Heracles Acquistion Fund X LLC v Bapaz 22 Patchen LLC

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Heracles Acquistion Fund X LLC v Bapaz 22 Patchen LLC 2021 NY Slip Op 32712(U) December 10, 2021 Supreme Court, Kings County Docket Number: Index No. 522105/20 Judge: Lawrence S. Knipel Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 12/16/2021 12:37 PM NYSCEF DOC. NO. 50 INDEX NO. 522105/2020 RECEIVED NYSCEF: 12/16/2021 At an IAS Term, Part Comm 6, of the Supreme Court of the State of New York, held in and for the County of Kings, at the Comthousc, at Civic Center, Brooklyn, New York, on the 10th day of December, 2021. - PRESENT: HON. LAWRENCE KNIPEL, Justice. - - - -- ---- - - " - -- - - - - - -- - - - - - -- - - .;, - - -- - .;, " -- - -'X HERACLES ACQUISJTION FUND X LLC, Plaintiff; - against - Index No. 522105/20 BAPAZ 22 PATCHEN LLC, STEVEN GOLTCHE, BANK OF AMERICA, N.A., AS SUCCESSOR TO NATJONAL FINANCIAL Co., NEW YoRKSTATE DEPARTMENT OF TAXATION AND FINANCE, NEW YORK CITY PARKING VIOLATIONS BUREAU,NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW Y QRK CITY TRANSITADJUDICATfONBUREAU and "JOHN/JANEDOE No: I "through "JOHN/JANE DOE No. 5",the last five names beingfictitious -and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons, corporations, or other entities; if any, having or claiming an interest in or lien upon the premises · described inthe complaint, Defendants. - - --- - - - - .,. - - - -- - - ----- - - - - - - - - - - - - --- - - - -X Thcfollowing e-filed papers read hereii1: NYSCEF Doc Nos. Notice of Motion/Order to Show Cause/ Petition/Cros:. Motion and Affidavits (Affirmations) Annexed. _ _ __ 28~32. 34 Opposing Affidavits (Affi1•11iatkii1s ). _ _ __ 43 35-38 44-47 46-47· Upon the foregoing papers in this commercial foreclosure- actioi1; defendant Bapaz 22 Patchen LLC (Bapaz) moves (in motion sequence [mot. seq.] one) for an. order {1) 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 12/16/2021 12:37 PM NYSCEF DOC. NO. 50 INDEX NO. 522105/2020 RECEIVED NYSCEF: 12/16/2021 precluding plaintiff Heracles Acquisition Fund X LLC (Heracles) frmn presenting any evidence in support of its complaint and directing that all issues be resolved in Bapaz's favor, pursuant to CPLR 3126, based on Heracles' failure to respond to Bapaz's discovery demands, and (2) awarding Bapaz the full costs of this motion, including attorneys' fees and expenses of at least $5,000.00. Defendant Steven Goltche (Goltche) moves (in mot. seq. two) for an order 0) granting him a default judgment against lleracles based oh its faih1re to reply or otherwise respond to Goltchc's counterclaims, and (2) setting this matter down for an inquest on Goltcchc's damages. Heracles cross-moves (in mot. seq. three) for an order, pursuant to CPLR 2004, granting it leave to file a late reply to Goltche's counterclaims. On November 9, 2020, Heracles commenced this action by filing a summons and a complaint seeking to foreclose on a commercial mortgage encumbering the property at 22 Patchen Avenue in Brooklyn (Property}. On February 5, 2021, defendant Bapaz (the alleged borrower) answered the complaint, denied the material allegations therein and asserted affirmative defenses. On March l, 2021, defendants Bapaz and Goltche collectively filed a verified answer to the complaint with counterclaims. On March 3, 2021; defendants Bapaz and Goltche collectively filed an amended verified answer to the complaint in which they denied the material.allegations therein, asserted affitniative defenses and set forth the following eight counterclaims against Heracles: (i) to votd the· loan as unconscionable; ·(2) ·dismissing 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 12/16/2021 12:37 PM NYSCEF DOC. NO. 50 INDEX NO. 522105/2020 RECEIVED NYSCEF: 12/16/2021 "the corriplaint fot lack of .standing; (3) a: declaration that Heracles has rendered defendant's title in the Propetfy tinmarketab,le~ (4) a declaration ,.quieting .title to the Property; (5) estoppel because Herades' is notthe note; .(6) negligence; holder in due course of the- underlying (7) negligence; and (8) violation of New York General Business Law §-349, Heracles failed to _reply t_o or otherwise rcspon.d to deft;!ndantf counterclaims. On June 21, 202 C defendant Bapaz served Heracles with a notice of discovery and inspection ofdo.cuments, the response·s-towhich were due oh July 12, 2021. On July20; 2021, defense. cqtinsel. sent I-Ie1:acle~' counsel ·a "good faith~=' letter inquiring. about ·the discovery requests. On August 1"2, 2021, Bapaz nioved for an order .precluding Heracles from presentir;ig anr cvidenc·e at trial and directing that: all issues ·be resolved; i_n its favor, pursuant to C:PLR 3126, based on Heracles' ''arbitrary and inexcusable. failure .and re.fusal to respond" to its discovery demancis. On October 22, 2021, whiie Bapaz's motion to preclude was j1ending; 1-Ieracles produced the reqµested dociirncnts. Heracles, in opposition,_ submits an attorney- affirmatio_n _asserthig that the. relief requcst~d is unwarranted because ''there has been no preliminary conferertcc scheduled and no Preliminary Conference Order by the Court, the. oocuments were demanded in late June 202.1, and the· Plaintiff has responded to the· discovery demands -on October 22, 2021." thus, Bapaz's motion to preclude has been .reIIdei"cd moot ,since-- H_eracle~ 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 12/16/2021 12:37 PM NYSCEF DOC. NO. 50 INDEX NO. 522105/2020 RECEIVED NYSCEF: 12/16/2021 produced the requested documents. On September 3, 2021, defendant Goltche moved for a defaultjµdgm ent against Heracles based on its failure to reply or otherwisercs pond fo defendants' counterclaims. On October 22, 2021, Heracles cross-1noved; pursuant to CPLR 2004; for an order granting it leave to file a late reply to defendants' counterclaims due to law office failure. Notably, defendants failed to oppose Heracles' crossrnotion. Accorclingly, it is hereby ORDERED that the branch of defendant Bapaz's motion (mot. seq. one) seeking to preclude Heracles, pursuant to CPLR 3126, is denied as moot, and the branch of the motion seeking an award of attorneys' fees is denied as unwarranted; and it is further ORDERED that Heracles' cross motion (mot seq. three) is granted without opposition, and Heracles shall file its reply to defendants' counterclaims within 30 days ofservfoe of this decision and order with notice of entry thereof; and it is further ORDERED that defendant Goltchc's motion (mot. seq. two} is denied as moot. This constitutes the decision and order ofthe court. ENTER , HON: LAWRENCE KNIPEL ADMINISTRATIVE JUDGE 4 4 of 4

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