11 W. 126th St. Lender 1 LLC v 11 W. 126th Holdings LLC

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11 W. 126th St. Lender 1 LLC v 11 W. 126th Holdings LLC 2019 NY Slip Op 33042(U) October 7, 2019 Supreme Court, New York County Docket Number: 850027/2018 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 10/08/2019 09:43 AM NYSCEF DOC. NO. 105 INDEX NO. 850027/2018 RECEIVED NYSCEF: 10/08/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ARLENE P. BLUTH IAS MOTION 32 Justice -----------------------------~----------------------------------------~---------X 11WEST126TH STREET LENDER 1 LLC, Plaintiff, INDEX NO. 850027/2018 MOTION DATE N/A MOTION SEQ. NO. -EIB 00 I -v11WEST126TH HOLDINGS LLC,RAVINDRANATH SURIA, DAVID FINEHIRSH, 11WEST126TH STREET LENDER 2 LLC,NEW YORK CITY ENERGY EFFICIENCY CORPORATION, JOHN DOE #1 THROUGH JOHN DOE #12, DECISION + ORDER ON MOTION, ORDER OF REFERENCE Defendant. . a 112 '/2 - 71 -----------------------------------------------------------------------~---------X ool The following e-filed documents, listed by NYSCEF document number (Motion-) •. It, •. •. 8, . . . . . . . . . . . . . . . . . . . . flt, ........ . , , - · 49;91J.~ were read on this motion to/for REFERENCE The motion for summary judgment by plaintiff is granted. Background In this foreclosure action, plaintiff moves for the appointment of a referee to determine how much it is due. Plaintiff seeks to foreclose on a $2 million mortgage and an over $3 million building mortgage lien for a property located at 11 West 126th Street in.Manhattan. In opposition, defendants 11 West 126th Holdings LLC and Ravindranath Suria claim that plaintiffs motion is premature. They point out that there is a pending action before a different judge in which defendant Ne\\'. York City Energy Efficiency Corporation ("NYCEEC") seeks a determination that plaintiffs mortgage was obtained through fraud. They acknowledge that they have taken the position in the NYCEEC.action that there was no fraudulent mortgage transfer but insist that this Court must wait until a determination has 850027/2018 11WEST126TH STREET LENDER vs. 11WEST126TH HOLDiNGS LLC / Motion No. 002 · 1 of 5 Page 1of5 [*FILED: 2] NEW YORK COUNTY CLERK 10/08/2019 09:43 AM NYSCEF DOC. NO. 105 INDEX NO. 850027/2018 RECEIVED NYSCEF: 10/08/2019 been ma~e. They also argue that there has been no discovery iri this case. Defendant Finehirsh also submits opposition in ~hich he makes similar arguments that the instant motion is . ·premature and discovery is needed. In reply, plaintiff points out that there was stipulation of discontinuance filed in the NYCEEC action in which all claims asserted against plaintiff iri that case were dismissed with ~ -~ prejudice. Plaintiff also observes that although NYCEEC is a defendant in this case, it has not appeared or raised the fraudulent conveyance issue as a defense, The Court grants the motion. Although the opposition papers by the defendants claim that the motion is premature and discovery is needed, they do not cite a single unanswered discovery request they have made in this case. If discovery was necessary, then these dt?fendants would ~a;: so~ght di~cover)r"soon~Jfter filingtheir answers:,.;Moreover, no one su;ficiently challenges plaintiff's claim that it is owed money on the mortgage and the building loan. A vague assertion that discovery is needed is not a valid defense to a motion seeking the appointment of referee. And the fact is thii.t NYCEEC discontinued its claims against plaintiff in its case and does not object to the instant motion by plaintiff here. Therefore, there is no reason to deny the motion because of the NYCEEC action. Although defendants speculated at oral argument that there was something fishy going on with the settlement between plaintiff and NYCEEC, they did not submit any substantive evidence justifying the denial of plaintiff's motion. Rather, the record on this motion shows that the loans extended by plaintiff were never paid. Accordingly, it is hereby ORDERED that the motion by plaintiff for a default judgment against the non-appearing defendants and for summary judgment against defendants 11 West 126th Holdings LLC; 850027/2018 11WEST126TH STREET LENDER vs.11WEST126TH HOLDINGS LLC Motion No. 002 2 of 5 Page 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 10/08/2019 09:43 AM NYSCEF DOC. NO. 105 INDEX NO. 850027/2018 RECEIVED NYSCEF: 10/08/2019 Ravindranath Suria, and David Finehir~h is granted and their answers, affirmative defenses arid . any counterclaims are severed and dismissed; and it is further ORDERED that Elaine Shay with an address of 800 Third Avenue, Suite 2800 . . -' f . . ..._ - . New York, .NY 10022, appointed Referee in accordan9e with RP APL § , 212-520-2690, is hereby . 