Preview
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
EXHIBIT CC
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
At a Term ofthe Supreme Court, State of New
York, County of Kings at the Courthouse located at
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360 Adams Street, Brooklyn, NY 11201 on the 28
day of December 2022
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PRESENT:
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS !
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SHERREL FARNSWORTH. INDEX # 3346/2015
Plaintiff (s),
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EMERGENCY
-against- ORDERTO SHOW !
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CAUSE
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PETER MCKENZIE, JP MORGAN CHASE BANK t
SUCESSOR IN INTEREST,
Defendant(s).
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Plaintiff Sherrel Farnsworth, through her attorneys Viscardi, Basner & Bigelow, P.C.,
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upon the affirmation of Luke J. Bigelow, Esq. dated December 27,2022, affidavit of Sherrel
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Farnsworth dated December 27, 2022 and the pleadings and proceedings had herein and the
exhibits annexed hereto, hereby demand that the Defendant show cause at the Room 295 of the
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courthouse of the Kings County Supreme Court located at 360 Adams Street, Brooklyn, NY ^
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11201 on the 28 day of December, 2022, at 11:30 o’ clock of the forenoon or as soon thereafter ●
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I as counsel may be heard why an order should not be made: {
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a. modifying the Court’s order of August 25, 2022 to direct Defendant PETER
MCKENZE to transfer his interest in 240 Greene Avenue, Brooklyn, NY to the Plaintiff at the
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same time as his receipt of funds satisfying the Judgment entered 9, 2019; and \
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b. directing Defendant PETER MCKENZIE to appear at Plaintiffs closing of the subject
property, or execute transfer documents of his 1% interest in the subject property prior, to be I
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FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
recorded upon Plaintiffs closing and Defendant’s receipt of payment for the Judgment entered
on December 9, 2019; and
c. staying the foreclosure auction of the subject property scheduled for January 12, 2023
subject to the provisions of filed Judgment Index #506027/2014 pending the resolution of
Plaintiffs Order to Show Cause in the instant partition action; and
d. for such other and different relief as this court may deem just and proper.
ORDERED that the Court’s order of August 25, 2022 is modified to read as follows:
“defendant Mckenzie and/or defendant’s successor in interest, Greene Management Plus, LLC
shall transfer their interest in 240 Greene Avenue, Brooklyn, New York to the plaintiff at the
same time of receipt of said payment”; and
ORDERED that Defendant PETER MCKENZIE shall appear at Plaintiffs closing of the
subject property, or execute transfer documents of his 1% interest in the subject property prior, to
be recorded upon Plaintiff s closing and Defendant’s receipt of payment for the Judgment
entered on December 9, 2019; and
ORDERED that plaintiff of the Kings County Supreme Court Foreclosure Action Index
#506027/2014, JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, SUCCESSOR IN
INTEREST BY PURCHASE FORM THE FEDERAL DEPOSIT INSURNACE CORPORATIO
N AS RECEIVER OF WASHfNGTON MUTUAL BANK F/K/A WASHINGTON MUTUAL
BANK,FA., SUCCESSOR IN INTEREST TO NORTH AMERICAN MORTGAGE
COMPANY, and its attorneys to be stayed from referee auctioning the subject property subject
pending the resolution of Plaintiffs Order to Show Cause in the instant partition action; and
LET SERVICE by overnight mail of this Order to Show Cause and papers upon which it
is based upon Defendant’s counsel at THE ROSENFELD LAW OFFICE, 156 Harbowview S,
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
Lawrence, NY 11559 on or before the day of December 2022, be deemed good and sufficient
service
LET SERVICE by overnight mail of this Order to Show Cause and papers upon which it
is based upon Kings County Supreme Court Foreclosure Action Index #506027/2014 Plaintiffs
counsel at FEIN, SUCH & CRANE LLP, 28 East Main Street, Rochester, NY 14614 on or
before the day of December 2022, be deemed good and sufficient service.
LET SERVICE by overnight mail of this Order to Show Cause and papers upon which it
is based upon Referee Joel Abramson, Esq., 271 Madison Avenue, FI 22, New York, NY 10016
on or before the day of December 2022, be deemed good and sufficient service.
ENTER
J.S.C.
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
●X
SHERREL FARNSWORTH, INDEX # 3346/2015
Plaintiff (s),
EMERGENCY
-against- AFFIRMATION
PETER MCKENZIE, JP MORGAN CHASE BANK
SUCESSOR IN INTEREST,
Defendant(s).
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Luke J. Bigelow, Esq affirms that this emergency application is necessary because the
subject property 240 Greene Avenue, Brooklyn, NY 11238 is scheduled for foreclosure auction
on
January 12, 2023. Plaintiff has secured funding via cash-out refinance to satisfy the
underlying mortgage of the foreclosure action and satisfy the subject Judgment entered on
December 9, 2019 in the instant action. Plaintiff s funding conditions will expire without the
transfer of defendant’s 1 % interest of the subject property prior to or simultaneous to Plaintiffs
closing.
Notice of this application was emailed to Defendant’s counsel on December 27, 2022 at
2:32PM. See notice and email annexed hereto as “Exhibit A”.
Notice of this application was emailed to Kings County Foreclosure Action
Index#506027/2014 Plaintiffs counsel on December 27, 2022 at 2;28PM. See notice and email
annexed hereto as “Exhibit B”.
Dated : Richmond Hill, NY
December 27, 2022 /O
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LUKE J. BIGELoT
Attorneys for Plaintiff
VISCARDI, BASNER & BIGELOW, P.C.
