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FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
------------------------------------------------------------------------X
U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE
TRUSTEE, FOR LHOME MORTGAGE TRUST 2021-
RTL3, MORTGAGE BACKED NOTES, SERIES 2021-
RTL3, AFFIRMATION AND
MEMORANDUM OF LAW IN
Plaintiff, SUPPORT OF PLAINTIFF’S
MOTION FOR LEAVE FOR
-against- DEFAULT JUDGMENT,
APPOINTMENT OF A
MA1041, LLC, A NEW YORK LIMITED LIABILITY REFEREE, AND OTHER
COMPANY; ANTONIA MARTIN, JOHN DOE and MARY RELIEF
ROE, the last two names being fictitious, it being intended to
name all other parties who may have some interest in or lien Index No.: 602874/2024
upon the premises described in the complaint,
Defendants. COMMERCIAL
MORTGAGED PREMISES:
------------------------------------------------------------------------X 1041 Elmont Road
Valley Stream, NY 11580
I am an attorney duly admitted to practice before the Courts of the State of New York
and am an attorney with the law firm of Kelley Kronenberg, attorneys for Plaintiff, U.S. BANK
NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE, FOR LHOME MORTGAGE
TRUST 2021-RTL3, MORTGAGE BACKED NOTES, SERIES 2021-RTL3 (“Plaintiff”).
I am fully familiar with the prior pleadings and proceedings herein based on my role as
counsel for Plaintiff in both the litigation and pre-litigation phases. I am authorized to make this
affirmation on behalf of Plaintiff and offer it in support of Plaintiff’s motion for an order
granting, the relief sought below. In support of this, I state the following:
1. Plaintiff respectfully submits this Affirmation and Memorandum in support of its
motion for an Order: (i) An Order of Default pursuant to CPLR § 3215 as to the
First Cause of Action for Foreclosure of the Note and Mortgage, (ii) an Order of
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Default pursuant to CPLR § 3215 as to the Second Cause of Action for Breach
of the Guaranty Agreement; (iii) an Order, pursuant to CPLR § 603, against the
Guarantor, for later determination in the event an auction of the Property, court-
ordered herein pursuant RPAPL § 1351, results in a deficiency with respect to
the amount due and owing to Plaintiff; (iv) the Appointment of a Referee to
determine the amounts due and owing to the Plaintiff, (v) an Order amending the
Caption to strike unnecessary Defendants JOHN DOE through MARY ROE and
add a Defendant served at the subject property, and (vi) for such additional relief
as this court deems just and proper. In support of this, I state the following:
2. The responding Defendants only filed a Notice of Appearance through counsel on
March 12, 2024. (DN # 17). The time to file an Answer expired.
3. For the foregoing reasons and those more fully set forth below, this Court should
grant the Motion in its entirety.
I. NATURE OF THE ACTION AND THE
PARTIES
4. This is an action to foreclose a commercial mortgage loan which was entered into
for a “fix and flip” business purpose, together with the related loan instruments
encumbering real property wholly situated in the County of Nassau, State of New
York, commonly referred to as 1041 ELMONT ROAD, VALLEY STREAM, NY
11580, as more particularly described and identified by the legal metes and bounds
description of the land included and improvement thereof as set forth in Schedule
A of the Complaint (the “Mortgaged Property”).
5. Plaintiff is the owner of any and all right, title, and interest in the Loan Documents.
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6. Defendant, MA1041, LLC, A NEW YORK LIMITED LIABILITY COMPANY
(“MA1041 LLC”) is a New York Limited Liability Company.
7. MA1041, LLC is joined as a party defendant herein due to its execution and
delivery of various loan documents to Plaintiff, as well as being the borrower of the
commercial debt described herein, and the mortgagor of the Mortgaged Property.
Any and all right, title or interest the Defendants may have in and to the Mortgaged
Property is in all respects subordinate, junior and subject to Plaintiff’s mortgage lien
as set forth herein.
8. ANTONIA MARTIN (“MARTIN”) is an individual resident of the State of New
York and a Member of Co-Defendant MA1041, LLC.
9. MARTIN is joined herein due to his execution and delivery of various Loan
Documents to Plaintiff, including that certain Guaranty dated on or about February
10, 2023 (the “Guaranty”).
10. MA1041 LLC, collectively, with MARTIN, are the “Obligors” herein.
11. Plaintiff has also caused a title search to be conducted and confirms that there are
no parties necessary for this foreclosure action other than those named in the
Complaint.
12. The Commercial Division of the Supreme Court has exclusive jurisdiction of the
matter pursuant to the loan documents which are the subject of this action pursuant
to Paragraph B, Section 6.31 of the subject Mortgage which was attached to the
Complaint filed in this action, provided in support of this motion, and referenced
herein.
II. THE PROCEDURAL HISTORY
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13. This commercial mortgage foreclosure action was commenced by the filing of the
summons and complaint in the Nassau County Clerk’s Office on February 15, 2024
(DN #1).
14. The summons and complaint are in the form prescribed by statute and contain all
the particulars required by law. True and accurate copies of the filed Summons and
Complaint are attached hereto as Exhibit A.
15. Plaintiff also filed the Notice of Pendency in accordance with RPAPL § 1331 and
CPLR Article 65 (DN #6). A true and accurate copy of the filed Notice of Pendency
is annexed hereto as Exhibit B.
