Grand Pac. Fin. Corp. v Ashkenazi
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Grand Pac. Fin. Corp. v Ashkenazi 2012 NY Slip Op 30631(U) March 12, 2012 Sup Ct, NY County Docket Number: 100018/09 Judge: Joan Kenney Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. >in Y Y C Y " Y I [* 1] I" I SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY - \I MOTION SEQ. NO. MOTION CAL. The following papers, numbered 1 to NO. = were read on this motion to/for PAPERS NUMBERED Notice of Motion/ Order to Show Cause Answering Affidavits - - Affidavits - Exhibits ... Exhibits Replying Affidavits Cross-Motion: 1 Yes 7 I I No Upon the foregoing papers, it is order Dated: 94* l& Check one: $ FINAL DISPOSITION I 1 NON-FINAL DISW@SlTlON [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PART : 8 Plaintiff, Index # 100018/09 -against- ALEXANDER ASHKENAZI , MURRAY W. BLYTT , ELIYAHU WEINSTETN, PINE PROJECTS, THE NEW YORK crry ENVIRONMENTAL CONTROL, BOARD AND THE NEW YORK CITY P A R K I N G VIOLATIONS BUREAU, Decision & Order Richard K l n s s , Esq. Counsel f o r Movant ( 0 0 4 ) 1 6 Court S t r e e t , 2 g L ' ' F1. Zeichrier E l l i t m i b; Kirause LLP (:ounscl for P l a i n t i E f 5 7 5 Lexington Avcnue New York, N e w Yo1.k 1 . 0 0 2 2 ( 2 1 2 ) 2:!3-0400 301 Merrne~.stei.n, s c l . ( 0 0 5 ) E Uou n D e 1 lo1- dc? f c! I it3 a11 t. :> Alexandr! I A s h k e n a z i 5 5 2 1 New I J t r e c h t A v c n u c : Hrooklyn, NY 11219 ('/le) 4 3 6 - 8 0 9 8 ;/' olidated for decis on. Motion sequences 0 0 4 In this foreclosure action, t h e a ly successful b dder Amit Louzon (Louzon) moves in motion sequence , 004, vacating a Memorandum of S a l e , d a t e d March 2 3 , executed in connection with the auction of a for an Order 2011, that was lien attendant to a condominium unit known as 5D, l o c a t e d a : 2 5 1 West t N e w York, New Motion 89'-n Street, York 10024. sequence (Ashkenazi), moves for: 005, defendant, Alexander Ashkenazi (I) an O r d e r vacating his default in failing to a n s w e r or appear in the instant action; (2) an Order pursuant to CPLR 3211(a) ( 8 ) dismissing t h e instant action because [* 3] this Court lacks jurisdiction due to a failure to p r o p e r l y serve the pleadings, and (3) an Order vacating a stipulation dated December 3 0 , 2009. Factual & Procedural History This action was commenced with the filing of the summons and complaint and notice of pendency on January 2, 2009. The case was commenced by the Board of Managers of The 251 Condominium (the condo), to foreclose a lien for unpaid common charges i n c u r r e d by Ashkenazi, pursuant to Article 6, Section 6 . 2 of the condo by-laws. Ashkenazi never appeared in the action and t h e condo e n t e r e d a default judgment against him on December 30, 2007. This matter proceeded in the usual course with the appointment of a receiver and r e f e r e e to compute. Ultimately, the condominium sold and assigned its perfected lien and this lawsuit to Grand Pacific Finance Corp. (Grand Pacific), Ashkenazi's mortgagee. The condo and G r a n d Pacific executed a stipulation of settlement on November 20, 2009, memorializing the foregoing. The consideration consisted of, i n t e r alia, Grand Pacific paying charges, assessments and attorneys' the outstanding common fees the condo incurred relative to Ashkenazi's default in paying his common charges. Additionally, the Stipulation of Settlement specifically s t a t e d that plaintiff's mortgage lien was not extinguished and would remain a valid lien against the condo unit. The condo's common charge lien was being sold subject to the mortgage owned by -2- [* 4] plaintiff. On June 29, 2010, the final Judgment of Foreclosure and Sale was signed by Stallman, J . . 2011.. T h e hammer T h e auction occurred on March 23, price of the foreclosed lien was $215,000.00. Immediately following t h e auction the r e f e r e e determined that Louzon was the a p p a r e n t successful b i d d e r and Louzon signed a Memorandum of S a l e which states in pertinent p a r t as follows: "On acceptance La] uction, the of a bid at t h e successful bidder . .shall deposit with t h e [r] eferee a t least 1 0 % of the bid p r i c e . . . at t h e t i m e and p l a c e of the [auction]. + _ . . the successful b i d d e r shall pay an additional payment of at least 4 0 % n f the [bid] price no later than March 28, 2011 by bank check . . . TIME IS OF THE ESSENCE, and the balance of the purchase p r i c e in cash or bank check payable to . the [ R l e f e r e e on April 26, 2011 . . . TIME IS OF THE ESSENCE.'' + It . is undisputed that Louzon paid 10% of the hammer price ($215,000.00)or $21,500.00, in cash, to the r e f e r e e on March 2 3 , 2011., and never made any additional payments thereafter. Shortly a f t e r t h e auction, Louzon (through counsel) requested that t h e ($86,000.00) payment or waive this requirement until closing. In support of his application seeking, i n t e r alia, to declare the Memorandum of Sale invalid, Louzon merely s t a t e s that the amount of t h e additional payment is "unconscionable and should n o t be upheld." Louzon merely