Opinion
Index No. 850325/2013 MOTION SEQ. No. 005
03-01-2024
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BEAR STEARNS ASSET BACKED SECURITIES TRUST 2004-AC3 ASSET-BACKED CERTIFICATES, SERIES 2004-AC3, Plaintiff, v. MARC BERNSTEIN, DONNA BERNSTEIN, BOARD OF MANAGERS OF THE KIPS BAY TOWERS CONDOMINIUM, BRUCE S. RESNICK, PC DEFINED BENEFIT PENSION PLAN, FIRST AMERICAN TITLE INSURANCE COMPANY, FLOATING ASSETS LTD, GEISLER &GABRIELE LLP, HECHT & KLEEGER PC, JORDAN HECHT, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, NEW YORK COMMERCIAL BANK, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, NEW YORK SUPREME COURT, RDLF FINANCIAL SERVICES LLC,RONI DERSOVITZ, SAFE HORIZON, TADEUZ NAJMOROSKI, UNITED STATES OF AMERICA ACTING THROUGH THE IRS, WILTIN PTY, LTD., Defendant.
Unpublished Opinion
PRESENT: HON. FRANCIS A. KAHN, III Justice
JUDGMENT OF FORECLOSURE AND SALE AND DECISION + ORDER ON MOTION
Francis A. Kahn III Judge:
The following e-filed documents, listed by NYSCEF document number (Motion 005) 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 163, 164, 165, 166, 167, 168, 169, 170, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194 were read on this motion to/for JUDGMENT - FORECLOSURE & SALE
Upon the foregoing papers, the motion is determined as follows:
In this mortgage foreclosure action Plaintiff moves to confirm the October 20, 2022, report of Referee Mark McKew, Esq. and for the issuance of a judgment of foreclosure and sale. Defendants Marc Bernstein and Donna Bernstein oppose the motion and cross-move to deny the motion and return this matter to residential mortgage foreclosure settlement part on the basis that Plaintiff failed to act in good faith as required by CPLR §3408. Plaintiff opposes the cross-motion.
In support of the motion, Plaintiff established that the evidence before the Referee substantially supported the Referee's findings on the amount due under the note, accrued interest, and other expenses (see U.S. Bank, N.A. v Saraceno, 147 A.D.3d 1005 [2nd Dept. 2017]; HSBC Bank USA, N.A. v Simmons, 125 A.D.3d 930 [2nd Dept. 2015]).
In opposition, Defendants' assertion that Plaintiff neglected to act in good faith as required by CPLR §3408 is unavailing. There is no proof "plaintiff s representative was not fully authorized to negotiate a settlement of this residential foreclosure action on plaintiffs behalf or that the negotiations that were had were a sham" (Wells Fargo Bank, N.A. v Van Dyke, 101 A.D.3d 638 [1st Dept 2012]).
On the issue of interest, "[i]n 'an action of an equitable nature, the recovery of interest is within the ] court's discretion. The exercise of that discretion will be governed by particular facts in each case,' including wrongful conduct by either party" (U.S. Bank N.A. v Beymer, 190 A.D.3d 445 [1st Dept 2021], citing South Shore Fed. Sav. & Loan Assn, v Shore Club Holding Corp., 54 A.D.2d 978, [2d Dept 1976]). Generally, lengthy unexplained delas and "egregious" wrongful conduct must exist for the Court to assess an interest toll (see eg U.S. Bank, N.A. v Gendelman, 214 A.D.3d 928 [2d Dept 2023]; Wells Fargo Bank, N.A. v Lee, 208 A.D.3d 1384 [2d Dept 2022]; Prompt Mtge. Providers of N. Am., LLC v Zarour, 155 A.D.3d 912, 915 [2d Dept 2017]). Defendants have not established the existence of any significant delays in this matter solely attributable to Plaintiff. "Indeed, any delays in the prosecution of the action, which included, among other things, settlement negotiations, court imposed stays, adjournments, and COVID-19 . . . restrictions, were not solely due to the actions of the plaintiff or solely within the plaintiffs control" (Wells Fargo Bank, N.A. v Abakporo, 221 A.D.3d 939, 940 [2d Dept 2023]; see also U.S. Bank NA v Beymer, 190 A.D.3d 445 [1st Dept 2021]).
