On March 07, 2018 a
Motion-Secondary
was filed
involving a dispute between
Nyctl 2017-A Trust And The Bank Of New York Mellon, As Collateral Agent And Custodian For Nyctl 2017-A Trust,
and
And Generally All Persons Having Or Claiming Under, By, Or Through Any Of The Aforesaid Individual Captioned Defendants, If Any, If They Be Dead, Whether By Purchase, Inheritance, Lien Or Otherwise, Including Any Right, Title Or Interest In And To The Real Property Described In The Complaint Herein, All Of Who And Whose Names And Places Of Residence Are Unknown To The Plaintiffs,
And Generally All Persons Having Or Claiming Under, By, Or Through Any Of The Aforesaid Individual Captioned Defendants, If Any, If They Be Dead, Whether By Purchase, Inheritance, Lien Or Otherwise, Including Any Right,
Title Or Interest In And To The Real Property Described In The Complaint Herein, All Of Who And Whose Names And Places Of Residence Are Unknown To The Plaintiffs,
Avi-Lam Realty Corp.,
City Of New York Department Of Finance,
John Doe #1 Through John Doe #100,
John Doe
#1 Through John Doe #100,
Lourdes Burrows,
Miriam Valdez,
New York State Department Of Taxation And Finance,
The Last 100 Names Being Fictitious And Unknown To Plaintiffs, The Persons Or Parties Intended Being The Owners, Tenants, Occupants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or Lien Upon The Premises, Described In The Complaint, And If Any Of The Aforesaid Individual Captioned Defendants, If Any, Be Dead, Their Respective Heirs-At-Law, Next Of Kin, Executors, Administrators, Trustees, Devisees, Legatees, Assignees, Lienors, Creditors, And Successors In Interest,
The Last 100 Names Being Fictitious And Unknown To Plaintiffs, The Persons Or Parties Intended Being The Owners, Tenants, Occupants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or Lien Upon The Premises, Described In The Complaint,
And If Any Of The Aforesaid Individual Captioned Defendants, If Any, Be Dead, Their Respective Heirs-At-Law, Next Of Kin, Executors, Administrators, Trustees, Devisees, Legatees, Assignees, Lienors, Creditors, And Successors In Interest,
for RP-Tax Foreclosure
in the District Court of Queens County.
Preview
FILED: QUEENS COUNTY CLERK 12/13/2019 10:15 AM INDEX NO. 703488/2018
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/13/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
---------------------------------------------------------------------------x
NYCTL 2017-A TRUST AND THE BANK OF NEW YORK
MELLON, AS COLLATERAL AGENT AND CUSTODIAN
FOR NYCTL 2017-A TRUST, INDEX NO.: 703488/2018
Plaintiffs, AFFIRMATION
-against-
AVI-LAM REALTY CORP.; NEW YORK STATE
DEPARTMENT OF TAXATION AND FINANCE; CITY OF
NEW YORK DEPARTMENT OF FINANCE; MIRIAM
ifshe be if she be her respective heirs-
VALDEZ, living, dead,
at-law, next of kin, distributees, executors, administrators,
trustees, devisees, legatees, assignees, lienors, creditors, and
successors in interest, and generally all persons having or
claiming under, by, or through MIRIAM VALDEZ, if she be
dead, whether by purchase, inheritance, lien or otherwise,
including any right, titleor interest in and to the real property
described in the complaint herein, all of who and whose names
and places of residence are unknown to the plaintiffs;
LOURDES BURROWS; CARLA AVILES LAW OFFICE,
Defendants.
---------------------------------------------------------------------------x
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
JOSHUA LEVY, ESQ., an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms under the penalty of perjury, that:
1. I am a member of the firm of Levy & Levy, Esqs., the attorneys for the plaintiffs in the
above-entitled action, and as such, am fully familiar with allof the facts and circumstances as
plaintiffs'
hereinafter set forth. I respectfully submit this affirmation in support of application for
a Judgment of Foreclosure and Sale pursuant to RPAPL §1351.
2. This action was commenced to foreclose a real estate tax lien. The subject property
being foreclosed is in the County of Queens, and is known as: Block: 1478, Lot(s): 39. Upon
information and belief, said premises are also known as and by: 90-10 Elmhurst Avenue,
Jackson Heights, NY.
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3. CPLR Rule 3408 (Mandatory settlement conference in residential foreclosure actions)
is not applicable to the instant action. That rule applies only to the foreclosure of a "home loan".
loan"
"Home is defined in RPAPL §1304, in part, as a loan in which (a) the borrower is a natural
person, (b) the debt is incurred by the borrower primarily for personal, family, or household
purposes, and (c) the loan is secured by a mortgage on real estate improved by a one to four
family dwelling or condominium and which is occupied by the borrower. Inasmuch as the
subject action does not involve a loan secured by a mortgage, the provisions of CPLR Rule 3408
are not applicable to the instant action.
