Board of Mgrs. of St. James Tower Condominium v
2012 NY Slip Op 31042(U)
April 16, 2012
Sup Ct, NY County
Docket Number: 106826/11
Judge: Saliann Scarpulla
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SUPREME COURT OF THE STATE OF NEW YORK
- NEW YORK COUNTY
-vMOTION SEQ. NO,
MOTION CAL. NO.
The folbwlng papers, numbered 1 to
were read on thle motlon to/for
Notlce of Motion/ Order to S h o h Cause - Affidavlts - Erhlblts
Answering Affidavlta - Exhlblts
Upon the foregoing papers, It la qrdered that this rnotlon
NEW Y m K
COUNTY CLERKS OFFICE
0 NON-FINAL DISPOSITION
DO NOT POST
Check if appropriate:
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,”
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:
415 East 54”’Stroet, Unit 2E
Ncw York, NY 10022-5 1 16
Receiver Roy A. McKcnzie
64 1 Lexington A v ~ I ~ 27“’ I.‘lool
Ncw York.NY 10022
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
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
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
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$10,926.18. Kutler
replied by lctter, objecting to the amounts owed.
By order to show cause, Kutler now secks to restrain and en$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
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.
In January 2012, Kutlcr also submitted an answer to the Board’s complaint to the court, in
which she alleges various defenses and counterclaiins.
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.
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
likelihood of siicccss on thc
merits, a danger or irreparable harm unless the iii.junction is granted and a balance of the
The Could also notes that Kuller paid $6,981
equities in his or her favor. Aetna Ins. CLJ. Cupasso, 75 N.Y 860 ( I 990); Amarnnt ex
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.
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.
New Y ork, New Y orlc
A p r i l f b , 2012
G O U N CLERK‘S OFFICE