Defendants also took issue with Plaintiffs request for attorney's fees in the amount of $5,850.50. The Court has inherent authority to set legal fees charged for services in an action before it and determination of II same is within its sound discretion (see e.g. Matter of Thomas B. v. Lydia D., 120 A.D.3d 446 [1st Dept 2014). In assessing a request for legal fees, the Appellate Division, First Department held in Jordan v Freeman, 40 A.D.2d 656 [1st Dept 1972] as follows:
The relevant factors in the determination of the value of legal services are the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issues involved, the professional standing of counsel, and the results achieved . . . [The] court may consider its own knowledge and experience concerning reasonable and proper fees and in the light of such knowledge and experience, the court may form an independent judgment from the facts and evidence before it as to the nature and extent of the services rendered, make an appraisal of such services, and determine the reasonable value thereof [Internal citations omitted].
In the end "the court must possess sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered" (Bankers Fed. Sav. Bank FSB v Off W. Broadway Developers, 224 A.D.2d 376 [1st Dept 1996]; see also SO/Bluestar, LLC v Canarsie Hotel Corp., 33 A.D.3d 986 [2d Dept 2006]). "The burden of proof was upon the plaintiff to establish the necessity for and the reasonable value of the legal services rendered" (Centre Great Neck Co. v Penn Encore, Inc., 255 A.D.2d 543 [2d Dept 1998]). Here, the basis for an award of legal fees is adequately supported by the affirmation of Anthony J. Rooney, Esq. and is eminently reasonable for a litigation that has lasted more than a decade.
Accordingly, it is
ORDERED and ADJUDGED that the motion for a judgment of foreclosure and sale and to confirm the referee's report is granted and Defendants' cross-motion is denied; and it is further
ORDERED that the mortgaged property described in the complaint and as described in this judgment, or such part thereof as may be sufficient to discharge the mortgage debt, lien for common charges, the expense of sale and the costs of this action as provided in the RPAPL be sold within 180 days of this judgment, in one parcel, at a public auction at the New York County Courthouse located at 60 Centre Street, New York, New York under the direction of Mark McKew, Esq, who is appointed Referee for this purpose; and it is further
ORDERED that PRIOR to scheduling publication, Plaintiff shall contact the auction part clerk at sfc-foreclosures@nycourts.gov and obtain consent to place the matter on the auction calendar and, thereafter, Plaintiff shall upload the notice of sale to NYSCEF at least 21 days before the sale and serve it on the Referee. IF THE AUCTION IS NOT ON THE CALENDAR, then the auction will not go forward', and it is further
ORDERED that the sale shall be conducted in accordance with the annexed New York County Auction Part Rules for Outdoor Auctions.
