Opinion
112549/2009
03-13-2018
BENJAMIN SCOTT CORP., Plaintiff, v. Bridget LYDIA, Kristine Lydia, and Mark Lydia, Defendants.
Joshua Price, Esq., The Price Law Firm LLC, 1115 Broadway, Suite 1053 New York, NY 10010, (212) 675–1125, Attorneys for Plaintiff Jay Berg, Esq., Cornicello, Tendler & Baumel–Cornicello, LLP, Two Wall Street, 20th Fl., New York, NY 10005, (212) 994–0260, Attorneys for Defendants
Joshua Price, Esq., The Price Law Firm LLC, 1115 Broadway, Suite 1053 New York, NY 10010, (212) 675–1125, Attorneys for Plaintiff
Jay Berg, Esq., Cornicello, Tendler & Baumel–Cornicello, LLP, Two Wall Street, 20th Fl., New York, NY 10005, (212) 994–0260, Attorneys for Defendants
Kathryn E. Freed, J.
In this declaratory judgment action, defendants Bridget Lydia, Kristine Lydia, and Mark Lydia (collectively "the Lydias" or "defendants") move 1) to restore this action to this Court's active calendar; 2) to substitute 175 West 107th LLC as plaintiff in place of plaintiff Benjamin Scott Corp. ("BSC"); 3) granting defendants summary judgment dismissing the amended complaint; 4) granting the Lydias summary judgment on their counterclaim for unlawful eviction in the amount of $48,672.95, plus treble damages; and 5) for such other relief as this Court deems just and proper.
FACTUAL AND PROCEDURAL BACKGROUND:
This action, commenced nine years ago, has a long factual and procedural history. It arises from a summary holdover proceeding commenced by BSC against the Lydias in the Civil Court of the City of New York, New York County in 2006 ("the Civil Court proceeding"). In the Civil Court proceeding, styled Benjamin Scott Corp., Petitioner/Landlord v. Bridget Lydia, Kristine Lydia, and Mark Lydia , Civil Court, New York County Index Number 089646/06, BSC alleged that it was entitled to possession of the Lydias' apartment at 175 West 107th Street, Apt. 4 ("the premises" or "the apartment"), in Manhattan since they violated their rent-controlled tenancy by performing alterations to the apartment without BSC's approval and then failed to cure the violations. Ex. D. The Lydias joined issue in the Civil Court proceeding by service of their verified answer on or about October 16, 2006. Ex. E.
Unless otherwise noted, all references are to the exhibits submitted in support of the affirmation of Jay Berg, Esq. submitted in support of the motion.
--------
In a decision in the Civil Court proceeding dated March 1, 2007, Judge Gerald Lebovits held, inter alia, that BSC, by demonstrating that the Lydias made alterations to floors, closets, a bathroom door, and kitchen cabinets without its consent, established that the Lydias violated substantial obligations of their rent-controlled tenancy. Ex. F. Although Judge Lebovits ruled that BSC was entitled to judgment against the Lydias and that a "[w]arrant [was] to issue forthwith," he stayed execution of the judgment for 10 days to allow the Lydias to cure. Ex. F.
The Lydias thereafter moved, by order to show cause, to stay the eviction on the ground that they had cured their default. Ex. G. The stay was granted by Judge Lebovits on July 24, 2007. Ex. G. Despite the stay, the Lydias were evicted from their apartment on July 26, 2007 (Exs. H and I) and BSC began to demolish the unit. On or about July 26, 2007, the Lydias moved, by order to show cause, to be restored to immediate possession of their apartment, as well as for treble damages pursuant to Real Property Actions and Proceedings Law ("RPAPL") 853. Ex. H. Judge Lebovits denied the motion to restore the Lydias to possession reasoning that, although respondents cured the alterations to their floors, closets, and bathroom door, they replaced only two of the five sets of kitchen cabinets they removed. Ex. I. Judge Lebovits acknowledged in his decision that the marshal executed a warrant of eviction on July 26, 2007 "even though [the] court had signed an order to show cause on July 24, 2007, staying execution of the warrant for [the Lydias] to prove on the return date of August 1, 2007, that they had complied [with the court's order directing that they cure their improper alterations]." Ex. I.
