Preview
FILED: KINGS COUNTY CLERK 01/14/2019 02:19 PM INDEX NO. 519788/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/14/2019
I
CONDONING% OFFERXNG PLAN
THE CITY VIEN CONDOMINIUM
185 YORK STREET
BROOKLYN, NKN YORK 11201
Residential Units.......,.....16 8,020,000.00
Non-Residential Units......,..l 385,000.00
Paz3cing Units ......., . 7 195,000.00
Total Amount of Offering $ 8,600,000.00
SHRfSGR AND SELLING AGENT:
VAL-HUGH CAPXTAL CORP.
290 Broadhollow Road, Suite 200
He3.ville, NY 11747
Date of acceptance for filing of this Offering Plan is
This plan may not be used after unless
attended by a duly filed amendment.
I
THIS PLAN CONTAINS SPECXAL RISKS TO THE ~~3'>. SEE PAGE l.
1 SPONSOR'
THIS OFFERXNG PLAN IS THE S ENTXRR OFFER TO SELL THESE
CONDOMIN1UM UNITS. NEW YORK LAhf REQUIRES THE SPONSOR TO DISCLOSE
ALL MATERIAL XNFORMkTION ZN THZS PLAN AND TO FILE THZS PLAN %1TH
THE NEIf YORK STATE DEPARTMENT OF LAN PRIOR TO SELLING OR OITERING
TO SELL ANY CONDOMZNINC UNIT . FILING NZTH THE DEPARTMBFZ OF LRi77
DOES NOT IIIRAN THAT THE DEPARTM BIT OR ANY OTHER GOVERNMENTAL
AGENCY HAS APPRCATRD THIS OFFERING.
BECAUSE THE SPONSOR XS RsT~M~Q THE UNCONDITIONAL RIGHT TO RENT
RA~HRR THAN SELL UNXTS, THIS PLAN MAY NOT RESULT IN THE CREATION
OF A CONDOMXNXUM IN WHICH A 594XORITY OF THR UNXTS ARE Qli7HED BY
OIIIAQL-OCCUPANTS OR XNVESTORS ~~TED TO THE SPGNSOR. (SEE
SPECIAL RISKS SECTION OF THE PLAN.)
PURCHASERS FOR ~>> OIIN OCCUPANCY SRY NEVER GAIN CONTROL OF THR
BOARD OF MG4~RRS UNDER THE TERMS OF THX8 PLAN . (SEE SPECIAL
RISKS SECTION OF THR PLAN.)
Prepared By:
Harold L. Gxuber, Esp,
92 Prospect Place
Brooklyn, New York 11217
(718) 788-7722
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TABIE OF CONTENTS
PART I PAGE
SPECIAL RISKS 1
INTRODUCTION 8
DESCRIPTION OF PROPERTY AND IMPROVEMENTS 12
LOCATION AND AREA INFORMATION 13
SCHEDULE A - PRICES OF UNITS 14
SCHEDULE A - EXHIBIT I 16
FOOTNOTES TO SCHEDULE A 17
SCHEDDLE B - PROJECTED BUDGET FOR FIRST . 20
YEAR OF CONDOMINIDM OPERATION
FOOTNOTES TO SCHEDULE B 21
SCHEDULE B1 24
. SCHEDULE B1 - EXHIBIT A 25
MANAGEMENT AGREEMENT 26
NON-RESIDENTIAL UNIT 28
CHANGES IN PRICES OF UNITS 29
3391 COMPLIANCE 30
'
INTERIM LEASE 31
PROCEDURE TO PURCHASE 33
EFFECTIVE DATE 39
TERMS OF SALE 41
CLOSING COSTS AND ADJUSTMENTS 43
RIGHTS AND OBLIGATIONS OF SPONSOR 47
-CONTROL BY SPONSOR 51
BOARD OF MANAGERS 53
RIGHTS AND OBLIGATIONS .OF UNIT OWNERS / 57
BOARD OF MANAGERS
REAL ESTATE TAXES AND TAX BENEFITS 64
REAL ESTATE TAX BENEFITS LETTER 67
TAXES - DEDUCTIONS TO UNIT OWNERS/ 72
STATUS OF CONDOMINIUM
COUNSEL'S TAX OPINION 73
RESERVE FUND 83
WORKING CAPITAL FUND 84
IDENTITY OF PARTIES 85
. GENERAL 86
REPORTS TO UNIT OWNERS/DOCUMENTS ON FILE 88
. SPONSOR'S STATEMENT OF BUILDING CONDITION 89
PART II
PURCHASE AGREEMENT PA1
UNIT DEED UD1
POWER OF ATTORNEY POA1
TAX ESCROW AGREEMENT EA1
CONTRACT DEPOSIT ESCROW AGREEMENT EA3
APPLICATION FOR DETERMINATION AD1
DESCRIPTION OF PROPERTY AND SPECIFICATIONS AR1
FLOOR PLÃNS FP1
. REAL PROPERTY LAW SECTION 339kk REl
DECLARATION OF CONDOMINIUM DC1
CONDOMINIUM BY-LAWS CBL1
CERTIFICATIONS:
SPONSOR CRT1
SPONSOR'S ENGINEER (OR ARCHITECT) CRT3
SPONSOR'S EXPERT CONCERNING ADEQUACY CRTS
OF BUDGET
SPONSOR'S EXPERT CONCERNING ADEQUACY CRT7
OF COMMERCIAL BUDGET
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SPECIAL RISKS
1) The Sponsor will file an application for real estate tax
section·
benefits pursuant to 421 of the Real Property. Tax Law of
the State of New York, and shall make all filings to L
necessary
obtain such benefits. Upon closing, the Sponsor will make all tax
benefit documents available to the Condominium for inspection and
copying for the life of the benefits. The Sponsor will LJ
timely
-
file all applications and timely comply with all procedures
required to properly process and maintain the benefits. Sponsor
will make the application at his own cost and expense. Sponsor
will use his best efforts to obtain the real estate tax benefits
set forth herein. If real estate tax benefits cannot be obtained,
the offering plan will be amended, prior to any closings, to
disclose the unavailability of real estate tax benefits; and the
purchaser will be offered a right of rescission. It is
anticipated that benefits will commence within one year after
said date, but will apply retroactively to the date on which the
Certificate of Occupancy was obtained; so that a Purchaser who
pays real estate taxes in excess of the amount due after benefits
may be entitled to a refund or remission. As a result of the
foregoing, if a Purchaser acquires his unit after the effective
date of commencement of benefits, a portion of the benefits will
have expired and be unavailable to the Purchaser.
The Sponsor's projection of tax due for the first year of
operation is based on the figures and assumptions in the
accompanying expert's opinion as to real estate tax benefits.
However, it is not possible to accurately determine what the .
increase in actual assessed valuation will be. Moreover, it is
equally impossible to predict any future increases in real·estate
tax rates, which may affect the amount of tax due on the
property.
NO WARRANTY IS OR CAN BE MADE THAT THE BENEFITS SET FORTH HEREIN
WILL BE OBTAINED. IN THE EVENT THE BENEFITS ARE NOT OBTAINED, OR
IN THE EVENT THERE ARE INCREASES IN THE TAX RATE, OR THE
PROPERTY'S ASSESSED VALUATION, OR IN THE STATUTES GOVERNING THE
TAX BENEFITS, REAL ESTATE TAXES MAY HIGHER THAN SET FORTH ABOVE
FOR THE FIRST YEAR OF OPERATION AND IN FUTURE YEARS. HENCE,
INDIVIDUAL CARRYING COSTS FOR ALL UNITS WOULD ALSO BE HIGHER.
Prospective purchasers are urged most strongly to read the
section entitled REAL ESTATE TAX BENEFITS OPINION. included
herein.
2) Closing will not take place, and no individual
condominium apartment will be sold until a permanent or temporary
Certificate of Occupancy has been obtained for the premises, In
the event closing occurs after the issuance of a temporary
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Certificate of Occupancy, but prior to the issuance of permanent
Certificate of Occupancy, then it will remain the obligation of
the Sponsor to, at its own cost and expense, obtain such
permanent Certificate, and the Certificate must be obtained
within two (2) years from date of closing. Prior to the
obtaining
permanent Certificate of Occupancy, the Sponsor is required to
either: a) maintain all deposits and funds in a special escrow
account required by GBL-352e (2) (b) unless the Sponsor's engineer
or architect certifies that a lesser amount will be reasonably
necessary to complete the work needed to obtain the permanent
Certificate of Occupancy, in which case the sum exceeding the
amount so certified may be released; or, b) deposit with an
escrow agent an unconditional, irrevocable letter of credit, or
post a surety bond, in the aforesaid specified amount, in accord
with the regulations of the New York State Department of Law.
