Preview
7 INDEX NO. 815037/2021
OUN [20/ y
NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 11/20/2023
At Part 33 of the Supreme Court held in the
County of Erie, at the Erie County Supreme
Y
Court Courthouse thereof, on the te" day of
Maven «2023,
PRESENT: HON. RAYMOND W. WALTER, J.5.0
STATE OF NEW YORK
SUPREME COURT OF BRIE
siencesinininnenenie cream X
INDEX NO.; 815037/2021
SEFCU,
Plaintiff,
¥.
NELSON BROTHERS WEST 8. AL LSON AM DED JUDGMENT
BROTHERS ST SENECA INV TOR LC; OF (CLOSURES AND
NB-WEST CA TIC 1, LLC; NB-¥ CA SALE
TIC 2, LLC; -WEST SENEt Fe 1B-WEST
SENECA TIC 4, LLC; NB- WES Te §, LLC;
NB. WEST SENECA TIC 6, UL ~ WE: ATIC
7, LLC; NB-WEST SENECA TIC ah B-WEST
SENECA TIC 9, LLC; NB-WEST S TE 10, LLC;
NB-WEST SENECA TIC 11, LI NB-WEST SENECA
TC NB-WEST SE 223, LUC NB-
WE A TIC 14, LE BW TC
15, LL ‘B-WEST SENECA is TE. VEST
SENE FIC 17, LLC, N B-WE: LLG
NE-WEST SENECA TH O18, STS
TIC 20, 1 B-Y Ld
WEST S ATIC 2 LL “WW
; NBAW N FIC &, WY
SED ATIC 25, U EST SE: 026,
7,1
N EST and
8 ATIC DE HEIGHT
SE A OPERATIN PRE OR
LIVING, LL R OBE RT BORSODY, ¥ AY
KAPLAN; PAULA BORSODY, AS AS
COMMISSIONER NEW YORK STATE DEPAR TMB! NT
OF HEALTH
Defendants,
Senet annie nme natin ainaener wantin: aX
PRE 3030 Choton Stee ot
Weat Seneca, New York 14224
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Plaintiff having moved this Court for an Amended Judgment of Foreclosure and Sale,
after the initial Judgment of Foreclosure and Sale was submitted to this Court and said Judgment
of Foreclosure and Sale which was granted on August 24, 2022, and entered in the office of the
Clerk of the County of Erie on September 1, 20% 2= 2 (hereinafter “Judgernent #1"). A copy of the
signed Judgment of Foreclosure Sale and Notice of Entry are attached as Exhibit “1” to the
affirmation of regularity supporting this motion,
Thereafter, a public auction was scheduled for October 19, 2022, for the sale of the
Premises, however an intervening bankruptcy filing by the defendant Nelson Brothers West
Seneca Investor Units, LLC stayed the public auction.
In the intervening bankruptcy proceeding involving defendant Nelson Brothers West
Seneca Investor Units, LLC, the plaintiff, SEFCU, now known as Broadview FCU as a result of
a merger made a successfil motion terminating the automatic stay and thus allowing the Plaintiff
to move forward with this Amended Judgment of Foreclosure and Sale, A copy of the Order
terminating the Automatic Stay is attached as Exhibit “2” to the affirmation or regularity
suppartin, g this motion.
NOW, upon the plaintiff's ex parte application at which time no appearances were
required and upon all prior proceedings herein, and upon the Summons, Complaint, and Notice
of Pendency filed in this action on the 3rd dey of November, 2021; the Affidavit of Amount Due
of Gina Sullivan, dated June 7, 2022, and the Report of the Referee, Ralph M Mohr, Hag. dated
Tone 16, 2622, by which Report it appears that the sum of Six Million Eighty-Two Thousand
Nine Hundred Seventy-Four Dollars and 66/100 ($6,082,974.66) due as of May 31, 2022, and
the mortgaged premises should be sold in one parcel, oll in support of Plaintiff's motion for a
Judgment of Foreclosure and Sale; and
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UPON proof that each of the defendants herein has been duly served with the Summons
and Complaint in this action, and has voluntarily appeared either personally or by an attorney
OR have not served any answer to the Complaint or otherwise appeared, nor had their time to do
so extended; and it appearing that more than the legally required number of days has elapsed
since defendant MARY T. BASSETY AS COMMISSIONER NEW YORK STATE
DEPARTMENT OF HEALTH was so served; and Plaintiff having established to the court’s
satisfaction that a judgment against defendants is warranted; and
UPON proof that non-appesring defendant MARY T. BASSETT AS COMMISSIONER.