116-07 Myrtle Avenue
Richmond Hill, NY 11418
Tel: 718-297-1717
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KtNGS
SHERREL FARNSWORTH, INDEX #3346/2015
Plaintiff(s),
AFFIRMATION IN
-against- SUPPORT
PETER MCKENZIE, JP MORGAN CHASE BANK
SUCESSOR IN' INTEREST,
Defendant(s).
Luke J. Bigelow, an attorney duly admitted to practice before the courts of the State of
New York hereby affirms the following under the penalty of perjury pursuant to CPLR 2106:
1. That your affiant is an attorney licensed to practice law before the Courts of the
State of New York, that your affiant is the attorney of record for the Plaintiff
SHERREL FARNSWORTH in the above entitled matter that your affiant is
personally familiar with the facts and circumstances recited herein.
2.
That your affiant offers this affirmation in full support of Plaintiff s application
for an order:
a. modifying the Court’s order of August 25, 2022 to direct Defendant
PETER MCKENZE to transfer his interest in 240 Greene Avenue,
Brooklyn, NY to the Plaintiff at the same time as his receipt of funds
satisfying the Judgment entered 9, 2019; and
b. directing Defendant PETER MCKENZIE to appear at Plaintiffs
closing of the subject property, or execute transfer documents of his 1%
interest in the subject property prior, to be recorded upon Plaintiffs
closing and Defendant’s receipt of payment for the Judgment entered on
December 9, 2019; and
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
c. slaying the foreclosure auction of the subject property scheduled for
January 12, 2023 at 11:25 AM subject to the provisions of filed Judgment
Index #506027/2014 pending the resolution of Plaintiffs Order to Show
Cause in the instant partition action; and
d. for such other and different relief as this court may deem just and
proper.
3.
That the subject property 240 Greene Avenue, Brooklyn, NY 11238 is scheduled
for foreclosure auction on January 12, 2023 at 11;25AM. See annexed hereto as
“Exhibit C” the Notice of Sale. Plaintiff has secured funding through a cash-out
refinance of the subject property in order to satisfy both the underlying mortgage
of the foreclosure action, and the Judgment in the instant partition action.
Plaintiff s cash-out refinance is clear to close but for the transfer of Defendant’s
1% interest of the subject property. See annexed hereto as “Exhibit D”
Plaintiffs conditional loan approval, and “Exhibit E” email from Plaintiffs
lender.
4. That the Court’s order of August 25, 2022 in the instant action, annexed hereto as
“Exhibit F” directs states as follows: “If payment is made prior to any scheduled
sale date in accordance with the Sheriffs notice, defendant MclCenzie and/or
defendant’s successor in interest, Greene Management Plus, LLC shall transfer
their interest in 240 Greene Avenue, Brooklyn, New York to the plaintiff, within
five (5) days of receipt of said payment.” Defendant McKenzie has denied
Plaintiffs numerous attempts to pay the subject judgment, as set forth below. See
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
annexed hereto as “Exhibit G” a copy of the subject Judgment entered on
December 9, 2019.
5. Plaintiff, having secured funding in the form of a cash-out refinance of the subject
property, and lacking the personal funds pay the subject judgment without the
transfer of defendant’s 1% interest in the subject property, respectfully requests a
modification of the August 25, 2022 order to read as follows: “defendant
McKenzie and/or defendant’s successor in interest, Greene Management Pius,
LLC shall transfer their interest in 240 Greene Avenue, Brooklyn, New York to
the plaintiff at the same time of receipt of said payment.”
6.
Upon information and belief, the five day delay between Defendant’s receipt of
funds and the transfer of Defendant’s 1% interest of the subject property was due
to the alleged involvement of Greene Management Plus, LLC as successor in
interest to defendant. Upon review of the deeds and conveyances of the subject
property as per the NYC Department of Finance’s Office of the City Register,
accessed via ACRIS and annexed hereto as “Exhibit H,” no deed reflecting the
alleged involvement of Greene Management Plus, LLC as successor in interest to
defendant was recorded at the time of filing of this affirmation. Accordingly, the
five day delay as ordered in the August 25, 2022 order is no longer necessary. The
requested relief would allow Plaintiff to close her cash-out refinance, satisfy the
subject judgment in the instant partition action, and satisfy the underlying
mortgage in the above referenced foreclosure action.
7.
That the requested relief to modify the August 25, 2022 Order to direct a
simultaneous delivery of defendant’s transfer of his 1% interest of the subject
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
property and plaintiffs satisfaction of the subjectjudgment is in accordance with
the nature of the parties’ original agreement during the bench trial of the instant
action. Pursuant to Page 4 of the Transcript of the Bench Trial held in this action
on July 11, 2019 before the Honorable Wavny Toussaint, J.S.C., annexed hereto
as "Exhibit I”, the parties were to execute a “[quit] claim deed so that the
property gets transferred into the Plaintiffs name” and such “would have to be
the process for this action, because [Defendantj’s going to be paid out of the
proceeds from the sale of the property.” P4 L12-14, L17-L19.
8. That, upon information and belief, no such sale of the property occurred due to
Defendant’s refusal to provide information and execute documents necessary to
effectuate such sale. Plaintiff, having no proceeds from a sale that did not occur
due to Defendant’s refusal to perform pursuant to the parties agreement, was not
able to make payments towards the agreed upon amount of ONE HUNDRED
AND FORTY-FIVE THOUSAND DOLLARS ($145,000.00), resulting in the
subject Judgment entered on December 9, 2019.
