Preview
FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023
NYSCEF DOC. NO. 9 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-
AFFIDAVIT IN SUPPORT OF
16EF APARTMENT, LLC, MARA ENTERPRISES, MOTION FOR SUMMARY
DOE" DOE"
AND "JOHN No. 1 through "JOHN No. JUDGMENT
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.
STATE OF NEW YORK)
ss.:
COUNTY OF NEW YORK)
ANTHONY MILSTEIN, being duly sworn, hereby deposes and says:
1. I am the Assistant Secretary of the Board of Managers (the "Board")
of the 610 Park Avenue Condominium (the "Condominium"). I am fully familiar with the
facts and circumstances stated herein.
2. This affidavit is submitted in support of the Board's motion for an
order:
(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,
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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 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 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. The Board is a condominium board of managers acting on behalf of
all unit owners in the Condominium, which is located at 610 Park Avenue, New York, New
York.
4. Defendant 16EF Apartment, LLC (the "Unit Owner") has been, at all
times relevant to this action, the record owner of the penthouse unit 16E in the
"Apartment")¹
Condominium (the and, as such, is liable to the Board for payment of
common charges and special assessments assessed against the Apartment.
5. Based upon the Unit Owner's refusal to pay common charges due
and owing for the Apartment, the Board's continuing Lien for Unpaid Common Charges
in the amount of $104,819.93 was recorded against the Apartment with the Office of the
"Lien").2
City Register, New York County under CRFN 2023000011231(the
6. This action was commenced by the Board to foreclose the Lien.
1A of the Unit Owner's deed is annexed as Exhibit A.
copy
2 A of the Lien is annexed as Exhibit B.
copy
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RELEVANTBACKGROUNDFACTS
7. As is noted above, the Unit Owner is the record owner of the
Apartment.
8. The Apartment is currently listed for sale. According to
streeteasy.com, it was put on the market in May 2022 with a listing price of
$28,500,000.00. If further appears that after a price reduction in July 2022, the Apartment
was delisted in early March 2023, and then relisted on March 23, 2023 with a listing price
of $24,850,000.00.
9. The listing for the Apartment on Douglas Elliman's website is
https://www.elliman.com/newyorkcity/sales/detail/527-I-551-17 22348929/610-park-
ave-lenox-hill-new-york-ny-10065. On this listing, the Apartment is described, in part, as
an "exceptional triplex residence [which] offers an expansive 7,700 square feet of interior
space and a stunning private outdoor oasis spanning over 1,400 square feet with open
views of the Upper East Side and Midtown skyline".
10. Upon information and belief, the Unit Owner wants to pay what is
owed to the Condominium out of sale proceeds, when the Apartment is sold. However,
given the price at which the Apartment is listed, interest rates, and the current state of the
local and national economy, if and when the Unit Owner gets an accepted offer to
purchase the Apartment and can close on a conveyance is unknown.
11. Condominium staff inform me that since the Apartment was relisted
in March 2023, the new brokers have come to the Apartment several times to take
pictures and videos, but that they have not returned to the building with prospective
purchasers to view the Apartment, and no open houses have been conducted.
12. The Condominium simply cannot wait until such time as the Unit
Owner is able to close on the sale of the Apartment to get paid what it is owed. The Unit
Owner's non-payment is having a material adverse impact on the Condominium's cash
flow, and imperiling the Condominium's operations.
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13. Pursuant to Article 1, Section 1.2 of the Condominium's By-Laws (the
"By-Laws"), all unit owners are required comply with the provisions of the By-Laws and
the Condominium's Rules and Regulations.
14. Pursuant to Article 6, Section 6.2.1 of the By-Laws, all unit owners
are required to pay common charges and special assessments as assessed by the Board,
with charges payable in installments on the first day of each month in advance.
15. Pursuant to Article 6, Section 6.3 of the By-Laws, the Board is
empowered to take steps to recover unpaid charges due from unit owners, and to file and
foreclose liens for unpaid common charges.
By-Laws,3
16. Pursuant to Article 6, Section 6.3.3 of the delinquent unit
owners are mandated to pay a late fee of $.04 and interest at the rate of 1.5% for monthly
payments unmade or paid late.
17. This same provision of the By-Laws entitles the Board to recover its
attorneys'
reasonable fees, costs and disbursements incurred in any action or proceeding
commenced to recover sums owed by unit owners to the Condominium, and it also
requires unit owners to pay a reasonable rental for their unit during any lien foreclosure
action, and entitles the Board to have a Receiver appointed to collect the reasonable
rental from the unit owner in a lien foreclosure action.
