US Bank Trust N.A. v Singh

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US Bank Trust N.A. v Singh 2023 NY Slip Op 33212(U) September 15, 2023 Supreme Court, New York County Docket Number: Index No. 850074/2023 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. 850074/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 09/15/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 32 PART HON. FRANCIS A. KAHN, Ill Justice -------------------------------------------------X US BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE FOR CABANA SERIES V TRUST, INDEX NO. 85007 4/2023 MOTION DATE MOTION SEQ. NO. Plaintiff, 001 -vVINAYAK SINGH, UNITED STATES OF AMERICA (EASTERN DISTRICT), NEW YORK CITY PARKING VIOLATIONS BUREAU, THE BOARD OF MANAGERS OF THE PROMENADE CONDOMINIUM, JOHN DOE AND JANE DOE DECISION + ORDER ON MOTION Defendant. --------------------------------·------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 31, 32, 33, 34, 35, 36, 37, 38, 39,40,41,42,43,44,45,46,47,48,49, 50, 51, 52, 53, 59, 60 APPOINT - REFEREE 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 mortgage encumbering a parcel ofreal property located at 530 East 76 th Street, Unit 34-35AB, New York, New York. The mortgage consolidated two earlier mortgages and was given by Defendant Vinayak Singh ("Singh"). The mortgage secures a consolidated note which evidences a loan with an original principal amount of $2,100,000.00. Plaintiff commenced this action wherein it is alleged Defendant Singh defaulted in repayment of the subject note. Now, Plaintiff moves for a default judgment against all defendants, an order of reference and to amend the caption. Defendant Singh opposes the motion. "An applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear" (Deutsche Bank Natl. Trust Co. v Silverman, 178 AD3d 898, 899 [2d Dept 2019]). Plaintiff has established prima facie its entitlement to a default judgment against Defendants by submitting proof of the mortgage, the unpaid note, notice of default, proof of service on each Defendant as well as proof of their failure to appear or answer (see CPLR §3215[f]; SRMOF JI 2012-1 Trust v Tel/a, 139 AD3d 599,600 [l51 Dept 2016]). Accordingly, Plaintiff has demonstrated its entitlement to a default judgment against Singh, as well as the other Defendants. "'To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense"' (Deutsche Bank Natl. Trust Co. v Silverman, 178 AD3d 898, 901 [2d Dept 2020], citing US Bank NA. v Dorestant, 131 AD3d 467,470 [2d Dept 2015]). Defendant Singh's proffered excuse, that he served an answer, is unavailing as that pleading was indisputably late. Service upon Singh, made ostensibly via 850074/2023 US BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE FOR CABANA SERIES V TRUST vs. SINGH, VINA YAK ET AL Motion No. 001 [* 1] 1 of 4 Page 1 of 4 11 INDEX NO. 850074/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 09/15/2023 I CPLR §308[2], was complete on April 6, 2023. Thus, Singh had until May 5, 2023, to appear or answer. Singh did not serve and file his answer until June 19, 2023. Any claims regarding loss mitigation negotiations are only corroborated by emails dated after Singh's default. Defendant also failed to demonstrate lack of personal jurisdiction or a potential meritorious defense to the action since no affidavit from Singh was proffered and the answer filed was verified only by counsel (see eg Peacock v Kalikow, 239 AD2d 188, 190 [1 st Dept 1997]; see also Gorman v English, 137 AD3d 556 [1 st Dept 2015]). The branch of Plaintiffs motion for a default judgment against the non-appearing parties, is granted (see CPLR §3215; SRMOF 112012-1 Trust v Tella, 139 AD3d 599,600 [l5t Dept 2016]). The branch of Plaintiff's motion to amend the caption is granted without opposition (see generally CPLR §3025; JP Morgan Chase Bank, NA. v Laszio, 169 AD3d 885, 887 [2d Dept 2019]). Accordingly, it is ORDERED that the branch of the motion for a default judgment against all Defendants is granted; and it is ORDERED that Clark Whitsett, Esq., 108-26 Myrtle Avenue, Richmond Hill, NY 114181235 (718) 850-0003 is hereby appointed Referee in accordance with RP APL § 1321 to 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 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(6); and it is further :I,, 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 fl :i u 11 tt r,,, ft 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 850074/2023 US BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE FOR CABANA SERIES V TRUST vs. SINGH, VINA YAK ET AL Motion No. 001 [* 2] 2 of 4 Page 2 of 4 INDEX NO. 850074/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 09/15/2023 ORDERED that if defendant(s) have objections, they must submit them to the referee within 14 days of the mailing of plaintiff's 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 sponte toll interest depending on whether the delays are due to plaintiff's failure to move this litigation forward; and it further ORDERED that the caption of this action is amended by removing those parties named herein as "JOHN DOE" and "JANE DOE," and all proceedings heretofore filed herein shall be deemed amended accordingly, and it is further ORDERED that the amended caption shall read as follows: SUPREME COURT OF THE ST A TE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------X US BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE FOR CABANA SERIES V TRUST Plaintiff, -againstVINA YAK SINGH; UNITED STATES OF AMERICA (EASTERN DISTRICT); NEW YORK CITY PARKING VIOLATIONS BUREAU; THE BOARD OF MANAGERS OF THE PROMENADE CONDOMINIUM, Defendants. ----------------------------------------------------------------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 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 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 850074/2023 US BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE FOR CABANA SERIES V TRUST vs. SINGH, VINA YAK ET AL Motion No. 001 [* 3] 3 of 4 Page 3 of 4 I\ INDEX NO. 850074/2023 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 09/15/2023 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 -,.,l 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 All parties are to appear for a virtual conference via Microsoft Teams on January 10, 2022 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 a motion has not been made, then a conference is required to explore the reasons for the delay. "}_C. ~ ~ 9/15/2022 . ~CIS A. KAHN,~J.S.C. DATE CHECK ONE: GRANTED DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 850074/2023 US BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE FOR CABANA SERIES V TRUST vs. SINGH, VINA YAK ET AL Motion No. 001 [* 4] A. KAHN Ill OTHER J.S.C. NON~Q~~pfs~NCIS CASE DISPOSED 4 of 4 Page 4 of 4 REFERENCE

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