9.
That Plaintiff has made numerous payments since 2019 towards thejudgment, for
a total amount of SEVENTY-EIGHT THOUSAND DOLLARS ($78,000.00)
despite the lack of proceeds from the sale of the subject property. Upon
Defendant’s request, payments were made via check payable to his wife,
KATHERINE BRENNAN. Annexed hereto as “Exhibit J” are true copies of all
checks paid by Plaintiff towards the Judgment entered December 9, 2019, in the
total amount of SEVENTY-EIGHT THOUSAND DOLLARS ($78,000.00).
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
10.
That Plaintiff, having set aside funds to pay the subject judgment in the amount of
$67,000.00 in a Chase account, reached out to Defendant again on or about
August 2020 in order to arrange the delivery of such payment and transfer of
Defendant’s 1% interest in the subject property. See annexed hereto as “Exhibit
K” Plaintiffs proof of funds. Defendant again refused payment and refused to
provide information and execute documents necessary to effectuate Plaintiffs
Closing. Defendant instead demanded an additional $200,000.00 in excess of the
amount owed on the Judgment from Plaintiff. Annexed hereto as “Exhibit L are
text messages between the parties between August and October 2020, and email
from Defendant.
11.
That Plaintiff, desiring to refinance and pay the remaining balance on the subject
judgment once again reached out to Defendant’s counsel on or about September
2022. Plaintiffs loan was clear to close save for documents to be executed by
Defendant. See Exhibits C and D. Defendant and his counsel refused to comply,
and Plaintiff retained your affiant on October 11,2022.
12.
That your affiant has made numerous attempts to contact Defendant’s attorney of
record. See annexed hereto as “Exhibit M”,chain of emails sent to Defendant’s
counsel. In addition to the said annexed emails, your affiant has made numerous
phone calls and left numerous voice mails for Defendant’s counsel in efforts to
resolve the matter.
13. That Defendant’s counsel agreed to a settlement amount of $90,000.00 after
review of Plaintiffs breakdown of the remaining balance on the Judgment entered
December 9, 2019 and statutory interest, annexed hereto as “Exhibit N.”
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
Plaintiffs counsel drafted the documents required by Plaintiffs lender and
settlement documents for the instant action, and has received verbal confirmation
of the receipt of said documents, and has made adjustments to said documents as
per Defendant’s verbal requests, see documents annexed hereto as “Exhibit O.
Defendant refuses to provide any written acknowledgement of the settlement
above, and refuses to execute any of the documents required for Plaintiffs
closing.
14. A prior application for the stay of the foreclosure auction was made in Plaintiffs
pro-se Order to Show Cause filed on May 4'2022, and resulted in the subject
Order MS #4 dated August 25, 2022. Plaintiff, through her counsel, now moves to
modify the subject Order in order to allow for the payment of the subject
judgment and transfer of defendant’s 1% interest in the subject property to occur
simultaneously.
15.
A prior application for an order directing Defendant PETER MCKENZIE to
appear at Plaintiffs closing of the subject property, or execute transfer documents
of his 1% interest in the subject property prior, to be recorded upon Plaintiffs
closing and Defendant’s receipt of payment for the Judgment entered on
December 9, 2019 was made in Plaintiffs Order to Show Cause filed on
November 18, 2022. The Court declined to sign Plaintiffs Order to Show cause
as the moving papers did not address the Court’s order of August 25, 2022.
Plaintiff now addresses the Court’s order of August 25, 2022 and elaborates on
the facts and circumstances resulting in Plaintiffs application to modify the
subject Order in order to allow for the payment of the subject judgment and
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
transfer of defendant’s 1% interest in the subject property to occur
simultaneously.
16. No prior application other than as described above has been made in this action
for the relief sought herein.
WHEREFORE,your affiant respectfully requests that the Court issue an order:(a)
modifying the Court’s order of August 25, 2022 to direct Defendant PETER MCKEN2E to
transfer his interest in 240 Greene Avenue, Brooklyn, NY to the Plaintiff at the same time as his
receipt of funds satisfying the Judgment entered 9, 2019; and (b) directing Defendant PETER
MCKENZIE to appear at Plaintiff s of the subject property, or execute transfer documents of his
1% interest in the subject property prior, to be recorded upon Plaintiffs dosing and Defendant’s
receipt of payment for the Judgment entered on December 9, 2019; and (c) staying the
foreclosure auction of the subject property scheduled for January 12, 2023 subject to the
provisions of filed Judgment Index #506027/2014 pending the resolution of Plaintiff s Order to
Show Cause in the instant partition action; and (d)for such other and different relief as this court
may deem Just and proper.
Dated : Richmond Hill, NY
December 27, 2022
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LUKEJ. BIGELOW; ESi V
Attorney for Plaintiff ■
VISCARJOI, BASNER & BIGELOW, P.C.
116-07 Myrtle Avenue
Richmond Hill, NY 11418
Tel: 718-297-1717
Fax: 718-297-1794
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
SUPREME COURT OF THE STATE OF NEW YORX
COUNTY OF KINGS i
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SHERKEL FARNSWORTH, INDEX # 3346/2015
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Plaintiff(s),
AEFIDAVIT IN
-against- SUPPQRT
PETER MCKENZIE, JP MORGAN CHASE BANK
SUCESSOR IN INTEREST,
Defendant(s).
