First Citizens Community Bank v Fleet

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First Citizens Community Bank v Fleet 2020 NY Slip Op 34400(U) June 4, 2020 Supreme Court, Monroe County Docket Number: E2019004308 Judge: J. Scott Odorisi 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. MONROE COUNTY CLERK 06/09/2020 12:49 PM [*FILED: 1] NYSCEF DOC. NO. 103 MONROE COUNTY CLERK’S OFFICE INDEX NO. E2019004308 RECEIVED NYSCEF: 06/08/2020 THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2410122 Book Return To: Maureen P. Ware 99 Exchange Blvd Rochester, NY 14614 Page CIVIL No. Pages: 6 Instrument: ORDER Control #: Index #: 202006090570 E2019004308 Date: 06/09/2020 Time: 12:46:12 PM First Citizens Community Bank Fleet, David L. Fleet, Tracy L. Total Fees Paid: $0.00 Employee: RR State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 202006090570 FILED: MONROE COUNTY CLERK 06/09/2020 12:49 PM [* 2] NYSCEF DOC. NO. 103 \ Index # : E2019004308 INDEX NO. E2019004308 RECEIVED NYSCEF: 06/08/2020 • STATE OF NEW YORK SUPREME COURT COL:JNTY OF MONROE FIRST CITIZENS COMMUNITY BANK, Plaintiff, -vsDAVID L. FLEET and TRACY L. FLEET, Index#: E2019004308 Defendants. Special Term May 26, 2020 APPEARANCES On Submission Jeffrey D. Coren, Esq. Phillips Lytle LLP Attorney for Plaintiff Michael Rothenberg, Esq. Rothenberg Law Attorney for Defendants DECISION Odorisi, J. This action arises out of a Defendants' guaranty of five loans to CNY Homes Holdings, LLC and/or Cornerstone Homes, Inc. by Plaintiff. Pending before this Court is Defendants' motion for: (1) a stay of entry of judgment ending trial on the issue of damages, or in the alternative, (2) a stay pending appeal. -1- Plaintiff, First Citizens 202006090570 FILED: MONROE COUNTY CLERK 06/09/2020 12:49 PM [* 3] NYSCEF DOC. NO. 103 IndexNO. #: E2019004308 INDEX E2019004308 RECEIVED NYSCEF: 06/08/2020 Community Bank ("First Citizens"), cross moves for an order entering judgment in its favor, or in the alternative for an order pursuant to CPLR 5529 restraining Defendants as if a restraining notice had been served on them after judgment, including restraining Defendants from selling or transferring any assets or property held by Defendants' whollyowned entity Buck Hollow Outfitters & Tree Farm, LLC. First Citizens also seeks an award of attorneys' fees and costs. Upon a review of: Defendants' Notice of Motion for a Stay dated March 10, 2020 (Dk!. #73), the Affirmation of Michael Rothenberg, Esq. dated March 10, 2020, with exhibits (Dkt. #81 )- submitted in support of the motion; the Notice of Cross Motion dated May 12, 2020 (Dkt. #85), the Affirmation of Jeffrey D. Coren, Esq. dated May 12, 2020, with exhibits (Dkt. #86)- submitted in opposition to the motion and in support of the cross motion; and the Affirmation of David Rothenberg, Esq. dated May 15, 2020 (Dkt. #98)- submitted in reply on the motion and in opposition to the cross motion, and the Court having heard this matter on submission, it is hereby determined that the motion for a stay is DENIED, and the cross motion for entry of judgment is GRANTED. Procedural History This action was commenced on May 8, 2019. After both parties moved for summary judgment, by Decision dated October 29, 2019, the Court (Rosenbaum, J.) denied Plaintiff's motion for summary judgment and granted summary judgment to Defendants. Plaintiff thereafter filed a Notice of Appeal and moved to reargue. By Decision dated March 5, 2020, the Court granted Plaintiff's motion to reargue and upon reargument, granted Plaintiff's motion for summary judgment and denied Defendants' cross motion for -2- 202006090570 FILED: MONROE COUNTY CLERK 06/09/2020 12:49 PM [* 4] NYSCEF DOC. NO. 103 IndexNO. #: E2019004308 INDEX E2019004308 RECEIVED NYSCEF: 06/08/2020 summary judgment. The Court also granted Plaintiff's motion for an award of attorneys' fees. The pending motion was subsequently filed. Legal Discussion Stay Pending Damages Trial On this