Preview
FILED: NEW YORK COUNTY CLERK 06/27/2023 01:22 PM INDEX NO. 151261/2023
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/27/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Mot. Seq. #003
BOARD OF MANAGERS OF THE 610 PARK
AVENUE CONDOMINIUM,
Index No. 151261/23
Plaintiff,
-against-
AFFIRMATION IN OPPOSITION TO
16EF APARTMENT, LLC, MARA ENTERPRISES, MOTION TO INTERVENE
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"). I am fully familiar with the facts and circumstances hereinafter set forth.
2. This affirmation is submitted in opposition to the June 7, 2023 motion
of non-party Banc of California, N.A. ("Movant") which seeks leave to intervene in this
action (the "Motion").
3. The Motion is devoid of merit as a matter of law and a matter of fact,
and it should be denied .
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RELEVANTBACKGROUNDFACTS
4. As the Board's verified complaint in this action indicates, and
documentary evidence in the court record establishes, 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 Condominium (the "Apartment").
5. As the Board's verified complaint also indicates, this action was
commenced to foreclose the Board's continuing Lien for Unpaid Common Charges in the
amount of $104,819.93 recorded against the Apartment with the Office of the City
Register, New York County under CRFN 2023000011231(the "Lien").
6. This action was commenced by the e-filing of a summons and
2023.1
verified complaint and a notice of pendency on February 8,
7. By decision and order on motion entered on May 18, 2023 (NYSCEF
doc. no. 25), this Court granted the Board's motion for default judgments and related
relief against the Unit Owner and defendant Mara Enterprises and appointed Christy M.
Demelfi, Esq. as Referee to compute the amount due to the Board on the Lien.
8. By letter dated June 13, 2023, I sent a proposed Oath and Report of
consideration.2
Computation to Ms. Demelfi for her review and As of the date hereof, I
have seen no objections to the proposed Oath and Report of Computation from either of
the defendants, and received no response from Ms. Demelfi.
1A summons and verified complaint is annexed as Exhibit A and
copy of the a copy of the notice
of pendency is annexed as Exhibit B.
2A of my June to Ms.
copy 13, 2023 letter Demelfi is annexed as Exhibit C.
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9. On or about June 6, 2023, this Court declined to sign the Movanes
proposed order to show cause seeking the same relief sought in the Motion (NYSCEF
doc. no. 36), and thus the Motion was e-filed.
THE MOTION
10. The Motion is supported by the affidavit of Gregory Ellis sworn to on
June 1, 2023 (the "Ellis Affidavit") and the affidavit of Zoila Price sworn to on May 31,
2023 (the "Price Affidavit").
11. As the Ellis Affidavit and the Price Affidavit indicate, the basis for
Movanes alleged entitlement, or need, to intervene in this action is the entry of a
preliminary injunction in a lawsuit pending in the Superior Court of the State of California,
"Injunction").3
County of Orange (the
12. As the Ellis Affidavit indicates, the Injunction is against Michael
Strauss ("Strauss"), as a principal or managing member of the Unit Owner, and enjoins
Strauss from "participating in effecting a sale, either in his individual capacity or as a
managing member of [the Unit Owner] of the [Apartment]". (See Exhibit C to the Motion.)
13. In and by its proposed intervenor complaint (see Exhibit D to the
Motion), Movant seeks a declaratory judgment that the Board is not entitled to the relief
sought in this action, /.e., foreclosure of the LieI and sale of the Apartment at foreclosure
sale, "for the duration of the [Injunction]".
3A of the Injunction is annexed to the Motion as Exhibit C.
copy
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ARGUMENT
14. Contrary to arguments made and case law cited in the Movanes
memorandum of law submitted in support of the Motion ("Movanes Memo"), neither CPLR
§1012 or CPLR §1013 provide any basis to permit Movant to intervene in this action.
15. The Injunction, and apparently the pending litigation against Strauss
and other in California, involve claims against Strauss unrelated to the Apartment, the
Unit Owner's obligation to pay common charges and other sums due to the Board, or the
Lien.
16. The claim that, as Movanes Memo indicates at page 2, that "[Movant)
will be significantly and adversely affected by a foreclosure judgment [in this action] that
Apartment]"
[results in the foreclosure sale of the does not provide Movant a right of
intervention as of right under CPLR §1012(a)(3).
17. Even if Movant, in the California litigation, had on May 1, 2023
received a final judgment against Strauss, or against Strauss and the Unit Owner instead
of the Injunction, that hypothetical judgment would not give Movant any basis for
intervention simply because its hypothetical interest in the Apartment would be adversely
impacted by a judgment to be entered in this action.
18. Pursuant to Real Property Law §§339-z, the Lien has priority over
any lien or encumbrance on the Apartment that Movant may now have, or may obtain in
the future.