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SHERREL FARNSWORTH, being duly deposed and sworn hereby states the following:
1. I am the Plaintiff in the above referenced action and deeded owner of the subject j
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property.
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1 submit this affidavit in support of my Emergency Order to Show Cause for an
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order: (a) modifying the Court’s order of August 25, 2022 to direct Defendant i
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PETER MCKENZE to transfer his interest in 240 Greene Avenue, Brooklyn, NY
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to the Plaintiff at the same time as his receipt of funds satisfying the Judgment I
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entered 9, 2019; and (b) directing Defendant PETER MCKENZIE to appear at )
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Plaintiffs dosing of the subject property, or execute transfer documents of his i
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1% interest in the subject property prior, to be recorded upon Plaintiffs closing
and Defendant’s receipt of payment for the Judgment entered on December 9, !
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2019; and (c) staying the foreclosure auction of the subject property scheduled for
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January 12, 2023 subject to the provisions of filed Judgment Index #506027/2014 1
pending the resolution of Plaintiff s Order to Show Cause in the instant partition
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action; and (d) for such other and different relief as this court may deem just and
proper.
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FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
3.
My home is the subject of Foreclosure Action Index No.: 506027/2014 in the
Supreme Court of Kings County, and is scheduled for foreclosure auction on
January 12, 2023. I have secured funding via cash-out refinance of my home in
order to satisfy the underlying mortgage of the foreclosure action, and to satisfy
the judgment in this instant partition action. My loan is clear to close but for the
transfer of defendant’s 1% interest of the subject property.
4.
The August 25, 2022 order in the instant action directed defendant or defendant’s
successor in interest, Greene Management Plus, LLC to transfer their interest in
the subject property within five days of receipt of payment of the subject
judgment. I have made numerous attempts to satisfy the subject judgment
throughout the years, but defendant McKenzie and his counsel has refiised to
accept payment, execute transfer documents, and have otherwise refused to
cooperate with the attempts to resolve the matter made in good faith by both
myself and my counsel.
5.
I am now unable to satisfy the subject judgment with personal funds, and have
secured funding in the form of a cash-out refinance, which can only close if the
satisfaction of the judgment and transfer of defendant’s 1% interest of the subject
property occurs simultaneously. The five day delay between receipt of payment
and transfer of interest due to the involvement of defendant’s successor in
interest, Greene Management Plus, LLC should not longer be necessary as no
deed has been recorded reflecting such succession of interest has been recorded as
of the filing of this application.
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
6.
That the requested relief to modify the August 25, 2022 Order to direct a
simultaneous delivery of defendant’s transfer of his 1% interest ofthe subject
property and plaintiffs satisfaction of the subject judgment is in accordance with
the parties’ original agreement during the bench trial ofthe instant action. I
appeared before the Honorable Wavny Toussaint for a Bench Trial in the instant
action on July 11, 2019, where in the parties agreed to execute a quit claim deed
so that the property gets transferred into my name, and Defendant McKenzie was
to be paid $145,0000.00 from the proceeds ofthe sale ofthe subject property.
7.
No such sale ofthe property occurred due to Defendant McKenzie’s refusal to
provide information and execute documents required for the sale. I did not have
the funds to pay Defendant McKenzie without the proceeds from my closing due
to Defendants’ refusal to perform according to the agreement made at the Bench
Trial, and a Judgment in the amount of$145,000.00 plus costs and disbursements
was entered on December 9, 2019.
I made multiple payments since 2019 towards the Judgment, despite the lack of
proceeds from the sale of my property. I made payments via check payable to
Defendant’s wife, Katherine Brennan, upon his request, for a total amount of
$78,000.00. The
remaining balance owed to Defendant on this Judgment is
$67,000.00 plus costs and statutory interest.
9.
Having funds to satisfy the judgment, 1 reached out to Defendant McKenzie again
in
August 2020 through October 2020, and requested that he provide information
necessary to draft the transfer documents of his 1% interest in the subject
property. Defendant repeatedly refused to comply with my efforts, and instead
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
insulted me and demanded an additional $200,000.00 in excess to the amount due
on the Judgment.
10.
I reached out to Defendant McKenzie again in September 2022, in attempts to
refinance and pay the remaining balance on the judgment. My loan has been clear
to close since September save for documents to be executed by Defendant.
Defendant s attorney was not responsive whatsoever, and on October 11, 2022,[
retained my current counsel Viscardi, Basner & Bigelow, P.C. in further attempts
to settle the matter.
11.
1 am advised by my attorneys that their office has drafted numerous documents,
made phone calls, left voice messages, and sent emails to Defendant’s counsel.
Defendant’s counsel agreed to a settlement amount of $90,000.00, but has refused
to acknowledge such agreement in writing, and has once again refused to execute
any of the documents required for my closing.
12.
I respect&lly request that the Court issue an order (a) modifying the Court’s order
of August 25. 2022 to direct Defendant PETER MCKENZE to transfer his
interest in 240 Greene Avenue. Brooklyn, NY to the Plaintiff at the same time as
his receipt of funds satisfying the Judgment entered 9, 2019; and (b) directing
Defendant PETER MCKENZIE to appear at Plaintiffs closing of the subject
property, or execute transfer documents of his 1% interest in the subject property
prior, to be recorded upon Plaintiffs closing and Defendant’s receipt of payment
for the Judgment entered on December 9, 2019; and (c) staying the foreclosure
auction of the subject property scheduled for January 12, 2023 subject to the
provisions of filed Judgment Index #506027/2014 pending the resolution of
FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014
NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023
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Plaintiffs Order to Show Cause i 1
- - in the instant partition action; and (d) for such
other and different relief
as this court may deem just and proper.