ORDERED that after receiving permission from the Auction Part Clerk, the Referee shall give public notice of the time and place of sale in accordance with RPAPL 231(2) in the New York Amsterdam News; and the referee need not conduct the sale unless plaintiff shall provide the referee with proof of publication of the notice of sale, and if the sale is adjourned due to plaintiffs failure to provide such proof, then said adjournment shall not be considered at the referee's request; and it is further
ORDERED that by accepting this appointment the Referee certifies that she/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 the Referee is prohibited from receiving any funds without compliance with Part 36 of the Rules of the Chief Administrative Judge; and it is further
ORDERED that the Referee shall conduct the foreclosure sale only if Plaintiff, its successors and/or assignees or its representatives is present at the sale or the Referee has received a written bid and Terms of Sale from Plaintiff, its successors and/or assigns, or its representatives; and it is further
ORDERED that if the Referee cannot conduct the sale within 180 days of the date of this judgment, plaintiff must make a motion to extend the time to sell the subject property explaining the reasons for the delay; and it is further
ORDERED that at the time of sale the Referee may accept a written bid from the Plaintiff or the Plaintiffs attorney, just as though Plaintiff were physically present to submit said bid; and it is further
ORDERED that the Referee shall accept the highest bid offered by a bidder who shall be identified upon the court record, 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, unless the successful bidder is Plaintiff, in which case no deposit against the purchase process shall be required and it is further
ORDERED that notwithstanding the previous paragraph, the Referee shall have the right to refuse cash payments and require a bank or certified check from the successful bidder and the Referee shall be entitled to qualify bidders and require bidders to show proof of funds before or during the auction; and it is further
ORDERED that in the event the first successful bidder fails to execute the Terms of Sale or fails to immediately pay the ten percent (10%) deposit as required, the property shall be immediately reoffered at auction on the same day; and it is further
ORDERED the Referee shall deposit the down payment and proceeds of sale, as necessary in an FDIC-insured bank where the Referee has an account for that purpose in accordance with CPLR 2609; and it is further
ORDERED that after the balance of the purchase price is paid or credited and the property is sold, the Referee shall execute a deed to the purchaser in accordance with RPAPL 1353 and the terms of sale (which .. shall be deemed a binding contract); and it is further
ORDERED that in the event a party other than Plaintiff becomes the purchaser at the sale, the closing of title shall be held no later than 30 days after the date of such sale; and it is further
ORDERED that, pursuant to RPAPL 1353(1), if Plaintiff (or its affiliate as defined in paragraph [a] of subdivision one of section six-1 of the banking law) is the purchaser, the property shall be placed back on the f market for sale or other occupancy within 180 days of the execution of the deed of sale or within 90 days of construction, renovation, or rehabilitation of the property, provided that such construction, renovation or rehabilitation proceeded diligently to completion, whichever comes first, provided that this court grants an extension upon a showing of good cause; and it is further
ORDERED that the Referee, after receiving the proceeds of the sale, shall pay (from the proceeds) the taxes, assessments, sewer rents, or water rates, which are, or may become, liens on the property in accordance with their priority according to law with such interest or penalties which may have lawfully accrued thereon to the date of payment; and it is further
ORDERED that the Referee shall deposit the balance of the proceeds from the sale in his or her own name as Referee in an FDIC-insured bank where the Referee has an account for that purpose and shall make the following payments in accordance with RPAPL 1354:
1. The Referee's fees for conducting the sale, which are $1,100.00. Plaintiff shall also compensate the Referee in the sum of $350 for each adjournment or cancellation made on less than two business days' notice unless the Referee caused the delay.
2. All taxes, assessments and water rates that are liens upon the property and monies necessary to, redeem the property from any sales for unpaid taxes, assessments or water rates and any other I amounts due in accordance with RPAPL 1354(2). The purchaser shall be responsible for interest and penalties accrued after the sale. The Referee shall not be responsible for the payment of b penalties or fees pursuant to this appointment. The purchaser shall hold the Referee harmless from any such penalties or fees assessed.
3. The expenses of the sale and the advertising expenses as shown on the bills presented and certified by the Referee to be correct, copies of which shall be annexed to the report of sale.
4. The Referee shall also pay to the Plaintiff or its attorneys the following:
a. Amount Due from the Referee's Report: $1,325,461.27, together with interest at the note rate from May 8, 2020, until entry' of judgment, together with any advances as provided for in the
note and mortgage which Plaintiff had made for taxes, insurance, principal, and interest and any other charges due to prior mortgages or to maintain the property pending consummation of the foreclosure sale, not included in the computation upon presentation of receipts for said expenditures to the Referee, and then with interest from the date of entry of this judgment at the statutory rate until the date the deed is transferred.
b. Costs and Disbursements:__(to be filled in by the Clerk) to Plaintiff for costs and disbursements in this action with interest at the statutory judgment rate from the date of entry of this judgment.
c. The Court declines to award additional allowance.
d. Attorneys' Fees: $5,850.50.