19. Moreover, because any lien or encumbrance on the Apartment that
Movant may now have, or may obtain in the future will have arisen after the filing of the
notice of pendency e-filed in this action on February 8, 2023 (see Exhibit B), Movant
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would be bound by any judgment to be entered in this action, as if Movant had been
named and served as a defendant in this action.
20. Movant, were it a judgment creditor of the Unit Owner, as opposed
to a judgment creditor of Strauss, would have a subordinate interest in or claim against
the Apartment, and no meritorious defense to the Board's foreclosure cause of action.
21. Nor is there anything in the papers submitted in support of the Motion
that indicates any legal basis why Movant should be permitted to intervene pursuant to
CPLR §1013.
22. While Movant's Memo claims that "questions of law and fact common
to those [at issue in this action and in the California litigation], this claim is obviously has
no merit.
Strauss'
23. At issue in the California litigation, apparently, are issues of
alleged obligations owed to Movant under loan documents unrelated to and irrelevant to
the Apartment or the Unit Owner.
24. Conversely, at issue in this action is the Unit Owner's failure to pay
common charges owed to the Board, and the Board's rights and remedies under the
governing Condominium documents.
25. Movant seeks to expand the import of the Injunction, which may bind
Strauss, to enjoin the Board's enforcement of its contractual rights, without providing any
argument or evidence, much less compelling evidence, that Strauss is personally liable
for the Unit Owner's debts owed to the Board.
26. New York Limited Liability Law §609 indicates that a member of a
limited liability company is not liable for the debts and/or liabilities of the entity arising in
tort, contract, or otherwise, solely due to being a member or participating in the conduct
of the business of the entity.
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27. Clearly, the Injunction restrains Strauss from participating in a sale
of the Apartment. It does not, however, restrain the Board from prosecuting this lien
foreclosure action through entry of a judgment of foreclosure and sale and having the
Apartment sold at foreclosure sale by a Referee appointed to do so.
28. Finally, as is more fully detailed in the Board's memorandum of law
dated June 27, 2023 and submitted in opposition to the Motion (the "Board's Memo"), this
Court is not required to give full faith and credit to the Injunction, because preliminary
injunctions are not final judgments, and the Full Faith and Credit Clause applies to final
judgments.
29. This action has already proceeded to entry of default judgments
against the necessary parties to this action, and a computation of the amount due to the
Board on the Lien is underway.
30. While Movant blithely asserts that allowing it to intervene in this
action will not prejudice the Board, any delay in this action has the potential to prejudice
the Board.
31. According to public records available on ACRIS, the Apartment is
encumbered by a first mortgage with an original principal balance of $15,000,000.00
when the loan was documented on February 14, 2022. The copy of the consolidated note
recorded with the first mortgage indicate that $83,995.69 is the current monthly mortgage
payments due from the Unit Owner to the lender.
32. Needless to say, if the Unit Owner is not paying its mortgage on the
Apartment, any equity in the Apartment is being stripped away with each passing day, to
the prejudice of the Board and the subordinate mortgagee.
33. While Movant, a non-necessary party, suggests that intervention will
not delay the prosecution of this action, and claims that Movant "does not intend to pursue
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discovery [in this action] at the present moment", intervention serves no useful purpose
and can do nothing but delay the prosecution of this action. This is obvious whether
Movant were permitted to intervene as a plaintiff or a defendant in this action.
34. Movanes proposed intervenor complaint (see Exhibit D to the
Motion) asserts just one (1) cause of action, for a declaratory judgment that the Board
should be enjoined from completing this foreclosure action for the duration of the
Injunction.
35. Again, Movant would seek to bind the Board, not even a party to the
California litigation, to the Injunction, which was issued only against Strauss.
36. Movant has the California litigation to pursue its claims against
Strauss, and has no cognizable claim against the Apartment or basis to intervene in this
action. Nor does Movant have any defense to this action, were it a party.
37. When judgment of foreclosure and sale is entered in this action and
the Apartment is sold at foreclosure sale, the Apartment will be sold subject to the first
mortgage.
38. If surplus monies arise out of such foreclosure sale, Movant may
have a claim to all or a portion of the surplus monies. That that is a remedy separate and
distinct from intervention as a party to this action.
