ZDG, LLC v 174-176 1st Ave. Owner LLC

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ZDG, LLC v 174-176 1st Ave. Owner LLC 2022 NY Slip Op 34405(U) December 27, 2022 Supreme Court, New York County Docket Number: Index No. 652020/2022 Judge: Arlene P. Bluth 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. INDEX NO. 652020/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/27/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ARLENE P. BLUTH Justice ---------------------------------------------------------------------------------X ZDG, LLC, INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 14 652020/2022 12/23/2022 001 -v174-176 1ST AVENUE OWNER LLC,MQ CONSULTING, LLC,PINNACLE BUILDING MAINTENANCE INC.,STERLING NATIONAL BANK DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 were read on this motion to/for JUDGMENT - DEFAULT . Upon the foregoing documents, it is ORDERED that plaintiff’s motion for a default judgment is granted on default and the Clerk is directed to enter judgment in favor of plaintiff and against defendant 174-176 1st Owner LLC in the amount of $320,438.25 plus interest from April 29, 2022 with respect to the first cause of action for breach of contract along with costs and disbursements upon presentation of proper papers therefor; and it is further ORDERED that the branch of the motion to foreclose the mechanic’s lien is granted on default and the property shall be sold in accordance with Lien Law § 43 (referencing that the sale of a property in an action to foreclose a mechanic’s lien is governed by the RPAPL); and it is further 652020/2022 ZDG, LLC vs. 174-176 1ST AVENUE OWNER LLC ET AL Motion No. 001 [* 1] 1 of 8 Page 1 of 8 INDEX NO. 652020/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/27/2022 ORDERED that the mortgaged property described in the complaint and as described in this judgment, or such part thereof as may be sufficient to discharge the mortgage debt, the expense of sale and the costs of this action as provided in the RPAPL be sold within 90 days of this judgment, in one parcel, at a public auction at the New York County Courthouse located at 60 Centre Street, New York, New York under the direction of Thomas Kleinberger, (411 5th Avenue, Floor 9, New York, New York 10016, (917-326-5523), who is appointed Referee for this purpose; and it is further ORDERED that prior to scheduling publication, the plaintiff shall contact the auction part clerk at sfc-foreclosures@nycourts.gov and obtain consent to place the matter on the auction calendar and plaintiff shall upload a notice of sale to NYSCEF at least 21 days before the sale; and it is further ORDERED that the Referee shall give public notice of the time and place of sale in accordance with RPAPL 231(2) in the New York Law Journal; and the referee need not conduct the sale unless plaintiff shall provide the referee with proof of publication of the notice of sale, and if the sale is adjourned due to plaintiff’s failure to provide such proof, then said adjournment shall not be considered at the referee’s request; and it is further ORDERED that the auction shall take place in accordance with the applicable auction part rules in effect on the date of the auction; and it is further ORDERED that by accepting this appointment the Referee certifies that he is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to §36.2 (c) (“Disqualifications from appointment”), and §36.2 (d) (“Limitations on appointments based upon compensation”), and, if the Referee is disqualified from receiving an appointment pursuant to the provisions of that Rule, the Referee shall immediately notify the 652020/2022 ZDG, LLC vs. 174-176 1ST AVENUE OWNER LLC ET AL Motion No. 001 [* 2] 2 of 8 Page 2 of 8 INDEX NO. 652020/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/27/2022 Appointing Judge; and it is further ORDERED that the Referee is prohibited from accepting or retaining any funds for herself/himself or paying funds to him/herself without compliance with Part 36 of the Rules of the Chief Administrative Judge; and it is further ORDERED that the Referee shall conduct the foreclosure sale only if Plaintiff, its successors and/or assignees or its representatives is present at the sale or the Referee has received a written bid and Terms of Sale from Plaintiff, its successors and/or assigns, or its representatives; and it is further ORDERED that if the Referee cannot conduct the sale within 90 days of the date of this judgment, plaintiff must make a motion to extend the time to sell the subject property explaining the reasons for the delay; and it is further ORDERED that at the time of sale the Referee may accept a written bid from the Plaintiff or the Plaintiff’s attorney, just as though Plaintiff were physically present to submit said bid; and it is further ORDERED that the Referee shall accept the highest bid offered by a bidder who shall be identified upon the court record, and shall require that the successful bidder immediately execute Terms