Opinion
Index No. 850135/2019 Motion Seq. No. 003
08-05-2023
LAELIA, LLC, Plaintiff, v. MATTHEW GLAZIER, LARA GLAZIER, BOARD OF DIRECTORS OF 90 EAST END AVENUE CONDOMINIUM, Defendant.
Unpublished Opinion
PART 32
JUDGMENT OF FORECLOSURE AND SALE AND DECISION + ORDER ON MOTION
HON. FRANCIS A. KAHN, III, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 125, 126, 127, 128, 129, 130 were read on this motion to/for JUDGMENT - FORECLOSURE & SALE.
Upon the foregoing papers, the motion is determined as follows:
Plaintiff commenced this action to foreclose on a mortgage encumbering a condominium unit located at 90 E End Ave, Unit 10, New York, New York. Defendants Mathew Glazier and Lara Glazier, the unit owners, answered and pled seven affirmative defenses. By decision and order dated October 26, 2023, Plaintiff s motion for summary judgment and issuance of an order of reference was granted without opposition. Now, Plaintiff moves to inter alia confirm the Referee's report of the amounts due and for a judgment of foreclosure and sale. Defendants Mathew Glazier and Lara Glazier oppose the motion.
"The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility" (Citimortgage, Inc. v Kidd, 148 A.D.3d 767, 768 [2d Dept 2017]; see also Bank of N.Y. Mellon v Davis, 193 A.D.3d 803 [2d Dept 2021]). A Plaintiff may rely on evidence from persons with personal knowledge of the facts, documents in admissible form and/or persons with knowledge derived from produced admissible records (see e.g. U.S. Bank N.A. v Moulton, 179 A.D.3d 734, 738 [2d Dept 2020]). After issuance of the Referee's report, the Supreme Court is authorized to reject the report, in whole or in part, and render its own findings (see e.g. Bank of Am., N.A. v Barton, 199 A.D.3d 625 [2d Dept 2021]).
In support of the calculation, Plaintiff submitted the affidavit of David Ornelas ("Ornelas"), the Senior Vice President for Land Home Financial Services, Inc. ("Land"), the alleged servicer and attorney-in-fact for Plaintiff. Ornelas demonstrated personal knowledge of Plaintiffs recordkeeping procedures and laid a proper foundation tor the admission of its records by demonstrating the requisites of CPLR §4518 (see Bank of N.Y. Mellon v Gordon, 171 A.D.3d 197 [2d Dept 2019]). The records of prior servicers were also admissible since Ornelas attested those records were received from the makers, incorporated into the records Land kept and it routinely relied on such records in its business (see Bank of Am., N.A. v Brannon, 156 A.D.3d 1, 10 [1st Dept 2017]; cf. U.S. Bank N.A. v Kropp-Somoza, 191 A.D.3d 918 [2d Dept 2021]: Tri-State Loan Acquisitions III, LLC v Litkowski, 172 A.D.3d 780, 782-783 [2d Dept 2019]). Land's authority to act on Plaintiffs behalf was established with submission of a limited power of attorney, dated July 10, 2020 (see U.S. Bank N.A. v Tesoriero, 204 A.D.3d 1066 [2d Dept 2022]; Deutsche Bank Natl. Trust Co. v Silverman, 178 A.D.3d 898 [2d Dept 2019]; US Bank N.A. v Louis, 148 A.D.3d 758 [2d Dept 2017]). Ornelas' affidavit and the records attached to thereto sufficiently supported the Referee's calculation (see U.S. Bank, N.A. v Saraceno, 147 A.D.3d 1005 [2d Dept 2017]; HSBC Bank USA, N.A. v Simmons, 125 A.D.3d 930 [2d Dept 2015]).
In opposition, any objection that Defendants' claims were not heard by the Referee is unavailing. "Where, as here, a defendant had an opportunity to raise questions and submit evidence directly to the Supreme Court, which evidence could be considered by the court in determining whether to confirm the referee's report, the defendant is not prejudiced by any error in failing to hold a hearing" (Bank of Am., N.A. v Scher, 205 A.D.3d 989, 990 [2d Dept 2022]; see also Bank of N.Y.Mellon v Viola, 181 A.D.3d 767 [2d Dept 2020]). Also, Defendants' assertion that Plaintiff failed to lay a proper foundation under CPLR §4518[a] is without merit (see US. Bank Trust, N.A. v Bank of Am., N.A., 201 A.D.3d 769, 772 [2d Dept 2022]).
