Opinion
Index No. 522283/2019
09-24-2024
NYCTL 2018-A TRUST, and THE BANK OF NEW YORK MELLON, as Collateral Agent and Custodian for the NYCTL 2018-A TRUST, Plaintiff, v. FRIENDSHIP BELMONT LLC, NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, MOTALEB FABRICS LLC s/h/a JOHN DOE No. 1 and METRO PCS s/h/a JOHN DOE No. 2, Defendants.
Unpublished Opinion
HON. DEREFIM B. NECKLES, Acting Justice.
Notice of Motion/Affidavits (Affirmations) Annexed 56-67
Opposition Affirmation to Motion 68-82
Upon the foregoing papers in this proceeding, defendant Friendship Belmont LLC moves by order to show cause/motion (under mot. seq. 4) for an order voiding and vacating the foreclosure sale of the property located at 2-4 Belmont Avenue, Brooklyn, NY (Block 3526, Lot 15), which was foreclosed upon herein, pursuant to CPLR §5015(a)(4).
Background
Defendant, Friendship Belmont LLC is the fee owner of the subject property by a deed dated October 27, 2016, and recorded on January 5, 2017. This action is to foreclose a tax lien on the subject property. The summons and complaint was filed on October 11, 2019, and the defendant was served on October 18,2019 via the secretary of state pursuant to section 303 of the NY Limited Liability Company Law. The remaining defendants were also timely served. None of the defendants answered, moved, or appeared in this action. Plaintiffs moved for an order of reference, which was granted by this court on December 4, 2020. This court held two settlement conferences during the pendency of plaintiff's motion for an order of reference, but the defendant did not appear, and the case was released from the settlement part.
Thereafter, plaintiff filed a motion to confirm the referee's report and for a judgment of foreclosure and sale. The court granted this motion by an order dated June 22, 2022. Plaintiff then filed a motion to extend time to schedule the sale, and it was granted by an order dated September 26, 2023. A foreclosure sale was scheduled for January 25, 2024, where the property was sold to successful bidder 2 Belmont BH 26 LLC for $1,110,000.00. The closing was held on February 18, 2023, where the referee issued a referee's deed to the purchaser. The referee's report of sale was filed with the County Clerk's Office on February 29, 2024. Defendant now files this instant motion.
Discussion
A party may move to vacate a default judgment against it under CPLR §317 or CPLR §5015. Peacock v. Kalikow, 239 A.D.2d 188, 189 (1997). Both statutes require that, in order to prevail, the movant must demonstrate that it has a meritorious defense to the action. Even where it is uncontroverted that defendant did not receive notice of the summons and complaint in time to defend the action, as defendant claims here, the failure to adequately demonstrate a meritorious defense will be fatal to defendant's motion to vacate. Halali v. Gabbay, 223 A.D.2d 623, 636.
In support of its motion, defendant, by its sole member Shun Hao Zhong, alleges that the property does not have a mailbox and she never received any mailings that were sent to the property, including the summons and complaint served on the secretary of state. She asserts that she did not know that the property was in foreclosure. Defendant further alleges that since it was not properly served, the court lacks personal jurisdiction, and the default should be vacated. Defendant, however, fails to offer a meritorious defense to the action that would justify vacatur under either CPLR §317 or CPLR §5015.
In opposition, plaintiff cites to New York City Administrative Code ("Admin. Code") §11-340, which states in relevant part that: "...So much of section three hundred seventeen of the civil practice law and rules as requires the court to allow defendant to defend an action after final judgment shall not apply to an action to foreclose a tax lien."
Here, this action is to foreclose a tax lien on the subject property, and therefore §317 would not be considered as a basis to vacate the default against defendant. Defendant also fails under §5015 for failure to demonstrate a meritorious defense.
The record before the court does warrant vacatur of the default judgment against defendant.
Accordingly, it is
ORDERED that defendant's order to show cause is denied in all respects.
This constitutes the decision and order of the court.