Citimortgage, Inc. v Kuperberg

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Citimortgage, Inc. v Kuperberg 2020 NY Slip Op 30394(U) January 29, 2020 Supreme Court, New York County Docket Number: 850246/2017 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 01/29/2020 04:23 PM NYSCEF DOC. NO. 163 INDEX NO. 850246/2017 RECEIVED NYSCEF: 01/29/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: IAS MOTION 32 PART HON. ARLENE P. BLUTH Justice -----------------------------------------'----------------------------------------X CITIMORTGAGE, INC., IND EX N0. 850246/2017 MOTION DATE Plaintiff, MOTION SEQ. NO. _ __:0:...::0..:::..3L0::..:0:_;4'---- -v. ALICIA KUPERBERG, SIDNEY BELZBERG, BOARD OF MANAGERS OF 109 FIFTH AVENUE CONDOMINIUM, ARDMORE INVESTMENTS 2010, LLC DECISION + ORDER ON MOTION, JUDGMENT OF FORECLOSURE AND SALE Defendant. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 131, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156 were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT The following e-filed documents, listed by NYSCEF document number (Motion 004) 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145 were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT Motion sequence numbers 003 and 004 are consolidated for disposition. The motion (MS003) by plaintiff to confirm the referee's report is granted and the cross-motion by defendant .J: Ardmore Investments 2010, LLC ("Ardmore") to reject the report is denied. The motion ..... -' :;, (MS004) by defendant Board of Managers of the 1049 Fifth.Avenue Condominium s/h/a Board .. al 0:. of Managers of the 109 Fifth Avenue Condominium (the "Condo") to confirm the referee's @w -~· U; O;: · d regard"mg h owl\ ·""h"c1c · due is · grante.d.. report issue t e ondo is . · I In this foredosure action, both plaintiff and the Condo moved to confirm the reports of 'l:i" 2 the referee. A referee was appointed to calculate both how much was due to the plaintiff and how :r much was due to the Condo. Defendant Ardmore Investments 2010, LLC ("Ardmore") opposed 0 850246/2017 CITIMORTGAGE, INC. vs. KUPERBERG, ALICIA Motion No. 003 004 1 of 11 Page 1of10 [*FILED: 2] NEW YORK COUNTY CLERK 01/29/2020 04:23 PM NYSCEF DOC. NO. 163 INDEX NO. 850246/2017 RECEIVED NYSCEF: 01/29/2020 plaintiffs motion and cross-moved to reject the report of Mark McKew, which found that plaintiff was due $1,873,627;60 as of February 4, 2019. At oral argument on August 1, 2019, the Court issued an interim order that directed plaintiff to provide Ardmore with support for the amounts contained in the referee's report \ (NYSCEF Doc. No. 156). The order also instructed "Defendants to submit opposition, if any to those proofs and the motion" (id.). Plaintiff e-filed a letter dated November 22, 2019 in which it purported to attach the evidence supporting the amount it cl~ims it is due (NYSCEF Doc. Nos. 157-59). Plaintiff admitted it was filing this information late (the Court had imposed an October· 3, 2019 deadline) and asked the Court to adjourn the motion so that defendants could review the information (id.). Although an adjournment was granted, Ardmore failed to submit any objections in writing and, at oral argument on January 28, 2020, it offered no specific objections to plaintiffs supplemental affidavit. Therefore, the Court has no choice but to confirm the report and deny Ardmore's cross-motion. Ardmore had an opportunity to explain why the Court should reject the additional information submitted by plaintiff justifying the amount it seeks and Ardmore did not do so. Accordingly, it is hereby ORDERED and ADJUDGED that the motion by plaintiff (MS003) to confirm the referee's report and for a judgment of foreclosure and sale is granted and the ?ross-rhotion by Ardmore Investments 2010, LLC is denied; and it is further ORDERED that the motion by defendant Board of Managers of the 1049 Fifth Avenue Condominium s/h/a Board of Managers of the 109 Fifth Avenue Condominium to confirm the referee's report concerning how much it is due is granted without opposition; and it is further 2 of 850246/2017 CITIMORTGAGE, INC. vs. KUPERBERG, ALICIA 11 Page 2of10 [*FILED: 3] NEW YORK COUNTY CLERK 01/29/2020 04:23 PM NYSCEF DOC. NO. 163 INDEX NO. 850246/2017 RECEIVED NYSCEF: 01/29/2020 ORDERED that the mortgaged property described in the complaint and as described in this judgment, or such part thereof as may be sufficient to discharge the mortgage debt, the expense of sale and the costs of this action as provided in the RP APL be sold within 90 days of this judgment, in one parcel, at a public auction at the New York County Courthouse located at 60 Centre Street, New York, New York on a Wednesday at 2: 15 p.m. under the direction of Mark McKew, with an address of 1725 