Defendants' also object to the Referee's finding concerning interest. On that issue, "[i]n 'an action of an equitable nature, the recovery of interest is within the court's discretion. The exercise of that discretion will be governed by particular facts in each case,' including wrongful conduct by either party" (U.S. Bank N.A. v Beymer, 190 A.D.3d 445 [1st Dept 2021 ], citing South Shore Fed. Sav. & Loan Assn, v Shore Club Holding Corp., 54 A.D.2d 978, [2d Dept 1976]). Generally, lengthy unexplained delas and "egregious" wrongful conduct must exist for the Court to assess an interest toll (see eg U.S. Bank, N.A. v Gendelman, 214 A.D.3d 928 [2d Dept 2023]; Wells Fargo Bank, N.A. v Lee, 208 A.D.3d 1384 [2d Dept 2022]; Prompt Mtge. Providers of N. Am., LLC v Zarour, 155 A.D.3d 912, 915 [2d Dept 2017]). Here, Defendants have not established the existence of any significant delays in this matter solely attributable to Plaintiff. Any postponement in this action caused by || "court imposed stays, adjournments, and COVID-19 . . . restrictions, were not solely due to the actions of the plaintiff or solely within the plaintiffs control" (Wells Fargo Bank, N.A. v Abakporo, 221 A.D.3d 939, 940 [2d Dept 2023]; see also U.S. Bank NA v Beymer, 190 A.D.3d 445 [1st Dept 2021]).
Accordingly, it is
ORDERED and ADJUDGED that the motion for a judgment of foreclosure and sale and to confirm the referee's report is granted; and it is further
ORDERED that since the New York County Clerk will not accept a judgment for filing that has any I "Doe" defendant in the caption, the caption is amended nunc pro tunc and shall read as follows:
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
LAELIA, LLC, Plaintiff, -against
MATTHEW GLAZIER, LARA GLAZIER, BOARD OF DIRECTORS OF 90 EAST END AVENUE CONDOMINIUM BOARD OF MANAGERS OF THE RUPPERT YORKVILLE TOWERS CONDOMINIUM, Defendants and it is further
ORDERED that the parcel subject to the lien described in the complaint and as described in this judgment, or such part thereof as may be sufficient to discharge the lien, the expense of sale and the costs of this action as provided in the RPAPL be sold within 180 days1 of this judgment, in one parcel via four sale, at a public auction, conducted on the same date, at the New York County Courthouse located at 60 Centre Street, New York, New York under the direction of Jerry Merola, Esq, who is appointed Referee for this purpose; and it is further
ORDERED that PRIOR to scheduling publication, Plaintiff shall contact the auction part clerk at foreclosures@nycourts.gov and obtain consent to place the matter on the auction calendar and, thereafter, Plaintiff shall upload the notice of sale to NYSCEF at least 21 days before the sale and the Referee. IF THE AUCTION IS NOT ON THE CALENDAR, then the auction will not go forward', and it is further
ORDERED that after receiving permission from the Auction Part Clerk, the Referee shall give public notice of the time and place of sale in accordance with RPAPL 231(2) in the New York Amsterdam News; and the referee need not conduct the sale unless plaintiff shall provide the referee with proof of publication of the notice of sale, and if the sale is adjourned due to plaintiffs failure to provide such proof, then said adjournment shall not be considered at the referee's request; and it is further
ORDERED that by accepting this appointment the Referee certifies that she/he is 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 the Referee is prohibited from accepting or retaining any funds for herself/himself or paying funds to him/herself without compliance with Part 36 of the Rules of the Chief Administrative Judge; and it is further
ORDERED that the Referee shall conduct the foreclosure sale only if Plaintiff, its successors and/or 1 assignees or its representatives is present at the sale or the Referee has received a written bid and Terms of Sale from Plaintiff, its successors and/or assigns, or its representatives; and it is further 14
ORDERED that if the Referee cannot conduct the sale within 180 days of the date of this judgment, plaintiff must make a motion to extend the time to sell the subject property explaining the reasons for the delay; and it is further
ORDERED that at the time of sale the Referee may accept a written bid from the Plaintiff or the Plaintiff s attorney, just as though Plaintiff were physically present to submit said bid; and it is further
ORDERED that the Referee shall accept the highest bid offered by a bidder who shall be identified upon the court record, and shall require that the successful bidder immediately execute Terms of Sale for the purchase of the property, and pay to the Referee in cash, certified check or bank check, ten percent (10%) of the sum bid, unless the successful bidder is Plaintiff, in which case no deposit against the purchase process shall be required and it is further Presently, the Foreclosure Auction Part has a five month wait for auction dates. The backlog is due to the near two-year moratorium on foreclosure sales that was a sequalae of the CO VID-19 pandemic. As such, strict adherence to the 90-day deadline contained in RPAPL 1351 [ 1 ] is simply not practical and the Court exercises its discretion under CPLR 2004 to extend that time period.
