Opinion
1:18-cv-03504 (ENV) (PK)
09-05-2023
SAC FUND II 0826, LLC, Plaintiff, v. BURNELL'S ENTERPRISES, INC., AMERICAN BUG CO., INC., a/k/a AMERICAN BUG COMPANY, INC., RONALD BASSETT as EXECUTOR OF THE ESTATE OF ADELL D. BASSETT, RONALD BASSETT, individually, NEW YORK CITY DEPARTMENT OF FINANCE NEW YORK CITY ENVIRONMENTAL CONTROL BOARD AMERICAN EXPRESS CENTURION BANK, and “JOHN DOE NO. I” to “JOHN DOE NO. XXX,” inclusive, the last thirty names being fictitious and unknown to plaintiff, the persons or parties intended or corporations, if any, having or claiming an interest in or lien upon the premises described in the complaint, Defendant.
EXHIBIT A
JUDGMENT OF FORECLOSURE AND SALE
The Honorable Eric N. Vitaliano, United States District Judge
On the Summons in a Civil Action (the “Summons”) and Verified Complaint (the “Complaint”) filed with the Clerk's Office of this Court on June 14, 2018; on the Lis Pendens docketed with the County Clerk's Office of Queens County on June 21, 2018; on the certificates of default entered by the Clerk's Office of the United States District Court of the Eastern District of New York on September 12 and 26, 2018 [Dkt. # 17 and 21]; on the Report and Recommendation of Magistrate Judge Peggy Kuo issued on September 7, 2019 [Dkt. # 32]; and on the Memorandum and Order of District Judge Eric N. Vitaliano entered on November 13, 2019 [Dkt. # 34]; and upon all of the proceedings had herein;
This action was brought to foreclose upon four separate parcels of real property located at 193-02 Linden Blvd., St. Albans, New York; 110-11 Sutphin Blvd., Jamaica, New York; 111-21 Farmer's Blvd., St. Albans, New York; and 112-113 Francis Lewis Blvd., Jamaica, New York, and all improvements and fixtures related to each parcel (collectively, the “Mortgaged Premises”) pursuant to the terms of that certain Restated Promissory Note dated as of October 1, 2005 (the “Note”), in the original principal amount of $950,000.00 (the “Loan”), which was secured by the following mortgages:
(a) That certain Mortgage and Security Agreement dated as of April 16, 2002 (“Mortgage No. 1”), signed by Borrower, American Bug and Luke Bassett and delivered for the benefit of Original Lender, which was duly recorded in the Office of the City Register of the City of New York, Queens County, on May 17, 2002, on Reel 6380, Page 2255.
(b) The terms of Mortgage No. 1 were modified pursuant to that certain Loan and Mortgage Modification Agreement, dated as of March 4, 2004 (“Modification No. 1”), signed by Borrower, American Bug and Adell D. Bassett as Executor of the Estate of Luke Bassett (deceased), and delivered for the benefit of Original Lender, which was duly recorded in the Office of the City Register of the City of New York, Queens County, on July 12, 2004, as CRFN 2004000433332.
(c) That certain Gap Mortgage dated as of March 4, 2004 (“Mortgage No. 2”), signed by Borrower, American Bug, Adell D. Bassett as Executor of the Estate of Luke Bassett (deceased) and Adell D. Bassett (deceased), and delivered for the benefit of Original Lender, which was duly recorded in the Office of the City Register of
the City of New York, Queens County, on July 12, 2004, as CRFN 2004000433333.
(d) That certain Consolidation, Modification and Extension Agreement, dated as of March 4, 2004 (“Consolidation No. 1”), signed by Borrower, American Bug and Adell D. Bassett as Executor of the Estate of Luke Bassett (deceased), and delivered for the benefit of Original Lender, which was duly recorded in the Office of the City Register of the City of New York, Queens County, on July 12, 2004, as CRFN 2004000433334.