NEW YORK STATE DEPARTMENT OF HEALTH are not absent, in accordance with RPAPL
§1321(2); and
A Referee having been appointed to compute the amount due to Plaintiffupon the
bond‘note and mortgage set forth in the Complaint and to examine whether the mortgaged
property can be sold in parcels; and
UPON reading and filing the Report of Ralph M. Mohr, Usq., dated June 16, 2022,
showing the sum of Six Million Eighty-Twe Thousand Nine Hundred Seventy-four Dollars and
66/100 ($6,082,974.66) due as of May 31, 2022, and that the mortgaged property may not be
sold in parcels; and
UPON proof of due notice of this motion upon all parties entitled to receive same, and
upon all the prior proceedings and papers filed herein,
NOW, on motion by Daniel M. Austin, Eeq., attorney for the Plaintiff, tt ts hereby
ORDERED, ADJUDGED AND REED that the motion for an Amended Judgment
of Foreclosure and Sale is granted; and it is farther
ORDERED, ADJUDGED AND DECREED that the Referee’s Report be, and the same
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is, hereby in all respects ratified and confirmed, and it is further
ORDERED, ADIUDGED AND DECREED that the sum of Six Million Eighty-Two
‘Thousand Nine Hundred Seventy-Foor Dollars and 66/100 ($6,082,974.66) due as of May 31,
2022, may be reduced by the arnount of rent collected or may be collected by the Temporary
Receiver.
ORDERED, ADIUDGED AND DECR D that the receivership and the rights and
powers of the Temporary Receiver previously granted by this Court shall continue until further
order of this Court; and it is further
ORDERED, ADIUDGED AND DECREED, that the mortgaged property described in
the Complaint and as hereafter described, or sach part thereof as may be sufficient to discharge
the mortgage debt, the expenses of the sale, and the costs of this action as provided by the
date of this Judgment, in one parcel, at a public auction at
RPAPL be sold, within 90 days
?
.¢ f the
the OX. Low ly Had 23 by and
under the direction of Rainh M oly ot, Lancaster, rhe
3
x
1480 231 16}.6S sho is hereby appointed Referee for that purpose; that said Referee
give public notice of the time and place of sale in accordance with RPAPL §231 in
~~
ask Peal ate t sk. seine peewee ; and it is further
ORDERED, ADJUDGED AND DISCREED that by accepting this appointment, the
Referee certifies that he’she is in compliance with Part 36 of the Rules of the Chief Judge (22
NYCRR Part 36), inchiding, but not limited to $36.2 (©) (Disqualifications from appointment”)
and §36.2 (d) (Limitations on appointments based apor compensation”); and, if the Referee is
disqualified from receiving an appointment pareuant to the provisions of that Rule, the Referee
shall immediately notify the Appointing Judge; and it is further
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ORDERED, ADJUDGED AND DECREED that the Referee is prohibited from accepting
or retaining any finds for him/herself or paying finds to him/herself without compliance with
Part 36 of the Rules of the Chief Adminisirative Judge; and it is further
ORDERED, ADJUDGED AND DECREED that the Referee shall conduct the
foreclosure sale only if Plaintiff, its successors and/or assignees, or its representative 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 representative; and itis further
ORDERED, ADJUDGED AND DECREED that if the Referee does not conduct the sale
within 90 days of the date of the Judgment, in accordance with CPLR 2004, the time fixed by
RPAPL §1351(1) is extended for the Referee to conduct the sale as soon as reasonably
practicable; and it is further
ORDERED, ADJUDGED AND DECREED that at the time of sale the Referee may
accept a written bid from the Plaintiff or the Plaintiff's attorney, just as though Plaintiff were
physically present to submit said bid; and it is further
ORDERED, ADJUDGRD AND DE 1D that the Referee shall accept the highest bid
offered by « bidder who shall be identified upon the court record, and shall require that the
successful bidder immediately execute Terms of Sale tor the purchase of the property, and pay to
the Referee, in cash or certified or bank check, ten percent (10%) of the aun bid, anleas the