The Lydias appealed from the order denying their motion to be restored to possession. The Appellate Term, First Department stayed BSC from re-letting the apartment until October 11, 2007. Ex. J. On October 17, 2007, BSC and the Lydias entered into a stipulation of settlement pursuant to which the Lydias agreed to post an undertaking in the amount of $20,000 pending the outcome of the appeal. Ex. K. By order entered April 9, 2009, the Appellate Term, First Department reversed Judge Lebovits' order dated July 27, 2007. Ex. M. The Appellate Term determined that, although the evidence supported the Civil Court's finding that the Lydias breached a substantial obligation of their tenancy by making alterations without BSC's consent, "the record demonstrate[d] that [the Lydias] substantially complied with the [Civil Court's] post-judgment cure order." Ex. M. The Appellate Term further stated that, although the Lydias may not have removed three new kitchen cabinets, "such violation was de minimis in the circumstances of this case" (citations omitted) and it remanded the case to Civil Court so that it could fashion an "appropriate remedy." Ex. M.
On or about April 23, 2009, the Lydias moved in Civil Court for an order, inter alia, restoring them to possession and for damages, including treble damages and attorneys' fees, arising from their wrongful eviction. Ex. N. At or about the same time, BSC retained new counsel, who commenced the captioned action. In its amended complaint, dated October 7, 2009, BSC alleged: 1) that it was entitled to a declaratory judgment that the Lydias were not wrongfully evicted; 2) that it was entitled to a higher rent for the apartment since it performed a gut renovation of the same; and 3) that the apartment should be deregulated. Ex. A.
BSC then moved, by order to show cause, to stay the Civil Court action or, in the alternative, to consolidate it with the captioned action. Ex. O. By order entered September 9, 2009, this Court (Stallman, J.) denied the motion. Ex. P.
In October 2009, a hearing began in Civil Court in connection with the Lydias' motion seeking to be restored to possession. By stipulation dated October 6, 2009, BSC agreed to restore the Lydias to possession of the apartment as of the following day. Ex. Q. All claims by BSC for higher rent, rent regulatory status and all other rent issues were severed without prejudice. Ex. Q. Additionally, the Lydias' claims for monetary damages, including wrongful eviction, treble damages and legal fees, were severed without prejudice as well. Ex. Q.
On or about November 3, 2009, the Lydias joined issue in the captioned action. Ex. B. The Lydias asserted as counterclaims: inter alia, that they were entitled to compensation for loss of their property resulting from the wrongful eviction; that they were entitled to collect expenses for having to rent another apartment; and that, since they were wrongfully evicted from their apartment, they were entitled to treble damages. Ex. B.
In December 2009, BSC moved, by order to show cause, to refer the issue of the rent regulatory status and legal rent for the apartment to the New York State Division of Housing and Community Renewal ("DHCR") for determination. Ex. R. On December 18, 2009, the parties stipulated to stay the captioned action, including issues of monetary and damages claims, while DHCR determined the issues of legal rent and rent regulatory status. Ex. T. By order dated December 18, 2009, this Court stayed the captioned action pending a determination by DHCR regarding the issues of rent control, rent regulatory status, and legally recoverable rent, as well as any Article 78 proceedings or PARs. Ex. S.
In an order dated April 7, 2011, DHCR determined that the Lydias:
were "evicted from the subject apartment and [were] later restored to possession. Accordingly, the subject tenancy resumed under the same terms and conditions as before the eviction was executed. The tenant has lived in the apartment continuously since before July 1, 1971. As such, the apartment remains subject to rent control and the tenant is afforded all the protections and priv[i]leges affor[d]ed thereunder."
Ex. U.
DHCR also determined that BSC was not entitled to an increase in rent as a result of the renovation of the apartment since it did not obtain tenant's consent to make the alterations. Ex. U. Additionally, DHCR determined that the maximum collectible rent for the apartment was $271.52 per month. Ex. U.