ORDERED that notwithstanding the previous paragraph, the Referee shall have the right to refuse cash payments and require a bank or certified check from the successful bidder and the Referee shall be entitled to qualify bidders and require bidders to show proof of funds before or during the auction; and it is further
ORDERED that in the event the first successful bidder fails to execute the Terms of Sale or fails to immediately pay the ten percent (10%) deposit as required, the property shall be immediately reoffered at auction on the same day; and it is further
ORDERED the Referee shall deposit the down payment and proceeds of sale, as necessary in an FDIC-insured bank where the Referee has an account for that purpose in accordance with CPLR 2609; and it is further
ORDERED that after the balance of the purchase price is paid or credited and the property is sold, the Referee shall execute a deed to the purchaser in accordance with RPAPL 1353 and the terms of sale (which shall be deemed a binding contract); and it is further
ORDERED that in the event a party other than Plaintiff becomes the purchaser at the sale, the closing of title shall be held no later than 30 days after the date of such sale; and it is further
ORDERED that, pursuant to RPAPL 1353(1), if Plaintiff (or its affiliate as defined in paragraph [a] of subdivision one of section six-1 of the banking law) is the purchaser, the property shall be placed back on the market for sale or other occupancy within 180 days of the execution of the deed of sale or within 90 days of construction, renovation, or rehabilitation of the property, provided that such construction, renovation or rehabilitation proceeded diligently to completion, whichever comes first, provided that this court grants an extension upon a showing of good cause; and it is further
ORDERED that the Referee, after receiving the proceeds of the sale, shall pay (from the proceeds) the taxes, assessments, sewer rents, or water rates, which are, or may become, liens on the property in accordance with their priority according to law with such interest or penalties which may have lawfully accrued thereon to the date of payment; and it is further I
ORDERED that the Referee shall deposit the balance of the proceeds from the sale in his or her own name as Referee in an FDIC-insured bank where the Referee has an account for that purpose and shall make the following payments in accordance with RPAPL 1354;
1. The Referee's fees for conducting each sale, which are $1,100.00. Plaintiff shall also compensate the Referee in the sum of $350 for each adjournment or cancellation made on less than two business days' notice unless the Referee caused the delay.
2. All taxes, assessments and water rates that are liens upon the property and monies necessary to redeem the property from any sales for unpaid taxes, assessments or water rates and any other amounts due in accordance with RPAPL 1354(2). The purchaser shall be responsible for interest and penalties accrued after the sale. The Referee shall not be responsible for the payment of penalties or fees pursuant to this appointment. The purchaser shall hold the Referee harmless from any such penalties or fees assessed.
3. The expenses of the sale and the advertising expenses as shown on the bills presented and certified by the Referee to be correct, copies of which shall be annexed to the report of sale.
4. The Referee shall also pay to the Plaintiff or its attorneys the following:
a. Amount Due from the Referee's Report: $3,335,374.80, together with interest at contract rate from April 30, 2024, until the date of entry of this judgment until the date the deed is 1 transferred; and Plaintiff may add to the amount due any and all inspection fees, maintenance charges, further accrued common charges, taxes, insurance premiums or other advances necessary to preserve the property provided proof is provided to the satisfaction of the Referee;
b. Costs and Disbursements:
c. The Court declines to award additional allowance.
d. Attorneys' Fees: $5,650.00.