16. The Obligors executed and delivered a certain Note to original lender Kiavi
Funding, Inc., and its successors and assigns, bearing that date, whereby the
Borrowers covenanted and agreed to pay the principal sum of $768,600.00, subject
to the terms more fully set forth in the Note. See Exhibit C.
17. The Obligors duly executed and delivered a Mortgage duly executed and delivered
a Mortgage to Kiavi Funding, Inc., a Delaware Corporation, and its successors and
assigns, which was recorded in the Office of the Nassau County Clerk on April 3,
2023, at Book 47098 and Page 12. The Obligors also executed a Construction Loan
Rider to Security Instrument (hereinafter the “Construction Loan Rider”) on
February 10, 2023, which is attached to, and a part of the Mortgage discussed
herein. See Exhibit D.
18. The obligations under the Note are personally guaranteed by a “Guaranty”
agreement document executed by Guarantor MARTIN, an unmarried person, to
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Kiavi Funding Inc., its successors and assigns, also dated February 10, 2023 (the
“Guaranty”). The Guaranty is annexed hereto as Exhibit E.
19. The Mortgage and Note and underlying obligations were assigned from Kiavi
Funding, Inc., to the named Plaintiff, U.S. BANK NATIONAL ASSOCIATION,
AS INDENTURE TRUSTEE, FOR LHOME MORTGAGE TRUST 2021-RTL3,
MORTGAGE BACKED NOTES, SERIES 2021-RTL3. The Assignment was
executed on February 14, 2024, and then recorded in Nassau County, New York on
March 13, 2024, at Book 4743 and Page 223. A copy of the recorded Assignment
is annexed hereto as Exhibit F.
20. The Mortgage being foreclosed is not a loan for residential purposes, a “high-cost
home loan” or “subprime home loan,” as such terms are defined in section six-l and
six-m of the N.Y. Banking Law and is not a “home loan” for purposes of section
1304 of the N.Y. Real Property Actions and Proceedings Law (“RPAPL”).
21. RPAPL §1304 and §1306 are not applicable because the loan, which is the subject
of this action, is a commercial loan.
22. Likewise, CPLR §3012-b is not applicable because the loan, which is the subject
of this action, is a commercial loan on residential real property, not a home loan.
23. According to the affidavits of service filed in the Nassau County Clerk’s Office,
the summons was served with the complaint and all Defendants were served with
the Complaint appropriately. The Affidavits of Service annexed hereto as
composite Exhibit G.
24. MA1041 LLC and MARTIN retained the same counsel, Yvette Bentham, Esq., who
filed a Notice of Appearance on March 12, 2024 (DN# 17). A copy of same annexed
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hereto as Exhibit H. While the Notice of Appearance was filed, no other response,
Answer, or request has been filed or served.
25. The Commencement Papers were also personally and individually served upon the
tenant occupant located at the subject property on February 15, 2023. This
individual is now known and identified as MICHAEL HOLNESS AS "JOHN DOE
#1." See again the Affidavits of Service annexed hereto as composite Exhibit G.
26. All possible occupants and tenants of the subject property were provided the
appropriate required notice under RPAPL§ 1303.
27. The tenant Defendant discussed above has failed to respond to the Complaint.
28. Upon information and belief, no defendant is an infant, incompetent, or is in the
armed services of the United States of America. Undersigned Counsel has executed
Non-Military Affidavits for MARTIN and the Unknown Tenant Defendant
MICHAEL HOLNESS AS "JOHN DOE #1" discussing same. They are annexed
hereto as composite Exhibit I.
ARGUMENT
I. A DEFAULT JUDGMENT SHOULD BE ENTERED.
1. All Defendants were properly served with the Complaint and to date have each
failed to file answers to the Complaint.
2. The responding Defendants MA1041 LLC, and MARTIN, only filed a Notice of
Appearance through counsel on March 12, 2024. (DN # 17). The time to file an
Answer expired.
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3. As the Defendants have not Answered or provided any justifiable excuse for their
default and have not raised any defenses or presented a proposed answer, they are
in default.
4. Based on the foregoing, this Court should grant Plaintiff default judgment against
the Defaulting Defendants as to the Complaint pursuant to CPLR 3215(a).
5. Pursuant to CPLR § 3215(a), the Court may enter a default judgment “[w]hen a
defendant has failed to appear[ or] plead....” See CPLR § 3215(a). This applies
where a defendant has failed to timely answer a complaint. See Vigo v. 501 Second
St. Holding Corp., 100 A.D.3d 871, 871 (2d Dep't 2012).
6. Although a defendant “appears” within the meaning of CPLR 320(a) by merely
serving a notice of appearance, service of a notice of appearance does not “absolve
a defendant from complying with the time restrictions imposed by CPLR 320(a)
which govern the service of an answer or the making of a motion pursuant to CPLR
3211.” See 21st Mortgage Corp. v. Raghu, 197 A.D.3d 1212, 154 N.Y.S.3d 84, 89–
90 (2d Dept. 2021).
7. While a notice of appearance satisfies CPLR § 320(a), “[t]he failure to interpose a
timely answer constitutes a default in pleading, an independent default basis that is
analytically ‘distinct from a failure to appear,’” see, id., 21st Mtge. Corp. at 1215).