See RIGHTS AND OBLIGATIONS OF THE SPONSOR section of this
.. Offering Plan.
All purchasers and investors are advised to visit the Department
of Buildings website/CONSUMER TIPS for its recommendation when
purchasing units in a condominium that does not have a final
Certificate of Occupancy.
3) There are numerous time constraints imposed in the
Purchase Agreement set forth in Part II of this Offering Plan.
Time is of the essence as to all such time constraints. This
means that if the Purchaser fails to perform within the
. applicable time frame, he may waive substantive rights, or incur
a forfeiture of substantial sums of money. Thus, a purchaser who
fails to cure a default within thirty (30) days after receipt of
written notice of said default, will both have the Contract
canceledy- and lose his downpayment. a purchaser who
Similarly,
fails to notify the Sponsor in the event he has failed to obtain
mortgage financing within forty (40) days after receiving a fully
executed copy of the Purchase Agreement from the Sponsor, will be
required to proceed to closing, notwithstanding the fact that
purchaser has failed to obtain mortgage financing; and, if such
purchaser fails to proceed to closing, the down payment may be
retained by the Sponsor. Purchasers are advised to consult with
their attorney concerning all terms of this offering. Please see
the section of the Offering Plan entitled PROCEDURE TO PURCHASE,
along with the PURCHASE AGREEMENT, set forth in Part II, for a
statement of all applicable time limitations.
4) The terms of this Offering Plan transfer the statutory
obligation to pay New York City Real Property transfer taxes (1%
of purchase price for residential units, and New York State
Documentary Stamp Taxes ($4.00 per thousand) to the Purchaser, so
that the cost of such taxes represent an additional closing cost
to the Purchaser, and an additional item of consideration on
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which transfer taxes must be paid. Additionally, the Purchaser is
responsible for paying a Title clearance fee of $350.00, and to
the Sponsor's attorney, a document preparation fee of $1,100.00,
and may be responsible for certain other fees such as travel fees
and default fees. Purchasers shall also make a Working Capital
Fund contribution equal to one month's common charges. Finally,
Purchaser will pay Sponsor a fee of $2,500.00 as partial
reimbursement for the cost of preparing and filing the Offering f
Plan for the Condominium conversion of the subject premises. See
the section of the Offering Plan entitled CLOSING COSTS AND
ADJUSTMENTS.
5) . Until the earlier of five (5) years from the date of
first unit closing, or at the time at which the Sponsor or other
Holder of Unsold Units owns units consisting of less than 25% of
the common interest of the Condominium, Sponsor may exercise veto
power over any expenses other than those expenses described in
Schedule B or expenses required to comply with applicable laws or
regulations, to remedy any notice of violation or to remedy any
work order by an insurer; or for any repair or replacement
necessary for the preservation or safety of the building; or for
the safety of occupants of the building; or required to avoid the
suspension of any necessary service to the building.
Additionally, so long as the sponsor retains ownership of at
least one unit in the building, the By-Laws, Declaration, and
Rules and Regulations of the Condominium, may not be amended or
modified in any way so as to adversely affect the Sporisor without
written consent by the Sponsor. See section of the Offering Plan
entitled CONTROL BY THE SPONSOR for a more complete explanation.
6) Sponsor is liable for all common charges, special
assessments, and real estate taxes with respect to unsold units,
and represents that Sponsor has financial resources to meet these
obligations. However, no bond, escrow deposit, or other security
has been furnished to secure the Sponsor's obligations. Please
see section of the Offering Plan .entitled RIGHTS AND OBLIGATIONS
OF THE SPONSOR for a more detailed.explanation.
7) Pursuant to existing law and regulation, the Sponsor may
declare the plan effective by entering into a contract for a
minimum of 15% of the apartments in the building. In the event
Purchase Agreements counted towards the minimum number of unit
sales required to declare the plan effective fail to close, it is
possible that the building will be converted to condominium
status with less than 15% of the apartments in the building
actually sold to purchasers. Please see EFFECTIVE DATE section of
this Offeririg Plan.
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8) Purchasers should note that in the current real estate
market, banks and other lenders are imposing various restrictions
on loans. Such restrictions include requiring that a certain
percentage (such as 50% or more) of the apartments in a building
be sold before the lender will consider making a loan. Thus, it
may be possible for a Purchaser to experience difficulty
obtaining a loan in a building where the percentage of units
purchased is lower than a lender's particular sales minimum.
Even after a building undergoes conversion, lenders may still
impose minimum sales requirements before granting a loan. It then
may be difficult for a Purchaser to resell an apartment if
prospective buyers are unable to obtain a loan due to such
minimum sales requirements. See the PROCEDURE TO PURCHASE section
of the Offering Plan for a more complete explanation.
9) The Sponsor is not limiting the conditions under which
it will rent rather than sell units. There is no commitment to
. sell more units than the 15% necessary to declare the plan
effective. Owner-Occupants, therefore, may never gain effective
control and management of the condominium. See the INTRODUCTION,
RIGHTS AND OBLIGATIONS OF THE SPONSOR, CONTROL BY SPONSOR and
BOARD OF MANAGERS sections of this Offering Plan for a more
complete explanation.
.
10) The By-Laws do not include a provision that after the
- end of the initial Sponsor control a of the
period, majority
Board of Managers must be Owner-Occupants or members of an owner
occupant's household, who are unrelated to the Sponsor and its
Principals. Owner-Occupants and non-resident owners, including
the Sponsor, may have inherent conflicts on how the Condominium
should be managed because of their different reasons for
purchasing, i.e., purchase as a home, as opposed to purchase as
an investment. See the INTRODUCTION, RIGHTS AND OBLIGATIONS OF
THE SPONSOR, CONTROL BY SPONSOR and BOARD OF MANAGERS sections of
this Offering Plan for a more complete explanation.
11) All funds received by the Sponsor for upgrades or extras
must initially be placed in the escrow a.ccount set forth herein.
However, Purchaser should note that such funds may be released
from the escrow account by the escrow agent as long as the
Sponsor uses the funds for such upgrades or extras. As a result,
in the event the Purchaser is entitled to a rescission, the
Purchaser will not receive a refund of any funds used for
upgrades or extras, provided the Offering Plan is consummated. In
the event the plan is abandoned by the Sponsor, all sums
. deposited with the Sponsor, including those used for upgrades or
extras, shall be returned to the Purchaser. See the PROCEDURE TO
PURCHASE Section of this Offering Plan for a more complete
explanation.
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12) All down payments will be placed in an IOLA account. Such -
deposits will be insured by the Federal Deposit Insurance
Corporation to a maximum of $250,000.00 per deposit. All funds
maintained by a depositor at an institutioil will be aggregated U
for purposes of the $250,000.00 threshold. IOLA stands for
accounts,"
"interest on lawyer and is a special type of escrow
account maintained by an attorney. Interest earned on an IOLA .
account does not accrue to the benefit of either the buyer or the
seller but is paid over to the state of New York. Please see the
PROCEDURE TO PURCHASE section of this Offering Plan for a more
complete explanation.
13) All res-idential units will have allocated, as a limited
common element, a terrace or balcony (or balconies) as indicated
in the FLOOR PLANS in PART II of this Offering Plan. No
structures may be built on these areas without the express
written permission of the Board of Managers, other than temporary
structures. Unit owners shall be responsible for regular items of
maintenance such as painting, brush sweeping and surface repairs.
The Condominium shall remain responsible for structural repairs
such as girders, beams, etc. Additionally, these areas may not be
used for any type of occupancy, including but not limited to
dining room, living room, storage, recreation room, office, etc. .
Use of these spaces as habitable dwelling spaces may result in a
violation being placed against. the building issued by the
Buildings Department, which would be the responsibility of the
individual unit owner to remove at their own cost and expense.
Please see the RIGHTS AND OBLIGATIONS OF UNIT OWNERS AND BOARD OF
MANAGERS in Part I of this Offering Plan, DESCRIPTION OF PROPERTY
AND BUILDING CONDITION included in Part .II of this Offering Plan
and the ARCHITECT'S REPORT in Parli II of the Offering Plan for a
more complete explanation.