(e) That certain Gap Mortgage dated as of October 1, 2005 (“Mortgage No. 3”), signed by Borrower, American Bug and Adell D. Bassett as Executor of the Estate of Luke Bassett (deceased), and delivered for the benefit of Original Lender, which was duly recorded in the Office of the City Register of the City of New York, Queens County, on March 15, 2006, as CRFN 2006000145573.
(f) That certain Consolidation, Modification and Extension Agreement, dated as of October 1, 2005 (the “Mortgage”), signed by Borrower, American Bug and Adell D. Bassett as Executor of the Estate of Luke Bassett (deceased), and delivered for the benefit of Original Lender, which was duly recorded in the Office of the City Register of the City of New York, Queens County, on March 15, 2006, as CRFN 2006000145574.
Bassett is the successor-in-interest to Luke Bassett (deceased).
Mortgage No. 1, Modification No. 1, Mortgage No. 2, Consolidation No. 1, Mortgage No. 3, and the Mortgage are sometimes referred to herein collectively as the “Mortgages.”
The Note, the Mortgages, and all other documents evidencing, securing or executed in connection with the Loan, together with all modifications thereto, are sometimes referred to herein collectively as the “Loan Documents.”
Defendant Burnell's Enterprises, Inc. was duly served with the Summons and Complaint. Defendant American Bug Co., Inc., a/k/a American Bug Company, Inc. was duly served with the Summons and Complaint. Defendant New York City Department of Finance was duly served with Summons and Complaint. Defendant New York City Environmental Control Board was duly served with Summons and Complaint. Defendant American Express Centurion Bank was duly served with Summons and Complaint. A Clerk's Entry of Default was entered against Burnell's Enterprises, Inc., American Bug Co., Inc, a/k/a American Bug Company, Inc., New York City Department of Finance, New York City Environmental Control Board, and American Express Centurion Bank on September 12, 2018 [Dkt. #17] (collectively the “First Defaulted Defendants”).
Defendant Ronald Bassett, individually and as Executor of the Estate of Adell D. Bassett was duly served with Summons and Complaint. A Clerk's Entry of Default was entered against Defendant Ronald Bassett, individually and as Executor of the Estate of Adell D. Bassett (with the First Defaulted Defendants the “Defaulted Defendants”) on September 26, 2018 [Dkt. #21]. Ronald Bassett, individually and as Executor of the Estate of Adell D. Bassett (with the First Defaulted Defendants the “Defaulted Defendants”) on September 26, 2018 [Dkt. #21].
None of the Defaulted Defendants are an incompetent or absentee, and upon information and belief no Defaulted Defendant is in the military service as defined by law.
The Notice of Pendency containing all of the particulars required by law has been filed as aforesaid.
Magistrate Judge Peggy Kuo issued her Report and Recommendation recommending default judgment be granted as against the Defaulted Defendants on September 7, 2019 [Dkt. # 32];
District Judge Eric N. Vitaliano entered a Memorandum and Order adopting Magistrate Judge Kuo's Report and Recommendation on November 13, 2019 [Dkt. # 34].
NOW, it is hereby
ORDERED, ADJUDGED AND DECREED, that Plaintiff's motion for final judgment of foreclosure and sale is granted, that the foreclosure sale shall be held in accordance with RPAPL § 1351(1); that the date of the judgment is deemed the date it is entered; that should the sale be unable to be conducted within 90 days of the date of the judgment, the time fixed by RPAPL § 1351(1) shall be extended for the sale to be conducted as soon as reasonably practicable.
