1200 Bedford Ave., LLC v Grace Baptist Church

[*1] 1200 Bedford Ave., LLC v Grace Baptist Church 2015 NY Slip Op 51045(U) Decided on July 17, 2015 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 17, 2015
Supreme Court, Kings County

1200 Bedford Avenue, LLC, Plaintiff,

against

Grace Baptist Church, f/k/a ST. GRACE PROTESTANT CHAPEL, INC., Defendant.



503786/12



Plaintiff: 1200 Bedford Avenue LLCHal Ginsburg, Esq.

Ginsburg and Misk

Queens Village NY

Defendant: Grace Baptist Church

Peter Rivera, Esq. GOLDSTEIN HALL PLLC

NY NY

Intervening Party- 1200 Bedford Avenue Realty, LLC

Sol Antar, Esq.

Brooklyn NY
Arthur M. Schack, J.

The following papers numbered 1 to 7 read herein:Papers Numbered

Notice of Motion - Order to Show Cause

and Affidavits (Affirmations) Annexed____________________1, 2, 3

Opposing Affidavits (Affirmations)4, 5, 6

Memoranda of Law____________________________________7

_____________________________________________________________________________

In this action for specific performance of a real estate contract, between plaintiff 1200 BEDFORD AVENUE, LLC (BEDFORD AVENUE) and defendant GRACE BAPTIST CHURCH, f/k/a ST. GRACE PROTESTANT CHAPEL, INC. (CHURCH), the Court has three motions to adjudicate. First, defendant CHURCH moves, pursuant to CPLR Rule 5015 (a) (1), to vacate the September 12, 2013 default judgment entered against it. Second, non-parties 1200 BEDFORD REALTY, LLC and 1196 BEDFORD AVENUE, LLC (collectively INTERVENOR) move by order to show cause, pursuant to CPLR §§ 1012 and 1013, to intervene in the instant action. Third, defendant CHURCH moves, pursuant to CPLR § 1007, to implead a third-party defendant, FRED D. WAY, III, ESQ. (WAY), its former counsel. Plaintiff BEDFORD AVENUE opposes all three motions. The Court, as will be explained, grants: defendant CHURCH's motion to vacate its September 12, 2013 default; INTERVENOR's order to show cause to allow it to intervene and file an intervenor's complaint; and, defendant CHURCH's motion to implead WAY.

Background

Defendant CHURCH, a religious institution, has operated in the Bedford-Stuyvesant area of Brooklyn since 1961. Since 1968 it has been the owner of 1194-1202 Bedford Avenue, Brooklyn (Block 1996, Lots 31, 32, and 33, County of Kings), the [*2]subject property of the instant action for specific performance. Defendant CHURCH, from 1998 through February 2014, retained the services of WAY to handle both corporate and litigation matters.

On February 24, 2010, defendant CHURCH entered into two separate contracts of sale

(collectively the 2010 CONTRACTS) to sell the premises for a total of $2,175,000 to two LLC's, both of which have JOSEPH FREUND (FREUND), a private developer, as principal. The two contracts divided the premises into two parcels:

(a) 1196 BEDFORD AVENUE, LLC, as purchaser, dated February 24,

2010, for the sale of 1194 and 1196 Bedford Avenue, Brooklyn

(Block 1996, Lots 31 and 32, County of Kings), for $1,225,000, with

a $75,000 down payment; and

(b) 1200 BEDFORD REALTY, LLC, as purchaser, dated February 24,

2010, for the sale of 1198, 1200 and 1202 Bedford Avenue, Brooklyn

(Block 1996, Lot 33, County of Kings), for $950,000, with a

$270,000 down payment.

Defendant CHURCH retained WAY to represent it for these transactions and obtain the

requisite approvals for the sales of church property from the New York State Attorney General. WAY received $345,000 in down payments from FREUND's two LLC's, as CHURCH's escrow agent. The Attorney General never approved these sales.

In June 2011, after more than one year of inaction, FREUND's two LLC's, the purchasers of the premises under the 2010 CONTRACTS commenced two lawsuits for specific performance of the 2010 CONTRACTS. INTERVENOR, on June 16, 2011, filed notices of

pendency in each of these actions. Three years later, in June 2014, the two notices of pendency were renewed. Further, the two actions were consolidated in July 2014 and stayed pending the outcome of the instant action.