8. To avoid the entry of a default judgment, a defendant who files a notice of
appearance should nevertheless serve an answer within 20 days after service of the
complaint. See Nationstar Mtge., LLC v Reitman, 198 AD3d 793, 794 [2d Dept
2021] [Court granted motion to enter a default judgment where although defendant
served a notice of appearance, he did not serve an answer.]; see also Deutsche Bank
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Natl. Tr. Co. v Bararaky, 188 AD3d 1157, 1158 [2d Dept 2020][“Contrary to the
defendant's contention, she defaulted in the action by failing to timely answer the
complaint; filing a notice of appearance and appearing at settlement conferences
did not cure her default.”]; see also LaSalle Bank, N.A. v LoRusso, 155 AD3d 706,
706 [2d Dept 2017] [same]).
9. Additionally, where the plaintiff has demonstrated, prima facie, that a defendant is
in default because he or she “failed to appear” within the meaning of CPLR 3215(a),
that defendant is generally precluded from raising any nonjurisdictional defense
without first rebutting the prima facie showing of default (see First Franklin Fin.
Corp. v. Alfau, 157 A.D.3d 863, 865, 70 N.Y.S.3d 518; Nationstar Mtge., LLC v.
Kamil, 155 A.D.3d 968, 968, 63 N.Y.S.3d 890; Fried v. Jacob Holding, Inc., 110
A.D.3d 56, 60, 970 N.Y.S.2d 260; cf. CPLR 5015[a]), and obtaining leave to serve
a late answer (see CPLR 3012[d]). See Deutsche Bank Nat'l Tr. Co. v. Hall, 185
A.D.3d 1006, 1011, 129 N.Y.S.3d 146, 151 (2d Dept. 2020).
10. As the Defendants have only filed a Notice of Appearance, a Default judgment is
appropriate here.
11. A plaintiff establishes its “entitle[ment] to a default judgment and an order of
reference where it submits proof of service of the summons and complaint, proof
of the facts constituting its claim, and proof of the defendant's default in answering
or appearing.” See Wells Fargo Bank, N.A. v. Halberstam, 166 A.D.3d 710, 711
(2d Dep't 2018); see also CPLR § 3215(f).
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12. New York Civil Practice Law and Rules § 3215 provides that “[w]hen a defendant
has failed to appear, plead or proceed to trial of an action reached and called for
trial . . . the plaintiff may seek a default judgment against him.” CPLR § 3215(a).
13. CPLR § 3215 continues by stating, “[w]here the case is not one in which the clerk
can enter judgment, the plaintiff shall apply to the court for judgment.” Id.
14. A party applying to the court for judgment by default “shall file proof of service of
the summons and the complaint … proof of the facts constituting the claim, the
default and the amount due by affidavit made by the party ….” CPLR § 3215(f).
15. In further support of the instant Motion, the Plaintiff has filed an Affidavit in
Support executed by Kristin Synan, a Special Servicing Team Lead for the Servicer
and Attorney-In-Fact for the Plaintiff. The Limited Power of Attorney is annexed
in support as Exhibit A to the Affidavit in Support.
16. As detailed below and in the Synan Affidavit, this Court should grant Plaintiff a
default judgment against all defendants because they have failed to timely answer
the Complaint, despite proper service of same, and the Plaintiff has submitted proof
of the facts constituting its claim and proof of the Obligors’ default.
17. With its submissions together with this Motion, Plaintiff has demonstrated its
entitlement to a default judgment.
18. The Synan Affidavit puts forth evidence and testimony that MA1041 LLC executed
the Note in favor of Original Lender (see Synan Affd. ¶ 5, Ex. B), that funds were
advanced to Obligors pursuant to the terms of the Note and Guaranty (id. ¶¶ 5, 6,
7, Exs. B, C, D), and that as collateral security for the payment of the Note, the
Obligors, executed, acknowledged and delivered the Mortgage (id. ¶ 6, Ex. C).
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19. Synan provides further testimony and evidence that Plaintiff is the lawful holder of
the Note (id. ¶¶ 5,8, Exs. B, E), and the assignee of the Note and Mortgage by virtue
of the Assignment of Mortgage (id. ¶ 8, Ex. E).
20. The Synan Affidavit goes on to provide testimony that the Obligors are in default
of their obligations under the Note, Mortgage, and Guaranty by failing to remit all
sums due commencing with the payment due on December 1, 2023, and all
subsequent payments, and the time to remit all sums due expired. The loan which
is the subject of this action also reached full maturity on March 1, 2024 (id. ¶,10,
11, Ex. C.).
21. Synan provides further evidence and testimony in support that the Obligors are in
default of their obligations under the Note and Mortgage and Guaranty by failing
to remit all sums due by the time the loan matured on October 23, 2022, and the
time to remit all sums due expired. (id. ¶¶ 10, 12, 13 Ex. B, D).
22. Synan also provides testimony and evidence supporting the point that the Obligors
waived the defenses to the enforcement of the Guaranty. (id. Ex. D ¶ 15).
23. Under CPLR § 3215, the Plaintiff is entitled to the entry of a default judgment
against each of the Defaulting Defendants because it has established proper service
on each of them of the Summons and Complaint and notice of pendency, as well as
proof of their default and their failure to file an Answer.
