Rimbambito LLC v Reyes

[*1] Rimbambito LLC v Reyes 2012 NY Slip Op 50459(U) Decided on March 12, 2012 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 12, 2012
Supreme Court, Queens County

Rimbambito LLC and BNH XI LLC, Plaintiff,

against

Lilia Reyes, et al., Defendants.



1140/2011



For Plaintiffs: Harry Zubli, Esq., 1010 Northern Blvd., Great Neck, New York 11021

For Defendant Adriane Padilla: Heller, Horowitz & Feit, P.C., by Eli Feit and Joseph S. Schick, Esqs., 292 Madison Ave., New York, NY 10017

For Defendants Lilia Reyes and Santiago Manlapaz: American Services Legal Group, by Feng Li, Esq., 291 Broadway, New York, NY

For Defendant Pasquale Iannella: Luis Echeverria, Esq., 50-60 69th St., Woodside, New York 11377

Charles J. Markey, J.

This is a motion by plaintiffs for an order confirming the referee's report and granting a judgment of foreclosure and sale and a cross motion by the defendant Adriane Padilla requiring the Referee to pay over from the proceeds of the foreclosure sale any surplus monies directly to Adriane Padilla to the extent of her money judgment together [*2]with statutory interest to the date of payment.

The Court notes, as an initial matter, that neither the Court's appointed receiver, Scott Gary Kaufman, Esq., of Crowley & Kaufman, PC, nor the Court's appointed referee, Jason S. Vishnick, Esq., of Vishnick & Vishnick, were served with any of the motion papers by any of the parties to this litigation. Failure to serve the court-appointed fiduciaries is improper.

Plaintiffs commenced this action by filing a copy of the summons and complaint with notice of pendency on January 14, 2011. Plaintiffs seek to foreclose on the subject real property known as 65-14 Roosevelt Avenue, Woodside, in Queens County, New York, to secure repayment of a note, evidencing a loan in the original principal amount of $347,000 with interest, extended to Lilia Reyes and Santiago Manlapaz, as record owners, by Greenpoint Mortgage Funding, Inc.

On July 12, 2011, this Court granted the plaintiffs summary judgment and an Order of Reference appointing Jason S. Vishnick, Esq., as Referee to compute the amount due to the plaintiffs. The referee determined that, as of August 31, 2011, the plaintiffs are owed the sum of $380,420.77 with interest.

By order dated August 23, 2011, and entered on September 2, 2011, the Court appointed Scott Gary Kaufman, Esq., as receiver for the property.

The plaintiffs now move to confirm the referee's report and for an order of judgment and foreclosure. The motion by the plaintiffs to confirm the referee's report and for an order of judgment and foreclosure is granted.

The defendant Adrianne Padilla has cross moved for an order directing that the referee pay over from the proceeds of the foreclosure sale any surplus money directly to her. The defendant Padilla is the holder of a judgment against the defendants Lilia Reyes and Santiago Manlapaz in the amount of $95,194.20. That judgment was docketed in Queens County Clerk's Office on October 27, 2010.

A judgment lien that is cutoff by foreclosure of a mortgage attaches to any surplus monies arising out of the foreclosure. A judgment creditor does not have to wait for the confirmation of the report of sale to make an application to obtain surplus monies (RPAPL 1361[1]). Here, however, there are numerous defendants in the action, and the defendant Padilla failed to show whether or not any other defendant or other party has a recorded lien against the property.

If another party has a recorded lien against the property, then, pursuant to RPAPL 1361(3), that party is entitled to notice of any hearing on disposition of surplus money. This Court must first ascertain the amount due to her or any other person who has a lien on the surplus monies and the priority of any liens and then order a distribution of the surplus monies (RPAPL 1361[2]).

The cross motion is denied without prejudice and with leave to re-file a motion to appoint a referee to ascertain and report the amount due to the defendant Padilla or any other person who has a lien on the surplus moneys, the priority of the liens and [*3]distribution of the surplus monies, on notice to any party who has a recorded lien against the property in accordance with RPAPL 1361(3).

In the future, all parties are directed to serve copies of motion papers on both Mr. Kaufman, the court-appointed receiver, and Mr. Vishnick, the court-appointed referee.

By decision and order of even date, the motion by defendant Reyes for reinstatement of the mortgage is being denied without prejudice for failure to include an affidavit of service and for failure to serve the aforementioned court-appointed fiduciaries.

Settle order.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

March 12, 2012