CHURCH, relying upon WAY, entered into a contract of sale with BEDFORD AVENUE, on December 27, 2011, for the sale of all three lots, 1194-1202 Bedford Avenue, Brooklyn, for $2,200,000, with a $110,000 down payment received by WAY as escrow agent. When CHURCH inquired of WAY if this was legitimate in light of the 2010 CONTRACTS, WAY misrepresented to CHURCH that the 2010 CONTRACTS were cancelled and it was proper to enter into a new contract of sale for the property.

Plaintiff BEDFORD AVENUE, in November 2012, commenced the instant action against defendant CHURCH for specific performance of the December 27, 2011-contract. Reverend Melvyn Louis Rankin, Pastor and President of defendant CHURCH, in his [*3]affidavit in support of the motion to implead WAY, states:

10. On or about late November 2012, after we received notification

that this lawsuit was commenced, I delivered a copy of the Summons and

Complaint to Mr. Way requesting his legal services in defending the matter.

Mr. Way informed me, "not to worry about it," and that, he would "take

care of it."

11. As a matter of course, because Mr. Way handled the contract

of sale and he was considered the Church's attorney for all legal matters,

we presumed that Mr. Way would appear on our behalf, file a motion to

dismiss or answer and object to the claims and allegations made by the

Plaintiff. We later learned that Mr. Way did none of these things and

that a default judgment was entered by this court on September 12, 2013.

Defendant CHURCH moves to vacate its September 12, 2013 default. CHURCH claims

that WAY's ineffective assistance of counsel is a reasonable excuse. Further, CHURCH claims a meritorious defense, in that the December 27, 2011-contract of sale with plaintiff BEDFORD AVENUE was encumbered from its inception by the June 16, 2011 notices of pendency filed by INTERVENOR as purchasers in the 2010 CONTRACTS and its being misled by WAY, its former counsel.

INTERVENOR moves to intervene, claiming that plaintiff BEDFORD AVENUE's default judgment against CHURCH for specific performance adversely affects its preexisting contractual rights, because INTERVENOR's contractual rights supercede those of plaintiff BEDFORD AVENUE by reason of its notices of pendency filed on June 16, 2011 and plaintiff BEDFORD AVENUE's instant action not commencing until November 2012. Further, INTERVENOR seeks to protect the $345,000 down payment it paid to WAY as CHURCH's escrow agent and to file as intervenor a proposed complaint seeking dismissal of the instant action.

Defendant CHURCH moves to implead WAY because it claims that WAY engaged in

misrepresentations and malpractice. Moreover, CHURCH seeks indemnification from WAY if it is found liable to plaintiff BEDFORD AVENUE and, pursuant to CPLR § 2701, to compel

WAY to deposit the $110,000 down payment he received as escrow agent in the instant action with the Court.

otion to vacate defendant's default judgment CPLR Rule 5015 (a) (1) authorizes a court to vacate a default judgment if the movant

demonstrates both a reasonable excuse for the default and a meritorious defense to the action. "The determination of what constitutes a reasonable excuse generally lies within the sound discretion of the trial court (see Santiago v New York City Health and Hosps. Corp., 10 AD3d 383, 394 [2d Dept 2004]; Roussodimou v Zafiradis, 238 AD2d 568 [2d Dept 1997]; Grutman v Southgate At Bar Harbor Home Owners' Assn., 207 AD2d 526, 527 [2d Dept 1994])." (Madonna Management Services Inc. v Naghavi, 123 AD3d 986, 987 [2d Dept 2014]).Defendant CHURCH claims that its reasonable excuse for default was the ineffective assistance of counsel by WAY. WAY violated his duty to CHURCH in not providing competent legal services and neglecting a legal matter entrusted to him, in violation of Rules 1.1 (a), 1.3 (a) and (b) and 1.4 (a) (1) and (3) of the Rules of Professional Conduct, 22 NYCRR §1200. Specifically, CHURCH alleges that WAY incompetently and ineffectively advised defendant CHURCH to enter into three separate contracts of sale for the sale of its real property in 2010 and 2011. WAY, after not closing on the 2010 CONTRACTS, in December 2011 misrepresented to CHURCH that the 2010 CONTRACTS were cancelled and it was proper to enter into a contract with plaintiff BEDFORD AVENUE. After BEDFORD AVENUE commenced the instant action, CHURCH alleges that WAY failed to: advise it of plaintiff's claims or investigate plaintiff's claims; answer plaintiff's complaint; and, advise defendant CHURCH of or appear in court proceedings on July 17, 2013, September 9, 2013 and September 12, 2013.