4. Each and all of the defendant(s) are in default, except the defendants served by
publication, said defendants having appeared by the Guardian Ad Litem and Military Attorney,
and having demanded notice of this application.
plaintiffs'
5. Prior hereto and upon application for an order appointing a referee to
compute, there was duly filed with this Court an affirmation, and there has been no change of
circumstances of the facts therein set forth. That there have been no additional parties defendant
added to this action since the filing of said affirmation.
6. The affidavits on file with the Clerk of this Court indicate that none of the defaulting
Soldiers'
defendant(s), if any, are in the military service as defined by the Military Law and the
Sailors'
and Civil Relief Act, and none of the defendant(s) are infants, incompetents, or
absentees.
7. To your affiant's knowledge, the proceedings herein have been regular and in
conformity with law, and in accordance with the rules of this Court.
8. A copy of the previously filed Referee's Oath and Report of Amount Due is annexed
hereto as Exhibit "A".
REOUEST FOR AWARD OF LEGAL FEES
9. This action was brought to foreclose a tax lien pursuant to the New York City Charter
and Administrative Code. Section 11-335 of the New York City Charter and Administrative
Code specifically provides for the recovery of legal fees in this action, stating as follows:
A plaintiff in an action to foreclose a tax lien shall recover reasonable attorney's
fees for maintaining such action.
10. That the following is a description of the services rendered in connection with this
action to date, and of the services which will be necessary to consummate this proceeding:
Review of case with client. Review of tax lien. Order foreclosure search.
Confirmation of owner's names and addresses on New York City Department of
Finance websites.
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NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/13/2019
Review of foreclosure search. Preparation of Summons and Complaint, and Lis
Pendens. Transmittal of papers to title company for filing, and process server for
service.
Review of Affidavits of Service and due diligence for attempted service upon
Miriam Valdez.
Preparation of ex-parte application for Order of Publication.
Arrangements made for publication. Preparation of proposed pleadings for use by
Guardian ad Litem and Military Attorney.
Preparation of Notice of Motion for Order of Reference, and Affirmation and
Affidavit in support.
Preparation of proposed Referee's Oath and Report of Amount Due.
Preparation of Notice of Motion for Judgement of Foreclosure and Sale,
Affirmation in Support, and Bill of Costs.
Scheduling of sale with referee. Arranging for publication and posting of Notice
of Sale. Service of Notice of Sale.
Preparation of terms of sale, computation of upset price.
Attendance at foreclosure sale.
Review of purchaser's titlereport, preparation of Referee's Deed, Report of Sale,
and closing documents.
Attendance at closing.
11. That this firm has specialized in the field of tax lien foreclosure and related litigation.
We are not salaried employees of the plaintiffs, and our fees are paid by plaintiffs in the event
that insufficient proceeds arise upon the sale of the subject premises.
12. The customary fee that we charge for the handling of a tax lien foreclosure action is
$350.00 per hour for attorney time, and $85.00 per hour for paralegal time. This action, upon
completion, will have reasonably taken 14 hours of attorney time, and 7.5 hours of paralegal
time. Accordingly, a legal fee of $5,537.50 is respectfully requested. This amount is a
reasonable fee based upon quantum meruit and actual time expended.
13. No previous application has been made for the same or similar relief as now being
sought.
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NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/13/2019
WHEREFORE, your affiant respectfully requests that the Referee's Oath and Report of
Amount Due be ratified and confirmed, that a Judgment of Foreclosure and Sale be entered
herein, and that the plaintiffs be awarded such other and further relief as to this court may seem
just and proper.