of Sale for the purchase of the property, and pay to the Referee in cash, certified check or bank check, ten percent (10%) of the sum bid, unless the successful bidder is Plaintiff, in which case no deposit against the purchase process shall be required and it is further ORDERED that notwithstanding the previous paragraph, the Referee shall have the right to refuse cash payments and require a bank or certified check from the successful bidder and the Referee shall be entitled to qualify bidders and require bidders to show proof of funds before or during the auction; and it is further 652020/2022 ZDG, LLC vs. 174-176 1ST AVENUE OWNER LLC ET AL Motion No. 001 [* 3] 3 of 8 Page 3 of 8 INDEX NO. 652020/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/27/2022 ORDERED that in the event the first successful bidder fails to execute the Terms of Sale or fails to immediately pay the ten percent (10%) deposit as required, the property shall be immediately reoffered at auction on the same day; and it is further ORDERED the Referee shall deposit the down payment and proceeds of sale, as necessary in an FDIC-insured bank where the Referee has an account for that purpose in accordance with CPLR 2609; and it is further ORDERED that after the balance of the purchase price is paid or credited and the property is sold, the Referee shall execute a deed to the purchaser in accordance with RPAPL 1353 and the terms of sale (which shall be deemed a binding contract); and it is further ORDERED that in the event a party other than Plaintiff becomes the purchaser at the sale, the closing of title shall be held no later than 30 days after the date of such sale; and it is further ORDERED that, pursuant to RPAPL 1353(1), if Plaintiff (or its affiliate as defined in paragraph [a] of subdivision one of section six-1 of the banking law) is the purchaser, the property shall be placed back on the market for sale or other occupancy within 180 days of the execution of the deed of sale or within 90 days of construction, renovation, or rehabilitation of the property, provided that such construction, renovation or rehabilitation proceeded diligently to completion, whichever comes first, provided that this court grants an extension upon a showing of good cause; and it is further ORDERED that the Referee, after receiving the proceeds of the sale, shall pay (from the proceeds) the taxes, assessments, sewer rents, or water rates, which are, or may become, liens on the property in accordance with their priority according to law with such interest or penalties which may have lawfully accrued thereon to the date of payment; and it is further 652020/2022 ZDG, LLC vs. 174-176 1ST AVENUE OWNER LLC ET AL Motion No. 001 [* 4] 4 of 8 Page 4 of 8 INDEX NO. 652020/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/27/2022 ORDERED that the Referee shall deposit the balance of the proceeds from the sale in his or her own name as Referee in an FDIC-insured bank where the Referee has an account for that purpose and shall make the following payments in accordance with RPAPL 1354: 1. The Referee’s fees for conducting the sale, which are $2,500. Plaintiff shall also compensate the Referee in the sum of $350 for each adjournment or cancellation made on less than two business days’ notice unless the Referee caused the delay. 2. All taxes, assessments and water rates that are liens upon the property and monies necessary to redeem the property from any sales for unpaid taxes, assessments or water rates and any other amounts due in accordance with RPAPL 1354(2). The purchaser shall be responsible for interest and penalties accrued after the sale. The Referee shall not be responsible for the payment of penalties or fees pursuant to this appointment. The purchaser shall hold the Referee harmless from any such penalties or fees assessed; 3. The expenses of the sale and the advertising expenses as shown on the bills presented and certified by the Referee to be correct, copies of which shall be annexed to the report of sale. 4. The Referee shall also pay to the Plaintiff or its attorneys the following: a. Amount Due from the Referee’s Report: $320,438.25 plus interest from April 29, 2022. 652020/2022 ZDG, LLC vs. 174-176 1ST AVENUE OWNER LLC ET AL Motion No. 001 [* 5] 5 of 8 Page 5 of 8 INDEX NO. 652020/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/27/2022 b. Costs and Disbursements: ________________________ (to be filled in by the Clerk) to Plaintiff for costs and disbursements in this action with interest at the statutory judgment rate from the date of entry of this judgment; c. The Court declines to award additional allowance. 