THE BOARD IS ENTITLED TO THE APPOINTMENT OF A RECEIVER
18. The Board, in this action, seeks foreclosure of the Lien, and an award
attorneys'
of the reasonable fees, costs and disbursements incurred in the prosecution of
this action.
19. As is noted above, Article 6, Section 6.3.3 of the By-Laws obligates
the Unit Owner to pay a reasonable rental for the Apartment during the pendency of this
3 Copies of all these portions of the By-Laws are annexed as Exhibit C.
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lien foreclosure action, and establishes that the Board is entitled to the appointment of a
Receiver to compel the Unit Owner to pay the reasonable rental.
20. The affirmation of Robert T. Holland, Esq. dated April 25, 2023 and
submitted in support of the Board's motion (the "Holland Affirmation") indicates that
controlling appellate case law supports the appointment of a Receiver in this action, and
that such a Receiver should be entitled to evict or eject the Unit Owner and anyone in
occupancy if the reasonable rental is not paid.
21. The Receiver should also be empowered to lease the Apartment to
a tenant who will pay a fair market rent, which rental income could be applied to current
monthly charges as they accrue, with the additional sums to be applied to arrears owed
to the Condominium.
22. The affidavit of Roger Gillen sworn to on April 24, 2023 and
submitted in support of the Board's motion (the "Gillen Affidavit") indicates that Mr. Gillen,
a licensed associate real estate broker, avers that in his opinion, the fair market rental
value of the Apartment is $60,000.00 per month.
23. As the Holland Affirmation indicates, the Apartment is currently
encumbered with two (2) mortgage with a combined principal amount of $13,000,000.00.
The Board has no idea if the Unit Owner is paying either or both of those mortgages, but
if the Unit Owner is not, the Lien is at risk of being foreclosed if the holder of the first
mortgage on the Apartment forecloses its mortgage.
24. Unit Owner is unwilling to pay the monthly common charges and
additional common charges owed to the Condominium, and presumably is unwilling to
pay a reasonable rental for the Apartment during the pendency of this action.
25. Under applicable law and pursuant to the By-Laws, the Board is
entitled to the appointment of a Receiver to enforce the Unit Owner's obligations.
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THE BOARD IS ENTITLED TO DEFAULT JUDGMENTS IN
ITS FAVOR AGAINST THE DEFENDANTS AS A MATTER OF LAW
26. The Board, in this action, seeks foreclosure of the Lien, and an award
attorneys'
of the reasonable fees, costs and disbursements incurred in the prosecution of
this action.
27. The Unit Owner clearly has defaulted in making the required
payments due under the terms of the By-Laws.
28. The Board has never waived the requirement of the Unit Owner's
strict compliance with the terms of the By-Laws.
29. As is noted above, Article 6, Section 6.3 of the By-Laws provides that
the Board has the right and obligation to file a lien for unpaid common charges and to
institute any and all other actions or proceedings deemed necessary or desirable by the
Board to recover unpaid common charges.
30. As the Arrears History annexed as Exhibit D indicates, as of the date
of this affidavit, the Unit Owner owes $164,346.63 for common charges and additional
common charges.
31. The Board's attorneys advise me that the Unit Owner has failed to
appear, answer, or otherwise move with respect to the complaint in this action, and that
Mara Enterprises, a subordinate mortgagee, has also defaulted.
defendants'
32. The Board's attorneys advise me that these failure to
appear or answer constitutes an admission by them of the material allegations in the
verified complaint in this action.
33. Given that the there is no dispute that the Unit Owner has failed to
pay what it owes on the Apartment and it has no legitimate basis for not doing so, the
only remaining issue in this action is the amount of the judgment to which the Board is
entitled which, the Board's attorneys advise me, should be determined by a Referee.
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CÇNCLUSlÇN
34. There is no dispute that the Unit Owner breached its obligation under
the By-Laws by failing to pay common charges and additional common charges due and
owing on the Apartment.
35. In order to save the parties further unnecessary litigation costs and
in the interest of judicial economy, this Court should grant the Board's motion forthwith.
WHEREFORE, it is respectfully requested that 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 seems just and proper
under the circumstances.
ANTHONY MILSTEIN
Sworn to before me this
1 day of Apri 23
Notary Public
JOHN G CARLOVICH
NOTARY PUBLIC-STATE OF NEW YORK
No. 01CA6412103
Qualifiedin New York County
Expires 12-14-2024
My Commission
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CERTIFICATE OF COMPLIANCE
The total number of words in the foregoing affidavit, inclusive of headings and
footnotes, and exclusive of the caption and signature block is 1,685 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
affidavit.
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) 867-4466
By:
Robert T. Holland, Esq.
