Preview
INDEX NO. 850250/2017
NYSCEF DOC. NO. 326 RECEIVED NYSCEF 01/09/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. FRANCIS A. KAHN, If PART 32
Justice
anne
ao enema X INDEX NO. 850250/2017
.
AC 31, LLC,
MOTION DATE
Plaintiff,
MOTION SEQ, NO. 008
“Ve
MELISSA FAWER, MARK FAWER, SANTERDER BANK,
N.A., KEY GROWTH INVEST LP, NEW YORK STATE
DEPARTMENT OF TAXATION AND FINANCE, UNITED JUDGMENT OF FORECLOSURE
STATES OF AMERICA - INTERNAL REVENUE SERVICE, AND SALE and DECISION +
BOARD OF MANAGERS OF 52 EAST END AVENUE
CONDOMINIUM, AMK CAPITAL CORP., MRK SALES ORDER ON MOTION
CORP.,
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 008} 298, 299, 306, 301,
302, 303, 304, 305, 206, 307, 308, 309, 310, 313, 314
were read on this motion to/for JUDGMENT - FORECLOSURE & SALE
The court sua sponte vacates its judgment of foreclosure and sale and decision and order on
motion dated November 17, 2023, and substitutes the following in its place and stead:
Upon the foregoing documenis, the motion is determined as follows:
In this action to foreclose on a mortgage encumbering four lots of residential real property,
Plaintiff, Berkshire Bank, Successor by Merger to First Choice Bank (“Berkshire”) moves to confirm the
report of Referee Craig Justin Albert, Esq.. dated July 21, 2020, for the issuance of a judgment of
foreclosure and sale, to direct the distribution of surplus funds and to substitute AC 31, LLC (“AC 31°)
as Plaintiff herein. Defendants Melissa and Mark Fawer (“Fawers”) oppose the motion.
“The report of a referee should be confirmed whenever the findings are substantially supported
by the record, and the referee has clearly defined the issues and resolved matters of credibility”
(Citimortgage, inc. vy Kidd, 148 AD3d 767, 768 [2d Dept 2017]: see alse Bank of N.Y. Mellon v Davis,
193 AD3d 803 [2d Dept 2021]). In proceedings betore the referee, a Plaintiff may rely on evidence
from persons ith personal knowledge of the facts, document in admissible form and/or persons with
knowledge derived from produced admissible records (see ex S. Bank NLA. v Mowlton, 179 AD3d 734,
738 [2d Dept 2020}). After issuance of the Referee’s report, the Supreme Court is authorized to reject
the report, in whole or in part, and render its own findings (sce eg Bank of 4m, NA. v Barton, 199
AD3d 625 [2d Dept 2021).
“There is no requirement that a plaintiff in a foreclosure action rely on any particular set of
business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility
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requirements of CPLR 4518 (a), and the records themselves actually evince the facts for which they are
relied upon” (Citigroup v Kopelowitz, 147 AD3d 1014, LOLS [2d Dept 2017]}). A simple “review of
records maintained in the normal course of business docs not vest an affiant with personal knowledge”
(JPMorgan Chase Bank, NA.» Grennan, 175 AD3d 1513, 1517 [2d Dept 2019]}}. Where aifidavits are
not based upon the affiant’s personal knowledge of a Defendants’ account history, but through the
review of documents, those business records must be proffered in admissible form for the statements
regarding amount owed and other issues to be established (see eg Wells Fargo Bank, NA. v Yesmin, 186
AD3d 1761, 1762 [2d Dept 2020}).
Amongst the evidence reviewed by the Referee were the affidavits of Mark Omolino, dated
October 25, 2018, March 13, 2019° and March 12, 2023. In his affidavit, Mark Omolino “Omolino”)
states he is the Vice President of Berkshire and averred his employer is successor by merger to First
Choice Bank, the original lender. Omolino stated his knowledge was based on the records of Berkshire.
Omolino laid a proper foundation therein for the admission of Berkshire’s records (see Bank of
ALY. Mellon v Gordon, 171 AD3d 197 [2d Dept 2019]), Further, Omolino’s affidavit and the annexed
documents also established that First Choice merged into Berkshire. As a result, pursuant to Banking
Law §602, “the receiving bank ‘shall be considered the same business and corporate entity’ as the bank
merged into it, and that all of the property, rights, and powers of the merged bank shall vest in the
receiving bank” (Moxey v Payne, 167 AD3d 594, 595-596 [2d Dept 2018], quoting Ladino v Bank of
Am., $2 AD3d 571, 572 [2d Dept 2008]; see Barclay's Bank of N.Y. v Smitty's Ranch, 122 AD2d 323,
324 [3d Dept 1986]). The records of prior servicers were also admissible since Omolino attested those
records were received from prior entities, incorporated into the records Berkshire kept and which were
outinely relied upon in its businesses (see Bunk af 4m., A. v Brannon, 156 AD3d 1, 8 [ist Dept
2017); Landmark Capital Invs., inc. v Li-Shan Wang, 94 AD3d 418, 419 [1 Dept 2012]; see also US.
Bank Trust, N. v Bank of Am., N.A., 201 AD3d 769, 772 [2d Dept 2022]). Further, the records
attached to the affidavit supported Plaintiff's claims as well as the Referee’s findings (see U.S. Bank,
NA. v Saracenoa, 147 AD3d 1005 [2nd Dept. 2017]; HSBC Bank USA, N.A. v Simmons, 125 AD3d 930
(2d Dept 2015).
In opposition, Fawers’ assertion that Omolino’s statements in his affidavits regarding records of
entities other than Berkshire are nothing more than a “catch all” and too generalized to lay a proper
foundation under CPLR §4518{a] is without merit (see U.S. Bank Trust, N.A. v Bank of Am., N.A,, 201
AD3d 769, 772 [2d Dept 2022}}. Likewise, Fawers’ claim that there is insufficient proof that the four
lots at issue should be sold as one is without merit. The affidavit of Daniel clannameo, dated
September 11, 2019, makes clear that the four tax lots comprise a solitary living space and that a
separate sale of each would require significant alterations to make each space legally habitable.
Fawers’ argument that the Plaintiff lacked standing to commence the action is without merit. As
to Berkshire, the original Plaintiff, the issue of its standing is law of the case as Justice Bluth determined
that issue and the First Department denied Fawer’s appeal and motion to reargue same. Fawers*
opposition to the branch of Plaintiff's motion to substitute AC 31 is also ineffective. AC31 was
' The Appellate Division, First Department determined that this affidavit “lacked any foundation for the affiant's knowledge
of the business records of plaintiff or its predecessor in interest” (see Berkshire Bank v Fawer, 187 AD3d 535 [ist Dept
2020}}. As such, it must be disregarded by this Court.
2 Omolino’s affidavit, dated March 13, 2019, was submitted in reply on Plaintiff's motion for summary judgment and an
order of reference.
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authorized to continue prosecution of the action in Berkshire’s name (see CPLR $1018: Hells Fargo
Bank, NA v McKenzie, 183 AD3d 574 [2d Dept 2020]; B & H Fla. Notes L shkenazi, 149 AD3d
401 [1“ Dept 2017). In any event, Movant proffered sufficient proof to demonstrate AC31 is the
assignee of Plaintiff's interest to be substituted herein (see U.S. Bank, NA. v Duran, 174 AD3d 768, 769
{2d Dept 2019]: Central Fed. Sav., F.S.B v 405 West 45th St, Inc., 242 AD2d S12 [1* Dept 1997).
Failure to annex the proposed pleading where all that is sought is substitution of the real party in interest
is a mere irregularity (see CPLR §2004). Fawers’ appeals for equity and sympathy are unavailing as
application of the former in foreclosure proceedings is rare and the latter cannot undermine the stability
of contractual relations (see L & L Assoc. Holding Corp. v Seventh Day Church af Gad of the Apostolic
Faith, 188 AD3d 1180 [2d Dept 2020).
Fawers also took issue with Plaintiff's request for atiorney’s fees. The Court has inherent
authority to set legal fees charged for services in an action before it and determination of same is within
its sound discretion (see eg Matter af Thomas B. v. Lydia D., 120 AD3d 446 [1" Dept 2014). In
assessing a request for legal fees, the Appellate Division, First Department held in Jordan v Freeman,
40 AD2d 656 [1st Dept 1972] as follows:
The relevant factors in the determination of the value of legal services are the nature and
extent of the services, the actual time spent, the necessity therefor, the nature of the issues
involved, the professional standing of counsel, and the results achieved . .. [The] court
may consider its own knowledge and experience concerning reasonable and proper fees
and in the light of such knowledge and experience, the court may form an independent
judgment from the facts and evidence before it as to the nature and extent of the services
rendered, make an appraisal of such services, and determine the reasonable value thereof
{Internal citations omitted].
