lexington acknowledged that plaintiff was a mortgagee in accordance with the mortgage endorsement to the policy (Hannigan Affirm. in Opp., Exhs. A, B). Additionally, plaintiff represents that Lexington made the first advance payment in the amount of $100,000 to "East 51st Street Development Company and [plaintiff] its Successors and/or Assigns ATIMA" ( id., Exh. C, at 2). According to plaintiff, Lexington's insurance adjuster stated that it intended to make the advance check payable to Helene Blank as receiver for the owner, and plaintiff as mortgagee ( id., Exh. D). Relying upon Weinreb v M S Bagels ( 44 Misc 2d 537 [Sup Ct, Kings County 1964], affd 23 AD2d 884 [2d Dept 1965]), plaintiff argues that the date of the mortgage endorsement is not determinative as to whether it is a loss payee. In addition, plaintiff contends that, since none of the mechanic's lienholder defendants are parties to or are third-party beneficiaries of the Lexington policy, they lack standing to challenge plaintiff's status as a loss payee.
Plaintiff further contends that, even if it is not considered a loss payee, it has an equitable lien on the insurance proceeds to the extent of its interest in the mortgaged property. According to plaintiff, it is the law of the case that its mortgage liens have priority over the subsequently-noticed mechanic's liens, as established by the court's decision and order dated February 2, 2009. Consequently, plaintiff's equitable lien on the insurance proceeds is superior to any purported claim to those proceeds by the mechanic's lienholders.
On November 18, 2009, the court received a letter from Philip C. Silverberg, Esq., counsel for Lexington, in which he stated that Lexington did not take a position with respect to how the insurance funds were shared among the parties to this action.
DISCUSSION
The first issue to be decided is whether plaintiff, as a lender/mortgagee, is entitled to insurance proceeds pursuant to the policy.
Where a mortgagor covenants to keep the mortgaged property insured for the benefit of the mortgagee, and breaches that covenant, the mortgagee has an equitable lien on the proceeds of the insurance carried by the mortgagor, to the extent of his or her interest in the property destroyed, even though the policy contains no mortgagee clause and is payable to the mortgagor ( see Rosario-Paolo, Inc. v C M Pizza Rest., 84 NY2d 379, 383, rearg dismissed 85 NY2d 925; Cromwell v Brooklyn Fire Ins. Co., 44 NY 42, 47 [1870]; Andrello v Nationwide Mut. Fire Ins. Co., 29 AD2d 489, 493 [4th Dept 1968]; Nor-Shire Assoc. v Commercial Union Ins. Co., 25 AD2d 868 [2d Dept 1966]; Weinreb, 44 Misc 2d at 540; 4 Couch on Insurance 3d § 65:83).
"A standard mortgagee clause in an insurance policy gives rise to a separate insurance of the mortgagee's interest, independent of the mortgagor's right of recovery" ( Reed v Federal Ins. Co., 71 NY2d 581, 589 [1988]). This clause requires an insurer to first make payment to the mortgagee to the extent of its interest, and then pay the balance of the loss, if any, to the mortgagor ( Grady v Utica Mut. Ins. Co., 69 AD2d 668, 673 [2d Dept 1979]).
An equitable lien is "a right . . . to have a fund, specific property, or its proceeds, applied in whole or in part to the payment of a particular debt'" ( Bank of India v Weg Myers, 257 AD2d 183, 192 [1st Dept 1999], quoting 75 NY Jur 2d, Liens, § 13). The equitable lien in favor of a mortgagee is based upon the theory that equity regards that as done which should have been done (4 Couch on Insurance 3d § 65:83; see generally Simonds v Simonds, 45 NY2d 233, 240).