14) The projected insurance coverage for the building does
not include officers and director's liability. Officer's and
director's liability is a type of coverage which protects members
of the Board of Managers, or officers of the condominium, from
any liability engendered by performance of their functions, to
the extent such activities are within the scope of their
designated capacity, and does not constitute a criminal act by
such officer or manager. In the event the condominium wishes to
extend such insurance coverage to its directors and managers,
this will represent an additional cost on the amount projected
for insurance coverage in Schedule B. Please see SCHEDULE B and
FOOTNOTES thereto for a more complete explanation.
15) The square footage set forth in SCHEDULE A is based upon
"gross"
a square footage measurement, which includes as part of
the unit the entirety of any exterior walls; the entirety of any
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wall dividing the unit from any common element; and ¾ of walls
dividing units from each other. As a result, the actual floor
area of the unit may be significantly smaller than the square
footage indicated in SCHEDULE A. Please see footnotes to SCHEDULE
A and the ARCHITECT'S REPORT and FLOOR PLANS for a more complete
explanation.
16) While Sponsor has no plans to do so, Sponsor is reserving
the right to reallocate portions of the common spaces of the
building to individual units as limited common elements; or to
allow portions of the building to be utilized for the benefit of
individual units pursuant to a license agreement. This right
shall not apply to portions of the building necessary for ingress
or egress to any unit; or to any portion of the common areas
designated specifically for common use, such as a common laundry,
gymnasium or recreation room. This reallocation of common space
shall not be deemed a material change in the Offering Plan giving
rise to a right of rescission. No unit's allocation of common
interest shall be materially altered as a result of any such
reallocation of common interest.
17) While there are currently no development rights available
for this property in excess of the development rights being
utilized to erect the structure contemplated by this Offering
Plan, Sponsor reserves the right, in the event a rezoning of the
property creates additional development rights; or in the event a
miscalculation is discovered and there are unused development
rights; to sell, transfer or assign such development rights to an
entity of Sponsor's choosing; and the sale, transfer or
assignment of such development rights shall not be deemed a
material change to this offering giving rise to a right of
rescission. The discovery of such unused air or development
rights may not result in the building, which is the subject of
this Offering Plan being expanded or limited. The expansion of an
adjoining building may affect light and air going to the subject
building. In the event such sale, transfer or assignment of such
development rights is to an adjacent property which results in a
larger structure being built on said property than would
otherwise be buildable, Sponsor shall amend the Offering Plan to
reflect such change; and if such a sale, transfer or assignment
of development rights results in a buildable structure that is
more than 10% larger than the structure which could have been
built without such development rights, Sponsor shall offer a
. right of rescission to all persons who have executed Purchase
Agreements for units in this building.
18) In the event that a child under the age of 11 lives, or
resides temporarily in a unit, the owner of such unit must notify
the Board of Managers in writing of such a fact. Such unit owner
shall be obligated at their own cost and expense, to install
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window guards in all windows of the unit, and may not remove them
until such child ceases to reside, or dwell in the unit. Failure ..
to do so is not only a safety hazard, but is a violation of the
New York City Administrative Code, may result in a violation
being placed against the building, which would be the
responsibility of the individual unit owner to remove at their
sole cost and expense. Please see the DESCRIPTION OF PROPERTY AND
BUILDING CONDITION section in PART II of this Offering Plan for a
more complete explanation.
19) . Section 27-2052, et seq., of the
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Ruling
FISCUS vs. PATTERSON, et al.
Jul 10, 2024 |
CVCV22-0199210
FISCUS VS. PATTERSON, ET AL.
Case Number: CVCV22-0199210
Tentative Ruling on Motion to Continue Trial Date: This matter involves multiple parties and Cross-
Complaints. Plaintiff is Paula Fiscus. Defendant/Cross-Defendants/Cross-Complainants Gregory G. Gonzales
and Marcia J. Gonzales, Trustees of the Greg and Marcia Gonzales Family 2014 Revocable Trust will be referred
to as the Gonzales Defendants. James Patterson and Patterson Landscape/Yard Manicurist Agency will be
referred to as the Patterson Defendants. The Gonzales Defendants have filed a Motion to Continue the presently
set August 20, 2024, trial date. The Patterson Defendants have joined the motion. Plaintiff has opposed the
motion. Defendant American Contractors Indemnity Company has not filed anything related to the motion and
did not attend the ex parte hearing on June 27, 2024, at which time was shortened to hear the motion today instead
of July 22, 2024, as originally noticed. There is no evidence that the Gonzales Defendants provided notice of
today’s hearing to Defendant American Contractors Indemnity Company. Cross-Defendant Mark Behnke
Construction has also not filed anything related to the motion but did attend the ex parte hearing and is therefore
aware of today’s hearing.
Merits. “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and
their counsel must regard the date set for trial as certain.” CRC 3.1332(a). “Although continuances of trials are
disfavored, each request for a continuance must be considered on its own merits. The court may grant a
continuance only on an affirmative showing of good cause requiring the continuance.” CRC 3.1332(c).
Circumstances that may indicate good cause are:
(1) The unavailability of an essential lay or expert witness because of death, illness, or other
excusable circumstances;
(2) The unavailability of a party because of death, illness, or other excusable circumstances;
(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;
(4) The substitution of trial counsel, but only where there is an affirmative showing that the
substitution is required in the interests of justice;
(5) The addition of a new party if:
(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial;
or
(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for
trial in regard to the new party's involvement in the case;
(6) A party's excused inability to obtain essential testimony, documents, or other material evidence
despite diligent efforts; or
(7) A significant, unanticipated change in the status of the case as a result of which the case is not
ready for trial.
CRC 3.1332(c).
When considering whether to grant a motion to continue, there are several factors that the Court must consider
including:
(1) The proximity of the trial date;
(2) Whether there was any previous continuance, extension of time, or delay of trial due to any
party;
(3) The length of the continuance requested;
(4) The availability of alternative means to address the problem that gave rise to the motion or
application for a continuance;
(5) The prejudice that parties or witnesses will suffer as a result of the continuance;
(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the
need for a continuance outweighs the need to avoid delay;
(7) The court's calendar and the impact of granting a continuance on other pending trials;
(8) Whether trial counsel is engaged in another trial;
(9) Whether all parties have stipulated to a continuance;
(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or
by imposing conditions on the continuance; and
(11) Any other fact or circumstance relevant to the fair determination of the motion or application.
CRC 3.1332(d).
The reasons presented by the Gonzales Defendants to continue the trial are that trial counsel has a conflicting trial
schedule and because Marcia Gonzales’s son is getting married the week of trial. In the moving papers, the
Gonzales Defendants note that the wedding date was set prior to the Court setting the Augst 20, 2024 trial date.
The reasons for the Patterson Defendants joining the motion are because counsel has a conflicting trial schedule,
counsel is moving homes in late August, and because the Pattersons have a prepaid vacation from August 26-
September 6, 2024. It is not clear whether the Pattersons’ vacation was set and prepaid when the Court set the
trial date of if the Pattersons planned it after the trial date was set. Plaintiff opposes the continuance on the grounds
that Defendants have failed to show good cause for the continuance, and because Plaintiff will be prejudiced by
a continuance. The prejudice alleged is that a later trial would not allow time for necessary remediation of the
landscaping issues before the next rainy reason. These issues have resulted in significant erosion and flooding.
Plaintiff also argues that the parties stipulated to the August 20, 2024, trial date and all agreed that no further
continuances would be granted absent stipulation. While this agreement did not make it into the Court’s Order
dated April 10, 2024 (which was submitted by the Patterson Defendants), it is clear from the Stipulation that the
parties did reach such a stipulation.
Conflicting trial schedules do not automatically create good cause to continue a trial. Trial counsel regularly have
multiple trials set for the same week. Any attorney who practices in civil law is well aware that not every trial set
actually goes forward as scheduled. No good cause has been presented in that regard. As to the wedding, it
appears the counsel for the Gonzales Defendants did not check with their client prior to agreeing to a trial date.
Had they checked, surely Ms. Gonzales would have pointed out that her son was getting married that week. The
unavailability of Ms. Gonzales due to her son’s wedding may constitute an excusable circumstance under CRC
3.1332(c)(2). Similarly, the Patterson’s vacation could also be such a circumstance, depending on when it was
scheduled.