5. Surplus monies from the sale shall be paid into Court by the Referee within five days after receipt in accordance with RPAPL 1354(4); and it is further
ORDERED that if Plaintiff is the purchaser of the property, or in the event that the rights of the purchasers at the sale and the terms of sale under this judgment shall be assigned to or be acquired by Plaintiff, and a valid assignment is filed with the Referee, the Referee shall not require Plaintiff to pay in cash the entire amount bid at sale, but shall execute and deliver to Plaintiff or its assignee, a deed or deeds of the property sold upon the payment to said Referee of the amounts specified as 1,2, and 3 above, and the Referee shall allow Plaintiff to pay the amounts specified in 2 and 3 above when it is recording the deed; that the balance of the bid, after deducting the amounts paid by Plaintiff, shall be applied to the amount due to Plaintiff as specified in 4 above; that Plaintiff shall pay any surplus after applying the balance of the bid to the Referee, who shall deposit it in accordance with 5 above; and it is further
ORDERED that all expenses of recording the Referee's deed, including real property transfer taxes, I which is not a lien upon the property at the time of sale, shall be paid by the plaintiff from the sale proceeds; I and it is further
ORDERED that Plaintiff may seek to recover a deficiency judgment in accordance with RPAPL 1371 if applicable, and it is further
ORDERED that the property is sold, subject to any superior liens of record, including by not limited to mortgage liens, in "as is" physical order and condition, subject to any condition that an inspection of the property would disclose; any facts that an accurate survey of the property would show; any covenants, j restrictions, declarations, reservations, easements, right of way, and public utility agreements of record, if any: any building and zoning ordinances of the municipality in which the property subject to the lien is located and possible violations of same; any rights of tenants or persons in possession of the subject property; prior liens of record, if any, except those liens addressed in RPAPL 1354, any equity of redemption of the United States of America to redeem the property within 120 days from the date of sale, any rights pursuant to CPLR 317, 2003 and 5015 or any appeal of the underlying action or additional litigation brought by any defendant or its successor or assignee contesting the validity of this foreclosure; and it is further
ORDERED that the purchaser be let into possession of the property upon production in hand of the Referee's Deed or upon personal service of the Referee's deed in accordance with CPLR 308; and it is further
ORDERED that Defendants in this action and persons claiming through them and any person possessing a junior interest in the property after the Notice of Pendency was filed are barred and foreclosed of all right, claim, lien (except the common charges lien herein), title, and interest in the property after the sale of the property subject to the lien; and it is further
ORDERED that within 14 days after completing the sale and executing the proper conveyance to the purchaser, the Referee shall file with the clerk a report under oath of the disposition of the proceeds of the sale and upload the report to NYSCEF if it is an e-filed case; and it is further .
ORDERED that if the purchaser or purchasers at said sale default upon the bid or terms of sale, the | Referee may place the property for resale without prior application to this Court, unless Plaintiffs attorney fl elects to make such an application, and the deposit of the recalcitrant bidder forfeited and retained by Plaintiff as liquidated damages; and it is further
ORDERED that Plaintiff shall serve a copy of this judgment with notice of entry upon the owner of the equity of redemption, any tenants named in this action, and any other parties entitled to service, including the Referee appointed herein; and it is further
ORDERED that nothing herein shall be deemed to relieve Plaintiff of any obligation imposed by i RPAPL 1307 or 1308 to secure and maintain the property until ownership of the property has been transferred and the deed duly recorded; and it is further
ORDERED that when the Referee files a report of sale, she or he shall also file a Foreclosure Action Surplus Monies Form and also upload this document to NYSCEF if an e-filed case; and it is further
ORDERED that, without further order of the Court, the referee shall be entitled to an additional fee of $950 for conducting and attending a closing with a purchaser other than plaintiff, plus, if such a closing is scheduled for the referee's conference room, then the referee shall be entitled to a reasonable fee for use thereof, without further order of the Court; and it is further identified:
A description of the four properties is annexed hereto as schedule A.
