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FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
THE BOARD OF MANAGERS OF THE REGATTA Index No. 150523/17
CONDOMINIUM,
Plaintiff,
AFFIRMATION IN SUPPORT
-against-
OF PLAINTlFF'S MOTION
VINAY K. DEWAN, ANJALI DEWAN, JP MORGAN
DOE"
CHASE BANK, AND "JOHN No. 1 through "JOHN
DOE"
No. 15, the true name of said defendants being
unknown to plaintiff, the parties intended to be those
persons having or claiming an interest in the liened
premises described in the complaint by virtue of being
tenants, or occupants, or judgment-creditors, or lienors of
any type or nature in all or part of said premises,
Defendants.
CHRISTINA SIMANCA-PROCTOR, an attorney duly admitted to practice
before the Courts of the State of New York, hereby affirms the following to be true under
the penalties for perjury pursuant to CPLR § 2106:
1. I am a partner in the law firm Belkin Burden Wenig 8 Goldman, LLP,
("Plaintiff"
attorneys for plaintiff Board of Managers of the Regatta Condominium or the
"Board"
"Board"). I am fully familiar with the facts and circumstances hereinafter set forth.
2. This affirmation, and the affidavit of Conor McCarthy, sworn to on
Affidavit"
June 7, 2018 (the "McCarthy Affidavit"), are submitted in support of the Board's motion
for an Order:
(a) Pursuant to CPLR R 3212, granting Plaintiff summary
judgment in its favor as against defendants Vinay K.
(" Defendants"
Dewan and Anjali Dewan ("Defendants") on the
grounds that there are no triable issues of fact; and
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(b) Pursuant to CPLR R 3211(b), dismissing the
Defendants'
affirmative defenses contained answer on
the grounds that their affirmatives defense are without
merit and cannot be properly interposed in this action;
an
(c) Pursuant to CPLR R 3025, directing that defendants
Doe" Doe"
"John No. 1 through "John No. 15 be
dismissed as party defendants in this action and the
omnibus clause deleted from the caption, all without
prejudice to all of the pleadings and proceedings
heretofore had herein;
(d) Pursuant to CPLR R 3217, discontinuing this action as
against defendant JP Morgan Chase Bank without
prejudice to all of the pleadings and proceedings
heretofore had herein;
(e) Pursuant to RPAPL §1321,directing that a Referee be
appointed to compute and ascertain the amount due
the Board on the lien for which this action was brought
to foreclose and to report whether the premises should
be sold in one or separate parcels; and
(f) For such other and further relief as to this Court may
seem just and proper.
3. As will be demonstrated below, the Board is entitled to a judgment of
foreclosure against Defendants for arrears in common charges, additional common
charges, interest, late charges and legal fees Defendants are obligated, but have failed,
to pay to the Board.
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RELEVANTBACKGROUNDFACTS
6381 6392
4. The Unit Owners are owners in fee of residential units and
639"
at 21 South End Avenue, New York, New York ("Unit 638", "Unit or, collectively, "the
Units"
Units").
5. This action was brought to foreclose on condominium liens for unpaid
$10,014.983
common charges filed against Unit 638 in the amount of and against Unit
$11,867.85.4
639 in the amount of
6. This action was commenced on January 17, 2017 by the filing of a
summons and verified complaint and notice of pendency with the New York County
Clerk.5
7. On February 14, 2017 Defendant Vinay K. Dewan was served with a
copy of the summons and verified complaint by conspicuous place service.
8. On February 14, 2017 Defendant Anjali Dewan was served with a
copy of the summons and verified complaint by conspicuous place service.
9. On February 10, 2017 defendant the JP Morgan Chase Bank was
service.' 6
served with a copy of the summons and complaint by substituted service
10. Defendant JP Morgan Chase Bank appeared in this action by verified
2017.7
answer dated March 27,
1A of the Unit Assignment Agreement for Unit638 isannexed as Exhibit A.
copy
2A of the Unit Assignment Agreement for Unit639 isannexed as Exhibit B.
copy
3A of the recorded lien against Unit 638 isannexed as Exhibit C.
copy
4A of the recorded lien against Unit 639 isannexed as Exhibit D.
copy
5A of the summons and verifiedcomplaint is annexed as Exhibit E and a of the notice
copy copy
of pendency is annexed as Exhibit F.
6 Copies of the Affidavits of Service are annexed as ExhibitG.
collectively
7A of the Verified Answer isannexed as ExhibitH.
copy
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11. On March 23, 2017, the Unit Owners were given notice pursuant to
§3215(g)(i).8
CPLR
12. By Notice of Motion dated August 14, 2017, Plaintiff moved this Court
for the entry of default judgments, inter alia, against Defendants based on their failure to
("Plaintiffs' Motion"
answer the complaint Motion").
