Street Snacks LLC v Bridge Assoc. of Soho, Inc.

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Street Snacks LLC v Bridge Assoc. of Soho, Inc. 2022 NY Slip Op 32813(U) August 18, 2022 Supreme Court, New York County Docket Number: Index No. 602374/2009 Judge: Francis Kahn III 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. INDEX NO. 602374/200g RECEIVED NYSCEF: 08/19/2022 NYSCEF DOC. NO. 115 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 32 PART HON. FRANCIS KAHN, Ill Justice ---------------------------------------------------------------X STREET SNACKS LLC, INDEX NO. 602374/2009 MOTION DATE Plaintiff, - V - MOTION SEQ. NO. BRIDGE ASSOCIATES OF SOHO, INC ..ADAM LUCKNER, MIDWAY HOLDINGS CORP., YORK RESOURCES LLC,STERLING NATIONAL BANK, NEW YORK STATE DISTRICT ATTORNEY, STATE OF NEW YORK, CITY OF NEW YORK, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY DEPARTMENT OF FINANCE, JOHN DOES, NUMBERED 1 THROUGH 25 006 DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 006) 39, 40, 41, 42, 43, 44,45,46,47,48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61,62,63, 64,65, 66, 67,68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100,101,102,103,104,105,106,107,110,111,112,113,114 JUDGMENT-SUMMARY were read on this motion to/for Upon the foregoing documents, the motion is determined as follows: This is an action to foreclose on a consolidated, extended and modified commercial mortgage encumbering three parcels ofreal property located at 533 Greenwich Street a/k/a 99 Vandam Street, New York, New York, 619 Bridge Street, Woodmere, New York and 62 Clark Street, Long Beach, New York. The mortgage secures an indebtedness in an original amount of $1,600,000.00 and was given by Defendant Bridge Associates of Soho, Inc. ("Bridge''). Plaintiff commenced this action to foreclose on the subject mortgages. Defendants, Bridge, Adam D. Luckner ("Luckner") and Midway Holdings Corp. ("Midway") answered and pied seven affirmative defenses. On or about March 4, 2020, the property located in New York County was sold pursuant to a judgment of foreclosure and sale issued in an action to foreclose on a tax lien on the premises (see NYCTL 2013-A Trust v Bridge Associates q(Soho, NY County Index No 154799/2014). Defendants' motion (Motion Seq No 5) pursuant to CPLR §507 for an order changing venue of this action to Nassau County was denied. Now, Plaintiff moves for summary judgment against the appearing parties, to strike the answer and affirmative defenses of Defendants Bridge, Luckner, and Midway, for a default judgment against Defendant New York City Environmental Control Board; to confirm a stipulation of discontinuance dated August 29, 2017, or, in the alternative, to discontinue the action against certain Defendants, and to appoint a referee to compute. Defendants Bridge, Luckner, and Midway oppose the motion. On the branches of the motion for summary judgment and a default judgment and appointment of a referee, Plaintiff established the mortgage, note, and evidence of Mortgagor's default via the affidavit of Joseph Pistilli ("Pistilli"), the Chairman of the Board of Directors of First Central Savings 602374/2009 STREET SNACKS vs. BRIDGE ASSOC. OF SOHO Motion No. 006 [* 1] 1 of 4 Page 1 of 4 INDEX NO. 602374/2009 RECEIVED NYSCEF: 08/19/2022 NYSCEF DOC. NO. 115 'I Bank, the original lender, which was sufficiently supported by admissible business records annexed thereto (see eg Bank of NYv Knowles, 151 AD3d 596 [P 1 Dept 2017]; Fortress Credit Corp. v Hudson Yards, LLC, 78 AD3d 577 [l51 Dept 2010]). Plaintiff also demonstrated its standing with the affidavit of Thomas Makkos ("Makkos"), a managing member of Plaintiff and the admissible supporting documents that it was holder of the note when the action was commenced (see eg Aurora Loan Servs., LLC v Taylor, 25 NY3d 355 [2015]). Defendants Bridge, Luckner, and Midway offered no substantive opposition to Plaintiff's prima facie case. Rather, Defendants' objections are entirely procedural. Their claim Plaintiff has filed a cross-motion is factually incorrect and their protest against entering a default judgment against certain lienor Defendants is futile as is the reiteration of their request to re-venue this matter in Nassau County. As to the branch of the motion to dismiss Defendants' affirmative defenses, CPLR §321 l[b] provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit". For example, affirmative defenses that are without factual foundation, conclusory or duplicative cannot stand (see Countrywide Home Loans Servicing, L.P. v Vorobyov, 188 AD3d 803, 805 [2d Dept 2020]; Emigrant Bank v Myers, 147 AD3d 1027, 1028 [2d Dept 2017]). When evaluating such a motion, a "defendant is entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed" (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2d Dept 2008]). As pled all the affirmative defenses are entirely conclusory and unsupported by any facts in the answer. As such, these affirmative defenses are nothing more than unsubstantiated legal conclusions which are insufficiently pled as a matter of law (see Board of Mgrs. of Ruppert Yorkville Towers Condominium v Hayden, 169 AD3d 569 [1 st Dept 2019]; see also Bosco Credit V Trust Series 2012-1 v. Johnson, 177 AD3d 561 [15 1 Dept 2020]; I 70 W. Vil. Assoc. v G & E Realty, Inc., 56 AD3d 372 [1st Dept 2008]; see also Becher v Feller, 64 AD3d 672 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V & M Opt., Inc., 51 AD3d 619 [2d Dept 2008]). Further, the affirmative defenses were abandoned by Defendants by failing to address the viability of same in their opposition (see One W. Bank, FSB v Rosenberg, 189 AD3d 1600 [2d Dept 2020]). I The branch of Plaintiff's motion for a default judgment against the non-appearing parties, I' including New York City Environmental Control