(Rule 130-1.1-a)
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RHOLLAND/11879.0009/4167214.1
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Preview
FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 9 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- AFFIDAVIT IN SUPPORT OF 16EF APARTMENT, LLC, MARA ENTERPRISES, MOTION FOR SUMMARY DOE" DOE" AND "JOHN No. 1 through "JOHN No. JUDGMENT 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. STATE OF NEW YORK) ss.: COUNTY OF NEW YORK) ANTHONY MILSTEIN, being duly sworn, hereby deposes and says: 1. I am the Assistant Secretary of the Board of Managers (the "Board") of the 610 Park Avenue Condominium (the "Condominium"). I am fully familiar with the facts and circumstances stated herein. 2. This affidavit is submitted in support of the Board's motion for an order: (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, 1 of 8 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/25/2023 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 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 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. The Board is a condominium board of managers acting on behalf of all unit owners in the Condominium, which is located at 610 Park Avenue, New York, New York. 4. Defendant 16EF Apartment, LLC (the "Unit Owner") has been, at all times relevant to this action, the record owner of the penthouse unit 16E in the "Apartment")¹ Condominium (the and, as such, is liable to the Board for payment of common charges and special assessments assessed against the Apartment. 5. Based upon the Unit Owner's refusal to pay common charges due and owing for the Apartment, the Board's continuing Lien for Unpaid Common Charges in the amount of $104,819.93 was recorded against the Apartment with the Office of the "Lien").2 City Register, New York County under CRFN 2023000011231(the 6. This action was commenced by the Board to foreclose the Lien. 1A of the Unit Owner's deed is annexed as Exhibit A. copy 2 A of the Lien is annexed as Exhibit B. copy -2- 2 of 8 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/25/2023 RELEVANTBACKGROUNDFACTS 7. As is noted above, the Unit Owner is the record owner of the Apartment. 8. The Apartment is currently listed for sale. According to streeteasy.com, it was put on the market in May 2022 with a listing price of $28,500,000.00. If further appears that after a price reduction in July 2022, the Apartment was delisted in early March 2023, and then relisted on March 23, 2023 with a listing price of $24,850,000.00. 9. The listing for the Apartment on Douglas Elliman's website is https://www.elliman.com/newyorkcity/sales/detail/527-I-551-17 22348929/610-park- ave-lenox-hill-new-york-ny-10065. On this listing, the Apartment is described, in part, as an "exceptional triplex residence [which] offers an expansive 7,700 square feet of interior space and a stunning private outdoor oasis spanning over 1,400 square feet with open views of the Upper East Side and Midtown skyline". 10. Upon information and belief, the Unit Owner wants to pay what is owed to the Condominium out of sale proceeds, when the Apartment is sold. However, given the price at which the Apartment is listed, interest rates, and the current state of the local and national economy, if and when the Unit Owner gets an accepted offer to purchase the Apartment and can close on a conveyance is unknown. 11. Condominium staff inform me that since the Apartment was relisted in March 2023, the new brokers have come to the Apartment several times to take pictures and videos, but that they have not returned to the building with prospective purchasers to view the Apartment, and no open houses have been conducted. 12. The Condominium simply cannot wait until such time as the Unit Owner is able to close on the sale of the Apartment to get paid what it is owed. The Unit Owner's non-payment is having a material adverse impact on the Condominium's cash flow, and imperiling the Condominium's operations. -3- 3 of 8 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/25/2023 13. Pursuant to Article 1, Section 1.2 of the Condominium's By-Laws (the "By-Laws"), all unit owners are required comply with the provisions of the By-Laws and the Condominium's Rules and Regulations. 14. Pursuant to Article 6, Section 6.2.1 of the By-Laws, all unit owners are required to pay common charges and special assessments as assessed by the Board, with charges payable in installments on the first day of each month in advance. 15. Pursuant to Article 6, Section 6.3 of the By-Laws, the Board is empowered to take steps to recover unpaid charges due from unit owners, and to file and foreclose liens for unpaid common charges. By-Laws,3 16. Pursuant to Article 6, Section 6.3.3 of the delinquent unit owners are mandated to pay a late fee of $.04 and interest at the rate of 1.5% for monthly payments unmade or paid late. 17. This same provision of the By-Laws entitles the Board to recover its attorneys' reasonable fees, costs and disbursements incurred in any action or proceeding commenced to recover sums owed by unit owners to the Condominium, and it also requires unit owners to pay a reasonable rental for their unit during any lien foreclosure action, and entitles the Board to have a Receiver appointed to collect the reasonable rental from the unit owner in a lien foreclosure action. THE BOARD IS ENTITLED TO THE APPOINTMENT OF A RECEIVER 18. The Board, in this action, seeks foreclosure of the Lien, and an award attorneys' of the reasonable fees, costs and disbursements incurred in the prosecution of this action. 