U.S. Bank N.A. v Radyo Panou Inc.

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U.S. Bank N.A. v Radyo Panou Inc. 2021 NY Slip Op 31296(U) April 15, 2021 Supreme Court, Kings County Docket Number: 526818/19 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 04/15/2021 04:56 PM NYSCEF DOC. NO. 102 INDEX NO. 526818/2019 RECEIVED NYSCEF: 04/15/2021 At an IAS 1'erm, Part Comm-6 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the l 51h day of April, 2021 PRESENT: HON. LAWRENCE KNIPEL, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR VELOCITY COMMERCIAL CAPITAL LOAN TRUST 2017-1, Plaintiffs, - against - Index No. 526818119 RAD YO PANOU INC, GEFFRARD JOSEPH, NYC BUREAU OF HIGHWAY OPERATIONS, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY PARKING VIOLATION BUREAU, RADIO PANOU, ELISNER BRUES and JOHN SMITH, Defendants. --------------------------------------X The following efiled papers read herein: Papers Numbered Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed._ _ _ __ 75 Opposing Affidavits (AffiIWations)_ _ _ __ 95 Reply Affidavits (Affirmations),_ _ _ _ __ _ _ _ _ _Affidavit (Affirmation) in support 77 85 Upon the foregoing papers, plaintiff U.S. Bank National Association, as trustee for Velocity Commercial Capital Loan Trust 2017-I, moves for an order: (i) pursuant to CPLR 3212, granting sununary judgment against defendants Radyo Panou Inc. (Radyo) 1 of 5 [*FILED: 2] KINGS COUNTY CLERK 04/15/2021 04:56 PM NYSCEF DOC. NO. 102 INDEX NO. 526818/2019 RECEIVED NYSCEF: 04/15/2021 and Geffrard Joseph (Joseph); (ii) pursuant to CPLR 3215, granting a default judgment against defendants NYC Bureau of Highway Operations, New York City Environmental Control Board, New York City Parl<ing Violation Bureau, Radio Panou, Elisner Brues and John Smith; and (iii) appointing a referee to compute the amount due. Plaintiff commenced this action to foreclose a commercial mortgage encrunbering the property at 1685 Nostrand Avenue in Brooklyn. The mortgage was executed by Radyo on November 9, 2016 to secure a $429,000 note in favor of Velocity Commercial Capital Inc. (Velocity). As additional security, Joseph executed a personal guaranty. By assignment dated November 16, 2017 aud recorded December I, 2017, the subject mortgage "[t]ogether with the note(s) aud obligations therein described or referred to," were assigned from Velocity to plaintiff. According to the verified complaint, filed on December JO, 2019, Radyo defaulted under the terms of the mortgage and note by failing to make the monthly payments due on August I, 2019 and each month thereafter. In their answer, filed on December 21, 2019, Radyo and Joseph set forth numerous affirmative defenses, including lack of standing. To establish pri1na facie entitlement to judgment as a matter of law in an action to foreclose a 1nortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see US. Bank NA. v Mezrahi, 169 AD3d 952, 953 (2d Dept 2019]; Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001, 1002 (2d Dept 2015]). Additionally, where, as here, a defendant places standing in issue, the plaintiff must prove 2 2 of 5 [*FILED: 3] KINGS COUNTY CLERK 04/15/2021 04:56 PM NYSCEF DOC. NO. 102 INDEX NO. 526818/2019 RECEIVED NYSCEF: 04/15/2021 its standing in order to be entitled to relief (see U.S. Bank N.A., 169 AD3d at 953; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 684 [2d Dept 2016]). A plaintiff has standing in a mortgage foreclosure action when it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361 [2015]; U.S. Bank N.A., 169 AD3d at 953). "Either a written assignment of the underlying note or the physical delivery of the note· prior to tl1e co1n1nenceme11t of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754 [2d Dept 2009]; see Aurora Loan Servs., LLC, 25 NY3d at 361-362; Wells Fargo Bank, N.A. v Harrison, 188 AD3d 1298, 1300 [2d Dept 2020]). Contrary to the contention ofRadyo and Joseph, plaintiff has established standing by producing the written assignment instrument, dated November 16, 2017, which assigned the subject mortgage "[t]ogether with" the underlying note (see Wells Fargo Bank, N.A. v Archibald, 150 AD3d 937, 938 [2d Dept 2017]; U.S. Bank N.A. v Akande, 136 AD3d 887, 890 [2d Dept 2016]. However, while plaintiff has submitted a copy of the mortgage and note, it failed to establish Radyo's default as a matter of law. ~'There is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the ad1nissibility requirements ofCPLR 4518 (a), and the records themselves actually evince the facts for which they are relied upon" (Citigroup v Kopelowitz, 147 AD3d 1014, 1015 [2d Dept 3 3 of 5 [*FILED: 4] KINGS COUNTY CLERK 04/15/2021 04:56 PM NYSCEF DOC. NO. 102 INDEX NO. 526818/2019 RECEIVED NYSCEF: 04/15/2021 2017]; see HSBC Bank USA, NA. v Ozcan, 154 AD3d 822, 826 [2d Dept 2017]). "A default is est.abIi shed by (I) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form" (Deutsche Bank Natl. Trust Co. v. McGann, 183 AD3d 700, 702 [2d Dept 2020]). In support of its motion for summary judgment, plaintiff submits an affidavit from Jeff Taylor, executive vice president of Velocity, the "special servicer" for plaintiff. In his affidavit, Taylor states: "As part of the regular performance of1ny job functions, I am personally fa1niliar with the record-keeping practices and procedures, and have access to, the business records relating to the history~ administration and collection activities applicable to the Loan (defined hereafter) including all servicing agree1nents. These records were made at or near the ti1ne of the actions or events they reflect by, or from infonnation transmitted fro1n, a person with knowledge of the subject transaction in the regular practice and ordinary course of business. I ha,1e personal knowledge of the 1nanner in which the records were created and kept, and I have reviewed and relied upo11 the records in executing this affidavit. Unless stated otherwise, I make this affidavit based on the records of Velocity, in its capacity as special servicer for U.S. Bank, in my possession or subject to 1ny control." Taylor further asserts that Radyo defaulted on its obligations under the tenns of the note by failing to make monthly payments due on August I, 2019 and each month thereafter. However, Taylor does not aver that he has personal knowledge of the default, and to the extent Taylor's knowledge is based on his review of business records, he does not identify what records he relied on in determining the default and does not attach them 4 4 of 5 [*FILED: 5] KINGS COUNTY CLERK 04/15/2021 04:56 PM NYSCEF DOC. NO. 102 INDEX NO. 526818/2019 RECEIVED NYSCEF: 04/15/2021 to his affidavit (see Flatbush Two, LLC v Morales, 190 AD3d 826, 828 [2d Dept 2020]; Deutsche Bank Natl. Trust Co., 183 AD3d at 702; JPMorgan Chase Bank, NA. v Akanda, 177 AD3d 718, 719-720 [2d Dept 2019]). 1 As a result, plaintiffs motion is denied in its entirety without prejudice. The foregoi11g constitutes the decision and order of the court. ENTER, HON. ADMI 1 Plaintiff's submission of a notice of default and acceleration is insufficient to establish default as a inatter of Jaw (see BNH Mil/, LLC v Milford Street Props., -AD3d-, 2021 NY Slip Op 01742, *2 [2d Dept202l];JPMorgan Chase Bank, N.A., 177 AD3d at 719). 5 5 of 5

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