DeSilva v DeSilva

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DeSilva v DeSilva 2021 NY Slip Op 33001(U) December 28, 2021 Supreme Court, Kings County Docket Number: Index No. 511815/2018 Judge: Ingrid Joseph 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 02/22/2022 04:52 PM INDEX NO. 511815/2018 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 02/22/2022 ;\tan l.1\.S. Ten11. Part SJ of the Supreme Com! ufthe State of'\1C\\ Y c1rk_ held in and for the County King.'>, or the Courthouse. at Ci\ ic Cc1111.'r_ I3rooklyn, Nev, York, on the 28th clay of December. 2021. al PR F SE '.\i T : HOl\. l:\GRID .JOSEPH, .J.S.C. SUPRF\tF COl'RT OF I I IL ST,\ Tr OF l\'F\V YORK COUNTY or IS:.INGS -------------------------------------------------------------X FDRISS DFSH \'.\_ L1"0N1\RD DESIT VA. and I REDFRICK DLSILVA. Tndcx No.: 51 l8!5i20l8 Plaintiffs. -against- ORDER AND .Jl:OGMF.NT !-])WARD DLSIIVA. Lkkndants. -------------------------------------------------------------X The folio\\ inc e-tlkd papers cunsidcrcd herein: N ()( ice NYSCEF F-filed docs or rvlot ion•A ffin nation in Supp,1rt/E;;hibits A llrh:\.Cd .... In this action tcir the partition or sale or real property. plaintiffs. F.driss Dc·Silva. Leonard DeSilYa and Frederick DeSil\'a {n.:IL·rred to collectively as "plaintiffs")_ mo\'C by Notice or \fotion (l\lotion Seq. 1) rm an order confirming the report of court-appointed Rckrce, 7vi J\. Storch. Lsq. {"Rckree Storch''). anJ lzJr a final judgrncnt confirming their respccti, c right and ...;hare of interest in lhc property described in the Complaint as 455 Last 4th Street. Brooklyn. New York !Block 5356. I .ot 53 ), and an order directing the sale (1t' such property al public auction and the appPintrnL·nt of' ;i Referee to conduct the auction sak'. UPON rc\'icw of the Order Appointing Rck-ree dated May 28, 2019 ( \ fontclionc ..T.). wherein the court granted default judgment in favor of plaintiffs on their First through Fifth Causes of Action against non-appearing dcfondant, Edward DeSilva ('"defendant"), including the partition and sale of the subject property, an accounting, damages for waste, breach of fiduciary duty, and a temporary restraining order against the defendant, and further, appointed, Zvi A. 1 1 of 8 [*FILED: 2] KINGS COUNTY CLERK 02/22/2022 04:52 PM INDEX NO. 511815/2018 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 02/22/2022 Storch. Fsq .. as Rdc-r,.:e in ,H.:cordancc \\ith RP:\PL ~ 911. to conduct a hearing and remit to the L·ourt a report reg;irdins the partiL·s· respective rights. sharL'S and interest in the pniperty. \Vhl'LIH:r there c:-:ist any liens on the undivided shares of interest,,!' any party. and to SL'.Ver the dcfi.:ndant·s inll'rest as ajoinr tenant of plaintiffs upon the Referee's execution and delivery ol'a deed to the suhjL·ct property. and l J)\111 re\ie\\ of the Rekree·s Oath and Report pursu~mt to RPAPI. ~~ 911 and 91>. b,)th dated August 1 ! . 2021. \\ !Krein Rekrec Storch. respectfully reports to the court. that the parties \\L're duly noti tied and giH·n an opportunity to he heard at such hearing and did submit d(lCUrncnts ti1r l<ek-ree Ston:h·s considcration. ,vith the assistance of their respective attorneys. a11d 1\"OW. the rnotio11 PLLC. is gra11ted lH1 or plaintiffs attorney. Naon1i ldtser. Fsq .. or /eltscr I .aw Group. ddault. to the extent provided herein. and it is ORDFRFD. ADJUfKiFD AND DFCRFED. that the Rep(,rt or Referee Lvi S. Storch. Lsq . <lated Augusl 11. 