Tribeca Lending Corp. v Fersko

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Tribeca Lending Corp. v Fersko 2012 NY Slip Op 30833(U) March 28, 2012 Sup Ct, New York County Docket Number: 100946/09 Judge: Joan M. 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. [* 1] NNED ON4131201 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: I Justice MOTION DATE MOTION SEQ. NO. 4- U3 9 . -$IC I NO. MOTION CAL. were read on this motion tolfor The following papers, numbered 1 to //- , " P4PERS NUryl@ ¬RED Notice of Motiolrl Order to Show Cause Anawering Affidevlts Replying Affidavits - Affidavits - Exhibits .., /" - Exhibits ., - Cross-Motion: I3 Yes No Upon the,Jrforegoing papers, it is ordered that this motion FILED APR 03 2012 NEW YORK COUNTY CLERKS OFFICE Dated: I Check one: I :r MON-FINAL DlSPQSlTBON DO MOT POST r :I REFERENCE @ FINAL DISPOSITION Check if appropriate: r:i J. S. C. SUBMIT ORDEW JUDG. r-1 SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PART : _ _ - - - - - _ - - - - - - - - _ _ - - _ _ _ _ _ _ _ _ _ _ l _ _ _ _ l - - - 8 -X l TRIBECA LENDING C O R P . , Index # Plaintiff, 100946/09 -againstDECISION &ORDER RAYMOND S . FERSKO, MILENA SGARBI FERSKO, SEVEN OAKS PARTNERS, L.P., WASHINGTON MUTUAL BANK, F . A . , NEW YORK CITY PARKING VIOLATIONS BUREAU, Defendant. -X Kenney, J., M., J. Kriss& F e u r s t e i i i LLP Counsel f o r Defendant - Seven Oaka P a r t n e r s , L.P . , et al. 360 Lexington Avenue, Suite 1300 New York, New York 1 0 0 1 7 Sheldon May & Associates, D.C ~ : o u n s e lf o r P l a i i i t i f f 2 2 5 Merrick Road Rockville C e n t e r , NY 13 5 7 0 ( 5 1 6 ) '763-3200 (212) 661-2900 Papers considered in review of these motions: Pagers : 1-9 Affidavit, Exhibits, Affirtnation i.n Opposition and Exhibits APU Numbered: O r d e r To Show Cause, A f f i r m a t i o n , 03 2012 10-16 NEW YORK cow-Y CLERK In this f o r e c l o s u r e action, defendant, Seven Oaks Part8m!CE L.P. (Seven Oaks) and a proposed intervening p a r t y 2 2 1 East 31st S t r e e t Holdings, LLC seeks an Order (a wholly owned subsidiary of Seven Oaks), granting a temporary preliminary injunction, p u r s u a n t to CPLR restraining 6301 e t Order and seq. , e n j o i n i n g plaintiff from conducting a judicial sale of the premises l o c a t e d at 221 East 31"". Street, New York, NY 10016 ( t h e p r o p e r t y ) , which was scheduled pursuant to a Judgment of foreclosure and sale dated June 16, 2 0 0 9 . -1- [* 3] FACTUAL The following commenced in 2009, & facts are uncontested. This action was to foreclose a consolidated mortgage in t h e amount of $ 2 , 6 2 5 , 0 0 0 . 0 0 . defendants PROCEDURAL BACKGROUND The mortgagors, t h e individually named (the F e r s k o s ) , in making their mortgage defaulted payments in or a b o u t December 1, 2 0 0 7 . Seven Oaks, as a secured creditor of the Ferskos had a subordinate mortgage, and was therefore given notice of the commencement of t h e instant action with service of the summons and complaint. This Court granted both an Order of Reference, d a t e d March 22, 2010 and a final Judgment Foreclosure and Sale, dated November 29, 2010. Of The auction was noticed and scheduled to occur on August 17, 2011. None of the defendants appeared in this action, by motion or answer, until the instant motion was filed and served.' Seven Oaks state that it merely wants to stay the judicial sale of the p r o p e r t y "in o r d e r to obtain vacant possession of the [plroperty.. . [and] . . . have an opportunity to adequately market [ t h e property] f o r 31-d a r t y s a l e in o r d e r to maximize the proceeds p f o r a sale." acknowledge This request is made even though movants clearly that their mortgage is legally subordinate to plaintiff's note and mortgage. The sole justification for staying the auction of the property, would be to allow movants to recoup 'Notably, Seven Oaks moves pursuant to CPLR 6301 et seq., rather than CPLR 5015, since vacatur of the default would have been appropriate given t h e procedural posture of the litigation. -2 - [* 4] t h e expenses that w e r e incurred, in attempting to f o r e c l o s e t h e second mortgage It is undisputed that Seven Oaks obtained an amended original judgment had to be amended because Seven Oaks attempted to negotiate a forbearance agreement with the Ferskos, who were at DISCTJSSION and temporary restraining order: A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff s rights respecting t h e subject of the action, and tending t.0 render the judgment ineffectual, or in any action where t h e plaintiff has demanded and would be entitled to a judgment restraining t h e defendant from the commission o r continuance of an a c t , which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. A temporary restraining o r d e r may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable i n j u r y , l o s s or damage will result unless the defendant is regtrained before the hearing can be had. A p a r t y moving for a preliminary injunction must demonstrate -3- [* 5] by clear and convincing evidence ( W . T . Grant Co. v S r o g i , 5 2 N Y 2 d 496 [198ll), (1) a likelihood of success on the merits of t h e underlyi.ng claim; ( 2 ) the prospect of irreparable injury if t h e provisional relief is withheld; and (3) a balance of the equities tipping in its favor ( s e e N o h N e x t Door, LLC v F i n e Arts Hous., Inc., 4 NY3d Cocoziello, 306 839, 840 120051; Olympic Tower Condominium v AD2d 1 5 9 [ l SDept 2003], citing, Doe v Axelrod, 7 3 t NY2d 7 4 8 , 7 5 0 [1988]). This Court finds that Seven Oaks has failed to satisfy the three-pronged test f o r t h e granting of a preliminary injunction nor has it m e t the requisite burden of proof. It is.significant t h a t Seven Oaks hag been unable t o show t h a t the irreparable harm is "'imminent, n o t remote or speculative' (citations omitted). Moreover, ' [eJconomicloss, which is compensable by money damages, does not constitute i r r e p a r a b l e harm' (citations omitted). The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court" (Family-FriendlyMedia, Inc. v Recorder T e l e v i s i o n Network, 7 4 AD3d 7 3 8 Movants cannot j u s t i f y [2"' Dept 2 0 1 0 1 ) . the position that an aggressive sales marketing plan could/would produce a buyer willing to pay a purchase p r i c e t h a t would even begin t o satisfy both mortgages. Therefore, the likelihood of success on t h e merits is v e r y remote. All arguments or contentions not specifically addressed herein have been considered and determined to be -4- without support. [* 6] Consequently, the motion is denied. Accordingly, it is ORDERED that t h e motion seeking injunctive relief is denied and any p r i o r stay(s) are v a c a t e d forthwith; and it is further ORDERED that plaintiff may schedule an auction at any time after service of Notice of E n t r y of this Order; and it is further ORDERED that: in the alternative, in t h e eventr. plaintiff identifies a buyer r e a d y , willing and able to purchase the p r o p e r t y for fair market v a l u e it may proceed with said transaction in lieu of conducting a j u d i c i a l sale. Dated: March 2 8 , 2012 E N T E R : FILED APR 03 2012 NEW YORK COUNTY CLERK'S OFFICE -5-

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