CHURCH alleges a meritorious defense that it never intended to abandon the instant matter or anticipate that its status as the rightful owner of the subject property would be relinquished by default judgment. Moreover, the facts demonstrate that the 2011 contract with BEDFORD AVENUE was encumbered from its inception by the June 16, 2011 notices of pendency filed by INTERVENOR as purchaser of the subject property in the 2010 CONTRACTS. Further, CHURCH alleges that it was unaware of the nature of the present litigation because is was unjustifiably misled by WAY and it would likely have prevailed in the instant action but for the ineffective assistance of its counsel, WAY.

In analyzing the reasons for vacating defaults under CPLR Rule 5015 (a), the Court of Appeals in Woodson v Mendon Leasing (100 NY2d 62, 68 [2003]), instructed:

[S]ection 5015 (a) does not provide an exhaustive list as to when a default

judgment may be vacated. Indeed, the drafters of that provision intended

that courts retain and exercise their inherent discretionary power in

situations that warranted vacatur but which the drafters could not easily

foresee (see id.; 3d Preliminary Report of Advisory Comm on Practice

and Procedure, 1959 NY Legis Doc No. 17, at 204).

In addition to the grounds set forth in section 5015 (a), a court

may vacate its own judgment for sufficient reason and in the interests of

substantial justice.

Thus, in the unique circumstances of the instant action there is "sufficient reason and in the interests of substantial justice" to vacate defendant CHURCH's default.

Order to show cause to intervene

INTERVENOR is entitled to intervene in this action as of right (CPLR § 1012) or permissively (CPLR § 1013). Last month, the Court in Trent v Jackson (___ AD3d ___, 2015 NY Slip Op 05467 [2d Dept June 24, 2015]), held:

"under liberal rules of construction that whether intervention is sought

as a matter of right under CPLR 1012 (a), or as a matter of discretion

under CPLR 1013 is of little practical significance [and that] intervention

should be permitted where the intervenor has a real and substantial

interest in the outcome of the proceedings." (Berkowski v Board of

Trustees of Inc. Vil. of Southampton, 67 AD3d at 843 [2d Dept 2009],

quoting Perl v Aspromonte Realty Corp., 143 AD2d 824, 825 [2d Dept

1988]; see Spota v County of Suffolk, 110 AD3d 785, 786 [2d Dept

2013]; Matter of Bernstein v Feiner, 43 AD3d 1161,1162 [2d Dept

2007]; County of Westchester v Department of Health of State of NY,

229 AD2d 460, 461 [2d Dept 1996]; Plantech Hous. v Conlon, 74

AD2d 920, 920-921 [2d Dept 1980]).

Ultimately, the question of intervention comes down to whether the proposed intervenor has a "real and substantial interest in the outcome" of the case. (See Agostino v Soafer, 284 AD2d 147, 148 [1d Dept 2001]).

A party is entitled to intervene as of right, pursuant to CPLR § 1012 (a) (2), when "representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment" or, pursuant to CPLR § 1012 (a) (3), when "the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment. While a party need only satisfy either subclause (2) or (3) to intervene, pursuant to CPLR § 1012 (a), INTERVENOR in the instant action satisfies both subclauses since it may be bound [*4]by the judgment obtained

by plaintiff BEDFORD AVENUE and its interest was not adequately represented by defaulting

defendant CHURCH. It is clear that INTERVENOR has a real and direct interest in the outcome of this litigation. If plaintiff BEDFORD AVENUE's default judgment is permitted to remain, its rights may be deemed superior to INTERVENOR's claim, despite INTERVENOR's 2010 CONTRACTS and the two notices of pendency filed by INTERVENOR against defendant CHURCH's property preceding plaintiff BEDFORD AVENUES's commencement of the instant action. Further, plaintiff BEDFORD AVENUE's September 12, 2013 default judgment against defendant CHURCH might be preclusive and binding against INTERVENOR. (See Doe v New York Univ., 6 Misc 3d 866, 872 [Sup. Ct, New York County 2004]).