13. Defendants appeared in this action by Verified Answer e-filed on
2017.9
October 13,
14. Plaintiff's motion was denied by order dated February 21, 2018 (the
Order").10
15. The Order did not address the portion of the Board's motion seeking
Doe"
to discontinue this action against "John Nos. 1 through 15 and defendant JP Morgan
Chase Bank.
... .....
8 Copies of the CPLR with proof of are annexed as Exhibit
§3215(g)(i) Notices, service, collectively
I.
SA Defendants'
copy of Answer isannexed as Exhibit J.
10 A of the Order is annexed hereto as Exhibit K.
copy
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DEFENDANTS'
ANSWER
First Affirmative Defense
16. Defendants allege in their first affirmative defense that the complaint
fails to state a cause of action upon which relief may be made.
Defendants'
17. assertion of self-serving and conclusory allegation is
devoid of merit.
Defendants'
18. first affirmative defense fails because the verified
complaint and the evidence - i.e. the Condominium By-Laws and
documentary deeds,
Defendants'
account histories, submitted in support of Plaintiff s case, clearly set forth a
cause of action for foreclosure.
Defendants'
19. Based on the foregoing, first affirmative defense should
be dismissed with prejudice.
Second and Third Affirmative Defenses
20. Defendants allege in their second affirmative defense that Plaintiff
has not properly credited the answering Defendants with payments of common charges
and have unreasonably demanded interest, late fees and counsel fees which are
unwarranted.
21. Defendants allege in their third affirmative defense that the liens for
common charges are excessive and the amounts demanded are unreasonable and
confiscatory in nature.
22. All charges, including interest, late fees and counsel fees sought by
Plaintiff are provided for in the Condominium Declaration and By-Laws. Plaintiff's prima
facie case for the foreclosure of its liens, for all charges, are supported by the
documentary evidence, cannot reasonably be disputed.
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Owners'
23. The Unit second affirmative defense asserts only that the
"incorrect"
amount sought by Plaintiff in this action is and thus not "due and owing to the
Plaintiff...." ."
Plaintiff. . .
Owners'
24. There is no dispute that the Unit have failed to pay what
Defendants'
they owe to the Condominium. challenge, ifany, to the amount sought by
Plaintiff is no impediment to a grant of summary judgment in Plaintiff's favor, and the issue
of the amount due should be addressed by the Referee pursuant to RPAPL §1321, as is
sought in this motion. See, e.g., Board of Managers of Central Park Place Condominium
(1st
v. Potoschnig, 111 A.D.3d 586, 975 N.Y.S.2d 665 Dep't 2013), and 1855 East
(1$t
Tremont Corp. v. Collado Holdings LLC, 102 A.D.3d 567, 961 N.Y.S.2d 25 Dep't
2013).
Defendants'
25. Based on the foregoing, second and third affirmative
defenses must be dismissed, with prejudice.
Fourth Affirmative Defense
26. Defendants allege in their fourth affirmative defense that the Plaintiffs
have, in prosecuting the underlying liens, infringed upon the rights of the Defendants in
their real property ownership by discriminatory practices.
27. This defense is plead in bare bones, meritless and conclusory
Defendants'
manner and is devoid of a single fact or detail that would give support to
allegations.
Defendants'
28. Based on the foregoing, fourth affirmative defense
should be dismissed, with prejudice.
Fifth Affirmative Defense
29. Defendants allege in their fifth affirmative defense that the Plaintiff
has violated the doctrine of unclean hands in that the Plaintiff is guilty of immoral,
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unconscionable conduct and that conduct has been relied upon and is directly related to
the subject matter in this instant litigation.
30. The doctrine of unclean hands is not a recognized defense to a
foreclosure action. See Amherst Factors, Inc. v. Kochenberger, 4 N.Y.2d 203, 149 N.E.2d
863 (Ct. Appeals 1958); First Family Mortgage Corp., of Florida v. Lubliner, 113 A.D.2d
(2nd
868, 493 N.Y.S.2d 598 Dep't 1985). The unclean hands doctrine as a defense in a
foreclosure action was specifically rejected by the Court of Appeals in Jo Ann Homes at
Bellmore, Inc. v. Dworetz, 25 N.Y.2d 112, 302 N.Y.S.2d 799 (Ct. Appeals 1969).
31. Regardless, Defendants cannot meet the burden of asserting an
unclean hands defense. The party seeking to invoke the doctrine of unclean hands has
the burden of showing the opposing party engaged in conduct injuring the party seeking
(2nd
to invoke the doctrine. Fade v. Pugliani/Fade, 8 A.D.3d 612, 779 N.Y.S.2d 568 Dep't
2004).
