Board of Mgrs. of the One Sunset Park Condominium v Wong

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Board of Mgrs. of the One Sunset Park Condominium v Wong 2021 NY Slip Op 30615(U) March 1, 2021 Supreme Court, Kings County Docket Number: 508641/2020 Judge: Debra Silber 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 03/02/2021 02:26 PM NYSCEF DOC. NO. 88 INDEX NO. 508641/2020 RECEIVED NYSCEF: 03/02/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : PART 9 ----------------------------------------------------------------------------X BOARD OF MANAGERS OF THE ONE SUNSET PARK CONDOMINIUM, DECISION / ORDER Plaintiff, Index No. 508641/2020 -againstMotion Seq. # 1 WILSON WONG, ET AL, Defendants. ----------------------------------------------------------------------------X Recitation, as required by CPLR 2219(a) of the papers considered in the review of plaintiff’s motion for summary judgment in this partition action Papers NYSCEF Doc, Notice of Motion, Affirmations, Affidavits and Exhibits………. Answering Affidavits……………………………………………. Reply Affidavits…………………………………………………. 55-68 73-83, 86 87 Upon the foregoing cited papers, the Decision/Order on this application is as follows: Plaintiff moves, in this partition action regarding a fifty-four-family multiple dwelling in Brooklyn, NY, converted in 2009 to a condominium, for summary judgment pursuant to Real Property Law Section 339-cc (the Condominium Act section titled “Repair or Reconstruction”) and for related relief. After oral argument, held virtually on Microsoft Teams, the motion is granted solely to the extent that the court hereby grants plaintiff summary judgment and issues this order appointing a Referee to ascertain the parties’ rights and interests, as is required prior to a motion to confirm/reject coupled with an application for an interlocutory judgment to sell, and for a determination of whether there are any liens or judgments on the property or against 1 of 6 [*FILED: 2] KINGS COUNTY CLERK 03/02/2021 02:26 PM NYSCEF DOC. NO. 88 INDEX NO. 508641/2020 RECEIVED NYSCEF: 03/02/2021 the parties. The court finds that the plaintiff has obtained jurisdiction over all of the condominium unit owners, who are all named defendants, and that all of the named defendants have appeared and answered the complaint, that plaintiff has established, as required by RPL §339-cc, that three-fourths or more of the building has been destroyed by fire, and that seventy-five percent or more of the unit owners do not want to repair or restore, which was determined by a vote duly held pursuant to the Bylaws, that the plaintiff condominium board is the owner of the superintendent’s unit, and as such is a unit owner eligible to bring this partition action, and that a Referee should be appointed to determine the rights and obligations of the parties. Upon the foregoing papers, and on motion of Herrick, Feinstein, attorneys for plaintiff, which came on to be heard on March 1, 2021, and there being no opposition to the motion, the attorneys for the defendant who is the holder of unsold units having filed an affirmation in support, and the attorneys for the other unit owners having only opposed the branch of the motion which seeks to dismiss their counterclaims, it is hereby ORDERED that: 1. Plaintiff is granted summary judgment as against all defendants on their claim for partition. 2. Jeffrey Saltiel, Esq., with offices at Wenig, Saltiel LLP, 26 Court Street, Suite 1200, Brooklyn, NY 11242, 718-797-5700, jsaltiel@ltattorneys.com is appointed Referee in this action, to ascertain and report the rights, shares and interests of the 2 2 of 6 [*FILED: 3] KINGS COUNTY CLERK 03/02/2021 02:26 PM NYSCEF DOC. NO. 88 INDEX NO. 508641/2020 RECEIVED NYSCEF: 03/02/2021 parties to this action in the property described in the complaint and of which partition is sought, and to take proof of the parties’ title and interest in the premises and of the matters set forth in the complaint, and to report whether the property, or any part of the property, is so circumstanced as to require a sale, and whether a partition of the property can be made without great prejudice to the owners. 