Opinion
Index No. 850075/2022 Motion Seq. No. 001
10-03-2022
SKW HILLSIDE BLEECKER LENDER LLC, Plaintiff, v. 145 BLEECKER LLC, HOMES AND MORE LLC. ALBERT RABIZADEH, MAHNAZ RABIZADEH, MCDONALDS CORPORATION, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, JOHN DOE, JOHN ROE Defendant.
Unpublished Opinion
PRESENT: HON. FRANCIS A. KAHN, III, Justice.
DECISION + ORDER ON MOTION
HON. FRANCIS A. KAHN, III, Justice.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90,91,92 were read on this motion to/for APPOINT - FIDUCIARY.
Upon the foregoing documents the motion is determined as follows:
This is an action to foreclose on two mortgages encumbering two parcels of real property located at 145 Bleecker Street, New York, New York and 87-36 Avon Street a/k/a 181-25-181/37 Hillside Avenue a/k/a 181-15 Hillside Avenue, Jamaica, New York. The mortgage on the New York County property was given by Defendant 145 Bleeker LLC ("Bleeker") and secures a note which evidences a loan with an original principal amount of $4,700,000.00. The Queens County property was given by Defendant Homes and More LLC ("Homes") and secures a note which evidences a loan with an original principal amount of $4,000,000.00. Both notes and mortgages were executed by Defendant Albert Rabizadeh ('A. Rabizadeh") as Member on April 20, 2016. Concomitantly therewith, Rabizadeh executed limited guarantees of both loans. Defendant Mahnaz Rabizadeh ("M. Rabizadeh") executed an assumption of guaranty on April 30, 2022.
Under section 2.2 of the Mortgages at issue it is provided, in pertinent part, as follows:
2.2. Remedies, (a) Upon the occurrence and during the continuance of any Event of Default, the Mortgagee may, in addition to any rights or remedies available to it hereunder or at law, take such action as it deems advisable to protect and enforce its rights against the Mortgagor and in and to the Mortgaged Property, including the following actions, each of which may be pursued concurrently or otherwise, at such time and in such order as the Mortgagee may determine, in its sole discretion, without impairing or otherwise affecting the other rights and remedies of the Mortgagee:
(viii) apply for the appointment of a custodian, trustee, receiver, liquidator or conservator of the Mortgaged Property, without notice and without regard for the adequacy of the security for the Debt and without regard for the solvency of the Mortgagor, or of any person, party or entity liable for the payment of the Debt;
Plaintiff commenced the within action to foreclose on the mortgages based upon, inter alia, an alleged maturity default. Defendants Homes and A. Rabizadeh answered and pled thirteen affirmative defenses, a counterclaim and a crossclaim. Defendants Bleeker and M. Rabizadeh answered and pled eight affirmative defenses. Defendant McDonald's Corporation answered and raised two affirmative defenses.
Now, Plaintiff moves pursuant to RPL §254[10] and RPAPL §1325 for the appointment of a temporary receiver of the rents of the mortgaged premises. Defendants Homes, Bleeker, A. Rabizadeh and M. Rabizadeh oppose the motion.
Under Real Property Law §254[10], the appointment of a receiver in the event of a default is proper where the parties to the mortgage agree to same even without notice or without regard to the sufficiency of security (see ADHY Advisors LLC. v 530 W. 152nd St. LLC, 82 A.D.3d 619 [1st Dept 2011]; 366 Fourth St. Corp. v Foxfire Enters., 149 A.D.2d 692 [2nd Dept 1989]). Despite the parties' assent, the appointment is not perfunctory and the court, in the exercise of it equitable power, retains the discretion to deny the appointment of a receiver (see ADHY Advisors LLC. v 530 W. 152nd St. LLC, supra; Nechadim Corp. v Simmons, 171 A.D.3d 1195, 1197 [2d Dept 2019]). In the present case, it is undisputed that the parties' mortgage provides that Plaintiff may apply for the appointment of a receiver regardless of the adequacy of the property as security and Plaintiff pled that Defendant defaulted in repayment. Accordingly, Plaintiff established its entitlement to the appointment of a receiver of the mortgaged premises (see e.g. CSFB 2004-C3 Bronx Apts LLC v Sinckler, Inc., 96 A.D.3d 680 [1st Dept 2012]).