ORDERED, ADJUDGED AND DECREED, that the amount due to Plaintiff under the Loan Documents that are the subject of this action as of May 13, 2022 is $3,407,152.44 calculated as follows:
Unpaid Principal Balance with interest
$2,354,840.73
Taxes/Water with interest
$925,160.07
Insurance with interest
$25,528.63
Legal Advances and Costs
$94,371.29
Prepayment Charge
$7,251.72
Total
$3,407,152.44
and it is further
ORDERED, ADJUDGED AND DECREED, that interest from May 14, 2022 to the date of the sale shall accrue at a per diem rate of $809.82, and it is further
ORDERED, ADJUDGED AND DECREED, that the Property described in the Complaint and Schedule A annexed hereto; together with all right, title, and interest of the owner thereof, if any, in and to the land lying in the streets and road in front of the adjoining said Mortgaged Premises, to the center line thereof; together with all fixtures and articles of personnel property annexed to installed in, or used in connection with the Mortgage Premises, all is more fully set forth in the aforementioned Mortgages and Schedule A annexed hereto (the “Personal Property” and collectively with the Mortgaged Premises, the “Property”), be sold in individual parcels, either individually or in combination so as to satisfy the judgment, as follows: County of Queens, City of New York, State of New York,
1. Section 54 Block 12610 Lot 1, known by the following street address: 193-02 Linden Blvd., St. Albans, NY;
2. Section 52 Block 12153 Lot 9, known by the following street address: 110-11 Sutphin Blvd., Jamaica, NY;
3. Section 48 Block 10950 Lot 162, known by the following street address: 111-21 Farmer's Blvd., St. Albans, NY; and
4. Section 48 Block 10983 Lot 21 known by the following street address: 112-113 Francis Lewis Blvd., Jamaica, NY;
by and under the direction of Craig S. Lanza, Esq. or his/her duly appointed designee, who is hereby appointed Referee (“Referee”) for that purpose, at public action to be held at a location to be determined by the Referee; that said Referee give public notice of the time and place of said sale in accordance with RPAPL § 231, by advertising in New York Newsday, Queens Edition; and it is further
ORDERED, ADJUDGED AND DECREED, that the Referee shall accept at such sale the bid or bids that yield the largest amount of money for the Property, and the bidder or bidders, as the case may be, so determined, shall be identified upon the court record, and the Referee shall require that the successful bidder or bidders deposit with the Referee ten percent (10%) of the amount bid, in certified funds immediately upon the Referee's acceptance of the purchaser's bid for which a Referee's receipt will be given, and the successful bidder or bidders shall execute a Terms of Sale for the purchase of the Property, and it is further
ORDERED, ADJUDGED AND DECREED, that the Plaintiff or a governmental agency or any other parties to this action may become the purchaser or purchasers at such sale, and in case the Plaintiff shall become the purchaser at the said sale, they shall not be required to make any deposit thereon, ORDERED, ADJUDGED AND DECREED, that in the event that the successful bidder or bidders, as the case may be, fails to immediately pay the ten percent deposit as provided herein or fails to execute the Terms of Sale immediately following the bidding upon the subject Property, the Property shall thereafter immediately, on the same day, be reoffered at the auction in the same manner as is set forth above, and it is further
ORDERED, ADJUDGED AND DECREED, that the closing of title shall be had at the office of the Referee or at such other location as the Referee shall determine thirty (30) days after such sale unless otherwise stipulated by all parties to the sale, and that said Referee shall execute to the purchaser or purchasers a deed of the Property sold, and it is further
ORDERED, ADJUDGED AND DECREED, that in the event that such successful bidder shall fail to close on the date set by the Referee, then the successful bidder shall lose and forfeit its deposit, and it is further
ORDERED, ADJUDGED AND DECREED, that said Referee then deposit the balance of said proceeds of sale in his/her own name as Referee in any local banking institution insured by the FDIC and shall thereafter make the following payments and his/her checks drawn for that purpose shall be paid by said depository, and it is further
ORDERED, ADJUDGED AND DECREED, that said Referee on receiving the proceeds of such sale shall forthwith pay there from:
First: The statutory fee of the Referee for conducting the sale shall be $1,000.00.
Second: The expenses of the sale and the advertising expenses as shown on the bills presented to said Referee and certified by him/her to be correct, duplicate copies of which shall be annexed to the Report of Sale.
Third: At Plaintiff's option, pursuant to Real Property Actions and Proceedings Law §1354, in accordance with their priority according to law, taxes, assessments, sewer rents, water rates and any charges placed upon the Property by a city agency which have priority over the foreclosed mortgages, which are liens on the premises at the time of sale with such interest or penalties which may have lawfully accrued thereon to the date of payment.
