Preview
FILED: BRONX COUNTY CLERK 03/15/2022 10:12 PM INDEX NO. 811980/2021E
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/15/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
_______________________________________________X Index No. 811980/2021E
Date Filed:
MICHAEL MAGRO LIVING TRUST, MICHAEL MAGRO
and MOIRA MAGRO,
Plaintiffs
VERIFIED ANSWER
- against -
3168 EAST TREMONT AVENUE LLC,
and NEW YORK CITY DEPARTMENT OF FINANCE,
Defendants
_____________________________________________X
The Defendant, 3168 EAST TREMONT AVENUE LLC, by its attorney, Nydia
Padilla-Barham, Esq., answering the complaint of the Plaintiffs, herein respectfully alleges:
1. Plaintiff has numbered the Paragraphs of the Complaint so that paragraph
numbers “1-7” are repeated. This Answer will distinguish between the paragraphs by reference
to the page number where the paragraph number appears.
The Defendant denies each and every allegation of the Complaint in the
paragraphs numbered and designated “5” (on page 5 of the Complaint) and “6”(on Page 1 of the
Complaint) and “6” (on page 5 of the Complaint).
2. The Defendant denies knowledge or information sufficient to form a belief as
to the allegations of the complaint in paragraphs numbered and designated “1,” “2,” “3” of Page
1 of the Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE DEFENDANT ALLEGES:
3. Plaintiff failed to comply with the requirements for the notice of default in the
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mortgage loan agreement, a condition precedent to a foreclosure action. Notices presented Exhibits
“E” and “F” are not accompanied by an Affidavit of Service. There is no indication whether the
notices were sent via First Class Mail. There is only a photo or copy of a certified mail receipt.
Complaint shows no indication that the notice was received as no receipt is even provided. How do
we know that the notices were received?
4. Plaintiff failed to provide a clear notice of default as the copies presented as
Exhibits “E” and “F” are confusing and misleading. Top of page shows “arrears” as being $9,465.72
and the bottom shows a table with a total of $ 43,101.50.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE DEFENDANT ALLEGES:
5. Plaintiff failed to properly serve the Defendant thereby costing the Defendant to
waste time in providing an Answer. Plaintiff does not have personal jurisdiction over the
Defendant.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE DEFENDANT ALLEGES:
6. Plaintiff failed to comply with the requirements of NY Real Property
and Proceedings Law § 1306, a condition precedent to this foreclosure action.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE DEFENDANT ALLEGES:
7. Plaintiff failed to comply with the terms of its own notice of default in which it
stated that “any foreclosure or collection attempt will be in accordance with any restrictions that are in
effect pursuant to the COVID pandemic.
8. Plaintiff failed to comply with federal or New York State law requiring
forbearance and loss mitigation programs for borrowers affected or impacted by the Coronavirus
pandemic, or it commenced this action in violation of federal or New York State law imposing
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moratoriums on the commencement of foreclosure actions, or otherwise in violation of any
applicable Executive Order promulgated by the Governor of the State of New York or
Administrative Orders promulgated by the Chief Administrative Judge of the State of New York.
9. Defendant’s attorney was sick with Covid19 and advised the attorney of her illness
and need for an extension in the service of this Answer. Despite written request for a stipulation,
Plaintiff failed to respond to Counsel’s request for a stipulation granting her time to answer.
10. Plaintiff’s attorney, despite ignoring the request for a stipulation waiving
jurisdictional defense and granting more time for an Answer, sent Plaintiff’s attorney a letter setting
forth the amounts owed on the loan. That request, which was made with the request for an extension
was submitted, was sent almost two months later and no mention was made of the stipulation.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE DEFENDANT ALLEGES:
11. The Defendant always has been prompt in the payment of principal and
interest on the Mortgage. Additionally, second mortgage was paid in full – thereby removing
the existence of a second mortgage lien. The Defendant thereby has decreased the outstanding
debt on said Mortgage and thereby increased the value of the mortgaged premises to the Plaintiff.
12. At the time of delivery of the Note and Mortgage, the mortgaged premises
had a fair and reasonable market value of $ 742,000.00, in consideration for which the Mortgage
in the amount of $567,000.00 was granted. By payments by the Defendant on account of
principal, the balance due on the Mortgage has been reduced to $434,445.26, while the fair and
reasonable market value of the mortgaged premises has increased over 100%.
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13. The Plaintiffs' security interest therein is in no way being damaged or
jeopardized. Plaintiff is in contract to sell the premises to a bona fide purchaser. Payoff letter
was requested in order to assist in the sale of the premises.