I. A DEFAULT JUDGMENT SHOULD ALSO BE GRANTED AS TO
BREACH OF THE GUARANTY AGREEMENT.
24. Regarding Breach of the Guaranty, in an action to enforce a written guaranty, all
that is needed on a motion for summary judgment is for the plaintiff to prove “an
absolute and unconditional guaranty, the underlying debt, and the guarantor's
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failure to perform under the guaranty.” See, e.g., City of New York v. Clarose
Cinema Corp., 256 A.D.2d 69, 71 (1st Dep't 1998).
25. The plaintiff again established its prima facie entitlement to judgment as a matter
of law through its submission of the loan agreements, the Guaranty, and evidence
that the Defendants failed to make payment in accordance with the terms of those
instruments.
26. The Obligors waived the defenses to the enforcement of the Guaranty here. The
Guaranty contained an absolute, continuing and unconditioned guaranty of
payment in which the defendant agreed to remain liable even where it would
otherwise be entitled to an equitable or legal discharge of his obligations. (Id. Ex.
D ¶ 15).
27. The Plaintiff is also entitled to an Order, pursuant to CPLR § 603, against the
Guarantor, for later determination in the event an auction of the Property, court-
ordered herein pursuant RPAPL § 1351, results in a deficiency with respect to the
amount due and owing to Plaintiff, that Plaintiff may seek same.
28. Plaintiff again respectfully requests that a judgment be entered in its favor
consistent with the relief sought in its Complaint and as detailed in the
accompanying proposed Order as to this Count for Breach of the Guaranty
Agreement as well.
29. The Court should therefore enter a default judgment against each of the Defaulting
Defendants. See, e.g., M.R. v. 2526 Valentine LLC, 58 A.D.3d 530, 531 (1st Dep't
2009) (default judgment entered where defendant failed to respond to summons and
complaint or notice of intention to seek default judgment).
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II. A REFEREE SHOULD BE APPOINTED TO COMPUTE DAMAGES.
30. Plaintiff further requests that the Court appoint a referee to: (a) to ascertain and
compute the amounts presently due Plaintiff under the Loan Documents and (b)
examine and report whether or not the Mortgaged Property can be sold in parcels
and to report to this Court with all convenient speed. See RPAPL § 1321.
31. A court’s referral of a case to a referee to compute the sum due to a mortgagee
following the granting of a mortgagee’s summary judgment motion is proper
where, as here, there are no questions of fact to prevent the reference. See Vermont
Fed. Bank v. Chase, 226 A.D.2d 1034, 641 N.Y.S.2d 440 (3d Dep’t 1996).
32. No other action for the recovery of monies mentioned in the Complaint has ever
been commenced and no previous application has been made for the relief
requested in the annexed Order.
33. Based on the foregoing, this Court should appoint a referee to compute the amount
due and owing to Plaintiff on the Loan pursuant to RPAPL § 1321.
34. There have been no defenses asserted or any viable arguments to excuse the default
on the payment obligations under the Loan Documents.
III. THE CAPTION SHOULD BE AMENDED
35. The Plaintiff requests this Court amend the caption to strike Defendants, JOHN
DOE through MARY DOE, and substitute as party defendants the occupants served
at the property, now identified as MICHAEL HOLNESS AS "JOHN DOE #1." See
again the Affidavits of Service annexed hereto as composite Exhibit G.,
36. An amendment to the caption is appropriate pursuant to CPLR §§ 1018 and 1021.
37. Plaintiff is entitled to an order amending the caption to strike party Defendants
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which do not exist, and substitute the Defendant served and identified at the
property as a party defendant.
IV. CONCLUSION
38. As no Defendants have Answered the Complaint, a Default Judgment as to both
causes of action is appropriate. Plaintiff respectfully requests an Order providing:
(i) An Order of Default pursuant to CPLR § 3215 as to the First Cause of Action
for Foreclosure of the Note and Mortgage, (ii) an Order of Default pursuant to
CPLR § 3215 as to the Second Cause of Action for Breach of the Guaranty
Agreement; (iii) an Order, pursuant to CPLR § 603, against the Guarantor, for
later determination in the event an auction of the Property, court-ordered herein
pursuant RPAPL § 1351, results in a deficiency with respect to the amount due
and owing to Plaintiff; (iv) the Appointment of a Referee to determine the
amounts due and owing to the Plaintiff, (v) an Order amending the Caption to
strike unnecessary Defendants JOHN DOE through MARY ROE and add a
Defendant served at the subject property, and (vi) for such additional relief as this
court deems just and proper
WHEREFORE, Plaintiff respectfully requests that this Court issue and order
granting the within motion in its entirety, including as set forth in the annexed proposed
Order.
Dated: April 12, 2024
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KELLEY KRONENBERG
Attorneys for Plaintiff
By: S/JASON SILVER, ESQ.
Jason Silver, Esq.
250 Park Ave, 7th Floor
New York, NY 10177
P: (800) 484-4381
CERTIFICATION OF WORD COUNT
COMPLIANCE
Plaintiff, through its counsel, Kelley Kronenberg, hereby certifies that the body of this
Affirmation and Memorandum of Law in Support of Plaintiff's Motion for Default Judgment and
Other Relief is in compliance with Section 202.8-b of the Uniform Civil Rules for the N.Y. State
Trial Courts because it contains 3,356 (excluding the caption, table of contents, table of
authorities and signature block).