suovessfal bidder is Plaintiffin which case no deposit against the purchase price shall be
required; and it is farther
ORDERED, ADJUDGED AND DECREED that, in the event the first successful bidder
fails to execute the Torms of Sale immediately following the bidding upon the subject property
or fails to immediately pay the ten percent (10%} deposit as required, the property shall
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immediately and on the same day be reoftered at auction; and it is farther
ORDERED, ADJUDGED AND DECREED that the Referee shall then deposit the down
\
payment and proceeds of sale, ag necessary, it gon, in his/her own name as
Referee, in accordance with CPLR §2600; and it is Ather
ORDERED, ADJUDGED AND DECRESD that afler 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 futher
ORDERED, ADJUDGED AND DECREED thai, in the event a party other than the
Plaintiff becomes the purchaser at the sale, the closing of tide shail be held no later than 30 days
after the date of such sale unless otherwise stipulated by all parties to the sale; and it is forther
ORDERED, ADJUDGED AND DECREED that the Referee, on receiving the proceeds
of such sale, shall forthwith pay therettom, in accordance with their priority according to law, all
taxes, assessments, sewer rents, Gr water rates, which are, or may become, liens on the property
at the time of sale, with such interest or penalties which may have lawfully accrued thereon to
the date of payment; and it is further
ORDERED, ADIUDGED AND DECREED, that the Referee then deposit the balance of
said proceeds of sale in her/his own name as Referee 18 a
_, and shall thereafter make the following payments in
accordanee with RPAPL $1354, as follows:
FIRST: The Referee’s siatulory fees for conducting the sale, in accordance
with CPLR 8603¢h), not to exceed $756.00 unless the property sells for
$50,000.00 or more, of in the event a sale was cancelled or postponed, Plaintiff
shall compensate the Referee in the sunt off 5 oO Oe each adjourmment
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or cancellation, unless the Referee caused the delay;
SECOND: All taxes, assessments, and water rates that are liens upon the
property and monies necessary to redeem the property from any sales for unpaid
faxes, asseasmenis, or water rates thai have not become absolute, and any other
amounts due in accordance with RPAPL §1354(2). Purchaser shali be responsible
for interest and penalties due on any real property taxes accruing after the sale.
‘The Referee shall not be responsible for the payment of penalties or fees pursuant
to this appointment. The Purchaser shall hold the Referee harmless from any such
penalties or fees assessed;
THIRD: The expenses of the sale and the advertising expenses as shown
on the bills presented and certified by said Referee to be correct, duplicate copies
of which shall be annexed to the repart of sale;
FOURTH: Referee shall then pay to Plaintiff or its attomey the following:
Amount Due per Referee’s Report: Six Million Eighty-Two Thousand
Nine Hundred Seventy-Pour Dollars and 66/100 (85,082,974.66} due as of May
31, 2022, together with interest from the date of computation (May 3 1, 2022) to
the date of the judgment of foreclosure and sale (Judgment #1) which totals
$179,156.10, plus interest from the date of Judgment #1 to the date of the failed
aie (Gctober 19, 2022) at thy statutory rate of 9.0% which totals $88,013.13, plus
interest from date of the failed sale (Geisber 19, 2022) to November 30, 2023
which amounts fo $663,602.64 together with any interest at the statutory rate to
until the date the deed is transferred; & gether with any advances as provided for
in the note and mortgage which Plain Ytias made fer taxes, insurance, principal,
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and interest, and any other charges due to prior mortgages or to maintain the
property pending consummation of this foreclosure sale, not previously included
in the computation, upon presentation eceipts for said expenditures to the
Referee; and all taken together which may be reduced by the arnount of rent
collected or may be collecied by the Temporary Receiver.