14. As a result of Paragraphs “12“ through “13” Plaintiffs’ Complaint should be
dismissed to allow Defendant to close on the sale of the property at which point the Defendant
would make the Plaintiff whole.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE AND BY WAY OF FIRST
COUNTERCLAIM DEFENDANT ALLEGES:
Defendant repeats and realleges the Paragraphs “1” through 14” as if stated herein
for the first time.
15. The Defendant 3168 EAST TREMONT AVENUE LLC is the owner in fee
simple of the mortgaged premises described in the complaint. The property was purchased on
January 4, 2013.
16. The property was offered to the Defendant 3168 EAST TREMONT
AVENUE LLC by the applied to the Plaintiffs along with an offer of a for a purchase money
mortgage loan to assist Defendant with the purchase. By a contract of sale, dated December
10, 2012, it was agreed between them that the Plaintiffs should loan to the Defendant the sum
of $567,000.00 for a period of 15 years with interest at the rate of 6.25 percent per annum
securing the said loan; and that the Defendant should, as security therefor, execute and deliver to
the Plaintiffs the Note and Mortgage upon the mortgaged premises, and that the sole
consideration for the same to be given by the Plaintiffs would be the loan of $567,000.00
as aforesaid.
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17. Closing of title on the contract was prompt at the behest of the Plaintiffs.
Closing took place on January 4, 2013 (less than 30 days from the date of the contract).
18. Plaintiffs were the Sellers of this property to the Defendant. As part of the
contract of sale, Plaintiffs promised that they would obtain a certificate of occupancy and pay for
the cost of obtaining same. The rider itself is signed by the parties on the bottom of the page.
Pursuant to the terms of that provision, the provision survived closing of title. A true copy of
the contract of sale showing the rider which survived closing of title is attached hereto as Exhibit
“1” and made a part hereof.
19. No funds were put in escrow as a result of the Defendant’s faith in the
Plaintiffs and because the Plaintiffs’ holding a mortgage on the premises, it was implicit in this
action that an offset was contemplated in the event of the Plaintiff’s nonperformance. No
attempt was made by the Plaintiffs to obtain the certificate of occupancy. No funds were ever
paid to the Defendant for the work that had to be completed and needs to be completed still in
order to obtain the certificate of occupancy. The issue is contributing to the delay of the
closing of title on the new contract of sale. Plaintiffs were only concerned with closing on the
property and apparently only included that paragraph in order to rush to the closing of title
without undertaking to get the certificate of occupancy prior to the sale to the Defendant.
20. Defendant was deceived and given a false sense of security when purchasing
the premises.
21. As a result of the above facts set forth in Paragraph “14” through “20”
Plaintiffs do not have clean hands and should not be allowed to proceed with this foreclosure.
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19. As a result of these facts set forth in Paragraph “1” through “21” Plaintiffs’
recovery should be reduced by the amount of expense required to complete the certificate of
occupancy. To wit: Plaintiffs’ recovery should be offset by $125,000.
WHEREFORE, the Defendant demands judgment dismissing the complaint
herein and for such other and further relief as this Court may deem to be just and equitable,
including the stay of the present action pending the completion of the sale of the premises.
AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE AND BY WAY OF SECOND
COUNTERCLAIM DEFENDANT ALLEGES:
Defendant repeats and realleges the Paragraphs “1” through 19” as if stated herein
for the first time.
20. As a result of these facts set forth in Paragraphs “1 ” through “19” Plaintiff
should balance the equities by granting Defendant a loan modification whereby all of the debt is
rolled into one new loan with a payment date within 1 year of the date of this Answer.
21. Defendant has endured the deaths of his family and the illness of his child
and the shut down of his business and the inability to revive his business due to Covid. He had
a good history of payment until these events got in his way. Plaintiffs should consider his
history and allow Defendant a modification so that he can complete the certificate of occupancy
that he needs in order to sell the premises and pay off the loan and become whole.
22. Plaintiffs are aware of Defendants’ capabilities in normal circumstances and
were able to benefit from his ability to establish and manage a thriving restaurant/bar. Plaintiffs
should be fair and allow the Defendant an opportunity to finish what he started since they were
part of the plan all along and failed to comply with their obligations under the contract.
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NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/15/2022
WHEREFORE, the Defendant demands judgment dismissing the complaint
herein and, further, adjudging that the Note and Mortgage as void; or, alternatively, that the
Plaintiffs be compelled to modify said Note and Mortgage to allow the Defendant time to
complete the sale of the premises and pay back the loan; or alternatively, that the Plaintiffs’
recovery be offset by the amount they should have paid to provide Defendant with a certificate of
occupancy; or alternatively, that this action be stayed pending the sale of the premises, and for
such other and further relief as this Court may deem to be just and equitable.