Dated: Great Neck, NY
December 13, 2019
JOS UA LEVY
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Preview
FILED: QUEENS COUNTY CLERK 12/13/2019 10:15 AM INDEX NO. 703488/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/13/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ---------------------------------------------------------------------------x NYCTL 2017-A TRUST AND THE BANK OF NEW YORK MELLON, AS COLLATERAL AGENT AND CUSTODIAN FOR NYCTL 2017-A TRUST, INDEX NO.: 703488/2018 Plaintiffs, AFFIRMATION -against- AVI-LAM REALTY CORP.; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; CITY OF NEW YORK DEPARTMENT OF FINANCE; MIRIAM ifshe be if she be her respective heirs- VALDEZ, living, dead, at-law, next of kin, distributees, executors, administrators, trustees, devisees, legatees, assignees, lienors, creditors, and successors in interest, and generally all persons having or claiming under, by, or through MIRIAM VALDEZ, if she be dead, whether by purchase, inheritance, lien or otherwise, including any right, titleor interest in and to the real property described in the complaint herein, all of who and whose names and places of residence are unknown to the plaintiffs; LOURDES BURROWS; CARLA AVILES LAW OFFICE, Defendants. ---------------------------------------------------------------------------x STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) JOSHUA LEVY, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms under the penalty of perjury, that: 1. I am a member of the firm of Levy & Levy, Esqs., the attorneys for the plaintiffs in the above-entitled action, and as such, am fully familiar with allof the facts and circumstances as plaintiffs' hereinafter set forth. I respectfully submit this affirmation in support of application for a Judgment of Foreclosure and Sale pursuant to RPAPL §1351. 2. This action was commenced to foreclose a real estate tax lien. The subject property being foreclosed is in the County of Queens, and is known as: Block: 1478, Lot(s): 39. Upon information and belief, said premises are also known as and by: 90-10 Elmhurst Avenue, Jackson Heights, NY. 1 1 of 4 FILED: QUEENS COUNTY CLERK 12/13/2019 10:15 AM INDEX NO. 703488/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/13/2019 3. CPLR Rule 3408 (Mandatory settlement conference in residential foreclosure actions) is not applicable to the instant action. That rule applies only to the foreclosure of a "home loan". loan" "Home is defined in RPAPL §1304, in part, as a loan in which (a) the borrower is a natural person, (b) the debt is incurred by the borrower primarily for personal, family, or household purposes, and (c) the loan is secured by a mortgage on real estate improved by a one to four family dwelling or condominium and which is occupied by the borrower. Inasmuch as the subject action does not involve a loan secured by a mortgage, the provisions of CPLR Rule 3408 are not applicable to the instant action. 4. Each and all of the defendant(s) are in default, except the defendants served by publication, said defendants having appeared by the Guardian Ad Litem and Military Attorney, and having demanded notice of this application. plaintiffs' 5. Prior hereto and upon application for an order appointing a referee to compute, there was duly filed with this Court an affirmation, and there has been no change of circumstances of the facts therein set forth. That there have been no additional parties defendant added to this action since the filing of said affirmation. 6. The affidavits on file with the Clerk of this Court indicate that none of the defaulting Soldiers' defendant(s), if any, are in the military service as defined by the Military Law and the Sailors' and Civil Relief Act, and none of the defendant(s) are infants, incompetents, or absentees. 7. To your affiant's knowledge, the proceedings herein have been regular and in conformity with law, and in accordance with the rules of this Court. 8. A copy of the previously filed Referee's Oath and Report of Amount Due is annexed hereto as Exhibit "A". REOUEST FOR AWARD OF LEGAL FEES 9. This action was brought to foreclose a tax lien pursuant to the New York City Charter and Administrative Code. Section 11-335 of the New York City Charter and Administrative Code specifically provides for the recovery of legal fees in this action, stating as follows: A plaintiff in an action to foreclose a tax lien shall recover reasonable attorney's fees for maintaining such action. 10. That the following is a description of the services rendered in connection with this action to date, and of the services which will be necessary to consummate this proceeding: Review of case with client. Review of tax lien. Order foreclosure search. Confirmation of owner's names and addresses on New York City Department of Finance websites. 2 2 of 4 FILED: QUEENS COUNTY CLERK 12/13/2019 10:15 AM INDEX NO. 703488/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/13/2019 Review of foreclosure search. Preparation of Summons and Complaint, and Lis Pendens. Transmittal of papers to title company for filing, and process server for service. Review of Affidavits of Service and due diligence for attempted service upon Miriam Valdez. Preparation of ex-parte application for Order of Publication. Arrangements made for publication. Preparation of proposed pleadings for use by Guardian ad Litem and Military Attorney. Preparation of Notice of Motion for Order of Reference, and Affirmation and Affidavit in support. Preparation of proposed Referee's Oath and Report of Amount Due. Preparation of Notice of Motion for Judgement of Foreclosure and Sale, Affirmation in Support, and Bill of Costs. Scheduling of sale with referee. Arranging for publication and posting of Notice of Sale. Service of Notice of Sale. Preparation of terms of sale, computation of upset price. Attendance at foreclosure sale. Review of purchaser's titlereport, preparation of Referee's Deed, Report of Sale, and closing documents. Attendance at closing. 11. That this firm has specialized in the field of tax lien foreclosure and related litigation. We are not salaried employees of the plaintiffs, and our fees are paid by plaintiffs in the event that insufficient proceeds arise upon the sale of the subject premises. 12. The customary fee that we charge for the handling of a tax lien foreclosure action is $350.00 per hour for attorney time, and $85.00 per hour for paralegal time. This action, upon completion, will have reasonably taken 14 hours of attorney time, and 7.5 hours of paralegal time. Accordingly, a legal fee of $5,537.50 is respectfully requested. This amount is a reasonable fee based upon quantum meruit and actual time expended. 13. No previous application has been made for the same or similar relief as now being sought. 3 3 of 4 FILED: QUEENS COUNTY CLERK 12/13/2019 10:15 AM INDEX NO. 703488/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 12/13/2019 WHEREFORE, your affiant respectfully requests that the Referee's Oath and Report of Amount Due be ratified and confirmed, that a Judgment of Foreclosure and Sale be entered herein, and that the plaintiffs be awarded such other and further relief as to this court may seem just and proper. Dated: Great Neck, NY December 13, 2019 JOS UA LEVY 4 of 4