3. If the Referee concludes that a sale of the property is necessary and appropriate, then the Referee shall secure a lien search and ascertain whether there is any creditor, not a party to the action, who has a lien on the subject property or in the undivided share or interest of any party in the property previously described. 4. The Referee shall prepare a list of the fifty-four apartments, with the names of the unit owners indicated and the names and addresses of the holders of any liens, including mortgages, on the units. Account numbers, if included, shall only include the last four digits. The list of units from the Declaration of Condominium is annexed hereto, which lists the unit numbers and the tax lot numbers. 5. The Referee shall determine whether this partition action should proceed under New York’s partition law at RPAPL §901 et seq., or the new NY law recently adopted and adapted from the Commission on Uniform Laws, at RPAPL §993 et seq. Counsel at oral argument indicated they might be able to obtain a stipulation to proceed under the new law, which permits a sale without an auction at the courthouse. 6. The Referee shall report to the court the name of each creditor whose lien is satisfactorily proved before him (or her), the nature and extent of the lien, the date of 3 3 of 6 [*FILED: 4] KINGS COUNTY CLERK 03/02/2021 02:26 PM NYSCEF DOC. NO. 88 INDEX NO. 508641/2020 RECEIVED NYSCEF: 03/02/2021 the lien and the (approximate) amount due or to become due on each of the liens. 7. The Referee shall make his/her report (by E-Filing same) no later than 90 days from the date of this order, and except for good cause shown, the Plaintiff shall move to confirm the Referee’s report and for an interlocutory judgment to sell no later than 90 days from the date of the Referee’s report. 8. With the submission of the Referee’s Report, the Referee shall include an affirmation of services rendered so the court may award the Referee compensation for his/her services, which sum may be recovered by plaintiff as a cost of litigation. 9. The Referee appointed herein is subject to the requirements of Rule 36.2(c) of the Chief Judge, and, if the Referee is disqualified from receiving an appointment pursuant to the provisions of that Rule, the Referee shall notify the Appointing Judge forthwith. 10. By accepting this appointment the Referee certifies that he/she is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including but not limited to, Section 36.2(e) (“Disqualifications from appointment”), and Section 36.2(d) (“Limitations on appointments based upon compensation”). The branch of the plaintiff’s motion which seeks an order dismissing the unit owner defendants’ counterclaims (not asserted by the defendant 4401 Sunset Holdings LLC, the holder of unsold units) is denied with regard to the first counterclaim (for an accounting), and granted with regard to the second counterclaim (for a declaratory judgment of the rights of the parties, as it is duplicative of the relief 4 4 of 6 [*FILED: 5] KINGS COUNTY CLERK 03/02/2021 02:26 PM NYSCEF DOC. NO. 88 INDEX NO. 508641/2020 RECEIVED NYSCEF: 03/02/2021 required of the court in a partition action) . Accordingly, it is ORDERED that the defendants’ first counterclaim (for an accounting) is hereby severed and shall continue. All other relief requested in the motion is denied. As this action was improperly captioned with regard to the name of the plaintiff, which error is not fatal and may be corrected, it is ORDERED that the name of the plaintiff, in accordance with General Associations Law §12, is amended to be: “Leroy P. Shepherd, as President of the Board of Managers of the One Sunset Park Condominium.” This shall constitute the decision and order of the court. Dated: March 1, 2021 ENTER: _________________________ Hon. Debra Silber, J.S.C. 5 5 of 6 [*FILED: 6] KINGS COUNTY CLERK 03/02/2021 12/04/2020 02:26 06:59 PM NYSCEF DOC. NO. 88 61 INDEX NO. 