Dated: March 15, 2022
_______________________________
Nydia Padilla-Barham, Esq.
Attorney for Defendant
257 Route 17K, Suite 101
Newburgh, NY 12550
(845) 784-1778
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VERIFK ATION
L Nydia Padilla-Barham. attorney for 3168 EAST TREMONT AVENUE LLC,
Defendant in this action and have been the attorney for Defendant from the inception of
the contract of sale between the Plaintiffs and the Defendant to the present time.
I swear and affirm that I have read the ANSWER herein and know the contents therect
that the same are true to my own knowledge except as to matters not stated upon
information and belief and as to those matters. I believe them to be true.
Ñ/dia Padilla-Barban
15d'
Subscribed and sworn to before me this day of March, 2022,
NATASHAO. BARHAM
Notary Public, State of New York
Reg. No. 01BA6210324
QuaUfied In ULSTER
County
Commission Expires AUGUST 17,
20$6
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SUPREME COURT OF THE STATE OF NEW YORK Index No. 811980/2021E
COUNTY OF BRONX Date filed:
___________________________________________________________________________
MICHAEL MAGRO LIVING TRUST, MICHAEL
MAGRO and MOIRA MAGRO,
Plaintiffs
- against -
3168 EAST TREMONT AVENUE LLC, and NEW YORK
CITY DEPARTMENT OF FINANCE,
Defendants
__________________________________________________________________________
========================================
VERIFIED ANSWER
========================================
Nydia Padilla-Barham, Esq.
257 Route 17K, Suite 101
Newburgh, NY 12550
(845) 784-1778
9 of 9
Preview
FILED: BRONX COUNTY CLERK 03/15/2022 10:12 PM INDEX NO. 811980/2021E NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/15/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX _______________________________________________X Index No. 811980/2021E Date Filed: MICHAEL MAGRO LIVING TRUST, MICHAEL MAGRO and MOIRA MAGRO, Plaintiffs VERIFIED ANSWER - against - 3168 EAST TREMONT AVENUE LLC, and NEW YORK CITY DEPARTMENT OF FINANCE, Defendants _____________________________________________X The Defendant, 3168 EAST TREMONT AVENUE LLC, by its attorney, Nydia Padilla-Barham, Esq., answering the complaint of the Plaintiffs, herein respectfully alleges: 1. Plaintiff has numbered the Paragraphs of the Complaint so that paragraph numbers “1-7” are repeated. This Answer will distinguish between the paragraphs by reference to the page number where the paragraph number appears. The Defendant denies each and every allegation of the Complaint in the paragraphs numbered and designated “5” (on page 5 of the Complaint) and “6”(on Page 1 of the Complaint) and “6” (on page 5 of the Complaint). 2. The Defendant denies knowledge or information sufficient to form a belief as to the allegations of the complaint in paragraphs numbered and designated “1,” “2,” “3” of Page 1 of the Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE DEFENDANT ALLEGES: 3. Plaintiff failed to comply with the requirements for the notice of default in the 1 of 9 FILED: BRONX COUNTY CLERK 03/15/2022 10:12 PM INDEX NO. 811980/2021E NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/15/2022 mortgage loan agreement, a condition precedent to a foreclosure action. Notices presented Exhibits “E” and “F” are not accompanied by an Affidavit of Service. There is no indication whether the notices were sent via First Class Mail. There is only a photo or copy of a certified mail receipt. Complaint shows no indication that the notice was received as no receipt is even provided. How do we know that the notices were received? 4. Plaintiff failed to provide a clear notice of default as the copies presented as Exhibits “E” and “F” are confusing and misleading. Top of page shows “arrears” as being $9,465.72 and the bottom shows a table with a total of $ 43,101.50. AS AND FOR A SECOND AFFIRMATIVE DEFENSE DEFENDANT ALLEGES: 5. Plaintiff failed to properly serve the Defendant thereby costing the Defendant to waste time in providing an Answer. Plaintiff does not have personal jurisdiction over the Defendant. AS AND FOR A THIRD AFFIRMATIVE DEFENSE DEFENDANT ALLEGES: 6. Plaintiff failed to comply with the requirements of NY Real Property and Proceedings Law § 1306, a condition precedent to this foreclosure action. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE DEFENDANT ALLEGES: 7. Plaintiff failed to comply with the terms of its own notice of default in which it stated that “any foreclosure or collection attempt will be in accordance with any restrictions that are in effect pursuant to the COVID pandemic. 