Preview
FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/25/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Mot. Seq. #001
BOARD OF MANAGERS OF THE 610 PARK
AVENUE CONDOMINIUM,
Index No. 151261/23
Plaintiff,
-against-
AFFIRMATION IN SUPPORT
16EF APARTMENT, LLC, MARA ENTERPRISES, OF MOTION
DOE" DOE"
AND "JOHN No. 1 through "JOHN 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
mortgaged 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.
ROBERT T. HOLLAND, 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 of Belkin Burden Goldman, LLP,
attorneys for plaintiff Board of Managers of the 610 Park Avenue Condominium (the
"Board").1
I am fully familiar with the facts and circumstances hereinafter set forth.
2. This affirmation is submitted in support of the Board's motion for an
order:
1 All defined terms in this affirmation have the same as are given to them in the
remaining meaning
affidavit of Anthony Milstein sworn to on April 25, 2023 and submitted in support of the Board's motion (the
"Milstein Affidavit").
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(a) Pursuant to CPLR R 3215(d), granting the Board a
default judgment against defendants 16EF Apartment,
LLC and Mara Enterprises by reason of said
defendants'
failure to answer or otherwise move with
respect to the complaint in this action;
(b) Pursuant to Real Property Law §339-aa and Article 6,
Section 6.3.3 of the Condominium's By-Laws,
appointing a Receiver to demand and collect the
reasonable rent for the condominium unit involved in
this action;
(c) Pursuant to CPLR R 3025, directing that defendants
Doe" Doe"
"John No. 1 through "John No. 15 be
dismissed asparty 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 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 liened premises
should be sold in one parcel; and
(e) For such other and further relief as to this Court may
seem just and proper.
3. As the Board's verified complaint in this action indicates, this action
was brought to foreclose a lien in the original amount of $104,819.93 filed against the
Apartment and for related relief.
4. As the Milstein Affidavit details, this action was commenced as a
result of the failure of the Unit Owner to make payments of common charges and
additional common charges due pursuant to the By-Laws.
5. This action was commenced by the e-filing of a summons and
2023.2
verified complaint and a notice of pendency on February 8,
2A and verified complaint is annexed as Exhibit E and a copy of the notice
copy of the summons
of pendency is annexed as Exhibit F.
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6. On February 17, 2023, the Unit Owner was served with copies of the
summons and verified complaint and notice of electronic filing by service on the New
York Secretary of State.
7. On February 17, 2023, defendant Mara Enterprises was served with
copies of the summons and verified complaint and notice of electronic filing by service
on the New York Secretary of State. Thereafter, by letter dated March 3, 2023, this
defendant was sent another copy of the summons and complaint with notice of electronic
filing in accordance with New York Business Corporation Law §307(b)(2)
8. The affidavits of service on these defendants were e-filed with the
Court.3
Clerk of this
9. On April 20, 2023, the Unit Owner was served with the CPLR §3215
Notice.4
10. Defendants 16EF Apartment, LLC and Mara Enterprises have not
answered or otherwise moved with respect to the verified complaint and the time for said
defendants to do so has expired and there have been no extensions of time within which
to appear, answer or otherwise move with respect to the verified complaint granted on
consent or by any other court as to any defendant except as set forth above.
11. The defendants 16EF Apartment, LLC and Mara Enterprises are now
in default and Plaintiff requests this Court issue a judgment declaring that these
defendants and all persons claiming under or through them, and any of them claiming
upon liens docketed, as well as all persons making claims subsequent to the filing of the
notice of pendency of this action, be barred and foreclosed of and from all estate, right,
title and interest, claim, lien, equity of redemption of, in and to the Apartment.
3 Copies of the affidavits of service and of the March letter
3, 2023 are annexed as Exhibit G.
4 A of the CPLR §3215 Notice with proof of service is annexed as Exhibit H.
copy
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THE BOARD IS ENTITLED
TO THE APPOINTMENT OF A RECEIVER
12. As the Ledger for the Apartment (see Exhibit D) indicates, the
monthly common charges for the Apartment are currently $11,764.80. In addition to
monthly common charges, the Unit Owner is also billed for electric charges, which are
submetered; recent monthly electric charges have ranged from $613.71 to 1,271.34. The
Unit Owner is also currently billed $162.00 per month as a license fee for common area
hallway space incorporated into the Apartment.