32. Defendants have made no showing that any action taken by Plaintiff
has harmed them in any manner. The doctrine of unclean hands is only available when
the party seeking to invoke the doctrine was injured by specific conduct of the other party.
Becher ex rel. Ungar v. Feller, 19 Misc. 3d 1138(A), 862 N.Y.S.2d 812 (N.Y. Sup. Ct.
2008) citing Weiss v. Mayflower Doughnut Corp., 1 N.Y.2d 310, 152 N.Y.S.2d 471 (Ct.
Appeals 1956).
Defendants'
33. Based on the foregoing, fifth affirmative defense must
be dismissed, with prejudice.
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DEFENDANTS DO NOT RAISE ANY TRIABLE ISSUES OF
FACT AND PLAINTIFF IS ENTITLED TO SUMMARY
JUDGMENT
Defendants'
34. There are no issues of fact with respect to obligations to
pay common charges, additional common charges, interest, and legal fees to the Board,
Defendants'
there are no issues of fact with respect to failure to do so, and there are no
issues of fact with respect to the amounts owed and recoverable by the Board.
35. CPLR 3212 provides that summary judgment "shall be granted if,
upon all the papers and proof submitted, the cause of action or defense shall be
established sufficiently to warrant the court as a matter of law in directing judgment in
favor of any party".
36. Thus, where there is no genuine material issue of fact to be resolved
at trial, summary judgment should be granted. Andre v. Pomeroy, 35 N.Y.2d 361, 362
N.Y.S.2d 131 (1974). See also European 8 American Bank Trust Co. v. Leonard Masory
Inc., 107 A.D.2d 657, 484 N.Y.S.2d 27 (2nd Dep't 1985) appeal dism'd, 65 N.Y.2d 624,
491 N.Y.S.2d 156 (holding that summary judgment is to be granted where there is an
absence of proof of evidentiary facts to raise genuine triable issues).
37. The Court of Appeals in Andre further warned against a court being
reluctant to grant summary judgment, where such relief is called for:
[W]hen there is no genuine issue to be resolved at trial, the
case should be summarily decided, and an unfounded
reluctance to employ the remedy will only serve to swell the
Trial Calendar and thus deny to other litigants the right to have
their claims promptly adjudicated.
ld. at 364.
38. Consistent with the foregoing legal standard, this case is ripe for
judgment as a matter of law.
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39. The Board is entitled to summary judgment against Defendants
because the following facts are not, and cannot, be disputed:
(a) The Board is the governing body, and fiduciary, of the
Condominium;
(b) Defendants own, and at all relevant times herein have
owned, the Units;
(c) When Defendants purchased the Units, they agreed to
be bound the Condominium's Declaration and By-
by
Laws;
(d) The Condominium's By-Laws require all unit owners
(and Defendants are no exception) to pay common
charges to the Condominium for its maintenance,
upkeep and enhancement;
(e) Defendants have failed to pay common charges to the
Condominium and, as of the date of this motion, is in
arrears to the Condominium;
(f) The Board has duly demanded payment of the arrears
from Defendants, but they have failed and refused to
pay the same and a lien for the arrears was duly filed;
Defendants'
(g) Upon failure to pay, this action was
commenced and Defendants were served with the
summons and verified complaint; and
(h) Defendants have no legally cognizable excuse or
defense to justify his failure to pay common charges to
the Condominium.
40. The Board is entitled to judgment of foreclosure of its lien because
there can be no dispute as to the above facts.
Defendants'
41. No issues of fact exist with respect to failure to make
payments of common charges due under the By-Laws.
42. The Board, having established that Defendants own the Units and
that liens for unpaid common charges have been filed for the unpaid common charges
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owed by Defendants, has made out a prima facie case for summary judgment in this
action.
43. The only remaining issue is the amount due the Board which, it is
respectfully requested, should be determined by a Referee. See Barclay's Bank of New
York, N.A. v. Smitty's Ranch, Inc., 122 A.D.2d 323, 504 N.Y.S.2d 294 (3d Dep't 1986).
THIS ACTION SHOULD BE REFERRED TO A REFEREE TO
COMPUTE AND ASCERTAIN THE AMOUNT DUE THE BOARD
44. As is alleged in the verified complaint and as is detailed in the
McCarthy Affidavit, Defendants have been in default under the By-Laws at issue in this
action by not paying all the common charges, electric charges and late fees due for the
Unit beginning in October 1, 2014.
45. Moreover, the Board has been compelled to incur legal expenses in
the prosecution of this action.
