Preview
FILED: NEW YORK COUNTY CLERK 08/30/2018 02:13 PM INDEX NO. 850039/2018
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 08/30/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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73RD PARK LLC,
Plaintiff,
Index No. 850039/2018
-against-
AFFIRMATION OF
51 EAST 73RD ST LLC, SIMONE ENDER, THE CITY OF JEROLD C. FEUERSTEIN
NEW YORK ENVIRONMENTAL CONTROL BOARD,
NEW YORK CITY PARKING VIOLATIONS BUREAU,
and “JOHN DOE #1 through JOHN DOE #10”, the last
twelve names being fictitious and unknown to Plaintiff, the
persons or parties intended being the tenants, occupants, or
persons or corporations, if any, having or claiming an
interest upon the premises described in the Complaint,
Defendants.
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JEROLD C. FEUERSTEIN, an attorney duly admitted to practice law before the courts of
the State of New York, affirms the following under penalty of perjury:
1. I am a partner with the law firm Kriss & Feuerstein LLP, the attorneys for 73RD
Park LLC (the “Plaintiff”), and I am fully familiar with all the pleadings and proceedings
heretofore had herein.
2. I submit this affirmation in support of Plaintiff’s motion (the “Motion” or “Motion
for Summary Judgment”) for an order: (a) granting Plaintiff summary judgment for the relief
demanded in the verified complaint against defendants, 51 East 73rd St LLC and Simone Ender
(the “Answering Defendants”) pursuant to CPLR § 3212; (b) granting Plaintiff default judgment
against non-appearing defendants, The City of New York Environmental Control Board and New
York City Parking Violations Bureau, pursuant to CPLR § 3215(a); (c) discontinuing this action
solely as against defendants “John Doe #1 through John Doe #12”, amending the caption to remove
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their names, and deleting the language appearing thereafter; (d) appointing a referee to ascertain
and compute the amount due to Plaintiff on the note and mortgage upon which this action is
brought, and to examine and report whether the mortgaged property can be sold in one or more
parcels pursuant to CPLR § 4311 and RPAPL § 1321; and (e) grañtiñg such other and further relief
to Plaintiff as this Court deems just and proper.
3. The exhibits annexed hereto are as follows:
[EXHIBIT DESCRIPTION ECF NO.
'
A Summons and Complaint 1
A-1 Note 2
A-2 Mortgage 3
A-3 ] Schedule of Consolidated Mortgages 4
A-4 Legal Description 3 (Sch. A)
A-5 Guaranty 5
A-6 CREIF LENDER Assignment 6
A-7 CREIF 113 Assignment . 7
A-8 73RD Park LLC Assignment | 8
A-9 Acceleration Letter 9
A-10 Judgment Docket 10
A-11 | Loan UCC-1 11
A-12 UCC-3 Assignment 11
B Assignment of Leases and Rents n/a
C Assignment of Assignment of Leases and Rents n/a
D Notice of Pendency 12
E Affidavits of Service 13-16
F Answer 39
G Affidavit of Posting 17
4. Plaintiff commenced this mortgage foreclosure action by filing the Summons and
Venfied Complaint in a Foreclosure Action dated February 7, 2018 (the "Summons and
Comrilaint"), together with the exhibits annexed thereto. See Summons and Complaint (Ex. A).
5. Plaintiff also filed the Notice ofPendency dated February 7, 2018 (the "Notice of
Property.1
Pendency") against the See Notice of Pendency (Ex. D).
I &hitism
Any capitalizedterms not defined he ein shall have the setforth in theCarmel Affidavit.
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6. The Loan is not a "home loan", as defmed by RPAPL § 1304, because Borrower is
not a natural person; the debt was not incurred by Borrower primarily for personal, family, or
household purposes; and the Property is not a one to four family dwelling, as discussed further in
the Affidavit of Shoshana Carmel (the "Carmel Affidavit"). Therefore: a statutory ninety (90) day
notice pursuant to RPAPL § 1304 was not required; a certificate of merit pursuant to CPLR §
3012-b was not required; and a residential foreclosme settlement conference pursuant to CPLR §
3408 is not applicable.
7. 51 East 73rd St LLC (the "Borrower"), the Borrower of the Loan and record owner
of the Property, was served with the Summons and Complaint by delivering a copy to Nancy
Dougherty, an authorized agent of the Secretary of State, of the State of New York in the City of
Albany, State of New York. See Affidavits of Service (Ex. E). Said defendant answered the
Complaint by Venfied Answer dated May 11, 2018 (the "Answer"). See Answer (Ex. F).
8. Simone Ender (the "Guarantor"), was served with the Summons and Complaint on
or about February 15, 2018, by mailing a copy to c/o Monique Ender Silberman, 710 Park Avenue,
Doe"
Unit 4A, New York, NY 10021 and by delivering a copy to "John (Refused Name), a
doorman at the same address, who agreed that the premises was the Guarantor's dwelling
place/usual place of abode. See Affidavits of Service (Ex. E). Said defendant answered the
Complaint by the Answer dated May 11, 2018. See Answer (Ex. F).