13. As set forth in the Gillen Affidavit, based on comparable rentals in
the building, the fair market rental value of the Apartment is $60,000.00 per month.
14. As the Milstein Affidavit indicates, all the other unit owners in the
Condominium are forced to shoulder the economic burden of the shortfall caused by the
Unit Owner's failure to pay what is owed. The damages being suffered by the Board and
all other unit owners can be mitigated if a Receiver is appointed who compel the Unit
Owner to pay a reasonable rental. The Receiver should also be empowered to evict the
Unit Owner and any other occupants for non-payment of the reasonable rental, lease the
Apartment with court approval, and collect rental income to be applied to current charges
as they accrue and to the arrears due the Condominium.
15. Real Property Law §339-aa provides that in any action to foreclose
a lien for unpaid common charges, the unit owner shall be required to pay a reasonable
rental for the unit for any period prior to sale and plaintiff in such foreclosure shall be
entitled to the appointment of a receiver to collect such.
16. Article 6, Section 6.6.3 of the By-Laws (see Exhibit C) provides a
basis for the appointment of a Receiver to collect rent for the use and occupancy of the
Apartment:
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[ ] if the Board shall bring an action to foreclose such
lien, the defaulting Unit Owner shall be required to pay
a reasonable rental for the use and occupancy of its
Unit and the plaintiff in such foreclosure action shall be
entitled to the appointment, without notice, of a receiver
to collect the same. . . . (emphasis added.)
17. Courts routinely assign receivers to collect rent during foreclosure
actions on behalf of a condominium board. See, e.g., Board of Managers of the Heywood
(1st
Condominium v. Wozencraft, 148 A.D.3d 38, 48 N.Y.S.3d 304 Dep't 2017)
(appointment of a receiver to collect rent from unit owner, and eviction of unit owner for
nonpayment, was appropriate under applicable law and provisions of the By-Laws), and
(1st
Fairbanks Capital Corp. v. Nagel, 289 A.D.2d 99, 735 N.Y.S.2d 13 Dep't 2001)
(holding that the appointment of a receiver to collect common charges on behalf of the
condominium was appropriate).
18. As is noted above, Real Property Law §339-aa and the By-Laws
specifically provide for the appointment of a Receiver in any action brought by the Board
to foreclose a lien for unpaid common charges.
19. There is no dispute that the Unit Owner has failed and refused to pay
common charges since July 2022, while enjoying the use and occupancy of the Unit.
20. A review of public records indicate that the Apartment is encumbered
by a consolidated mortgage given to Axos Bank in or about February 2020 in the principal
amount of $15,000,000.00, and the $3,000,000.00 mortgage given to Mara Enterprises
in or about February 2020.
21. The Board and Mara Enterprises would benefit from the appointment
of a Receiver with the power to force the Unit Owner to pay a reasonable rental, or to
evict the Unit Owner and rent out the apartment to someone who will pay rent, rent that
can be applied to the amounts due the Board. The rental income generated could be
-5-
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applied to the sums due to the Condominium, benefitting both the Board, the Unit Owner,
and Mara Enterprises.
22. Moreover, the collection of rent by the receiver would ensure that the
Board does not sustain any further monetary loss in common charges, which the Unit
Owner has simply refused to pay.
DOE" DOE"
DEFENDANTS "JOHN NO. 1 THROUGH "JOHN NO. 15 SHOULD BE
DISMISSED AS PARTY DEFENDANTS IN THIS ACTION AND
THE OMlBUS CLAUSE SHOULD BE DELETED
Doe" Doe"
23. "John No. 1 through "John No. 15 were named as
defendants in this action to represent persons claiming an interest in the Apartment
whose identity was unknown to the Board.
24. Upon the filing of the notice of pendency in connection with the
commencement of this action, the Board requested that a title continuation be run against
the Apartment. This continuation revealed that aside from the parties defendant named
in the caption, no other persons had or claimed to have any recorded interests in, or liens
against, the Unit.
25. RPAPL §1311(1) defines necessary defendants to a foreclosure
action as persons having an estate or interest in possession in the Apartment and
RPAPL §1311(3) further defines necessary defendants as persons having any lien or
encumbrance upon the Unit which is claimed to be subject and subordinate to the Lien.
26. RPAPL §1313 defines permissible defendants to a foreclosure action
as any person who is liable to the Board for payment of the debt secured by the Lien
may be made a defendant in the action. RPAPL §1313 further provides that the state
may be made a party defendant to any action for foreclosure, where it has an interest or
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lien on the property subsequent to the lien sought to be foreclosed in said action, in the
same manner as a private person.