46. The By-Laws specifically state that the Unit Owners are obligated to
pay monthly common charges, additional common charges and assessments, late fees
and legal fees, costs and disbursements incurred by the Board in litigation commenced
Owners'
to enforce its rights as a result of the Unit default in their obligations.
ledgers,"
47. As indicated in the the aggregate amount which is
presently due and owing to Plaintiff by the Unit Owners is $261,069.98 computed through
June 12, 2018.
48. Itis imperative that a Referee be appointed to compute and ascertain
the amount due to the Board to protect the security of the Units for which this action was
11 A of the ledger for Unit with the most recent zero is annexed as
copy 638, beginning balance,
Exhibit L,and a copy of the ledger for Unit 639, beginning with the most recent zero balance, isannexed
as Exhibit M.
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brought to foreclose and to report whether the Units can individually be sold in one parcel
or as separate parcels.
49. This action pertains to the foreclosure of liens for unpaid common
charges, not for foreclosure of a mortgage on the Units.
50. Therefore, provision of RPAPL §1303 and/or §1304 (pertaining to
service of notice on residential mortgages), CPLR §3408 (pertaining to mandatory
settlement conferences in residential mortgage foreclosure actions), the Administrative
Order of the Chief Administrative Judge of the Courts dated March 2011 anti-
2, (requiring
"robo-signing"
affirmations in residential mortgage foreclosure actions) and CPLR
§3012b(a) (requiring a "certificate of merit") are inapplicable.
DOE" DOE"
"JOHN NO. 1 THROUGH "JOHN NO. 15
SHOULD BE DISMISSED AS PARTY DEFENDANTS
Doe" Doe"
51. "John No. 1 through "John No. 15 were named as
defendants in this action to represent persons claiming an interest in the Unit whose
identity was unknown to the Board.
52. Upon the filing of the notice of pendency and summons and verified
complaint, the Board requested that a title continuation be run against the Unit. This
continuation revealed aside from the party defendants named in this action, no other
persons have or claimed to have a recorded interest in the Units.
Doe"
53. No "John defendants were ever served in this action and good
faith evaluation of the title report and other evidence indicates there are no necessary
party defendants who have not already been named and served in this action.
Doe" Doe"
54. Consequently, defendants "John No. 1 through "John No.
15, as non-necessary defendants in this action, should be dismissed from this action and
the omnibus clause should be deleted.
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THIS ACTION SHOULD BE DISCONTINUED AS AGAINST
JPMORGAN CHASE BANK
(" Chase"
55. Defendant JPMorgan Chase Bank ("Chase") was named as a party
defendant in this action because, at the time this action was commenced, it had
mortgages on the Units which, the Board contended, were subordinate to the Board's
liens.
56. With respect to Unit 638, Abacus Federal Savings Bank held a
consolidated, modified and extended mortgage in the principal amount of $500,000.00
Mortgage"
which had been recorded on December 10, 1999 (the "Abacus Mortgage"), and Chase
was the holder of a Credit Line Mortgage in the amount of $500,000.00 recorded on
Mortgage").¹2
February 16, 2006 (the "Chase Credit Line
57. By Partial Release of Mortgage recorded on March 22, 2017, the
638.13
Abacus Mortgage was released as against Unit
58. Upon the release/discharge of the Abacus Mortgage, the Chase
Credit Line Mortgage became the first mortgage on Unit638, and thus ascended in priority
over the Board's lien on that unit.
59. With respect to Unit 638, Chase was the owner and holder of a
mortgage in the principal amount of $17,135.00 dated November 25, 2003 and recorded
in February 2004, which was subordinate to another Abacus Federal Savings Bank
mortgage on that unit.
60. However, after a number of assignments and a consolidated,
modified and extended mortgage also dated November 25, 2003 but not recorded until
12 A of the credit line mortgage isannexed as ExhibitN.
copy
¹3 A of the partial release is annexed as Exhibit O.
copy
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March 22, 2017, that $17,135.00 subordinate mortgage was consolidated with the first
mortgage and 639.'4
thus took priority over the Board's lien on Unit
61. It now appearing, based on instruments recorded with the City
Register in March 2017, that the mortgages on the Units held by Chase and contended
by the Board to be subordinate to the Board's liens are now prior to the Board's liens,
Chase's mortgages cannot be foreclosed in this action, and thus Chase is not a necessary
party to this action.
62. defendant JPMorgan Chase as a non-
Consequently, Bank,
necessary defendant in this action, should be dismissed from this action, and its answer
should be stricken.
63. My signature below certifies that to the best of my knowledge,
information and belief, formed after an inquiry reasonable under the circumstances, that
this foreclosure action, and the presentation of this affirmation and application (and the
contentions herein), are not frivolous as defined under NYCRR §130-1.1(c).
14 A of the CEMA recorded on March 2017 isannexed as
copy 22, Exhibit P.