In the end “the court must possess sufficient information upon which to make an informed
assessment of the reasonable value of the legal services rendered” (Bankers Fed. Sav. Bank FSB v Off
W. Broadway Developers, 224 AD2d 376 [1% Dept 1996}; see also SO/Bluestar, LLC v Canarsie Hotel
Corp., 33 D3d 986 [2d Dept 2006]). “The burden of proof was upon the plaintiff to establish the
necessity for and the reasonable value of the legal services rendered” (Centre Great Neck Co. v Penn
Encore, Inc., 255 AD2d 543 [2d Dept 1998}).
Plaintiff seeks an award of $218,892.75 in counsel fees for recovery of $4,091,749.40 as of
March 12, 2019. While Fawers are correct that requests for attorney’s fees that do not bear a reasonable
relationship to the amount sought to be recovered can be considered suspect (of Emery v Fishmarket Inn
of Granite Springs, 173 Ald2d 765, 766 [2d Dept 1991]), but such an award is not per se prohibited (see
JK Two LLC y Garber, 171 AD3d 496 [1 Dept 2019).
The present situation is an all-too-common occurrence in foreclosure actions. Many litigants for
a variety of reasons, persist in years of litigation even without adequately considering the accruing
interest and ballooning attorney's fees. Here, the fees sought represent just 5% of the amount found due
and owing. The within action has been verily contested for over six years wherein Defendants’ have
proffered a notable defense. Defendants opposed every motion by Plain iff herein and made multiple
motions of their own, All told, the parties have made nine motions in this matter. Fawers also appealed
Justice Blath’s decision dated July 22, 2019, which was denied. The parties attended multiple CPLR.
§3408 conferences with the Court as well as multiple status conferences.
$80250/2017 BERKSHIRE BANK, SUCCESSOR BY vs. FAWER, MELISSA Page 3 of 8
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Based upon the foregoing, Plaintiff's affirmation of legal services and the supporting
documentation, fee request is entirely justifiable and sufficiently supported. Accordingly, based on the
review of the affirmation of legal services, invoices, facts of this case, as well as this Court knowledge
and experience, Plaintiff request for attorney fees is granted in full
Accordingly, itis
ORDERED and ADJUDGED that the motion for a judgment of foreclosure and sale and to
confirm the referee’s report is granted; and it is further.
ORDERED that AC 31, LLC is substituted in the place and stead for Plaintiff Berkshire Bank,
successor by merger to First Choice Bank, and the caption of the action be amended nunc pro tunc to
reflect such substitution; and it is further
ORDERED that the caption is amended and shall read as follows
SUPRE IE COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
eee manne tence nennn nec eenennnnnnenentananmnnneennnannnnXK,
AC 31
Plaintiff
“agaist
MELISSA FA WE! MARK FPAWER, SANTERDER BANK,
N.A., KEY GROWTH INVEST LP, NEW YORK ST; TE
DEPARTMENT OF TAXATI AND FINANC! NITED
STATES OF AMERICA - INTER! L REVE!
SERVICE, BOARD OF MAN RS OF 52 ST END
AVENUE CONDOMINIUM, AMK CAPITAL CORP., MRK
SALES CORP.,
Defendants.
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anne nnemnn mene xX
and it is farther
ORDERED that the mortgaged property described in the complaint and as described in this
judgment, or such part thereof as may be sufficient to discharge the mortgage debt, the expense of sale
and the costs of this action as provided in the RPAPL be sold within | year of this judgment, in one
parcel, at a public auction at the New York County Courthouse located at 60 Centre Street, New York.
New York under the direction of Craig Justin Albert, Esq.. who is appointed Referee for this purpose:
and it is further
ORDERED that PRIOR to scheduling publication, Plaintiff shall contact the auction part clerk
at sfe-foreclosures@nycourts.gav and obtain consent to place the matter on the auction calendar and
thereafier, Plaintiff shall upload the notice of sale to NYSCEF at least 21 days before the sale and the
Referee. IF THE AUCTION IS NOT ON THE CALENDAR, then the auction will not go forward: and
it is further
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ORDERED that the sale shall be conducted in accordance with the annexed New York County
Auction Part Rules for Outdoor Auctions.
ORDERED that after receiving permission from the Auction Part Clerk, the Referee shall give
public notice of the time and place of sale in accordance with RPAPL 231(2) in the New York.
Amsterdam News; and the referee need not conduct the sale unless plaintiff shail provide the referee
with proof of publication of the notice of sale, and if the sale is adjourned due to plaintiff's failure to
provide such proof, then said adjournment shall not be considered at the referee’ s request; and it is
further
ORDERED that by accepting this appointment the Referee certifies that she/he is in compliance
with Part 36 of the Rules of the Chief Judge 22 NYCRR Part 36), including, but not limited to §36.2 (c}
(“Disqualifications from appointment”), and §36.2 (d) (“Limitations on appointments based upon
compensation”), and, if the Referee is disqualified from receiving an appointment pursuant to the
provisions of that Rule, the Referee shall immediately notify the Appointing Judge: and it is further
ORDERED that the Referee is prohibited from receiving any funds without compliance with Part
36 of the Rules of the Chief Administrative Judge; and it is further
ORDERED that the Referee shall conduct the foreclosure sale only if Plaintiff, its successors
and/or assignees or its representatives is present at the sale or the Referee has received a written bid and
Terms of Sale from Plaintiff, its successors and/or assigns, or its representatives; and it is farther
ORDERED that if the Referee cannot conduct the sale within | year of the date of this judgment,
plaintiff must make a motion to extend the time to sell the subject property explaining the reasons for the
delay; and it is further
ORDERED that at the time of sale the Referee may accept a written bid from the Plaintiff or the
Plaintiff's attorney, just as though Plaintiff were physically present to submit said bid; and it is further
ORDERED that the Referee shall accept the highest bid offered by a bidder who shall be
identified upon the court record, and shall require that the successful bidder immediately execute Terms
of Sale for the purchase of the property, and pay to the Referee in cash, certified check or bank check,
ten percent (10%) of the sum bid, unless the successful bidder is Plaintiff, in which case no deposit
against the purchase process shall be required and it is farther
ORDERED that notwithstanding the previous paragraph, the Referee shall have the right to
refuse cash payments and require a bank or certified check from the successful bidder and the Referee
shall be entitled to qualify bidders and require bidders to show proof of funds before or during the
auction; and it is further
ORDERED that in the event the first successful bidder fails to execute the Terms of Sale or fails
to immediately pay the ten percent (10%) deposit as required, the property shall be immediately
reoffered at auction on the same day: and it is further
ORDE) ED the Referee shall deposit the down payment and proceeds of sale, as necessary in an
FDIC-insured bank where the Referee has an account for that purpose in accordance with CPLR 2609:
and it is further
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ORDERED that after the balance of the purchase price is paid or credited and the property is
23
old, the Referee shall execute a deed to the purchaser in accordance with RPAPL 1 and the terms yf
sale (which shall be deemed a binding contract); and it is further
ORDERED that in the event a party other than Plaintiff becomes the purchaser at the sale, the
closing of title shall be held no later than 30 days after the date of such sale; and it is further
ORDERED that, pursuant to RPAPL 1353(1), if Plaintiff (or its affiliate as defined in paragraph
{a] of subdivision one of section six-1 of the banking law) is the purchaser, the property shall be placed
back on the market for sale or other occupancy within 180 days of the execution of the deed of sale or
within 90 days of construction, renovation, or rehabilitation of the property, provided that such
construction, renovation or rehabilitation proceeded diligently to completion, whichever comes first,
provided that this court grants an extension upon a showing of good cause; and it is further
ORDERED that the Referee, after receiving the proceeds of the sale, shall pay (from the
proceeds) the taxes. essments, sewer rents, or water rates, which are, or may become, liens on the
property in accordance with their priority according to law with such interest or penalties which may
have lawfully accraed thereon to the date of payment: and it is farther
ORDE! -ED that the Referee shall deposit the balance of the proceeds from the sale in his or her
own name as Referee in an FDIC-insured bank where the Referee has an account for that purpose and
shall make the following payments in accordance with RPAPL 1354
i The Referee’s fees for conducting the sale, which are $1,100.00. Plaintiff shall also
compensate the Referee in the sum of $350 for each adjournment or cancellation made on
less than two business days’ notice unless the Referee caused the delay
All taxes, assessments and water rates that are liens upon the property and monies necessary
to redeem the property from any sales for unpaid taxes, assessments or water rates and any
other amounts due in accordance with RPAPL 1354(2). The purchaser shall be responsible
for interest and penalties accrued after the sale. The Referee shall not be responsible for the
payment of penalties or fees pursuant to this appointment. The purchaser shall hald the
Referee harmless from any such penalties or fees assessed.