Fourth: Said Referee shall also pay to the Plaintiff or its attorneys the sum of $2,354,840.73 in principal and interest, together with taxes/water with interest, in the amount of $925,160.07, together with insurance advances with interest, in the amount of $25,528.63, together with legal fees advanced and costs in the amount of $94,371.29, together with a prepayment premium, in the amount of $7,251.72, incurred through the date hereof in connection with this action and the enforcement of Plaintiff's rights, together with the interest from May 14, 2022 in the amount of $809.82, per diem, to the date of the sale of the Mortgage Premises, and it is further
ORDERED, ADJUDGED AND DECREED, that in case the Plaintiff be the purchaser of the Property at said sale, the Referee shall not require the Plaintiff to pay in cash the entire amount bid at said sale, but shall execute and deliver only to the Plaintiff a deed of the Property sold upon the payment to said Referee of the sum awarded to him or her under the above provisions marked “First,” “Second” and “Third” if such expenses were paid by the Referee, or in lieu of the payment of said last mentioned amounts, upon filing with said Referee receipts of the proper municipal authorities showing payment thereof. The balance of the amount bid, after deducting therefrom the aforementioned payments to the Referee for compensation and expenses, taxes, assessments, sewer rents, water rates, shall be allowed to the Plaintiff and applied by said Referee upon the amounts due to the Plaintiff as specified in item marked “Fourth.” If upon so applying the balance of the amount bid, there shall be a be a surplus over and above said amounts due Plaintiff, Plaintiff shall pay to said Referee upon delivery of said Referee's Deed, the amount of such surplus, and said Referee shall deposit said surplus as hereinabove directed in accordance with RPAPL §1354(4) and the Referee shall immediately give notice of such surplus to the owner of the Property as identified by Plaintiff at the time of the sale, and it is further
ORDERED, ADJUDGED AND DECREED, that said Referee shall take the receipt of Plaintiff or its attorney for the amounts paid as directed in item marked “Fourth” and shall file it with his/her report of sale. Said Referee shall deposit the surplus monies, if any, with the aforesaid depository, within five (5) days after the same shall be received and ascertainable, to the credit of this action, to be withdrawn only on the order of a Judge of this Court. Said Referee shall make his/her report of such sale under oath showing the disposition of the proceeds of the sale, accompanied by the vouchers of the person to whom payment was made, and shall file it with the Clerk of the Court with all convenient speed.
ORDERED, ADJUDGED AND DECREED, that if the proceeds of such sale be insufficient to pay the amount adjudged due to Plaintiff with the expenses, interests and costs as aforesaid, said Referee shall specify the amount of such deficiency in his/her report of sale and Plaintiff shall recover from the Borrower the whole deficiency of so much thereof as the Court may determine to be just and equitable of the residue of the mortgaged debt remaining unsatisfied after a sale of the Property and the application of the proceeds thereof, provided a motion for a deficiency judgment shall be made as prescribed by Section 1371 of the Real Property Actions and Proceeding Law within 90 days of the delivery of the deed by the Referee, and the amount thereof is determined and awarded by an order of this Court as provided for in said section; and it is further
ORDERED, ADJUDGED AND DECREED, that the purchaser at said sale be let into possession on production of the Referee's deed; and it is further
ORDERED, ADJUDGED AND DECREED, that the successful purchaser at the foreclosure sale shall pay for (i) any title insurance premiums; (ii) the Real Estate Transfer Tax (Article 31 of the New York Tax Law) and any other tax imposed upon or arising from the transfer of title; (iii) all abstract of title creation and/or continuation charges; and (iv) any other charges, occurring as a result of the transfer, including, but not limited to, the recording fees, and it is further
