Sherman Holding Corp. v Eastern Funding LLC
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Sherman Holding Corp. v Eastern Funding LLC 2020 NY Slip Op 31865(U) June 10, 2020 Supreme Court, New York County Docket Number: 655840/2018 Judge: Debra A. James 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. [* 1] INDEX NO. 655840/2018 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 06/15/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HaN. DEBRA A. JAMES PART lAS MOTION 59EFM Justice --------------------------------------------------------------------------- X SHERMAN HOLDING CORP., INDEX NO. 655840/2018 MOTION DATE 06/25/2019 Plaintiff, MOTION SEQ. NO. 001 - vDECISION + ORDER ON MOTION EASTERN FUNDING LLC, and KKSA GROCERY INC., Defendants. ------------------------------------------------------------------------------- X The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14,15,16,17,18,19,20,21,22,23,24,25,26,27,28,29, 30, 31, 32, 33, 34, 35, 36, 37 were read on this motion to/for DISMISS ORDER Upon the foregoing ORDERED dismiss that the motion the declaratory documents, complaint judgment it is of defendant herein is granted Eastern Funding LLC to to extent that the shall be made in favor of such defendant; a and it is further ADJUDGED entitled and DECLARED to a declaration subject leasehold has a perfected plaintiff that defendant that premises security Eastern its rights (the Equipment) interest in the Funding LLC is assets in the in which such defendant are superior to the rights Sherman Holding Corp., whose rights in the Equipment subordinate thereto; ORDERED that such declaratory 655840/2018 SHERMAN Motion No. 001 are and it is further defendant judgment HOLDING of CORP. VS. Eastern Funding LLC is entitled in its favor and against plaintiff, EASTERN . FUNDING LLC 1 of 4 to with Page 1 of 4 [* 2] INDEX NO. 655840/2018 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 06/15/2020 costs and disbursements to such defendant the Court, and the Clerk is directed in favor of such defendant; ORDERED remaining ORDERED judgment that that entered all caption; accordingly is severed and continued against the and it is further the caption in favor future to enter judgment and it is further that the action defendant; as taxed by the Clerk of papers be amended of defendant filed with to reflect' the Eastern the Funding court bear final LLC, the and amended and it is further ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court Centre Street, Office (60 Centre court's Room records 141B) Street, and the Clerk of the General Room 119), who are directed to reflect the change in the caption (60 Clerk's to mark the herein; and it is further ORDERED Clerk that such service upon the Clerk of the Court and the of the General with the procedures Clerk's set forth County Clerk Procedures at the "E-Filing" page defendant that, shall 655840/2018 SHERMAN Motion No. 001 shall on the J; pursuant court's in accordance on Courthouse Filed Cases website at and (accessible the address and it is further to CPLR serve and file an answer HOLDING CORP. vs. EASTERN be made in the Protocol for Electronically www.n_ycourts.gov/supctmanh) ORDERED Office FUNplNG 2 of 4 LLC 3211)f), the remaining to the complaint within Page 2 of4 [* 3] INDEX NO. 655840/2018 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 06/15/2020 twenty (20) days of service of a copy of this order with notice of entry; and it is further ORDERED that counsel 60 Centre Street, Room platform, or, court preliminary if conference are directed 331, either on the operations on August to appear in lAS Part 59, court permit, approved in person, video for 1~, 2020, 10 A.M. DECISION Defendant moves lender Eastern to dismiss asserted opposes Funding LLC the second cause of action, it against declaration Plaintiff-landlord it, in the complaint. cause of action, plaintiff that Eastern in the premises has no security leased by plaintiff The court finds that movant under CPLR 3211 Lender Agreement" 2016 the only one the motion. In its second burden (Eastern Funding) (the Agreement), interest Eastern plaintiff which in equipment to lessee KKSA Grocery. has satisfied (a) (1) by proffering between seeks a a "Landlord and Eastern states in Paragraph 13, l(A) that the "Subordinates Landlord now has or may have in and to those assets to Lender's and dated April Landlord subject its to Lender any and all rights which perfected security interest that are (the "Equipment") ." Having superior contractually security 655840/2018 SHERMAN Motion No. 001 interest acknowledged Eastern Funding's and there being no allegation HOLDING CORP. vs. EASTERN FUNDING LLC 3 of 4 in the Page 30f4 a [* 4] INDEX NO. 655840/2018 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 06/15/2020 complaint that the Agreement defendant is entitled Hillside Property Riverdale to a declaration Owners Association, Academy, this was an action dismiss is not valid and enforceable, 45 AD2d 683, (1St for declaratory the complaint in its favor. the See Inc. v the Salanter Dept. 1974) judgment, and a declaration Akiba ("However, since it was error to of the parties' rights should have been made.") J1.DE~ RA bA. JAMEt 4. h ""='J.S.C. 0 <1 6/10/2020 DATE CASE DISPOSED CHECK ONE: X GRANTED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES 655840/2018 SHERMAN Motion No. 001 ~ D NON-FINAL GRANTED DENIED . TRANSFER/REASSIGN HOLDING CORP. VS. EASTERN SUBMIT ~ FUNDING LLC 4 of 4 DISPOSITION IN PART ORDER FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page 4 of 4
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