In Weinreb ( 44 Misc 2d at 538, supra), a chattel mortgage contained the usual clause requiring the mortgagor to keep the chattels insured against loss and damage by fire for the benefit of the mortgagee. However, the mortgagor obtained a policy which did not name the mortgagee as an insured ( id.). A fire occurred on the premises and the chattels were destroyed or damaged ( id.). On the following day, the mortgagee obtained an endorsement making the loss payable to it as first mortgagee ( id.). Before payments were made under the insurance policy, several judgment creditors of the mortgagor served subpoenas on the insurer, claiming that they had obtained liens to the extent of their judgments on the insurance proceeds superior to the claim of the mortgagee ( id. at 539).
There, the court held that the mortgagee was entitled to the insurance proceeds under the policy, even though the policy did not contain a mortgagee clause:
"The mortgage contained a clause requiring the mortgagor to carry fire insurance for the benefit of the mortgagee. In fact insurance was carried but the usual mortgage clause was not included in the policy. It would not have cost anything additional to include such clause and I deem its absence an inadvertent oversight. The owner having been obligated to have a provision inserted in the policy in favor of the mortgagee, equity may treat the policy as having contained such a provision. . . .
Had there been no provision in the mortgage for insurance in favor of the mortgagee, the result might well be different since the owner could not make a preferential assignment of the proceeds of the fire loss to one creditor. Of course, as between the owner and the mortgagee under a mortgage in which [the mortgagor] covenants to keep the property insured for the benefit of the mortgagee the latter has an equitable lien upon the proceeds of insurance even though the policy contains no mortgage clause"
( id. at 539-540 [citations omitted]).
In Andrello ( 29 AD2d at 490, supra), a building owner obtained a mortgage to secure payment of a loan from a lender. An insurer issued a fire insurance policy to the plaintiff insuring the buildings on the mortgaged property against loss or damage by fire ( id. at 491). The policy did not contain a provision making the loss payable, in whole or in part, to the lender ( id.). Thereafter, a fire destroyed a building on the mortgaged premises ( id.). The day after the fire, an endorsement was added to the policy making the loss payable to the lender ( id.). On appeal, the Court stated that:
"Following the fire [the lender] had an equitable lien upon the moneys due under the policy even in the absence therein of a provision making loss payable to [it]. Inasmuch as Andrello (the owner and mortgagor) had obligated himself to provide [the lender] with such insurance protection, equity will treat the policy as having contained an appropriate mortgagee clause. It would normally follow that [the lender] would be entitled to receive [its] appropriate share of the proceeds of the policy in payment of the mortgage debt"
( id. at 493 [citations omitted]). The Court concluded that the equitable lien of the mortgages on the proceeds of insurance took priority over federal tax liens which were imperfectly filed prior to the fire ( id. at 495).
Here, the building loan agreement between plaintiff and the owner provides, in relevant part, as follows:
"5.02 Required Insurance
(b)Policies of insurance shall comply with the following requirements:
***
(5)Builder's risk insurance for the Renovations, with limits sufficient to cover one hundred percent (100%) of the full Replacement Cost of the covered property including, without limitation, the Renovations, and without any co-insurance requirements or penalties. Such insurance shall be on the broadest available all-risk policy form (ALS 67 or equivalent reasonably acceptable to Lender) (completed value form), including earthquake and flood (where such hazards are required to be insured by this Section 5.02), and shall insure the interests of Borrower, Lender, and the Contractors, Subcontractors and sub-subcontractors of any tier, as their interests may appear.
***
5.03 Terms of Insurance Policies
(a)Lender's interest must be clearly stated by endorsement in the insurance policies described in Section 5.02 as follows:
(1)The policies of insurance referenced in Subsections (b)(1), (b)(3), (b)(4), (b)(5) and (b)(7) of Section 5.02 shall identify Lender under the New York Standard Lender Clause (non-contributory) endorsement, or equivalent thereof.
***
(b)All of the policies referred to in Section 5.02 . . . (iii) shall contain an endorsement or agreement by the insurer that any loss shall be payable to Lender in accordance with the terms of the policy notwithstanding any act or negligence of Borrower which might otherwise result in forfeiture of such insurance."