BSC then filed a Petition for Administrative Review ("PAR") with DHCR on May 12, 2011. Ex. V. In an order and opinion denying BSC's PAR, dated February 21, 2014, DHCR determined, inter alia, that BSC's "contention that a lawful eviction was effected on July 26, 2007, is specious [since] the records indicate that the City Marshal executed a warrant of eviction even though the Civil Court had signed an Order to Show Cause on July 24, 2007, staying the execution of said warrant." Ex. V. DHCR found that knowledge of the eviction was imputed to BSC at a proceeding in Civil Court on July 27, 2007. Ex. V. DHCR further noted that, although the Lydias timely posted a $20,000 bond in order to stay BSC from re-letting the apartment while the appeal was pending, BSC proceeded to perform a gut renovation of the apartment without the written consent of the Lydias, as required by section 2202.4 (c) of the RER. Ex. V. DHCR concluded that BSC "chose to perform the renovations despite the fact that there were reasons to exercise caution" and that DHCR's order dated April 11, 2011 was therefore upheld. Ex. V.
On March 15, 2012, while the PAR was pending, BSC sold the premises in question to 175 West 107th LLC ("175 West 107"). Ex. W. After the PAR was decided, 175 West 107 commenced an Article 78 proceeding seeking to challenge the denial of the same. Ex. X. In dismissing the Article 78 petition in its entirety, this Court (Kern, J.) held, inter alia, that it "was rational for DHCR to find that the [a]partment was still subject to [rent control since] there was no evidence that [the Lydias] voluntarily surrendered possession of the [a]partment ..." Ex. X. Rather, it stated that the Lydias' "temporary eviction ...was in error." Ex. X. Justice Kern further held that 175 West 107 was not entitled to a rent increase based on the renovations it performed because they were performed without the Lydias' consent. Ex. X.
By order dated January 19, 2016, the Appellate Division, First Department affirmed Justice Kern's order dismissing the Article 78 petition. Ex. Y. In so holding, the Appellate Division stated, inter alia, that the Lydias were "unlawfully evicted and therefore never lawfully out of possession." Ex. Y. The Appellate Division further stated that while the Lydias were "out of possession and an appeal was pending with successive stays in effect barring [BSC] from reletting the apartment, [BSC] made extensive renovations to the apartment. [BSC] assumed the risk of an adverse appellate ruling and performed those renovations at its peril." Ex. Y. Although 175 West 107 moved to reargue the January 19, 2016 order, the motion was denied. Ex. Z.
The Lydias now move: 1) to restore this action to this Court's active calendar; 2) to substitute 175 West 107 as plaintiff in place of BSC; 3) for summary judgment dismissing the amended complaint; 4) for summary judgment on their counterclaim for unlawful eviction in the amount of $48,672.95, plus treble damages pursuant to RPAPL 853 ; and 5) for such other relief as this Court deems just and proper.
CONTENTIONS OF THE PARTIES :
The Lydias argue that this case must be restored to this Court's calendar and that, upon restoration to the calendar, 175 West 107 should be substituted as plaintiff in place of BSC and that they are entitled to summary judgment dismissing the complaint. They further assert that they are entitled to summary judgment on their counterclaim for wrongful eviction and that the said claim is timely. Further, the Lydias claim that they are entitled to damages of $48,672.95, plus treble damages, on the counterclaim. They maintain that this Court is required to impose treble damages if it finds a violation of RPAPL 853.
In opposition to the motion, BSC asserts that the Lydias are not entitled to summary judgment on their counterclaim because the eviction was not wrongful. They also assert that the Lydias' counterclaim for wrongful eviction is untimely. Further, BSC argues that the damages to which the Lydias claim they are entitled have not been sufficiently established and that the Lydias are not entitled to treble damages, which are to be awarded in the discretion of the court.
In reply, the Lydias argue that the Appellate Division's finding that they were unlawfully evicted is law of the case. They further assert that their counterclaim for wrongful eviction is timely, having first been asserted on July 26, 2007, specifically in connection with their application in the Civil Court proceeding to be restored to immediate possession. Additionally, the Lydias assert that the imposition of treble damages is mandatory pursuant to RPAPL 853.
LEGAL CONCLUSIONS:
Restoration to Calendar
The order of this Court (Stallman, J.) dated December 18, 2009 stayed the captioned action pending a determination by DHCR regarding the issues of rent control, rent regulatory status, and legally recoverable rent. Ex. S. It also stayed this action pending the outcome of any Article 78 proceedings or PARs. Ex. S. Thus, as the Lydias assert, it is evident that Justice Stallman contemplated the restoration of this matter to the calendar once any Article 78 or PAR was completed. Since DHCR denied BSC's PAR, the Appellate Division has affirmed the dismissal of BSC's Article 78 petition, and BSC sets forth no reason why this matter should not be restored to this Court's calendar, the matter is restored.