York Ave, Suite 29A, New York, NY 10128, (212) 8766783, who is appointed Referee for this purpose; and it is further ORDERED that the Referee shall give public notice of the time and place of sale in accordance with RP APL 231 (2) in the New York Law Journal; and the referee need not conduct the sale unless plaintiff shall provide the referee with proof of publication of the notice of sale, and if the sale is adjourned due to plaintiffs failure to provide such proof, then said adjournment · shall not be considered at the referee's request; 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 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 the Referee shall conduct the foreclosure sale only if Plaintiff, its successors and/or assignees or its representatives is present at the sale or the Referee has 850246/2017 CITIMORTGAGE, INC. vs. KUPERBERG, ALICIA Motion No. 003 004 3 of 11 Page 3of10 .f [*FILED: 4] NEW YORK COUNTY CLERK 01/29/2020 04:23 PM NYSCEF DOC. NO. 163 INDEX NO. 850246/2017 RECEIVED NYSCEF: 01/29/2020 received a written bid and Terms of Sale from Plaintiff, its successors and/or assigns, or its representatives; and it.is further ORDERED that ifthe Referee cannot conduct the sale within 90 days of the date of this judgment, plaintiff must make a motion to extend the time to sell the subject property explaining the reasons for the delay; and it is further ORDERED that at the time of sale the Referee may accept a written bid from the Plaintiff or the Plaintiff's attorney, just as though Plaintiff were physically present to submit said bid; and it is further ORDERED that the Referee shall accept the highest bid offered by a bidder who shall be identified upon the court record, and shall require that the successful bidder immediately execute Terms of Sale for the purchase of the property, and pay to the Referee in cash, certified .check or bank check, ten percent ( 10%) of the sum bid, unless the successful bidder is Plaintiff, in which case no deposit against the purchase process shall be required and it is further ORDERED that notwithstanding the previous paragraph, the Referee shall have the right to refuse cash payments and require a bank or certified check from the successful bidder and the Referee shall be entitled to qualify bidders and require bidders to show proof of funds before or during the auction; and it is further ORDERED that in the event the first successful bidder fails to execute the Terms of Sale or fails to immediately pay the ten percent (10%) deposit as required, the property shall be immediately reoffered at auction on the same day; and it is further ORDERED the Referee shall deposit the down payment and proceeds of sale, as necessary in an FDIC-insured bank where the Referee has an account for that purpose in accordance with CPLR 2609; and it is further 850246/2017 CITIMORTGAGE, INC. vs. KUPERBERG, ALICIA Motion No. 003 004 4 of 11 Page 4of10 [*FILED: 5] NEW YORK COUNTY CLERK 01/29/2020 04:23 PM NYSCEF DOC. NO. 163 INDEX NO. 850246/2017 RECEIVED NYSCEF: 01/29/2020 ORDERED that afterthe balance of the purchase price is paid or credited and the property is sold, the Referee shall execute a deed to the purchaser in accordance with RP APL 1353 and the terms of sale (which shall be deemed a binding contract); and it is further ORDERED that in the event a party other than Plaintiff becomes the purchaser at the . ) . sale, the closing of title shall be held no later than 30 days after the dat.e of such sale; and it is further ORDERED that, pursuant to RP APL 1353(1), if Plaintiff (or its affiliate as defined in paragraph [a] of subdivision one of section six-1 of the banking law) is the purchaser, the property shall be placed back on the market for sale or other occupancy within 180 days of the execution of the deed of sale or within 90 days of construction, renovation, or rehabil.itation of the property, provided that such construction, renovation or rehabilitation proceeded diligently to completion, whichever comes first, provided that this court grants an extension upon a showing of good cause; and it is further ORDERED that the Referee, after receiving the proceeds of the sale, shall pay (from the proceeds) the taxes, assessments, sewer rents, or water rates, which are, or may become, liens on the property in accordance with their priority according to law with such interest or penalties which may have lawfully accrued thereon to the date of payment; and it is further ORDERED that the Referee shall deposit the balance of the proceeds from the sale i~ his or her own name as Referee in an FDIC-insured bank where the Referee has an account for that purpose and shall make the following payments in accordance with RPAPL 1354: 850246/2017 CITIMORTGAGE, INC. vs. KUPERBERG, ALICIA Motion No. 003 004 5 of 11 Page 5of10 [*FILED: 6] NEW YORK COUNTY CLERK 01/29/2020 04:23 PM NYSCEF DOC. NO. 163 INDEX NO. 850246/2017 RECEIVED NYSCEF: 01/29/2020 .f 1. The Referee's fees for conducting the sale, which are $1,100. ·Plaintiff shall also compensate the Referee in the sum of $350 for each adjournment or cancellation made on less than two business days' notice unless the Referee caused the delay. 