~~;
Costs and Disbursements: 3 & 4d} 4 adjudged to the
Plaintiff for costs and disbursements in this action (as taxed or calculated by the
Clerk and inserted herein), with interest at the statutory judgment rate from the
date of entry of this jadgment in addition to the amount of $6,249.64 which is the
amount in the initial Judgment of Foreciasare and Sale, phis interest at the
statutory judgment rate;
Additional Allowance: $ So _is hereby awarded to Plaintiff
in addition to costs, with interest ai the statutory judgment rate from the date of
entry of this judgment, pursuant io CPLR Article 83 in addition to the amount of
$50.00 which is the amount in the initial Jadgment of Foreclosure and Sale, plus
interest at the statutory pAugment rate;
Attomey Fees: $f lo SO8.” _is hereby awarded to Plaintiff
ag reasonable legal fees herein, with interest at the statutory rate from the date of
entry of this judgment which represents the amount of attorney’s fees expended
from the filing of the bankrapicy petition for Neison Brothers West Seneca
Investor Units, LLC on Gctober 19, 2022 to October 2, 2023 as well as those
reasonable attorneys’ fees that will be incurred by Plaintiffup and inchuding the
public auction and transfer of the dead, if necessary. The above noted attorney’s
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fees are in addition fo the $144,503.50 in attorney’s fees that was already awarded
in Judgment #1. Additionally, this Amended Jedgement of Foreclosure and Sale
shall include the Receiver’s receivership fees, commissions, and disbursements
due to the Temporary Receiver of the rents and profits herein in the sum of
$77,370.22 which represents a 3% commission of the monthly rent for the Real
1
Property of $128,950.40 from September 1,2 2 021 through September 30, 2022 as
well as costs and disbursements of the Receiver incurred during the pendency of
this action in the amount of $719.00 and judgment interest of $7,965.09 which is
valculated at the rate of 8% from October 19, 2022 until November 30, 2023 fora
total amount due the Reegiver of $86,054.31;
FIFTH: Surplus munies usiging from the sale shail be paid inte court by
the officer conducting the sale within five days after receipt in accordance with
RPAPL §1354(3} and in accordance with local County rules regarding Surplus
Monies; and it is further
ORDERED, ADJUDGED AND I "RIEED that if the Plaintiff is the purchaser of the
property, or in the event that the righis of the purchasers at such sale and the terms of sale wider
this judgment shall he assigned to and be acquired by the Plaintiff, and a valid assignment
thereatis filed with said Referee, said Referee shall not require Plaintiff te pay in cash the entire
amount bid at said sale, but shall execute and deliver to the Plaintiffor its assignee, a deed or
deeds of the property sold upon the payment to said Referee of the amounts speeitied in items
marked “First”, “Second”, and “Third” above; that the Referee shall allow the Plaintiffto pay the
amounts specified in “Second” and * nied” above when it is recording the deed; that the balance
of the bid, afler deducting the smounts paid by the Plaintiff, shall be applied to the amount due
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Plaintiff and the Receiver as specified in paragraph “Fourth” above; that Plaintiff shall pay any
surplus after applying the balance of the bid to the Referee, who shall deposit it in accordance
with paragraph “FiRh” above; and it is further
ORDERED, ADJUDGED AND DECREED that all expenses of recording the Referee’s
deed, including real property tranafer tax, which is not a Hen upon the property at the ime of
sale, shall be paid by the purchaser, not by the Referee from sale proceeds, and that any transfer
tax shall be paid in accordance with Tax Law $1404 by the purchaser, and it is further
ORDERED, ADIUDGED AND DECREED that if the sale proceeds distribated in
accordance with paragraphs “First,” “Second, “Third”, and “Fourth” above are insufficient to
pay Plaintiff the Amount Due per the Referoe’s Report as set forth in paragraph “Fourth” above,
Plaintiff may seek to recover a deficiency judgment against NELSON BROTHERS WEST
SENECA, LLC; NELSON BROTHERS WEST SENECA INVESTOR UNITS, LLC; NB-
WEST 3: ENECA TIC 1, LLC; NB-WEST SERNSCA TIC 2, LLC; NB-WEST SENECA TIC 3,
LLC; NB-WEST SE c ATIC 4, LLC: NB-WEST SENECA TIC 5, LLC; NB-WEST
.