alleges that an open legal question -3- [* 5] exists regarding the priority of the condo s lien and that of the mortgagee, rhe plaintiff herein. Specifically, Louzon does n o t allege that there was a disparity of bargaining power, or of duress, f r a u d , illegality or mutual mistake. Furthermore, Louzon states that t h e Memorandum of S a l e he signed at t h e auction d i d not i n c l u d e any time of the essence clauses. It is uncontested that on the day of the auction Ashkenzi was represented by c o u n s e l , who announced t o those present that he had j u s t filed pleadings and a lis pendens against t h e condominium unit a b o u t to auctioned. Notably, the foreclosure action was commenced on J a n u a r y 2 , 2009, more than 27 months p r i o r to the auction. Never once during this 2+ year period did Ashkenazi attempt to vacate his default in t h e foreclosure action. Ashkenazi s default in failing to pay the common charges to the condo was never challenged. N o r did Ashkenazi or his counsel ever attempt to challenge any of Hon. Michael Stallman s prior decisions or plaintiff s stipulation with the condo which clearly acknowledges the priority of the condo s lien over the underlying mortgage. Notwithstanding, Ashkenazi s allegation t h a t he was never p r o p e r l y served with process in the originally captioned action brought by the condo to collect it s common charges, not once a f t e r I Ashkenazi s application also seeks to vacate t h e stipulation e n t e r e d i n t o by plaintiff and t h e condo, dated November 2 0 , 2009, without providing any authority for the Court r e g a r d i n g his standing to do s o nor s u p p o r t for his request f o r clarification of the priority of the liens. -4 - [* 6] he s t a t e s , he "found out" about the litigation, did he indicate that he or h: counsel took any steps to assert any rights he might i; have had in t h e action as it proceeded p r i o r to s e t t l e m e n t of t h e claim, via the terms of the stipulation of November 20, 2009.l Ashkenazi b a l d l y states that he intended to pay the common charges p r i o r to the dat,eof any auction of the unit, y e t never reasonably explains why he did not attempt to cure his default before he made the current application. Ashkenazi finally asserts that because the caption changed substituting the instant plainti.ff with the condo, he could n o t ascertain any way to intervene in t h e 1itigat i o n . Plaintiff supports its opposition to both applications with a veritable avalanche of documents refuting every one of t h e factual allegations made by both Louzon and Ashkenazi. DISCUSSION The threshold issue to be determined is whether t h i s Court has properly acquired jurisdiction over Ashkenazi. The affidavit of service referred to in plaintiff's papers states in pertinent part, as follows: 'Ashkenazi's allegation that he was never served with process i.s b e l i e d by the admissions he has made in this action and in a v i r t u a l l y i d e n t i c a l action t h a t w a s dismissed, s e e , A s h e k n a a i v T h e B o a r d of Mngrs. of t h e 251 C o n d o m i n i u m and Grand P a c i f i c F i n a n c e C o r p . , Index # 103530/11, New York County Supreme Court. In an affidavit opposing the motion to dismiss Ashkenazi admitted to seeing the pleadings h e r e i n and to defaulting in this action -5- [* 7] Deponent went t o subject premises [Ashkenazi's r e s i d e n c e ] and spoke with a person of suitable age and discretion. Deponent was advised that [Ashkenazi] was not available. Deponent left legal process with the person who answered the door - CPLR 3 0 8 states in pertinent p a r t as follows: Personal service upon a natural p e r s o n shall be made by any of the following methods: 1. by delivering t h e summons within the state to the person to be served; or 2 . by delivering the summons within the state to a person of suitable age and discretion at t h e actual place of business dwelling p l a c e or usual place of abode of t h e p e r s o n to be served and by either mailing the summons to the person to be served at his or h e r last known residence I ... . A p r o p e r l y e x e c u t e d affidavit of service raises a presumption that a proper mailing occurred ( s e e , Enyel v Lichterman, 6 2 N Y 2 d 943, 945 [l9841). A s h k e n a z i has failed to rebut this presumption. Any factual issues in relation to the service of the summons and complaint have been on the papers resolved submitted, t h u s obviating t h e necessity for any hearing; as the mere denial of receipt is insufficient to rebut the presumption of delivery (Quantum Heating S e r v i c e s I n c . v A u s t e r n , 100 AD2d 8 4 3 , Dept 19841; s e e also, Edelman, 165 AD2d 7 0 6 , Roseman 707 Colin [lNL Dept Freund L e w i s 19901). & 844 [2"' Cohen v. Defendant's mere denial of receipt by mail at his home, without f u r t h e r probative -6- [* 8] f a c t s , is i.nsuf ficient to overcome the presumption of delivery, which a t - t a c h e s to a p r o p e r l y mailed l e t t e r (see, Colon v Beekman D o w n t o w n Hospital, 11.1 AD2d 841 [2nd