Dated: April 12, 2024
By: S/ JASON SILVER
Jason Silver Esq.
Kelley Kronenberg
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Preview
FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------------------------------------------------------------------------X U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE, FOR LHOME MORTGAGE TRUST 2021- RTL3, MORTGAGE BACKED NOTES, SERIES 2021- RTL3, AFFIRMATION AND MEMORANDUM OF LAW IN Plaintiff, SUPPORT OF PLAINTIFF’S MOTION FOR LEAVE FOR -against- DEFAULT JUDGMENT, APPOINTMENT OF A MA1041, LLC, A NEW YORK LIMITED LIABILITY REFEREE, AND OTHER COMPANY; ANTONIA MARTIN, JOHN DOE and MARY RELIEF ROE, the last two names being fictitious, it being intended to name all other parties who may have some interest in or lien Index No.: 602874/2024 upon the premises described in the complaint, Defendants. COMMERCIAL MORTGAGED PREMISES: ------------------------------------------------------------------------X 1041 Elmont Road Valley Stream, NY 11580 I am an attorney duly admitted to practice before the Courts of the State of New York and am an attorney with the law firm of Kelley Kronenberg, attorneys for Plaintiff, U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE, FOR LHOME MORTGAGE TRUST 2021-RTL3, MORTGAGE BACKED NOTES, SERIES 2021-RTL3 (“Plaintiff”). I am fully familiar with the prior pleadings and proceedings herein based on my role as counsel for Plaintiff in both the litigation and pre-litigation phases. I am authorized to make this affirmation on behalf of Plaintiff and offer it in support of Plaintiff’s motion for an order granting, the relief sought below. In support of this, I state the following: 1. Plaintiff respectfully submits this Affirmation and Memorandum in support of its motion for an Order: (i) An Order of Default pursuant to CPLR § 3215 as to the First Cause of Action for Foreclosure of the Note and Mortgage, (ii) an Order of 1 of 14 FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024 Default pursuant to CPLR § 3215 as to the Second Cause of Action for Breach of the Guaranty Agreement; (iii) an Order, pursuant to CPLR § 603, against the Guarantor, for later determination in the event an auction of the Property, court- ordered herein pursuant RPAPL § 1351, results in a deficiency with respect to the amount due and owing to Plaintiff; (iv) the Appointment of a Referee to determine the amounts due and owing to the Plaintiff, (v) an Order amending the Caption to strike unnecessary Defendants JOHN DOE through MARY ROE and add a Defendant served at the subject property, and (vi) for such additional relief as this court deems just and proper. In support of this, I state the following: 2. The responding Defendants only filed a Notice of Appearance through counsel on March 12, 2024. (DN # 17). The time to file an Answer expired. 3. For the foregoing reasons and those more fully set forth below, this Court should grant the Motion in its entirety. I. NATURE OF THE ACTION AND THE PARTIES 4. This is an action to foreclose a commercial mortgage loan which was entered into for a “fix and flip” business purpose, together with the related loan instruments encumbering real property wholly situated in the County of Nassau, State of New York, commonly referred to as 1041 ELMONT ROAD, VALLEY STREAM, NY 11580, as more particularly described and identified by the legal metes and bounds description of the land included and improvement thereof as set forth in Schedule A of the Complaint (the “Mortgaged Property”). 5. Plaintiff is the owner of any and all right, title, and interest in the Loan Documents. 2 of 14 FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024 6. Defendant, MA1041, LLC, A NEW YORK LIMITED LIABILITY COMPANY (“MA1041 LLC”) is a New York Limited Liability Company. 7. MA1041, LLC is joined as a party defendant herein due to its execution and delivery of various loan documents to Plaintiff, as well as being the borrower of the commercial debt described herein, and the mortgagor of the Mortgaged Property. Any and all right, title or interest the Defendants may have in and to the Mortgaged Property is in all respects subordinate, junior and subject to Plaintiff’s mortgage lien as set forth herein. 8. ANTONIA MARTIN (“MARTIN”) is an individual resident of the State of New York and a Member of Co-Defendant MA1041, LLC. 9. MARTIN is joined herein due to his execution and delivery of various Loan Documents to Plaintiff, including that certain Guaranty dated on or about February 10, 2023 (the “Guaranty”). 10. MA1041 LLC, collectively, with MARTIN, are the “Obligors” herein. 11. Plaintiff has also caused a title search to be conducted and confirms that there are no parties necessary for this foreclosure action other than those named in the Complaint. 12. The Commercial Division of the Supreme Court has exclusive jurisdiction of the matter pursuant to the loan documents which are the subject of this action pursuant to Paragraph B, Section 6.31 of the subject Mortgage which was attached to the Complaint filed in this action, provided in support of this motion, and referenced herein. II. THE PROCEDURAL HISTORY 3 of 14 FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024 13. This commercial mortgage foreclosure action was commenced by the filing of the summons and complaint in the Nassau County Clerk’s Office on February 15, 2024 (DN #1). 