Regarding the CRC 3.1332(d) factors, the trial date is one month and twelve days away. Trial has been continued
twice before. The first was by stipulation on October 13, 2022. The second was by stipulation on April 9, 2024,
as discussed above. The Gonzales Defendants have requested a continuance to November of 2024 while the
Patterson Defendants have requested 45-60 days. The only alternative means to address the problem that gave
rise to the motion or application for a continuance would be potentially taking witnesses out of order at trial.
Plaintiff may be prejudiced by the continuance. The matter is not entitled to preferential trial setting. Regarding
the Court’s calendar, one of the two civil trial courts will be dark on the currently set date of August 20, 2024,
which reduces the chance that this matter will be assigned to a courtroom for trial. Counsel is not currently
engaged in another trial that causes a conflict and only provides evidence that there are other trials that might
affect counsel’s availability. There is no stipulation for a continuance. The parties previously agreed that no
further continuances would occur absent a stipulation.
Regarding the interests of justice, the Court is in a position of having to weigh how much counsel’s failure to
consult with their clients regarding their schedules should be permitted to affect their client on a personal level.
It is clear that counsel should have done a better job to make sure that the agreed upon trial date worked for all
parties, and not just counsel. This is particularly so when the parties explicitly stipulated that no further
continuances would take place. However, the Court does not feel that it is in the interest of justice to punish Ms.
Gonzales by potentially preventing her from participating in her son’s wedding based on counsel’s failure to
communicate properly. As to the Patterson vacation, it is unclear whether this vacation was set at the time the
trial was set or if the Pattersons scheduled their vacation later. However, the Court does understand the need for
the Pattersons to be present for the trial to present their testimony.
On balance, the Court finds that granting of a short continuance would be in the interest of justice. The Pattersons’
vacation lasts until September 6, 2024. Therefore, the Court intends to continue the trial to Tuesday, September
10, 2024. If this trial date does not work for Plaintiff, the Court will entertain the first available date for Plaintiff.
Should the trial be continued, all discovery deadlines will flow from the new trial date.
However, the Court notes that Defendant American Contractors Indemnity Company was not provided with
notice of today’s hearing. Absent an appearance by Defendant American Contractors Indemnity Company, the
Court will continue today’s hearing to July 22, 2024, at 8:30 a.m. in Department 63 as that is the date that was
originally noticed.
Ruling
TOYOTA INDUSTRIES COMMERCIAL FINANCE INC. VS AIR BOY EXPRESS, INC., A CALIFORNIA CORPORATION, ET AL.
Jul 09, 2024 |
22STCV17241
Case Number:
22STCV17241
Hearing Date:
July 9, 2024
Dept:
71
Superior Court of California
County of Los Angeles
DEPARTMENT 71
TENTATIVE RULING
TOYOTA INDUSTRIES COMMERCIAL FINANCE INC.,
vs.
AIR BOY EXPRESS, INC., et al.
Case No.:
22STCV17241
Hearing Date:
July 9, 2024
Plaintiff Toyota Industries Commercial Finance, Inc.s
unopposed
motion to amend the judgment entered on August 25, 2023, is granted.
Plaintiff Toyota Industries Commercial Finance, Inc. (Toyota) (Plaintiff) moves
unopposed
for this Court to amend the judgment in this matter entered on August 25, 2023, against Defendants
Kil H Choi aka Kil Han Choi
and
Air Boy Express, Inc.
(collectively Defendants) to remove the name of Air Boy Express, Inc., erroneously included in the Judgment as a Plaintiff on line 5.
(Notice of Motion, pg. 1; C.C.P. §473(d).)
Background
On August 25, 2023, the court granted Plaintiffs default judgment against Defendants.
Plaintiff filed multiple default judgment packets to the Court, which necessitated this Courts line edit to include
the name of Air Boy Express, Inc.
on the judgment listing Kil H Choi aka Kil Han Choi according to the one judgment rule.
However, this Court erroneously entered the name of Air Boy Express, Inc. as a Plaintiff instead of as a Defendant.
Plaintiff filed the instant motion on March 13, 2024.
As of the date of this hearing no opposition has been filed.
Motion to Amend Judgment
Legal Standard
Once a judgment is entered, trial courts lose jurisdiction to set aside or amend the judgment except in accordance with statutory procedures.
(
APRI
Insurance Co. v. Superior Court
(1999) 76 Cal.App.4th 176, 182;
Rochin v. Pat
Johnson Manufacturing Co.
(1998) 67 Cal.App.4th 1228, 1238).
However, [t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order. (C.C.P. §473(d).)
Discussion
Plaintiffs motion to amend the clerical error in the judgment to remove the name of
Air Boy Express, Inc.
from line 5 as a Plaintiff and include the name of
Air Boy Express, Inc.
as a Defendant is granted.
Here, the Court made an error by placing the name of
Air Boy Express, Inc.
on the Judgment in the wrong location.
Accordingly, Plaintiffs
unopposed
motion is granted.
Conclusion
Plaintiffs
unopposed
motion to amend the judgment to remove the clerical error listing Defendant
Air Boy Express, Inc. as a Plaintiff and add the name Air Boy Express, Inc. as a Defendant
is granted.
Moving Party to give notice.
Dated:
July _____, 2024
Hon. Daniel M. Crowley
Judge of the Superior Court
Ruling
DONALD L. CRAWFORD SR. VS VERIZON COMMUNICATIONS, INC., ET AL.
Jul 10, 2024 |
24TRCV01439
Case Number:
24TRCV01439
Hearing Date:
July 10, 2024
Dept:
B
Superior Court of
California
County
of Los Angeles
Southwest District
Torrance Dept. B
DONALD L. CRAWFORD SR.,
Plaintiff,
Case No.:
24TRCV01439
vs.
RULING
VERIZON COMMUNICATIONS, INC., et al.,
Defendant.
Hearing Date:
July 10, 2024
Moving Parties:
Defendant Cellco Partnership dba Verizon Wireless (joinder by Walmart Inc.)
Responding Party:
Plaintiff Donald L. Crawford Sr.
Motion to Compel Arbitration
The Court considered the moving papers and joinder, late-filed opposition, and reply papers that was filed before the late-filed opposition.
RULING
The motion is GRANTED and the case is STAYED.
Request for judicial notice by Defendant Cellco Partnership is DENIED.
BACKGROUND
On August 30, 2024, plaintiff Donald L. Crawford Sr. (self-represented) filed a complaint against defendants Verizon Communications, Inc., Walmart, Inc., and Samsung Electronics of America, Inc. for breach of contract, products liability, and intentional tort.
LEGAL AUTHORITY
Under CCP § 1281, a written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and revocable, save upon such grounds as exist for the revocation of any contract.
Under CCP § 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: . . .
(b) Grounds exist for rescission of the agreement. . . .
[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable.
Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.
If the party opposing the petition raises a defense to enforcementeither fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see §1281.2(a), (b))that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.
Rosenthal v. Great Western Fin. Securities Corp.
(1996) 14 Cal. 4th 394, 413.
Petitions to compel arbitration are summary proceedings in which the court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence.
Engalla v. Permanente Medical Group, Inc.
(1997) 15 Cal. 4th 951, 972.
Unlike a ruling on a motion for summary judgment, the Court is charged with resolving any factually disputed issues unless there is no evidentiary support for the claims of the party opposing the petition.
Id.
at 973.
DISCUSSION
Defendant Cellco Parnership dba Verizon Wireless (erroneously sued as Verizon Communications, Inc.) requests an order compelling plaintiff to binding arbitration and to stay the proceeding.
Defendant Walmart Inc. filed a joinder.
In the complaint, plaintiff alleges that on March 15, 2024, plaintiff and defendant Verizon entered into a written contract.
Plaintiff transferred his cell phone from Consumer Cellular to Verizon and received a supposedly new Samsung A-15 phone for signing up for the service.
The monthly service charge was $65 to be deducted from plaintiffs checking account.
Verizon billed plaintiff $287 the first month.
The phone was not brand new.
It was refurbished from a prior defect.
The service was to come with complete customer service.
The phone began to malfunction almost immediately.
Voicemail could not be set up; the phone jumped to mute or airplane mode without plaintiffs knowledge; and it would shut down for hours citing overheating.
It took hours and sometimes days before the phone would come back online.
Verizon techs could not fix it and recommended a replacement device.
Plaintiff has stilnot received the replacement phone.
