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
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Supreme Court of the State of Now York
County of Now York: Part 10
BANK OF SMITHTOWN,
Index No*: 1 17888/08
S q N o . : 012
Hon. Judith J. Gische
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,
Recitation, as required by CPLR 221B [a], of the papers considered in the revlew of thb
OSC,JDO affirm, sxhib
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:
delate rafemnces to 'John Doe Ito 25" from the caption, 
Braier's February 2,2012 report;  fix attorneys' fees and 1 1 obtain a judgment of
fomlosura. The cross-motion Is opposed by 415 West.
Page 1 of 5
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
Bank on all three mortgages and Miriam Marcla Breier, Esq. w s appointed the Referee
to compute the arnounta due. Thereafter, plalnliff moved to ~onfirrn
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
. .. .
was premnted to the court for signature.
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
default and a meritorious defense. See: CPLR 5015. It has done nelther and the
motion to vacate the default before the refbrsa k~
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
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
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
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
decblon, it does not mime any meritorioue defense to the Bank's claims of payments
due under the mortgages.
Page 3 of 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
dahs and submhsions.
The crossmotion is, therefore, granted In Its entirety.
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
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
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
ORDERED that any requested relief not otherwise granted herein is denied and
this constitutes the deckdon and order of the court.
New York, N.Y.