9. New York City Parking Violations Bureau, the holder of three judgments against
Paul A. Ender, the party that held the deed to the Property before the Borrower, was served with
the Summons and Complaint on February 14, 2018, by personally delivering a copy thereof to
Indez Contreras, a clerk and an authorized agent, at 100 Church Street, 4th Floor, New York, NY
10007. See Affidavits of Service (Ex. E). Said defendant has not answered or otherwise responded
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to the Complaint, and the time to do so expired on or about March 6, 2018, and has not been
extended.
10. The City of New York Environmental Control Board, the holder ofthree judgments
against the Borrower, was served with the Summons and Complaint on February 14, 2018 by
persoñally delivering a copy thereof to Inez Contreras, Clerk and an authorized agent, at 100
Church Street, New York, New York 10007. See Affidavits of Service (Ex. E). Said defendant
has not answered or otherwise responded to the Complaint, and the time to do so expired on or
about March 6, 2018, and has not been extended.
11. On February 22, 2018, Plaintiff filed the Affidavit of Posting, by which Christopher
J. Pszczola of Provest, LLC swore he posted a copy of the pink Tenant Foreclosure Notice,
pursuant to RPAPL § 1303, on each entrance and exit at the Property. See Affidavit of Posting
(Ex. G).
12. As discussed further in the annexed memorandum of law, based upon the Carmel
Affidavit, this affirmation, and the exhibits annexed hereto, Plaintiff establishes its prima facie
Defendants'
case and the affirmative defenses alleged in the Answering Answer are meritless as a
matter of law to raise a triable issue of fact.
WHEREFORE, I respectfully request that Plaintiff's Motion for Summary Judgment be
granted in its entirety.
Dated: New York, New York
August 30, 2018
JEROLD'C. ÉÉUERSTEIN
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ATTORNEY CERTIFICATION PURSUANT
TO
22 NYCRR 130-1.1a
Pursuant to 22 NYCRR 130-1.1a, the undersigned, an attorney admitted to practice in the
courts of New York State, certifies that upon information and belief, and after reasonable inquiry
the contentions contained in the annexed document(s) are not frivolous.
Dated: August 30, 2018
Jerold C. Ó rstein, Esq.
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Preview
FILED: NEW YORK COUNTY CLERK 08/30/2018 02:13 PM INDEX NO. 850039/2018 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 08/30/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X 73RD PARK LLC, Plaintiff, Index No. 850039/2018 -against- AFFIRMATION OF 51 EAST 73RD ST LLC, SIMONE ENDER, THE CITY OF JEROLD C. FEUERSTEIN NEW YORK ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY PARKING VIOLATIONS BUREAU, and “JOHN DOE #1 through JOHN DOE #10”, the last twelve names being fictitious and unknown to Plaintiff, the persons or parties intended being the tenants, occupants, or persons or corporations, if any, having or claiming an interest upon the premises described in the Complaint, Defendants. -------------------------------------------------------------------------X JEROLD C. FEUERSTEIN, an attorney duly admitted to practice law before the courts of the State of New York, affirms the following under penalty of perjury: 1. I am a partner with the law firm Kriss & Feuerstein LLP, the attorneys for 73RD Park LLC (the “Plaintiff”), and I am fully familiar with all the pleadings and proceedings heretofore had herein. 2. I submit this affirmation in support of Plaintiff’s motion (the “Motion” or “Motion for Summary Judgment”) for an order: (a) granting Plaintiff summary judgment for the relief demanded in the verified complaint against defendants, 51 East 73rd St LLC and Simone Ender (the “Answering Defendants”) pursuant to CPLR § 3212; (b) granting Plaintiff default judgment against non-appearing defendants, The City of New York Environmental Control Board and New York City Parking Violations Bureau, pursuant to CPLR § 3215(a); (c) discontinuing this action solely as against defendants “John Doe #1 through John Doe #12”, amending the caption to remove 1 1 of 5 FILED: NEW YORK COUNTY CLERK 08/30/2018 02:13 PM INDEX NO. 850039/2018 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 08/30/2018 their names, and deleting the language appearing thereafter; (d) appointing a referee to ascertain and compute the amount due to Plaintiff on the note and mortgage upon which this action is brought, and to examine and report whether the mortgaged property can be sold in one or more parcels pursuant to CPLR § 4311 and RPAPL § 1321; and (e) grañtiñg such other and further relief to Plaintiff as this Court deems just and proper. 3. The exhibits annexed hereto are as follows: [EXHIBIT DESCRIPTION ECF NO. ' A Summons and Complaint 1 A-1 Note 2 A-2 Mortgage 3 A-3 ] Schedule of Consolidated Mortgages 4 A-4 Legal Description 3 (Sch. A) A-5 Guaranty 5 A-6 CREIF LENDER Assignment 6 A-7 CREIF 113 Assignment . 