The expenses of the sale and the advertising expenses as shown on the bills presented and
certified by the Referee to be correct, copies of which shall be annexed to the report of sal
The Referee shall also pay to the Plaintiff or its attorneys the following:
a. Amount Due from the Referee’s Report: $4,091,749.40, together with interest at the
~
note rate from March 12, 2019, until entry judgment, together with any advances
as provided for in the note and mortgage which Plaintiff had made for taxes,
insurance, principal, and interest and any other charges due to prior mortgages or to
maintain the property pending consummation of the foreclosure sale, not included in
the computation upon presentation of receipts for said expenditures to the Referee,
and then with interest from the date of entry of this judgment at the statutory rate until
the date the deed is transferred
850250/2017 BERKSHIRE BANK, SUCCESSOR BY vs. FAWER, MELISSA Page 6 of 8
Motion No, 008
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Costs and Disbursements: _ $6,731.38 {to be Hlled in by the Clerk)
to Plaintiff for costs and disbursements in this action with interest at the statutory
judgment rate from the date of entry of this judgment.
c The Court declines to award additional allowance.
d Attorneys’ Fees: $218,892.75.
5. Surplus monies from the sale shall be paid into Court by the Referee within five days after
receipt in accordance with RPAPL 1354(4): and it is further
ORDERED that if Plaintiffis the purchaser of the property, or in the event that the rights of the
purchasers at the sale and the terms of sale under this judgment shall be assigned to or be acquired by
Plaintiff, and a valid assignment is filed with the Referee, the Referee shall not require Plaintiff to pay in
cash the entire amount bid at sale, but shall execute and deliver to Plaintiff or its assignee, a deed or
deeds of the property sold upon the payment to said Referee of the amounts specified as 1, 2, and 3
above, and the Referee shall allow Plaintiff to pay the amounts specified in 2 and 3 above when it is
recording the deed; that the balance of the bid, after deducting the amounts paid by Plaintiff, shall be
applied to the amount due to Plaintiff as specified in 4 above; that Plaintiff shall pay any surplus afer
applying the balance of the bid to the Referee, who shall deposit it in accordance with 5 above; and it is
further
ORDERED that all expenses of recording the Referee’s deed, including real property transfer
taxes, which is not a lien upon the property at the time of sale, shall be paid by the plaintiff from the sale
proceeds; and it is further
ORDERED that Plaintiff may seek to recover a deficiency judgment in accordance with RPAPL
1371 if applicable, and it is further
ORDERED that if the property is sold in one parcel in “as is” physical order and condition,
subject to any condition that an inspection of the property would disclose; any facts that an accurate
survey of the property would show; any covenants, restrictions, declarations, reservations, easements,
right of way, and public utility agreements of record, if any; any building and zoning ordinances of the
municipality in which the mortgaged property is located and possible violations of same; any rights of
tenants or persons in possession of the subject property; prior liens of record, if any, except those liens
addressed in RPAPL 1354, any equity of redemption of the United States of America to redeem the
property within 120 days from the date of sale, any rights pursuant to CPLR 317, 2003 and S015 or any
appeal of the underlying action or additional litigation brought by any defendant or its successor or
assignee contesting the validity of this foreclosure; and it is further
ORDERED that the purchaser be let into possession of the property upon production in hand of
the Referee’s Deed or upon personal service of the Referee‘s deed in accordance with CPLR 308; and it
is further
ORDERED that Defendants in this action and persons claiming through them and any person
possessing a junior interest in the property after the Notice of Pendency was filed are barred and
880250/2017 BERKSHIRE BANK, SUCCESSOR SY vs. FAWER, MELISSA Page 7 of 8
Motion No. 008
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17 850250
foreclosed of all right, claim, lien, title, and interest in the property after the sale of the mortgaged
property; and it is further
ORDERED that within 14 days after completing the sale and executing the proper conveyance to
the purchaser, the Referee shall file with the clerk a report under oath of the disposition of the proceeds
of the sale and upload the report to NYSCEF if it is an e-filed case; and it is further
ORDERED that if the purchaser or purchasers at said sale default upon the bid or terms of sale,
ihe Referee may re-notice the property for sale with or without prior application to this Court, and the
deposit of the recalcitrant bidder forfeited and retained by Plaintiffas liquidated damages; and it is
further
ORDERED that Plaintiff shall serve a copy of this judgment with notice of entry upon the owner
of the equity of redemption, any tenants named in this action, and any other parties entitled to service,
including the Referee appointed herein; and it is further
ORDERED that nothing herein shall be deemed to relieve Plaintiff of any obligation imposed by
RPAPL 1307 or 1308 to secure and maintain the property until ownership of the property has been
transferred and the deed duly recorded; and it is further
ORDERED that when the Referee files a report of sale, she or he shal! also file a Foreclosure
Action Surplus Monies Form and also upload this document to NYSCEF if an e-filed case: and it is
further
ORDERED that, without further order of the Court, the referee shall be entitled to an additional
fee of $950.00 for conducting and attending a closing with a purchaser other than plaintiff, plus, if such
a closing is scheduled for the referee’s conference room, then the referee shall be entitled to a reasonable
fee for use thereof, without further order of the Court; and it is further identified:
A deseription of the premises is annexed hereto as schedule A.
1215/2023 6. Qo TE
DATE FRANCIS KAHN, fil, AJ.S.C.
my
CHECK ONE: CASE DISFOSED sONOFRANCIS A. KAHN segsHI
GRANTED Cl DENIED GRANTED IN PART _] OTHER J<
APPLICATION: ET TLE ORDER SUBMIT ORDER
CHECK iF APPROPRIATE: INCLUDES TRANSFERIREASSIGN x FIDUCIARY APPOINTMENT Cy REFERENCE
9th Jan.
Date
2024 Mlen eee
Clerk
FILED
Jan 09 2024
NEW YORK
COUNTY CLERK'S OFFICE
880250/2017 BERKSHIRE BANK, SUCCESSOR BY vs. FAWER, MELISSA Page 8 of §
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SCHEDULE “A”
THE UNITS KNOWN AS UNIT NOS. 12A, 12C, 14B, AND 14C IN THE BUILDING
(BUILDING”) KNOWN AS $2 EAST END AVENUE CONDOMINIUM, LOCATED IN THE
BOROUGH OF MANHATTAN, COUNTY OF NEW YORK, CITY AND STATE OF NEW
YORK, AND ALSO DESIGNATED AND DESCRIBED AS UNIT NOS, 124, 12C, 14B AND 14C
IN THE DECLARATION ESTABLISHING 52 EAST END AVENUE CONDOMINIUM
(HEREINAFTER CALLED THE “PROPERTY”) MADE UNDER THE CONDOMINIUM ACT
OF THE STATE OF NEW YORK AS AMENDED (ARTICLE 9B OF THE REAL PROPERTY
LAW OF THE STATE OF NEW YORK), DATED 11/02/1987, AND RECORDED IN THE NEW
YORK COUNTY OFFICE OF THE REGISTER OF THE CITY OF NEW YORK, ON 02/03/1988
IN REEL 1359 PAGE 210, AS AMENDED BY CERTIFICATION DATED 05/02/1988 AND
RECORDED 12/21/1988 IN REEL 1510 PAGE 90, AS AMENDED BY AMENDMENT TO THE
BY-LAWS DATED 04/20/2006 AND RECORDED 05/19/2006 AS CREN 2006000279280, AS
AMENDED BY AMENDMENT TO THE BY-LAWS DATED 02/01/2006 AND RECORDED
06/07/2006 AS CRFN 2006000319201, AS AMENDED BY AMENDMENT TO THE BY-LAWS
DATED 02/01/2006 AND RECORDED 06/07/2006 AS CREN 2006000319202, AS AMENDED
BY AMENDMENT TO THE BY-LAWS DATED 02/01/2006 AND RECORDED 06/07/2006 AS
CREN 2006000319203 AND ALSO AMENDED BY AMENDMENT TO THE BY-LAWS DATED
04/04/2006 AND RECORDED 06/07/2006 AS CRFN 2006000319204 (WHICH DECLARATION,
AND ANY AMENDMENTS THERETO ARE HEREINAFTER COLLECTIVELY REFERRED
TO AS THE “DECLARATION”), THESE RESIDENTIAL UNITS ARE ALSO DESIGNATED AS
TAX LOTS 1023, 1025, 1026, AND 1027, RESPECTIVELY, IN BLOCK 1578 ON THE TAX
MAP OF THE REAL PROPERTY ASSESSMENT DEPARTMENT OF THE CITY OF NEW
YORK AND ON THE FLOOR PLAN OF THE BUILDING, CERTIFIED BY MICHAEL LYNN
AND ASSOCIATES, ARCHITECTS, AND FILED WITH THE REAL PROPERTY
ASSESSMENT DEPARTMENT OF THE CITY OF NEW YORK AS CONDOMINIUM PLAN
NO, 517 AND FILED SIMULTANEOUSLY WITH SAID DECLARATION IN THE SAID
OFFICE OF THE REGISTER OF THE CITY OF NEW YORK, COUNTY OF NEW YORK AS
MAP NO. 4728 (HEREINAFTER CALLED THE “UNITS”).
