Somekh v 434 W. 154th St. Realty Inc.

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Somekh v 434 W. 154th St. Realty Inc. 2012 NY Slip Op 30682(U) March 14, 2012 Supreme Court, New York County Docket Number: 110995/2009 Judge: Joan A. Madden 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY J.S.C. PRESENT PART Ii Justice - - Index Number : 110995/2009 SOMEKH, NlSSlM INDEX NO. VS. 434 WEST 154TH ST. SEQUENCE NUMBER : 002 - MOTION DATE MOTION SEQ. NO. - JUDGMENT OF FORECLOSURE: AND SALE ...... The following papers, numbered Ito Notice of MotionlOrder to Show Cause Answerlng Affidavits Replying Affldavlts , were read on this motion t o h r IW s ) . IWd. IW S ) . - Amdnvlts - Exhibits - Exhiblts Upon the foregoing papers, it is ordered that this motion is k p , J.S.C. 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ....................A......MOTIOM 1%: 3. CHECK IF APPROPRIATE: ................................................ % $ E /: DISPOSED 1 1 GRANTED r I DO NOT POST .r. 1DENIED 7 1 SETTLE ORDER 7 0 NON-FINAL D@R$IFION -f*. L-1 GRANTED IN PART 1 OTHEP q L 1 SUBMIT ORDER FIDUCIARYAPPOINTMENT I I REFERENCE [* 2] At Part - J-I-of LIIC ~iipl-cix~e Court ol'l~ie State of Ncw York held in and for llic Coirnty o f New HON. JON+!A. MADDEN - lndcx No.: 110905/2009 JXJDG Mli'NT OF FORECLOSUFU AND SALK Wl1'lJ Plainti ITS. - against 434 WEST 154T1-I ST.REALI'Y INC., MICHAEL GIBSON, NEW YORK S'l'ATE DEPAR'I'MEN'T OF 'rAXA'llON ANT) FINANCE, NEW YORK CITY LNV111(3NMENTAL CON'I'ROL BOARD, LIEPT. OF 1-JOUSINC; PRESERVATION 9r DEVEJ,OPMENT, MIJ REALTY, I,I,C, CAKON GIBSON, MIC'A GIBSON, JOSEPH KNIGHT d/b/a B. KNIGHT OR D A Y CLEANING SERVICES, MTClTAEL C. GIBSON, OLT 1 9 2011 PART 11 FOKECl A B U R E OF: 434 West 154'" Street Ncw York. New York BLOCK: 2068 LOT: 41 Dcfendants. UPON the Sumiiimis, Vcrified Complaint and Nolicc of Pcndency duly filed in this action on August 3, 2009, the Order of Reference dalcd Janualy 7, 201 I , thc Nolicc of Motion dated -. September 27, 201 I and all proceedings thereon; and upon the Affirination of DAVID M. NAMM, dated (klober 19, 2010 i~i.siipportof lhc Order or Rcferencc and showing that all ofthe Ucfendants hei-ein have bccn duly scrved with the Summons and Verified Complaint iii this action, or have voliintarily appcarcd personally or by their Icspcctivc attoriicys, ;ind stating that morc than (20) twcnty dL1ys had elapsed siiicc saicI Ddcendants wcrc so scrvccl andlor nppcared; and that None of tlic Ekfcnclnnts having servccl at) aiiswcr to thc nlbresaicl Verilicd Coinplaint, nor had their time t o do s o hecii cstendcd; wid that the Veriliud Coiiiplaiii~ 1ici.ein atid due Notice of Pendcncy [* 3] containing all the particulars reqnircd to be statcd herein was duly iiled in llic O r h e of the Clerk of the Couitty o f N e w York 011 August 3 , 2009, and has not been ariiendcd to add new parlies or to enibracc real properly no1 described in the original C'onipluint and a Refcree having bcen duly appointed to coriiputc thc arnoirnt duc to the Plriiritirf upon thc notc and mortgage sct rodj i n tlie Verified Cnmpl;iit~tand to exaniint: arid rcpoi-l wlicther the niorlgaged premises call he sold in parcels; AND on reading and iiling the Report or CAROL I,ILIENL;'EI,D, ESQ., lhe Kcferee named i n said Ordcr of Rcfcrence to Uoinpulc, by which Report, dated May I 1, 201 I attached hereto, il ppears that tlie suin of $830,000.00, logetlicr with intcrest thercon at thc defaiill rate of 24.00% per -of annurn from February 2 7 , w Ihrough mid including April IS, 20 11 in the amount of $625,11 5.00 is duc 3 ( ' and owing; and that the mortgagcd prcmiscs should be sold in one p a r d -5 IC NOW, upon proof of duc notice of this application upon all parties who lind not waived samc, and upon proof of service of the Ordcr of Refercnce as providcd thcrein, P ON MOTION O F DAVJD M. ORDERED, that lhe motion ORDERED, ADAJDGED ANI) DEC'REISD, Lhat the rcporl of the Rercree, CAICOI, LIT,IENFELL), ESQ., dated May 1 1, 20 11, he and licrehy is in all respects ratified and confirmed; and it is Tu rtlier ORDEKED, ADnJDGKD AND DECREED, thal the above-described mortgaged premiscs or such part thereof as iiiay be sufikient to discharge lhc rnortgagc debt, the expenses ofthe sale and the costs of this parcel, at public 2:' ' iL York, New York, on any Wedncsday, espcct for holidays, at 4 4 4 P.M., by and under the direction or T/5 IC ' CAROJ, l~lLlF~NFF~l,D, who is hereby appointed Refcree for that purpose; aiid that said Rcfcree, LSQ.; on thc date of such sale shrill report with a copy of this .Tudginent to thc Moliorl Support Office, Koorii , . 