Preview
INDEX NO. 150855/2014
(FILED: NEW YORK COUNTY CLERK 0172972014)
NYSCEF DOC. NO. 1 RECEIVED NYSCEF 01/29/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
anne enn enn ne nn nena nee ncenneennenenenmennennen
IN THE MATTER OF THE APPLICATION OF
300 E79 LLC INDEX NO.;
FOR AN ORDER OF CANCELLATION OF RECORD A
SATISFACTION OF MORTGAGE PURSUANT TO. PETITION TO CANCEL
NEW YORK REAL PROPERTY LAW §329 SATISFACTION OF MORTGAGE
“X OF RECORD
Michael Messi, an attorney duly admitted to practice law for the State of New York, hereby affirms the
truth of the following statements under the penalties of perjury:
1 Tam a partner in the law firm of Swidler & Messi LLP, attorneys for 300 E 79 LLC
(hereinafter referred to as the “Petitioner”) in connection with this Petition and, as such, lam
fully familiar with the facts and circumstances presented in this Petition based on a file
maintained in my office.
2. Petitioner seek an Order of this Honorable Court:
a. Declaring that certain Satisfaction of Mortgage, dated 2/29/2012, executed and
delivered for filing by BANK OF AMERICA, N.A. and recorded on 9/26/2012 in the
Office of the County Clerk of NEW YORK County in City Register File No.
2012000382702 against the premises located at 300 East 70" Street, Unit 9B, New
York, New York 10075 known and designated on the New York County Tax Map as
Block: 1453 Lot(s):1021, void and invalid, thereby reinstating that certain Mortgage
(A) dated 5/4/2010, made by WILLIAM R. SHANE and GAIL M. SHANE to
BANK OF AMERICA, N.A. in the original principal sum of $1,000,000.00, recorded
on 9/17/2010 in City Register File No. 2010000314825; and
Directing NEW YORK County Clerk’s Office to cancel of record that certain
Satisfaction of Mortgage, dated 2/29/2012, executed and delivered for filing by
BANK OF AMERICA, N.A. and recorded on 9/26/2012 in the Office of the County
Clerk of NEW YORK County in City Register File No. 2012000382702 against the
premises located at 300 East 70" Street, Unit 9B, New York, New York 10075
known and designated on the New York County Tax Map as Block:1453
Lot(s):1021, as if same had never been filed, thereby reinstating that certain
Mortgage (A) dated 5/4/2010, made by WILLIAM R. SHANE and GAIL M.
SHANE to BANK OF AMERICA, N.A. in the original principal sum of
$1,000,000.00, recorded on 9/17/2010 in City Register File No. 2010000314825;
Recently, the William R. Shane and Gail M. Shane, the partners of Ten Twenty LP, the sole
member of Petitioner, applied to Bank of America, N.A, for a loan to refinance the mortgage
currently encumbering the Premises.
In the course of reviewing the Petitioner’s mortgage, it was revealed by the title company
handling the proposed refinance transaction that BANK OF AMERICA, N.A. had
erroneously filed a satisfaction of mortgage of the Petitioner, notwithstanding the fact that the
Petitioner currently has an outstanding mortgage loan with BANK OF AMERICA, N.A. that
has not been satisfied. When the Petitioner attempts to close this refinance, the Petitioner
would lose the benefit of Section 255 of the New York State Tax Law.
The provisions of Section 255 of the New York State Tax Law permits the Petitioner to pay a
substantially reduced mortgage tax in connection with their pending refinance transaction,
based on a mortgage tax credit available to them which is computed on the outstanding
principal balance of any recorded mortgage on the Premises.
Without the relief requested, the Petitioner would be stripped of this benefit, and would be
forced to pay thousands of dollars in additional mortgage tax, thereby negating the whole
purpose of their pending refinance transaction.
Pursuant to provisions of Real Property Law §329, an owner of any real property or of any
undivided part thereof may maintain an action to have any recorded instrument in writing
relating to such real property or interest therein declared void or invalid, or to have some
canceled of record as to said real property, or his undivided part thereof or interest therein.
Though the provisions of Real Property Law §329 use the word “action” in order to obtain
the required relief thereunder, this matter is being brought before this Court as a special
proceeding on the following bases:
a. Only the Petitioner has an interested in the Premises; and
b ‘The only other party with an interest in the outcome of this proceeding is the Lender,
which supports the instant Petition, illustrated by their supporting affidavit attached;
and
No party would be prejudiced by this matter being treated as a special proceeding,
instead of as an action; and
There is no other remedy in the law available to the Petitioner for the relief requested;
and
If the Petitioner were to proceed in this matter by “action”, there would be aplaintiff
(.e., the Petitioner), but no defendant.