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y to before me this
day of December, 2022 j
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FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 EXHIBIT CC FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 At a Term ofthe Supreme Court, State of New York, County of Kings at the Courthouse located at th ' 360 Adams Street, Brooklyn, NY 11201 on the 28 day of December 2022 I PRESENT: JSC i I ! I 1 X SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ! i i ■X SHERREL FARNSWORTH. INDEX # 3346/2015 Plaintiff (s), I EMERGENCY -against- ORDERTO SHOW ! I ! CAUSE : I PETER MCKENZIE, JP MORGAN CHASE BANK t SUCESSOR IN INTEREST, Defendant(s). I X * i Plaintiff Sherrel Farnsworth, through her attorneys Viscardi, Basner & Bigelow, P.C., i upon the affirmation of Luke J. Bigelow, Esq. dated December 27,2022, affidavit of Sherrel I; \ Farnsworth dated December 27, 2022 and the pleadings and proceedings had herein and the exhibits annexed hereto, hereby demand that the Defendant show cause at the Room 295 of the ^ I courthouse of the Kings County Supreme Court located at 360 Adams Street, Brooklyn, NY ^ I I . 11201 on the 28 day of December, 2022, at 11:30 o’ clock of the forenoon or as soon thereafter ● i ; 1 * I as counsel may be heard why an order should not be made: { ? ! I { a. modifying the Court’s order of August 25, 2022 to direct Defendant PETER MCKENZE to transfer his interest in 240 Greene Avenue, Brooklyn, NY to the Plaintiff at the t same time as his receipt of funds satisfying the Judgment entered 9, 2019; and \ j b. directing Defendant PETER MCKENZIE to appear at Plaintiffs closing of the subject property, or execute transfer documents of his 1% interest in the subject property prior, to be I 1 j i i i r 1 \ i 1 i FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 recorded upon Plaintiffs closing and Defendant’s receipt of payment for the Judgment entered on December 9, 2019; and c. staying the foreclosure auction of the subject property scheduled for January 12, 2023 subject to the provisions of filed Judgment Index #506027/2014 pending the resolution of Plaintiffs Order to Show Cause in the instant partition action; and d. for such other and different relief as this court may deem just and proper. ORDERED that the Court’s order of August 25, 2022 is modified to read as follows: “defendant Mckenzie and/or defendant’s successor in interest, Greene Management Plus, LLC shall transfer their interest in 240 Greene Avenue, Brooklyn, New York to the plaintiff at the same time of receipt of said payment”; and ORDERED that Defendant PETER MCKENZIE shall appear at Plaintiffs closing of the subject property, or execute transfer documents of his 1% interest in the subject property prior, to be recorded upon Plaintiff s closing and Defendant’s receipt of payment for the Judgment entered on December 9, 2019; and ORDERED that plaintiff of the Kings County Supreme Court Foreclosure Action Index #506027/2014, JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, SUCCESSOR IN INTEREST BY PURCHASE FORM THE FEDERAL DEPOSIT INSURNACE CORPORATIO N AS RECEIVER OF WASHfNGTON MUTUAL BANK F/K/A WASHINGTON MUTUAL BANK,FA., SUCCESSOR IN INTEREST TO NORTH AMERICAN MORTGAGE COMPANY, and its attorneys to be stayed from referee auctioning the subject property subject pending the resolution of Plaintiffs Order to Show Cause in the instant partition action; and LET SERVICE by overnight mail of this Order to Show Cause and papers upon which it is based upon Defendant’s counsel at THE ROSENFELD LAW OFFICE, 156 Harbowview S, FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 Lawrence, NY 11559 on or before the day of December 2022, be deemed good and sufficient service LET SERVICE by overnight mail of this Order to Show Cause and papers upon which it is based upon Kings County Supreme Court Foreclosure Action Index #506027/2014 Plaintiffs counsel at FEIN, SUCH & CRANE LLP, 28 East Main Street, Rochester, NY 14614 on or before the day of December 2022, be deemed good and sufficient service. LET SERVICE by overnight mail of this Order to Show Cause and papers upon which it is based upon Referee Joel Abramson, Esq., 271 Madison Avenue, FI 22, New York, NY 10016 on or before the day of December 2022, be deemed good and sufficient service. ENTER J.S.C. FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ●X SHERREL FARNSWORTH, INDEX # 3346/2015 Plaintiff (s), EMERGENCY -against- AFFIRMATION PETER MCKENZIE, JP MORGAN CHASE BANK SUCESSOR IN INTEREST, Defendant(s). X Luke J. Bigelow, Esq affirms that this emergency application is necessary because the subject property 240 Greene Avenue, Brooklyn, NY 11238 is scheduled for foreclosure auction on January 12, 2023. Plaintiff has secured funding via cash-out refinance to satisfy the underlying mortgage of the foreclosure action and satisfy the subject Judgment entered on December 9, 2019 in the instant action. Plaintiff s funding conditions will expire without the transfer of defendant’s 1 % interest of the subject property prior to or simultaneous to Plaintiffs closing. Notice of this application was emailed to Defendant’s counsel on December 27, 2022 at 2:32PM. See notice and email annexed hereto as “Exhibit A”. Notice of this application was emailed to Kings County Foreclosure Action Index#506027/2014 Plaintiffs counsel on December 27, 2022 at 2;28PM. See notice and email annexed hereto as “Exhibit B”. Dated : Richmond Hill, NY December 27, 2022 /O L LUKE J. BIGELoT Attorneys for Plaintiff VISCARDI, BASNER & BIGELOW, P.C. 116-07 Myrtle Avenue Richmond Hill, NY 11418 Tel: 718-297-1717 FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KtNGS SHERREL FARNSWORTH, INDEX #3346/2015 Plaintiff(s), AFFIRMATION IN -against- SUPPORT PETER MCKENZIE, JP MORGAN CHASE BANK SUCESSOR IN' INTEREST, Defendant(s). Luke J. Bigelow, an attorney duly admitted to practice before the courts of the State of New York hereby affirms the following under the penalty of perjury pursuant to CPLR 2106: 1. That your affiant is an attorney licensed to practice law before the Courts of the State of New York, that your affiant is the attorney of record for the Plaintiff SHERREL FARNSWORTH in the above entitled matter that your affiant is personally familiar with the facts and circumstances recited herein. 