2021. is Cll11firnK'J. and it is further 01~ ! )FRFD. \[)Jl 1Ki FD i\ND DI .CRl'.ED. that in accc,rd:.mce such Rl'ferce Reporl. the parties· herein. Ldriss lkSiha. Leon,ird DeSilva, hederick DcSiha. and Ldwmd DeSilva. L'ach m,n twenty-tin· percent (25';<,) interest in the pr()perty known as 455 Last 4th Street. Brooklyn. "\Jc,v '(ork (Block 5,5(1. I Pl 5.1L as provided in the lked dated Janu,u-y .2.1. 2003 and IL-Corded at thc Ne,\ York ( 'ity Dcp,1rtrncnt of Finance Office of the City Regiskr on f'vlarch Rc:.:istn hk· ' ~11 200.1000()3(i4lJ8. ducuml'nti1112 the conve\arn:e I cncnbaum and \1ar;- Tc·m'nhaum. also - ~ Kll(l\Vrl ll( (1 . .200t ( 'ity the prior 0\\llcrs. \fork as ;\rm I lalli\velL <1f their ownership interest in the subject property to h.lriss DeSiha. Leonard DcSilva. Frederick DeSilva. and 1-.dward DL·Silva. as joint 1,.:nants \\ ith rights llt' survivorship: and it is ti.1rthcr 2 2 of 8 [*FILED: 3] KINGS COUNTY CLERK 02/22/2022 04:52 PM INDEX NO. 511815/2018 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 02/22/2022 ORDFRFD. 1\DJUDGLD AND DFClffFD. that the subject property is so circurnslanced thal a partition thcr(·ot cannot be made without great prejudice to the parties and a s:ilc ot' the premises is rcquiri...'d. because the property in issue is improved with ;1 three-family residential hui !ding upon the predominate portion of the land on \-vhich il is situated and cannot be subdi\ ided inlfl equal shares among the rour owners thereof', while sirnultrn,coush·. retain in:.>, ~ its \ alul' and high<.:st and hesl use: and it is further <>RDFRI I)_ Al )_H T)(ilJ) ;\\!D DLCRI TD. that a title search rewaled a prior encumbrance upun the subject premises. pursuant to a mortgage against the premises and 1wte ol $465.:?.00 h<..'.l\$'cn rnortgagL·e. I JSBC 1\1ortgagL' Corporation (l :s/$ and mortgagors. hlriss LkSiha. Leonard l)eSiha. l'rederid; DeSilva. and Fdward DeSilva. as ,tllcgedly assigned b) HSBC \lortgagc Corporation (USA) lo I !SBC Bank, USA. '\J.A. on August 24, 2011. and lurther allq!L'd assignments. lo \Vil: from I ISBC Bank. l"SA. '\J./\. to Fec!crnl "f'<ati()nal \1ortgagc .\ssociation ()11 ~o,cmhcr ] t)_ 2015. and Federal National tvlortgag.c Association to ln\eSlllrS IP on July 7, 2017. am! pursuant 10 rvn (i-f .Q the Order and Judgmrnt (\1ontelione. J.) dated September l. 2020. lndc:,; N()_ '109119/2019, Supreme ((,urt. Kings County. that the mortgage liL·n•cncumbr:rnec held by \lT(iU) Investors LP (dated July 7. 2017 and recorded on July 11. 2017 at ( 'RI I\: 2017000253523) is cancelled and disd1argcd of record against the property krn1\\t1 as --1-55 ]:;1st -4th Street Brooklyn, New York (Block 515(1. OR.DI RI])_ \[).Jl l)(rl-:1) ltll 53). and it is l'urthcr .\'\JI) Dl·J'RFI-:D. that there arc no other creditors. not a party to this acti\ln. \,ith a lien on th( undi\'ided share property. except l·:m irunmcntal ( 'ontrnl Buard Fines \\IHI me or interest or any party in the subject or S(l5U.00: Real Property Taxes of 'f;lJ.