Board of Mgrs. of the Netherlands v Trencher

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Board of Mgrs. of the Netherlands v Trencher 2013 NY Slip Op 31944(U) August 12, 2013 Sup Ct, New York County Docket Number: 102418/12 Judge: Joan A. Madden 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 812012013 [* 1] [* 2] '. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 11 .......................................................................... X BOARD OF MANAGERS OF THE NETHERLANDS CONDOMINIUM, on its own behalf and on behalf of all Unit Owners of The Netherlands Condominium, INDEX NO. 102418/12 Plaintiff, -againstMILDRED TRENCHER, JP MORGAN CHASE BANK, N.A., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, JOHN DOE and JANE DOE, the names of the "JOHN DOE" and "'JANE DOE" being fictitious, and unknown to Plaintiff, the persons and/or firms intended being those who may be in possession of, or may have possessory, lien or other interest in the premises herein described, I AUG 20 OFF COUNTY N V YORK EU In this action to foreclose on a lien for unpaid condominium common charges, plaintiff moves for a default judgment against all defendants, except Mildred Trencher the unit holder, and for the appointment of a referee to compute the amount due on the lien and to determine whether the premises can be sold in one parcel. Defendant Trencher opposes the motion, and cross-moves for sumrnary judgment dismissing the complaint, and seeks an order directing plaintiff to provide her with a discharge of lien pursuant to RPL 339-aa, and a declaration that plaintiff is not entitled to late or legal fees. Plaintiffs motion for a default judgment against JP Morgan Chase Bank, N.A., New York City Environmental Control Board and New York City Transit Adjudication Bureau and 1 [* 3] for the appointment of a referee to compute, based on said defendants failure to appear and answer, is denied. While a motion for the appointment of a referee to compute is a preliminary step towards obtaining a judgment of foreclosure and sale, EKlein v. St. Cvrian Properties, Inc, 100 AD3d 71 1 (2nd Dept 2012), Home Savings of America, N.A. v. Gkanois, 230 AD2d 770 (2nd Dept 1996), such relief is appropriate only with respect to unit owner, as the person against whom the lien for common charges has been asserted. Such relief is not properly sought against the non-appearing defendants in this action, a bank and two governmental agencies. As alleged in the complaint and the exhibits annexed to the complaint, defendant JPMorgan Chase, N.A. is the holder of two mortgages on the premises, one in the amount of $167,000 and another in the amount of $225,000; defendants New York City Transit Adjudication Bureau and New York City Environmental Control Board are holders of possible judgments against Mildred Trencher. Since those entities are merely named as nominal parties in the event they may have a lien or other interest subordinate or superior to plaintiffs lien against defendant Trencher, plaintiff is has no basis for seeking the appointment of a referee to compute based on their default in failing to appear and answer. Citing Board of Directors of Hunt Club at Carom Homeowners Ass n, Inc v. Hebb, 72 AD3d 997 (2ndDept 20 lo), plaintiff argues that it is entitled to a referee to compute since defendant Trencher admits in her affidavit that she has been withholding payments because there is a legitimate dispute as to Plaintiffs ability to collect late and legal fees. Plaintiffs reliance on that decision is misplaced as the Second Department reversed the lower court because the unit owner in her opposition to plaintiffs motion for summary judgment against her, effectively conceded that she had not paid the assessments and other charges underlying the lien. 2 [* 4] Here, however, plaintiff is merely moving for a default judgment against the non-appearing defendants, and is not moving for summary judgment or any other relief against the unit owner, defendant Trencher. Plaintif7 motion is therefore denied. Defendant Trencher s cross-motion for summary judgment is likewise denied. The proponent of a motion for summaryjudgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. ProsPect Hospital, 68 NY2d 320, 324 (1986); see also JMD Holding Corp v. Congress Financial Corp, 4 NY3d 373,384 (2005); Avotte v. Gervasio, 81 NY2d 1062 (1993). Once that showing is satisfied, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to demonstrate that material issues of fact exist which require a trial. $ee Alvarez v. Prospect Hospital, sums at 324. Here, defendant Trencher fails to make a prima facie showing that she is entitled to judgment as a matter of law dismissing the complaint, and a declaratoryjudgment as to satisfaction of the lien, and the late fees and legal fees issues. Defendant Trencher submits an affidavit that she is a senior citizen and has lived in the building for 40 years, before it was converted to a condominium, and has never a problem in all the time she has lived in the building. While asserting that she has satisfied the lien, she admits she is challenging plaintiffs authority under the bylaws to collect the late fees and legal fees included in plaintiffs lien for common charges. Additionally, plaintiff has established the existence of material issues of fact sufficient to defeat defendant s cross-motion. Plaintiff submits a reply affidavit from the president of the condominium board, stating that since January 20 1 1, defendant Trencher has not timely paid 3 [* 5] common charges and capital assessment charges. He asserts that under section 6.4 of the bylaws, late charges, interest, fees and expenses shall be added to the common charges due fkom each unit owner and constitute common charges. He also asserts that on October 29,2009, the board approved an amendment to the condominium s late fee policy and submits the board s minutes. He argues the lien was properly placed and should remain in full force and effect, since the condominium s ledger shows that defendant Trencher still owes common charges in the amount of $20,597, and even if the late and legal fees were removed, the sums secured by the lien have not been paid. Based on the foregoing, defendant Trencher is not entitled to summary judgment, as triable issues of fact exist as to whether she satisfied the lien, and plaintiffs authority to collect late fees and legal fees. Accordingly, it is ORDERED that plaintiffs motion is denied in its entirety; and it is further ORDERED that the cross-motion by defendant Mildred Trencher is denied in its entirety; and it is further ORDERED that the parties are directed to appear for a preliminary conferencehettlement conference on August 22,20 13 at 3:OO p.m. in Part 11, Room 35 1,60 Centre Street. The court is notifying the parties by mailing copies of this decision and order. DATED: August ,20 13 AUG 20 2013 COUNTY CLERK S NEW YORK 4

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