Federal Natl. Mtge. Assoc. (Fannie Mae) v Prensky

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Federal Natl. Mtge. Assoc. (Fannie Mae) v Prensky 2019 NY Slip Op 31789(U) June 21, 2019 Supreme Court, New York County Docket Number: 850115/2016 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. [*FILED: 1] NEW YORK COUNTY CLERK 06/21/2019 03:45 PM NYSCEF DOC. NO. 102 INDEX NO. 850115/2016 RECEIVED NYSCEF: 06/21/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT:· HON. ARLENE P. BLUTH PART IAS MOTION 32 Justice ---------------------------------------------------------------------------~----X INDEX NO. FEDERAL NATIONAL MORTGAGE ASSOCIATION (FANNIE MAE), A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, 850115/2016 MOTION DATE N/A MOTION SEQ. NO. 002 Plaintiff, -vZACHARY PRENSKY, EILEEN PRENSKY, BOARD OF MANAGERS OF THE OLMSTED CONDOMINIUM HOMEOWNERS ASSOCIATION, LAW OFFICES OF HOWARD B. FELCHER, PLLC,JOHN DOE, SAID NAME BEING FICTITIOUS, IT BEING THE INTENTION OF PLAINTIFF TO DESIGNATE ANY AND ALL OCCUPANTS OF PREMISES BEING FORECLOSED HEREIN, AND ANY PARTIES, CORPORATIONS OR ENTITIES, IFANY, DECISION AND ORDER OF REFERENCE Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79,80,81,82,83,84, 85,86,87, 88,89,90, 91,92, 93,94,95,96,97,99, 100, 101 JUDGMENT-SUMMARY were read on this motion to/for The motion by plaintiff for summary judgment is granted and the cross-motion by defendant Eileen Prensky is denied. Background Plaintiff seeks to recover under a loan executed by defendant Zachary Prensky in 2002 for $300,700 secured by an apartment located at 382 Central Park West in Manhattan. Plaintiff claims that defendant stopped making payments in June 2015. In opposition and in support of her cross-motion, defendant Eileen Prensky claims that plaintiffis aware that Zachary Prensky has not lived at the subject apartment since 2011 and sending notices to this apartment was improper. Ms. Prensky also observes that the default here was due to her ex-husba~d's (defendant Zachary Prensky) failure to pay child support and that 850115/2016 FEDERAL NATIONAL MORTGAGE vs. PRENSKY, ZACHARY Motion No. 002 1 of 5 Page 1of5 [*FILED: 2] NEW YORK COUNTY CLERK 06/21/2019 03:45 PM INDEX NO. 850115/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/21/2019 she obtained a money judgment for $90,000 after he didn't meet his obligations (NYSCEF Doc. No. 95). Ms. Prensky also complains about plaintiffs failure to serve the 30-day notice on Zachary Prensky or the RP APL 13 04 (90-day notice) on her. Defendants the Board of Managers of Olmsted Condominium and the Law Offices of Howard B. Felcher, PLLC offer opposition only-to the extent that they want surplus funds if any are available. Discussion The motion by plaintiff is granted and the cross-motion is denied. As an initial matter, Zachary Prensky has not appeared in this action and any claims with respect to the failure to send notices to him are personal to this defendant. Eileen Prensky may not raise objections with respect to whether notices were sent to her ex-husband. Moreover, without an affidavit from Mr. Prensky denying he received the required notices, there are no issues of fact on this issue. Ms. Prensky was not entitled to receive an RP APL 1304 notice because ·she did not sign either the note or the mortgage. While·the Court recognizes that the default here was likely due to Mr. Prensky's utter failure to meet his obligations to his ex-wife and children, that is not a defense to a foreclosure action. The fact is that plaintiff is owed money and has not been paid since 2015. Accordingly, it is hereby ORDERED that the motion by plaintiff for summary judgment/default judgment is granted and the answer and affirmative defenses of defendant Eileen Prensky are severed and dismissed; and the cross-motion by this defendant is denied; and it is further ORDERED that fl{ rJj toOJ1 Ila lu}v, A~~ ~h 1 ~ ·1 3aa {p'(fo- ?:J'i-'l~kO 850115/2016 FEDERAL NATIONAL MORTGAGE vs. PRENSKY, ZACHARY Motion No. 002 2 of 5 IE ~fl.'"' Sf- I 't " /{-v is Page 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 06/21/2019 03:45 PM NYSCEF DOC. NO. 102 INDEX NO. 850115/2016 RECEIVED NYSCEF: 06/21/2019 hereby appointed Referee in accordance with RP APL § 1321 to compute the amount due to Plaintiff for