Plaintiff suffered damages because he had no working phone and was forced to purchase a Tracphone with a different phone number.
Plaintiffs business line is disabled as well.
Plaintiff was forced to go to a third carrier, Metro PCS by T Mobile.
Plaintiff paid for service beginning April 20, 2024, but cannot use the service because Verizon locked the network despite warning from the FCC to release the line to Metro.
Existence of an agreement to arbitrate
As stated in
Cione v. Foresters Equity Services, Inc.
(1997) 58 Cal. App. 4th 625, 634 The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract.
There is no public policy favoring arbitration of disputes that the parties have not agreed to arbitrate.
Lopez v. Charles Schwab & Co., Inc.
(2004) 118 Cal. App. 4th 1224, 1229.
Defendant Verizon Wireless argues that plaintiff agreed to resolve this dispute with Verizon Wireless through binding arbitration.
Defendant explains that on March 15, 2024, plaintiff opened a Verizon Wireless cellular service account for a mobile phone number ending in -8792.
In connection with opening the account, plaintiff executed a Service Summary.
Joseph Ninete decl., Exh. A.
The Service Summary, which references the Verizon Wireless Customer Agreement, states, in part in bold:
I agree to the VZW Customer Agreement (CA), including settlement of disputes by arbitration instead of jury trial, as well as the terms of the plan and optional services I have chosen.
I am aware that I can view the CA anytime at verizonwireless.com.
It also states on another page:
I have read and agree to the Verizon Customer agreement (CA) including settlement of dispute by arbitration instead of a jury trial . . . .
Defendant further contends that plaintiff executed an Installment Loan Agreement/Security Agreement (Payment Agreement) with Verizon Wireless for the purchase of a Galaxy A15.
Ninete decl., Exh. B.
The Payment Agreement incorporates the Customer Agreement by reference, including its arbitration provision.
The Payment Agreement also states:
Additionally, any disputes under this device payment agreement (including, without limitation, any disputes against the Seller and/or Verizon Wireless) shall be resolved in accordance with the dispute resolution provisions in your Customer Service Agreement . . . which terms are incorporated by reference.
Specifically, you and Verizon Wireless (and/or the Seller) both agree to resolve all disputes under this device payment agreement only by arbitration . . . .
The Customer Agreement states in part, in bold capitalized letters, You and Verizon both agree to resolve disputes only by arbitration. . . .
Ninete decl., Exh. C.
In the joinder, defendant Walmart argues that as discussed in length in the moving papers, plaintiffs signed contractual agreement with Verizon Wireless mandates that this claim be resolved in arbitration, and that the agreement clearly states that the seller (in this case Walmart) is equally entitled to arbitration of the agreement and for the state court action to be stayed while arbitration proceeds.
See Ninete decl., Exh. B at page 2 (Specifically, you and Verizon Wireless (and/or the Seller) both agree to resolve all disputes under this device payment agreement only by arbitration . . . .).
In a late-filed opposition, plaintiff contends that no contract exists between plaintiff and defendants because the documents are false, inaccurate, fraudulent in that said documents have [been] altered and/or photoshopped to appear that plaintiff executed the attached false and fraudulent contract.
He does acknowledge finger signing at the store.
The Court finds that defendants have met their burden of proving the existence of an arbitration agreement and that there is no evidence that the above agreements are false, inaccurate, fraudulent.
Scope
Defendants contend that the arbitration provision in the Customer Agreement is broadly worded (Any dispute that in any way relates to or arises out of this Agreement . . . .) and covers plaintiffs claims.
The Court agrees.
Enforceability
Defendant argues that the validity and enforceability of the arbitration provision in the Customer Agreement must be decided by the arbitrator, not the Court, because the arbitration provision contains an express delegation clause.
To be enforceable, the delegation clause itself must be clear and unmistakable, and not revocable under state contract defenses such as fraud, duress, or unconscionability.
Tiri v. Luck Chances, Inc.
(2014) 226 Cal. App. 4
th
231, 242.
See also
B.D. v. Blizzard Ent., Inc.
(2022) 76 Cal. App. 5
th
931, 957 (arbitration agreement clearly and unmistakably delegates question of arbitration to arbitrator by statement that the arbitration has authority to decide all issues of arbitrability).
The Court finds that the delegation clause is clear and unmistakable.
Plaintiff does not address the delegation clause or dispute it in the opposition.
The motion is GRANTED as to the claims against defendants Cellco Partnership dba Verizon Wireless and Walmart Inc.
.
ORDER
The motion is GRANTED.
The claims asserted against defendants Cellco Partnership dba Verizon Wireless and Walmart Inc are ordered to arbitration.
The case is STAYED.
Moving defendant is ordered to give notice of this ruling.
Ruling
JOHNSON, ET AL VS. PARENT, ETAL
Jul 10, 2024 |
CVCV21-0197618
JOHNSON, ET AL VS. PARENT, ETAL
Case Number: CVCV21-0197618
This matter is on calendar for review regarding status of arbitration. The Court ordered this matter to arbitration
on February 5, 2024. Neither side appeared for the prior hearing on May 3, 2024. The Court notes that
Substitutions of Attorney have been filed on behalf of Plaintiffs. An appearance is necessary on today’s
calendar to discuss the status of arbitration.
Ruling
Omar Arroyo et al. vs American Honda Motor Co., Inc., a California Corporation
Jul 09, 2024 |
STK-CV-UBC-2022-0007718
2022-7718 Mercado/Arroyo MTC Deposition of PMQ 7/10/2024 Plaintiffs Rocio Mercado and Omar Arroyo bring a Motion to Compel Deposition Attendance of Defendant’s Person Most Knowledgeable (“PMK”) and Request for Sanctions. Having read the moving papers, the opposition papers, and reply papers the court issues the following tentative ruling: On February 8, 2024, Plaintiffs properly noticed the deposition of Defendants PMK and Custodians of Records. On February 15, 2024, Plaintiffs followed up with Defendant regarding Plaintiffs’ Notice of Depositions and requested that deposition dates be provided in case Defendant’s PMK was not available on the date the deposition was scheduled. On March 2, 2024, Defendant served objections to Plaintiffs’ Notice of Deposition. On March 8, 2024, Plaintiffs’ counsel sent a meet and confer letter to defense counsel regarding defendant’s objections. In the transmittal email plaintiffs’ counsel states “WE are in receipt of your objections to the notice of deposition for AHMAC’s PMQ set for Monday, March 11, 2024 at 11:30 A.M.; however, no alternative dates were provided for the deponent. [¶] Please advise as to an alternative, mutually convenient date so we may be able to re-notice this PMQ depo accordingly. IN addition, please see the attached M&C Letter regarding categories of examination.” On March 11, 2024, at 10:47 A.M., plaintiffs’ counsel sent another email to Defense counsel. This email provided the ZOOM link for the scheduled 11:30 A.M. deposition and also the following language, “Again, if the notice date does not work for Honda or the deponent, please advise on alternate dates. [¶] In the event that your office does not provide alternative dates for t his deposition, to protect our clients’ rights we will proceed with the deposition to memorialize your failure to appear.” Neither Defense counsel nor the party deponent appeared at the properly notice deposition and a non-appearance was taken by plaintiffs’ counsel. At 5:51 P.M. on March 11, 2024, plaintiffs’ counsel sent defense counsel an email attempting to get deposition dates to obtain the deposition without court intervention. On March 15, 2024, Plaintiffs’ counsel again sought dates to obtain the deposition. On March 27, 2024, Plaintiffs’ counsel again sent an email in an attempt to get dates to take the deposition. Finally on March 27, 2024 Defense counsel responded to plaintiffs’ counsel’s inquiry. However, defense counsel did not provide dates for the deposition. Rather defense counsel stated, “We have requested availability for a PMQ to be provided as soon as possible, and will notify you as soon as a date is received.” On April 2, 2024, plaintiffs’ counsel again inquired about deposition dates. As of the time the motion was filed, Defense counsel has failed to provide available deposition dates. Trial of this matter is set for August 19, 2024, 1:30 P.M., Dept. 11B. Oral depositions are an authorized method of discovery. (See CCP §2025.010 et seq.) Serving a deposition notice on a party is the method to obtain the party’s attendance at the