On November 01, 2017 a
Motion-Secondary
was filed
involving a dispute between
Ac 31, Llc,
Berkshire Bank, Successor By Merger To First Choice Bank,
and
Amk Capital Corp.,
Board Of Managers Of 52 East End Avenue Condominium,
Key Growth Invest Lp,
Mark Fawer,
Melissa Fawer,
Mrk Sales Corp.,
New York State Department Of Taxation And Finance,
Santerder Bank, N.A.,
United States Of America - Internal Revenue Service,
for Real Property - Mortgage Foreclosure - Residential
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 12/22/2020 06:51 PM INDEX NO. 850250/2017
NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 12/22/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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Berkshire Bank, successor by merger to
First Choice Bank,
Plaintiff,
-against-
Index No. 850250/2017
Melissa Fawer
Mark Fawer a/k/a Mark S. Fawer
Santander Bank, N.A.
Key Growth Invest LP
New York State Dept. of Taxation & Finance
United States of America - Internal Revenue Sve.
Bd. of Mgrs. of 52 East End Ave. Condominium
AMK Capital Corp.
MRK Sales Corp.,
Defendants.
-------------------------------------------------------------------X
Michael S. Leinoff, Esq., being duly sworn, deposes and says under penalty of perjury:
1. Plaintiff commenced the above-captioned foreclosure action by filing a Summons
and with the Summons and Complaint and Exhibits. A copy of the Summons and Complaint is
annexed hereto as Exhibit "A". It was accompanied by a Notice of Pendency, annexed as
Exhibit "B". On December 15, 2017, the Fawers filed an Answer to the Summons and
Complaint, annexed to this Motion as Exhibit "C".
2. On November 30, 2018, Plaintiff filed a Motion for Summary Judgment to Strike
Answer and Appoint a Referee. The Fawers filed their Opposition on January 10, 2019, and
Plaintiff filed a Reply on March 13, 2019. An Order of reference was issued by the Hon. Arlene
Fawers'
Bluth on July 23, 2019, granting Plaintiff's motion and denying the Opposition. That
Order is annexed as Exhibit "D". This Order appointed Craig J. Albert as referee. Shortly,
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FILED: NEW YORK COUNTY CLERK 12/22/2020 06:51 PM INDEX NO. 850250/2017
NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 12/22/2020
thereafter, on August 12, 2019, the Fawers appealed this Order to the Appellate Division, First
Department. A copy of the Notice of Appeal is annexed as Exhibit “E”.
3. While the appeal was pending, Referee Albert issued his report. That Report,
dated July 23, 2019, is annexed as Exhibit “F”.
4. Meanwhile, the appeal was denied via an Order issued October 15, 2020. A copy
of the Order of the Appellate Division is annexed as Exhibit “G”.
5. A status conference was held thereafter, on November 4, 2020. At that
conference, the Court directed Plaintiff to file a Motion for Judgment of Foreclosure and Sale. A
copy of that Status Conference Order is annexed as Exhibit “H”. Pursuant thereto, Plaintiff filed
the instant Motion on November 19, 2020.
6. At the same time, the Fawers moved before the Appellate Division for a
reconsideration of its order, or, in the alternative, leave to appeal to the Court of Appeals. The
argument raised in the motion was that at no point has Plaintiff ever established proof that it is
physical possession of the note. A copy of that Motion is annexed as Exhibit “I”. Plaintiff’s
Opposition is Exhibit “J”. There is has been no ruling on this motion yet.
7. The remaining exhibit, Exhibit “K” (the Referee’s Report in a cited case), is also
included. This Court is asked to take judicial notice of the Referee’s Report from the Fawers’
cited case, HSBC Bank v. Tigani, et al, as a public and undisputed court record.
8. This Opposition is also supported by the Affidavit of Mark Fawer.
9. For the reasons stated herein, and in the accompanying Memorandum of Law,
annexed hereto and incorporated by reference, this Motion should be denied.