Dept 19851). Ashenazi s self-admitted intentional default does not satisfy the basic vacatur requirements set f o r t h in CPLK 5015(a), which states i n p e r t i n e n t part as follows The court which rendered a judgment or order may relieve a party from it upon such terms as may be j u s t , on motion of any interested person with s u c h notice as the court may direct, upon the ground of: (1) excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving p a r t y , or, if the moving p a r t y has entered the judgment or o r d e r , within one year after such entry; or (2) newly-discovered evidence which, if introduced at t h e trial, would probably have produced a different result and which could not have been discovered in time to move f o r a new t r i a l under section 4 4 0 4 ; or (3) f r a u d , misrepresentation, or o t h e r misconduct of an adverse party; or ( 4 ) lack of jurisdiction to render the judgment or order; or (5) reversal, modification or v a c a t u r of a p r i o r judgment or order upon which it is based. Here, there is no issue as to default, newly-discovered evidence, fraud, misconduct, lack of jurisdiction, reversal, or vacatur of a prior judgment or order. Thus, the branch of his motion which seeks t o vacate his failure to a p p e a r , which resulted in his default pursuant to CPLR 5015, must be denied. The parties do not dispute that the memorandum of sale is a binding legal contract between the r e f e r e e appointed by Hon- -7- [* 9] Michael S t a l l . m a n , and Louzon. It is hornbook law t h a t one who enters i n t o a written agreement is bound by i t absent fraud or o t h e r wrongful conduct on t h e p a r t of the other contracting party, not alleged h e r e . The parties a r e presumed to know the contents of the agreements they have signed ( S u p e r i o r Officers Council H e a l t h & W e l f a r e Fund v Empire, 8 5 AD3d 6 8 0 [ l R t Dept 20111 Fiore~iti~io Assoc. v Green, 85 AD2d 419, 4 2 0 c i t i n g Imero [lHL Dept 1 9 8 2 1 ) . A person is usually bound by a c o n t r a c t which he or s h e signs even though h i s o r h e r mind never gave assent to the terms expressed t h e r e i n . An individual who signs or a c c e p t s a written contract, in the absence of fraud or other wrongful acts on t h e part of t h e other contracting p a r t y , is conclusively presumed to know its contents and to assent to them (Imero, s u p r a , at 420). Louzon s alternate theory in s u p p o r t of his motion also lacks any foundation in the law or facts of this case. Louzon contends that the payment of 408; of t h e hammer price p r i o r t o closing is unconscionable without p r o v i d i n g the Court with any authority to support his argument. Whether a requirement that t h e purchaser shall pay 40% on p r i o r to closing is so unreasonable as Eo justify a r e s a l e depends upon the surrounding circumstances. ( S e e , Pm-tnoy v. Hill, 10 Misc2d 1004, 1007 [NY SUP 1 9 5 6 1 ) In t h e case at bar, taking into consideration such surrounding circumstances as t h e pending foreclosure action of the f i r s t mortgage, t h e existence of real estate tax liens amounting to -a- [* 10] approximately $118,000.00, and additional liens t h a t had already been reduced to judgments totaling about $2,800.00, it cannot be said that the referee's determination to require a deposit of 40% additional payment b e f o r e closing was unreasonable. Nor was the price paid for the [lien] at the foreclosure sale s o low as to shock t h e conscience of t h e court; (NyCTL-1 Trust v Liberty Bay Realty C o ~ p,. 21 AD3d 1013, 1015 [2d Dept 2 0 0 5 1 ) . Louzon's motion is timely because s u c h a motion must be made within one year after any s a l e made pursuant to a judgment or o r d e r , but not thereafter. This Court, upon such terms as may be j u s t , may s e t a s i d e a judicial sale for failure to comply with the requirements of the civil practice law and rules as to the notice, time or manner of such sale, or if a substantial right of a party was prejudiced by the defect ( s e e , CPLR here ยง2003). None of t h e foregoing has occurred ~ Finally, Louzon argues that the stipulation between the condo and platntiff h e r e i n should be vacated. The Court has considered this allegation and determines that the record before this C o u r t is devoid of any factual or legal support for such a contention. He p a r t y cannot r e l y upon his own ignorance of a condition in the contract which he could have discovered using ordinary care, e . g . , not reading the contract or "not remembering TIME OF ESSENCE" (P. k'. Development, I n c . v. E l v e m Development Corp. , 2 2 6 A - D . 2 d 2 0 0 [1"'Dept 1 9 9 6 1 ) . Consequently, and for the reasons set clauses -9- [* 11] forth above, both motion sequences 0 0 4 and 0 0 5 a r e denied in t h e i r entirety. Any argument not addressed h e r e i n was considered and deemed inadequate. Accordingly it is, ORDERED t h a t the motions are denied in their entirety. Dated: March 12, 2012. E N T E R : V-J &h. ' 'Joan. Kenney -10-
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