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WHEREFORE, for all the reasons set forth above and in the McCarthy
Affidavit, it is respectfully requested that plaintiff's motion be granted in its entirety, and
that plaintiff Board of Managers of the Regatta Condominium be granted such other and
further relief as to this Court may seem just and ope
Dated: New York, New York
June 12, 2018 CHN&TIN MANCA-PROCTOR
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DHUBERMAN/1185.2321/2359763
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Preview
FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK THE BOARD OF MANAGERS OF THE REGATTA Index No. 150523/17 CONDOMINIUM, Plaintiff, AFFIRMATION IN SUPPORT -against- OF PLAINTlFF'S MOTION VINAY K. DEWAN, ANJALI DEWAN, JP MORGAN DOE" CHASE BANK, AND "JOHN No. 1 through "JOHN DOE" No. 15, the true name of said defendants being unknown to plaintiff, the parties intended to be those persons having or claiming an interest in the liened premises described in the complaint by virtue of being tenants, or occupants, or judgment-creditors, or lienors of any type or nature in all or part of said premises, Defendants. CHRISTINA SIMANCA-PROCTOR, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following to be true under the penalties for perjury pursuant to CPLR § 2106: 1. I am a partner in the law firm Belkin Burden Wenig 8 Goldman, LLP, ("Plaintiff" attorneys for plaintiff Board of Managers of the Regatta Condominium or the "Board" "Board"). I am fully familiar with the facts and circumstances hereinafter set forth. 2. This affirmation, and the affidavit of Conor McCarthy, sworn to on Affidavit" June 7, 2018 (the "McCarthy Affidavit"), are submitted in support of the Board's motion for an Order: (a) Pursuant to CPLR R 3212, granting Plaintiff summary judgment in its favor as against defendants Vinay K. (" Defendants" Dewan and Anjali Dewan ("Defendants") on the grounds that there are no triable issues of fact; and 1 of 14 FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018 (b) Pursuant to CPLR R 3211(b), dismissing the Defendants' affirmative defenses contained answer on the grounds that their affirmatives defense are without merit and cannot be properly interposed in this action; an (c) Pursuant to CPLR R 3025, directing that defendants Doe" Doe" "John No. 1 through "John No. 15 be dismissed as party defendants in this action and the omnibus clause deleted from the caption, all without prejudice to all of the pleadings and proceedings heretofore had herein; (d) Pursuant to CPLR R 3217, discontinuing this action as against defendant JP Morgan Chase Bank without prejudice to all of the pleadings and proceedings heretofore had herein; (e) Pursuant to RPAPL §1321,directing that a Referee be appointed to compute and ascertain the amount due the Board on the lien for which this action was brought to foreclose and to report whether the premises should be sold in one or separate parcels; and (f) For such other and further relief as to this Court may seem just and proper. 3. As will be demonstrated below, the Board is entitled to a judgment of foreclosure against Defendants for arrears in common charges, additional common charges, interest, late charges and legal fees Defendants are obligated, but have failed, to pay to the Board. -2- 2 of 14 FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018 RELEVANTBACKGROUNDFACTS 6381 6392 4. The Unit Owners are owners in fee of residential units and 639" at 21 South End Avenue, New York, New York ("Unit 638", "Unit or, collectively, "the Units" Units"). 5. This action was brought to foreclose on condominium liens for unpaid $10,014.983 common charges filed against Unit 638 in the amount of and against Unit $11,867.85.4 639 in the amount of 6. This action was commenced on January 17, 2017 by the filing of a summons and verified complaint and notice of pendency with the New York County Clerk.5 7. On February 14, 2017 Defendant Vinay K. Dewan was served with a copy of the summons and verified complaint by conspicuous place service. 8. On February 14, 2017 Defendant Anjali Dewan was served with a copy of the summons and verified complaint by conspicuous place service. 9. On February 10, 2017 defendant the JP Morgan Chase Bank was service.' 6 served with a copy of the summons and complaint by substituted service 10. Defendant JP Morgan Chase Bank appeared in this action by verified 2017.7 answer dated March 27, 1A of the Unit Assignment Agreement for Unit638 isannexed as Exhibit A. copy 2A of the Unit Assignment Agreement for Unit639 isannexed as Exhibit B. copy 3A of the recorded lien against Unit 638 isannexed as Exhibit C. copy 4A of the recorded lien against Unit 639 isannexed as Exhibit D. copy 5A of the summons and verifiedcomplaint is annexed as Exhibit E and a of the notice copy copy of pendency is annexed as Exhibit F. 6 Copies of the Affidavits of Service are annexed as ExhibitG. collectively 7A of the Verified Answer isannexed as ExhibitH. copy -3- 3 of 14 FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018 11. On March 23, 2017, the Unit Owners were given notice pursuant to §3215(g)(i).8 CPLR 12. By Notice of Motion dated August 14, 2017, Plaintiff moved this Court for the entry of default judgments, inter alia, against Defendants based on their failure to ("Plaintiffs' Motion" answer the complaint Motion"). 