SENECA TIC 6, LLO; NB-WEST SENEC ATIO?, “3 NB-WEST SENECA TIC 8 LLC;
NB-WES'T SENECA TIC 9, LLC; NBAWEST SENECA TIC 10, LLC, NB-WEST SENECA
TIC 11, LLC; NB-WEST SENECA TIC Ya, £ WB-WEST SENECA TIC 13, LUC; NB-
WEST SENECA TiC 14, LLC NB-¥ TY SENECA TIC 15, ULC; NB-WEST SENECA TIC
16, LLC; NB-WEST SENECA TIC 17, LLC; NB-WEST SENECA TIC 18, LLC, NB-WEST
SE A TIC 19, LLC; NB-WEST SENECA TIC 20, LLC; NB-WEST SENECA TIC 21, LLC;
NB-WEST SENECA TIC 22, LLC: NS-WEST SENECA “NC 23, LLC, NB-WEST SENECA
TIC 24, LLC; NB-WEST SENECA TIC 28, LLC; NB-WEST SENECA TIC 26, LLC; NB-
WEST SENECA TIC! 27, LLC; NS-WEST SENECA TIC 28, LLC, EDEN HEIGHTS OF
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WEST SENECA OPERATING, LLC; PREMIER SENIOR LIVING, L.L.C.; ROBERT
BORSODY; WAYNE KAPLAN; AND PAULA BORSODY in accordance with RPAPL §1371
if permitted by law; and it is further
ORDERED, ADIUDGED AND DECREED that the mortgaged property is to be 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 acourste 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 prop: prior Hens of record, if any, except those hens
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 gale; and any rights pursuant to CPLR §§317,
2003, and 5015, or any appeal of the underlying action or additional litigation brought by any
defendant or its successor or agsignes contesting the validity of this foreclosure; and it is further
ORDERED, ADJURGED AND DE RK 1D that the parchaser be Jet ito 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 farther
ORDERED, ADMUDGED AND DECRERD that the Defendants in this action and all
persons claiming through them and any person obtaining an interest in the property after the
filing of the Notice of Pendency are barred and foreclosed of all ight, claim, Hen, title, and
interest in the property after the sale of the mor te:a aged property; and it is further
ORDERED, ADJUDGED ) DECREED that within 30 days after completing the sale
and executing the proper conveyance ts the parchaser, unless the time is extended by the court,
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the officer making the sale shall fle with the clerk a report under oath of the disposition of the
proceeds of the sale in accordance with RPAPL $1355()) and follow all local County rules
regarding handling of Surplus Monies: ar: S$ Rurther
ORDERED, ADIUDGED AND DE D that if the purchaser or purchasers at said
sale defauli(s) upon the bid and/or the terms of sale the Referee may place the property for resale
without prior application to the Court unless Piaintifl’s attorneys shall elect to make such
application; and it is farther
ORDERED, ADIUDGED AND DECREED 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 or persons entitled to seevice, inchiding the Referee
appointed herein; and it is forth:
ORDERED, ADJUDGED AND DECREE that nothing herein shall be deemed to
relieve Plaintiffof any obligation imposed by RPAPL $1307 and RPAPL $1308 to secure and
maintain the property until such time as ownership of the property bas been transferred and the
deed duly recorded; and it is farther
ORDERED, ADJUDGED AND DECREED that, when the Referee files a report of sale
he or she shall concurrently file a Foreclosure Actions Surplus Monies form; and it is further
ORDERED, ADFUDGED AND DEC) {9 that lo ensure compliance herewith, Plaintiff
shall file a written report with the court wittin six months from the date of entry of this judgment
stating whether the sale has occurred and the outcome thereof
Said property is commonly known as 3030 Clinton Street, West Seneca, New York
14224. The legal description of the mortgaged property referred to herein is annexed hereto as
Schedhile A
ENTER:
Soy
oo “se oN
ian RAYMOND W. WALTER, J.S.C.
DATED ii {te 2023 Judgment Signed and Filed 11/ P fleas
12 of Michael afKearns
Coane
County Clerk
—
D OUN [20/ INDEX NO. 815037/2021
NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 1/20/2023
SCHEDULE “A”
ALL THAT TRACT OR PARCEL OF LAND situate in the Town of West Seneca,
County of Erie and State of New York, being part of Lot No. 29 of the Ebenezer Lands as same
is laid out on map filed in the Erie County Clerk's Office under Cover No. 58 and more
particularly described as follows:
BEGINNING at a point in the center line of Clinton Street, said center line being the
southwesterly line of said Lot No. 29 distant 115.00 feet southeasterly from the southwesterly
corner of said lot; thence southeasterly along the southwesterly line of said Lot No. 29, a distance
of 413.02 feet to the southeasterly comer of said lot; thence northeasterly at an exterior angle of
89° 40' 14" and along the southeasterly line of said lot, a distance of 1315.34 feet to the
northeasterly corner of said lot; thence southwesterly at an interior angle of 68° 45’ 30" and
along the northerly line of said lot, a distance of 565.62 feet to the northwesterly comer of said
lot; thence southwesterly at an interior angle of 111 ° 17' 02" and along the northwesterly line of
said lot, a distance of 870.45 feet; thence southeasterly at an interior angle of 90° 00' 00" a
distance of 115.00 feet; thence southwesterly at an interior angle of 270° 00' 00" a distance of
242.25 feet to the point or place of beginning.