(Hannigan Affirm. in Opp., Exh. E, at 67, 69).
Pursuant to the agreement, the owner was obligated to purchase builder's risk insurance naming plaintiff as a mortgagee under the policy. As in Weinreb and Andrello, even in the absence of a mortgagee clause, plaintiff has an equitable lien on the proceeds of insurance due under the policy to the extent of its interest in the destroyed property. The court must, therefore, determine the priority between plaintiff's equitable lien and the mechanic's liens on the insurance proceeds.
Generally, in the absence of statute, the holder of a lien on insured property (such as a mechanic's lienholder) has no claim to the insurance proceeds paid to the insured in the event of loss of or damage to the property ( McGraw-Edison Credit Corp. v All State Ins. Co., 62 AD2d 872, 877 [2d Dept 1978]). However, pursuant to Lien Law § 4-a,
" [t]he proceeds of any insurance which by the terms of the policy are payable to the owner of real property improved, and actually received or to be received by him because of the destruction or removal by fire or other casualty of an improvement on which lienors have performed labor or services or for which they have furnished materials, shall after the owner has been reimbursed therefrom for premiums paid by him, if any, for such insurance, be subject to liens provided by this act to the same extent and in the same order of priority as the real property would have been had such improvement not been so destroyed or removed."
(emphasis supplied).
It is well established that the lien which is prior in time is prior in right, except where the junior lien is legal and was acquired without notice of a prior equitable lien ( see Kovacs v New York Prop. Ins. Underwriting Assn., 101 Misc 2d 244, 247 [Sup Ct, NY County 1979]). Here, it is the law of the case that plaintiff's mortgage liens have priority over the mechanic's liens filed by defendants ( see Martin v City of Cohoes, 37 NY2d 162, 165, rearg denied 37 NY2d 817 [the law of the case doctrine "is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of coordinate jurisdiction are concerned"]). As noted in the court's decision and order dated February 2, 2009, plaintiff's mortgages were recorded between May and July 2007, and the mechanic's liens at issue were filed between March 20, 2008 and June 26, 2008. Thus, plaintiff's equitable lien on the insurance proceeds is superior to any claim by the mechanic's lienholders. Accordingly, plaintiff is entitled to be named as sole payee of those proceeds, until its interest has been satisfied in the mortgaged property.
Consequently, the issue becomes whether plaintiff's receipt of insurance proceeds would constitute a violation of article 3-A of the Lien Law.
Lien Law article 3-A (Lien Law § 70, et seq.), entitled "Definition and Enforcement of Trusts," creates trust funds for the payment of sums due by reason of the improvement of real property within New York State. "[T]he primary purpose of the Lien Law is to ensure that those who have directly expended labor and materials to improve real property [or a public improvement] at the direction of the owner or a general contractor' receive payment for the work actually performed" ( Canron Corp. v City of New York, 89 NY2d 147, 155, quoting West-Fair Elec. Contrs. v Aetna Cas. Sur. Co., 87 NY2d 148, 157).
Lien Law § 70 (1) states, in pertinent part, that:
"[t]he funds described in this section received by an owner for or in connection with an improvement of real property in this state, . . . or received by a contractor under or in connection with a contract for an improvement of real property, . . . or received by a subcontractor under or in connection with a subcontract made with the contractor for such improvement of real property, . . . and any right of action for any such funds due or earned or to become due or earned, shall constitute assets of a trust for the purposes provided in section seventy-one of this chapter."
