Opinion
Index No. 151107/2023 Motion Seq. No. 001
01-17-2024
BOARD OF MANAGERS OF TOWERS ON THE PARK CONDOMINIUM, Plaintiff, v. JENNIFER CORNELIA TOOLE, AMERICAN EXPRESS NATIONAL BANK, AND THE FOLLOWING PERSONS OR PARTIES BEING EITHER TENANTS OR OCCUPANTS OF THE LIENED PREMISES OR PERSONS OR PARTIES HAVING OR CLAIMING TO HAVE A RIGHT, TITLE OR INTEREST IN THE LIENED PREMISES HEREIN BEING SUED FICTITIOUSLY BECAUSE THEIR REPRESENTATIVE, NAMES ARE PRESENTLY UNKNOWN TO THE PLAINTIFF, I.E., JOHN DOE AND JANE DOE Defendant.
Unpublished Opinion
PRESENT: HON. FRANCIS A. KAHN, III JUSTICE
DECISION + ORDER ON MOTION
FRANCIS A. KAHN III JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, the motion is determined as follows:
Plaintiff commenced this action to foreclose on a lien for common charges encumbering a condominium unit located at 220 Manhattan Ave., Unit 7R, New York, New York. Defendant Jennifer Cornelia Toole, the unit owner, answered and pled three affirmative defenses. Now, Plaintiff moves for summary judgment against the appearing parties, a default judgment against the non-appearing parties, striking the appearing parties' answer and affirmative defenses, appointing a referee to compute, and amending the caption. Defendant Jennifer Cornelia Toole oppose the motion.
With respect to the cause of action for foreclosure of the lien for common charges, Real Property Law §339-aa provides that such a claim "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 [1st Dept 2007]). In a foreclosure action, a Plaintiff moving for summary judgment, must establish a prima facie case exists to foreclose (see U.S. Bank, N.A., v James, 180 A.D.3d 594 [1st Dept 2020]; Bank of NY v Knowles, 151 A.D.3d 596 [1st Dept 2017]) with proof in evidentiary form (see CPLR §3212[b]; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 A.D.3d 780 [1st Dept 2019]).
In an action to foreclose on a common charge lien, 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 [4th Dept 2017]). In addition, Plaintiff must demonstrate the reliability of or how 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]). Here, Plaintiff demonstrated with the affidavit of Greta Pryor ("Pryor"), the President of Plaintiff, its authority to collect common charges and that its method of calculation was reliable. As such, Plaintiff demonstrated, prima facie, its entitlement to summary judgment on its foreclosure cause of action.
In opposition, Defendant's argument concerning the amount due is not a defense to summary judgment as it can be addressed during the reference (see 1855 E. Tremont Corp. v Collado Holdings LLC, 102 A.D.3d 567 [1st Dept 2013]). The occurrence of the Covid-19 pandemic is not an excuse for non-payment of contractual obligations (see e.g. 558 Seventh Ave. Corp, v Times Sq. Photo, 194 A.D.3d 561 [1st Dept 2021]). Also, to the extent Defendant cites these economic forces as an appeal for equity and sympathy, 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]).
As to the branch of the motion to dismiss Defendants' affirmative defenses, as pled, all the affirmative defenses are entirely conclusory and unsupported by any facts in the answer. As such, these affirmative defenses are nothing more than unsubstantiated legal conclusions which are insufficiently pled as a matter of law (see Board of Mgrs. of Ruppert Yorkville Towers Condominium v Hayden, 169 A.D.3d 569 [1st Dept 2019]; see also Bosco Credit V Trust Series 2012-1 v. Johnson, 177 A.D.3d 561 [1st Dept 2020]; 170 W. Vil. Assoc, v. G & E Realty, Inc., 56 A.D.3d 372 [1st Dept 2008]; see also Becher v Feller, 64 A.D.3d 672 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V & M Opt., Inc., 51 A.D.3d 619 [2d Dept 2008]). Further, to the extent that specific legal arguments were not proffered in support of any affirmative defense, those defenses were abandoned (see U.S. Bank N.A. v Gonzalez, 172 A.D.3d 1273, 1275 [2d Dept 2019]; Flagstar Bank v Bellafiore, 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 for a default judgment against the non-appearing parties is granted (see CPLR §3215; SRMOF II 2012-1 Trust v Tella, 139 A.D.3d 599, 600 [1st Dept 2016]).
The branch of Plaintiff s motion to amend the caption is granted (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 Plaintiff s motion for a summary judgment against the appearing Defendants is granted; and it is further
ORDERED that the branches of the motion for a default judgment against the non-appearing parties is granted; and it is further
ORDERED that Allison Furman, Esq., 260 Madison Avenue, 15th Floor, New York, New York 10016, 212-684-9400 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 May 15, 2024, at 10:20 a.m. If a motion for judgment of foreclosure and sale has been filed Plaintiff may contact the Part 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.