7 A-8 73RD Park LLC Assignment | 8 A-9 Acceleration Letter 9 A-10 Judgment Docket 10 A-11 | Loan UCC-1 11 A-12 UCC-3 Assignment 11 B Assignment of Leases and Rents n/a C Assignment of Assignment of Leases and Rents n/a D Notice of Pendency 12 E Affidavits of Service 13-16 F Answer 39 G Affidavit of Posting 17 4. Plaintiff commenced this mortgage foreclosure action by filing the Summons and Venfied Complaint in a Foreclosure Action dated February 7, 2018 (the "Summons and Comrilaint"), together with the exhibits annexed thereto. See Summons and Complaint (Ex. A). 5. Plaintiff also filed the Notice ofPendency dated February 7, 2018 (the "Notice of Property.1 Pendency") against the See Notice of Pendency (Ex. D). I &hitism Any capitalizedterms not defined he ein shall have the setforth in theCarmel Affidavit. 2 2 of 5 FILED: NEW YORK COUNTY CLERK 08/30/2018 02:13 PM INDEX NO. 850039/2018 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 08/30/2018 6. The Loan is not a "home loan", as defmed by RPAPL § 1304, because Borrower is not a natural person; the debt was not incurred by Borrower primarily for personal, family, or household purposes; and the Property is not a one to four family dwelling, as discussed further in the Affidavit of Shoshana Carmel (the "Carmel Affidavit"). Therefore: a statutory ninety (90) day notice pursuant to RPAPL § 1304 was not required; a certificate of merit pursuant to CPLR § 3012-b was not required; and a residential foreclosme settlement conference pursuant to CPLR § 3408 is not applicable. 7. 51 East 73rd St LLC (the "Borrower"), the Borrower of the Loan and record owner of the Property, was served with the Summons and Complaint by delivering a copy to Nancy Dougherty, an authorized agent of the Secretary of State, of the State of New York in the City of Albany, State of New York. See Affidavits of Service (Ex. E). Said defendant answered the Complaint by Venfied Answer dated May 11, 2018 (the "Answer"). See Answer (Ex. F). 8. Simone Ender (the "Guarantor"), was served with the Summons and Complaint on or about February 15, 2018, by mailing a copy to c/o Monique Ender Silberman, 710 Park Avenue, Doe" Unit 4A, New York, NY 10021 and by delivering a copy to "John (Refused Name), a doorman at the same address, who agreed that the premises was the Guarantor's dwelling place/usual place of abode. See Affidavits of Service (Ex. E). Said defendant answered the Complaint by the Answer dated May 11, 2018. See Answer (Ex. F). 9. New York City Parking Violations Bureau, the holder of three judgments against Paul A. Ender, the party that held the deed to the Property before the Borrower, was served with the Summons and Complaint on February 14, 2018, by personally delivering a copy thereof to Indez Contreras, a clerk and an authorized agent, at 100 Church Street, 4th Floor, New York, NY 10007. See Affidavits of Service (Ex. E). Said defendant has not answered or otherwise responded 3 3 of 5 FILED: NEW YORK COUNTY CLERK 08/30/2018 02:13 PM INDEX NO. 850039/2018 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 08/30/2018 to the Complaint, and the time to do so expired on or about March 6, 2018, and has not been extended. 10. The City of New York Environmental Control Board, the holder ofthree judgments against the Borrower, was served with the Summons and Complaint on February 14, 2018 by persoñally delivering a copy thereof to Inez Contreras, Clerk and an authorized agent, at 100 Church Street, New York, New York 10007. See Affidavits of Service (Ex. E). Said defendant has not answered or otherwise responded to the Complaint, and the time to do so expired on or about March 6, 2018, and has not been extended. 11. On February 22, 2018, Plaintiff filed the Affidavit of Posting, by which Christopher J. Pszczola of Provest, LLC swore he posted a copy of the pink Tenant Foreclosure Notice, pursuant to RPAPL § 1303, on each entrance and exit at the Property. See Affidavit of Posting (Ex. G). 12. As discussed further in the annexed memorandum of law, based upon the Carmel Affidavit, this affirmation, and the exhibits annexed hereto, Plaintiff establishes its prima facie Defendants' case and the affirmative defenses alleged in the Answering Answer are meritless as a matter of law to raise a triable issue of fact. WHEREFORE, I respectfully request that Plaintiff's Motion for Summary Judgment be granted in its entirety. Dated: New York, New York August 30, 2018 JEROLD'C. ÉÉUERSTEIN 4 4 of 5 FILED: NEW YORK COUNTY CLERK 08/30/2018 02:13 PM INDEX NO. 850039/2018 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 08/30/2018 ATTORNEY CERTIFICATION PURSUANT TO 22 NYCRR 130-1.1a Pursuant to 22 NYCRR 130-1.1a, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that upon information and belief, and after reasonable inquiry the contentions contained in the annexed document(s) are not frivolous. Dated: August 30, 2018 Jerold C. Ó rstein, Esq. 5 5 of 5