Reich v 559 St. Johns PL LLC

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Reich v 559 St. Johns PL LLC 2020 NY Slip Op 34089(U) December 9, 2020 Supreme Court, Kings County Docket Number: 506861/19 Judge: Lawrence S. Knipel 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] KINGS COUNTY CLERK 12/09/2020 03:15 PM NYSCEF DOC. NO. 104 INDEX NO. 506861/2019 RECEIVED NYSCEF: 12/09/2020 At an IAS 1'erm, Part Comm 6 of the Supreme Court of the State of New York, held in and for the Cou11ty of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 9in day of December, 2020. PRESENT: HON. LAWRENCE KNIPEL, Justice. - - - - - - - - -- -- - - - -- - - - - - - - - -- - - - - -- --X ALEXANDER REICtl, Plaintifl; Index No. 506861119 - against - 559 ST. JOHNS PL LLC; LATANYA PIERCE; LENOX PACIFIC LLC; THE CITY OF NEW YORK; NEW YORK CJ1'Y DEPARTMENT OF TAXATION AND FINANCE; NEW YORK CITY DEPARTMENT OF I-Ious1NG PRESERVATION AND DEVELOPMENT; NEW YORK CtTY ENVIRONMENTAL CONTROL BOARD; "JOHN DOE #1" through "JOHN DOE #12" the last twelve na111es bei11g fictitious and unknown to plaintiff: the perso11s or corporatio11s, if any, having or clai1ning an interest in or lien upon the pre1nises, described in the co1nplaint, Defendants. - --- - - - - --- - - --- - - - - - - - -- - - - - - -- - --X NYSCEF Doc. Nos. The following e-filed papers read herein: Notice of Motion/Order to Sl1ow Cause/ Petition/Cross Motion ai1d Affidavits (Affirma1io11s) An11exed,_ _ _ __ 88-93 Opposing Affidavits (Affirmations), _ _ __ 94-98 Reply Affidavits (Affirn1ations), _ _ _ _ __ 99-103 Upon the foregoing papers in this action to foreclose a 1nortgagc encu1nbering the real property at 1308 Caton Avenue in Brooklyn (Property), plaintiff Alexander Reich (Reich) moves (in motion sequence [mot. seq.] three) for an order, pursuant to CPLR 2 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 12/09/2020 03:15 PM NYSCEF DOC. NO. 104 INDEX NO. 506861/2019 RECEIVED NYSCEF: 12/09/2020 6405, appointing a substitute receiver. By a September 11, 2019 order (Receiver Order), the court (Vaughan, J.) appointed Bruno Codispoti, Esq. as the receiver over the Property. Thereafter, defendant 559 St. Johns Pl LLC (St. Johns) moved for an order vacating the Receiver Order on the ground that there was no need for ·a receiver since the Property is owner occupied and not in danger of being "te111oved fro111 the state, or lost, tnaterially injured or destroyed." By an August 3, 2020 order (Denial Order), the court (Partnow, J.) denied the motion by St Johns to vacate the Receiver Order holding that: "Under [RPL § 254 and RPAPL § 1325 (!)], as well as the applicable mortgage paragrapl1s, Reich is entitled to have a receiver appoi11ted without notice to St. Johns or the other defendants. Therefore, this inotion is denied i11 its entirety." On October 1, 2020, plai11tiffs counsel received an email from the receiver, Bruno Codispoti, in which the receiver renou11ced his appoint1nent and directed that a inotion be inade to appoint a substitute receiver. Reich promptly ·filed tl1e instant motion seeking such relief. St. Johns, in opposition, argues that Reich's 111otion to appoint a substitute receiver should be denied because: (I) Reich has not proved his standing to foreclose; (2) the Property is owner occupied, and thus, there are no rents and profits for a receiver to collect; and (3) the law does not provide for the substitution of a receiver. St. Johns further argues that, in light of the COVID-19 pandemic, "[n]o homeowner should be subjected to the additional burde11 of paying any additional 111oney to a Receiver, 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 12/09/2020 03:15 PM NYSCEF DOC. NO. 104 INDEX NO. 506861/2019 RECEIVED NYSCEF: 12/09/2020 especially \vhen the ho1ne is \vell 111ait1tained and up to date with its running costs." St. Johns also asserts that a court of equity 1nay exercise its discretio11 to deny an application for the appoint1nent of a receiver, despite the JEtct that the mortgage allows the appoint1nent of a receiver. Reich, in reply, argues that St. Joh11s opposes the instant 1notion with the same arguments that the court previously rejected in its motion to vacate th·e Receiver Order. Reich asserts that "[t]he propriety of the appoint1nent of a receiver is now the la\V of the case subject only to the Notice of Appeal which was filed by Defendants on August 19, 2020 ... " 'l~he doctrine of la\V of the case "is a judicially crafted policy that 'expresses the practice of courts generally to refuse to reopen what has been decided ... "' (People v Evans, 94 NY2d 499, 503 [2000] [quoting Messenger v Anderson, 225 US 436, 444 (1912)]). ·St Johns asserts grounds to oppose the instant 1notio11 for a substitute receiver tl1at were previously considered and rejected when its tnotio11 to vacate the Receiver Order was denied. 'fhe court has previously detennincd that a receiver is \Varra11ted by statute and u11dcr the tertn& of the· mortgage, whicl1 is la\V of the case. Accordingly, it is / (/ is ORDERED that Reich's motion (in mot. seq. three) for the appointment of a sti;~te receiver is granted, and !Yl(0kJI ~eSfl(~~by appointed as the No. ftve. Suik 8'11 New 10ic!Jl tJ"/ i 6So I 6~~ sq0 /3sq 'llb 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 12/09/2020 03:15 PM NYSCEF DOC. NO. 104 INDEX NO. 506861/2019 RECEIVED NYSCEF: 12/09/2020 substitute receiver over the Property in this foreclosure actio11. This constitutes the dccisio11 and order of the court. ENT E R, I. S. C. stice Lawrence Knipe! 4 of 4

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