TOGETHER WITH AN UNDIVIDED 6.9936% INTEREST (AS TO TAX LOT 1623), 6.9936%
INTEREST (AS TO TAX LOT 1025), 0.9452% INTEREST (AS TO TAX LOT 1026) AND
0,9936% INTEREST (AS TO TAX LOT 1027) IN THE COMMON ELEMENTS (AS SUCH
TERM IS DEFINED IN THE DECLARATION).
THE LAND AREA OF THE PROPERTY IS DESCRIBED AS FOLLOWS:
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING
IN THE BOROUGH OF MANHATTAN, CITY, COUNTY, AND STATE OF NEW YORK,
BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT THE CORNER FORMED BY THE INTERSECTION OF THE SOUTHSIDE OF
82ND STREET AND THE WESTERLY SIDE OF EAST END AVENUE;
HARRIS BEACH 2
ATIGRMENS €Y LAY
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INDEX NO. 850250/2017
FILED: NEW YORK COUNTY CLERK 01/09/2024 02:41 PM
NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 01/09/2024
SCHEDULE “A” continued
RUNNING THENCE SOUTHERLY ALONG THE WESTERLY SIDE OF EAST END AVENUE,
31 FEET 2 INCHES;
THENCE WESTERLY PARALLEL WITH THE SOUTHERLY SIDE OF 82ND STREET, 85
FEET 4 INCHES;
THENCE NORTHERLY PARALLEL WITH THE WESTERLY SIDE OF EAST END AVENUE,
12 FEET 8 INCHES;
THENCE EASTERLY PARALLEL WITH THE SOUTHERLY SIDE OF 82ND STREET, 2 FEET;
THENCE NORTHERLY PARALLEL WITH THE WESTERLY SIDE OF EAST END AVENU E,
16 FEET 6 INCHES;
THENCE WESTERLY PARALLEL WITH THE SOUTHERLY SIDE OF 82ND STREET, 2
FEET;
THENCE NORTHERLY PARALLEL WITH THE WESTERLY SIDE OF EAST END AVENUE,
22 FEET TO THE SOUTHERLY SIDE OF 82ND STREET;
THENCE EASTERLY ALONG THE SOUTHERLY SIDE OF 82ND STREET, 85 FEET 4
INCHES TO 'THE CORNER, AND THE POINT OR PLACE OF BEGINNING.
HARRIS BEACH 3
ATTORNEYS AT Law
10 of 29
= INDEX NO. 850250/2017
NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 01/09/2024
Supreme Court, New York County Auction Part Rules for Outdoor Auctions
An auction will not go forward if it is not on the Auction Calendar
1, Prior to scheduling publication, the plaintiff and referee shall contact the Auction Part clerk at
SFEGC-Forclosures
@
SUES CU sourts.gov to place the auction an the auction calendar
2.The Referee and ail interested parties must be present on the scheduled auction date at 2:15 p.m.
on the portico at 60 Centre Street,
3. The Terms of Sale must be posted on the portico before the auction begins. The Referee shall
afford prospective bidders time to review the Terms of Sale.
4. Athis ar her discretion, the Referee may choose not to accept cash.
5. A successful bidder must have in his/her possession at the tire of the bid the full 10% of the sum
bid, in cash (if accepted at the referee's discretion) or certified or bank check to be made payable ta
the Referee.
§. Ail persons wishing to bid on properties must register with the Referee and provide proof of
identification
Bidders will be required to stand and state their names at the time the bid is made.
8. Bidders are permitted to use cell phones to communicate with business partners via text
messages only. Phone sails and video calls (such as FaceTime, Skype or Teams) are not
permitted,
No sale will be deemed final until the full 10% deposit has been paid te the Referee and the
Terms of Sale have been signed; this must be done immediately following the auction.
10. Ifa successful bidder fails to immediately pay the deposit and sign the Terms of Sale, the
property will be promptly re-auctioned the same afternaon.
11. Bidders are cautioned that the failure to furnish the 10% deposit or sign the Terms of Sale after
winning an auction may resuit in the loss of future bidding privileges. The Court reserves the right to
impose penalties for inappropriate behaviar or other misconduct as it sees fit.
12. Within 10 days of the auction the Referee shall report to the auction clerk via email (S:
Forclosures@nycourts.gov) the amount of the successful bid (the purchase price) and the name and
address of the successful bidder.
13. Within 10 days of the auction the Referee shail report to the auction clerk via email (SFO-
Fo suresi@nycourts. gov) the sale price, the amount awarded in the judgment of foreclosure and
COTCIOSUEES
sale and the upset price. The clerk shaff record and enter this information in the court's computer
system
14, The Referee conducting the sale shall complete a Surpius Monies Form immediately following
the sale. Ail information must be completed; if there is no surplus, then that must also be indicated.
15. Within 10 days of the auction, the Referee shall deliver the signed Surplus Monies Form to the
auction clerk via email (SFC-Forclosures@nyonurts.cov). The auction clerk shail upload the form to
NYSCEF (if an ¢-filed case) or provide it to the County Clerk (if a paper case}
16. All bidders must wear a face mask/shield at all times and social distancing must be observed by
ail bidders at all times. Bidders who do not comply with the face mask and/or the social distancing
mandate will be removed from the auction.
17. A capy of these rules will be appended to ail Judgments of Foreciosure and Sale
11 of 29
INDEX NO. 850250/2017
NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 01/09/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF NEW YORK
AC 31, LLC.
Index No. 850250/2017
st Choise Bank,
Plaintiff, BILL OF COSTS
Melissa Fawer
Mark Fawer adiaMark-S.Kawer
Santander Banky-NoA, Santerder Bank, N.A
Key Growth Invest LP JANUARY 09 2024
New York State Department of Taxation and Finance | HEREBY CERTIFY THAT | HAVE
ADJUSTED THIS BILL OF COSTS AT
United States of America — Internal Revenue Service $6731.38
Board of Managers of 52 East End Avenue Condominium
y-
AMK Capital Corp.
MRK Sales Corp.,
Defendants.
COSTS
Costs before Note of Issue is filed, $200.00
CPLR Section 8201, subd 1
CPLR Section 8302(b)
1. 10% of sum not exceeding $200.00 [$20.00]
2. 5% of sum not exceeding $800.00 [$40.00]
3. 2% of sum not exceeding $2,000.00 [$40.00]
4, 1% ofsum not exceeding $5,000.00 [$50.00] 150.00
Add'l allowance CPLR Section 8302(d) 50.00
Total Costs $400.00
DISBURSEMENTS
Fee for Index Number, filing of notice of pendency $435.00
CPLR Section 8018(a), Section 8018(d)(6)
Section 8021(a)10
Referee's Fee, 350.00
CPLR Section 8301(a) |, Section 8003(a)
Paid for searches, 1,026.00
CPLR Section 8301(a)10
Serving copy of Summons and Complaint, 59906 215.00
CPLR Section 8301(d)
Request for Judicial Intervention 95.00
Recording of Assignments of Mortgage
Filing Additional Notices of Pendency 38:00 70.00
HARRIS BEACH =
ATTORNEYS AT LAW
12 of 29
INDEX NO. 850250/2017
(FILED: NEW YORK COUNTY CLERK 0170972024 02:41 PM
NYSCEF DOC. NO. 326 RECEIVED NYSCEF 01/09/2024
Filing of Notice of Appeal with First Department S48:00
Appellant’s Opening Brief 354.99
Appendix Fee 3,605.39
Motion filing fees
CPLR Section 8301(b) 225:00 180.00
Total Disbursements SUHISTSS 6,331.38
TOTAL SHEERS 6,731.38
STATE OF NEW YORK )
COUNTY OF MONROE ) ss: Attorney's Affirmation
The undersigned, an attorney admitted to practice in the Courts of this state, affirms; that she
is one of the attorneys of record for the plaintiff in the above-entitled action; that the foregoing
disbursements have been or will necessarily be made or incurred in this action and are reasonable in
amount.
The undersigned affirms that the foregoing statements are true, under penalties of perjury.
Dated: September 8, 2023
HARRIS BEACH PLLC
FILED
Jan 09 2024
NEW YORK
Ta. 2-fr
COUNTY CLERK'S OFFICE Kevin Tompsett, Esq.