Substitution of 175 West 107 as Plaintiff
BSC "does not oppose that portion of the [Lydias'] motion which seeks to substitute 175 West 107th LLC, [BSC's] successor-in-interest, as [p]laintiff herein." BSC's Aff. In Opp., at par. 20. As BSC notes, the premises were sold by BSC to 175 West 107 while the PAR was pending. Id., at par. 20; Ex. W. Thus, 175 West 107th LLC is hereby substituted for Benjamin Scott Corp. as plaintiff in this matter and the caption is to be amended to reflect this change.
Summary Judgment Dismissing the Amended Complaint
As noted above, BSC alleged in its amended complaint
1) that it was entitled to a declaratory judgment that the Lydias were not wrongfully evicted; 2) that it was entitled to a higher rent for the apartment since it performed a gut renovation of the same; and 3) that the apartment should be deregulated. Ex. A. However, the Lydias have established that 175 West 107, as successor in interest for BSC, cannot recover on any of these claims, since they have all been decided in the Lydias' favor.
The doctrine of res judicata or "claim preclusion" provides that " ‘as to parties in a litigation a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action.’ " Singleton Management. Inc. v. Compere . 243 AD2d 213, 215 (1st Dept 1998) (citation omitted). Under the transactional approach to res judicata adopted by New York courts, " ‘once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.’ " Marinelli Associates v. Helmsley–Noves Co., Inc. , 265 AD2d 1, 5 (1st Dept 2000) (quoting, O'Brien v. City of Syracuse . 54 NY2d 353, 357 (1981), citing Matter of Reilly v. Reid . 45 NY2d 24, 29–30 ).
The related doctrine of collateral estoppel or "issue preclusion" prevents a party from relitigating an identical issue which has previously been decided against it in a prior action in which it had a fair opportunity to fully litigate the issue. See Allied Chemical v. Niagara Mohawk Power Corp. 72 NY2d 271 (1988), cert denied. 488 U.S. 1005, 109 S. Ct. 785, 102 L.Ed. 2d 777 (1989). The policies underlying the application of collateral estoppel are avoiding relitigation of a decided issue and the possibility of an inconsistent result. D'Arata v. New York Central Mutual Fire Insurance Co. , 76 NY2d 659 (1990).
Greaves v. Memadet Realty Corp. , 2010 NY Slip Op 33423[U], *6–7 (Sup Ct, NY County 2010).
This Court finds that the doctrine of collateral estoppel applies to bar 175 West 107 from denying liability for the Lydias' wrongful eviction. In denying BSC's PAR, DHCR stated, inter alia, that BSC's "contention that a lawful eviction was effected on July 26, 2007, is specious [since] the records indicate that the City Marshal executed a warrant of eviction even though the Civil Court had signed an Order to Show Cause on July 24, 2007, staying the execution of said warrant." Ex. V. Similarly, in the PAR, DHCR determined that BSC's request for rent increase was "unsupported by the record" and that DHCR correctly determined that "the subject apartment remain a rent controlled apartment. Ex. V. 175 West 107 cannot relitigate these adverse findings against BSC on the identical claims asserted by BSC, its predecessor in interest, in the amended complaint. See Gersten v. 56 7th Ave. LLC , 88 AD3d 189, 203 (1st Dept 2011) (ruling of an administrative agency is entitled to res judicata or collateral estoppel effect). Further, 175 West 107's Article 78 petition seeking to vacate the determination of DHCR was denied (Ex. X), and this finding was affirmed by the Appellate Division. Ex. Y. Thus, the Lydias are thus entitled to summary judgment dismissing the amended complaint.
Timeliness of the Lydias' Counterclaim
Contrary to 175 West 107's contention, the Lydias' counterclaim for wrongful eviction, which has a one-year statute of limitations that "begins to run at such time that it is reasonably certain that the tenant has been unequivocally removed with at least the implicit denial of any right to return" ( Gold v. Schuster , 264 AD2d 547, 549 [1st Dept 1999] [citations omitted] ), is not time barred. CPLR 205(b) provides as follows:
(b) Defense or counterclaim. Where the defendant has served an answer and the action is terminated in any manner, and a new action upon the same transaction or occurrence or series of transactions or occurrences is commenced by the plaintiff or his successor in interest, the assertion of any cause of action or defense by the defendant in the new action shall be timely if it was timely asserted in the prior action.