2.. f,01 L*r , 19, at 12:30 I'M so the sale iiiay procced promptly at 1"BI> pin; that said Kcfer;ec sliall sct tlie dnts of sale I [* 4] OIU)ERED, An.JUDGED AND I)EClW,EJl, that said 1kkrt.c shall accept at such sale tlic highest bid offered by a responsiiblc bidder, who slid1 be ideiititicrl upon the court record, m d shall require that such successful bidder immediatcly pay to the Referee in cash or certified or bank chcck payablc to such Rcferce, tcn ( 1 0%) perccnt of the mi11 bid and shall execute Terms of Sale for the piirchase of tlie preniises, iiiilcss such successful biddcr is the plaintiff herein, in which casc no deposit against the purchase price shall be rcquired; and it is fui-ther OWEKEL), ADJUDGED ANI) DECREED, th;it iii the evcnt the iiirsl successful bidder fails to inimediritcly pay llie ten (10%) pcrcenl deposit as provided herein or jails to cxecute tlie Teniis of Sale imruediately following the bidding upon the suljcct propcrty, thc property shall thercaftcr immediately, on the saiiie day, be rcoffered at auction; and it is fLtrtRet- ORDEREn, ADJUDGEU AND DECREED, that the closing of title shall take place at the oftice of Ilie Kcfercc or at such othcr location as thc Rcferee shall cictermine, within forty-fivc (45) days after siich salc unless otherwise stipulated by 311 parties. l he liefcrce shall transfer titlc only lo thc successfiil bidder a t the nuclion. Any delay or ac!journment of the closing datc beyond tlic forty-five (45) days may bc stipulated among the parties, with the Referee s consent, up to ninety (90) d3ys from h e date of sale, but any atijouriimetit beyond ninety (90) days may be ngrced ollly with thc approval of this Courl; and it is rtlrther ORL)F,RED, ADJUDGED AND DECREED, that the Referee deposit all funds received iirsuant to this Order in his/her own iiam as Refcree < . . 71 ORUEImD, ADJUDGED AND DECHEEI), said Kcferce on receiving the proceeds of I [* 5] altorney for the t laintil l~s in addition to costs, with interest t l ~ ~ e o n the date hercof;] arid also the froill sum of $1,455,1 15.00, the arnount reportcd due as aforesaid, together with iiitercst thereon pursuant to the t e r m of thc Note from May 1 1, 20 1 1, the date intcrest was calculated to in said Report, to the date of entry of this ordcr and thereafter at the statutory post judgment ratc to the date of transfer of title, or so inuch thcreof as the purchase money of the mortgage premises will pay of the same, - t e g e h ~ 4 & * Q intcresl and any other chargcs due to prior rnortgages, or to maintain the prcmises pcntling consuinmatio~~ of the foreclosure sale not prcviously included in the computation and upon prescntation of receipts for said expenditures to the Referee, all together with intcrest thereon pursuant t o the note and mortgage as above providcd. Copies of such receipts shall be anncxed to the Referee s lieport of Sale. ORDF,KF,L), ADJUDGEI) AND DECREED that if the Plaintiffs are the purcliaser of the mortgaged premises at said sa ik or if the rights of the purchaser shall be assigned to and acquired by the Plainliffs, and a valid assignment thereof is filed with the Referee), the Referee sliall not reqtiire thc Plaintirfs to pay in caqh the entire amount bid at thc sale, but shall execute and deliver l o the Plaintiffs a deed of the mortgaged premises sold lipon payment to the Referee of the amounts specified above in clauses I IRST , SECOND , and T111Rn if such expenses wcre paid by the Referee or i n lieu oftllc payment of said last mentioned arnounts, upon filing with thc Referee receipts o f the propcr governmental \ mlhorities showing the paymcnt thereof. The balance of the amount bid, after deducting tliercfroni the aforesaid payments to the Rcferce for coinpcnsation and expenses, taxes, assessntcnts, sewer rents, water riites and priority licns o f a city agency shall be allowed to the Plaintiffs arid applied by said Rcferce upon the aiiioiirits due to the Plaintiffs as specified above in item marked FOCJKTII . If, after so applying the balaiicc of the ainoiiiit bid, therc shall bc 3 surplus over and above said amoiints r h c to the Plaintifrs, the Pluintiffs shall pay to the Referee upon delivery to the Plaintiffs of the Kcfcrce s deed the amount of such surplus [which shall be applied by the Referce upon rriotioii madc pursuant t o RI AI L, 5 1351(3) nud proof satisfactory lo lhe ReTcrec of the sums duc tl~ercon,to any subordinate mortgage duly recorded [* 6] - .-. -. . . . 