2. ,All taxes, assessments and water rates that ·are liens upon the property and monies necessary to redeem the property from any sales for unpaid taxes, assessments or waterrates and any other amounts due in accordance with RPAPL 1354(2). The purchaser shall be responsible for interest and penalties accrued after the sale. The Referee shall not be responsible for the payment of penalties or fees pursuant to this appointment. The purchaser shall hold the Referee harmless from any such penalties or fees assessed; 3. The expenses of the sale and the advertising expenses as shown on the bills presented. ( and certified by the Referee to be correct, copies of which shall be annexed to the report of sale. 4. The Referee shall also pay to the Plaintiff or its attorneys the following: a. Amount Due from the Referee's Report: $1,873,627.(;)0 with interest at the note rate from February 4, 2019 until entry of judgment, together with any · advances as provided for in the note and mortgage which Plaintiff had made for taxes, insurance, principal, and interest and any other charges due to prior mortgages or to maintain the property pending consummation of the foreclosure sale, not included in the computation upon presentation ofreceipts for said expenditures to the Referee, and then with interest from the date of entry of this judgment at the statutory rate until the date the deed is transferred 850246/2017 CITIMORTGAGE, INC. vs. KUPERBERG, ALICIA· Motion No. 003 004 ' 6 of 11 Page 6of10 [*FILED: 7] NEW YORK COUNTY CLERK 01/29/2020 04:23 PM NYSCEF DOC. NO. 163 INDEX NO. 850246/2017 RECEIVED NYSCEF: 01/29/2020 b. Costs and Disbursements: ---~-------(to be filled in by the Clerk) to Plaintiff for costs and disbursements in this action with interest at · the statutory judgment rate from the date of entry of this judgment; c. The Court declines to award additional allowance. d. Attorneys' Fees: $4,950,00 is awarded to plaintiffs counsel as reasonable attorneys' fees with interest at the statutory rate from the date of entry of this judgment. e. The referee shall then pay $60,180.99 to defendant Board of Managers of the 1049 Fifth Avenue Condominium s/h/a Board of Managers of the 109 Fifth Avenue-Condominium with interest from February 28, 2019 until the date of entry of this judgment and then at the statutory rate until the date the deed is transferred. f. Attorneys' fees to Condo: $4,146.59 is awarded to counsel for the Condo as reasonable attorneys' fees with interest at the statutory rate from the date of entry of this judgment. · 5. Surplus monies from the sale shall be paid into Court by the Referee within five days after receipt in accordance with RP APL 1354(4); and it is further ORDERED that if Plaintiff is the purchaser of the proper1:y, or in the event that the rights of the purchasers at the sale and the terms of sale under this judgment shall be assigned to or be acquired by Plaintiff, and a valid assignment is filed with the Referee, the Referee shall not require Plaintiff to pay in cash the entire amount bid at sale, but shall execute and deliver to Plaintiff or its assignee, a deed or deeds of the property sold upon the payment to said Referee of the amounts specified as 1, 2, and 3 above, and the Referee shall allow Plaintiff to pay the 850246/2017 CITIMORTGAGE, INC. vs. KUPERBERG, ALICIA Motion No. 003 004 7 of 11 Page 7of10 [*FILED: 8] NEW YORK COUNTY CLERK 01/29/2020 04:23 PM NYSCEF DOC. NO. 163 INDEX NO. 850246/2017 RECEIVED NYSCEF: 01/29/2020 amounts specified in 2 and 3 above when it is recording the deed; that the bala~ce of the bid, after deducting the amounts paid by Plaintiff, shall be applied to the amount due to Plaintiff as specified in 4 above; that Plaintiff shall pay any surplus after applying the balance of the bid to the Referee, who shall deposit it in accordance with 5 above; and it is further ORDERED that all expenses ofrecording the Referee's deed, including real property transfer taxes, which is not a lien upon the property at the time of sale, shall be paid by the plaintiff from the sale proceeds; and it is further ORDERED that Plaintiff may seek to recover a deficiency judgment in accordance with RP APL 13 71 if applicable; ORDERED that if the property is sold in one parcel in "as is" physical order and condition, subject to any condition that an inspection