oral deposition. (CCP §§2025.210-2025.240 / 2025.280.) If a party fails to attend the deposition as noticed the noticing party may bring a motion to compel attendance. If the party fails to attend or proceed with the noticed deposition the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that party, or the attorney for that party, or both, and in favor any party attending in person or by attorney, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP §2025.430.) In addition, failure to submit to authorized method of discovery is a misuse of the discovery process for which monetary sanctions shall be imposed. (CCP §2023.2023.010(d) /§ 2023.030.) The Motion is GRANTED. Defendant’s PMK is ordered to sit for an oral deposition within 15 days of service of the order on Defense counsel. Defendant is to produce responsive documents at the deposition. The parties are to meet and confer to find an agreeable date, time and location for the deposition within the 15 day window. The request for monetary sanctions is granted. The court finds the hourly rate requested for associate work of $295.00, is reasonable. The court finds the hourly rate requested for Mr. Kirnos of $495.00 is reasonable. The court finds it would take approximately 3 hours of associate time and 2 hours of Mr. Kirnos time write the motion, analyze the opposition, draft a reply and attend the hearing remotely. The court finds that the monetary sanction should include the $60.00 filing fee. Therefore, the court awards $1,935.00 as discovery sanctions against Defendant and Defense counsel. Discovery sanctions payable within 30 days of service of the order. The Mandatory Settlement Conference date of July 22, 2024, 1:30 P.M., Dept. 11B, and Trial Date of August 19, 2024, 1:30 P.M., Dept. 11B, are confirmed and remain as set. WATERS 7/9/2024 Directions for Contesting or Arguing the Tentative Ruling: Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org. that they intend to appear remotely no later than 4:00 PM on the day before the scheduled hearing. The Department, Case number, Case Name, and party’s name must be in the header of the email. The email must include the Department, Case number, Case Name, Motion, party’s name and email, date and time of the hearing, issues they plan to argue, and that they have informed the opposing party. The party must also notify affected counsel, or unrepresented parties, that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument. To conduct a remote appearance, follow the instructions below. There is a dedicated conference bridge lines for Dept. 11B. Call into dedicated conference bridge line at the time set for the hearing. To attend the remote hearing in Dept. 11B: Call into (209) 992-5590, then follow the prompts and use the Bridge # 6941 and Pin # 5564. The courtroom clerk will make announcements and the Judge will call the calendar. Please mute your phones when you are not speaking, and remember to unmute your phone when you are speaking. At this time, we are not able to provide information over the phone. To communicate with the Courtroom Clerk of Dept. 11B, please email questions to civilcourtclerks@sjcourts.org, indicating in the title of the email the Department, Case number, Case Name, and party’s name. A Courtroom Clerk will return your email. To ensure the Court has your most recent contact information, if you have not already done so, please register your email address and mobile number on the Court’s website under Online Services, Attorney Registration. (You do not have to be an attorney to register.) We thank you for your cooperation, assistance, patience and flexibility.
Ruling
MAYS vs ENNIS
Jul 11, 2024 |
CVRI2306229
MOTION TO FILE A CROSS-
CVRI2306229 MAYS VS ENNIS
COMPLAINT
Tentative Ruling:
GRANT
Cross-Complaint to be filed and served within 5 days.
Ruling
JOHN P BERNARD VS. BMW OF NORTH AMERICA, LLC ET AL
Jul 10, 2024 |
CGC23608339
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 8. PLAINTIFF JOHN BERNARD's Motion For Award Of Attorneys Fees, Costs, And Expenses. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. In meantime, counsel shall meet and confer to resolve their differences. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
JOHN P. MIDDLETON, ET AL. VS ROY LEE, ET AL.
Jul 12, 2024 |
19STCV30580
Case Number:
19STCV30580
Hearing Date:
July 12, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
July 12, 2024
Case Name:
Middleton, et al. v. Lee, et al.
Case No.:
19STCV30580
Matter:
Motion to be Relieved as Counsel
Moving Party:
Marc Rohatiner, counsel for Plaintiffs John P. Middleton and The John
Powers Middleton Companies, LLC
Responding Party:
Unopposed
Notice:
OK
Ruling:
The Motion is granted.
Moving party to give notice.
If counsel do not submit on the tentative, they are strongly
encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Marc Rohatiner seeks to be relieved as counsel for Plaintiffs John P. Middleton and The John Powers Middleton Companies, LLC.
The Motion is granted because it meets all requirements of Cal. Rules of Court, Rule 3.1362.
Moving party to give notice.
Attorney is relieved as counsel of record for client effective upon the filing of the proof of service for the Court order (form MC-053) upon the client.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Document
Eulogia Septimo v. Vivid Mortgages Inc.,, Tikva Hope Sekezi,, My Home Advisors, Llc.,, Orin Kraiem,, 525 Chester Street, Llc., Yossi Yaacov, A/K/A Joseph Jacobs,, First Capital Homes Corp.,, Kobi Rannan,, Rock E. Small Plumbing And Heating, Inc.,, Erroll Small,, Akeeb B. Shekoni,, Ravi Construction, and, Askon Architects, P.C.,, Expediting Services, Inc., and, Terreance E. Dougherty, Esq.
Jun 11, 2019 |
Heela Capell
|
Commercial - Contract |
Commercial - Contract |
517987/2022
Preview
FILED: KINGS COUNTY CLERK 01/14/2019 02:19 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/14/2019 I CONDONING% OFFERXNG PLAN THE CITY VIEN CONDOMINIUM 185 YORK STREET BROOKLYN, NKN YORK 11201 Residential Units.......,.....16 8,020,000.00 Non-Residential Units......,..l 385,000.00 Paz3cing Units ......., . 7 195,000.00 Total Amount of Offering $ 8,600,000.00 SHRfSGR AND SELLING AGENT: VAL-HUGH CAPXTAL CORP. 290 Broadhollow Road, Suite 200 He3.ville, NY 11747 Date of acceptance for filing of this Offering Plan is This plan may not be used after unless attended by a duly filed amendment. I THIS PLAN CONTAINS SPECXAL RISKS TO THE ~~3'>. SEE PAGE l. 1 SPONSOR' THIS OFFERXNG PLAN IS THE S ENTXRR OFFER TO SELL THESE CONDOMIN1UM UNITS. NEW YORK LAhf REQUIRES THE SPONSOR TO DISCLOSE ALL MATERIAL XNFORMkTION ZN THZS PLAN AND TO FILE THZS PLAN %1TH THE NEIf YORK STATE DEPARTMENT OF LAN PRIOR TO SELLING OR OITERING TO SELL ANY CONDOMZNINC UNIT . FILING NZTH THE DEPARTMBFZ OF LRi77 DOES NOT IIIRAN THAT THE DEPARTM BIT OR ANY OTHER GOVERNMENTAL AGENCY HAS APPRCATRD THIS OFFERING. BECAUSE THE SPONSOR XS RsT~M~Q THE UNCONDITIONAL RIGHT TO RENT RA~HRR THAN SELL UNXTS, THIS PLAN MAY NOT RESULT IN THE CREATION OF A CONDOMXNXUM IN WHICH A 594XORITY OF THR UNXTS ARE Qli7HED BY OIIIAQL-OCCUPANTS OR XNVESTORS ~~TED TO THE SPGNSOR. (SEE SPECIAL RISKS SECTION OF THE PLAN.) PURCHASERS FOR ~>> OIIN OCCUPANCY SRY NEVER GAIN CONTROL OF THR BOARD OF MG4~RRS UNDER THE TERMS OF THX8 PLAN . (SEE SPECIAL RISKS SECTION OF THR PLAN.) Prepared By: Harold L. Gxuber, Esp, 92 Prospect Place Brooklyn, New York 11217 (718) 788-7722 FILED: KINGS COUNTY CLERK 01/14/2019 02:19 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/14/2019 TABIE OF CONTENTS PART I PAGE SPECIAL RISKS 1 INTRODUCTION 8 DESCRIPTION OF PROPERTY AND IMPROVEMENTS 12 LOCATION AND AREA INFORMATION 13 SCHEDULE A - PRICES OF UNITS 14 SCHEDULE A - EXHIBIT I 16 FOOTNOTES TO SCHEDULE A 17 SCHEDDLE B - PROJECTED BUDGET FOR FIRST . 