13. Defendants appeared in this action by Verified Answer e-filed on 2017.9 October 13, 14. Plaintiff's motion was denied by order dated February 21, 2018 (the Order").10 15. The Order did not address the portion of the Board's motion seeking Doe" to discontinue this action against "John Nos. 1 through 15 and defendant JP Morgan Chase Bank. ... ..... 8 Copies of the CPLR with proof of are annexed as Exhibit §3215(g)(i) Notices, service, collectively I. SA Defendants' copy of Answer isannexed as Exhibit J. 10 A of the Order is annexed hereto as Exhibit K. copy -4- 4 of 14 FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018 DEFENDANTS' ANSWER First Affirmative Defense 16. Defendants allege in their first affirmative defense that the complaint fails to state a cause of action upon which relief may be made. Defendants' 17. assertion of self-serving and conclusory allegation is devoid of merit. Defendants' 18. first affirmative defense fails because the verified complaint and the evidence - i.e. the Condominium By-Laws and documentary deeds, Defendants' account histories, submitted in support of Plaintiff s case, clearly set forth a cause of action for foreclosure. Defendants' 19. Based on the foregoing, first affirmative defense should be dismissed with prejudice. Second and Third Affirmative Defenses 20. Defendants allege in their second affirmative defense that Plaintiff has not properly credited the answering Defendants with payments of common charges and have unreasonably demanded interest, late fees and counsel fees which are unwarranted. 21. Defendants allege in their third affirmative defense that the liens for common charges are excessive and the amounts demanded are unreasonable and confiscatory in nature. 22. All charges, including interest, late fees and counsel fees sought by Plaintiff are provided for in the Condominium Declaration and By-Laws. Plaintiff's prima facie case for the foreclosure of its liens, for all charges, are supported by the documentary evidence, cannot reasonably be disputed. -5- 5 of 14 FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018 Owners' 23. The Unit second affirmative defense asserts only that the "incorrect" amount sought by Plaintiff in this action is and thus not "due and owing to the Plaintiff...." ." Plaintiff. . . Owners' 24. There is no dispute that the Unit have failed to pay what Defendants' they owe to the Condominium. challenge, ifany, to the amount sought by Plaintiff is no impediment to a grant of summary judgment in Plaintiff's favor, and the issue of the amount due should be addressed by the Referee pursuant to RPAPL §1321, as is sought in this motion. See, e.g., Board of Managers of Central Park Place Condominium (1st v. Potoschnig, 111 A.D.3d 586, 975 N.Y.S.2d 665 Dep't 2013), and 1855 East (1$t Tremont Corp. v. Collado Holdings LLC, 102 A.D.3d 567, 961 N.Y.S.2d 25 Dep't 2013). Defendants' 25. Based on the foregoing, second and third affirmative defenses must be dismissed, with prejudice. Fourth Affirmative Defense 26. Defendants allege in their fourth affirmative defense that the Plaintiffs have, in prosecuting the underlying liens, infringed upon the rights of the Defendants in their real property ownership by discriminatory practices. 27. This defense is plead in bare bones, meritless and conclusory Defendants' manner and is devoid of a single fact or detail that would give support to allegations. Defendants' 28. Based on the foregoing, fourth affirmative defense should be dismissed, with prejudice. Fifth Affirmative Defense 29. Defendants allege in their fifth affirmative defense that the Plaintiff has violated the doctrine of unclean hands in that the Plaintiff is guilty of immoral, -6- 6 of 14 FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018 unconscionable conduct and that conduct has been relied upon and is directly related to the subject matter in this instant litigation. 30. The doctrine of unclean hands is not a recognized defense to a foreclosure action. See Amherst Factors, Inc. v. Kochenberger, 4 N.Y.2d 203, 149 N.E.2d 863 (Ct. Appeals 1958); First Family Mortgage Corp., of Florida v. Lubliner, 113 A.D.2d (2nd 868, 493 N.Y.S.2d 598 Dep't 1985). The unclean hands doctrine as a defense in a foreclosure action was specifically rejected by the Court of Appeals in Jo Ann Homes at Bellmore, Inc. v. Dworetz, 25 N.Y.2d 112, 302 N.Y.S.2d 799 (Ct. Appeals 1969). 31. Regardless, Defendants cannot meet the burden of asserting an unclean hands defense. The party seeking to invoke the doctrine of unclean hands has the burden of showing the opposing party engaged in conduct injuring the party seeking (2nd to invoke the doctrine. Fade v. Pugliani/Fade, 8 A.D.3d 612, 779 N.Y.S.2d 568 Dep't 2004). 