(,XO 7(J: \\',lier Bills n!''t,X.960.85: and a i\foncy Judgment solely against plaintiff. Leonard DeSih·;1. in the amount or SI .51J9.4()_ all of which shall be paid from thL· proceeds of the public auction. together with any additional sums due un ()Ulstanding water bills and tax hills. the 3 3 of 8 [*FILED: 4] KINGS COUNTY CLERK 02/22/2022 04:52 PM NYSCEF DOC. NO. 47 INDEX NO. 511815/2018 RECEIVED NYSCEF: 02/22/2022 referee's frc. and other customary closing costs not accou111ed for in the instant ()rder and judgment. except the pt-rsPn;il debt of 1.conard DeSilva or $1.5(19.49. which shall he paid dirccth from his proportion~ttc -;hare of the proceeds from tl1c public auction sale: and it is further ORDLRU)_ ,\DJ1 TDGI D J\l\D DFCRELD. that the entirety ol plaintiffs· causes of action. as asscrlc'd in the Compbint. inclu<ling pbintif/S" 1..·laims for an accounting and damages for wastc-. ~lrL' i1L-rchy resoh ed provided that proceeds from the public auction sale arc sufficient to reimburse each plainti II' ( Fdriss De Silva. Leonard DeSilva. Frederick DcSilva) the sum of S:~0.000. \\ hich slwll be deducted from and charged to the sum thJt clckndant. l-d\\·arcl DcSilva. would ()th1..T\\ isc he entitled to receive bas1..·d upun his 25°.6 O\\llcrship interest, alter the outstanding \\ater hill ,md property taxes. transl'er tax, closing costs, and other customary fees arc paid rr()m !he proceeds of the sale. as noted s11pru: and it is further ORDFRFD. -\DJUDGl:D .\t\D DFCRFFD. that sale of the subject property shall occur ,vithin on,>humlr1..·d l\\cnty ( 120) days from the date u!' the instant Order and Judgment, in one parcel. at a public auction at the Supreme Court. Kings County. 1(i0 ,-\dams Street, Brooklyn. New \{ork 1120 I at a date and time lo be arranged and ach ertiscd hy pbintiffs. by and under !he direction of L, i .\. Storck bq .. 26 Court Streel. Brooklyn, t\ev, York 11242, Phone: 718-404- ()J 01. F'-:1. 101. email: ;r\ i 11 sto1d1la\\fK'.rn111. who is hereby appointed Rekrcc for that purpose: that said Rel'eree gin' public notice of the time and place ol' sale in accordance with RPAPI. 9 2~ I in Rrooklrn Fagle: and i1 is further ORDERED, 1\DJCDGED ..\ND DECRL.LD, that by accepting this appointment the Referee certifies that he is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to §36.2(c) ("Disqualifications from appointment") and §36.2(d) ('"Limitations on appointments based upon compensation"); and if the Referee is 4 4 of 8 [*FILED: 5] KINGS COUNTY CLERK 02/22/2022 04:52 PM NYSCEF DOC. NO. 47 INDEX NO. 511815/2018 RECEIVED NYSCEF: 02/22/2022 disqualified frnm recei\ ing an appointrncnt pursuant to the provisi()ns of that Ruh.\ the Referee shall in1r11ccli,1tely notil':, this court: and it is further ORDFl{lD. ADJUDCi[T) AND DFCRLLD. that the Releree is prohibited from accepting or reL1ining any funds for hirnsell'or paying funds to himself without compliance \\ith Part 36 ol' the Rules of the Chief Administrative Judge: and it is further ORDLRLD. ADJUDCiFD AND DFCRLLD, that ii' the Referee docs not conduct the sale within 120 days or the date of this Order and Judgment. in accordance with CPLR ~ 200-L the time i'ixed herein is e:,:tended for the Rckrce to conduct the sale. as soon as reasonablv practicable: and it is further ORDFRFD. ADJUDGLD AND DECREED. that the subject property is to be sold in one parcel in "as is .. physical order and condition. sub_ieet to any condition that an inspection ot' the property would disclusc: any state or facts that an accurate sunc·y of the property '-'Vould show: any C0\'Cnants. restrictions. declarations, rec;ervations. casements, right ol \\ay. and public utility agreements of record. if any: any building and zoning ordinances of the municipality in which Lhc suhject prop1..