39. The Motion should be denied.
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WHEREFORE, for all the reasons set forth above and in the Board's Memo,
it is respectfully requested that the movant Banc of California, N.A.'s motion be denied 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
June 27, 2023 ROBERT T. HOLLAND
(Rule 130-1.1-a)
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 1,817 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
June 27, 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/11879.0009/4219620.1
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Preview
FILED: NEW YORK COUNTY CLERK 06/27/2023 01:22 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/27/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Mot. Seq. #003 BOARD OF MANAGERS OF THE 610 PARK AVENUE CONDOMINIUM, Index No. 151261/23 Plaintiff, -against- AFFIRMATION IN OPPOSITION TO 16EF APARTMENT, LLC, MARA ENTERPRISES, MOTION TO INTERVENE 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"). I am fully familiar with the facts and circumstances hereinafter set forth. 2. This affirmation is submitted in opposition to the June 7, 2023 motion of non-party Banc of California, N.A. ("Movant") which seeks leave to intervene in this action (the "Motion"). 3. The Motion is devoid of merit as a matter of law and a matter of fact, and it should be denied . 1 of 8 FILED: NEW YORK COUNTY CLERK 06/27/2023 01:22 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/27/2023 RELEVANTBACKGROUNDFACTS 4. As the Board's verified complaint in this action indicates, and documentary evidence in the court record establishes, 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 Condominium (the "Apartment"). 5. As the Board's verified complaint also indicates, this action was commenced to foreclose the Board's continuing Lien for Unpaid Common Charges in the amount of $104,819.93 recorded against the Apartment with the Office of the City Register, New York County under CRFN 2023000011231(the "Lien"). 6. This action was commenced by the e-filing of a summons and 2023.1 verified complaint and a notice of pendency on February 8, 7. By decision and order on motion entered on May 18, 2023 (NYSCEF doc. no. 25), this Court granted the Board's motion for default judgments and related relief against the Unit Owner and defendant Mara Enterprises and appointed Christy M. Demelfi, Esq. as Referee to compute the amount due to the Board on the Lien. 8. By letter dated June 13, 2023, I sent a proposed Oath and Report of consideration.2 Computation to Ms. Demelfi for her review and As of the date hereof, I have seen no objections to the proposed Oath and Report of Computation from either of the defendants, and received no response from Ms. Demelfi. 1A summons and verified complaint is annexed as Exhibit A and copy of the a copy of the notice of pendency is annexed as Exhibit B. 2A of my June to Ms. copy 13, 2023 letter Demelfi is annexed as Exhibit C. -2- 2 of 8 FILED: NEW YORK COUNTY CLERK 06/27/2023 01:22 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/27/2023 9. On or about June 6, 2023, this Court declined to sign the Movanes proposed order to show cause seeking the same relief sought in the Motion (NYSCEF doc. no. 36), and thus the Motion was e-filed. THE MOTION 10. The Motion is supported by the affidavit of Gregory Ellis sworn to on June 1, 2023 (the "Ellis Affidavit") and the affidavit of Zoila Price sworn to on May 31, 2023 (the "Price Affidavit"). 11. As the Ellis Affidavit and the Price Affidavit indicate, the basis for Movanes alleged entitlement, or need, to intervene in this action is the entry of a preliminary injunction in a lawsuit pending in the Superior Court of the State of California, "Injunction").3 County of Orange (the 12. As the Ellis Affidavit indicates, the Injunction is against Michael Strauss ("Strauss"), as a principal or managing member of the Unit Owner, and enjoins Strauss from "participating in effecting a sale, either in his individual capacity or as a managing member of [the Unit Owner] of the [Apartment]". (See Exhibit C to the Motion.) 13. In and by its proposed intervenor complaint (see Exhibit D to the Motion), Movant seeks a declaratory judgment that the Board is not entitled to the relief sought in this action, /.e., foreclosure of the LieI and sale of the Apartment at foreclosure sale, "for the duration of the [Injunction]". 3A of the Injunction is annexed to the Motion as Exhibit C. copy -3- 3 of 8 FILED: NEW YORK COUNTY CLERK 06/27/2023 01:22 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/27/2023 ARGUMENT 14. Contrary to arguments made and case law cited in the Movanes memorandum of law submitted in support of the Motion ("Movanes Memo"), neither CPLR §1012 or CPLR §1013 provide any basis to permit Movant to intervene in this action. 15. The Injunction, and apparently the pending litigation against Strauss and other in California, involve claims against Strauss unrelated to the Apartment, the Unit Owner's obligation to pay common charges and other sums due to the Board, or the Lien. 16. The claim that, as Movanes Memo indicates at page 2, that "[Movant) will be significantly and adversely affected by a foreclosure judgment [in this action] that Apartment]" [results in the foreclosure sale of the does not provide Movant a right of intervention as of right under CPLR §1012(a)(3). 17. Even if Movant, in the California litigation, had on May 1, 2023 received a final judgment against Strauss, or against Strauss and the Unit Owner instead of the Injunction, that hypothetical judgment would not give Movant any basis for intervention simply because its hypothetical interest in the Apartment would be adversely impacted by a judgment to be entered in this action. 18. Pursuant to Real Property Law §§339-z, the Lien has priority over any lien or encumbrance on the Apartment that Movant may now have, or may obtain in the future. 