In or about September, 2006, BSC commenced the Civil Court proceeding against The Lydias, alleging that the latter made unauthorized alterations to their apartment. Ex. D. The Lydias' answer, dated October 16, 2006, contained affirmative defenses and a counterclaim (Ex. E), but clearly could not have contained a counterclaim for wrongful eviction since the Lydias were not evicted until July 26, 2007. Ex. H. On the day of the eviction, the Lydias moved, by order to show cause, to be restored to possession. Ex. H. The application also demanded treble damages for wrongful eviction pursuant to RPAPL 853. Ex. H. When the Civil Court proceeding was resolved by stipulation of settlement dated October 6, 2009, the parties agreed, inter alia, that "[a]ll money damage claims, wrongful eviction (alleged) [and] damage claims" "are preserved and severed without prejudice." Ex. Q.
The foregoing facts demonstrate that the Lydias served an answer and asserted a claim for wrongful eviction in the Civil Court proceeding; that the Civil Court proceeding was terminated; and that BSC, as predecessor in interest to 175 West 107, commenced the captioned action, which arises from the same series of transactions as the Civil Court proceeding. Thus, pursuant to CPLR 205(b), the Lydias' counterclaim for wrongful eviction is not time barred.
The Lydias' Motion for Summary Judgment
As discussed above, DHCR determined that the eviction was unlawful (Ex. U) and that finding was affirmed when DHCR denied BSC's PAR. Ex. V. Although 175 West 107 filed an Article 78 petition seeking to vacate the PAR, the petition was dismissed (Ex. X) and the Appellate Division affirmed the dismissal of the petition. Ex. Y. Since the issue of the Lydias' eviction has already been litigated, and it has been determined that their eviction was unlawful, the Lydias are entitled to summary judgment on their counterclaim against 175 West 107 for wrongful eviction.
In opposing the instant motion, 175 West 107 argues, inter alia, that:
The Appellate Term and Appellate Division's decisions do not affirmatively make a finding of fact that a "wrongful eviction" occurred. Indeed, their holding that "the [Lydias were] unlawfully evicted" simply means the eviction should not have occurred, rather than the eviction occurred as a result of a wrongful act by [BSC] " (emphasis provided).
Aff. In Opp., at par. 27.
This contention is disingenuous. A claim pursuant to RPAPL 853 is one for wrongful eviction. PK Rest., LLC v. Lifshutz , 138 AD3d 434 (1st Dept 2016).That statute allows recovery by a tenant who, inter alia, was "disseized, ejected, or put out of real property in a forcible or unlawful manner ..." (emphasis added). Thus, BSC cannot claim that its unlawful eviction of the Lydias does not give rise to a wrongful eviction claim.
Damages
Having determined that 175 West 107 is liable to the Lydias for damages on the Lydias' counterclaim for wrongful eviction, this Court must turn to the issue of damages.
"The measure of compensatory damages for wrongful eviction is the value of the unexpired term of the lease over and above the rent the lessee must pay under its terms together with any actual damages flowing directly from the wrongful eviction" ( Long Is. Airports Limousine Serv. Corp. v. Northwest Airlines, 124 AD2d 711, 712 [1986] ; see also Randall–Smith v. 43rd St. Estates Corp., 17 NY2d 99, 102 [1966] ; Mid Hudson Recreational Ctrs. v. Fallon, 96 AD2d 855 [1983] ), which include lost profits ascertainable with a reasonable degree of certainty (Long Is. Airports Limousine Serv. Corp. v. Northwest Airlines, supra at 712), and loss of personal property (see Rocke v. 1041 Bushwick Ave. Assoc., 169 AD2d 525 [1991] ; Schwartz v. Certified Mgt. Corp., 148 AD2d 387, 388 [1989] ; Sam & Mary Hous. Corp. v. Jo/Sal Mkt. Corp., 100 AD2d 901 [1984], affd 64 NY2d 1107 [1985] ).