HARRIS BEACH PLLC
Attorneys for Plaintiff
99 Garnsey Road
Preview
INDEX NO. 850250/2017 NYSCEF DOC. NO. 326 RECEIVED NYSCEF 01/09/2024 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. FRANCIS A. KAHN, If PART 32 Justice anne ao enema X INDEX NO. 850250/2017 . AC 31, LLC, MOTION DATE Plaintiff, MOTION SEQ, NO. 008 “Ve MELISSA FAWER, MARK FAWER, SANTERDER BANK, N.A., KEY GROWTH INVEST LP, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, UNITED JUDGMENT OF FORECLOSURE STATES OF AMERICA - INTERNAL REVENUE SERVICE, AND SALE and DECISION + BOARD OF MANAGERS OF 52 EAST END AVENUE CONDOMINIUM, AMK CAPITAL CORP., MRK SALES ORDER ON MOTION CORP., Defendant. oan neannnnenenenntnnnrnansinnannitunnantnnunntnnewnnnenne X The following e-filed documents, listed by NYSCEF document number (Motion 008} 298, 299, 306, 301, 302, 303, 304, 305, 206, 307, 308, 309, 310, 313, 314 were read on this motion to/for JUDGMENT - FORECLOSURE & SALE The court sua sponte vacates its judgment of foreclosure and sale and decision and order on motion dated November 17, 2023, and substitutes the following in its place and stead: Upon the foregoing documenis, the motion is determined as follows: In this action to foreclose on a mortgage encumbering four lots of residential real property, Plaintiff, Berkshire Bank, Successor by Merger to First Choice Bank (“Berkshire”) moves to confirm the report of Referee Craig Justin Albert, Esq.. dated July 21, 2020, for the issuance of a judgment of foreclosure and sale, to direct the distribution of surplus funds and to substitute AC 31, LLC (“AC 31°) as Plaintiff herein. Defendants Melissa and Mark Fawer (“Fawers”) oppose the motion. “The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” (Citimortgage, inc. vy Kidd, 148 AD3d 767, 768 [2d Dept 2017]: see alse Bank of N.Y. Mellon v Davis, 193 AD3d 803 [2d Dept 2021]). In proceedings betore the referee, a Plaintiff may rely on evidence from persons ith personal knowledge of the facts, document in admissible form and/or persons with knowledge derived from produced admissible records (see ex S. Bank NLA. v Mowlton, 179 AD3d 734, 738 [2d Dept 2020}). After issuance of the Referee’s report, the Supreme Court is authorized to reject the report, in whole or in part, and render its own findings (sce eg Bank of 4m, NA. v Barton, 199 AD3d 625 [2d Dept 2021). “There is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility 850250/2017 BERKSHIRE BANK, SUCCESSOR BY vs. FAWER, MELISSA Page t of 8 Motion No. 008 1 of 29 INDEX NO. 850250/2017 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 01/09/2024 requirements of CPLR 4518 (a), and the records themselves actually evince the facts for which they are relied upon” (Citigroup v Kopelowitz, 147 AD3d 1014, LOLS [2d Dept 2017]}). A simple “review of records maintained in the normal course of business docs not vest an affiant with personal knowledge” (JPMorgan Chase Bank, NA.» Grennan, 175 AD3d 1513, 1517 [2d Dept 2019]}}. Where aifidavits are not based upon the affiant’s personal knowledge of a Defendants’ account history, but through the review of documents, those business records must be proffered in admissible form for the statements regarding amount owed and other issues to be established (see eg Wells Fargo Bank, NA. v Yesmin, 186 AD3d 1761, 1762 [2d Dept 2020}). Amongst the evidence reviewed by the Referee were the affidavits of Mark Omolino, dated October 25, 2018, March 13, 2019° and March 12, 2023. In his affidavit, Mark Omolino “Omolino”) states he is the Vice President of Berkshire and averred his employer is successor by merger to First Choice Bank, the original lender. Omolino stated his knowledge was based on the records of Berkshire. Omolino laid a proper foundation therein for the admission of Berkshire’s records (see Bank of ALY. Mellon v Gordon, 171 AD3d 197 [2d Dept 2019]), Further, Omolino’s affidavit and the annexed documents also established that First Choice merged into Berkshire. As a result, pursuant to Banking Law §602, “the receiving bank ‘shall be considered the same business and corporate entity’ as the bank merged into it, and that all of the property, rights, and powers of the merged bank shall vest in the receiving bank” (Moxey v Payne, 167 AD3d 594, 595-596 [2d Dept 2018], quoting Ladino v Bank of Am., $2 AD3d 571, 572 [2d Dept 2008]; see Barclay's Bank of N.Y. v Smitty's Ranch, 122 AD2d 323, 324 [3d Dept 1986]). The records of prior servicers were also admissible since Omolino attested those records were received from prior entities, incorporated into the records Berkshire kept and which were outinely relied upon in its businesses (see Bunk af 4m., A. v Brannon, 156 AD3d 1, 8 [ist Dept 2017); Landmark Capital Invs., inc. v Li-Shan Wang, 94 AD3d 418, 419 [1 Dept 2012]; see also US. Bank Trust, N. v Bank of Am., N.A., 201 AD3d 769, 772 [2d Dept 2022]). Further, the records attached to the affidavit supported Plaintiff's claims as well as the Referee’s findings (see U.S. Bank, NA. v Saracenoa, 147 AD3d 1005 [2nd Dept. 2017]; HSBC Bank USA, N.A. v Simmons, 125 AD3d 930 (2d Dept 2015). In opposition, Fawers’ assertion that Omolino’s statements in his affidavits regarding records of entities other than Berkshire are nothing more than a “catch all” and too generalized to lay a proper foundation under CPLR §4518{a] is without merit (see U.S. Bank Trust, N.A. v Bank of Am., N.A,, 201 AD3d 769, 772 [2d Dept 2022}}. Likewise, Fawers’ claim that there is insufficient proof that the four lots at issue should be sold as one is without merit. The affidavit of Daniel clannameo, dated September 11, 2019, makes clear that the four tax lots comprise a solitary living space and that a separate sale of each would require significant alterations to make each space legally habitable. Fawers’ argument that the Plaintiff lacked standing to commence the action is without merit. As to Berkshire, the original Plaintiff, the issue of its standing is law of the case as Justice Bluth determined that issue and the First Department denied Fawer’s appeal and motion to reargue same. Fawers* opposition to the branch of Plaintiff's motion to substitute AC 31 is also ineffective. AC31 was ' The Appellate Division, First Department determined that this affidavit “lacked any foundation for the affiant's knowledge of the business records of plaintiff or its predecessor in interest” (see Berkshire Bank v Fawer, 187 AD3d 535 [ist Dept 2020}}. As such, it must be disregarded by this Court. 2 Omolino’s affidavit, dated March 13, 2019, was submitted in reply on Plaintiff's motion for summary judgment and an order of reference. 850250/2017 BERKSHIRE BANK, SUCCESSOR BY vs. FAWER, MELISSA Page 2 of 8 Motion No, 008 2 of 29 INDEX NO. 850250/2017 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 01/09/2024 authorized to continue prosecution of the action in Berkshire’s name (see CPLR $1018: Hells Fargo Bank, NA v McKenzie, 183 AD3d 574 [2d Dept 2020]; B & H Fla. Notes L shkenazi, 149 AD3d 401 [1“ Dept 2017). In any event, Movant proffered sufficient proof to demonstrate AC31 is the assignee of Plaintiff's interest to be substituted herein (see U.S. Bank, NA. v Duran, 174 AD3d 768, 769 {2d Dept 2019]: Central Fed. Sav., F.S.B v 405 West 45th St, Inc., 242 AD2d S12 [1* Dept 1997). Failure to annex the proposed pleading where all that is sought is substitution of the real party in interest is a mere irregularity (see CPLR §2004). Fawers’ appeals for equity and sympathy are unavailing as application of the former in foreclosure proceedings is rare and the latter cannot undermine the stability of contractual relations (see L & L Assoc. Holding Corp. v Seventh Day Church af Gad of the Apostolic Faith, 188 AD3d 1180 [2d Dept 2020). Fawers also took issue with Plaintiff's request for atiorney’s fees. The Court has inherent authority to set legal fees charged for services in an action before it and determination of same is within its sound discretion (see eg Matter af Thomas B. v. Lydia D., 120 AD3d 446 [1" Dept 2014). In assessing a request for legal fees, the Appellate Division, First Department held in Jordan v Freeman, 40 AD2d 656 [1st Dept 1972] as follows: The relevant factors in the determination of the value of legal services are the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issues involved, the professional standing of counsel, and the results achieved . .. [The] court may consider its own knowledge and experience concerning reasonable and proper fees and in the light of such knowledge and experience, the court may form an independent judgment from the facts and evidence before it as to the nature and extent of the services rendered, make an appraisal of such services, and determine the reasonable value thereof {Internal citations