SD Second Ave. Prop., LLC v Liggio

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SD Second Ave. Prop., LLC v Liggio 2019 NY Slip Op 32984(U) October 7, 2019 Supreme Court, New York County Docket Number: 157018/2019 Judge: Kathryn E. Freed 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 10/09/2019 09:36 AM NYSCEF DOC. NO. 12 INDEX NO. 157018/2019 RECEIVED NYSCEF: 10/09/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. KATHRYN E. FREED IAS MOTION 2EFM Justice ---------------------------------------------------------------------------X INDEX NO. SD SECOND AVENUE PROPERTY, LLC, MOTION DATE Plaintiff, 157018/2019 11/23/2019 001 MOTION SEQ. NO. -vVINCENT LIGGIO, as Co-Executor of the Estate of Helen B. Andrews, a/k/a Helen Barrett Andrews, INDIVIDUALLY, and as Executrix of the Estate of James J. Andrews And 21ST STREET LENDER, LLC DECISION + ORDER ON MOTION Defendants. -------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11 JUDGMENT - DEFAULT were read on this motion to/for Upon the foregoing documents, this motion is decided as follows: Plaintiff SD Second Avenue Property, LLC, as the owner of real property known as 351359 Second Avenue a/k/a Block 901, lots 29, 30 and 34, County, City and State ofNew York, (hereinafter the "Property"), brings the within action pursuant to RP APL Article 15, to extinguish the mortgage against the portion of said property known as Block 901, Lot 31, made on April 27, 1911 by William J. Ludwig and Henrietta Ludwig in favor of American Mortgage Company, in the amount of $11,000.00 and recorded in Liber 213, Page 403 of the City Register of New York County. The entire history of all subsequent Mortgages on the subject property are fully set forth in the Complaint and will not be repeated here, except as related to this motion. (Doc. 1, pages 4, 5 and 6). 157018/2019 SD SECOND AVENUE PROPERTY, LLC vs. LIGGIO, VINCENT Motion 001 No. 1 of 5 Page 1of5 [*FILED: 2] NEW YORK COUNTY CLERK 10/09/2019 09:36 AM NYSCEF DOC. NO. 12 INDEX NO. 157018/2019 RECEIVED NYSCEF: 10/09/2019 The last recorded mortgage on the subject property was made on January 2, 1975 between Andrett Realty Corporation, as Mortgagor, and Helen Barrett Andrews and James J. Andrew, as Mortgagees, who entered into an Extension and Spreader Agreement which spread the Mortgage to cover that portion of the property now known as Block 901, Lot 30 (old lots 30, 31 and 32) and which was recorded in Reel 333, Page 120, on January 8, 1975. Joshua Schuster, as the authorized agent of plaintiff, who avers in his annexed Affidavit (Doc. 4) that he has personal knowledge of the matters herein, on information and belief, represents that, subsequent to the said Mortgage, all routine and timely payments were made toward satisfaction of the same. He further states that all amounts due on the said Mortgage were paid. Additionally, Schuster claims that Helen B. Andrews a/k/a Helen Barrett Andrews a/k/a Helen M. Andrews, individually and as Executrix of the Estate of James J. Andrews, failed to properly record a Satisfaction of Discharge of the Mortgage with the Office of the City Register of New York County. Id, ~16. Further, he represents that no demand has been made for payment of the Mortgage for at least ten years prior to the filing of this action, nor has any payment of the Mortgage been made to any party in at least ten years. Id~~ 18, 19. Finally, 21st Street Lender, LLC. ("2 I st Street"), was named as a party to this a~tion as Agent for itself and such other co-lenders as may exist from time to time, as recorded with the Office of the City Register of New York County, on August 6, 2019 at CRFN #2019000248194. Schuster states that, at the closing of the Mortgage with 21st Street Lender, it was discovered that the Mortgage had not been satisfied, thereby leaving a cloud on the title to the 157018/2019 SD SECOND AVENUE PROPERTY, LLC vs. LIGGIO, VINCENT Motion No. 001 2 of 5 Page 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 10/09/2019 09:36 AM NYSCEF DOC. NO. 12 INDEX NO. 157018/2019 RECEIVED NYSCEF: 10/09/2019 property, and the captioned action was then commenced to extinguish the Mortgage and to clear title to the property. Id i!il 20. 