14. The summons and complaint are in the form prescribed by statute and contain all the particulars required by law. True and accurate copies of the filed Summons and Complaint are attached hereto as Exhibit A. 15. Plaintiff also filed the Notice of Pendency in accordance with RPAPL § 1331 and CPLR Article 65 (DN #6). A true and accurate copy of the filed Notice of Pendency is annexed hereto as Exhibit B. 16. The Obligors executed and delivered a certain Note to original lender Kiavi Funding, Inc., and its successors and assigns, bearing that date, whereby the Borrowers covenanted and agreed to pay the principal sum of $768,600.00, subject to the terms more fully set forth in the Note. See Exhibit C. 17. The Obligors duly executed and delivered a Mortgage duly executed and delivered a Mortgage to Kiavi Funding, Inc., a Delaware Corporation, and its successors and assigns, which was recorded in the Office of the Nassau County Clerk on April 3, 2023, at Book 47098 and Page 12. The Obligors also executed a Construction Loan Rider to Security Instrument (hereinafter the “Construction Loan Rider”) on February 10, 2023, which is attached to, and a part of the Mortgage discussed herein. See Exhibit D. 18. The obligations under the Note are personally guaranteed by a “Guaranty” agreement document executed by Guarantor MARTIN, an unmarried person, to 4 of 14 FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024 Kiavi Funding Inc., its successors and assigns, also dated February 10, 2023 (the “Guaranty”). The Guaranty is annexed hereto as Exhibit E. 19. The Mortgage and Note and underlying obligations were assigned from Kiavi Funding, Inc., to the named Plaintiff, U.S. BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE, FOR LHOME MORTGAGE TRUST 2021-RTL3, MORTGAGE BACKED NOTES, SERIES 2021-RTL3. The Assignment was executed on February 14, 2024, and then recorded in Nassau County, New York on March 13, 2024, at Book 4743 and Page 223. A copy of the recorded Assignment is annexed hereto as Exhibit F. 20. The Mortgage being foreclosed is not a loan for residential purposes, a “high-cost home loan” or “subprime home loan,” as such terms are defined in section six-l and six-m of the N.Y. Banking Law and is not a “home loan” for purposes of section 1304 of the N.Y. Real Property Actions and Proceedings Law (“RPAPL”). 21. RPAPL §1304 and §1306 are not applicable because the loan, which is the subject of this action, is a commercial loan. 22. Likewise, CPLR §3012-b is not applicable because the loan, which is the subject of this action, is a commercial loan on residential real property, not a home loan. 23. According to the affidavits of service filed in the Nassau County Clerk’s Office, the summons was served with the complaint and all Defendants were served with the Complaint appropriately. The Affidavits of Service annexed hereto as composite Exhibit G. 24. MA1041 LLC and MARTIN retained the same counsel, Yvette Bentham, Esq., who filed a Notice of Appearance on March 12, 2024 (DN# 17). A copy of same annexed 5 of 14 FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024 hereto as Exhibit H. While the Notice of Appearance was filed, no other response, Answer, or request has been filed or served. 25. The Commencement Papers were also personally and individually served upon the tenant occupant located at the subject property on February 15, 2023. This individual is now known and identified as MICHAEL HOLNESS AS "JOHN DOE #1." See again the Affidavits of Service annexed hereto as composite Exhibit G. 26. All possible occupants and tenants of the subject property were provided the appropriate required notice under RPAPL§ 1303. 27. The tenant Defendant discussed above has failed to respond to the Complaint. 28. Upon information and belief, no defendant is an infant, incompetent, or is in the armed services of the United States of America. Undersigned Counsel has executed Non-Military Affidavits for MARTIN and the Unknown Tenant Defendant MICHAEL HOLNESS AS "JOHN DOE #1" discussing same. They are annexed hereto as composite Exhibit I. ARGUMENT I. A DEFAULT JUDGMENT SHOULD BE ENTERED. 1. All Defendants were properly served with the Complaint and to date have each failed to file answers to the Complaint. 2. The responding Defendants MA1041 LLC, and MARTIN, only filed a Notice of Appearance through counsel on March 12, 2024. (DN # 17). The time to file an Answer expired. 6 of 14 FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024 3. As the Defendants have not Answered or provided any justifiable excuse for their default and have not raised any defenses or presented a proposed answer, they are in default. 4. Based on the foregoing, this Court should grant Plaintiff default judgment against the Defaulting Defendants as to the Complaint pursuant to CPLR 3215(a). 5. Pursuant to CPLR § 3215(a), the Court may enter a default judgment “[w]hen a defendant has failed to appear[ or] plead....” See CPLR § 3215(a). This applies where a defendant has failed to timely answer a complaint. See Vigo v. 501 Second St. Holding Corp., 100 A.D.3d 871, 871 (2d Dep't 2012). 6. Although a defendant “appears” within the meaning of CPLR 320(a) by merely serving a notice of appearance, service of a notice of appearance does not “absolve a defendant from complying with the time restrictions imposed by CPLR 320(a) which govern the service of an answer or the making of a motion pursuant to CPLR 3211.” See 21st Mortgage Corp. v. Raghu, 197 A.D.3d 1212, 154 N.Y.S.3d 84, 89– 90 (2d Dept. 2021). 7. While a notice of appearance satisfies CPLR § 320(a), “[t]he failure to interpose a timely answer constitutes a default in pleading, an independent default basis that is analytically ‘distinct from a failure to appear,’” see, id., 21st Mtge. Corp. at 1215). 