Dated: New York, NY
December 22, 2020
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FILED: NEW YORK COUNTY CLERK 12/22/2020 06:51 PM INDEX NO. 850250/2017
NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 12/22/2020
s/Michael S. Leinoff
Michael S. Leinoff, Esq.
Lebedin Kofman LLP
Attorneys for the Fawers
26 Broadway, 27th Floor
New York, NY 10004
(212) 500-3273
3 of 3
Preview
FILED: NEW YORK COUNTY CLERK 12/22/2020 06:51 PM INDEX NO. 850250/2017 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 12/22/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------X Berkshire Bank, successor by merger to First Choice Bank, Plaintiff, -against- Index No. 850250/2017 Melissa Fawer Mark Fawer a/k/a Mark S. Fawer Santander Bank, N.A. Key Growth Invest LP New York State Dept. of Taxation & Finance United States of America - Internal Revenue Sve. Bd. of Mgrs. of 52 East End Ave. Condominium AMK Capital Corp. MRK Sales Corp., Defendants. -------------------------------------------------------------------X Michael S. Leinoff, Esq., being duly sworn, deposes and says under penalty of perjury: 1. Plaintiff commenced the above-captioned foreclosure action by filing a Summons and with the Summons and Complaint and Exhibits. A copy of the Summons and Complaint is annexed hereto as Exhibit "A". It was accompanied by a Notice of Pendency, annexed as Exhibit "B". On December 15, 2017, the Fawers filed an Answer to the Summons and Complaint, annexed to this Motion as Exhibit "C". 2. On November 30, 2018, Plaintiff filed a Motion for Summary Judgment to Strike Answer and Appoint a Referee. The Fawers filed their Opposition on January 10, 2019, and Plaintiff filed a Reply on March 13, 2019. An Order of reference was issued by the Hon. Arlene Fawers' Bluth on July 23, 2019, granting Plaintiff's motion and denying the Opposition. That Order is annexed as Exhibit "D". This Order appointed Craig J. Albert as referee. Shortly, 1 of 3 FILED: NEW YORK COUNTY CLERK 12/22/2020 06:51 PM INDEX NO. 850250/2017 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 12/22/2020 thereafter, on August 12, 2019, the Fawers appealed this Order to the Appellate Division, First Department. A copy of the Notice of Appeal is annexed as Exhibit “E”. 3. While the appeal was pending, Referee Albert issued his report. That Report, dated July 23, 2019, is annexed as Exhibit “F”. 4. Meanwhile, the appeal was denied via an Order issued October 15, 2020. A copy of the Order of the Appellate Division is annexed as Exhibit “G”. 5. A status conference was held thereafter, on November 4, 2020. At that conference, the Court directed Plaintiff to file a Motion for Judgment of Foreclosure and Sale. A copy of that Status Conference Order is annexed as Exhibit “H”. Pursuant thereto, Plaintiff filed the instant Motion on November 19, 2020. 6. At the same time, the Fawers moved before the Appellate Division for a reconsideration of its order, or, in the alternative, leave to appeal to the Court of Appeals. The argument raised in the motion was that at no point has Plaintiff ever established proof that it is physical possession of the note. A copy of that Motion is annexed as Exhibit “I”. Plaintiff’s Opposition is Exhibit “J”. There is has been no ruling on this motion yet. 7. The remaining exhibit, Exhibit “K” (the Referee’s Report in a cited case), is also included. This Court is asked to take judicial notice of the Referee’s Report from the Fawers’ cited case, HSBC Bank v. Tigani, et al, as a public and undisputed court record. 8. This Opposition is also supported by the Affidavit of Mark Fawer. 9. For the reasons stated herein, and in the accompanying Memorandum of Law, annexed hereto and incorporated by reference, this Motion should be denied. Dated: New York, NY December 22, 2020 2 of 3 FILED: NEW YORK COUNTY CLERK 12/22/2020 06:51 PM INDEX NO. 850250/2017 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 12/22/2020 s/Michael S. Leinoff Michael S. Leinoff, Esq. Lebedin Kofman LLP Attorneys for the Fawers 26 Broadway, 27th Floor New York, NY 10004 (212) 500-3273 3 of 3