motion for a stay, Defendants contend that there are material issues of fact concerning the value of the collateral that serve to reduce any indebtedness owed to Plaintiff. Defendants request a stay pending a trial on the issue of damages. The March 5, 2020 Decision granted reargument to Plaintiff and upon reargument granted summary judgment to Plaintiff and denied summary judgment to Defendants. The grant of summary judgment was not qualified in any way or limited to liability only. As such, summary judgment as to the amount of damages was also granted. There is no trial on damages contemplated by the March 5, 2020 Decision. Defendants' arguments set forth as to damages on this pending motion for a stay are procedurally improper and not properly before the Court given the posture this case is in following the March 5, 2020 Decision. This argument set forth in the alternative to the application for a discretionary stay pending appeal is DENIED. Stay Pending Appeal Defendants also seek a stay pending appeal pursuant to CPLR 5519(c), which provides: (c) Stay and limitation of stay by court order. The court from or to which an appeal is taken or the court of original instance· may stay all proceedings to enforce the judgment or order appealed from pending an appeal or determination on a motion for permission to appeal in a case not provided for in -3- 202006090570 FILED: MONROE COUNTY CLERK 06/09/2020 12:49 PM [* 5] NYSCEF DOC. NO. 103 IndexNO. #: E2019004308 INDEX E2019004308 RECEIVED NYSCEF: 06/08/2020 subdivision (a) or subdivision (b), or may grant a limited stay or may vacate, limit or modify any stay imposed by subdivision (a), subdivision (b) or this subdivision, except that only the court to which an appeal is taken may vacate, limit or modify a stay imposed by paragraph one of subdivision (a). Where an appeal has not been taken, there is no jurisdiction to grant relief relating to the stay of an order. See Legarreta v. Neal, 108 AD3d 1067, 1069 (4'h Dept. 2013). Here, the order on the underlying motion from which Defendants plan to appeal at some point in the future was not even signed when this motion for a stay was filed. As such, this application for a stay pursuant to CPLR 5519(c) is premature. Of course, once Defendants appeal, they will be entitled to seek an automatic stay pursuant to CPLR 5519(a). See Kightlinger v. Kightlinger, 231 AD2d 969 (41h Dept 1996). Defendants application for a stay pursuant to CPLR 5519(c) is DENIED. Cross Motion for Entrv of Judgment First Citizens seek entry of judgment in the form attached to the Affirmation of Jeffrey D. Coren, Esq., or in the alternative, an order pursuant to CPLR 5529 restraining Defendants as if a restraining notice had been served on them after judgment, including restraining Defendants. from selling or transferring any assets or property held by Defendants' wholly-owned entity, Buck Hollow Outfitters & Tree Farm, LLC. In the March 5, 2020 Decision, the Court granted First Citizens's motion to reargue and upon reargument granted summary judgment. The Court did not limit the grant of summary judgment to liability only. As such, the only issue remaining for the Court to determine is the amount of attorneys' fees to be awarded to First Citizens. First Citizens' cross motion for entry of judgment in its favor in the form attached to the Affirmation of Jeffery D. Coren, Esq. is GRANTED. Plaintiff should submit an affidavit -4- 202006090570 FILED: MONROE COUNTY CLERK 06/09/2020 12:49 PM [* 6] NYSCEF DOC. NO. 103 IndexNO. #: E2019004308 INDEX E2019004308 RECEIVED NYSCEF: 06/08/2020 • to the Court with a proposed order in support of an award of attorneys' fees and costs. In sum, Defendants' motion should be DENIED, and First Citizens: cross motion should be GRANTED. As the prevailing party, Plaintiff is directed to E-file a proposed Order within 35 days. '202u.--- Supreme Court Justice '· -5- I

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