5. Surplus monies from the sale shall be paid into Court by the Referee within five days after receipt in accordance with RPAPL 1354(4); and it is further ORDERED that if Plaintiff is the purchaser of the property, or in the event that the rights of the purchasers at the sale and the terms of sale under this judgment shall be assigned to or be acquired by Plaintiff, and a valid assignment is filed with the Referee, the Referee shall not require Plaintiff to pay in cash the entire amount bid at sale, but shall execute and deliver to Plaintiff or its assignee, a deed or deeds of the property sold upon the payment to said Referee of the amounts specified as 1, 2, and 3 above, and the Referee shall allow Plaintiff to pay the amounts specified in 2 and 3 above when it is recording the deed; that the balance of the bid, after deducting the amounts paid by Plaintiff, shall be applied to the amount due to Plaintiff as specified in 4 above; that Plaintiff shall pay any surplus after applying the balance of the bid to the Referee, who shall deposit it in accordance with 5 above; and it is further ORDERED that all expenses of recording the Referee’s deed, including real property transfer taxes, which is not a lien upon the property at the time of sale, shall be paid by the plaintiff from the sale proceeds and are recoverable as a cost of litigation; and it is further ORDERED that Plaintiff may seek to recover a deficiency judgment in accordance with RPAPL 1371 if applicable; ORDERED that if the property is sold in one parcel in “as is” physical order and condition, subject to any condition that an inspection of the property would disclose; any facts 652020/2022 ZDG, LLC vs. 174-176 1ST AVENUE OWNER LLC ET AL Motion No. 001 [* 6] 6 of 8 Page 6 of 8 INDEX NO. 652020/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/27/2022 that an accurate survey of the property would show; any covenants, restrictions, declarations, reservations, easements, right of way, and public utility agreements of record, if any; any building and zoning ordinances of the municipality in which the mortgaged property is located and possible violations of same; any rights of tenants or persons in possession of the subject property; prior liens of record, if any, except those liens addressed in RPAPL 1354, any equity of redemption of the United States of America to redeem the property within 120 days from the date of sale, any rights pursuant to CPLR 317, 2003 and 5015 or any appeal of the underlying action or additional litigation brought by any defendant or its successor or assignee contesting the validity of this foreclosure; and it is further ORDERED that the purchaser be let into possession of the property upon production in hand of the Referee’s Deed or upon personal service of the Referee’s deed in accordance with CPLR 308; and it is further ORDERED that defendants in this action and persons claiming through them and any person possessing a junior interest in the property after the Notice of Pendency was filed are barred and foreclosed of all right, claim, lien, title, and interest in the property after the sale of the subject property; and it is further ORDERED that within 14 days after completing the sale and executing the proper conveyance to the purchaser, the Referee shall file with the clerk a report under oath of the disposition of the proceeds of the sale and upload the report to NYSCEF; and it is further ORDERED that if the purchaser or purchasers at said sale default upon the bid or terms of sale, the Referee may place the property for resale without prior application to this Court unless Plaintiff’s attorney elects to make such an application; and it is further 652020/2022 ZDG, LLC vs. 174-176 1ST AVENUE OWNER LLC ET AL Motion No. 001 [* 7] 7 of 8 Page 7 of 8 INDEX NO. 652020/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/27/2022 ORDERED that Plaintiff shall serve a copy of this judgment with notice of entry upon the owner, any tenants named in this action, and any other parties entitled to service, including the Referee appointed herein; and it is further ORDERED that nothing herein shall be deemed to relieve Plaintiff of any obligation imposed by RPAPL 1307 or 1308 to secure and maintain the property until ownership of the property has been transferred and the deed duly recorded; and it is further ORDERED that when the Referee files a report of sale, she or he shall also file a Foreclosure Action Surplus Monies Form and also upload this document to NYSCEF if an efiled case; and it is further ORDERED that, without further order of the Court, the referee shall be entitled to an additional fee of $1,200 for conducting and attending a closing with a purchaser other than plaintiff, plus, if such a closing is scheduled for the referee’s conference room, then the referee shall be entitled to a reasonable fee for use thereof, without further order of the Court. The property is commonly known as 174-176 First Avenue, New York, New York, 10009, Block 438, Lot 6. 12/27/2022 DATE CHECK ONE: $SIG$ ARLENE P. BLUTH, J.S.C. X CASE DISPOSED GRANTED NON-FINAL DISPOSITION DENIED X APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 652020/2022 ZDG, LLC vs. 174-176 1ST AVENUE OWNER LLC ET AL Motion No. 001 [* 8] GRANTED IN PART 8 of 8 OTHER REFERENCE Page 8 of 8

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