-rty is locat<..·d and possible violations of' same: any rights of tenant:--; or persons in possession of the subject property: prior lic·ns orrccord. if any. except those liens addressed in RPAPL ~ 135-t: any equity of redemption of the United State of America lo redeem the propeny within 110 days from Lhe date of sale: and any rights pursuant to CPLR ~~ 317. 2003. and 5015. or any appeal or the underlying action. and it is further ORDFRFD. ,\DH DGFD AND DFCRFFD. that the Releree shall accept the highest bid oHered by a bidder who shall be identified upon the wurt rt!cor<l, and shall require that the successful bidder immediately execute Terms of Sale for the purchase of the property, and pay to the Referee, in cash, certified check, or bank check, ten percent (10%) of the sum bid; and it is further 5 5 of 8 [*FILED: 6] KINGS COUNTY CLERK 02/22/2022 04:52 PM NYSCEF DOC. NO. 47 INDEX NO. 511815/2018 RECEIVED NYSCEF: 02/22/2022 URDI.Rl,:[)_ .\DJ(:I)(;U) AND Dl·CRFLI). that. in thL'. L'\ent the l1rst succcssf'ul bidder !;1i Is to execute the I erm.s of Sale i111111ediately !zlll(ming the hiddinµ upon 1IK subject propL·rty ()t· fails t,l irn111cdiatcly p;1y the ten percent ( I 0°0) deposit as required. the property shall immediately and on the same clay he rc-()!Tered at m1ction: and it is furthcr CJRDHU:D. 1\DJLD(d D ;\\'D Df-:CRIJ]). that the cl1lsing o!'titlc shall be held no later than :rn Jays artcr suL·h sale unless otherwise stipulated by all parties to the sale: and it is further ORDLRLD. i\D.ll DCiFD i\'-1D DFCRFFD, that :1fter the property is sold. the RefL·rec sl1all e,ecute u deed to thc purchasLT in accordance\\ ith RP:\PT ~ 1353 and the l'crn1s o! Sale. \\ hich shall he deemed a binding C()ntract: and it is further ORDI·RLD. 1\DJl D(il-D. AND DITRl·TD. that the Rell'rL·c. on recching the prncL·cds nf such s:ilc. sh.ill fortlmith pay 1hcrcl1·0111. in accordancc with their priorit:s according to la\\. taxes. as:-;essments. SL'\\,.'r rents. and \\·atcr rates, which ~trL' ,ir ma:, bccome liens on the property al the time ot' sale. \\ ith such interest or penalties which may have lawfully accrued thereon to th\.'. dak of paymcnt: and it is funher ORDI RLD. ,\I ).l\:D(iFD. \\ID DFCRFFD. that the Rcfcrcc shall then dcpusit lhL· or said proce<.."dS or sale in his balance \)\\]1 lhll11\.'. as Rctcrce ill the appropriate and shall thcr,:a!tcr. make the !i.illowing paymcnls in accordance with RP:\l'I. CSCH)\\ ~ account 115--1-. as ti1]l(ms: I· IRS I : lhc Rcl~'rcc · s :-;lalulory fee:-; for conducting the sale. in accordance with CPTR ~ 8003(bl. not to exceed $2.500. pr()\'ided the sale pricc exceeds $50.000. otht:rwist:, th.: Rd~n.:c · s statutory fee is $ 7 50.00 an<l further, lhc parties shall compensate the Referee the sum of $750.00 for each adjournment or cancellation, unless the Referee caused the