Doe"
27. No "John defendant was ever served in this action and a good
faith evaluation of the title report and other evidence indicates that there are no
necessary party defendants who have not already been named and served in this action.
Consequently," Doe" Doe"
28. John No. 1 through "John No. as non-
15,
necessary defendants in this action, should be dismissed from this action and the
Omnibus Clause should be deleted.
THIS ACTION SHOULD BE REFERRED
TO A REFEREE TO COMPUTE AND
ASCERTAIN THE AMOUNT DUE TO THE BOARD
29. The Unit Owner has been in default under the terms of the By-Laws
having refused to pay all the common charges due since at least July 2022.
30. Therefore, it is imperative that a Referee be appointed to compute
and ascertain the amount due to the Board to protect the security of the Lien for which
this action was brought to foreclose, and to report whether the Apartment can be sold in
one parcel.
WHEREFORE, for all the reasons set forth above and in the Milstein
Affidavit and the Gillen Affidavit, it is respectfully requested that the plaintiff Board of
Managers of the 610 Park Avenue Condominium's motion be granted in its entirety, and
that the Board be granted such other and further relief as to this Court may seem just and
proper.
Dated: New York, New York
April 25, 2023 ROBERT T. HOLLAND
(Rule 130-1.1-a)
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CERTIFICATE OF COMPLIANCE
The total number of words in the foregoing affirmation, inclusive of headings and
footnotes, and exclusive of the caption and signature block is 1,840 and is in compliance
with the word count limits set forth in the Uniform Civil Rules for the Supreme Court and
the County Court § 202.8-b, effective February 1, 2021. In preparing this certification, I
have relied upon the word count of the word-processing system used to prepare this
affirmation.
Dated: New York, New York BELKIN BURDEN GOLDMAN, LLP
April 25, 2023 Attorneys for Plaintiff
One Grand Central Place
42nd 16th
16 East street, Floor
New York, New York 10165
(212) 867-4 66
By:
Robert T. Holland, Esq.
(Rule 130-1.1-a)
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RHOLLAND/11879.0009/4167003.1
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Preview
FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/25/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Mot. Seq. #001 BOARD OF MANAGERS OF THE 610 PARK AVENUE CONDOMINIUM, Index No. 151261/23 Plaintiff, -against- AFFIRMATION IN SUPPORT 16EF APARTMENT, LLC, MARA ENTERPRISES, OF MOTION DOE" DOE" AND "JOHN No. 1 through "JOHN 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 mortgaged 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. ROBERT T. HOLLAND, 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 of Belkin Burden Goldman, LLP, attorneys for plaintiff Board of Managers of the 610 Park Avenue Condominium (the "Board").1 I am fully familiar with the facts and circumstances hereinafter set forth. 2. This affirmation is submitted in support of the Board's motion for an order: 1 All defined terms in this affirmation have the same as are given to them in the remaining meaning affidavit of Anthony Milstein sworn to on April 25, 2023 and submitted in support of the Board's motion (the "Milstein Affidavit"). 1 of 8 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/25/2023 (a) Pursuant to CPLR R 3215(d), granting the Board a default judgment against defendants 16EF Apartment, LLC and Mara Enterprises by reason of said defendants' failure to answer or otherwise move with respect to the complaint in this action; (b) Pursuant to Real Property Law §339-aa and Article 6, Section 6.3.3 of the Condominium's By-Laws, appointing a Receiver to demand and collect the reasonable rent for the condominium unit involved in this action; (c) Pursuant to CPLR R 3025, directing that defendants Doe" Doe" "John No. 1 through "John No. 15 be dismissed asparty 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 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 liened premises should be sold in one parcel; and (e) For such other and further relief as to this Court may seem just and proper. 3. As the Board's verified complaint in this action indicates, this action was brought to foreclose a lien in the original amount of $104,819.93 filed against the Apartment and for related relief. 4. As the Milstein Affidavit details, this action was commenced as a result of the failure of the Unit Owner to make payments of common charges and additional common charges due pursuant to the By-Laws. 5. This action was commenced by the e-filing of a summons and 2023.2 verified complaint and a notice of pendency on February 8, 2A and verified complaint is annexed as Exhibit E and a copy of the notice copy of the summons of pendency is annexed as Exhibit F. -2- 2 of 8 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/25/2023 6. On February 17, 2023, the Unit Owner was served with copies of the summons and verified complaint and notice of electronic filing by service on the New York Secretary of State. 