8. To avoid the entry of a default judgment, a defendant who files a notice of appearance should nevertheless serve an answer within 20 days after service of the complaint. See Nationstar Mtge., LLC v Reitman, 198 AD3d 793, 794 [2d Dept 2021] [Court granted motion to enter a default judgment where although defendant served a notice of appearance, he did not serve an answer.]; see also Deutsche Bank 7 of 14 FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024 Natl. Tr. Co. v Bararaky, 188 AD3d 1157, 1158 [2d Dept 2020][“Contrary to the defendant's contention, she defaulted in the action by failing to timely answer the complaint; filing a notice of appearance and appearing at settlement conferences did not cure her default.”]; see also LaSalle Bank, N.A. v LoRusso, 155 AD3d 706, 706 [2d Dept 2017] [same]). 9. Additionally, where the plaintiff has demonstrated, prima facie, that a defendant is in default because he or she “failed to appear” within the meaning of CPLR 3215(a), that defendant is generally precluded from raising any nonjurisdictional defense without first rebutting the prima facie showing of default (see First Franklin Fin. Corp. v. Alfau, 157 A.D.3d 863, 865, 70 N.Y.S.3d 518; Nationstar Mtge., LLC v. Kamil, 155 A.D.3d 968, 968, 63 N.Y.S.3d 890; Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260; cf. CPLR 5015[a]), and obtaining leave to serve a late answer (see CPLR 3012[d]). See Deutsche Bank Nat'l Tr. Co. v. Hall, 185 A.D.3d 1006, 1011, 129 N.Y.S.3d 146, 151 (2d Dept. 2020). 10. As the Defendants have only filed a Notice of Appearance, a Default judgment is appropriate here. 11. A plaintiff establishes its “entitle[ment] to a default judgment and an order of reference where it submits proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defendant's default in answering or appearing.” See Wells Fargo Bank, N.A. v. Halberstam, 166 A.D.3d 710, 711 (2d Dep't 2018); see also CPLR § 3215(f). 8 of 14 FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024 12. New York Civil Practice Law and Rules § 3215 provides that “[w]hen a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial . . . the plaintiff may seek a default judgment against him.” CPLR § 3215(a). 13. CPLR § 3215 continues by stating, “[w]here the case is not one in which the clerk can enter judgment, the plaintiff shall apply to the court for judgment.” Id. 14. A party applying to the court for judgment by default “shall file proof of service of the summons and the complaint … proof of the facts constituting the claim, the default and the amount due by affidavit made by the party ….” CPLR § 3215(f). 15. In further support of the instant Motion, the Plaintiff has filed an Affidavit in Support executed by Kristin Synan, a Special Servicing Team Lead for the Servicer and Attorney-In-Fact for the Plaintiff. The Limited Power of Attorney is annexed in support as Exhibit A to the Affidavit in Support. 16. As detailed below and in the Synan Affidavit, this Court should grant Plaintiff a default judgment against all defendants because they have failed to timely answer the Complaint, despite proper service of same, and the Plaintiff has submitted proof of the facts constituting its claim and proof of the Obligors’ default. 17. With its submissions together with this Motion, Plaintiff has demonstrated its entitlement to a default judgment. 18. The Synan Affidavit puts forth evidence and testimony that MA1041 LLC executed the Note in favor of Original Lender (see Synan Affd. ¶ 5, Ex. B), that funds were advanced to Obligors pursuant to the terms of the Note and Guaranty (id. ¶¶ 5, 6, 7, Exs. B, C, D), and that as collateral security for the payment of the Note, the Obligors, executed, acknowledged and delivered the Mortgage (id. ¶ 6, Ex. C). 9 of 14 FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024 19. Synan provides further testimony and evidence that Plaintiff is the lawful holder of the Note (id. ¶¶ 5,8, Exs. B, E), and the assignee of the Note and Mortgage by virtue of the Assignment of Mortgage (id. ¶ 8, Ex. E). 20. The Synan Affidavit goes on to provide testimony that the Obligors are in default of their obligations under the Note, Mortgage, and Guaranty by failing to remit all sums due commencing with the payment due on December 1, 2023, and all subsequent payments, and the time to remit all sums due expired. The loan which is the subject of this action also reached full maturity on March 1, 2024 (id. ¶,10, 11, Ex. C.). 21. Synan provides further evidence and testimony in support that the Obligors are in default of their obligations under the Note and Mortgage and Guaranty by failing to remit all sums due by the time the loan matured on October 23, 2022, and the time to remit all sums due expired. (id. ¶¶ 10, 12, 13 Ex. B, D). 22. Synan also provides testimony and evidence supporting the point that the Obligors waived the defenses to the enforcement of the Guaranty. (id. Ex. D ¶ 15). 23. Under CPLR § 3215, the Plaintiff is entitled to the entry of a default judgment against each of the Defaulting Defendants because it has established proper service on each of them of the Summons and Complaint and notice of pendency, as well as proof of their default and their failure to file an Answer. I. A DEFAULT JUDGMENT SHOULD ALSO BE GRANTED AS TO BREACH OF THE GUARANTY AGREEMENT. 