5. Surplus monies from the sale shall be paid into Court by the Referee within five days after receipt in accordance with RPAPL 1354(4); and it is further |
ORDERED that if Plaintiff is the purchaser of the property, or in the event that the rights of the purchasers at the sale and the terms of sale under this judgment shall be assigned to or be acquired by Plaintiff, and a valid assignment is filed with the Referee, the Referee shall not require Plaintiff to pay in cash the entire amount bid at sale, but shall execute and deliver to Plaintiff or its assignee, a deed or deeds of the property sold upon the payment to said Referee of the amounts specified as 1,2, and 3 above, and the Referee shall allow Plaintiff to pay the amounts specified in 2 and 3 above when it is recording the deed; that the balance of the bid, after deducting the amounts paid by Plaintiff, shall be applied to the amount due to Plaintiff as specified in 4 above; that Plaintiff shall pay any surplus after applying the balance of the bid to the Referee, who shall deposit it in accordance with 5 above; and it is further
ORDERED that all expenses of recording the Referee's deed, including real property transfer taxes, ;which is not a lien upon the property at the time of sale, shall be paid by the plaintiff from the sale proceeds; and it is further
ORDERED that Plaintiff may seek to recover a deficiency judgment in accordance with RPAPL 1371 if applicable, and it is further
ORDERED that if the property is sold in one parcel in "as is" physical order and condition, subject to any condition that an inspection of the property would disclose; any facts that an accurate survey of the property would show; any covenants, restrictions, declarations, reservations, easements, right of way, and public utility agreements of record, if any; any building and zoning ordinances of the municipality in which the mortgaged property is located and possible violations of same; any rights of tenants or persons in possession of the subject property; prior liens of record, if any, except those liens addressed in RPAPL 1354, any equity of redemption of the United States of America to redeem the property within 120 days from the date of sale, any rights pursuant to CPLR 317, 2003 and 5015 or any appeal of the underlying action or additional litigation brought by any f defendant or its successor or assignee contesting the validity of this foreclosure; and it is further
ORDERED that the purchaser be let 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 that Defendants in this action and persons claiming through them and any person possessing a junior interest in the property after the Notice of Pendency was filed are barred and foreclosed of all right, claim, lien, title, and interest in the property after the sale of the mortgaged property; and it is further
ORDERED that within 14 days after completing the sale and executing the proper conveyance to the purchaser, the Referee shall file with the clerk a report under oath of the disposition of the proceeds of the sale and upload the report to NYSCEF if it is an e-filed case; and it is further
ORDERED that if the purchaser or purchasers at said sale default upon the bid or terms of sale, the Referee may re-notice the property for sale with or without prior application to this Court, and the deposit of the recalcitrant bidder forfeited and retained by Plaintiff as liquidated damages; and it is further
ORDERED that Plaintiff shall serve a copy of this judgment with notice of entry upon the owner of the equity of redemption, any tenants named in this action, and any other parties entitled to service, including the, Referee appointed herein; and it is further
ORDERED that nothing herein shall be deemed to relieve Plaintiff of any obligation imposed by RPAPL 1307 or 1308 to secure and maintain the property until ownership of the property has been transferred and the deed duly recorded; and it is further
ORDERED that when the Referee files a report of sale, she or he shall also file a Foreclosure Action Surplus Monies Form and also upload this document to NYSCEF if an e-filed case; and it is further
ORDERED that, without further order of the Court, the referee shall be entitled to an additional fee of $950.00 for conducting and attending a closing with a purchaser other than plaintiff, plus, if such a closing is scheduled for the referee's conference room, then the referee shall be entitled to a reasonable fee for use thereof, without further order of the Court; and it is further identified:
A description of the premises is annexed hereto as schedule A.
Mortgage Servicer: Wells Fargo Home Mortgage -- Phone Number: 1-877-617-527
ADVANTAGE FORECLOSURE SERVICES, INC.