19. Moreover, because any lien or encumbrance on the Apartment that Movant may now have, or may obtain in the future will have arisen after the filing of the notice of pendency e-filed in this action on February 8, 2023 (see Exhibit B), Movant -4- 4 of 8 FILED: NEW YORK COUNTY CLERK 06/27/2023 01:22 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/27/2023 would be bound by any judgment to be entered in this action, as if Movant had been named and served as a defendant in this action. 20. Movant, were it a judgment creditor of the Unit Owner, as opposed to a judgment creditor of Strauss, would have a subordinate interest in or claim against the Apartment, and no meritorious defense to the Board's foreclosure cause of action. 21. Nor is there anything in the papers submitted in support of the Motion that indicates any legal basis why Movant should be permitted to intervene pursuant to CPLR §1013. 22. While Movant's Memo claims that "questions of law and fact common to those [at issue in this action and in the California litigation], this claim is obviously has no merit. Strauss' 23. At issue in the California litigation, apparently, are issues of alleged obligations owed to Movant under loan documents unrelated to and irrelevant to the Apartment or the Unit Owner. 24. Conversely, at issue in this action is the Unit Owner's failure to pay common charges owed to the Board, and the Board's rights and remedies under the governing Condominium documents. 25. Movant seeks to expand the import of the Injunction, which may bind Strauss, to enjoin the Board's enforcement of its contractual rights, without providing any argument or evidence, much less compelling evidence, that Strauss is personally liable for the Unit Owner's debts owed to the Board. 26. New York Limited Liability Law §609 indicates that a member of a limited liability company is not liable for the debts and/or liabilities of the entity arising in tort, contract, or otherwise, solely due to being a member or participating in the conduct of the business of the entity. -5- 5 of 8 FILED: NEW YORK COUNTY CLERK 06/27/2023 01:22 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/27/2023 27. Clearly, the Injunction restrains Strauss from participating in a sale of the Apartment. It does not, however, restrain the Board from prosecuting this lien foreclosure action through entry of a judgment of foreclosure and sale and having the Apartment sold at foreclosure sale by a Referee appointed to do so. 28. Finally, as is more fully detailed in the Board's memorandum of law dated June 27, 2023 and submitted in opposition to the Motion (the "Board's Memo"), this Court is not required to give full faith and credit to the Injunction, because preliminary injunctions are not final judgments, and the Full Faith and Credit Clause applies to final judgments. 29. This action has already proceeded to entry of default judgments against the necessary parties to this action, and a computation of the amount due to the Board on the Lien is underway. 30. While Movant blithely asserts that allowing it to intervene in this action will not prejudice the Board, any delay in this action has the potential to prejudice the Board. 31. According to public records available on ACRIS, the Apartment is encumbered by a first mortgage with an original principal balance of $15,000,000.00 when the loan was documented on February 14, 2022. The copy of the consolidated note recorded with the first mortgage indicate that $83,995.69 is the current monthly mortgage payments due from the Unit Owner to the lender. 32. Needless to say, if the Unit Owner is not paying its mortgage on the Apartment, any equity in the Apartment is being stripped away with each passing day, to the prejudice of the Board and the subordinate mortgagee. 33. While Movant, a non-necessary party, suggests that intervention will not delay the prosecution of this action, and claims that Movant "does not intend to pursue -6- 6 of 8 FILED: NEW YORK COUNTY CLERK 06/27/2023 01:22 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/27/2023 discovery [in this action] at the present moment", intervention serves no useful purpose and can do nothing but delay the prosecution of this action. This is obvious whether Movant were permitted to intervene as a plaintiff or a defendant in this action. 34. Movanes proposed intervenor complaint (see Exhibit D to the Motion) asserts just one (1) cause of action, for a declaratory judgment that the Board should be enjoined from completing this foreclosure action for the duration of the Injunction. 35. Again, Movant would seek to bind the Board, not even a party to the California litigation, to the Injunction, which was issued only against Strauss. 36. Movant has the California litigation to pursue its claims against Strauss, and has no cognizable claim against the Apartment or basis to intervene in this action. Nor does Movant have any defense to this action, were it a party. 37. When judgment of foreclosure and sale is entered in this action and the Apartment is sold at foreclosure sale, the Apartment will be sold subject to the first mortgage. 38. If surplus monies arise out of such foreclosure sale, Movant may have a claim to all or a portion of the surplus monies. That that is a remedy separate and distinct from intervention as a party to this action. 39. The Motion should be denied. -7- 7 of 8 FILED: NEW YORK COUNTY CLERK 06/27/2023 01:22 PM INDEX NO. 151261/2023 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/27/2023 WHEREFORE, for all the reasons set forth above and in the Board's Memo, it is respectfully requested that the movant Banc of California, N.A.'s motion be denied 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 June 27, 2023 ROBERT T. HOLLAND (Rule 130-1.1-a) 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 1,817 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 June 27, 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/11879.0009/4219620.1 8 of 8