ORDERED, ADJUDGED AND DECREED, that each and all of the Defendants in this action, and all the persons claiming under them, or any or either of them, after the filing of the notice of the pendency of this action, be and hereby are forever barred and foreclosed of all right, title, claim, interest, lien and equity of redemption in said Property and each and every part thereof, excepting the case where the sale of only one, two or three of the parcels, individually or in combination, is sufficient to satisfy the judgment due to Plaintiff at the date of the sale, in which case Defendants will be forever barred and foreclosed of all right, title, claim, interest, lien and equity of redemption in only those parcels which were sold to satisfy the judgment; and it is further
ORDERED, ADJUDGED AND DECREED, that in the event that the action is discontinued or the sale of the Property is cancelled, the Referee is entitled to a $250.00 fee, and it is further
ORDERED, ADJUDGED AND DECREED, that the liens of the Plaintiff other than the Mortgages that are the subject matter of this action also be foreclosed herein as though the Plaintiff was named as a party defendant, specifically reserving to the Plaintiff its right to share in any surplus monies as a result of such position as a lien creditor, and it is further
ORDERED, ADJUDGED AND DECREED, that said Property is to be in “as is” physical order and condition, subject to any declarations, rights of way and public utility agreements of record, if any; any building and zoning ordinances of the municipality in which the Property is located and possible violations of same; any unpaid taxes, assessments and water rates with interest and penalties accrued, prior lien(s) of record, if any; and any advances and arrears thereunder, except those liens addressed in Section 1354 of the Real Property Actions and Proceedings Law, ORDERED, ADJUDGED AND DECREED, that the Property be sold in “as is” condition and sold subject to:
(a) Rights of the public and others in and to any part of the Property that lies within the bounds of any street, alley or highway;
(b) Restrictions, covenants, agreements, reservations, and easements of record, if any, insofar as the same may be in force and effect;
(c) Any state of facts an accurate, currently dated survey might disclose;
(d) Any facts an inspection of the Property would reveal;
(e) Any rights of tenants or person in possession of the subject Property;
(f) Any equity of redemption of the UNITED STATES OF AMERICA to redeem the Property within 120 days from the date of sale;
(g) Charges for maintenance of street vaults, if any;
(h) Building or tract restrictions or regulations;
(i) Violations, notices, orders or other requirements issued by any federal, state, city, county, town or village agencies having jurisdiction of record, if any, now or hereafter against the Property;
(j) Security agreements, conditional bills of sale and chattel mortgages, if any;
(k) The liens of any prior judgments, mortgages or other encumbrances of record;
(l) Other conditions as set forth in the terms of sale more particularly to be announced at the sale, and it is further
ORDERED, ADJUDGED AND DECREED, that a copy of this shall be mailed to the owner of the equity of redemption, any tenant named in this action, any person having an interest in the Property, and any other party entitled to notice.
A description of the Property is annexed hereto and made a part hereof as Schedule A.
SO ORDERED.
SCHEDULE A
PARCEL 1: BLOCK: 12610 LOT: 1:
ALL that certain plot, piece or parcel of land, together with the buildings and improvements thereon erected, situate, lying and being in the Borough and County of Queens, City and State of New York, bounded and described as follows:
BEGINNING at the comer formed by the intersection of the southerly side of Linden Boulevard (80 feet wide) (formerly known as Central Avenue) with the easterly side of 193rd Street (60 feet wide), (formerly known as Luzon Street);
RUNNING THENCE easterly along the southerly side of Linden Boulevard, 100 feet;
THENCE southerly at right angles to the southerly side of Linden Boulevard, 85.63 feet;
THENCE easterly parallel with the southerly side of Linden Boulevard, 100 feet to the easterly side of 193rd Street;
THENCE northerly along the easterly side of 193rd Street, 85.63 feet to the point or place of BEGINNING.