This Court has the authority to consider this matter as a special proceeding, instead of as an
action, as:
“a party may sometimes make a mere motion for relief that technically requires a
special proceeding, or vice versa. If no prejudice is demonstrated, it was held that
a like conversion may be allow.” Siegel, New York Practice, Fourth Edition,
citing Empire Mutual Ins. Co, v. Palladino, 54 A.D.2d 863 (1" Dept. 1976).
10. For these reasons, and for the reason that the CPLR ‘shall be liberally construed to secure the
just, speedy and inexpensive determination of ever civil judicial processing (which includes
actions and special proceedings collectively)’, CPLR §105, Petitioner respectfully requests
that this Honorable Court consider this matter as a special proceeding, notwithstanding the
use of the word “action” in Real Property Law §329.
i The Petitioner’s interest in the Premises was established by deed, and their interest is not in
questions or dispute. Annexed hereto and made a part hereof as “Exhibit A” is a true and
correct copy of the current deed to the Premises reflecting the ownership interest of
Petitioner.
12, In supports of this Petition, annexed hereto and made a part hereof as “Exhibit B” are the
Affidavits of the general partners of the sole member of the Petitioner.
13. This Court has jurisdiction over this matter as the Premises constitute real property located in
the jurisdictional limits of State of New York, County of NEW YORK.
14 One 2/29/2012, Bank of America, N.A. caused to be filed a Satisfaction of Mortgage of the
following consolidated mortgage (hereinafter referred to as the “Mortgage”):
Mortgage (A) dated 5/4/2010, made by WILLIAM R. SHANE and GAIL M. SHANE to
BANK OF AMERICA, N.A. in the original principal sum of $1,000,000.00, recorded on
9/17/2010 in City Register File No. 2010000314825.
15. The Satisfaction of Mortgage was dated 2/29/2012, executed and delivered for filing by
BANK OF AMERICA, N.A. and recorded on 9/26/2012 in the Office of the County Clerk of
NEW YORK in City Register File No. 2012000382702 against the Premises (hereinafter
referred to as the “Satisfaction”.
16. A true and correct copy of the Satisfaction is annexed hereto and made a part hereof as
“Exhibit C”.
17 The filing of the Satisfaction by BANK OF AMERICA, N.A. was erroneous, as the Mortgage
was not satisfied.
18 The Satisfaction should not have been presented for recording by BANK OF AMERICA,
N.A..
19. In support hereof, annexed hereto and made a part hereof as “Exhibit D” is the Affidavit of
David Owens, Vice President of BANK OF AMERICA, N.A.
20. Petitioner desires to have this Honorable Court declare the Satisfaction void, invalid and
canceled of record. A copy of the proposed Order is annexed hereto as “Exhibit E.”
21 Other than the interests of the Petitioner, and that of the Lender, no other person, firm, entity
or municipal authority is affected by this Petition and the relief requested herein.
22. Petitioner respectfully requests an Order of this Court:
a. Declaring that certain Satisfaction of Mortgage, dated 2/29/2012, executed and
delivered for filing by BANK OF AMERICA, N.A. and recorded on 9/26/2012 in the
Office of the County Clerk of NEW YORK County in City Register File No.
2012000382702 against the premises located at 300 East 70" Street, Unit 9B, New
York, New York 10075 known and designated on the New York County Tax Map as
Block:1453 Lot(s):1021, void and invalid, thereby reinstating that certain Mortgage
(A) dated 5/4/2010, made by WILLIAM R. SHANE and GAIL M. SHANE to
BANK OF AMERICA, N.A. in the original principal sum of $1,000,000.00, recorded
on 9/17/2010 in City Register File No. 2010000314825; and
Directing NEW YORK County Clerk’s Office to cancel of record that certain
Satisfaction of Mortgage, dated 2/29/2012, executed and delivered for filing by
BANK OF AMERICA, N.A. and recorded on 9/26/2012 in the Office of the County
Clerk of NEW YORK County in City Register File No. 2012000382702 against the
premises located at 300 East 70" Street, Unit 9B, New York, New York 10075
known and designated on the New York County Tax Map as Block:1453
Lot(s):1021, as if same had never been filed, thereby reinstating that certain
Mortgage (A) dated 5/4/2010, made by WILLIAM R. SHANE and GAIL M.
SHANE to BANK OF AMERICA, N.A. in the original principal sum of
$1,000,000.00, recorded on 9/17/2010 in City Register File No. 20100003 14825;
23. Notice of the request for the relief herein has been given to the NEW YORK County Clerk’s
Office, by E-Filing a copy of the Petition and supporting Affidavits upon which this Petition
is based.