20 YEAR OF CONDOMINIDM OPERATION FOOTNOTES TO SCHEDULE B 21 SCHEDULE B1 24 . SCHEDULE B1 - EXHIBIT A 25 MANAGEMENT AGREEMENT 26 NON-RESIDENTIAL UNIT 28 CHANGES IN PRICES OF UNITS 29 3391 COMPLIANCE 30 ' INTERIM LEASE 31 PROCEDURE TO PURCHASE 33 EFFECTIVE DATE 39 TERMS OF SALE 41 CLOSING COSTS AND ADJUSTMENTS 43 RIGHTS AND OBLIGATIONS OF SPONSOR 47 -CONTROL BY SPONSOR 51 BOARD OF MANAGERS 53 RIGHTS AND OBLIGATIONS .OF UNIT OWNERS / 57 BOARD OF MANAGERS REAL ESTATE TAXES AND TAX BENEFITS 64 REAL ESTATE TAX BENEFITS LETTER 67 TAXES - DEDUCTIONS TO UNIT OWNERS/ 72 STATUS OF CONDOMINIUM COUNSEL'S TAX OPINION 73 RESERVE FUND 83 WORKING CAPITAL FUND 84 IDENTITY OF PARTIES 85 . GENERAL 86 REPORTS TO UNIT OWNERS/DOCUMENTS ON FILE 88 . SPONSOR'S STATEMENT OF BUILDING CONDITION 89 PART II PURCHASE AGREEMENT PA1 UNIT DEED UD1 POWER OF ATTORNEY POA1 TAX ESCROW AGREEMENT EA1 CONTRACT DEPOSIT ESCROW AGREEMENT EA3 APPLICATION FOR DETERMINATION AD1 DESCRIPTION OF PROPERTY AND SPECIFICATIONS AR1 FLOOR PLÃNS FP1 . REAL PROPERTY LAW SECTION 339kk REl DECLARATION OF CONDOMINIUM DC1 CONDOMINIUM BY-LAWS CBL1 CERTIFICATIONS: SPONSOR CRT1 SPONSOR'S ENGINEER (OR ARCHITECT) CRT3 SPONSOR'S EXPERT CONCERNING ADEQUACY CRTS OF BUDGET SPONSOR'S EXPERT CONCERNING ADEQUACY CRT7 OF COMMERCIAL BUDGET FILED: KINGS COUNTY CLERK 01/14/2019 02:19 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/14/2019 SPECIAL RISKS 1) The Sponsor will file an application for real estate tax section· benefits pursuant to 421 of the Real Property. Tax Law of the State of New York, and shall make all filings to L necessary obtain such benefits. Upon closing, the Sponsor will make all tax benefit documents available to the Condominium for inspection and copying for the life of the benefits. The Sponsor will LJ timely - file all applications and timely comply with all procedures required to properly process and maintain the benefits. Sponsor will make the application at his own cost and expense. Sponsor will use his best efforts to obtain the real estate tax benefits set forth herein. If real estate tax benefits cannot be obtained, the offering plan will be amended, prior to any closings, to disclose the unavailability of real estate tax benefits; and the purchaser will be offered a right of rescission. It is anticipated that benefits will commence within one year after said date, but will apply retroactively to the date on which the Certificate of Occupancy was obtained; so that a Purchaser who pays real estate taxes in excess of the amount due after benefits may be entitled to a refund or remission. As a result of the foregoing, if a Purchaser acquires his unit after the effective date of commencement of benefits, a portion of the benefits will have expired and be unavailable to the Purchaser. The Sponsor's projection of tax due for the first year of operation is based on the figures and assumptions in the accompanying expert's opinion as to real estate tax benefits. However, it is not possible to accurately determine what the . increase in actual assessed valuation will be. Moreover, it is equally impossible to predict any future increases in real·estate tax rates, which may affect the amount of tax due on the property. NO WARRANTY IS OR CAN BE MADE THAT THE BENEFITS SET FORTH HEREIN WILL BE OBTAINED. IN THE EVENT THE BENEFITS ARE NOT OBTAINED, OR IN THE EVENT THERE ARE INCREASES IN THE TAX RATE, OR THE PROPERTY'S ASSESSED VALUATION, OR IN THE STATUTES GOVERNING THE TAX BENEFITS, REAL ESTATE TAXES MAY HIGHER THAN SET FORTH ABOVE FOR THE FIRST YEAR OF OPERATION AND IN FUTURE YEARS. HENCE, INDIVIDUAL CARRYING COSTS FOR ALL UNITS WOULD ALSO BE HIGHER. Prospective purchasers are urged most strongly to read the section entitled REAL ESTATE TAX BENEFITS OPINION. included herein. 2) Closing will not take place, and no individual condominium apartment will be sold until a permanent or temporary Certificate of Occupancy has been obtained for the premises, In the event closing occurs after the issuance of a temporary FILED: KINGS COUNTY CLERK 01/14/2019 02:19 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/14/2019 Certificate of Occupancy, but prior to the issuance of permanent Certificate of Occupancy, then it will remain the obligation of the Sponsor to, at its own cost and expense, obtain such permanent Certificate, and the Certificate must be obtained within two (2) years from date of closing. Prior to the obtaining permanent Certificate of Occupancy, the Sponsor is required to either: a) maintain all deposits and funds in a special escrow account required by GBL-352e (2) (b) unless the Sponsor's engineer or architect certifies that a lesser amount will be reasonably necessary to complete the work needed to obtain the permanent Certificate of Occupancy, in which case the sum exceeding the amount so certified may be released; or, b) deposit with an escrow agent an unconditional, irrevocable letter of credit, or post a surety bond, in the aforesaid specified amount, in accord with the regulations of the New York State Department of Law. See RIGHTS AND OBLIGATIONS OF THE SPONSOR section of this .. Offering Plan. All purchasers and investors are advised to visit the Department of Buildings website/CONSUMER TIPS for its recommendation when purchasing units in a condominium that does not have a final Certificate of Occupancy. 3) There are numerous time constraints imposed in the Purchase Agreement set forth in Part II of this Offering Plan. Time is of the essence as to all such time constraints. This means that if the Purchaser fails to perform within the . applicable time frame, he may waive substantive rights, or incur a forfeiture of substantial sums of money. Thus, a purchaser who fails to cure a default within thirty (30) days after receipt of written notice of said default, will both have the Contract canceledy- and lose his downpayment. a purchaser who Similarly, fails to notify the Sponsor in the event he has failed to obtain mortgage financing within forty (40) days after receiving a fully executed copy of the Purchase Agreement from the Sponsor, will be required to proceed to closing, notwithstanding the fact that purchaser has failed to obtain mortgage financing; and, if such purchaser fails to proceed to closing, the down payment may be retained by the Sponsor. Purchasers are advised to consult with their attorney concerning all terms of this offering. Please see the section of the Offering Plan entitled PROCEDURE TO PURCHASE, along with the PURCHASE AGREEMENT, set forth in Part II, for a statement of all applicable time limitations. 4) The terms of this Offering Plan transfer the statutory obligation to pay New York City Real Property transfer taxes (1% of purchase price for residential units, and New York State Documentary Stamp Taxes ($4.00 per thousand) to the Purchaser, so that the cost of such taxes represent an additional closing cost to the Purchaser, and an additional item of consideration on FILED: KINGS COUNTY CLERK 01/14/2019 02:19 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/14/2019 which transfer taxes must be paid. Additionally, the Purchaser is responsible for paying a Title clearance fee of $350.00, and to the Sponsor's attorney, a document preparation fee of $1,100.00, and may be responsible for certain other fees such as travel fees and default fees. Purchasers shall also make a Working Capital Fund contribution equal to one month's common charges. Finally, Purchaser will pay Sponsor a fee of $2,500.00 as partial reimbursement for the cost of preparing and filing the Offering f Plan for the Condominium conversion of the subject premises. See the section of the Offering Plan entitled CLOSING COSTS AND ADJUSTMENTS. 5) . Until the earlier of five (5) years from the date of first unit closing, or at the time at which the Sponsor or other Holder of Unsold Units owns units consisting of less than 25% of the common interest of the Condominium, Sponsor may exercise veto power over any expenses other than those expenses described in Schedule B or expenses required to comply with applicable laws or regulations, to remedy any notice of violation or to remedy any work order by an insurer; or for any repair or replacement necessary for the preservation or safety of the building; or for the safety of occupants of the building; or required to avoid the suspension of any necessary service to the building. Additionally, so long as the sponsor retains ownership of at least one unit in the building, the By-Laws, Declaration, and Rules and Regulations of the Condominium, may not be amended or modified in any way so as to adversely affect the Sporisor without written consent by the Sponsor. See section of the Offering Plan entitled CONTROL BY THE SPONSOR for a more complete explanation. 6) Sponsor is liable for all common charges, special assessments, and real estate taxes with respect to unsold units, and represents that Sponsor has financial resources to meet these obligations. However, no bond, escrow deposit, or other security has been furnished to secure the Sponsor's obligations. Please see section of the Offering Plan .entitled RIGHTS AND OBLIGATIONS OF THE SPONSOR for a more detailed.explanation. 7) Pursuant to existing law and regulation, the Sponsor may declare the plan effective by entering into a contract for a minimum of 15% of the apartments in the building. In the event Purchase Agreements counted towards the minimum number of unit sales required to declare the plan effective fail to close, it is possible that the building will be converted to condominium status with less than 15% of the apartments in the building actually sold to purchasers. Please see EFFECTIVE DATE section of this Offeririg Plan. FILED: KINGS COUNTY CLERK 01/14/2019 02:19 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/14/2019 8) Purchasers should note that in the current real estate market, banks and other lenders are imposing various restrictions on loans. Such restrictions include requiring that a certain percentage (such as 50% or more) of the apartments in a building be sold before the lender will consider making a loan. Thus, it may be possible for a Purchaser to experience difficulty obtaining a loan in a building where the percentage of units purchased is lower than a lender's particular sales minimum. Even after a building undergoes conversion, lenders may still impose minimum sales requirements before granting a loan. It then may be difficult for a Purchaser to resell an apartment if prospective buyers are unable to obtain a loan due to such minimum sales requirements. See the PROCEDURE TO PURCHASE section of the Offering Plan for a more complete explanation. 