Board of Mgrs. of St. James Tower Condominium v Kutler

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Board of Mgrs. of St. James Tower Condominium v Kutler 2012 NY Slip Op 31042(U) April 16, 2012 Sup Ct, NY County Docket Number: 106826/11 Judge: Saliann Scarpulla 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. NNED ON411912012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY 7 PRESENT: PART Justlce /9 I INDEX NO. MOTION DATE -vMOTION SEQ. NO, MOTION CAL. NO. The folbwlng papers, numbered 1 to were read on thle motlon to/for PAPER$ NUMBERED Notlce of Motion/ Order to S h o h Cause - Affidavlts - Erhlblts ... Answering Affidavlta - Exhlblts Replying Affldavita , Cross-Motion: Yes fl No Upon the foregoing papers, It la qrdered that this rnotlon b3 L u I I= 0 FILED L Ic\pR lam2 NEW Y m K COUNTY CLERKS OFFICE Dated: Check one: I 0 NON-FINAL DISPOSITION DO NOT POST fl REFERENCE FINAL DISPOSITION Check if appropriate: [* 2] Plaintiff, Indcx No.: 106836/1 1 Submission Date: 1 / 18/12 - againstDOROTHEA KU I LER, NEW YORK CI I Y ENVIRONMEN I AL CONTROL BOARD, NEW YORK CJ I Y TRANSIT ADJUDTCATTON BUREACJ, A N D JO11N DOE #1 THKOUGT-1 JOIIN DOE #2, For PlaintiF liobinson Brog L.einwand Greenc Genovcse & Gluck 875 Third Avenue, !Yh Flooi. New York, NY 10022 DECISION AND ORDER For Defcndant Dorolhea Kutler, pro se: Dorotliea I<& 415 East 54 Stroet, Unit 2E Ncw York, NY 10022-5 1 16 ~ APR 19M12 Receiver Roy A. McKcnzie 64 1 Lexington A v ~ I ~ 27 I. lool LI~, Ncw York.NY 10022 NEW YORK COUNTY CLERK S OFFICE HON. SALIANN SCAWULLA, J.: In this action to foreclosc on a licii for nonpayment of coiiiinon charges, defendant Dorothea Kutler ( Kutler ) seeks a temporary restraining order and preliminary in-junction. Plaintiff Board of Maiiagcrs of St. .Tams I owcrCondominium Association ( Board ) coriiinenccd this action in or about June 201 1 to foreclose 011 a licn for nonpayment of common charges by Kutler, the l ec owner of unit 2-E in its condominilmi building. According to the allcgations of thc complaint, on January 25, 20 1 1 the Hoard ~ 1 [* 3] recorded a notice of lien i n the suin of $5,3 8 1.17 for the coininon charges then unpaid and duc from Kutler. The Board maintaincd that the lien was ~ 1 continuing . lien and includcd all amounts due and owing to thc condominium, which at the time ofthe filing of thc coiiiplainl, was $12,402.92. According to the Board, a copy of the noticc o ¬ lien was sent to Kutler by certiiied and regular mail on February 3, 20 1 I , advising Kutler that the lien had been filed and unless payment of the lien was made within one week, the condominium would enforce its rights against Kutler, including coiiiiiienceinent of an action lo foreclose on the lien. Further, by letter notice dated February 25, 20 1 1, a iiincty day notice was sent to Kutler and by lettcr notice dated April 27, 201 1, a thirty day notice was sent to Kutler. The lien was not satisfied, cancelled or dischargcd. The Board sought to foreclose on the lien in the amount of$I2,402.92. I heBoard then subiniited an application for a receiver. In a1 1 order Gled August I7,20 1 1, this Court appointed a receiver on default. On August 19, 20 I 1 , Kutlcr wrote a lellcr to the Board indicating that she had paid all mainteiiance chnrgcs owed from October 20 10 through Julie 20 I 1. The Board responded by lettcr dated August 26, 20 I I advising Kutler that as of July 25, 201 I , she owed the Board $2 1,369.15 for common charges, late fees, operating costs, assessments and legal fees, lcss $10,442.97 received on account for a total due of$10,926.18. Kutler replied by lctter, objecting to the amounts owed. 2 [* 4] By order to show cause, Kutler now secks to restrain and en$ojrithe Board and the receiver from continuing the foreclosure process, and instead, give her an opportunity to present evidence in Iicr defense at a hearing and participate in a settlement conference as required by CYTdR 3408. She also seeks to cn-joiiithe debt collectors from intcrfering with her property rights to licr resid.ence. Kutlcr alleges that she was never served with the original suiiiiiions and complaint and first received the supplemental summons and aiiicnded complaint by inail on August 16, 2011, A day later, she rewived this Court s order appointing n rcceivc r. She also claims that she was nevcr served with the ninety day notjcc. She inaintaim that tlie notice was dated February 25, 201 1, which was tlic timc when her residencc had been infcsted