In opposition, Defendants' assertion that RPL §254[10] is inapplicable is without merit. Where a mortgage affords a mortgagee the option to seek the appointment of a receiver upon mortgagor's default, that language it sufficient to invoke RPL §254[10] (see Shaw Funding, LP v Bennett, 185 A.D.3d 857 [2d Dept 2020]["The borrowers also executed a rider to the CEA, in which the parties agreed that, upon the borrowers' default, the plaintiff may 'cause a receiver of the rents and profits of the Mortgaged Property to be appointed without notice to [the borrowers].'"][emphasis added]; 366 Fourth St. Corp. v Foxfire Enters., 149 A.D.2d 692 [2d Dept 1989]["Under Real Property Law § 254 (10), where, as in this case, the parties to a mortgage agree that a receiver may be appointed in the event of default, the appointment of a receiver without notice and without regard to the adequacy of security is proper'][emphasis added]).
Defendants have also not demonstrated that denial of the appointment of a receiver is an appropriate exercise of the Court's discretion (see id.; U.S. Bank, N.A. v Rufai, 202 A.D.3d 719, 721 [2d Dept 2022]; Shaw Funding LP v Bennett, 185 A.D.3d 857, 858 [2nd Dept 2020]). Notably, Defendants have not demonstrated that issues exist as to the validity of the mortgage or whether a default has occurred (cf. Phoenix Grantor Trust v Exclusive Hospitality, LLC, 172 A.D.3d 926 [2d Dept 2019]). Indeed, in the parties' forbearance agreement, dated August 6, 2021, executed by both A. Rabizadeh and M. Rabizadeh, these Defendants acknowledged that "the Loan Documents are valid and binding obligations" and that "there are no claims, setoffs or defenses to the payment and performance by their respective obligations in full hereunder and under the Loan Documents".
Defendants' argument concerning the absence of a need for a receiver is unavailing. Where, as here, the mortgage contains a provision that a lender may "without notice and without regard for the adequacy of the security for the Debt and without regard for the solvency of Borrower'", under RPL §254[10], that provision denotes that a mortgagee may apply for a receiver '"regardless of proving the necessity for the appointment'" (see GECMC 2007-C1 Ditmars Lodging, LLC v Mohola, LLC, 84 A.D.3d 1311,1312 [2d Dept 2011], citing Naar v. I.J. Litwak & Co., 260 A.D.2d 613 [2d Dept 1999]; see also CSFB 2004-C3 Bronx Apts LLC v Sinckler, Inc., supra).
Accordingly, it is ORDERED that the motion for the appointment of a Temporary Receiver is granted; and it is further
ORDERED that, at Plaintiffs request, Edward Andreas Vincent, Borchert & Laspina, P.C., 1902 Whitestone Expy, STE 302, Whitestone, NY 11357-3099, 718-767-3333, evincent@blpcny.com is hereby appointed with the usual powers and directions of a Temporary Receiver for the benefit of Plaintiff of all the rents and profits now due and unpaid or become due during the pendency of this action and issuing out the mortgaged property mentioned in the complaint, known as 747 St. Nicholas Avenue, New York New York; and it is further
ORDERED that the Temporary Receiver is authorized to take charge and enter into possession of the property; and it is further
ORDERED that before entering her/his duties, the Temporary Receiver shall be sown to fairly and faithfully discharge the duties committed to him and shall execute to the People of the State of New York and file with the Clerk of the Court an undertaking in the sum of $156,931.84 conditioned for the faithful discharge of the duties of Temporary Receiver; and it is further
ORDERED that the Temporary Receiver is hereby directed to demand, collect and receive from the occupants, tenants and licensees in possession of said premises, or other persons liable therefor, inclusive of the mortgagor, all the rents and license fees thereof now due or unpaid or hereafter that become fixed or due and the Temporary Receiver is authorized to institute and carry on all legal proceedings necessary for the protection of said premises or to recover possession of the whole, or any part thereof, and apply to this Court to fix reasonable rental value and license fee value and to compel the tenants and occupants to attorn to the Temporary Receiver; and it is further
ORDERED that the Temporary Receiver may institute and prosecute suits for the collection of rent, license fees and other charges now due or hereafter to become due and fixed, and summary proceedings for the removal of any tenants or licensees or other persons therefrom; and it is further
ORDERED that pursuant to the General Obligation Law section 7-105, anybody holding any deposits or advances of rental as security under any lease or license agreement affecting space in the premises affected by this action shall turn same over to said Temporary Receiver within five (5) days after said Temporary Receiver shall be qualified; and thereupon the said Temporary Receiver shall hold such security subject to such disposition thereof as shall be provided in an Order of the Court to be made' and entered in this action; and it is further, ORDERED that anybody in possession of same shall turn over to said Temporary Receiver all rent lists, orders, unexpired and expired leases, agreements, correspondence, notices and registration statements relating to rental spaces or facilities in the premises; and it is further
