Park Ave. Court Condominium v Yan

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Park Ave. Court Condominium v Yan 2022 NY Slip Op 33364(U) September 30, 2022 Supreme Court, New York County Docket Number: Index No. 151066/2022 Judge: Francis A. 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. 151066/2022 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 10/05/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: I l 32 PART HON. FRANCIS A. KAHN, Ill 11 Justice ------------------------------------------------------------------------X PARK AVENUE COURT CONDOMINIUM BY ITS BOARD OF MANAGERS, INDEX NO. 151066/2022 MOTION DATE 001 MOTION SEQ. NO. - - --- Plaintiff, il -vLIZETTE YAN, CITIBANK, NA, NEW YORK STATE DEPARTMENT OF TAXATION & FINANCE, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, JOHN DOE, JANE DOE, DECISION + ORDER ON MOTION d ,I' Defendant. -------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 22, 23, 24, 25, 26, 27,28,29, 30, 31, 32, 33, 34, 35, 36, 37, 38,40,41 were read on this motion to/for JUDGMENT - DEFAULT Upon the foregoing documents the motion granted without opposition, and it is ORDERED that the branch of the motion for a default judgment against the non-appearing Defendants and an Order of Reference is granted; and it is further ORDERED that that Christy M. Demelfi, Esq., 2280 Grand Avenue, Suite 202 Baldwin New York 11510, (516) 887-1975 is hereby appointed Referee in accordance with RPAPL § 1321 to compute the amount due to Plaintiff and examine whether the tax parcel 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 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 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; 151066/2022 PARK AVENUE COURT CONDOMINIUM BY ITS BOARD OF MANAGERS vs. YAN, .LIZETTE ET AL Motion No. 001 [* 1] 1 of 5 Page 1 of 5 .ii INDEX NO. 151066/2022 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 10/05/2022 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 the failure by defendants to submit objections to the referee shall 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 30 days of receipt 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 :,,ponte toll interest depending on whether the delays are due to plaintiffs failure to move this litigation forward; and it further ORDERED that the caption of this action be amended by striking the "John Doe" and "Jane Doe" Defendants; and it is further ORDERED that the caption shall read as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------X PARK A VENUE COURT CONDOMINIUM, BY ITS BOARD OF MANAGERS, Index No. 151066/2022 Plaintiff, -againstLIZETTE YAN, CITIBANK, NA, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, NEW YORK CITY TRANSIT .ADJUDICATION BUREAU, Defendants ----------------------------------------------------------------X and it is further 151066/2022 PARK AVENUE COURT CONDOMINIUM BY ITS BOARD OF MANAGERS YAN LIZETTE ET AL vs. Motion No. 001 [* 2] 2 of 5 Page 2 of 5 INDEX NO. 151066/2022 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 10/05/2022 "l ORDERED that counsel for plaintiff shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) 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 I l ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office 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 ORDERED that the branch of the motion for the appointment of a Temporary Receiver and amendment of the caption is granted; and it is further ORDERED that, Haley Greenberg Esq., 521 5 th Avenue Suite 1700 New York NY 10175 (212) 593-6111 is hereby appointed with the usual powers and directions of a Temporary Receiver for the benefit of Plaintiff of all the rents and profits now due and unpaid or become due during the pendency of this action and issuing out the mortgaged property mentioned in the complaint, known by the street addresses as 120 East 87th Street, Unit R8-E, New York, New York; and it is further ORDERED that the current fair market rental value of the Unit is in the amount of $4,412.00 per month; and it is further ORDERED that Defendant Lizette Yan or any occupant of the Unit is hereby directed to pay plaintiff the sum of $4,412.00 per month in accordance with plaintiffs bylaws and plaintiff's statutory rights under RPL § 339-aa by tendering such monthly rental payments to the Receiver, failing which the Receiver is empowered to collect the monthly rent due from any existing tenants or occupants and/or to secure vacant possession of the Unit in order to rent the Unit to a third-party, and collect the rent for same; and it is further "j ,1 ] i 'l ¥ " ORDERED that the Temporary Receiver is authorized to take charge and enter into possession of the property; and it is further ORDERED that before entering her/his duties, the Temporary Receiver shall be sown to fairly and faithfully discharge the duties committed to him and shall execute to the People of the State of New York and file with the Clerk of the Court an undertaking in the sum of $8,824.00 conditioned for the faithful discharge of the duties of Temporary Receiver; and it is further ORDERED that the Temporary Receiver is hereby directed to demand, collect and receive from the occupants, tenants and licensees in possession of said premises, or other persons liable therefor, inclusive of the mortgagor, all the rents and license fees thereof now due or unpaid or hereafter that become fixed or due and the Temporary Receiver is authorized to institute and carry on all legal proceedings necessary for the protection of said premises or to recover possession of the whole, or any part thereof, and apply to this Court to fix reasonable rental value and license fee value and to compel the tenants and occupants to attom to the Temporary Receiver; and it is further ORDERED that the Temporary Receiver may institute and prosecute suits for the collection of rent, lic~nse fees and other charges now due or hereafter to become due and fixed, and summary proceedmgs for the removal of any tenants or licensees or other persons therefrom; and it is further 151066/2022 PARK AVENUE COURT CONDOMINIUM BY ITS BOARD OF MANAGERS YAN LIZETTE ET AL vs. , Motion No. 001 [* 3] 3 of 5 Page 3 of 5 I · INDEX NO. 151066/2022 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 10/05/2022 