21, and 22. Also annexed hereto is the Affidavit of William J. Turkish, Esq., a member of the law firm of Braunstein Turkish LLP, attorneys for plaintiff, who bases his knowledge upon communications with the plaintiff and the contents of his file. Doc. 5, iJ I. He represents that defendant 21st Street has acknowledged and co~sented to the relief requested herein, (See Doc. 8). He further avers that defendant Vincent Liggio ("Liggio"), as Co-Executor of the Estate of Helen B. Andrews a/k/a Helen Barrett Andrews a/k/a Helen M. Andrews Individually and as Executrix of the Estate of James J. Andrews, was properly served a copy of the summons and complaint on July 29, 2019 (See Docs. 2 and 7), and has faiied to appear or answer and that the time to do so has expired. Id at ilil 3, 5, and 6. Additionally, service of the instant motion was made on Liggio by mail on August 30, 2019. Doc. 9. Turkish now moves, pursuant to CPLR 3215 (a), for a default judgment against Liggio, as well as against 21st Street, based on its consent to the relief sought herein, extinguishing the Mortgage pursuant to RP APL Article 15. CPLR 32 l 5(a) provides, in pertinent part, that "[ w ]hen a defendant has failed to appear, plead or proceed to tria.l ... the plaintiff may seek a default judgment against him." It is well settled that a party moving for a default judgment pursuant to CPLR 3215 must establish proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the default in answering or appearing. See Gantt v North Shore-LU Health Sys., 140 AD3d 418 (15 1 Dept 157018/2019 SD SECOND AVENUE PROPERTY, LLC vs. LIGGIO, VINCENT Motion No. 001 3 of 5 Page 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 10/09/2019 09:36 AM NYSCEF DOC. NO. 12 INDEX NO. 157018/2019 RECEIVED NYSCEF: 10/09/2019 2016). Moreover, a default in answering the complaint is deemed to be an admission of all factual statements contained in the complaint and all reasonable inferences that flow from them. See Woodwn v Mendon Leasing Corp., 100 NY2d 63 (2003). Based on the foregoing facts, plaintiff has established proof of service, proof of the facts constituting the claim and proof of the default of defendant Liggio. Additionally, defendant 21st Street Lender LLC has clearly consented to the relief requested by plaintiff in this motion. Therefore, in light of the foregoing, it is hereby: ORDERED that the motion by plaintiff SD Second Avenue Property, LLC for a default judgment against defendant Vincent Liggio, Co-Executor of the Estate of Helen B. Andrews a/k/a Helen Barrett Andrews a/k/a Helen M. Andrews Individually and as Executrix of the Estate of James J. Andrews, is granted; and it is further ORDERED that the motion is granted as against defendant 21st Street Lender, LLC, which has consented to the relief sought therein; and it is further ORDERED that a certain Mortgage dated February 15, 1955 by Andrett Realty Corporation, as Mortgagor and Francis Barrett Tolman, as Mortgagee, assigned on June 27, 1967 to Helen Barrett Andrews and James J. Andrews on the property known as 351-359 Second Avenue, New York, New York a/k/a Block 901, Lots 29, 30, and 34 County of New York be and the same is hereby, extinguished ofrecord, and any rights, title or interest of the Defendant Vincent 157018/2019 SD SECOND AVENUE PROPERTY, LLC vs. LIGGIO, VINCENT Motion No. 001 4 of 5 Page 4 of s [*FILED: 5] NEW YORK COUNTY CLERK 10/09/2019 09:36 AM NYSCEF DOC. NO. 12 INDEX NO. 157018/2019 RECEIVED NYSCEF: 10/09/2019 Liggio, as Co-Executor of the Estate of Helen B. Andrews a/k/a Helen Barrett Andrews a/k/a Helen M. Andrews Individually and as Executrix of the Estate of James J. Andrews, in the property are hereby terminated; and it is further ORDERED that, within twenty (20) days of the entry of this order, plaintiff shall" serve a copy of the same on defendants; and it is further ORDERED that this constitutes the decision and order of this Court. 10/7/2019 DATE CHECK ONE: CASE DISPOSED GRANTED D DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 157018/2019 SD SECOND AVENUE PROPERTY, LLC vs. LIGGIO, VINCENT Motion No. 001 5 of 5 D D OTHER REFERENCE Page 5 of 5

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