2. That your affiant offers this affirmation in full support of Plaintiff s application for an order: a. modifying the Court’s order of August 25, 2022 to direct Defendant PETER MCKENZE to transfer his interest in 240 Greene Avenue, Brooklyn, NY to the Plaintiff at the same time as his receipt of funds satisfying the Judgment entered 9, 2019; and b. directing Defendant PETER MCKENZIE to appear at Plaintiffs closing of the subject property, or execute transfer documents of his 1% interest in the subject property prior, to be recorded upon Plaintiffs closing and Defendant’s receipt of payment for the Judgment entered on December 9, 2019; and FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 c. slaying the foreclosure auction of the subject property scheduled for January 12, 2023 at 11:25 AM subject to the provisions of filed Judgment Index #506027/2014 pending the resolution of Plaintiffs Order to Show Cause in the instant partition action; and d. for such other and different relief as this court may deem just and proper. 3. That the subject property 240 Greene Avenue, Brooklyn, NY 11238 is scheduled for foreclosure auction on January 12, 2023 at 11;25AM. See annexed hereto as “Exhibit C” the Notice of Sale. Plaintiff has secured funding through a cash-out refinance of the subject property in order to satisfy both the underlying mortgage of the foreclosure action, and the Judgment in the instant partition action. Plaintiff s cash-out refinance is clear to close but for the transfer of Defendant’s 1% interest of the subject property. See annexed hereto as “Exhibit D” Plaintiffs conditional loan approval, and “Exhibit E” email from Plaintiffs lender. 4. That the Court’s order of August 25, 2022 in the instant action, annexed hereto as “Exhibit F” directs states as follows: “If payment is made prior to any scheduled sale date in accordance with the Sheriffs notice, defendant MclCenzie and/or defendant’s successor in interest, Greene Management Plus, LLC shall transfer their interest in 240 Greene Avenue, Brooklyn, New York to the plaintiff, within five (5) days of receipt of said payment.” Defendant McKenzie has denied Plaintiffs numerous attempts to pay the subject judgment, as set forth below. See FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 annexed hereto as “Exhibit G” a copy of the subject Judgment entered on December 9, 2019. 5. Plaintiff, having secured funding in the form of a cash-out refinance of the subject property, and lacking the personal funds pay the subject judgment without the transfer of defendant’s 1% interest in the subject property, respectfully requests a modification of the August 25, 2022 order to read as follows: “defendant McKenzie and/or defendant’s successor in interest, Greene Management Pius, LLC shall transfer their interest in 240 Greene Avenue, Brooklyn, New York to the plaintiff at the same time of receipt of said payment.” 6. Upon information and belief, the five day delay between Defendant’s receipt of funds and the transfer of Defendant’s 1% interest of the subject property was due to the alleged involvement of Greene Management Plus, LLC as successor in interest to defendant. Upon review of the deeds and conveyances of the subject property as per the NYC Department of Finance’s Office of the City Register, accessed via ACRIS and annexed hereto as “Exhibit H,” no deed reflecting the alleged involvement of Greene Management Plus, LLC as successor in interest to defendant was recorded at the time of filing of this affirmation. Accordingly, the five day delay as ordered in the August 25, 2022 order is no longer necessary. The requested relief would allow Plaintiff to close her cash-out refinance, satisfy the subject judgment in the instant partition action, and satisfy the underlying mortgage in the above referenced foreclosure action. 7. That the requested relief to modify the August 25, 2022 Order to direct a simultaneous delivery of defendant’s transfer of his 1% interest of the subject FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 property and plaintiffs satisfaction of the subjectjudgment is in accordance with the nature of the parties’ original agreement during the bench trial of the instant action. Pursuant to Page 4 of the Transcript of the Bench Trial held in this action on July 11, 2019 before the Honorable Wavny Toussaint, J.S.C., annexed hereto as "Exhibit I”, the parties were to execute a “[quit] claim deed so that the property gets transferred into the Plaintiffs name” and such “would have to be the process for this action, because [Defendantj’s going to be paid out of the proceeds from the sale of the property.” P4 L12-14, L17-L19. 8. That, upon information and belief, no such sale of the property occurred due to Defendant’s refusal to provide information and execute documents necessary to effectuate such sale. Plaintiff, having no proceeds from a sale that did not occur due to Defendant’s refusal to perform pursuant to the parties agreement, was not able to make payments towards the agreed upon amount of ONE HUNDRED AND FORTY-FIVE THOUSAND DOLLARS ($145,000.00), resulting in the subject Judgment entered on December 9, 2019. 