0 ,.. ... . . _, , . - - . - ~ - . -- . - . . . against the properly pursuant to RPAPL $ 1354(3), which paymcnt s l d l he rcportcd in thc Rclkrcc s Report o r Sdc.] Any S U I ~ I L I S remaiiliiig al tcr all payments as herein provided shall bc dcpositcd into Court in accordance will1 Kl APL $ 1354(4) and the Referee shall iiimedialcly give notice o f such surplus to the owner ol the mol-lgagcd premises as identified by Plaintiff at the tiriic of the snlc; and it is fwther ORDERED, AL)NX)C:EI) AND DECREED, that the Kcfcrce shall take the reccipt of the Plaiiitiffs or the attorney for the Plaintiffs for the amounts paid as directed in item FOTJRl ll above, and file it with the Report of Sale of the Refcrcc. The licfcree shall deposit the surplus iiioneys, if any, with the New York County C:lcrk within five ( 5 ) days after the same shall be reccived unless such period be dcumed cxtcrided by the filing of an application for additional compensation as set forth herein, to the credit of this action, to be wittidrawn only on an order o r this Court signed by a Justice of this Court. The Kefercc shall make ;i report of such sale under oath showing tlie disposition o r the proceeds of the salc and accompanied by the vouchers of the persons to whom payments were made, and shall file the Keport . . of Sale with the oftice of the New York County Clerk -d.ulst-imwithin thirty (30) days after completing the sale and executing thc proper convcyance to the purchaser or within thirty ( 3 0 ) days of the dccision of thc Court with respcct to ally application for additional compcnsation; and it is ftirthcr ORDERED, IIl)JZTP)C:EL) AND DECREED, that if tlic proceeds of the salc are jnsuflicienl lo pay thc amount reporled due to the Plaintiffs and tlie expenses of the sale, interest, costs and allowances, tlic Plaintiffs may recovcr from the Defendants, 434 WEST 154 1 11 ST. REALTY INC. and MlCHAEL GIBSON, the whole dcficicrlcy or so much thereof as this Court may detcrniine to bcjust , and equitable of the residue of the dcbt remaining unsatisfied after a sale of the mortgaged premises and t h e applicntiori of t-he procceds thereof, provided B motion for a deficiency j i i d p e t i t shall be made ns prcscrihcd by Section 1371 o r l h c Real Propel-ty Actions and Procecdiiigs Law within ninety (90) days of thc delivery of the deed hy the Kdcrcc, rind the arnount thereof is detmnined mid awarded by :in order of t h i s Court BS provided for i i i said action, and it is fwther C-)RDEKED, AI)JTJDGEl) AND I)ECRJIF,D, that thc prch;iscr(s) at said sdc be let illto possession on prodtiction or delivciy ortlic Referee s Lkcd or Ileerls; and il is furtlicr I [* 7] I _,,, ~ . ., . ,... . .,..- . .. , -- .-... - . . . . . -_ . , . . . . . .. ,, -. ., . - I.I . ORDEJWT),AD.lUllGE11 AN11 DEC:RJi;EI), that each and all of the .Lkfenda:its i n this action and all pcrsons clniiiiing iriidcr them or any of thcm, after thc tiling of such Notice or Pendency uf this action, ht: arid the miie hcreby are forcvcr barred arid forccloscd of all ~-ight, h h , lien, titlc, interest, c rind equity o f redemption in said inoi-tgaged prcmises and every part thereof; and it' is fw-tlier CJRDEIUW, ADJUDGED AND I)ECW,ED, that the mortgagcd preniiscs is to he sold in oiic parcel in "as is" physical order and condition, s u b j s t to any state of facts than an inspcction ofthe morlgagcd premises would disclosc, any slate of facts that an accurate survey o f thc irlortgagcd Immises would show, any covcnants, rcstrictiuns, declarations, reservations, cascmcnls, righls of way and public utility agrecments of record, if aiiy, and any building and zoning ordinances o f governmcntal authorities and possihlc violations thereof, any rights of tenants or persons in possession of h e mortgaged prcmises, prior licns of record, if any, except those liens addrcsscd in Section 1354 ofthe Rcal Property Actions and Proceedings Law, and any equity of rcdeniption of the 1Jiiited Statcs o f Atncrica to redeem the mortgaged ,/-' premises within one Iiundred tweiity (120) days from the date of sale.,- . i-----p-4-&l&, ~ ~ L L m m - ; -#i3F&W&~4I&.-fk~41~ OKllERED, that the Kcferee appointed herein is sub-ject to thc requirements o f Rule 36.2 of the CXeT Judge, and ifthc Rcfkrce is disqualified from receiving appointment pursuant to provisioiis o C .--.r -- - '- . .I [* 8] -...- - . . , ,, . . .. . I ,.- - ... . - .-- . Said prciiiises commonly known as 434 West 154 Streel, New York, New York. A description of said morlgngcd prernises is annescd hereto and made a pari hcreof as Sclicdule A. ENTEK. ---- J.S .C:. J.S.C.

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