PARCEL 2: BLOCK: 12153 LOT: 9
ALL that certain plot, piece or parcel of land, situate, lying and being in the Borough and County of
Queens, City and State of New York, bounded and described as follows:
BEGINNING at the comer formed by the intersection of the easterly side of Sutphin Boulevard with the southerly side of Brinkerhoff Avenue;
RUNNING THENCE westerly along the southerly side of Brinkerhoff Avenue, 111.36 feet;
THENCE southerly at right angles to the southerly side of Brinkerhoff Avenue, 80 feet;
THENCE easterly parallel with the 'cutherly side of Brinkerhoff Avenue, 101.45 feet to the easterly side of Sutphin Boulevard;
THENCE northerly along the easterly side of Sutphin Boulevard, 80.64 feet (deed), 80.61 feet (actual) to the point or place of BEGINNING.
PARCEL 3: BLOCK 10950 LOT: 162:
ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Fourth Ward, of the Borough of Queens, of the City of New York, in the County of Queens and State of New York, shown and designated as the southerly 19.75 feet of Lot 19 in Block 5 on a certain map entitled “Map of Property at Hollis, Fourth Ward, Borough of Queens, City of New York, surveyed November 1907 by Tompkins and Lister,” and filed in the Office of the Clerk, now Register, of the County of Queens, May 29th,1912 as Map No. 892, which said part of said lot according to said map Excepting from the above described premises, so much thereof, as has been taken by the City of New York, for the widening and acquiring of Farmers Avenue, now known as Farmers Boulevard, which remainder is more particularly bounded and described as follows:
BEGINNING at a point on the easterly side of Farmers Boulevard, distant 49.46 feet southerly from the most southerly end of the arc of a curve which connects the easterly side of Farmers Boulevard with the southerly side of 111th Avenue;
RUNNING THENCE easterly through Lot 19 parallel to 111th Avenue and part of the distance through a party wall, 75 feet;
THENCE southerly on a line drawn at right angles to 111th Avenue, 19.75 feet;
THENCE westerly along the southerly line of Lot 19 and parallel with 111th Avenue, 66.89 feet to the easterly side of Fanners Boulevard;
THENCE northerly along the easterly side of Fanners Boulevard, 21.35 feet to the point or place of BEGINNING.
PARCEL 4: BLOCK 10983 LOT: 21:
ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Fourth Ward of the Borough of Queens, City of New York, known and designated upon a certain map entitled “Map of Colfax Gardens, Section 3, Fourth Ward, Borough of Queens, New York City” made by William H. Parry, Civil Engineer and City Surveyor” and dated August 1925 and filed in the Office of the Clerk of the County of Queens November 6,1925 as and by the number 4777, as part of lot no. 3 in Block 9 and also part of lot 9 in block 8, lying west of Colfax Gardens. Fourth Ward, Borough of Queens, New York City, made by William H. Parry, Civil Engineer and City Surveyor, and filed in the Office of the Clerk of the County of Queens on the 9th day of September 1925 as and by number 4735, which said parts of lots when taken together, as one parcel are bounded and described as follows:
BEGINNING at a point on the easterly side of Francis Lewis Boulevard, formerly known as Cross Island Boulevard, distant 120 feet southerly from the comer formed by the intersection of the easterly side of Francis Lewis Boulevard with the southerly side of 112th Avenue, as said avenue and boulevard are laid out on both of said maps;
RUNNING THENCE easterly parallel with the southerly side of 112th Avenue and part of the distance through a party wall, 100 feet;
THENCE southerly parallel with the easterly side of Francis Lewis Boulevard, 20 feet;
THENCE westerly parallel with the southerly side of 112th Avenue and part of the distance through a party wall, 100 feet to the easterly side of Francis Lewis Boulevard;
THENCE northerly along the easterly side of Francis Lewis Boulevard, 20 feet to the point or place of BEGINNING.
SUBJECT to and together with the rights and obligations in and to a common driveway for the benefit of owners of property situate on the easterly side of Francis Lewis Boulevard, lying between the southerly side of 112th Avenue and a point 200 feet distant southerly therefrom for ingress and egress for automobiles in, to and over the following described property;
BEGINNING at a point on the southerly side of 112th Avenue, distant 100 feet easterly from the southeast comer of 112th Avenue and Francis Lewis Boulevard;