Title No. FCL-83807-12 (File No. 294156)
SCHEDULE A
DESCRIPTION
Block 936 and Lot 4054
The Condominium Unit (the "Unit") known as Unit No. 4M in the building having a street address of 330 East 33rdStreet, New York, New York 10016 and being one of four buildings (the "Building"), known as the Kips Bay Towers Condominium, Borough of Manhattan, County, City and State of New York, said Unit being designated and described as Unit No. 4M in a certain declaration dated November 30,1981 pursuant to Article 9-B of Real Property Law of the State of New York (the “Condominium Act"), establishing a plan for condominium ownership of Building and the land (the "Land") upon which the Building is situate, which declaration was recorded in the New York County Office of the Register of the City of New York on December 15,1981, in Reel 595 Page 1270 (the "Declaration"). The Unit is also designated as Tax Lot 4054 in Block 936 of Section 3 of the Borough of Manhattan on the Tax Map of the Real Property Assessment Department of the City of New York and on the Floor Plans of the Building, certified by Charles B. Ferris, Associate Architects, on November 19,1981, and filed with the Real Property Assessment Department of the City of New York on December 14,1981, as condominium Plan No. 40 and also filed in the City Register's Office on December 15,1981, as Map No. 4098.
TOGETHER with an undivided. 16226% interest in the Common Elements (as such term is defined in the Declaration).
Premises known as 330 East 33rd Street, Unit 4M, New York, New York
Schedule A
Supreme Court, New York County Auction Part Rules for Outdoor Auctions
An auction will not go forward if it is not on the Auction Calendar
1. Prior to scheduling publication, the plaintiff and referee shall contact the Auction Part clerk at SFC-Forclosures@nycourts.qov to place the auction on the auction calendar.
2.The Referee and all interested parties must be present on the scheduled auction date at 2:15 p.m. on the portico at 60 Centre Street.
3. The Terms of Sale must be posted on the portico before the auction begins. The Referee shall afford prospective bidders time to review the Terms of Sale.
4. At his or her discretion, the Referee may choose not to accept cash.
5. A successful bidder must have in his/her possession at the time of the bid the full 10% of the sum bid, in cash (if accepted at the referee's discretion) or certified or bank check to be made payable to the Referee.
6. All persons wishing to bid on properties must register with the Referee and provide proof of identification.
7. Bidders will be required to stand and state their names at the time the bid is made.
8. Bidders are permitted to use cell phones to communicate with business partners via text messages only. Phone calls and video calls (such as FaceTime, Skype or Teams) are not permitted.
9. No sale will be deemed final until the full 10% deposit has been paid to the Referee and the Terms of Sale have been signed; this must be done immediately following the auction.
10. If a successful bidder fails to immediately pay the deposit and sign the Terms of Sale, the property will be promptly re-auctioned the same afternoon.
11. Bidders are cautioned that the failure to furnish the 10% deposit or sign the Terms of Sale after winning an auction may result in the loss of future bidding privileges. The Court reserves the right to impose penalties for inappropriate behavior or other misconduct as it sees fit.
12. Within 10 days of the auction the Referee shall report to the auction clerk via email (SFC-Forclosures@nycourts.gov) the amount of the successful bid (the purchase price) and the name and address of the successful bidder.
13. Within 10 days of the auction the Referee shall report to the auction clerk via email (SFC-Forclosures@nycourts.gov) the sale price, the amount awarded in the judgment of foreclosure and sale and the upset price. The clerk shall record and enter this information in the court's computer system.
14. The Referee conducting the sale shall complete a Surplus Monies Form immediately following the sale. All information must be completed; if there is no surplus, then that must also be indicated.
15. Within 10 days of the auction, the Referee shall deliver the signed Surplus Monies Form to the auction clerk via email (SFC-Forclosures@nycourts.gov). The auction clerk shall upload the form to NYSCEF (if an e-filed case) or provide it to the County Clerk (if a paper case).
16. All bidders must wear a face mask/shield at all times and social distancing must be observed by all bidders at all times. Bidders who do not comply with the face mask and/or the social distancing mandate will be removed from the auction.
17. A copy of these rules will be appended to all Judgments of Foreclosure and Sale.