9) The Sponsor is not limiting the conditions under which it will rent rather than sell units. There is no commitment to . sell more units than the 15% necessary to declare the plan effective. Owner-Occupants, therefore, may never gain effective control and management of the condominium. See the INTRODUCTION, RIGHTS AND OBLIGATIONS OF THE SPONSOR, CONTROL BY SPONSOR and BOARD OF MANAGERS sections of this Offering Plan for a more complete explanation. . 10) The By-Laws do not include a provision that after the - end of the initial Sponsor control a of the period, majority Board of Managers must be Owner-Occupants or members of an owner occupant's household, who are unrelated to the Sponsor and its Principals. Owner-Occupants and non-resident owners, including the Sponsor, may have inherent conflicts on how the Condominium should be managed because of their different reasons for purchasing, i.e., purchase as a home, as opposed to purchase as an investment. See the INTRODUCTION, RIGHTS AND OBLIGATIONS OF THE SPONSOR, CONTROL BY SPONSOR and BOARD OF MANAGERS sections of this Offering Plan for a more complete explanation. 11) All funds received by the Sponsor for upgrades or extras must initially be placed in the escrow a.ccount set forth herein. However, Purchaser should note that such funds may be released from the escrow account by the escrow agent as long as the Sponsor uses the funds for such upgrades or extras. As a result, in the event the Purchaser is entitled to a rescission, the Purchaser will not receive a refund of any funds used for upgrades or extras, provided the Offering Plan is consummated. In the event the plan is abandoned by the Sponsor, all sums . deposited with the Sponsor, including those used for upgrades or extras, shall be returned to the Purchaser. See the PROCEDURE TO PURCHASE Section of this Offering Plan for a more complete explanation. FILED: KINGS COUNTY CLERK 01/14/2019 02:19 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/14/2019 12) All down payments will be placed in an IOLA account. Such - deposits will be insured by the Federal Deposit Insurance Corporation to a maximum of $250,000.00 per deposit. All funds maintained by a depositor at an institutioil will be aggregated U for purposes of the $250,000.00 threshold. IOLA stands for accounts," "interest on lawyer and is a special type of escrow account maintained by an attorney. Interest earned on an IOLA . account does not accrue to the benefit of either the buyer or the seller but is paid over to the state of New York. Please see the PROCEDURE TO PURCHASE section of this Offering Plan for a more complete explanation. 13) All res-idential units will have allocated, as a limited common element, a terrace or balcony (or balconies) as indicated in the FLOOR PLANS in PART II of this Offering Plan. No structures may be built on these areas without the express written permission of the Board of Managers, other than temporary structures. Unit owners shall be responsible for regular items of maintenance such as painting, brush sweeping and surface repairs. The Condominium shall remain responsible for structural repairs such as girders, beams, etc. Additionally, these areas may not be used for any type of occupancy, including but not limited to dining room, living room, storage, recreation room, office, etc. . Use of these spaces as habitable dwelling spaces may result in a violation being placed against. the building issued by the Buildings Department, which would be the responsibility of the individual unit owner to remove at their own cost and expense. Please see the RIGHTS AND OBLIGATIONS OF UNIT OWNERS AND BOARD OF MANAGERS in Part I of this Offering Plan, DESCRIPTION OF PROPERTY AND BUILDING CONDITION included in Part .II of this Offering Plan and the ARCHITECT'S REPORT in Parli II of the Offering Plan for a more complete explanation. 14) The projected insurance coverage for the building does not include officers and director's liability. Officer's and director's liability is a type of coverage which protects members of the Board of Managers, or officers of the condominium, from any liability engendered by performance of their functions, to the extent such activities are within the scope of their designated capacity, and does not constitute a criminal act by such officer or manager. In the event the condominium wishes to extend such insurance coverage to its directors and managers, this will represent an additional cost on the amount projected for insurance coverage in Schedule B. Please see SCHEDULE B and FOOTNOTES thereto for a more complete explanation. 15) The square footage set forth in SCHEDULE A is based upon "gross" a square footage measurement, which includes as part of the unit the entirety of any exterior walls; the entirety of any FILED: KINGS COUNTY CLERK 01/14/2019 02:19 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/14/2019 wall dividing the unit from any common element; and ¾ of walls dividing units from each other. As a result, the actual floor area of the unit may be significantly smaller than the square footage indicated in SCHEDULE A. Please see footnotes to SCHEDULE A and the ARCHITECT'S REPORT and FLOOR PLANS for a more complete explanation. 16) While Sponsor has no plans to do so, Sponsor is reserving the right to reallocate portions of the common spaces of the building to individual units as limited common elements; or to allow portions of the building to be utilized for the benefit of individual units pursuant to a license agreement. This right shall not apply to portions of the building necessary for ingress or egress to any unit; or to any portion of the common areas designated specifically for common use, such as a common laundry, gymnasium or recreation room. This reallocation of common space shall not be deemed a material change in the Offering Plan giving rise to a right of rescission. No unit's allocation of common interest shall be materially altered as a result of any such reallocation of common interest. 17) While there are currently no development rights available for this property in excess of the development rights being utilized to erect the structure contemplated by this Offering Plan, Sponsor reserves the right, in the event a rezoning of the property creates additional development rights; or in the event a miscalculation is discovered and there are unused development rights; to sell, transfer or assign such development rights to an entity of Sponsor's choosing; and the sale, transfer or assignment of such development rights shall not be deemed a material change to this offering giving rise to a right of rescission. The discovery of such unused air or development rights may not result in the building, which is the subject of this Offering Plan being expanded or limited. The expansion of an adjoining building may affect light and air going to the subject building. In the event such sale, transfer or assignment of such development rights is to an adjacent property which results in a larger structure being built on said property than would otherwise be buildable, Sponsor shall amend the Offering Plan to reflect such change; and if such a sale, transfer or assignment of development rights results in a buildable structure that is more than 10% larger than the structure which could have been built without such development rights, Sponsor shall offer a . right of rescission to all persons who have executed Purchase Agreements for units in this building. 18) In the event that a child under the age of 11 lives, or resides temporarily in a unit, the owner of such unit must notify the Board of Managers in writing of such a fact. Such unit owner shall be obligated at their own cost and expense, to install FILED: KINGS COUNTY CLERK 01/14/2019 02:19 PM INDEX NO. 519788/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/14/2019 window guards in all windows of the unit, and may not remove them until such child ceases to reside, or dwell in the unit. Failure .. to do so is not only a safety hazard, but is a violation of the New York City Administrative Code, may result in a violation being placed against the building, which would be the responsibility of the individual unit owner to remove at their sole cost and expense. Please see the DESCRIPTION OF PROPERTY AND BUILDING CONDITION section in PART II of this Offering Plan for a more complete explanation. 19) . Section 27-2052, et seq., of the