with mold, and she was forced to evacuate and place all of her contents into storagc. Shc firrtlier argues, inter alia, that she made all required payments and that thc Court lacked authority to appoint a rcceivcra2 The Board submits, inter diu,the affidavit of its treasurer Donald 1l:pstein ( Epstein ), who avers that on November 3, 201 1, he and one of-the Board s managcrs met with Kutler to discuss hcr corninon charges account. At that timc, Epstein informed her of hcr outstanding account and Kutler refuscd to pay. Epstein also provides h a t he I Kutler also requests time to hire counsel, Iiowever, the Court noks that at Kutler s first appearance on this order to show causc, the C ourt staycd the proceedings for tlirec weeks, during which time Kutler did not obtain counsel. 2 In January 2012, Kutlcr also submitted an answer to the Board s complaint to the court, in which she alleges various defenses and counterclaiins. 3 [* 5] recently reviewcd Kutlcr s account history and that in addition to the amount clue as uf October 20 I 1, Kutlcr has riot paid the Novembcr 20 I I , December 201 I or January 20 I 2 coim-non charges. Iler account has also accrued legal fees, late fccs, intcrcst and special asscssments lor a total owed of $46,381 . I 6 as of January 10, 2012. l heBoard also submits the affidavit of Timothy Fine ( E ine ),thc executive vice president of the Hoard s managing agent Charlcs 1-1. Grcenthal Manageincnt C h r p . He cxplains that the maiiagemcnt coiiipany is primarily responsiblc for billing cadi unit owner on a monthly basis and maintains a record of the aiiioirnts owed and paid. Fiiic reviewed tkc records relating to Kiitler and maintains that she owes $46,38 I .16. Discussion A preliminary injunction is a drastic reinedy and will only bc grantcd if the movant establishes a clear right to it under thc law and upon thc relevant facts set forth in the moving papers. McGuinn v. City qf New York, 2 19 A.D.2d 489 ( I Dept. 1995). lnjuiictive relief will lit: whcre a inovanl demonstratcs ii likelihood of siicccss on thc merits, a danger or irreparable harm unless the iii.junction is granted and a balance of the ~ 1 ~ ~ The Could also notes that Kuller paid $6,981 4 011 January 16, 2012. [* 6] equities in his or her favor. Aetna Ins. CLJ. Cupasso, 75 N.Y 860 ( I 990); Amarnnt ex v. .2d re/. Mercury Beach-Muid v. Antonio, 197 A.D.2d 432 ( lstDept. 1993). TTere, Kutler does not meet her burden of establishing a clcar right to a preliminary injunction. Her first argument, that she should have been able to participrite in a settlement conference piirsuant to CPLR $3408 is without merit because CPLR 53408 refers to settlement conferences in cases dealing with foreclosures of sub-prime, high cost, and non-traditional home loans, none of which are at issue Iierc. See generally Emigrant Mtge. Co. v. Corcione, 28 Misc. 3d 161 (Sup. Ct. Suffolk Co., 2010). Further, Kutler's claim that the Court lacked the authority to appoint a receiver is without merit. A rccciver is a fiduciary of all the parties interested in the reccivership and an ofkker of the court who acts at its direction and on its behalf. See Comnet Capital CO. v. Spodek, 279 A.D.2d 600 (2ndDcpt. 2001); SchwurlzherLqV , Wl7aZen, 96 A.D.2d 974 (3'" Dept. 1983). At the time the application to appoint a receiver was presented to the court, the court considercd all of the evidence submitted before it and properly determined that a receiver should be appointcd in this case. Kirtler submits no evidence supporting her arglrment that a rccciver should not have been appointed. 5 [* 7] Finally, Kutler s allegation that she made all required payments is belied by the aiXdavils and docuinentaiy cvideiice submitted by the Hoard establishing tlic amounts still owed by her and Epstcin s affidavit in which he explains that when he inct with licr in November 20 1 1, she still refused to pay any amounts owed. In contrast, KLiller submits no material evidence to support her claim that she made all required payments and that the Hoard should be enjoined h i n continuing the foreclosurc process. In accordance with the h e g o i n g , it is hereby ORDERED that defendant Dorothca Kutler s order to show cause seeking a temporary restraining order and preliminary injunction is denicci. This coiistilutes the decision and order of tlic court. Dated: New Y ork, New Y orlc A p r i l f b , 2012 _ - 6 NEW YOHK G O U N CLERK S OFFICE ~

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