omitted]. In the end “the court must possess sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered” (Bankers Fed. Sav. Bank FSB v Off W. Broadway Developers, 224 AD2d 376 [1% Dept 1996}; see also SO/Bluestar, LLC v Canarsie Hotel Corp., 33 D3d 986 [2d Dept 2006]). “The burden of proof was upon the plaintiff to establish the necessity for and the reasonable value of the legal services rendered” (Centre Great Neck Co. v Penn Encore, Inc., 255 AD2d 543 [2d Dept 1998}). Plaintiff seeks an award of $218,892.75 in counsel fees for recovery of $4,091,749.40 as of March 12, 2019. While Fawers are correct that requests for attorney’s fees that do not bear a reasonable relationship to the amount sought to be recovered can be considered suspect (of Emery v Fishmarket Inn of Granite Springs, 173 Ald2d 765, 766 [2d Dept 1991]), but such an award is not per se prohibited (see JK Two LLC y Garber, 171 AD3d 496 [1 Dept 2019). The present situation is an all-too-common occurrence in foreclosure actions. Many litigants for a variety of reasons, persist in years of litigation even without adequately considering the accruing interest and ballooning attorney's fees. Here, the fees sought represent just 5% of the amount found due and owing. The within action has been verily contested for over six years wherein Defendants’ have proffered a notable defense. Defendants opposed every motion by Plain iff herein and made multiple motions of their own, All told, the parties have made nine motions in this matter. Fawers also appealed Justice Blath’s decision dated July 22, 2019, which was denied. The parties attended multiple CPLR. §3408 conferences with the Court as well as multiple status conferences. $80250/2017 BERKSHIRE BANK, SUCCESSOR BY vs. FAWER, MELISSA Page 3 of 8 Motion No. 008 3 of 29 = INDEX NO. 850250/2017 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 01/09/2024 Based upon the foregoing, Plaintiff's affirmation of legal services and the supporting documentation, fee request is entirely justifiable and sufficiently supported. Accordingly, based on the review of the affirmation of legal services, invoices, facts of this case, as well as this Court knowledge and experience, Plaintiff request for attorney fees is granted in full Accordingly, itis ORDERED and ADJUDGED that the motion for a judgment of foreclosure and sale and to confirm the referee’s report is granted; and it is further. ORDERED that AC 31, LLC is substituted in the place and stead for Plaintiff Berkshire Bank, successor by merger to First Choice Bank, and the caption of the action be amended nunc pro tunc to reflect such substitution; and it is further ORDERED that the caption is amended and shall read as follows SUPRE IE COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK eee manne tence nennn nec eenennnnnnenentananmnnneennnannnnXK, AC 31 Plaintiff “agaist MELISSA FA WE! MARK FPAWER, SANTERDER BANK, N.A., KEY GROWTH INVEST LP, NEW YORK ST; TE DEPARTMENT OF TAXATI AND FINANC! NITED STATES OF AMERICA - INTER! L REVE! SERVICE, BOARD OF MAN RS OF 52 ST END AVENUE CONDOMINIUM, AMK CAPITAL CORP., MRK SALES CORP., Defendants. wane ernnennnee renee snnnerenannennnenene mnanamnnnn anne nnemnn mene xX and it is farther ORDERED that the mortgaged property described in the complaint and as described in this judgment, or such part thereof as may be sufficient to discharge the mortgage debt, the expense of sale and the costs of this action as provided in the RPAPL be sold within | year of this judgment, in one parcel, at a public auction at the New York County Courthouse located at 60 Centre Street, New York. New York under the direction of Craig Justin Albert, Esq.. who is appointed Referee for this purpose: and it is further ORDERED that PRIOR to scheduling publication, Plaintiff shall contact the auction part clerk at sfe-foreclosures@nycourts.gav and obtain consent to place the matter on the auction calendar and thereafier, Plaintiff shall upload the notice of sale to NYSCEF at least 21 days before the sale and the Referee. IF THE AUCTION IS NOT ON THE CALENDAR, then the auction will not go forward: and it is further 860250/2017 BERKSHIRE BANK, SUCCESSOR BY vs. FAWER, MELISSA Page 4 of 8 Motion No, 008 4 of 29 INDEX NO. 850250/2017 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 01/09/2024 ORDERED that the sale shall be conducted in accordance with the annexed New York County Auction Part Rules for Outdoor Auctions. ORDERED that after receiving permission from the Auction Part Clerk, the Referee shall give public notice of the time and place of sale in accordance with RPAPL 231(2) in the New York. Amsterdam News; and the referee need not conduct the sale unless plaintiff shail provide the referee with proof of publication of the notice of sale, and if the sale is adjourned due to plaintiff's failure to provide such proof, then said adjournment shall not be considered at the referee’ s request; and it is further ORDERED that by accepting this appointment the Referee certifies that she/he is in compliance with Part 36 of the Rules of the Chief Judge 22 NYCRR Part 36), including, but not limited to §36.2 (c} (“Disqualifications from appointment”), and §36.2 (d) (“Limitations on appointments based upon compensation”), and, if the Referee is disqualified from receiving an appointment pursuant to the provisions of that Rule, the Referee shall immediately notify the Appointing Judge: and it is further ORDERED that the Referee is prohibited from receiving any funds without compliance with Part 36 of the Rules of the Chief Administrative Judge; and it is further ORDERED that the Referee shall conduct the foreclosure sale only if Plaintiff, its successors and/or assignees or its representatives is present at the sale or the Referee has received a written bid and Terms of Sale from Plaintiff, its successors and/or assigns, or its representatives; and it is farther ORDERED that if the Referee cannot conduct the sale within | year of the date of this judgment, plaintiff must make a motion to extend the time to sell the subject property explaining the reasons for the delay; and it is further ORDERED that at the time of sale the Referee may accept a written bid from the Plaintiff or the Plaintiff's attorney, just as though Plaintiff were physically present to submit said bid; and it is further ORDERED that the Referee shall accept the highest bid offered by a bidder who shall be identified upon the court record, and shall require that the successful bidder immediately execute Terms of Sale for the purchase of the property, and pay to the Referee in cash, certified check or bank check, ten percent (10%) of the sum bid, unless the successful bidder is Plaintiff, in which case no deposit against the purchase process shall be required and it is farther ORDERED that notwithstanding the previous paragraph, the Referee shall have the right to refuse cash payments and require a bank or certified check from the successful bidder and the Referee shall be entitled to qualify bidders and require bidders to show proof of funds before or during the auction; and it is further ORDERED that in the event the first successful bidder fails to execute the Terms of Sale or fails to immediately pay the ten percent (10%) deposit as required, the property shall be immediately reoffered at auction on the same day: and it is further ORDE) ED the Referee shall deposit the down payment and proceeds of sale, as necessary in an FDIC-insured bank where the Referee has an account for that purpose in accordance with CPLR 2609: and it is further 850250/2017 BERKSHIRE BANK, SUCCESSOR BY vs. FAWER, MELISSA Page 5 of 8 Motion No. 008 5 of 29 = INDEX NO. 850250/2017 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 01/09/2024 ORDERED that after the balance of the purchase price is paid or credited and the property is 23 old, the Referee shall execute a deed to the purchaser in accordance with RPAPL 1 and the terms yf sale (which shall be deemed a binding contract); and it is further ORDERED that in the event a party other than Plaintiff becomes the purchaser at the sale, the closing of title shall be held no later than 30 days after the date of such sale; and it is further ORDERED that, pursuant to RPAPL 1353(1), if Plaintiff (or its affiliate as defined in paragraph {a] of subdivision one of section six-1 of the banking law) is the purchaser, the property shall be placed back on the market for sale or other occupancy within 180 days of the execution of the deed of sale or within 90 days of construction, renovation, or rehabilitation of the property, provided that such construction, renovation or rehabilitation proceeded diligently to completion, whichever comes first, provided that this court grants an extension upon a showing