8. Plaintiff failed to comply with federal or New York State law requiring forbearance and loss mitigation programs for borrowers affected or impacted by the Coronavirus pandemic, or it commenced this action in violation of federal or New York State law imposing 2 of 9 FILED: BRONX COUNTY CLERK 03/15/2022 10:12 PM INDEX NO. 811980/2021E NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/15/2022 moratoriums on the commencement of foreclosure actions, or otherwise in violation of any applicable Executive Order promulgated by the Governor of the State of New York or Administrative Orders promulgated by the Chief Administrative Judge of the State of New York. 9. Defendant’s attorney was sick with Covid19 and advised the attorney of her illness and need for an extension in the service of this Answer. Despite written request for a stipulation, Plaintiff failed to respond to Counsel’s request for a stipulation granting her time to answer. 10. Plaintiff’s attorney, despite ignoring the request for a stipulation waiving jurisdictional defense and granting more time for an Answer, sent Plaintiff’s attorney a letter setting forth the amounts owed on the loan. That request, which was made with the request for an extension was submitted, was sent almost two months later and no mention was made of the stipulation. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE DEFENDANT ALLEGES: 11. The Defendant always has been prompt in the payment of principal and interest on the Mortgage. Additionally, second mortgage was paid in full – thereby removing the existence of a second mortgage lien. The Defendant thereby has decreased the outstanding debt on said Mortgage and thereby increased the value of the mortgaged premises to the Plaintiff. 12. At the time of delivery of the Note and Mortgage, the mortgaged premises had a fair and reasonable market value of $ 742,000.00, in consideration for which the Mortgage in the amount of $567,000.00 was granted. By payments by the Defendant on account of principal, the balance due on the Mortgage has been reduced to $434,445.26, while the fair and reasonable market value of the mortgaged premises has increased over 100%. 3 of 9 FILED: BRONX COUNTY CLERK 03/15/2022 10:12 PM INDEX NO. 811980/2021E NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/15/2022 13. The Plaintiffs' security interest therein is in no way being damaged or jeopardized. Plaintiff is in contract to sell the premises to a bona fide purchaser. Payoff letter was requested in order to assist in the sale of the premises. 14. As a result of Paragraphs “12“ through “13” Plaintiffs’ Complaint should be dismissed to allow Defendant to close on the sale of the property at which point the Defendant would make the Plaintiff whole. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE AND BY WAY OF FIRST COUNTERCLAIM DEFENDANT ALLEGES: Defendant repeats and realleges the Paragraphs “1” through 14” as if stated herein for the first time. 15. The Defendant 3168 EAST TREMONT AVENUE LLC is the owner in fee simple of the mortgaged premises described in the complaint. The property was purchased on January 4, 2013. 16. The property was offered to the Defendant 3168 EAST TREMONT AVENUE LLC by the applied to the Plaintiffs along with an offer of a for a purchase money mortgage loan to assist Defendant with the purchase. By a contract of sale, dated December 10, 2012, it was agreed between them that the Plaintiffs should loan to the Defendant the sum of $567,000.00 for a period of 15 years with interest at the rate of 6.25 percent per annum securing the said loan; and that the Defendant should, as security therefor, execute and deliver to the Plaintiffs the Note and Mortgage upon the mortgaged premises, and that the sole consideration for the same to be given by the Plaintiffs would be the loan of $567,000.00 as aforesaid. 4 of 9 FILED: BRONX COUNTY CLERK 03/15/2022 10:12 PM INDEX NO. 811980/2021E NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/15/2022 17. Closing of title on the contract was prompt at the behest of the Plaintiffs. Closing took place on January 4, 2013 (less than 30 days from the date of the contract). 18. Plaintiffs were the Sellers of this property to the Defendant. As part of the contract of sale, Plaintiffs promised that they would obtain a certificate of occupancy and pay for the cost of obtaining same. The rider itself is signed by the parties on the bottom of the page. Pursuant to the terms of that provision, the provision survived closing of title. A true copy of the contract of sale showing the rider which survived closing of title is attached hereto as Exhibit “1” and made a part hereof. 19. No funds were put in escrow as a result of the Defendant’s faith in the Plaintiffs and because the Plaintiffs’ holding a mortgage on the premises, it was implicit in this action that an offset was contemplated in the event of the Plaintiff’s nonperformance. No attempt was made by the Plaintiffs to obtain the certificate of occupancy. No funds were ever paid to the Defendant for the work that had to be completed and needs to be completed still in order to obtain the certificate of occupancy. The issue is contributing to the delay of the closing of title on the new contract of sale. Plaintiffs were only concerned with closing on the property and apparently only included that paragraph in order to rush to the closing of title without undertaking to get the certificate of occupancy prior to the sale to the Defendant. 