Bank of Smithtown v 415 W. 150 LLC

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Bank of Smithtown v 415 W. 150 LLC 2012 NY Slip Op 30953(U) April 9, 2012 Supreme Court, New York County Docket Number: 117868/09 Judge: Judith J. Gische 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] 1 [* 2] Supreme Court of the State of Now York County of Now York: Part 10 . . BANK OF SMITHTOWN, Decision/Order Index No*: 1 17888/08 S q N o . : 012 PlalntM, Present: Hon. Judith J. Gische -against- J.S.C. 415 WEST 150 LLC, STATE OF NEW YORK DEPARTMENT OF TAXATION AND FINANCE, DAVID DIAMOND, MJM CONSTRUCTION SERVICES LLC, OUTERBRIDGE PLUMBING GROUP LLC, MAGNUSSON ARCHITECTURE & PLANNING, PC AMERITRANS CAPITAL CORP. and JOHN DOE I 25, TO Defendants. Recitation, as required by CPLR 221B [a], of the papers considered in the revlew of thb (these) rnotion(s): Papem Numbered OSC,JDO affirm, sxhib 1 Notice of Corss-Motlon, CMS affirm, exhibits.................................................................. 2 JDO affir. in opposition, exhib'h ...................................................................................... 3 ~................................................................................................ Upon the foregoing papers the dedslon and order of the court Is as follows: Defendant, 415 West 150 LLC and David Dlarnond (collectively "415 West") move to vacate their default in appearing at a hearing before Referee Miriam Breier on January 18,2012. Plaintiff, the Bank of Smlthtown (the %tank"), has c~oss-movedto: [l] delate rafemnces to 'John Doe Ito 25" from the caption, [2] conflrm Referee Braier's February 2,2012 report; [3] fix attorneys' fees and 1 1 obtain a judgment of 4 fomlosura. The cross-motion Is opposed by 415 West. Page 1 of 5 [* 3] This is an action to foreclose three mortgages which ancumbsr the parcel of real property known by the street add- as 145 West 150 Street, New York, N.Y. Sy decislon and order dated January 3,201 I, court granted summary judgment to the the Bank on all three mortgages and Miriam Marcla Breier, Esq. w s appointed the Referee a to compute the arnounta due. Thereafter, plalnliff moved to ~onfirrn Referaa Brekr s report. By decision and order dated August 26,201 1, that motion was denled. wtthout prejudice, because 415 West had not been p r o p l y notlffed of the date of the hearing. The court directed that a new hearing be held, at which time 415 Weat wuM p m n t p m f and arguments in opposiffon to the Bank s proof of the amounts due. Theraafter, 4 t 5 West was notified of the new date, tlme and location of the Referee s hearing, which was to be held on January 18,2012, 200 p.m. at the office of Referee Breier. Prior to January 18,2012,415 West a counsel moved to be relieved on the basis that it had been notifled by its client that it did not want the firm to act on thelr behalf any longer. By decislon and order, dated January 5,2012, tho court granted the motion to be relieved, but expmssly stated that the ref- hearing scheduled for January 18,2012 would not be stayed, but would procaad. According to J. David OBrien, Esq., 415 West s current attorney, he first met hls client at 11:30 a.m. on the date that the hearing before the Special Referee was to take place. He agreed by noon to represent 415 West. He proceeded to the courthouse, where he believed to hearlng was to take place at 2:OO p.m. that day, only to discovery that the hearing was to take place at another bcatlon. By the time he contactad Refem Bralor, the hsarlng had already besn held. A report was r e n d e d shortly thereafter detailing the amounts due. On February 8,2012, this order to show m u m Page2of 5 . .. . -. [* 4] .. . . - f was premnted to the court for signature. o Since that time, a rnoblon for the appoinhnt of a temporary receiver and t change the name of the plainti to Hamilton Heights Funding LLC has been granted. In order to vacate the default, 415 West Is requid t show both an excusable o default and a meritorious defense. See: CPLR 5015. It has done nelther and the motion to vacate the default before the refbrsa k~ denlad. While this court has no reason to question whether Mr. O'Brkn knew where the referee's hearing was being held, his disnt, 415 West, eWer knew or should have made tt their business to know the l d o n . By January 5,2012, it w clear from the 8 wurt'a ordew that the referee's hearing was going forward, notwithstanding that 415 West had effecttvely discharged their former counsel. its failure to hire a new attorney untll only hours before the hearing, is inexcusable, as is its failure to provlde its new attorney's with appropriate informatlon about the locatlon of the hearing. In any event, there Is simply no showlng that the, amount calculated by Referee Breier is incorrect. In its 'reply" the only argument made that somehow these calculations are wrong i that the bullding is eligible for a 421-a tax abatement which will s dgnificantly reduce #e taxes due. Mr. Dlamond claims that he thought thb applbtion had been previously filed, but acknowledges that It was not complete a8 o the date this f motion was submitted.' Since the reduction In taxes has not yet been .approved," under the terms of the mortgage 415 West remains reaponaible for the full amount of 'The copy of the Davld Dlamond "affidavit"filed wfth the court is neither actually signed not sworn t . Even were it propnrly eubscribed, for the masons set forth in the o decblon, it does not mime any meritorioue defense to the Bank's claims of payments due under the mortgages. Page 3 of 5 [* 5] taxes that are currently payable. In response to the crossmotion 415 West ralses no opposition to the amendment of the caption. Nor does it raise any opposltlon to the daim for attorneys fees or to the entry of a judgment. Its argumenta about the computations made by Rokres Brsier are rejected for the reasons pmviously stated. with respect to the request for attorneys fees, counsel has refend the court to the relevant portions of the mortgage documents which provide that plalnWa counsel fees are to be paid by the mortgagor. Plaintiff s counsel has also provided the court wtth the monthly statements sent to their cllent, detalllng thelr work and the amounts billed. They have provided an affidavit detalllng the experlance of counsel working on the matter. They have calculated the amount of fees that will be nece8sary fo them to bring this matter to its aoncluaion. 415 Weat I dmply allsnt In opposition to these s dahs and submhsions. The crossmotion is, therefore, granted In Its entirety. Conclurlon In accordance herswith it In hereby: ORDERED that the motion to vacate defendanb 415 West 150 LLC and David Diamond s default In appearing at the hearing before Referee Mlrlam Marcla Breier, Esq. is denied, and it Is further ORDERED that the motion to confirm the report of Referee Miriam Marcla Bmier, Esq. dated February 2,201 1, is granted and the report is hereby conflrmed in ail respects, and it is further ORDERED that the caption is amended to delete any references to John Doe 1 Pagt4of 5 [* 6] to 25 " from the caption of the cornplalrlt, and It b further ORDERED that the court hereby awards Solomon & Tannanbaum, PC attorneys fees in the amount o $35,842.89, and it is further f ORDERED that the plaintlff is granted a Judgment of Foredoaum and sale, and plaintiff b directed to settle a judgment, consistent with thls decision, on three d a y notice t all appearing defendants, and It I further o s ORDERED that any requested relief not otherwise granted herein is denied and this constitutes the deckdon and order of the court. Dated: New York, N.Y. April 0,2012 SO ORDERED:

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