1321 to compute the amount due to Plaintiff and to examine whether the tax parcel can be sold in . '\ parcels; and it is further ORDERED that the Referee may take testimony pursuant to RPAPt § 1321; and it is further . . ORDERED that by accepting this appointment the Referee certifies that 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 appointme_11t"), and §36.2 (d) ('-'Limitations on, . ::- ,. -- "\ j 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 . .( $3 50 shall be paid to the Referee for the computation of the amount due and upon the filing ·of his report and the Referee shall not request or accept additional compensation for the computation unless it has beeri fixed by the court in accordance:with C~PLR 8003(b); and it is further; ORDERED that the Referee is prohibited from accepting or retaining arty funds for . himself or paying funds to himself 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 th~ Referee 850027/2018 11WEST126THSTREET LENDERvs.11WEST126THHOLDINGS LLC Motion No. 002 \ Page 3 of 5 I 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 10/08/2019 09:43 AM NYSCEF DOC. NO. 105 INDEX NO. 850027/2018 RECEIVED NYSCEF: 10/08/2019 within 30 days of the date of this order and shall promptly respond to every inquiry made by the referee (promptly means within two business days); and it is further ORDERED that plaintiff must bring a motion for a judgment of foreclosure and sale within 30 days of receipt of the referee's report; and it is1further 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 ofreference-and the Court may sua sponte toll interest depending on whether the delays are due to plaintiffs failure to move this litigation forward; and it further ORDERED that defendants John Doe #1 through John Doe #12 are removed from the caption, and the caption shall read as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------7----~----------------------------------------~--------)( 11WEST126TH STREET LENDER 1 LLC, Plaintiff, v. 11 WEST 126TH HOLDINGS LLC, RAVINDRANATH SURIA, DAVID FINEHIRSH, 11 WEST 126TH STREET LENDER 2 LLC, NEW YORK CITY ENERGY EFFICIENCY _CORPORATION Defendant(s). --------------------------------------------------------------~-)( 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 . 850027/2018 11WEST126TH STREET LENDER vs. 11WEST126TH HOLDINGS LLC Motion No. 002 4 of 5 ,-· I Page 4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 10/08/2019 09:43 AM NYSCEF DOC. NO. 105 INDEX NO. 850027/2018 RECEIVED NYSCEF: 10/08/2019 Street, Room 119), who are directed to mark the court's records to reflectthe parties being removed ·pursuant hereto; and it is further ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set fo~h in the Protoco!'on Courthouse and County ClerkProceduresfor Electronically Filed Cases (accessible at the "E-Filing" page on the court's website atthe 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 p<;lrties and persons entitled to notice; including the Referee appointed herein. Next Conference: March 10, 2020 @ 2: 15 p.m. If a motion for judgment of foreclosure and sale has been filed, plaintiff may seek an adjouinment of the conference. Please consultthis part's rules for information on how to ~btain an adjournment. If a motion has qeen made, then a conference is required to explore the reasons for the delay. ·/(), 7·/7. DATE CHECK ONE: , ARLENE CASE DISPOSED .GRANTED . APPLICATION: CHECK IF APPROPRIATE: SETTLE ORDER D NON-FINH~rARLENE P. BLUTH DENIED GRANTED IN PART OTHER · SUBMIT ORDER . INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT • D D REFERENCE j • 850027/2018 11WEST126TH STREET LENDER vs. 11WEST126TH HOLDINGS LLC Motion No. 002 5 of 5 Page 5 of 5

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