Thus, the requirements of CPLR § 1012 (a) (2) are satisfied. Moreover, it is equally clear that INTERVENOR's interest was not adequately represented by CHURCH in the instant action. Defendant CHURCH failed to appear and the Court ordered a default judgment. When the named defendant fails to answer the complaint, intervention as of right is warranted. (In re UBS Financial Services, Inc., 17 Misc 3d 1131 [A] [Sup Ct, New York County 2007]). In Bayview Loan Servicing, LLC v Whitaker (15 Misc 3d 1141 [A] [Sup Ct, Kings County 2007]), the Court found that a successful bidder at a foreclosure auction could intervene as of right in an action to foreclose a mortgage on the subject property where no defendants ever answered the complaint.

INTERVENOR, in the instant action, faced a similar situation. Given defendant CHURCH'S default, there was no party before the Court that could oppose any of plaintiff BEDFORD AVENUE's arguments, much less adequately represent INTERVENOR's interest, whose priority in time superseded plaintiff BEDFORD AVENUE's claims which were undisclosed by plaintiff BEDFORD AVENUE. The Court relied entirely on plaintiff's verified complaint, which withheld that: plaintiff BEDFORD AVENUE's contract to purchase the subject property from defendant CHURCH was subordinate to INTERVENOR's 2010 CONTRACTS; INTERVENOR's actions for specific performance are presently pending to compel sale of the subject property; and, INTERVENOR filed a notice of pendency in each of its separate actions more than one year prior to the instant action. Therefore, in light of the attempt by plaintiff BEDFORD AVENUE to bind INTERVENOR to the September 12, 2013 default judgment in the instant action and INTERVENOR's interests entirely unrepresented by defaulting defendant CHURCH, INTERVENOR is entitled to intervene as of right, pursuant to CPLR §1012 (a) (2).

Moreover, INTERVENOR has the right to intervene under CPLR § 1012 (a) (3), because the instant action involves claims regarding property that may be adversely [*5]affected by the September 12, 2013 default judgment. There is no dispute that this action involves the disposition of property or it implicates questions of title. Given that plaintiff BEDFORD AVENUE seeks to use the default judgment in the instant action to bar INTERVENOR from exercising its right of specific performance to compel the sale of the property by defendant CHURCH, the first prong of CPLR § 1012 (a) (3), when "the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property" is met.

The second prong of CPLR § 1012 (a) (3), whether a proposed intervenor "may be affected adversely by the judgment," requires a fact specific inquiry. Courts have routinely held that any substantial economic loss or the frustration of a superior possessory interest is enough to support intervention. (See Spota v County of Suffolk, supra; Matter of Bernstein v Feiner, supra; Agostino v Soafer, supra; County of Westchester v Dep't of Health of NY, supra; In re City of New York, 10 Misc 3d 1060 [A] [Sup Ct, Kings County 2005]; Property Clerk, New York City Police Dept v Duck Jae Lee, 183 Misc 2d 360, 362-363 [Sup Ct, New York County 2000]). Plaintiff BEDFORD AVENUE's instant action has a direct financial impact on INTERVENOR's contractual rights through the deposit of INTERVENOR's $345,000 in WAY's escrow account. Moreover, INTERVENOR has already filed two notices of pendency to put any potential purchasers on notice of its possessory claims. Thus, intervention as of right, pursuant to CPLR § 1012 (a) (3), is warranted.With the determination that INTERVENOR may intervene as of right, pursuant to CPLR § 1012 (a), there is no need to discuss whether the INTERVENOR may intervene permissively, pursuant to CPLR § 1013.

In addition, "[i]ntervention under CPLR 1012 and CPLR 1013 requires a timely motion (see CPLR 1012, 1013, Oparaji v Weston, 292 AD2d 592, 593 [2d Dept 2002]; Rectory Realty Assoc. v Town of Southhampton, 151 AD2d 737 [2d Dept 1989])." (T & V Const. Corp. v Pratti, 72 AD3d 1065, 1066 [2d Dept 2010]). Courts, in determining whether a motion to intervene is timely consider: the length of time between when the proposed intervenor learned of need to intervene and its attempt to do so; whether there will be any prejudice to the existing party or parties; and, whether the intervenor's interests will be prejudiced if its motion is denied. (See Teichman v Community Hosp., 87 NY2d 514, 522 [1996]; Poblocki v Todaro, 55 AD3d 1346, 1347 [4d Dept 2008]). INTERVENOR's instant order to show cause is timely. Moreover, it would be prejudicial to INTERVENOR if its order to show cause is denied.