9. That Plaintiff has made numerous payments since 2019 towards thejudgment, for a total amount of SEVENTY-EIGHT THOUSAND DOLLARS ($78,000.00) despite the lack of proceeds from the sale of the subject property. Upon Defendant’s request, payments were made via check payable to his wife, KATHERINE BRENNAN. Annexed hereto as “Exhibit J” are true copies of all checks paid by Plaintiff towards the Judgment entered December 9, 2019, in the total amount of SEVENTY-EIGHT THOUSAND DOLLARS ($78,000.00). FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 10. That Plaintiff, having set aside funds to pay the subject judgment in the amount of $67,000.00 in a Chase account, reached out to Defendant again on or about August 2020 in order to arrange the delivery of such payment and transfer of Defendant’s 1% interest in the subject property. See annexed hereto as “Exhibit K” Plaintiffs proof of funds. Defendant again refused payment and refused to provide information and execute documents necessary to effectuate Plaintiffs Closing. Defendant instead demanded an additional $200,000.00 in excess of the amount owed on the Judgment from Plaintiff. Annexed hereto as “Exhibit L are text messages between the parties between August and October 2020, and email from Defendant. 11. That Plaintiff, desiring to refinance and pay the remaining balance on the subject judgment once again reached out to Defendant’s counsel on or about September 2022. Plaintiffs loan was clear to close save for documents to be executed by Defendant. See Exhibits C and D. Defendant and his counsel refused to comply, and Plaintiff retained your affiant on October 11,2022. 12. That your affiant has made numerous attempts to contact Defendant’s attorney of record. See annexed hereto as “Exhibit M”,chain of emails sent to Defendant’s counsel. In addition to the said annexed emails, your affiant has made numerous phone calls and left numerous voice mails for Defendant’s counsel in efforts to resolve the matter. 13. That Defendant’s counsel agreed to a settlement amount of $90,000.00 after review of Plaintiffs breakdown of the remaining balance on the Judgment entered December 9, 2019 and statutory interest, annexed hereto as “Exhibit N.” FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 Plaintiffs counsel drafted the documents required by Plaintiffs lender and settlement documents for the instant action, and has received verbal confirmation of the receipt of said documents, and has made adjustments to said documents as per Defendant’s verbal requests, see documents annexed hereto as “Exhibit O. Defendant refuses to provide any written acknowledgement of the settlement above, and refuses to execute any of the documents required for Plaintiffs closing. 14. A prior application for the stay of the foreclosure auction was made in Plaintiffs pro-se Order to Show Cause filed on May 4'2022, and resulted in the subject Order MS #4 dated August 25, 2022. Plaintiff, through her counsel, now moves to modify the subject Order in order to allow for the payment of the subject judgment and transfer of defendant’s 1% interest in the subject property to occur simultaneously. 15. A prior application for an order directing Defendant PETER MCKENZIE to appear at Plaintiffs closing of the subject property, or execute transfer documents of his 1% interest in the subject property prior, to be recorded upon Plaintiffs closing and Defendant’s receipt of payment for the Judgment entered on December 9, 2019 was made in Plaintiffs Order to Show Cause filed on November 18, 2022. The Court declined to sign Plaintiffs Order to Show cause as the moving papers did not address the Court’s order of August 25, 2022. Plaintiff now addresses the Court’s order of August 25, 2022 and elaborates on the facts and circumstances resulting in Plaintiffs application to modify the subject Order in order to allow for the payment of the subject judgment and FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 transfer of defendant’s 1% interest in the subject property to occur simultaneously. 16. No prior application other than as described above has been made in this action for the relief sought herein. WHEREFORE,your affiant respectfully requests that the Court issue an order:(a) modifying the Court’s order of August 25, 2022 to direct Defendant PETER MCKEN2E to transfer his interest in 240 Greene Avenue, Brooklyn, NY to the Plaintiff at the same time as his receipt of funds satisfying the Judgment entered 9, 2019; and (b) directing Defendant PETER MCKENZIE to appear at Plaintiff s of the subject property, or execute transfer documents of his 1% interest in the subject property prior, to be recorded upon Plaintiffs dosing and Defendant’s receipt of payment for the Judgment entered on December 9, 2019; and (c) staying the foreclosure auction of the subject property scheduled for January 12, 2023 subject to the provisions of filed Judgment Index #506027/2014 pending the resolution of Plaintiff s Order to Show Cause in the instant partition action; and (d)for such other and different relief as this court may deem Just and proper. Dated : Richmond Hill, NY December 27, 2022 7 -O c LUKEJ. BIGELOW; ESi V Attorney for Plaintiff ■ VISCARJOI, BASNER & BIGELOW, P.C. 116-07 Myrtle Avenue Richmond Hill, NY 11418 Tel: 718-297-1717 Fax: 718-297-1794 FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 SUPREME COURT OF THE STATE OF NEW YORX COUNTY OF KINGS i I X SHERKEL FARNSWORTH, INDEX # 3346/2015 1 Plaintiff(s), AEFIDAVIT IN -against- SUPPQRT PETER MCKENZIE, JP MORGAN CHASE BANK SUCESSOR IN INTEREST, Defendant(s). ●X I SHERREL FARNSWORTH, being duly deposed and sworn hereby states the following: 1. I am the Plaintiff in the above referenced action and deeded owner of the subject j ( property. 2. ! 