24. No previous application for the relief sought herein has been made.
Dated: New York, New York
January 4 _, 2014 C2
Ce
Michael Messi
Swidler & Messi LLP
Attorney for Petitioner(s)
WILLIAM R. SHANE AND GAIL M. SHANE
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INDEX NO. 150855/2014 (FILED: NEW YORK COUNTY CLERK 0172972014) NYSCEF DOC. NO. 1 RECEIVED NYSCEF 01/29/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK anne enn enn ne nn nena nee ncenneennenenenmennennen IN THE MATTER OF THE APPLICATION OF 300 E79 LLC INDEX NO.; FOR AN ORDER OF CANCELLATION OF RECORD A SATISFACTION OF MORTGAGE PURSUANT TO. PETITION TO CANCEL NEW YORK REAL PROPERTY LAW §329 SATISFACTION OF MORTGAGE “X OF RECORD Michael Messi, an attorney duly admitted to practice law for the State of New York, hereby affirms the truth of the following statements under the penalties of perjury: 1 Tam a partner in the law firm of Swidler & Messi LLP, attorneys for 300 E 79 LLC (hereinafter referred to as the “Petitioner”) in connection with this Petition and, as such, lam fully familiar with the facts and circumstances presented in this Petition based on a file maintained in my office. 2. Petitioner seek an Order of this Honorable Court: a. Declaring that certain Satisfaction of Mortgage, dated 2/29/2012, executed and delivered for filing by BANK OF AMERICA, N.A. and recorded on 9/26/2012 in the Office of the County Clerk of NEW YORK County in City Register File No. 2012000382702 against the premises located at 300 East 70" Street, Unit 9B, New York, New York 10075 known and designated on the New York County Tax Map as Block: 1453 Lot(s):1021, void and invalid, thereby reinstating that certain Mortgage (A) dated 5/4/2010, made by WILLIAM R. SHANE and GAIL M. SHANE to BANK OF AMERICA, N.A. in the original principal sum of $1,000,000.00, recorded on 9/17/2010 in City Register File No. 2010000314825; and Directing NEW YORK County Clerk’s Office to cancel of record that certain Satisfaction of Mortgage, dated 2/29/2012, executed and delivered for filing by BANK OF AMERICA, N.A. and recorded on 9/26/2012 in the Office of the County Clerk of NEW YORK County in City Register File No. 2012000382702 against the premises located at 300 East 70" Street, Unit 9B, New York, New York 10075 known and designated on the New York County Tax Map as Block:1453 Lot(s):1021, as if same had never been filed, thereby reinstating that certain Mortgage (A) dated 5/4/2010, made by WILLIAM R. SHANE and GAIL M. SHANE to BANK OF AMERICA, N.A. in the original principal sum of $1,000,000.00, recorded on 9/17/2010 in City Register File No. 2010000314825; Recently, the William R. Shane and Gail M. Shane, the partners of Ten Twenty LP, the sole member of Petitioner, applied to Bank of America, N.A, for a loan to refinance the mortgage currently encumbering the Premises. In the course of reviewing the Petitioner’s mortgage, it was revealed by the title company handling the proposed refinance transaction that BANK OF AMERICA, N.A. had erroneously filed a satisfaction of mortgage of the Petitioner, notwithstanding the fact that the Petitioner currently has an outstanding mortgage loan with BANK OF AMERICA, N.A. that has not been satisfied. When the Petitioner attempts to close this refinance, the Petitioner would lose the benefit of Section 255 of the New York State Tax Law. The provisions of Section 255 of the New York State Tax Law permits the Petitioner to pay a substantially reduced mortgage tax in connection with their pending refinance transaction, based on a mortgage tax credit available to them which is computed on the outstanding principal balance of any recorded mortgage on the Premises. Without the relief requested, the Petitioner would be stripped of this benefit, and would be forced to pay thousands of dollars in additional mortgage tax, thereby negating the whole purpose of their pending refinance transaction. Pursuant to provisions of Real Property Law §329, an owner of any real property or of any undivided part thereof may maintain an action to have any recorded instrument in writing relating to such real property or interest therein declared void or invalid, or to have some canceled of record as to said real property, or his undivided part thereof or interest therein. Though the provisions of Real Property Law §329 use the word “action” in order to obtain the required relief thereunder, this matter is being brought before this Court as a special proceeding on the following bases: a. Only the Petitioner has an interested in the Premises; and b ‘The only other party with an interest in the outcome of this proceeding is the Lender, which supports the instant Petition, illustrated by their supporting affidavit attached; and No party would be prejudiced by this matter being treated as a special proceeding, instead of as an action; and There is no other remedy in the law available to the Petitioner for the relief requested; and If the Petitioner were to proceed in this matter by “action”, there would be aplaintiff (.e., the Petitioner), but no defendant. This Court has the authority to consider this matter as a special proceeding, instead of as an action, as: “a party may sometimes make a mere motion for relief that technically requires a special proceeding, or vice versa. If no prejudice is demonstrated, it was held that a like conversion may be allow.” Siegel, New York Practice, Fourth Edition, citing Empire Mutual Ins. Co, v. Palladino, 54 A.D.2d 863 (1" Dept. 1976). 