of the property would disclose; any facts that an accurate survey of the property would show; any covenants, restrictions, declarations, reservations, easements, right of way, and public utility agreements ofrecord, if any; any building and zoning ordinances of the municipality in which the mortgaged property is located and possible violations of same; any rights of tenants or persons in possession of the subject property; prior liens ofrecord, if any, except those liens addressed in RP APL 1354, any equity of redemption of the United States of America to redeem the property within 120 days from the date of sale, any rights pursuant to CPLR 317, 2003 and 5015 or any appeal of the underlying action or additional litigation brought by any defendant or its successor or assignee contesting the validity of this foreclosure; and it is further ORDERED that the purchaser be let into possession of the property upon production in hand of the Referee's Deed or upon personal service of the Referee's deed in accordance with CPLR 308; and it is further of 11 850246/2017 CITIMORTGAGE, INC. vs. KUPERBERG, 8 ALICIA aa.-.. :..... - 1..1..... nn~ nnA Page 8of10 [*FILED: 9] NEW YORK COUNTY CLERK 01/29/2020 04:23 PM NYSCEF DOC. NO. 163 INDEX NO. 850246/2017 RECEIVED NYSCEF: 01/29/2020 ORDERED that defendants in this action and persons claiming through them and any person possessing a junior interest in the property after the Notice of Pendency was filed are barred and foreclosed of all right, claim, lien, title, and interest in the property after the sale of the mortgaged property; and it is further ORDERED that within 14 days after completing the sale and executing the proper conveyance to the purchaser, the Referee shall file with the clerk a report under oath of the disposition of the proceeds of the sale and upload the report to NYSCEF if it is an e-filed case; and it is further ORDERED that ifthe purchaser or purchasers at said sale default upon the bid or terms of sale, the Referee may place the property for resale without prior application to this Court unless Plaintiffs attorney elects to make such an application; and it is further ORDERED that Plaintiff shall serve a copy of this judgment with notice of entry upon the owner of the equity ofredemption, any tenants named in this actio~, and any other parties entitled to service, including the Referee appointed herein; and it is further ORDERED that I).Othing herein shall be deemed to relieve Plaintiff of any obligation imposed by RPAPL 1307 or 1308 to secure and maintain the property until ownership of the \ . : property has been transferred and the deed duly recorded; and it is further · ORDERED that when the Referee files a report of sale, she or he shall also file a Foreclosure Action Surplus Monies Form and also upload this document to NYSCEF if an efiled case; and it is further ORDERED that plaintiff shall upload the notice. of sale to NYSCEF at least 21 days before the sale and the Referee and plaintiff shall e-mail.SFC-Foreclosures@nycourts.gov at least 21 days before the auction date so the auction may be placed on the auction calendar; IF 850246/2017 CITIMORTGAGE, INC. vs. KUPERBERG, ALICIA Motion No. 003 004 9 of 11 Page 9of10 [*FILED: 10] NEW YORK COUNTY CLERK 01/29/2020 04:23 PM NYSCEF DOC. NO. 163 INDEX NO. 850246/2017 RECEIVED NYSCEF: 01/29/2020 THE AUCTION IS NOT ON THE CALENDAR, then the auction will not go forward; and it is further ORDERED that, without further order of the Court, the referee shall be entitled to an additional fee of $950 for conducting and attending a closing with a purchaser other than plaintiff, plus, if such a closing is scheduled for the referee's conference room, then the referee shall be entitled to a reasonable fee for use thereof, without further order of the Court. \ A description of the premises is annexed hereto as schedule A. The property is commonly known as 1049 Fifth Avenue, 8b, New York, NY 10028. ARLENE P. BLUTH, J.S.C. DATE CHECK ONE: CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 850246/2017 CITIMORTGAGE, INC. vs. KUPERBERG, ALICIA Motion No. 003 004 10 of 11 D D OTHER REFERENCE ~age 10of10 [*FILED: 11] NEW YORK COUNTY CLERK 01/29/2020 04:23 PM NYSCEF DOC. NO. 163 INDEX NO. 850246/2017 RECEIVED NYSCEF: 01/29/2020 SeheduleA TheCll.\llamlalut.an.l(!H'n:illalu rdmlSI tau Ille "l..bll") •11111\WJllS RllSlikniial U\il8B I.Ii 1119bU~iq,a(JllninDBm ul'lmol li>ntlc "!lulidin&')llMi'W Iii 1Clf'I tliMI AWIUIC Ccia&ulliaw1D • 11>' IM•11111 J'llllJbll' )Ollfllilll! A~ :Now Yml, New Ymlr. aid l.Dl hlq,d!lllpaltll 11111ld111lilbllll io • ai'8md~rlllion d~IQll ~ 21, 199l m•bir ~- Aaerialap1111.ito .J\ni•1119•naf&liollfall'n>J1ar1,y.i...rora..sai. t>f.,,... 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