20. Defendant was deceived and given a false sense of security when purchasing the premises. 21. As a result of the above facts set forth in Paragraph “14” through “20” Plaintiffs do not have clean hands and should not be allowed to proceed with this foreclosure. 5 of 9 FILED: BRONX COUNTY CLERK 03/15/2022 10:12 PM INDEX NO. 811980/2021E NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/15/2022 19. As a result of these facts set forth in Paragraph “1” through “21” Plaintiffs’ recovery should be reduced by the amount of expense required to complete the certificate of occupancy. To wit: Plaintiffs’ recovery should be offset by $125,000. WHEREFORE, the Defendant demands judgment dismissing the complaint herein and for such other and further relief as this Court may deem to be just and equitable, including the stay of the present action pending the completion of the sale of the premises. AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE AND BY WAY OF SECOND COUNTERCLAIM DEFENDANT ALLEGES: Defendant repeats and realleges the Paragraphs “1” through 19” as if stated herein for the first time. 20. As a result of these facts set forth in Paragraphs “1 ” through “19” Plaintiff should balance the equities by granting Defendant a loan modification whereby all of the debt is rolled into one new loan with a payment date within 1 year of the date of this Answer. 21. Defendant has endured the deaths of his family and the illness of his child and the shut down of his business and the inability to revive his business due to Covid. He had a good history of payment until these events got in his way. Plaintiffs should consider his history and allow Defendant a modification so that he can complete the certificate of occupancy that he needs in order to sell the premises and pay off the loan and become whole. 22. Plaintiffs are aware of Defendants’ capabilities in normal circumstances and were able to benefit from his ability to establish and manage a thriving restaurant/bar. Plaintiffs should be fair and allow the Defendant an opportunity to finish what he started since they were part of the plan all along and failed to comply with their obligations under the contract. 6 of 9 FILED: BRONX COUNTY CLERK 03/15/2022 10:12 PM INDEX NO. 811980/2021E NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/15/2022 WHEREFORE, the Defendant demands judgment dismissing the complaint herein and, further, adjudging that the Note and Mortgage as void; or, alternatively, that the Plaintiffs be compelled to modify said Note and Mortgage to allow the Defendant time to complete the sale of the premises and pay back the loan; or alternatively, that the Plaintiffs’ recovery be offset by the amount they should have paid to provide Defendant with a certificate of occupancy; or alternatively, that this action be stayed pending the sale of the premises, and for such other and further relief as this Court may deem to be just and equitable. Dated: March 15, 2022 _______________________________ Nydia Padilla-Barham, Esq. Attorney for Defendant 257 Route 17K, Suite 101 Newburgh, NY 12550 (845) 784-1778 7 of 9 FILED: BRONX COUNTY CLERK 03/15/2022 10:12 PM INDEX NO. 811980/2021E NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/15/2022 VERIFK ATION L Nydia Padilla-Barham. attorney for 3168 EAST TREMONT AVENUE LLC, Defendant in this action and have been the attorney for Defendant from the inception of the contract of sale between the Plaintiffs and the Defendant to the present time. I swear and affirm that I have read the ANSWER herein and know the contents therect that the same are true to my own knowledge except as to matters not stated upon information and belief and as to those matters. I believe them to be true. Ñ/dia Padilla-Barban 15d' Subscribed and sworn to before me this day of March, 2022, NATASHAO. BARHAM Notary Public, State of New York Reg. No. 01BA6210324 QuaUfied In ULSTER County Commission Expires AUGUST 17, 20$6 8 of 9 FILED: BRONX COUNTY CLERK 03/15/2022 10:12 PM INDEX NO. 811980/2021E NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 03/15/2022 SUPREME COURT OF THE STATE OF NEW YORK Index No. 811980/2021E COUNTY OF BRONX Date filed: ___________________________________________________________________________ MICHAEL MAGRO LIVING TRUST, MICHAEL MAGRO and MOIRA MAGRO, Plaintiffs - against - 3168 EAST TREMONT AVENUE LLC, and NEW YORK CITY DEPARTMENT OF FINANCE, Defendants __________________________________________________________________________ ======================================== VERIFIED ANSWER ======================================== Nydia Padilla-Barham, Esq. 257 Route 17K, Suite 101 Newburgh, NY 12550 (845) 784-1778 9 of 9