principal, interest and other disbursements advanced as provided for in tlie note and mortgage upon which this action is brought, and to examine whether the mortgaged property can be sold in parcels; and it is further ORDERED that the Referee may take testimony pursuant to RPAPL § 1321; and it is further ORDERED that by accepting this appointment the Referee certifies that she/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 Appointing Judge; and it is further ORDERED that, pursuant to CPLR 8003(a), and in the discretion of the court, a fee of $350 shall be paid to the Referee for the computation of the amount due and upon the filing of her/his report and the Referee shall not request or accept additional compensation for the computation unless it has been fixed by the court in accordance with CPLR 8003(b); 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 plaintiff shall forward all necessary documents to the Referee within 30 days of the date of this or<l,er and shall promptly respond to every inquiry made by the referee (promptly means within two business days); and it is further 850115/2016 FEDERAL NATIONAL MORTGAGE vs. PRENSKY, ZACHARY Motion No. 002 3 of 5 Page 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 06/21/2019 03:45 PM NYSCEF DOC. NO. 102 INDEX NO. 850115/2016 RECEIVED NYSCEF: 06/21/2019 ORDERED that plaintiff must bring a motion for a judgment of foreclosure and sale within 30 days ofreceipt of the referee's report; and it is further ORDERED that if plaintiff fails to meet these deadlines, then the Court may sua sponte vacate this order and direct plaintiff to move again for an order of reference and the Court may sua sponte toll interest depending on whether the delays are due to plaintiff's failure to move this· litigation forward; and it further ORDERED that the caption be amended to remove John Doe and to substitute for · plaintiff AJAX MORTGAGE LOAN TRUST 2018-F, MORTGAGE-BACKED SECURITIES, SERIES 2018-F, BY u:s. BANKNATIONAL ASSOCIATION, AS INDENTURE TRUSTEE FOR FEDERAL NATIONAL MORTGAGE ("FANNIE MAE"), A CORPORATION ORGANIZED AND EXISTING UNDER THE LAW OF THE UNITED STATES OF AMERICA, and the caption shall read as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK · . ----------------------------------------------------------------X AJAX MORTGAGE LOAN TRUST 2018-F, MORTGAGE-BACKED SECURITIES, SERIES 2018-F, BY U.S. BANK NATIO_NAL ASSOCIATION, AS INDENTURE TRUSTEE FOR FEDERAL NATIONAL MORTGAGE ("FANNIE MAE"), A CORPORATION ORGANIZED AND EXISTING UNDER THE LAW OF THE UNITED STATES OF AMERICA, Plaintiff, v. ZACHARY PRENSKY, EILEEN PRENSKY, BOARD OF MANAGERS OF THE OLMSTED CONDOMINIUM HOMEOWNERS ASSOCIATION, LAW OFFICES OF HOWARD B. FELCHER, PLLC Defendant( s). ----------------------------------------------------------------)( 850115/2016 FEDERAL NATIONAL MORTGAGE vs. PRENSKY, ZACHARY Motion No. 002 4 of 5 Page 4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 06/21/2019 03:45 PM INDEX NO. 850115/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/21/2019 ; and it is further ORDERED that counsel for plaintiff shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the parties being removed and substituted; and it is further ORDERED that such service upon the County Clerk and the Clerkofthe General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address (ww.nycourts.gov/supctmanh)]; and it is further ORDERED that Plaintiff shall serve a copy of this Order with notice of entry on all parties and persons entitled to notice, including the Referee appointed herein; and it is further Next Conference: December 3, 2019 at 2:15 p.m. If plaintiff has moved for a judgment of foreclosure and sale before the conference, then plaintiff can seek an adjournment. Please consult the part's rules for information about how to obtain an adjournment. An appearance is required if a motion for a JFS has not been made; counsel appearing for plaintiff must come prepared to explain the delay or interest may be tolled. ARL CHECK ONE: CASE DISPOSED GRANTED E . BLUTH, J.S.C. NON-FIHQ D DENIED I ENE P. BLUTH GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 850115/2016 FEDERAL NATIONAL MORTGAGE vs. PRENSKY, ZACHARY Motion No. 002 5 of 5 D D OTHER REFERENCE Page 5 of 5

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