of good cause; and it is further ORDERED that the Referee, after receiving the proceeds of the sale, shall pay (from the proceeds) the taxes. essments, sewer rents, or water rates, which are, or may become, liens on the property in accordance with their priority according to law with such interest or penalties which may have lawfully accraed thereon to the date of payment: and it is farther ORDE! -ED that the Referee shall deposit the balance of the proceeds from the sale in his or her own name as Referee in an FDIC-insured bank where the Referee has an account for that purpose and shall make the following payments in accordance with RPAPL 1354 i The Referee’s fees for conducting the sale, which are $1,100.00. Plaintiff shall also compensate the Referee in the sum of $350 for each adjournment or cancellation made on less than two business days’ notice unless the Referee caused the delay All taxes, assessments and water rates that are liens upon the property and monies necessary to redeem the property from any sales for unpaid taxes, assessments or water rates and any other amounts due in accordance with RPAPL 1354(2). The purchaser shall be responsible for interest and penalties accrued after the sale. The Referee shall not be responsible for the payment of penalties or fees pursuant to this appointment. The purchaser shall hald the Referee harmless from any such penalties or fees assessed. The expenses of the sale and the advertising expenses as shown on the bills presented and certified by the Referee to be correct, copies of which shall be annexed to the report of sal The Referee shall also pay to the Plaintiff or its attorneys the following: a. Amount Due from the Referee’s Report: $4,091,749.40, together with interest at the ~ note rate from March 12, 2019, until entry judgment, together with any advances as provided for in the note and mortgage which Plaintiff had made for taxes, insurance, principal, and interest and any other charges due to prior mortgages or to maintain the property pending consummation of the foreclosure sale, not included in the computation upon presentation of receipts for said expenditures to the Referee, and then with interest from the date of entry of this judgment at the statutory rate until the date the deed is transferred 850250/2017 BERKSHIRE BANK, SUCCESSOR BY vs. FAWER, MELISSA Page 6 of 8 Motion No, 008 6 of 29 INDEX NO. 850250/2017 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 01/09/2024 Costs and Disbursements: _ $6,731.38 {to be Hlled in by the Clerk) to Plaintiff for costs and disbursements in this action with interest at the statutory judgment rate from the date of entry of this judgment. c The Court declines to award additional allowance. d Attorneys’ Fees: $218,892.75. 5. Surplus monies from the sale shall be paid into Court by the Referee within five days after receipt in accordance with RPAPL 1354(4): and it is further ORDERED that if Plaintiffis the purchaser of the property, or in the event that the rights of the purchasers at the sale and the terms of sale under this judgment shall be assigned to or be acquired by Plaintiff, and a valid assignment is filed with the Referee, the Referee shall not require Plaintiff to pay in cash the entire amount bid at sale, but shall execute and deliver to Plaintiff or its assignee, a deed or deeds of the property sold upon the payment to said Referee of the amounts specified as 1, 2, and 3 above, and the Referee shall allow Plaintiff to pay the amounts specified in 2 and 3 above when it is recording the deed; that the balance of the bid, after deducting the amounts paid by Plaintiff, shall be applied to the amount due to Plaintiff as specified in 4 above; that Plaintiff shall pay any surplus afer applying the balance of the bid to the Referee, who shall deposit it in accordance with 5 above; and it is further ORDERED that all expenses of recording the Referee’s deed, including real property transfer taxes, which is not a lien upon the property at the time of sale, shall be paid by the plaintiff from the sale proceeds; and it is further ORDERED that Plaintiff may seek to recover a deficiency judgment in accordance with RPAPL 1371 if applicable, and it is further ORDERED that if the property is sold in one parcel in “as is” physical order and condition, subject to any condition that an inspection of the property would disclose; any facts that an accurate survey of the property would show; any covenants, restrictions, declarations, reservations, easements, right of way, and public utility agreements of record, if any; any building and zoning ordinances of the municipality in which the mortgaged property is located and possible violations of same; any rights of tenants or persons in possession of the subject property; prior liens of record, if any, except those liens addressed in RPAPL 1354, any equity of redemption of the United States of America to redeem the property within 120 days from the date of sale, any rights pursuant to CPLR 317, 2003 and S015 or any appeal of the underlying action or additional litigation brought by any defendant or its successor or assignee contesting the validity of this foreclosure; and it is further ORDERED that the purchaser be let into possession of the property upon production in hand of the Referee’s Deed or upon personal service of the Referee‘s deed in accordance with CPLR 308; and it is further ORDERED that Defendants in this action and persons claiming through them and any person possessing a junior interest in the property after the Notice of Pendency was filed are barred and 880250/2017 BERKSHIRE BANK, SUCCESSOR SY vs. FAWER, MELISSA Page 7 of 8 Motion No. 008 7 of 29 INDEX NO. 850250/2017 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 01/09/2024 17 850250 foreclosed of all right, claim, lien, title, and interest in the property after the sale of the mortgaged property; and it is further ORDERED that within 14 days after completing the sale and executing the proper conveyance to the purchaser, the Referee shall file with the clerk a report under oath of the disposition of the proceeds of the sale and upload the report to NYSCEF if it is an e-filed case; and it is further ORDERED that if the purchaser or purchasers at said sale default upon the bid or terms of sale, ihe Referee may re-notice the property for sale with or without prior application to this Court, and the deposit of the recalcitrant bidder forfeited and retained by Plaintiffas liquidated damages; and it is further ORDERED that Plaintiff shall serve a copy of this judgment with notice of entry upon the owner of the equity of redemption, any tenants named in this action, and any other parties entitled to service, including the Referee appointed herein; and it is further ORDERED that nothing herein shall be deemed to relieve Plaintiff of any obligation imposed by RPAPL 1307 or 1308 to secure and maintain the property until ownership of the property has been transferred and the deed duly recorded; and it is further ORDERED that when the Referee files a report of sale, she or he shal! also file a Foreclosure Action Surplus Monies Form and also upload this document to NYSCEF if an e-filed case: and it is further ORDERED that, without further order of the Court, the referee shall be entitled to an additional fee of $950.00 for conducting and attending a closing with a purchaser other than plaintiff, plus, if such a closing is scheduled for the referee’s conference room, then the referee shall be entitled to a reasonable fee for use thereof, without further order of the Court; and it is further identified: A deseription of the premises is annexed hereto as schedule A. 1215/2023 6. Qo TE DATE FRANCIS KAHN, fil, AJ.S.C. my CHECK ONE: CASE DISFOSED sONOFRANCIS A. KAHN segsHI GRANTED Cl DENIED GRANTED IN PART _] OTHER J< APPLICATION: ET TLE ORDER SUBMIT ORDER CHECK iF APPROPRIATE: INCLUDES TRANSFERIREASSIGN x FIDUCIARY APPOINTMENT Cy REFERENCE 9th Jan. Date 2024 Mlen eee Clerk FILED Jan 09 2024 NEW YORK COUNTY CLERK'S OFFICE 880250/2017 BERKSHIRE BANK, SUCCESSOR BY vs. FAWER, MELISSA Page 8 of § Motion No. 008 8 of 29 INDEX NO. 850250/2017 FILED: NEW YORK COUNTY CLERK 01/09/2024 02:41 PM NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 01/09/2024 SCHEDULE “A” THE UNITS KNOWN AS UNIT NOS. 12A, 12C, 14B, AND 14C IN THE BUILDING (BUILDING”) KNOWN AS $2 EAST END AVENUE CONDOMINIUM, LOCATED IN THE BOROUGH OF MANHATTAN, COUNTY OF NEW YORK, CITY AND STATE OF NEW YORK, AND ALSO DESIGNATED AND DESCRIBED AS UNIT NOS, 124, 12C, 14B AND 14C IN THE DECLARATION ESTABLISHING 52 EAST END AVENUE CONDOMINIUM (HEREINAFTER CALLED THE “PROPERTY”) MADE UNDER THE CONDOMINIUM ACT OF THE STATE OF NEW YORK AS AMENDED (ARTICLE 9B OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK), DATED 