N. Main St. Bagel Corp. v. Duncan , 37 AD3d 785, 786 (2d Dept 2007).
In an attempt to establish their claimed total damages of $48,672.95, defendants Bridget Lydia, Kristine Lydia, and Mark Lydia each submit an affidavit in support of their motion. They also submit documentation purporting to establish their damages. Docs. 1–7 to Lydias' motion. However, these documents do not enable this Court to make a precise determination of the Lydias' damages. For example, a typewritten letter annexed to the motion as Exhibit 5 purports to itemize certain damages. However, the letter, which is unsigned and unsworn, also contains cryptic notations which must be explained or substantiated by admissible proof. Thus, this Court hereby refers the matter of damages to a Special Referee for determination of defendants' damages.
Treble Damages
The Lydias argue, without any legal support, that due to their unlawful eviction, this Court is required to award them treble damages against 175 West 107 pursuant to RPAPL 853. Lydias' Memo of Law, at p. 8. This contention is without merit. As the Lydias concede, the Appellate Division, First Department has not determined whether treble damages pursuant to RPAPL 853 are mandatory. Lydias' Memo. of Law, at p. 7. Indeed, the First Department recently stated that:
Although this Court has not decided the issue, the Appellate Division, Second Department, and the Supreme Court, New York County, have determined that the legislature intended to leave the question of whether treble damages should be awarded, pursuant to RPAPL 853, to the discretion of the court" (citations omitted).
Hood v. Koziej , 140 AD3d 563, 565 (1st Dept 2016).
Thus, this Court finds that treble damages pursuant to RPAPL 853 are discretionary. Under the circumstances of this case, this Court declines to award treble damages to the Lydias. Initially, in West Broadway Glass Co. v. Namaskaar of Soho, Inc. , 11 Misc 3d 144(A) (App Term First Dept 2006), the Appellate Term, First Department, held, in a similar factual scenario, that:
[since] landlord's attempt to recover possession, while unlawful, was actuated by concerns over tenant's unauthorized construction at the demised premises, we find that an award of treble damages is unwarranted. (citations omitted).
Additionally, the unlawful eviction of the Lydias occurred while BSC was their landlord. BSC sold the premises to 175 West 107 on March 15, 2012, while BSC's PAR was pending. Ex. W. As noted above, this Court grants that branch of the Lydias motion seeking to substitute 175 West 107 in place of BSC in this action. This Court declines to impose treble damages against 175 West 107, the successor in interest to BSC, since its unlawful acts did not trigger liability pursuant to RPAPL 853.
In light of the foregoing, it is hereby:
ORDERED that this action is hereby restored to this Court's calendar; and it is further
ORDERED that 175 West 107th LLC is hereby substituted for Benjamin Scott Corp. as plaintiff in this action, and the caption of this action will heretofore read as follows:
175 West 107th LLC,
Plaintiff,
v
Bridget Lydia, Kristine Lydia, and
Mark Lydia,
Defendants.
And it is further
ORDERED that, within 20 days of the entry of this order, defendants shall serve a copy of this order with notice of entry upon all parties and upon the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158), and the Clerks are directed to mark the court's records to reflect the substitution of 175 West 107th LLC for Benjamin Scott Corp. as plaintiff in this matter; and it is further,
ORDERED that the branch of defendants' motion seeking summary judgment dismissing the complaint is granted, the complaint is dismissed, and the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that the branch of defendants' motion seeking summary judgment on their counterclaim for wrongful eviction is granted, and the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that an inquest on compensatory damages to be awarded on defendants' counterclaim for wrongful eviction is referred to a Special Referee to hear and determine; and it is further
ORDERED that within 14 days of service of this order with notice of entry, defendants shall file a Note of Issue, pay the appropriate fees, and serve a copy of this order with notice of entry, as well as a completed information sheet, on the Special Referee Clerk at sprefnyef@nycourts.gov, who is directed to place this matter on the calendar of the Special Referee's part for the earliest convenient date and notify all parties of the hearing date; and it is further
ORDERED that the branch of defendants' motion seeking the imposition of treble damages against plaintiff pursuant to RPAPL 853 is denied; and it is further
ORDERED that this constitutes the decision and order of the court.