1 submit this affidavit in support of my Emergency Order to Show Cause for an t order: (a) modifying the Court’s order of August 25, 2022 to direct Defendant i i I PETER MCKENZE to transfer his interest in 240 Greene Avenue, Brooklyn, NY I I i I to the Plaintiff at the same time as his receipt of funds satisfying the Judgment I 4. entered 9, 2019; and (b) directing Defendant PETER MCKENZIE to appear at ) j Plaintiffs dosing of the subject property, or execute transfer documents of his i 1 1% interest in the subject property prior, to be recorded upon Plaintiffs closing and Defendant’s receipt of payment for the Judgment entered on December 9, ! f 2019; and (c) staying the foreclosure auction of the subject property scheduled for I i January 12, 2023 subject to the provisions of filed Judgment Index #506027/2014 1 pending the resolution of Plaintiff s Order to Show Cause in the instant partition ! action; and (d) for such other and different relief as this court may deem just and proper. i i 1 i I i I FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 3. My home is the subject of Foreclosure Action Index No.: 506027/2014 in the Supreme Court of Kings County, and is scheduled for foreclosure auction on January 12, 2023. I have secured funding via cash-out refinance of my home in order to satisfy the underlying mortgage of the foreclosure action, and to satisfy the judgment in this instant partition action. My loan is clear to close but for the transfer of defendant’s 1% interest of the subject property. 4. The August 25, 2022 order in the instant action directed defendant or defendant’s successor in interest, Greene Management Plus, LLC to transfer their interest in the subject property within five days of receipt of payment of the subject judgment. I have made numerous attempts to satisfy the subject judgment throughout the years, but defendant McKenzie and his counsel has refiised to accept payment, execute transfer documents, and have otherwise refused to cooperate with the attempts to resolve the matter made in good faith by both myself and my counsel. 5. I am now unable to satisfy the subject judgment with personal funds, and have secured funding in the form of a cash-out refinance, which can only close if the satisfaction of the judgment and transfer of defendant’s 1% interest of the subject property occurs simultaneously. The five day delay between receipt of payment and transfer of interest due to the involvement of defendant’s successor in interest, Greene Management Plus, LLC should not longer be necessary as no deed has been recorded reflecting such succession of interest has been recorded as of the filing of this application. FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 6. That the requested relief to modify the August 25, 2022 Order to direct a simultaneous delivery of defendant’s transfer of his 1% interest ofthe subject property and plaintiffs satisfaction of the subject judgment is in accordance with the parties’ original agreement during the bench trial ofthe instant action. I appeared before the Honorable Wavny Toussaint for a Bench Trial in the instant action on July 11, 2019, where in the parties agreed to execute a quit claim deed so that the property gets transferred into my name, and Defendant McKenzie was to be paid $145,0000.00 from the proceeds ofthe sale ofthe subject property. 7. No such sale ofthe property occurred due to Defendant McKenzie’s refusal to provide information and execute documents required for the sale. I did not have the funds to pay Defendant McKenzie without the proceeds from my closing due to Defendants’ refusal to perform according to the agreement made at the Bench Trial, and a Judgment in the amount of$145,000.00 plus costs and disbursements was entered on December 9, 2019. I made multiple payments since 2019 towards the Judgment, despite the lack of proceeds from the sale of my property. I made payments via check payable to Defendant’s wife, Katherine Brennan, upon his request, for a total amount of $78,000.00. The remaining balance owed to Defendant on this Judgment is $67,000.00 plus costs and statutory interest. 9. Having funds to satisfy the judgment, 1 reached out to Defendant McKenzie again in August 2020 through October 2020, and requested that he provide information necessary to draft the transfer documents of his 1% interest in the subject property. Defendant repeatedly refused to comply with my efforts, and instead FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 insulted me and demanded an additional $200,000.00 in excess to the amount due on the Judgment. 10. I reached out to Defendant McKenzie again in September 2022, in attempts to refinance and pay the remaining balance on the judgment. My loan has been clear to close since September save for documents to be executed by Defendant. Defendant s attorney was not responsive whatsoever, and on October 11, 2022,[ retained my current counsel Viscardi, Basner & Bigelow, P.C. in further attempts to settle the matter. 11. 1 am advised by my attorneys that their office has drafted numerous documents, made phone calls, left voice messages, and sent emails to Defendant’s counsel. Defendant’s counsel agreed to a settlement amount of $90,000.00, but has refused to acknowledge such agreement in writing, and has once again refused to execute any of the documents required for my closing. 12. I respect&lly request that the Court issue an order (a) modifying the Court’s order of August 25. 2022 to direct Defendant PETER MCKENZE to transfer his interest in 240 Greene Avenue. Brooklyn, NY to the Plaintiff at the same time as his receipt of funds satisfying the Judgment entered 9, 2019; and (b) directing Defendant PETER MCKENZIE to appear at Plaintiffs closing of the subject property, or execute transfer documents of his 1% interest in the subject property prior, to be recorded upon Plaintiffs closing and Defendant’s receipt of payment for the Judgment entered on December 9, 2019; and (c) staying the foreclosure auction of the subject property scheduled for January 12, 2023 subject to the provisions of filed Judgment Index #506027/2014 pending the resolution of FILED: KINGS COUNTY CLERK 03/10/2023 12:13 PM INDEX NO. 506027/2014 NYSCEF DOC. NO. 341 RECEIVED NYSCEF: 03/10/2023 I Plaintiffs Order to Show Cause i 1 - - in the instant partition action; and (d) for such other and different relief as this court may deem just and proper. I { t i ! f y to before me this day of December, 2022 j