7. On February 17, 2023, defendant Mara Enterprises was served with copies of the summons and verified complaint and notice of electronic filing by service on the New York Secretary of State. Thereafter, by letter dated March 3, 2023, this defendant was sent another copy of the summons and complaint with notice of electronic filing in accordance with New York Business Corporation Law §307(b)(2) 8. The affidavits of service on these defendants were e-filed with the Court.3 Clerk of this 9. On April 20, 2023, the Unit Owner was served with the CPLR §3215 Notice.4 10. Defendants 16EF Apartment, LLC and Mara Enterprises have not answered or otherwise moved with respect to the verified complaint and the time for said defendants to do so has expired and there have been no extensions of time within which to appear, answer or otherwise move with respect to the verified complaint granted on consent or by any other court as to any defendant except as set forth above. 11. The defendants 16EF Apartment, LLC and Mara Enterprises are now in default and Plaintiff requests this Court issue a judgment declaring that these defendants and all persons claiming under or through them, and any of them claiming upon liens docketed, as well as all persons making claims subsequent to the filing of the notice of pendency of this action, be barred and foreclosed of and from all estate, right, title and interest, claim, lien, equity of redemption of, in and to the Apartment. 3 Copies of the affidavits of service and of the March letter 3, 2023 are annexed as Exhibit G. 4 A of the CPLR §3215 Notice with proof of service is annexed as Exhibit H. copy -3- 3 of 8 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/25/2023 THE BOARD IS ENTITLED TO THE APPOINTMENT OF A RECEIVER 12. As the Ledger for the Apartment (see Exhibit D) indicates, the monthly common charges for the Apartment are currently $11,764.80. In addition to monthly common charges, the Unit Owner is also billed for electric charges, which are submetered; recent monthly electric charges have ranged from $613.71 to 1,271.34. The Unit Owner is also currently billed $162.00 per month as a license fee for common area hallway space incorporated into the Apartment. 13. As set forth in the Gillen Affidavit, based on comparable rentals in the building, the fair market rental value of the Apartment is $60,000.00 per month. 14. As the Milstein Affidavit indicates, all the other unit owners in the Condominium are forced to shoulder the economic burden of the shortfall caused by the Unit Owner's failure to pay what is owed. The damages being suffered by the Board and all other unit owners can be mitigated if a Receiver is appointed who compel the Unit Owner to pay a reasonable rental. The Receiver should also be empowered to evict the Unit Owner and any other occupants for non-payment of the reasonable rental, lease the Apartment with court approval, and collect rental income to be applied to current charges as they accrue and to the arrears due the Condominium. 15. Real Property Law §339-aa provides that in any action to foreclose a lien for unpaid common charges, the unit owner shall be required to pay a reasonable rental for the unit for any period prior to sale and plaintiff in such foreclosure shall be entitled to the appointment of a receiver to collect such. 16. Article 6, Section 6.6.3 of the By-Laws (see Exhibit C) provides a basis for the appointment of a Receiver to collect rent for the use and occupancy of the Apartment: -4- 4 of 8 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/25/2023 [ ] if the Board shall bring an action to foreclose such lien, the defaulting Unit Owner shall be required to pay a reasonable rental for the use and occupancy of its Unit and the plaintiff in such foreclosure action shall be entitled to the appointment, without notice, of a receiver to collect the same. . . . (emphasis added.) 17. Courts routinely assign receivers to collect rent during foreclosure actions on behalf of a condominium board. See, e.g., Board of Managers of the Heywood (1st Condominium v. Wozencraft, 148 A.D.3d 38, 48 N.Y.S.3d 304 Dep't 2017) (appointment of a receiver to collect rent from unit owner, and eviction of unit owner for nonpayment, was appropriate under applicable law and provisions of the By-Laws), and (1st Fairbanks Capital Corp. v. Nagel, 289 A.D.2d 99, 735 N.Y.S.2d 13 Dep't 2001) (holding that the appointment of a receiver to collect common charges on behalf of the condominium was appropriate). 18. As is noted above, Real Property Law §339-aa and the By-Laws specifically provide for the appointment of a Receiver in any action brought by the Board to foreclose a lien for unpaid common charges. 