delay; SECOND: All taxes, assessments, and water rates bills that arc that are 6 6 of 8 [*FILED: 7] KINGS COUNTY CLERK 02/22/2022 04:52 PM INDEX NO. 511815/2018 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 02/22/2022 outstanding liens upon the premises. as noted above, and an 1 other amounts dul' in accordance with RPAPL ~, I ~-"4(2). The Purclias1..T shall be responsible for intere:il and J)l'llalties dul' nn any real pn)perty ta:--;cs accruing after tl1c· mJCtion sale. l'hc Referee shall not be rcsponsihk for tht: payment of penalties or kes pursuant tel this appointment. The Purchaser shall h()ld the Referee h,mnkss from ;:my snch penalties or fees assessed: Tl JIRD: The e'\penses of the sale and the advertising c'\pc11:-,cs as slhn\ non the hill:-- prcs1..·ntcd ,md certified hy said Re1LTc1..· to he correct. duplicate copies of which shall be ,m1H.:,ed to the report of sale: FOT 1 RTI!· The Rckrec shall then divide the remaining proceeds hy four (4). lh1._'11 pay the sum 11ri1.Shl)_-I() tu the credillnoi'rccord from J conard l)cSih·a·s share and ckduct frrnn dell·ndant. Ld\vard Dl·Silva ·s :--hare lhl' total sum or 90.000. which shall be paid in three equal parts of S30.000 to each plaintiff Edriss DeSiha. Leonard DeSiha and Frederick DeSiha: then FIi I 11: I he pn•ceccb from the public auction sale. as reconciled in ,Kc(1rdance herewith. to cacli party. and it ORDFR!:D. _\l)Jl i:--. °f)(i!J) .\'\IJ) further DH 'RI .FD. that all expenses or recording tlw Rclcrc·e·s eked. including real pmperty transfer l,1:-;, which is not a lien upon the rm)p1..'.rty at the time of s<1ic. sh,tll he p~t1d h~ the purchaser, nnt hy the Referee from sale proceeds, that any transfer tax shall be paid in accordance with Tax I .aw~ 1-104: and it is further OR.DLR.LU. ADJLDGED ,\ND DECREED that the pw-cha.scr be kt into possession of the property upon production in hand of the Referee's Deed or upon personal service of the Referee's deed in accordance with CPLR 308; and it is further ORDERED, ADJUDGED AND DECREED that the Defendants in this action, all 7 7 of 8 [*FILED: 8] KINGS COUNTY CLERK 02/22/2022 04:52 PM INDEX NO. 511815/2018 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 02/22/2022 rxrsons claiming 1hrt1ugh them. and any person uhtaining an int(·rest in 1he property after the filing o! LIK' \lotice of Pendency arc barred and fnrcclosed or all right, claim, lien. title, and interest in the property at'!cr the sale of the subject premises; and it is lmthcr ORDI Rl·D. ADJl I IKil:D ;\ ND DFCRFl·.D, that within thirty days after completing the sale- and c:-.:ccuting the proper cum cyance to the purchaser_ unless the timt is c:-.:tended by tht· Court, the Rckrec shall file with the ('(lunty Clerk a report under oath of the disposition of the prnccl·ds oftlw sale in accordance with RPAPL ~ 1155(1 )'. <md it is further ORDFRFD. :\DH D(iLI) AND DLCR!J,l). that if the pmchaser or purchasers :11 the public auction sale default(s) upon the hid am\/or the Terms ot'Salc, the Referee may place the property for rl'Sale \\ithnut prior application. This constitutes the Decision. Order and Judgment u!' the court. 1::\TER.. Ct\, 11~1 mSF:P11, .1.s.c. ~ Hml.lngridJoseph Supreme Court Jus-Wce 8 8 of 8

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