508641/2020 RECEIVED NYSCEF: 03/02/2021 12/04/2020 EXHIBIT B TO THE DECLARATION ONE SUNSET PARK OF CONDOMINIUM 702 44th Street, Brooklyn, NY 11220 Block 641 - Lots 1001-1054 DESCRIPTION OF THE UNITS NUMBER OF BEDROOMSIBATHS UNIT KlTCHEN, STUDY 1A 1/1+K 2A 1/1+K 2/1 3A 1/1+K 4A 5A 1/1+K 6A 1/1+K 18 2/1 2B 2/1 3B 1/1+K 4B 2/t 5B 1/1+K 6B 1/1+K 1C 1/1+K 2C 2/1 1/1+K 3C 1/1+K 4C 5C 2n 2/1 GC 1D 2/1 2D 2/1+K 3D 2/1+K 4D 2/1+K 5D 2/1+K 8D 2/1+K 1E 1/1+K 2E 1/1+K 3E 1/1+K 4E 1/1+K 2/1 5E_ 6E 1/1+K 1F Studio/1+S 1/1+K 2F_ 3F 1/1+K 4F 1/1+K 5F 1/1+K 6F 2/1 1G 2/1+K 2G 2/1+K 3G 2/1 +K 2/1+K 4G 5G 2/2+K+S 6G 2/1+K 1H 1/1+K 2H 1/1+K 3H 1/1+K 4H 2/1 SH 2/1 6H 2/1 1J 1/1+K 1/1+K 2J_ 3J 1/1+S 4J 1/1 5J 1/1 6J 1/1 APP tOXIMATE TOT (L SQ. FT. BALCONY/ UNIT TERRACE 878 n/a 878 n/a 878 n/a 878 n/a 878 n/a 878 n/a 860 Wa 800 n/a 880 n/a 800 n/a 860 n/a 860 n/a 830 n/a n/a 830 830 n/8 830 n/a 830 n/a 830 n/a 922 n/a 1,114 n/a 1,114 n/a 1,114 n/a 1,114 n/a 1,114 n/a 685 n/a 846 Na 846 n/a 846 n/a 846 n/a 846 n/a 562 n/a 794 n/8 794 R/a 794 n/a 794 n/a 794 n/a 1,059 n/a 1,059 n/a 1,059 n/a 1,059 n/a 1,059 n/a 1,059 n/a 792 n/a 792 n/a 792 n/a 901 n/a 901 n/a 901 R/a 754 n/a 754 n/a 754 n/a 645 n/a 645 n/a 645 n/a LOCATION IN PORTION OF BUILDING FACING COMMON ELEMENTS TO WHICH THE UNIT HAS BLOCK TAX % OF COMMON DIRECTION SET FORTH IMMEDIATE ACCESS INTEREST BELOW LOT NO. 1.8689997 SW 741/1001 Corridor, elevator, stairs SW 1.8689997 741/1002 Corridor, elevator, Stairs 1.8689997 SW 741/1003 ICOrridor, elevator, stairs 1.8889997 SW 741/1004 Corridor, elevator, Stairs 741/1005 1.8689997 SW Corridor, elevator, stairs SW 741/1006 1.8689997 COrridor, elevator, stairs 741/1007 1.8308831 SW COrridor, elevator, stairs SW 741/1008 1-8308831 Corridor, elevator, stairs SW 741/1009 1.8306831 _ COrridor, elevator, stairs 74t/1010 SW 1.8300831 Corridor, elevator, stairs 741/1011 1.8306831 SW Corridor, elevator, stairs SW 741/1012 1.8306831 COrridor,elevator, stairs 741/1013 1.7668221 W COrridor,elevator, stairs 741/1014 W 1.7668221 Corridor, elevator, stairs 741/1015 W 1.7668221 Conidor, elevator, stairs W 741/1016 1.7868221 Corridor, elevator, stairs 741/1017 W 1.7668221 coriidor, elevator, stairs W 741/1018 1.7668221 Corridor, elevator, stairs 741/1019 NW 1.9626626 COrridOr,elevator, stairs 741/1020 NW 2.3713732 Corridor, elevator, stairs NW _ 741/1021 2.3713732 COrridor,elevator, stairs NW 741/1022 2.3713732 Corridor, elevator, stairs 741/1023 NW 2.3713732 COrfidor, elevator, stairs 741/1024 NW 2.3713732 COrridor, elevator, stairs 741/1025 1.4581604 NW Corridor, elevator, stairs 741/1026 NW 1.8008813 Corridor, elevator, stairs 741/1027 NW 1.8008813 Corridor, elevator, stairs 741/1028 NW 1.8008813 Corridor, elevator, stairs 741/1029 1.8008813 NW COrridor, elevator, stairs NW 741/1030 1.8008813 Corridor, elevator, stairs 741/1031 1.1963301 NE Corridor, elevator, stairs 741/1032 NE 1.6901888 COrridor, elevator, stairs 741/1033 1.6901888 NE CorridOr,elevator, stairs 741/1034 NE 1.6901888 Corridor, elevator, stairs 741/1035 1.6901888 NE COrridor,elevator, stairs 741/1036 NE 1.6901888 Corridor, elevator, stairs 741/1037 2.2542947 NE COrridor,elevator, stairs 741/1038 2.2542947 NE Corridor, elevator, stairs 741/1039 2.2542947 NE COnidor, elevator, stairs 741/1040 2.2642947 NE Corridor, elevator, stairs 741/1041 2.2542947 NE Corridor, elevator, stairs 741/1042 2.2542947 NE Corridor, elevator, stairs 741/1043 1.6859314 SE COrridor, elevator, stairs 741/1044 1.6859314 SE Corridor, elevator, stairs 1.6859314 741/1045 SE Corridor, elevator, stairs 741/1046 1.9179599 SE Corridor, elevatortstairs 741/1047 1.9179599 SE Corridor, elevator, stairs 741/1048 SE 1.9179599 COrridor, elevator, stairs 741/1049 1.6050408 SE Corridor, elevator, stairs 741/1050 1.605040B SE Corridor, elevator, stairs 741/1051 1.6050408 SE Corridor, elevator, stairs 741/1052 SE 1.3730123 Corridor, elevator, stairs 741/1053 1.3730123 SE COrridor, elevator, stairs 741/1054 1.3730123__ SE Corridor, elevator, stairs 6 of 6

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