19. There is no dispute that the Unit Owner has failed and refused to pay common charges since July 2022, while enjoying the use and occupancy of the Unit. 20. A review of public records indicate that the Apartment is encumbered by a consolidated mortgage given to Axos Bank in or about February 2020 in the principal amount of $15,000,000.00, and the $3,000,000.00 mortgage given to Mara Enterprises in or about February 2020. 21. The Board and Mara Enterprises would benefit from the appointment of a Receiver with the power to force the Unit Owner to pay a reasonable rental, or to evict the Unit Owner and rent out the apartment to someone who will pay rent, rent that can be applied to the amounts due the Board. The rental income generated could be -5- 5 of 8 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/25/2023 applied to the sums due to the Condominium, benefitting both the Board, the Unit Owner, and Mara Enterprises. 22. Moreover, the collection of rent by the receiver would ensure that the Board does not sustain any further monetary loss in common charges, which the Unit Owner has simply refused to pay. DOE" DOE" DEFENDANTS "JOHN NO. 1 THROUGH "JOHN NO. 15 SHOULD BE DISMISSED AS PARTY DEFENDANTS IN THIS ACTION AND THE OMlBUS CLAUSE SHOULD BE DELETED Doe" Doe" 23. "John No. 1 through "John No. 15 were named as defendants in this action to represent persons claiming an interest in the Apartment whose identity was unknown to the Board. 24. Upon the filing of the notice of pendency in connection with the commencement of this action, the Board requested that a title continuation be run against the Apartment. This continuation revealed that aside from the parties defendant named in the caption, no other persons had or claimed to have any recorded interests in, or liens against, the Unit. 25. RPAPL §1311(1) defines necessary defendants to a foreclosure action as persons having an estate or interest in possession in the Apartment and RPAPL §1311(3) further defines necessary defendants as persons having any lien or encumbrance upon the Unit which is claimed to be subject and subordinate to the Lien. 26. RPAPL §1313 defines permissible defendants to a foreclosure action as any person who is liable to the Board for payment of the debt secured by the Lien may be made a defendant in the action. RPAPL §1313 further provides that the state may be made a party defendant to any action for foreclosure, where it has an interest or -6- 6 of 8 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/25/2023 lien on the property subsequent to the lien sought to be foreclosed in said action, in the same manner as a private person. Doe" 27. No "John defendant was ever served in this action and a good faith evaluation of the title report and other evidence indicates that there are no necessary party defendants who have not already been named and served in this action. Consequently," Doe" Doe" 28. John No. 1 through "John No. as non- 15, necessary defendants in this action, should be dismissed from this action and the Omnibus Clause should be deleted. THIS ACTION SHOULD BE REFERRED TO A REFEREE TO COMPUTE AND ASCERTAIN THE AMOUNT DUE TO THE BOARD 29. The Unit Owner has been in default under the terms of the By-Laws having refused to pay all the common charges due since at least July 2022. 30. Therefore, it is imperative that a Referee be appointed to compute and ascertain the amount due to the Board to protect the security of the Lien for which this action was brought to foreclose, and to report whether the Apartment can be sold in one parcel. WHEREFORE, for all the reasons set forth above and in the Milstein Affidavit and the Gillen Affidavit, it is respectfully requested that the plaintiff Board of Managers of the 610 Park Avenue Condominium's motion be granted in its entirety, and that the Board be granted such other and further relief as to this Court may seem just and proper. Dated: New York, New York April 25, 2023 ROBERT T. HOLLAND (Rule 130-1.1-a) -7- 7 of 8 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 04/25/2023 CERTIFICATE OF COMPLIANCE The total number of words in the foregoing affirmation, inclusive of headings and footnotes, and exclusive of the caption and signature block is 1,840 and is in compliance with the word count limits set forth in the Uniform Civil Rules for the Supreme Court and the County Court § 202.8-b, effective February 1, 2021. In preparing this certification, I have relied upon the word count of the word-processing system used to prepare this affirmation. Dated: New York, New York BELKIN BURDEN GOLDMAN, LLP April 25, 2023 Attorneys for Plaintiff One Grand Central Place 42nd 16th 16 East street, Floor New York, New York 10165 (212) 867-4 66 By: Robert T. Holland, Esq. (Rule 130-1.1-a) -8- RHOLLAND/11879.0009/4167003.1 8 of 8