32. Defendants have made no showing that any action taken by Plaintiff has harmed them in any manner. The doctrine of unclean hands is only available when the party seeking to invoke the doctrine was injured by specific conduct of the other party. Becher ex rel. Ungar v. Feller, 19 Misc. 3d 1138(A), 862 N.Y.S.2d 812 (N.Y. Sup. Ct. 2008) citing Weiss v. Mayflower Doughnut Corp., 1 N.Y.2d 310, 152 N.Y.S.2d 471 (Ct. Appeals 1956). Defendants' 33. Based on the foregoing, fifth affirmative defense must be dismissed, with prejudice. -7- 7 of 14 FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018 DEFENDANTS DO NOT RAISE ANY TRIABLE ISSUES OF FACT AND PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT Defendants' 34. There are no issues of fact with respect to obligations to pay common charges, additional common charges, interest, and legal fees to the Board, Defendants' there are no issues of fact with respect to failure to do so, and there are no issues of fact with respect to the amounts owed and recoverable by the Board. 35. CPLR 3212 provides that summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party". 36. Thus, where there is no genuine material issue of fact to be resolved at trial, summary judgment should be granted. Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974). See also European 8 American Bank Trust Co. v. Leonard Masory Inc., 107 A.D.2d 657, 484 N.Y.S.2d 27 (2nd Dep't 1985) appeal dism'd, 65 N.Y.2d 624, 491 N.Y.S.2d 156 (holding that summary judgment is to be granted where there is an absence of proof of evidentiary facts to raise genuine triable issues). 37. The Court of Appeals in Andre further warned against a court being reluctant to grant summary judgment, where such relief is called for: [W]hen there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated. ld. at 364. 38. Consistent with the foregoing legal standard, this case is ripe for judgment as a matter of law. -8- 8 of 14 FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018 39. The Board is entitled to summary judgment against Defendants because the following facts are not, and cannot, be disputed: (a) The Board is the governing body, and fiduciary, of the Condominium; (b) Defendants own, and at all relevant times herein have owned, the Units; (c) When Defendants purchased the Units, they agreed to be bound the Condominium's Declaration and By- by Laws; (d) The Condominium's By-Laws require all unit owners (and Defendants are no exception) to pay common charges to the Condominium for its maintenance, upkeep and enhancement; (e) Defendants have failed to pay common charges to the Condominium and, as of the date of this motion, is in arrears to the Condominium; (f) The Board has duly demanded payment of the arrears from Defendants, but they have failed and refused to pay the same and a lien for the arrears was duly filed; Defendants' (g) Upon failure to pay, this action was commenced and Defendants were served with the summons and verified complaint; and (h) Defendants have no legally cognizable excuse or defense to justify his failure to pay common charges to the Condominium. 40. The Board is entitled to judgment of foreclosure of its lien because there can be no dispute as to the above facts. Defendants' 41. No issues of fact exist with respect to failure to make payments of common charges due under the By-Laws. 42. The Board, having established that Defendants own the Units and that liens for unpaid common charges have been filed for the unpaid common charges -9- 9 of 14 FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018 owed by Defendants, has made out a prima facie case for summary judgment in this action. 43. The only remaining issue is the amount due the Board which, it is respectfully requested, should be determined by a Referee. See Barclay's Bank of New York, N.A. v. Smitty's Ranch, Inc., 122 A.D.2d 323, 504 N.Y.S.2d 294 (3d Dep't 1986). THIS ACTION SHOULD BE REFERRED TO A REFEREE TO COMPUTE AND ASCERTAIN THE AMOUNT DUE THE BOARD 44. As is alleged in the verified complaint and as is detailed in the McCarthy Affidavit, Defendants have been in default under the By-Laws at issue in this action by not paying all the common charges, electric charges and late fees due for the Unit beginning in October 1, 2014. 45. Moreover, the Board has been compelled to incur legal expenses in the prosecution of this action. 46. The By-Laws specifically state that the Unit Owners are obligated to pay monthly common charges, additional common charges and assessments, late fees and legal fees, costs and disbursements incurred by the Board in litigation commenced Owners' to enforce its rights as a result of the Unit default in their obligations. ledgers," 47. As indicated in the the aggregate amount which is presently due and owing to Plaintiff by the Unit Owners is $261,069.98 computed through June 12, 2018. 