Opinion
601966/16
02-04-2021
CITIBANK, NA f/k/a OneWest Bank, NA, Plaintiff, v. Florence CARMAN, Secretary of Housing and Urban Development, and Judith A. Pascal, Suffolk County Clerk, Defendants.
ROBERTSON ANSCHUTZ et al., Attys. For Plaintiff, 900 Merchants Concourse - Ste. 106, Westbury, NY 11590. PERRY IAN TISCHLER, PC, Attys. For Atlantis Asset, Atty in fact for Claimants, 38-39 Bell Blvd. - Ste. 203, Bayside, NY 11361.
ROBERTSON ANSCHUTZ et al., Attys. For Plaintiff, 900 Merchants Concourse - Ste. 106, Westbury, NY 11590.
PERRY IAN TISCHLER, PC, Attys. For Atlantis Asset, Atty in fact for Claimants, 38-39 Bell Blvd. - Ste. 203, Bayside, NY 11361.
Thomas F. Whelan, J.
Upon the following papers numbered 1 to 3 read on this motion to distribute surplus monies ; Notice of Motion/Order to Show Cause and supporting papers 1 - 3 ; Notice of Cross Motion and supporting papers; Opposing papers; Reply papers; Other; it is,
ORDERED that this unopposed motion (#003) by Atlantis Asset Recovery, LLC, attorney in fact for claimants Matthew Carman, Alan Carman, Daniel Carman and Deborah Schmidt as heirs of defendant Florence Carman, for an order confirming the referee's Report of Sale filed with the Suffolk County Clerk on April 20, 2018, and for an order directing the distribution of surplus monies to the aforementioned, is granted, only to the extent that the referee's report of sale is hereby confirmed and a referee is appointed and directed as noted herein; and it is further
ORDERED that pursuant to RPAPL § 1361, the court hereby appoints Geri Henle, Esq. , with offices at 131 Union Avenue, Riverhead NY 11901, (631) 369-7200 , as referee. Upon the assumption of her duties, the referee shall ascertain the rights, interests and amounts due all persons having a claim against the surplus monies, which has been deposited with the Suffolk County Treasurer. Pursuant to RPAPL § 1361, the referee shall serve by certified mail upon all lienholders of record and all others entitled thereto, notice to attend hearings regarding the disposition of the surplus monies, which hearing shall be conducted not less than 30 days after service of such notice; and it is further
ORDERED that Geri Henle, Esq. in her capacity as the duly appointed Referee, shall comply with the provisions of Judiciary Law § 35-A and Part 36 (22NYCRR Part 36) of the Rules of the Chief Judge, RPAPL Articles 9 and 13 and CPLR Rules 6401 through 6405, and no fee shall be paid to said Referee in her capacity as a Referee, until she has separately filed and completed Form UCS-830 in full and it is signed by this Court. The Referee shall also comply with Part 36 (22NYCRR Part 36) of the Rules of the Chief Judge, with respect to any secondary appointments that she may seek to assist her under the powers granted to her in this Order.
By the instant application, movants Matthew Carman, Alan Carman, Daniel Carman and Deborah Schmidt, through their attorney in fact Atlantis Asset Recovery, LLC, seek an order confirming the referee's report of sale and directing that the surplus monies be distributed to them as sole heirs and distributees of Florence Carman, who was the former owner and owner of equity of redemption. The submission includes records reflecting that Ms. Henle, Esq., as referee appointed in this mortgage foreclosure action, deposited the sum of $41,316.17 with the Suffolk County Treasurer, as said sum reflected a surplus from the public sale over that owing to the plaintiff and others under the terms of the Judgment of Foreclosure and Sale. The record further reflects that the referee's Report of Sale was filed with the Suffolk County Clerk on April 20, 2018 and that no exceptions thereto were filed. The court is without receipt of opposing papers from any persons served with notice of such motion.
Under the circumstances, the court grants that portion of this motion wherein the movants seek an order confirming the referee's Report of Sale that is attached to the moving papers. The movants' demands for an order distributing the surplus monies to them, however, is denied. An inquiry into their entitlement thereto is required as contemplated by RPAPL § 1361, which states "[t]he court, by reference or otherwise, shall ascertain and report the amount due to him or any other person who has a lien on such surplus moneys, and the priority of the several liens thereon and order distribution of surplus moneys." Additionally, the referee here must determine and confirm, to the extent necessary, each movant's status as heir to the estate of the deceased. "When a person who holds an interest in real property dies intestate, his interest in the real property automatically vests by operation of law upon his heirs as tenants in common ( Pachter v 3063 Brighton 8 Properties LLC , 69 Misc 3d 1201(A), 130 NYS2d 653 [King County Sup Ct 2020]), citing Kraker v Roll , 100 AD2d 424, 429, 474 NYS2d 527 [2d. Dept. 1984] ). Further, "[s]urplus money stands in the place of the land for all purposes of distribution among persons having vested interests or liens upon the land" ( Shankman v Horoshko , 291 AD2d 441, 442 [2d Dept 2002], citing Roosevelt Sav. Bank v Goldberg , 118 Misc 2d 220, 221, 459 NYS2d 988 [Nassau County, Sup. Ct. 1983] ); see also, Sadow v Poskin Realty Corp. , 63 Misc 2d 499, 312 NYS2d 901 [Queens County, Sup. Ct. 1970] ; Restatement [Third] of Property § 7.4). As a result, a "referee may inquire into and determine all questions of law and fact, usury, fraud or the like, and every question tending to show the equities of the claimant, to the end that it may be decided in such proceedings finally and on the merits to whom such surplus money belong" ( Shankman v Horoshko , 291 AD2d at 442 [citations omitted]).
The court thus appoints Geri Henle, Esq. , as referee, who shall inquire into all questions of law and hear and report her findings as to facts regarding the proper distribution of the surplus monies as contemplated by RPAPL § 1361(2).
This constitutes the decision and order of the court.