ORDERED that notwithstanding anything to the contrary contained in this order, the Temporary Receiver shall not, without the further, prior order of this Court, upon prior notice to the plaintiff, make improvements or substantial repairs to the property at a cost in excess of $2,000.00, except that in an emergency, if funds need to be expended in excess of $2,000.00 or would otherwise require Court intervention, no Court approval will be necessary if counsel for plaintiff agrees in writing that the receiver may make such disbursement; and it is further
ORDERED that the Temporary Receiver shall deposit all monies received by her/him into any FDIC-insured bank where she has an account for this purpose and such account shall show the name of this action and the Temporary Receiver shall furnish plaintiffs attorneys with monthly statements of the receipts and expenditures of the Receivership together with a photocopy of the monthly statements received from said depository and no withdrawals shall be made therefrom except as directed by the Court or on a draft or check signed by the Temporary Receiver; and it is further
ORDERED that the Temporary Receiver is authorized from time to time to rent and lease any part of the premises for terms not exceeding one (1) year or such longer terms as may be required by applicable laws or regulations; to keep the premises insured against loss by damage or fire; to pay the taxes, assessments, water rates, sewer rates, vault rents, salaries of employees, supplies and other charges; to comply with all lawful requirements of any municipal department or other authority of the municipality in which the mortgaged premises are situated and to procure such fire, liability and other insurance as may be reasonably necessary; and it is further
ORDERED, that the tenants, licensees or other persons in possession of said premises attorn to the Temporary Receiver and pay over to the Temporary Receiver all rents, license fees, and other charges of such premises now due and unpaid or that may hereafter become due; and that the defendants be enjoined and restrained from collecting the rents, license fees and other charges of said premises from interfering in any manner with the property or its possession; and from transferring, removing or in any way disturbing and of the occupants or employees; and that all tenants, occupants, employees and licensees of the premises and other persons liable for the rents be and hereby are enjoined and restrained from paying any rent or license fees or other charges for such premises to the defendants, their agents, servants or attorneys; and it is further
ORDERED that the Temporary Receiver is prohibited from incurring obligations in excess of the monies in her hands without further Order of this Court or written consent of Plaintiff s attorney and Plaintiff may advance money, which can be recouped in this litigation; and it is further
ORDERED that the Owner turn over to the Temporary Receiver all rents collected from and after the date of this Order; and it is further
ORDERED that all persons now and hereafter in possession of said premises, or any part thereof, and not holding such possession under valid and existing leases or tendencies, do forthwith surrender such possession to the Temporary Receiver, subject to emergency laws, if any, and it is further
ORDERED that the Temporary Receiver after paying the expenses of the management and care of the said premises as above provided retain the balance of the monies which may come into his hands until the sale of the said premises under the judgment to be entered in this action and/or until further Order of this Court, and it is further
ORDERED that the Temporary Receiver, or any party hereto, may at any time, on proper notice to all parties who have appeared in this action, apply to the Court for further and other instructions or powers necessary to enable the Temporary Receiver to properly fulfill her duties or for interim fee payments; and it is further
ORDERED that the appointed named herein shall comply with Section 35a of the Judiciary Law, Sections 6401-6404 of the CPLR, Section 1325 of RPAPL and Rule 36 of the Chief Judge; and it is further
ORDERED that notwithstanding any other provision of this order, the Temporary Receiver shall: not appoint an attorney, managing agent, appraiser, auctioneer or accountant without prior order of this Court, and that the receiver shall apply to the court and file a separate application for appointment of a managing agent, attorney or other managing services pursuant to 36.1 of the Uniform Court Rules.