24. Regarding Breach of the Guaranty, in an action to enforce a written guaranty, all that is needed on a motion for summary judgment is for the plaintiff to prove “an absolute and unconditional guaranty, the underlying debt, and the guarantor's 10 of 14 FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024 failure to perform under the guaranty.” See, e.g., City of New York v. Clarose Cinema Corp., 256 A.D.2d 69, 71 (1st Dep't 1998). 25. The plaintiff again established its prima facie entitlement to judgment as a matter of law through its submission of the loan agreements, the Guaranty, and evidence that the Defendants failed to make payment in accordance with the terms of those instruments. 26. The Obligors waived the defenses to the enforcement of the Guaranty here. The Guaranty contained an absolute, continuing and unconditioned guaranty of payment in which the defendant agreed to remain liable even where it would otherwise be entitled to an equitable or legal discharge of his obligations. (Id. Ex. D ¶ 15). 27. The Plaintiff is also entitled to an Order, pursuant to CPLR § 603, against the Guarantor, for later determination in the event an auction of the Property, court- ordered herein pursuant RPAPL § 1351, results in a deficiency with respect to the amount due and owing to Plaintiff, that Plaintiff may seek same. 28. Plaintiff again respectfully requests that a judgment be entered in its favor consistent with the relief sought in its Complaint and as detailed in the accompanying proposed Order as to this Count for Breach of the Guaranty Agreement as well. 29. The Court should therefore enter a default judgment against each of the Defaulting Defendants. See, e.g., M.R. v. 2526 Valentine LLC, 58 A.D.3d 530, 531 (1st Dep't 2009) (default judgment entered where defendant failed to respond to summons and complaint or notice of intention to seek default judgment). 11 of 14 FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024 II. A REFEREE SHOULD BE APPOINTED TO COMPUTE DAMAGES. 30. Plaintiff further requests that the Court appoint a referee to: (a) to ascertain and compute the amounts presently due Plaintiff under the Loan Documents and (b) examine and report whether or not the Mortgaged Property can be sold in parcels and to report to this Court with all convenient speed. See RPAPL § 1321. 31. A court’s referral of a case to a referee to compute the sum due to a mortgagee following the granting of a mortgagee’s summary judgment motion is proper where, as here, there are no questions of fact to prevent the reference. See Vermont Fed. Bank v. Chase, 226 A.D.2d 1034, 641 N.Y.S.2d 440 (3d Dep’t 1996). 32. No other action for the recovery of monies mentioned in the Complaint has ever been commenced and no previous application has been made for the relief requested in the annexed Order. 33. Based on the foregoing, this Court should appoint a referee to compute the amount due and owing to Plaintiff on the Loan pursuant to RPAPL § 1321. 34. There have been no defenses asserted or any viable arguments to excuse the default on the payment obligations under the Loan Documents. III. THE CAPTION SHOULD BE AMENDED 35. The Plaintiff requests this Court amend the caption to strike Defendants, JOHN DOE through MARY DOE, and substitute as party defendants the occupants served at the property, now identified as MICHAEL HOLNESS AS "JOHN DOE #1." See again the Affidavits of Service annexed hereto as composite Exhibit G., 36. An amendment to the caption is appropriate pursuant to CPLR §§ 1018 and 1021. 37. Plaintiff is entitled to an order amending the caption to strike party Defendants 12 of 14 FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024 which do not exist, and substitute the Defendant served and identified at the property as a party defendant. IV. CONCLUSION 38. As no Defendants have Answered the Complaint, a Default Judgment as to both causes of action is appropriate. Plaintiff respectfully requests an Order providing: (i) An Order of Default pursuant to CPLR § 3215 as to the First Cause of Action for Foreclosure of the Note and Mortgage, (ii) an Order of Default pursuant to CPLR § 3215 as to the Second Cause of Action for Breach of the Guaranty Agreement; (iii) an Order, pursuant to CPLR § 603, against the Guarantor, for later determination in the event an auction of the Property, court-ordered herein pursuant RPAPL § 1351, results in a deficiency with respect to the amount due and owing to Plaintiff; (iv) the Appointment of a Referee to determine the amounts due and owing to the Plaintiff, (v) an Order amending the Caption to strike unnecessary Defendants JOHN DOE through MARY ROE and add a Defendant served at the subject property, and (vi) for such additional relief as this court deems just and proper WHEREFORE, Plaintiff respectfully requests that this Court issue and order granting the within motion in its entirety, including as set forth in the annexed proposed Order. Dated: April 12, 2024 13 of 14 FILED: NASSAU COUNTY CLERK 04/12/2024 04:59 PM INDEX NO. 602874/2024 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2024 KELLEY KRONENBERG Attorneys for Plaintiff By: S/JASON SILVER, ESQ. Jason Silver, Esq. 250 Park Ave, 7th Floor New York, NY 10177 P: (800) 484-4381 CERTIFICATION OF WORD COUNT COMPLIANCE Plaintiff, through its counsel, Kelley Kronenberg, hereby certifies that the body of this Affirmation and Memorandum of Law in Support of Plaintiff's Motion for Default Judgment and Other Relief is in compliance with Section 202.8-b of the Uniform Civil Rules for the N.Y. State Trial Courts because it contains 3,356 (excluding the caption, table of contents, table of authorities and signature block). Dated: April 12, 2024 By: S/ JASON SILVER Jason Silver Esq. Kelley Kronenberg 14 of 14