19. As is noted above, Article 6, Section 6.3.3 of the By-Laws obligates the Unit Owner to pay a reasonable rental for the Apartment during the pendency of this 3 Copies of all these portions of the By-Laws are annexed as Exhibit C. -4- 4 of 8 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/25/2023 lien foreclosure action, and establishes that the Board is entitled to the appointment of a Receiver to compel the Unit Owner to pay the reasonable rental. 20. The affirmation of Robert T. Holland, Esq. dated April 25, 2023 and submitted in support of the Board's motion (the "Holland Affirmation") indicates that controlling appellate case law supports the appointment of a Receiver in this action, and that such a Receiver should be entitled to evict or eject the Unit Owner and anyone in occupancy if the reasonable rental is not paid. 21. The Receiver should also be empowered to lease the Apartment to a tenant who will pay a fair market rent, which rental income could be applied to current monthly charges as they accrue, with the additional sums to be applied to arrears owed to the Condominium. 22. The affidavit of Roger Gillen sworn to on April 24, 2023 and submitted in support of the Board's motion (the "Gillen Affidavit") indicates that Mr. Gillen, a licensed associate real estate broker, avers that in his opinion, the fair market rental value of the Apartment is $60,000.00 per month. 23. As the Holland Affirmation indicates, the Apartment is currently encumbered with two (2) mortgage with a combined principal amount of $13,000,000.00. The Board has no idea if the Unit Owner is paying either or both of those mortgages, but if the Unit Owner is not, the Lien is at risk of being foreclosed if the holder of the first mortgage on the Apartment forecloses its mortgage. 24. Unit Owner is unwilling to pay the monthly common charges and additional common charges owed to the Condominium, and presumably is unwilling to pay a reasonable rental for the Apartment during the pendency of this action. 25. Under applicable law and pursuant to the By-Laws, the Board is entitled to the appointment of a Receiver to enforce the Unit Owner's obligations. -5- 5 of 8 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/25/2023 THE BOARD IS ENTITLED TO DEFAULT JUDGMENTS IN ITS FAVOR AGAINST THE DEFENDANTS AS A MATTER OF LAW 26. The Board, in this action, seeks foreclosure of the Lien, and an award attorneys' of the reasonable fees, costs and disbursements incurred in the prosecution of this action. 27. The Unit Owner clearly has defaulted in making the required payments due under the terms of the By-Laws. 28. The Board has never waived the requirement of the Unit Owner's strict compliance with the terms of the By-Laws. 29. As is noted above, Article 6, Section 6.3 of the By-Laws provides that the Board has the right and obligation to file a lien for unpaid common charges and to institute any and all other actions or proceedings deemed necessary or desirable by the Board to recover unpaid common charges. 30. As the Arrears History annexed as Exhibit D indicates, as of the date of this affidavit, the Unit Owner owes $164,346.63 for common charges and additional common charges. 31. The Board's attorneys advise me that the Unit Owner has failed to appear, answer, or otherwise move with respect to the complaint in this action, and that Mara Enterprises, a subordinate mortgagee, has also defaulted. defendants' 32. The Board's attorneys advise me that these failure to appear or answer constitutes an admission by them of the material allegations in the verified complaint in this action. 33. Given that the there is no dispute that the Unit Owner has failed to pay what it owes on the Apartment and it has no legitimate basis for not doing so, the only remaining issue in this action is the amount of the judgment to which the Board is entitled which, the Board's attorneys advise me, should be determined by a Referee. -6- 6 of 8 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/25/2023 CÇNCLUSlÇN 34. There is no dispute that the Unit Owner breached its obligation under the By-Laws by failing to pay common charges and additional common charges due and owing on the Apartment. 35. In order to save the parties further unnecessary litigation costs and in the interest of judicial economy, this Court should grant the Board's motion forthwith. WHEREFORE, it is respectfully requested that 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 seems just and proper under the circumstances. ANTHONY MILSTEIN Sworn to before me this 1 day of Apri 23 Notary Public JOHN G CARLOVICH NOTARY PUBLIC-STATE OF NEW YORK No. 01CA6412103 Qualifiedin New York County Expires 12-14-2024 My Commission -7- 7 of 8 FILED: NEW YORK COUNTY CLERK 04/25/2023 03:25 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/25/2023 CERTIFICATE OF COMPLIANCE The total number of words in the foregoing affidavit, inclusive of headings and footnotes, and exclusive of the caption and signature block is 1,685 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 affidavit. 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) 867-4466 By: Robert T. Holland, Esq. (Rule 130-1.1-a) -8- RHOLLAND/11879.0009/4167214.1 8 of 8