Emigrant Mtg. Co., Inc. v Daniels

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Emigrant Mtg. Co., Inc. v Daniels 2011 NY Slip Op 32236(U) August 12, 2011 Supreme Court, New York County Docket Number: 105057/2008 Judge: Paul G. Feinman 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. SCANNED ON 811712011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: HON. PAUL G. FElNMAN PART 12 J.S.C. , MOT. DATE -vMOT. SEQ.NO. I . - The following papers, numbered 1 to were read on thls motion tolfor PAPERS NUMRERED Notice of MotionlPetitionl0.S.C. - Affidavlts - Exhibits Answering Affldavlts - Exhibits Replying Affidavits CROSS-MOTION: Upon the foregoing papers, It Is 0 Yes AUG 1 7 2071 [* 2] SUPREME COURT OF THE STATE OF NEW YOKK COUNTY OF NEW YORK: CIVIL TERM: PART 12 X ____________-------r-_------------------------------------------------ EMIGRANT MORTGAGE COMPANY, INC., Plaintiff, Index Number Mot. Seq. No. against 10505 7/2OO8 m EUGENE R. DANIELS 111, CHARLENE G. DANIELS, NEW YOKK CITY PARKING VIOLATIONS DECISION ANI) ORDER BUREAU, CHEIIY I, COPELAND, CHARLENE JACKSON, RSZ INC., CHERYL LYN GLOVER dWa CHERYL JONES, NEW YORK STATE COMMISSION OF TAXATION AND FINANCE, NEW YORK CITY DEPARTMENT OF TAXATION AND FINANCE, and HORACE COPEI,AND, AUG 17 2011 Defendants. ________"_______________________________---------------------------- X Fur the Plaintiff: I3clkin Burden Wcnig & Goldman, LLP By: William M. Ritkin, Esq. 270 Madison Avenue Ncw York NY 10016 NEW YORK COUNTY CLERK'S OFFICE For the Danlels Defendants: Eugene R. Daniels 111 and Charlene G. Daniels, prose 408 West 145Ih Street New York NY 1003 1 Papers considered in review of this motion to renew motion seeking judgment of foreclosure and snle: Papers Document Number 1 Noticc of Motion to lienew, Affidnvits , Exhibits PAUL G. FEINMAN, J.: Plaintiff renews its motion seeing an order confirming the March 8,20 10 report by Referee Regina L. Darby, Esq., as to the amount due to plaintiff, and for a judgment of foreclosure and sale of the mortgaged premises at issue, as well as an award of attorneys' fees and expenses. The motion is unopposed. For the reasons which follow, the motion is granted without opposition. L As previously set forth in the court's decision and order dated October 1,2010, and filed on October 4,20 10, plaintiff commenced a foreclosure action against defendants Eugene K. 1 [* 3] Daniels I11 and Charlenc G. Daniels on April 8, 2008 (Mot. Ex. 2, Ex. A). The action pertains to an adjustable rate loan note and mortgage signed on April 20,2007, in which the Daniels agreed to pay plaintiff a total principal sum of $ 845,653.51. The mortgaged premises are known as 408 West 14ShStreet, New York, New York 10031, bearing tax map designation of Block 2050, Lot 50 (Referee s Oath & Rcport, Mot. Ex. 2, Ex. G). The property is recorded by the Office of the City Register of the NYC Department of Financc as consisting of a 4-6 family with store/office. (Id,). Each of the defendants was served with process thcrcafter (Mot, Ex. C [affidavits of service]). The Daniels answered thc summons and complaint by their attorney on about June 30, 2008 (Mot. Ex.2, Ex. D). None of the other individual or governmental defendants apparently answered or otherwise appeared. Plaintiff thercafter moved for summary judgment; the court held the motion in abeyance pending court-ordered settlement negotiations. After negotiations proved unfruitiul, the court by decision and order dated January 13, 2010, granted the motion for summary judgment, and ordered the appointment of Regina L. Darby, Esq., as feferee to ascertain and compute the amounts owed upon the note and mortgage being foreclosed in this action and determine whether the property can be sold in one parcel. Referee Darby submitted her Combined Oath of Referee and Referee s Report of Computation dated March 8,2010 (Mot. Ex. 2, Ex. G). Included in her Report are copies executed by the Daniels and given to plaintiff of the adjustable rate note dated April 20,2007, and the mortgage as recorded by the New York City Department of Finance, Office of the City Register under CFRN 2007000248323, as well as the Computation Affidavit prepared by 2 [* 4] \ plaintiffs Assistant Treasurer, Joel Marcano, dated February 18, 2010. Marcano s affidavit states that since commencement of the action, no payments have been made to the principal sum or of interest, and as of February 15, 201 0, there was due and owing $845,653.5 1 in principal, and $328,502.48 in interest, and that interest accrues at 18% annually. Marcano also indicates that the Daniels have in addition incurred escrow debt for real estate taxes ($6,140.20), fire insurance ($8,5 12.00), late charges ($509.88), appraisals ($350.00), and inspections ($425.00), and that as of February 15,2010, there was due and owing to plaintiff the total amount of $1,190,093.07, in addition to attorney s fees and expenses (Ref. Oath & Report Mot. Ex. 2, Ex. G, Marcano Aff. 77 5-8; and Ex. D, itemized computation schedule). This is the amount deterrnincd by Referee Darby to be due and owing as of February 15,2010 (Ref. Oath & Report 77 3-4). l h e referee recommends that the mortgaged premises be sold as one parcel (Id. 7 4). Plaintiffs previous motion was denied based on insufficient proof of the non-military status of the defaulting individual defendants, who are necessary parties in this proceeding (RPAPL 5 131 1 [ 11). Plaintiff now provides copies of affidavits and printouts from the Department of Defense Manpower Data Center showing that investigations were made as to each of the individual defendants and that none of them are in the military (Mot. Ex. 4 . ) The March 8, 2010 report by Referee Regina L. Darby, Esq., is confirmed as to the amount due to plaintiff, and the branch of the motion seeking a judgment of foreclosure and sale of the mortgaged premises is granted. Plaintiff provides an affirmation of regularity by William Rifiin, Esq., setting forth in narrative the legal work done in this litigation and explaining the fee structure ofplaintiff s law firm, Belkin Burden Wenig & Goldman, LLP, and attaches copies of the itemized billing records (Mot. Ex. 2, Ex. H), to detail and explain the request for a total of 3 . [* 5] $27,468.98 in attorney s fees accrued from April 1,2008 through March 26, 20 10, and including an estimated 8 hours of additional work in making the instant motion; preparing the Notice of Sale, the closing documents, and the Report of Sale; and attending the Sale and the closing. This branch of plaintiffs motion seeking attorney s fees is granted without opposition. ORDERED that the branch of the motion to. confirm the March 8, 20 10 report of Referee Regina Darby, Esq., is granted without opposition; and it is further ORDERED that thc branch of the motion seeking an order granting a judgment of foreclosure and sale is granted without opposition; and it is further ORDERED that the branch seeking attorney s fees in the amount of $27,468.98 is granted without opposition. I This constitutes thc decision and order of the court. Settle Judgment of Foreclosure and Sale appointing Regina L. Darby, Esq. on all parties. Dated: August 12, 201 1 New York, New York J.S.C. FILEQ BUG 1 7 2011 NEW YORK COUNTY CLERKS OFFICE (201 1 Pt 12 D & 0 ~ l 0 5 0 5 7 ~ 2 0 0 8 ~ 0 0 4 ~ h ) 4,

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