Further, defendant CHURCH's former counsel, WAY, is holding in escrow INTERVENOR's $345,000 in down payments from the 2010 CONTRACTS. WAY, pursuant to CPLR § 2701, shall deposit with the Court the $345,000 in down payments he is holding in escrow from the 2010 CONTRACTS, until the instant action and the related actions, 1196 Bedford Avenue, LLC v Grace Baptist Church, f/k/a St. Grace Protestant Chapel, Inc., Index Number 13694/11 and 1200 Bedford Avenue, LLC v Grace Baptist Church, f/k/a St. Grace Protestant Chapel, Inc., Index Number 13697/11, are resolved, [*6]adjudicated or otherwise ordered by the Court.

Motion for impleader

CPLR § 1007, "When third-party practice allowed," states, "[a]fter the service of his answer, a defendant may proceed against a person not a party who is or may be liable to that

defendant for all or part of the plaintiff's claim against that defendant . . ." "The liability to be imposed upon a third-party defendant in a third-party action commenced pursuant to CPLR 1007 should arise from or be conditioned upon the liability asserted against the third-party plaintiff in the main action' (BBIG Realty Corp. v Ginsberg, 111 AD2d 91, 93 [1d Dept 1985]; see also, Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 786 [2d Dept 1983])." (Lucci v Lucci, 150 AD2d 649, 650 [2d Dept 1989]). One of the main purposes of impleader is to avoid multiplicity of lawsuits and determine liability in one proceeding. The Court of Appeals, in Krause v American Guarantee & Liability Ins. Co. (22 NY2d 147, 153 [1968]), held "to permit impleader is in full accord with the spirit of an advanced practice code which seeks the avoidance of multiplicity and circuity of action, and the determination of the primary liability as well as the ultimate liability in one proceeding, whenever convenient' (Eleventh Annual Report of NY Judicial Council, 1945, p. 58; see, also, B.M.C. Mfg. Corp. v Tarshis, 278 App. Div. 266 [3d Dept 1951]). (See George Cohen Agency, Inc. v Donald S. Perlman Agency, Inc., 51 NY2d 358, 365 [1980]; Qosina Corp. v C & N Packaging, Inc., 96 AD3d 1032, 1034-1035 [2d Dept 2012]); JP Morgan Chase Bank, N.A. v Strands Hair Studio, LLC, 84 AD3d 1173, 1174 [2d Dept 2011]).

In the instant action, defendant CHURCH argues that WAY, its former counsel, is subject to impleader because WAY is liable for plaintiff BEDFORD AVENUE'S claim against defendant CHURCH, because of WAY's misrepresentations and malpractice. Defendant CHURCH alleges that WAY violated various Rules of the Rules of Professional Conduct,

22 NYCRR § 1200. First, CHURCH alleges that WAY violated Rule 1.1 (a), "[a] lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Further, CHURCH alleges that WAY violated Rule 1.4 (a) (1) and (3), "[a] lawyer shall: (1) promptly inform the client of: . . . (iii) material developments in the matter including settlement or plea offers. . . . (3) keep the client reasonably informed about the status of the matter."

Moreover, defendant CHURCH claims that WAY violated Rule 1.3 (a) and (b), "(a) [a] lawyer shall act with reasonable diligence and promptness in representing a client. (b) [a] lawyer shall not neglect a legal matter entrusted to the lawyer." In a case with similar lawyer neglect, the Court, in Matter of Arnold (50 AD3d 1448, 1448-1449 [3d Dept [*7]2008]), held that an attorney "violated the Appellate Division attorney disciplinary rules by failing to appear at scheduled court proceedings and neglecting client cases, failing to communicate with her clients, opposing counsel and Supreme Court, Broome County, by attempting to mislead and deceive said court and petitioner, by failing to comply with court order, and by failing to cooperate with petitioner in its investigation."

It is clear that WAY misrepresented to defendant CHURCH that INTERVENOR's 2010 CONTRACTS were canceled and that it was proper and appropriate that it enters into a new contract of sale for the subject premises with plaintiff BEDFORD AVENUE. Further, it appears that WAY acted incompetently and ineffectively advised defendant CHURCH to enter into three separate contracts of sale for all or part of the subject premises in June 2010 and

December 2011. After plaintiff BEDFORD AVENUE commenced the instant action and CHURCH's Reverend Rankin contacted WAY, in November 2012, WAY misrepresented to Reverend Rankin "not to worry about it," and that he would "take care of it." A reasonable client could conclude that: after a lengthy relationship with its attorney such statements inferred that the attorney would appear in court in the matter, utilizing the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation; and, its attorney would not neglect such an important matter entrusted to him. However, WAY failed to appear in the instant action nor file any papers on behalf of defendant CHURCH. Also, WAY failed to return phone calls to CHURCH's representatives or respond whenever CHURCH inquired as to the status of the instant action.