10. For these reasons, and for the reason that the CPLR ‘shall be liberally construed to secure the just, speedy and inexpensive determination of ever civil judicial processing (which includes actions and special proceedings collectively)’, CPLR §105, Petitioner respectfully requests that this Honorable Court consider this matter as a special proceeding, notwithstanding the use of the word “action” in Real Property Law §329. i The Petitioner’s interest in the Premises was established by deed, and their interest is not in questions or dispute. Annexed hereto and made a part hereof as “Exhibit A” is a true and correct copy of the current deed to the Premises reflecting the ownership interest of Petitioner. 12, In supports of this Petition, annexed hereto and made a part hereof as “Exhibit B” are the Affidavits of the general partners of the sole member of the Petitioner. 13. This Court has jurisdiction over this matter as the Premises constitute real property located in the jurisdictional limits of State of New York, County of NEW YORK. 14 One 2/29/2012, Bank of America, N.A. caused to be filed a Satisfaction of Mortgage of the following consolidated mortgage (hereinafter referred to as the “Mortgage”): Mortgage (A) dated 5/4/2010, made by WILLIAM R. SHANE and GAIL M. SHANE to BANK OF AMERICA, N.A. in the original principal sum of $1,000,000.00, recorded on 9/17/2010 in City Register File No. 2010000314825. 15. The Satisfaction of Mortgage was dated 2/29/2012, executed and delivered for filing by BANK OF AMERICA, N.A. and recorded on 9/26/2012 in the Office of the County Clerk of NEW YORK in City Register File No. 2012000382702 against the Premises (hereinafter referred to as the “Satisfaction”. 16. A true and correct copy of the Satisfaction is annexed hereto and made a part hereof as “Exhibit C”. 17 The filing of the Satisfaction by BANK OF AMERICA, N.A. was erroneous, as the Mortgage was not satisfied. 18 The Satisfaction should not have been presented for recording by BANK OF AMERICA, N.A.. 19. In support hereof, annexed hereto and made a part hereof as “Exhibit D” is the Affidavit of David Owens, Vice President of BANK OF AMERICA, N.A. 20. Petitioner desires to have this Honorable Court declare the Satisfaction void, invalid and canceled of record. A copy of the proposed Order is annexed hereto as “Exhibit E.” 21 Other than the interests of the Petitioner, and that of the Lender, no other person, firm, entity or municipal authority is affected by this Petition and the relief requested herein. 22. Petitioner respectfully requests an Order of this Court: a. Declaring that certain Satisfaction of Mortgage, dated 2/29/2012, executed and delivered for filing by BANK OF AMERICA, N.A. and recorded on 9/26/2012 in the Office of the County Clerk of NEW YORK County in City Register File No. 2012000382702 against the premises located at 300 East 70" Street, Unit 9B, New York, New York 10075 known and designated on the New York County Tax Map as Block:1453 Lot(s):1021, void and invalid, thereby reinstating that certain Mortgage (A) dated 5/4/2010, made by WILLIAM R. SHANE and GAIL M. SHANE to BANK OF AMERICA, N.A. in the original principal sum of $1,000,000.00, recorded on 9/17/2010 in City Register File No. 2010000314825; and Directing NEW YORK County Clerk’s Office to cancel of record that certain Satisfaction of Mortgage, dated 2/29/2012, executed and delivered for filing by BANK OF AMERICA, N.A. and recorded on 9/26/2012 in the Office of the County Clerk of NEW YORK County in City Register File No. 2012000382702 against the premises located at 300 East 70" Street, Unit 9B, New York, New York 10075 known and designated on the New York County Tax Map as Block:1453 Lot(s):1021, as if same had never been filed, thereby reinstating that certain Mortgage (A) dated 5/4/2010, made by WILLIAM R. SHANE and GAIL M. SHANE to BANK OF AMERICA, N.A. in the original principal sum of $1,000,000.00, recorded on 9/17/2010 in City Register File No. 20100003 14825; 23. Notice of the request for the relief herein has been given to the NEW YORK County Clerk’s Office, by E-Filing a copy of the Petition and supporting Affidavits upon which this Petition is based. 24. No previous application for the relief sought herein has been made. Dated: New York, New York January 4 _, 2014 C2 Ce Michael Messi Swidler & Messi LLP Attorney for Petitioner(s) WILLIAM R. SHANE AND GAIL M. SHANE