Thus, trust assets are (1) enumerated funds received by the trustee, or (2) the trustee's right of action for such funds due or earned or to become due or earned ( id.). A trustee's "right of action" is defined as "any right to receive payment at a future time," "even though it is contingent upon performance or upon some other event" ( id.; see also Matter of RLI Ins. Co., Sur. Div. v New York State Dept. of Labor, 97 NY2d 256, 262 ["trust assets may come into existence before funds are actually due and earned by a contractor"]; Canron Corp. v City of New York, 89 NY2d at 157 [section 70 (1) "extend(s) the right of action as a trust asset to contingent, not fully matured rights to receive payment for work in progress"]). Trust assets include funds received by the trustee and its rights of action for payment thereof as proceeds of any insurance payable because of the destruction of the improvement or its removal by fire or other casualty (Lien Law §§ 70 [f], 70 [6] [c], 70 [7] [c]).
Pursuant to Lien Law § 71 (1), the assets of which an owner is trustee "shall be held and applied for payment of the cost of improvement." "With respect to the trust of which an owner is trustee, trust claims' means claims of contractors, subcontractors, architects, engineers, surveyors, laborers and materialmen arising out of the improvement, for which the owner is obligated, and also means any obligation of the owner incurred in connection with the improvement for a payment or expenditure defined as cost of improvement" (Lien Law § 71 [a]). A trust under article 3-A commences when any trust asset comes into existence, whether or not there is any beneficiary of the trust (Lien Law § 70). A trust of which an owner is trustee continues with respect to every asset of the trust until every trust claim arising at any time during the improvement has been paid or discharged, or until all such assets have been applied for the purposes of the trust ( id.). The use of trust funds for a nontrust purpose constitutes a "diversion of trust assets, whether or not there are trust claims in existence at the time of the transaction, and if the diversion occurs by the voluntary act of the trustee or by his consent such act or consent is a breach of trust" (Lien Law § 72).
Generally, a lender is not a statutory trustee under Lien Law article 3-A ( Caledonia Lbr. Coal Co. v Chili Hgts. Apts., 70 AD2d 766 [4th Dept 1979]). This is because "[n]o one other than an owner, contractor, or subcontractor is designated as a prospective trustee in article 3-A [of the Lien Law]'" ( Matter of ALB Contr. Co. v York-Jersey Mtge. Co., 60 AD2d 989 [4th Dept 1978], quoting Utica Sheet Metal Corp. v Schecter Corp., 47 Misc 2d 290, 292 [Sup Ct, Albany County 1965], mod 25 AD2d 928 [3d Dept 1966]). However, where a lender receives proceeds pursuant to an assignment it held as security for a building loan, and applies those proceeds to repayment of the loan, the lender may be held liable as a statutory trustee under article 3-A ( see Aspro Mech. Contr. v Fleet Bank, 293 AD2d 97, 99 [2d Dept 2002], affd 1 NY3d 324, rearg denied 2 NY3d 760 ["(t)he effect of the assignment () was to entitle the bank to direct payment of the proceeds of the sale, which, absent the assignment, would have been paid to (the owner), and been subject to the trust provisions of Lien Law article 3-A"]).
Here, it appears that there is no violation of article 3-A if plaintiff receives its share of the insurance proceeds. First, plaintiff is not a statutory trustee — plaintiff is not an owner, contractor, or subcontractor. Moreover, plaintiff did not receive the insurance proceeds, and does not have a right of action for the insurance proceeds, pursuant to an assignment from the building owner. Second, any insurance proceeds paid to plaintiff, to the extent of its interest, would not constitute assets of the owner's trust. Indeed, the owner has no future "right of action" with respect to such proceeds, given that they would be applied to satisfy the owner's mortgage debt to plaintiff (Lien Law § 70 ["any right to receive payment at a future time shall be deemed a right of action therefor and an asset of the trust"]; see generally Pecker Iron Works, Inc. v New York Trades Council Assn. of N.Y.C. Health Ctr. Inc. , 22 AD3d 259, 260 [1st Dept 2005], lv denied 6 NY3d 711 [funds which owner withheld as retainage did not constitute assets of a contractor's trust; funds were never due to contractor, and contractor possessed no future right of action with respect to them]). However, at this juncture, the court cannot rule out the possibility that the owner would be due insurance proceeds, after plaintiff's interest has been satisfied. No evidence has been submitted to conclusively demonstrate that the owner has no future right of action with respect to the proceeds. In such case, any insurance proceeds would become trust assets, and the unpaid contractors would be entitled to such funds (Lien Law § 70 [f]).