SCHEDULE A- LEGAL DESCRIPTION
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, WITH BUILDINGS AND IMPROVEMENTS THEREON ERECTED, SITUATE, LYING AND BEING DESCRIBED AS FOLLOWS:
THE CONDOMINIUM UNIT (IN THE BUILDING LOCATED AT AND KNOWN AS 90 EAST END AVENUE CONDOMINIUM AND BY STREET NUMBER 90 EAST END AVENUE, NEW YORK), DESIGNATED AND DESCRIBED AS UNIT lOB (HEREINAFTER CALLED THE "UNIT") IN THE DECLARATION (HEREINAFTER CALLED "DECLARATION") MADE BY THE SPONSOR UNDER THE CONDOMINIUM ACT OF THE STATE OF NEW YORK (ARTICLE 9-B OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK), DATED 4/18/2000 AND RECORDED 6/2/2000 IN THE OFFICE OF THE REGISTER THE CITY OF NEW YORK, COUNTY OF NEW YORK, IN REEL 3110 PAGE 2456 AS AMENDED BY REEL 3476 PAGE 2261 ESTABLISHING A PLAN FOR CONDOMINIUM OWNERSHIP OF SAID BUILDING AND THE LAND UPON WHICH THE SAME IS ERECTED (HEREINAFTER SOMETIMES COLLECTIVELY CALLED THE "PROPERTY") AND ALSO DESIGNATED AND DESCRIBED AS TAX LOT NO. 1025 BLOCK 1580 SECTION 5, BOROUGH OF MANHATTAN ON THE TAX MAP OF THE REAL PROPERTY ASSESSMENT DEPARTMENT OF THE CITY OF NEW YORK AND ON THE FLOOR PLANS OF SAID BUILDING CERTIFIED BY COSTAS KONDYLIS AND ASSOCIATES, P.C. ON 4/26/2000 AND FILED AS CONDOMINIUM PLAN NO. 1130 ON 6/2/2000 IN THE AFORESAID REGISTER S OFFICE.
THE LAND UPON WHICH THE BUILDING CONTAINING THE UNIT IS ERECTED AS FOLLOWS:
TOGETHER WITH AN UNDIVIDED 2.11807 PERCENT INTEREST IN THE COMMON ELEMENTS OF THE PROPERTY AS DESCRIBED IN THE DECLARATION (HEREINAFTER CALLED THE "COMMON ELEMENTS") RECORDED IN REEL 3110 PAGE 2456, AS AMENDED.
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING IN THE BOROUGH OF MANHATTAN, COUNTY AND STATE OF NEW YORK, BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT THE CORNER FORMED BY THE INTERSECTION OF THE WESTERLY SIDE OF AVENUE B, NOW KNOWN AS EAST END AVENUE, AND THE SOUTHERLY SIDE OF EAST 84TH STREET;
RUNNING THENCE SOUTHERLY ALONG THE WESTERLY SIDE OF AVENUE B, NOW KNOWN AS EAST END AVENUE, 76 FEET 8 INCHES TO A POINT;
THENCE WESTERLY ON A LINE PARALLEL WITH THE SOUTHERLY SIDE OF EAST 84TH STREET, 65 FEET;
THENCE SOUTHERLY ON A LINE PARALLEL WITH THE WESTERLY SIDE OF AVENUE B, NOW KNOWN AS EAST END AVENUE 25 FEET 6 INCHES;
THENCE WESTERLY ON A LINE PARALLEL WITH THE SOUTHERLY SIDE OF EAST 84TH STREET 15 FEET;
THENCE NORTHERLY ON A LINE PARALLEL WITH THE WESTERLY SIDE OF AVENUE B, NOW KNOWN AS EAST END AVENUE 102 FEET 2 INCHES TO THE SOUTHERLY SIDE OF EAST 84TH STREET;
THENCE EASTERLY ALONG THE SOUTHERLY SIDE OF EAST 84TH STREET 80 FEET TO THE POINT OR PLACE OF BEGINNING.
THE IMPROVEMENTS THEREON BEING KNOWN AS 90 EAST END AVENUE, UNIT lOB, NEW YORK, NEW YORK 10028.
Block 1580, Lot 1025
Property Address: 90 E End Ave, Unit JOB, New York, NY 10028