Defendant CHURCH, as a result of WAY's misrepresentations and neglect, was blind to the ongoing litigation against it and the Court granted the September 12, 2013 default judgment for specific performance of plaintiff BEDFORD AVENUE's encumbered 2011 contract. At no time did Defendant CHURCH intend to abandon the instant action or anticipate that its status as rightful owner to the subject premises would be relinquished by the granting of a default judgment against it. Defendant CHURCH was unaware of the nature of the present litigation because it was unjustifiably misled by WAY, its former counsel.

Therefore, defendant CHURCH's motion to implead Way is granted. Given the pre-existing 2010 CONTRACTS with INTERVENOR, the notices of pendency extending from these contracts, which predate the contract, litigation and notice of pendency in the instant action, defendant CHURCH can assert a defense on the merits of the instant action and should be allowed to defend itself accordingly and implead WAY for misrepresentation, neglect and legal malpractice.

Further, WAY, pursuant to CPLR § 2701, shall deposit with the Court the $110,000 down payment he is holding in escrow from the contract between plaintiff BEDFORD AVENUE and defendant CHURCH, until the instant action is resolved, adjudicated or otherwise ordered by the Court.

Conclusion

ORDERED, that the motion of defendant GRACE BAPTIST CHURCH, f/k/a ST. GRACE PROTESTANT CHAPEL, INC., pursuant to CPLR Rule 5015 (a) (1), to vacate the September 12, 2013 default judgment entered against it by plaintiff 1200 BEDFORD AVENUE, LLC, is granted; and it is further

ORDERED, that the order to show cause by non-parties 1200 BEDFORD REALTY, LLC and 1196 BEDFORD AVENUE, LLC, pursuant to CPLR §§ 1012 and 1013, to intervene in the instant action, is granted; and it is further

ORDERED, that INTERVENOR 1200 BEDFORD REALTY, LLC and 1196 BEDFORD AVENUE, LLC shall serve its proposed Intervenor's complaint [exhibit I of its order to show cause] within thirty days of this decision and order upon plaintiff 1200 BEDFORD AVENUE, LLC and defendant GRACE BAPTIST CHURCH, f/k/a ST. GRACE PROTESTANT CHAPEL, INC.; and it is further

ORDERED, that the motion of defendant GRACE BAPTIST CHURCH, f/k/a ST. GRACE PROTESTANT CHAPEL, INC., pursuant to CPLR § 1007, to implead FRED D. WAY, III, ESQ. is granted; and it is further

ORDERED, the third-party plaintiff GRACE BAPTIST CHURCH, f/k/a ST. GRACE PROTESTANT CHAPEL, INC. shall serve its proposed third-party complaint [exhibit B of its motion] within thirty days of this decision and order upon third-party defendant FRED D. WAY III, ESQ.; and it is further

ORDERED, that third-party defendant FRED D. WAY III, ESQ., shall deposit with the Court, pursuant to CPLR § 2701, within thirty days of being served with written notice of entry of this decision and order: the $345,000.00 in down payments he received in escrow from

INTERVENOR, 1200 BEDFORD REALTY, LLC and 1196 BEDFORD AVENUE, LLC, pursuant to the February 24, 2010 contracts between purchaser 1200 BEDFORD REALTY, LLC and 1196 BEDFORD AVENUE, LLC and seller GRACE BAPTIST CHURCH, f/k/a ST. GRACE PROTESTANT CHAPEL, INC.; and, the $110,000.00 down payment he received in escrow from plaintiff 1200 BEDFORD AVENUE, LLC, pursuant to the December 27, 2011 contract between purchaser 1200 BEDFORD AVENUE, LLC and seller GRACE BAPTIST CHURCH, f/k/a ST. GRACE PROTESTANT CHAPEL, INC.

This constitutes the Decision and Order of the Court.

ENTER

________________________________

HON. ARTHUR M. [*8]SCHACK

J. S. C.