48. Itis imperative that a Referee be appointed to compute and ascertain the amount due to the Board to protect the security of the Units for which this action was 11 A of the ledger for Unit with the most recent zero is annexed as copy 638, beginning balance, Exhibit L,and a copy of the ledger for Unit 639, beginning with the most recent zero balance, isannexed as Exhibit M. -10- 10 of 14 FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018 brought to foreclose and to report whether the Units can individually be sold in one parcel or as separate parcels. 49. This action pertains to the foreclosure of liens for unpaid common charges, not for foreclosure of a mortgage on the Units. 50. Therefore, provision of RPAPL §1303 and/or §1304 (pertaining to service of notice on residential mortgages), CPLR §3408 (pertaining to mandatory settlement conferences in residential mortgage foreclosure actions), the Administrative Order of the Chief Administrative Judge of the Courts dated March 2011 anti- 2, (requiring "robo-signing" affirmations in residential mortgage foreclosure actions) and CPLR §3012b(a) (requiring a "certificate of merit") are inapplicable. DOE" DOE" "JOHN NO. 1 THROUGH "JOHN NO. 15 SHOULD BE DISMISSED AS PARTY DEFENDANTS Doe" Doe" 51. "John No. 1 through "John No. 15 were named as defendants in this action to represent persons claiming an interest in the Unit whose identity was unknown to the Board. 52. Upon the filing of the notice of pendency and summons and verified complaint, the Board requested that a title continuation be run against the Unit. This continuation revealed aside from the party defendants named in this action, no other persons have or claimed to have a recorded interest in the Units. Doe" 53. No "John defendants were ever served in this action and good faith evaluation of the title report and other evidence indicates there are no necessary party defendants who have not already been named and served in this action. Doe" Doe" 54. Consequently, defendants "John No. 1 through "John No. 15, as non-necessary defendants in this action, should be dismissed from this action and the omnibus clause should be deleted. -11- 11 of 14 FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018 THIS ACTION SHOULD BE DISCONTINUED AS AGAINST JPMORGAN CHASE BANK (" Chase" 55. Defendant JPMorgan Chase Bank ("Chase") was named as a party defendant in this action because, at the time this action was commenced, it had mortgages on the Units which, the Board contended, were subordinate to the Board's liens. 56. With respect to Unit 638, Abacus Federal Savings Bank held a consolidated, modified and extended mortgage in the principal amount of $500,000.00 Mortgage" which had been recorded on December 10, 1999 (the "Abacus Mortgage"), and Chase was the holder of a Credit Line Mortgage in the amount of $500,000.00 recorded on Mortgage").¹2 February 16, 2006 (the "Chase Credit Line 57. By Partial Release of Mortgage recorded on March 22, 2017, the 638.13 Abacus Mortgage was released as against Unit 58. Upon the release/discharge of the Abacus Mortgage, the Chase Credit Line Mortgage became the first mortgage on Unit638, and thus ascended in priority over the Board's lien on that unit. 59. With respect to Unit 638, Chase was the owner and holder of a mortgage in the principal amount of $17,135.00 dated November 25, 2003 and recorded in February 2004, which was subordinate to another Abacus Federal Savings Bank mortgage on that unit. 60. However, after a number of assignments and a consolidated, modified and extended mortgage also dated November 25, 2003 but not recorded until 12 A of the credit line mortgage isannexed as ExhibitN. copy ¹3 A of the partial release is annexed as Exhibit O. copy -'I2- 12 of 14 FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018 March 22, 2017, that $17,135.00 subordinate mortgage was consolidated with the first mortgage and 639.'4 thus took priority over the Board's lien on Unit 61. It now appearing, based on instruments recorded with the City Register in March 2017, that the mortgages on the Units held by Chase and contended by the Board to be subordinate to the Board's liens are now prior to the Board's liens, Chase's mortgages cannot be foreclosed in this action, and thus Chase is not a necessary party to this action. 62. defendant JPMorgan Chase as a non- Consequently, Bank, necessary defendant in this action, should be dismissed from this action, and its answer should be stricken. 63. My signature below certifies that to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that this foreclosure action, and the presentation of this affirmation and application (and the contentions herein), are not frivolous as defined under NYCRR §130-1.1(c). 14 A of the CEMA recorded on March 2017 isannexed as copy 22, Exhibit P. -13- 13 of 14 FILED: NEW YORK COUNTY CLERK 06/14/2018 10:36 AM INDEX NO. 150523/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/14/2018 WHEREFORE, for all the reasons set forth above and in the McCarthy Affidavit, it is respectfully requested that plaintiff's motion be granted in its entirety, and that plaintiff Board of Managers of the Regatta Condominium be granted such other and further relief as to this Court may seem just and ope Dated: New York, New York June 12, 2018 CHN&TIN MANCA-PROCTOR -14- DHUBERMAN/1185.2321/2359763 14 of 14