Nonetheless, neither movant nor cross-movants are entitled to declaratory relief in their favor, since they failed to request declaratory relief in their pleadings, as required by CPLR 3017 (b) ( see McHugh v Weissman, 46 AD3d 369 [1st Dept 2007] [court erred in granting respondent's cross motion seeking a declaration that contested property did not belong to subject trust, given respondent's failure to assert his claim for declaratory relief in some form of pleading]; Matter of Seplow v Century Operating Co., 56 AD2d 515, 516 [1st Dept 1977] [defendant was entitled to no relief on its cross motion seeking declaratory relief without any plea for such relief]). Therefore, the motion is denied without prejudice and the cross motions must be denied.
CONCLUSION
Accordingly, it is hereby
ORDERED that the motion of plaintiff Arbor Realty Funding, LLC for a declaration that all insurance proceeds under the builder's risk insurance policy issued by Lexington Insurance Company to East 51st Street Development, LLC/Kennelly Development Company, LLC, as the named insured covering the mortgaged premises, and any and all advances and/or installments of such proceeds, be paid to plaintiff as sole payee to the extent of its interest in the premises, pursuant to a mortgage endorsement in which it is named as sole mortgagee, is denied without prejudice to be granted upon application of plaintiff seeking leave to amend its Complaint to add a claim for the declaratory relief sought herein; and it is further
ORDERED that the cross motion of defendants TMJ Plumbing and Heating Corp. and R J Construction Corp. for a declaration that any insurance proceeds payable because of the destruction of the real property in issue are trust funds for the purposes of the Lien Law and the beneficiary interests of unpaid subcontractors, including TMJ Plumbing and Heating Corp. and R J Construction Corp., is denied; and it is further
ORDERED that the cross motion of defendant ThyssenKrupp Safway, Inc. is denied; and it is further
ORDERED that the cross motion of defendant Empire Transit Mix Inc. is denied; and it is further
ORDERED that the cross motion of defendant Garrett Gourlay Architect PLLC is denied, and it is further
ORDERED that counsel for plaintiff serve a copy of this order with notice of entry upon all parties within 20 days of entry.
This constitutes the decision and order of the Court.
In accordance with the accompanying Memorandum Decision, it is hereby
ORDERED that the motion of plaintiff Arbor Realty Funding, LLC for a declaration that all insurance proceeds under the builder's risk insurance policy issued by Lexington Insurance Company to East 51st Street Development, LLC/Kennelly Development Company, LLC, as the named insured covering the mortgaged premises, and any and all advances and/or installments of such proceeds, be paid to plaintiff as sole payee to the extent of its interest in the premises, pursuant to a mortgage endorsement in which it is named as sole mortgagee, is denied without prejudice to be granted upon application of plaintiff seeking leave to amend its Complaint to add a claim for the declaratory relief sought herein; and it is further
ORDERED that the cross motion of defendants TMJ Plumbing and Heating Corp. and R J Construction Corp. for a declaration that any insurance proceeds payable because of the destruction of the real property in issue are trust funds for the purposes of the Lien Law and the beneficiary interests of unpaid subcontractors, including TMJ Plumbing and Heating Corp. and R J Construction Corp., is denied; and it is further
ORDERED that the cross motion of defendant ThyssenKrupp Safway, Inc. is denied; and it is further
ORDERED that the cross motion of defendant Empire Transit Mix Inc. is denied; and it is further
ORDERED that the cross motion of defendant Garrett Gourlay Architect PLLC is denied, and it is further
ORDERED that counsel for plaintiff serve a copy of this order with notice of entry upon all parties within 20 days of entry.
This constitutes the decision and order of the Court.