Board, is granted (see CPLR §3215; SRMOF II 2012-1 Trust v Tella, 139 AD3d 599,600 [1 st Dept 2016]). The branch of the motion for an order "Confirming the Stipulation of Discontinuance Without Prejudice dated August 29, 2017" is denied as incomprehensible and the branch of the motion to discontinue the action against the parties to the stipulation pursuant to CPLR §3217[b] is denied as redundant. Accordingly, it is ORDERED that the branch of Plaintiff's motion for summary judgment against the appearing Defendants, for a default judgment against the non-appearing parties is granted; and it is further ORDERED that Tom Kleinberger, Esq., 411 5th Avenue, New York, New York 10016 (917) 326-5523 is hereby appointed Referee in accordance with RP APL § 1321 to compute the amount due to 602374/2009 STREET SNACKS vs. BRIDGE ASSOC. OF SOHO Motion No. 006 [* 2] 2 of 4 Page 2 of 4 I INDEX NO. 602374/2009 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 08/19/2022 Plaintiff and to examine whether the property identified in the notice of pendency can be sold in parcels; and it is further ORDERED that in the discretion of the Referee, a hearing may be held, and testimony taken; and it is further ORDERED that by accepting this appointment the Referee certifies that he is in compliance with Part 36 of the Rules of the Chief Judge (22 NYC RR 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 disqualified from receiving an appointment pursuant to the provisions of that Rule, the Referee shall immediately notify the Appointing Judge; and it is further ORDERED that, pursuant to CPLR 8003(a), and in the discretion of the court, a fee of $350 shall be paid to the Referee for the computation of the amount due and upon the filing of his report and the Referee shall not request or accept additional compensation for the computation unless it has been fixed by the court in accordance with CPLR 8003(b ); and it is further ORDERED that the Referee is prohibited from accepting or retaining any funds for himself or paying funds to himself without compliance with Part 36 of the Rules of the Chief Administrative Judge; and it is further ORDERED that if the Referee holds a hearing, the Referee may seek additional compensation at the Referee's usual and customary hourly rate; and it is further ORDERED that Plaintiff shall forward all necessary documents to the Referee and to Defendants who have appeared in this case within 30 days of the date of this order and shall promptly respond to every inquiry made by the referee (promptly means within two business days); and it is further ORDERED that if Defendant(s) have objections, they must submit them to the referee within 14 days of the mailing of plaintiffs submissions; and include these objections to the Court if opposing the motion for a judgment of foreclosure and sale; and it is further ORDERED that failure to submit objections to the referee may be deemed a waiver of objections before the Court on an application for a judgment of foreclosure and sale; and it is further ORDERED that Plaintiff must bring a motion for a judgment of foreclosure and sale within 45 days ofreceipt of the referee's report; and it is further ORDERED that if Plaintiff fails to meet these deadlines, then the Court may sua sponte vacate this order and direct Plaintiff to move again for an order of reference and the Court may sua sponte toll interest depending on whether the delays are due to Plaintiffs failure to move this litigation forward; and it further ORDERED that the names "JOHN DOES Numbered 1 through 25 are stricken from the caption; and it is further ORDERED that the amended caption shall read as follows: 602374/2009 STREET SNACKS vs. BRIDGE ASSOC. OF SOHO Motion No. 006 [* 3] 3 of 4 Page3of4 INDEX NO. 602374/2009 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 08/19/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------- -------------------X STREET SNACKS, LLC,, Index No. 602374/2009 Plaintiff, -againstBRIDGE AS SOCIA TES OF SOHO, INC., ADAM D. LUCKNER, MIDWAY HOLDINGS CORP., YORK RESOURCES LLC, STERLING NATIONAL BANK, NEW YORK STA TE DISTRICT ATTORNEY, STATE OF NEW YORK, CITY OF NEW YORK, NEW YORK CITY ENVIRONMENT AL CONTROL BOARD, and NEW YORK CITY DEPARTMENT OF FINANCE Defendants. ,' h ii,, ----------------------------------------------------------- -----X and it is further ORDERED that counsel for Plaintiff shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141 B) and the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the parties being removed pursuant hereto; and it is further j! ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office ,. it shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures.for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address (www.nycourts.gov/supctmanh)]; and it is further }! j ORDERED that Plaintiff shall serve a copy of this Order with notice of entry on all parties and persons entitled to notice, including the Referee appointed herein. i I All parties are to appear for a virtual conference via Microsoft Teams on December 7, 2022, at :i 10:00 a.m. If a motion for judgment of foreclosure and sale has been filed Plaintiff may contact the Part ' Clerk Tamika Wright (tswright@nycourt.gov) in writing to request that the conference be cancelled. If a motion has not been made, then a conference is required to explore the reasons for the delay. 8/18/2022 DATE RANCIS KAHN, 111, A.J.S.C. • 0-Nie-tleRA~IS A. KAHN IR CHECK ONE: CASE DISPOSED APPLICATION: SETTLE ORDER UBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN IDUCIARY APPOINTMENT GRANTED DENIED GRANTED IN PART D onJ~S.C. • REFERENCE ,, '!" . •.I ~ 602374/2009 STREET SNACKS vs. BRIDGE ASSOC. OF SOHO Motion No. 006 [* 4] 4 of 4 Page 4 of 4 i!-,

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