11/02/1987, AND RECORDED IN THE NEW YORK COUNTY OFFICE OF THE REGISTER OF THE CITY OF NEW YORK, ON 02/03/1988 IN REEL 1359 PAGE 210, AS AMENDED BY CERTIFICATION DATED 05/02/1988 AND RECORDED 12/21/1988 IN REEL 1510 PAGE 90, AS AMENDED BY AMENDMENT TO THE BY-LAWS DATED 04/20/2006 AND RECORDED 05/19/2006 AS CREN 2006000279280, AS AMENDED BY AMENDMENT TO THE BY-LAWS DATED 02/01/2006 AND RECORDED 06/07/2006 AS CRFN 2006000319201, AS AMENDED BY AMENDMENT TO THE BY-LAWS DATED 02/01/2006 AND RECORDED 06/07/2006 AS CREN 2006000319202, AS AMENDED BY AMENDMENT TO THE BY-LAWS DATED 02/01/2006 AND RECORDED 06/07/2006 AS CREN 2006000319203 AND ALSO AMENDED BY AMENDMENT TO THE BY-LAWS DATED 04/04/2006 AND RECORDED 06/07/2006 AS CRFN 2006000319204 (WHICH DECLARATION, AND ANY AMENDMENTS THERETO ARE HEREINAFTER COLLECTIVELY REFERRED TO AS THE “DECLARATION”), THESE RESIDENTIAL UNITS ARE ALSO DESIGNATED AS TAX LOTS 1023, 1025, 1026, AND 1027, RESPECTIVELY, IN BLOCK 1578 ON THE TAX MAP OF THE REAL PROPERTY ASSESSMENT DEPARTMENT OF THE CITY OF NEW YORK AND ON THE FLOOR PLAN OF THE BUILDING, CERTIFIED BY MICHAEL LYNN AND ASSOCIATES, ARCHITECTS, AND FILED WITH THE REAL PROPERTY ASSESSMENT DEPARTMENT OF THE CITY OF NEW YORK AS CONDOMINIUM PLAN NO, 517 AND FILED SIMULTANEOUSLY WITH SAID DECLARATION IN THE SAID OFFICE OF THE REGISTER OF THE CITY OF NEW YORK, COUNTY OF NEW YORK AS MAP NO. 4728 (HEREINAFTER CALLED THE “UNITS”). TOGETHER WITH AN UNDIVIDED 6.9936% INTEREST (AS TO TAX LOT 1623), 6.9936% INTEREST (AS TO TAX LOT 1025), 0.9452% INTEREST (AS TO TAX LOT 1026) AND 0,9936% INTEREST (AS TO TAX LOT 1027) IN THE COMMON ELEMENTS (AS SUCH TERM IS DEFINED IN THE DECLARATION). THE LAND AREA OF THE PROPERTY IS DESCRIBED AS FOLLOWS: ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING IN THE BOROUGH OF MANHATTAN, CITY, COUNTY, AND STATE OF NEW YORK, BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT THE CORNER FORMED BY THE INTERSECTION OF THE SOUTHSIDE OF 82ND STREET AND THE WESTERLY SIDE OF EAST END AVENUE; HARRIS BEACH 2 ATIGRMENS €Y LAY 9 of 29 INDEX NO. 850250/2017 FILED: NEW YORK COUNTY CLERK 01/09/2024 02:41 PM NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 01/09/2024 SCHEDULE “A” continued RUNNING THENCE SOUTHERLY ALONG THE WESTERLY SIDE OF EAST END AVENUE, 31 FEET 2 INCHES; THENCE WESTERLY PARALLEL WITH THE SOUTHERLY SIDE OF 82ND STREET, 85 FEET 4 INCHES; THENCE NORTHERLY PARALLEL WITH THE WESTERLY SIDE OF EAST END AVENUE, 12 FEET 8 INCHES; THENCE EASTERLY PARALLEL WITH THE SOUTHERLY SIDE OF 82ND STREET, 2 FEET; THENCE NORTHERLY PARALLEL WITH THE WESTERLY SIDE OF EAST END AVENU E, 16 FEET 6 INCHES; THENCE WESTERLY PARALLEL WITH THE SOUTHERLY SIDE OF 82ND STREET, 2 FEET; THENCE NORTHERLY PARALLEL WITH THE WESTERLY SIDE OF EAST END AVENUE, 22 FEET TO THE SOUTHERLY SIDE OF 82ND STREET; THENCE EASTERLY ALONG THE SOUTHERLY SIDE OF 82ND STREET, 85 FEET 4 INCHES TO 'THE CORNER, AND THE POINT OR PLACE OF BEGINNING. HARRIS BEACH 3 ATTORNEYS AT Law 10 of 29 = INDEX NO. 850250/2017 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 01/09/2024 Supreme Court, New York County Auction Part Rules for Outdoor Auctions An auction will not go forward if it is not on the Auction Calendar 1, Prior to scheduling publication, the plaintiff and referee shall contact the Auction Part clerk at SFEGC-Forclosures @ SUES CU sourts.gov to place the auction an the auction calendar 2.The Referee and ail interested parties must be present on the scheduled auction date at 2:15 p.m. on the portico at 60 Centre Street, 3. The Terms of Sale must be posted on the portico before the auction begins. The Referee shall afford prospective bidders time to review the Terms of Sale. 4. Athis ar her discretion, the Referee may choose not to accept cash. 5. A successful bidder must have in his/her possession at the tire of the bid the full 10% of the sum bid, in cash (if accepted at the referee's discretion) or certified or bank check to be made payable ta the Referee. §. Ail persons wishing to bid on properties must register with the Referee and provide proof of identification Bidders will be required to stand and state their names at the time the bid is made. 8. Bidders are permitted to use cell phones to communicate with business partners via text messages only. Phone sails and video calls (such as FaceTime, Skype or Teams) are not permitted, No sale will be deemed final until the full 10% deposit has been paid te the Referee and the Terms of Sale have been signed; this must be done immediately following the auction. 10. Ifa successful bidder fails to immediately pay the deposit and sign the Terms of Sale, the property will be promptly re-auctioned the same afternaon. 11. Bidders are cautioned that the failure to furnish the 10% deposit or sign the Terms of Sale after winning an auction may resuit in the loss of future bidding privileges. The Court reserves the right to impose penalties for inappropriate behaviar or other misconduct as it sees fit. 12. Within 10 days of the auction the Referee shall report to the auction clerk via email (S: Forclosures@nycourts.gov) the amount of the successful bid (the purchase price) and the name and address of the successful bidder. 13. Within 10 days of the auction the Referee shail report to the auction clerk via email (SFO- Fo suresi@nycourts. gov) the sale price, the amount awarded in the judgment of foreclosure and COTCIOSUEES sale and the upset price. The clerk shaff record and enter this information in the court's computer system 14, The Referee conducting the sale shall complete a Surpius Monies Form immediately following the sale. Ail information must be completed; if there is no surplus, then that must also be indicated. 15. Within 10 days of the auction, the Referee shall deliver the signed Surplus Monies Form to the auction clerk via email (SFC-Forclosures@nyonurts.cov). The auction clerk shail upload the form to NYSCEF (if an ¢-filed case) or provide it to the County Clerk (if a paper case} 16. All bidders must wear a face mask/shield at all times and social distancing must be observed by ail bidders at all times. Bidders who do not comply with the face mask and/or the social distancing mandate will be removed from the auction. 17. A capy of these rules will be appended to ail Judgments of Foreciosure and Sale 11 of 29 INDEX NO. 850250/2017 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 01/09/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF NEW YORK AC 31, LLC. Index No. 850250/2017 st Choise Bank, Plaintiff, BILL OF COSTS Melissa Fawer Mark Fawer adiaMark-S.Kawer Santander Banky-NoA, Santerder Bank, N.A Key Growth Invest LP JANUARY 09 2024 New York State Department of Taxation and Finance | HEREBY CERTIFY THAT | HAVE ADJUSTED THIS BILL OF COSTS AT United States of America — Internal Revenue Service $6731.38 Board of Managers of 52 East End Avenue Condominium y- AMK Capital Corp. MRK Sales Corp., Defendants. COSTS Costs before Note of Issue is filed, $200.00 CPLR Section 8201, subd 1 CPLR Section 8302(b) 1. 10% of sum not exceeding $200.00 [$20.00] 2. 5% of sum not exceeding $800.00 [$40.00] 3. 2% of sum not exceeding $2,000.00 [$40.00] 4, 1% ofsum not exceeding $5,000.00 [$50.00] 150.00 Add'l allowance CPLR Section 8302(d) 50.00 Total Costs $400.00 DISBURSEMENTS Fee for Index Number, filing of notice of pendency $435.00 CPLR Section 8018(a), Section 8018(d)(6) Section 8021(a)10 Referee's Fee, 350.00 CPLR Section 8301(a) |, Section 8003(a) Paid for searches, 1,026.00 CPLR Section 8301(a)10 Serving copy of Summons and Complaint, 59906 215.00 CPLR Section 8301(d) Request for Judicial Intervention 95.00 Recording of Assignments of Mortgage Filing Additional Notices of Pendency 38:00 70.00 HARRIS BEACH = ATTORNEYS AT LAW 12 of 29 INDEX NO. 850250/2017 (FILED: NEW YORK COUNTY CLERK 0170972024 02:41 PM NYSCEF DOC. NO. 326 RECEIVED NYSCEF 01/09/2024 Filing of Notice of Appeal with First Department S48:00 Appellant’s Opening Brief 354.99 Appendix Fee 3,605.39 Motion filing fees CPLR Section 8301(b) 225:00 180.00 Total Disbursements SUHISTSS 6,331.38 TOTAL SHEERS 6,731.38 STATE OF NEW YORK ) COUNTY OF MONROE ) ss: Attorney's Affirmation The undersigned, an attorney admitted to practice in the Courts of this state, affirms; that she is one of the attorneys of record for the plaintiff in the above-entitled action; that the foregoing disbursements have been or will necessarily be made or incurred in this action and are reasonable in amount. The undersigned affirms that the foregoing statements are true, under penalties of perjury. Dated: September 8, 2023 HARRIS BEACH PLLC FILED Jan 09 2024 NEW YORK Ta. 2-fr COUNTY CLERK'S OFFICE Kevin Tompsett, Esq. HARRIS BEACH PLLC Attorneys for Plaintiff 99 Garnsey Road