1\1 l ORDERED that pursuant to the General Obligation Law section 7-105, anybody holding any deposits or advances of rental as security under any lease or license agreement affecting space in the premises affected by this action shall tum same over to said Temporary Receiver within five (5) days after said Temporary Receiver shall be qualified; and thereupon the said Temporary Receiver shall hold such security subject to such disposition thereof as shall be provided in an Order of the Court to be made and entered in this action; and it is further ORDERED that anybody in possession of same shall tum over to said Temporary Receiver all rent lists, orders, unexpired and expired leases, agreements, correspondence, notices and registration statements relating to rental spaces or facilities in the premises; and it is further ORDERED that notwithstanding anything to the contrary contained in this order, the Temporary Receiver shall not, without the further, prior order of this Court, upon prior notice to the plaintiff, make improvements or substantial repairs to the property at a cost in excess of $2,500.00, except that in an emergency, if funds need to be expended in excess of $2,500 or would otherwise require Court intervention, no Court approval will be necessary if counsel for plaintiff agrees in writing that the receiver may make such disbursement; and it is further 1 ' ORDERED that the Temporary Receiver shall deposit all monies received by her/him into any FDIC-insured bank where she has an account for this purpose and such account shall show the name of this action and the Temporary Receiver shall furnish plaintiffs attorneys with monthly statements of the receipts and expenditures of the Receivership together with a photocopy of the monthly statements received from said depository and no withdrawals shall be made therefrom except as directed by the Court or on a draft or check signed by the Temporary Receiver; and it is further ORDERED that the Temporary Receiver is authorized from time to time to rent and lease any part of the premises for terms not exceeding one ( 1) year or such longer terms as may be required by applicable laws or regulations; to keep the premises insured against loss by damage or fire; to pay the taxes, assessments, water rates, sewer rates, vault rents, salaries of employees, supplies and other charges; to comply with all lawful requirements of any municipal department or other authority of the municipality in which the mortgaged premises are situated and to procure such fire, liability and other insurance as may be reasonably necessary; and it is further ORDERED, that the tenants, licensees or other persons in possession of said premises attorn to the Temporary Receiver and pay over to the Temporary Receiver all rents, license fees, and other charges of such premises now due and unpaid or that may hereafter become due; and that the defendants be enjoined and restrained from collecting the rents, license fees and other charges of said premises from interfering in any manner with the property or its possession; and from transferring, removing or in any way disturbing and of the occupants or employees; and that all tenants, occupants, employees and licensees of the premises and other persons liable for the rents be and hereby are enjoined and restrained from paying any rent or license fees or other charges for such premises to the defendants, their agents, servants or attorneys; and it is further ORDERED that the Temporary Receiver is prohibited from incurring obligations in excess of the monies in her hands without further Order of this Court or written consent of Plaintiffs attorney and Plaintiff may advance money, which can be recouped in this litigation; and it is further 151066/2022 PARK AVENUE COURT CONDOMINIUM BY ITS BOARD OF MANAGERS vs. YAN LIZETTE ET AL ' Motion No. 001 [* 4] 4 of 5 Page 4 of 5 ,( INDEX NO. 151066/2022 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 10/05/2022 ORDERED that the Owner turn over to the Temporary Receiver all rents collected from and after the date of this Order; and it is further ORDERED that all persons now and hereafter in possession of said premises, or any part thereof, and not holding such possession under valid ·and existing leases or tendencies, do forthwith surrender such possession to the Temporary Receiver, subject to emergency laws, if any, and it is further ORDERED that the Temporary Receiver after paying the expenses of the management and care of the said premises as above provided retain the balance of the monies which may come into his hands until the sale of the said premises under the judgment to be entered in this action and/or until further Order of this Court, and it is further ORDERED that the Temporary Receiver, or any party hereto, may at any time, on proper notice to all parties who have appeared in this action, apply to the Court for further and other instructions or powers necessary to enable the Temporary Receiver to properly fulfill her duties or for interim fee payments; and it is further ORDERED that the appointed named herein shall comply with Section 35a of the Judiciary Law, Sections 6401-6404 of the CPLR, Section 1325 of RP APL and Rule 36 of the Chief.Judge; and it is further ORDERED that notwithstanding any other provision of this order, the Temporary Receiver shall not appoint an attorney, managing agent, appraiser, auctioneer or accountant without prior order of this Court, and that the receiver shall apply to the court and file a separate application for appointment of a managing agent, attorney or other managing services pursuant to 36.1 of the Uniform Court Rules. All parties are to appear for a virtual conference via Microsoft Teams on January 25, 2023, at 10:40 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 ~l a motion has not been made, then a conference is required to explore the reasons for the delay. '.i 9/30/2022 1 DATE CHECK ONE: HQij~'fF~~~ ,t·JAAHN llf J .s _ ('. 1 CASE DISPOSED GRANTED • NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT • • OTHER REFERENCE .,,~; I 151066/2022 PARK AVENUE COURT CONDOMINIUM BY ITS BOARD OF MANAGERS vs YAN LIZETTE ET AL . ' Motion No. 001 [* 5] 5 of 5 Page 5 of 5 i~ .

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