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NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 1/20/2023
State of New York
Supreme Court County of Erie
SEFCU.
Plaintiff,
COSTS OF
PLAINTIFF
-vs- Index Number
815037/2021
NELSON BROTHERS WEST SENECA, LLC;
OT CON RROTUERS WHET CONT, meno
NELSON BROTHERS WEST SENECA INVESTOR
UNITS, LLC; NB-WEST SENECA TIC 1, LLC;
NB-WEST SENECA TIC 2, LLC; NB-WEST SENECA
TIC 3, LLC; NB-WEST SENECA TIC 4, LLC:
NB-WEST SENECA TIC 5, LLC; NB-WEST
SENECA TIC 6, LLC; NB-WEST SENECA TIC 7, LLC:
NB-WEST SENECA TIC 8, LLC; NB- WEST SENECA
TIC 9, LLC; NB-WEST SENECA TIC 10, LLC.
NB-WEST SENECA TIC 11, LLC; NB-WEST SENECA
TIC 12, LLC; NB-WEST SENECA TIC 13, LLC:
NB-WEST SENECA TIC 14, LLC; NB-WEST
SENECA TIC 15, LLC; NB-WEST SENECA
TIC 16, LLC; NB-WEST SENECA TIC 17, LLC.
NB-WEST SENECA TIC 18, LLC; NB-WEST
SENECA TIC 19, LLC; NB-WEST SENECA
TIC 20, LLC; NB-WEST SENECA TIC 21, LLC
NB-WEST SENECA TIC 22, LLC; NB-WEST
SENECA TIC 23, LLC; NB-WEST SENECA
TIC 24, LLC; NB-WEST SENECA TIC 25, LLC.
NB-WEST SENECA TIC 26, LLC; NB-WEST
SENECA TIC 27, LLC; and NB-WEST SENECA
TIC 28, LLC; EDEN HEIGHTS OF WEST SENECA
OPERATING, LLC; PREMIER SENIOR LIVING, L.L.C
ROBERT BORSODY; WAYNE KAPLAN:
PAULA BORSODY, MARY T. BASSETT AS
COMMISSIONER NEW YORK STATE
DEPARTMENT OF HEALTH.
Defendants.
Costs before Note of Issue is filed, CPLR §8201(1)
$200.00
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Costs pursuant to CPLR §8302(b):
Percentage on $200.00 at ten percent 20.00
Percentage on $800.00 at five percent 40.00
Percentage on $2,000.00 at two percent 40.00
Percentage on $5,000.00 at one percent 50.00
Additional Allowance 50.00
FEES AND DISBURSEMENTS
Fee for index number, CPLR §8018(a) 411.96
Referee’s fee, CPLR §8301(a)1, 8003(a) 350.00
Clerk’s fee, filing notice of pendency, CPLR§8018(e), §8021(a)12 61.79
Paid for searches and copies, CPLR §8301(a)(10) 1,073.18
Serving copy of summons and complaint, CPLR §8011(c)1, §8301(d) 3,123.75
Courier/Federal Express and Accommodation Expense
Request for Judicial Intervention 95.00
Court Costs 190.54
Courier/Federal Express and Accommodation Expense 563.42
TOTAL $6,269.64
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State of New York
Supreme Court County of Erie
SECFU
Plaintiff, ATTORNEY’S
AFFIRMATION
-vs- Index Number
815037/2021
NELSON BROTHERS WEST SENECA, LLC;
NELSON BROTHERS WEST SENECA INVESTOR
UNITS, LLC; NB-WEST SENECA TIC 1, LLC;
NB-WEST SENECA TIC 2, LLC; NB-WEST SENECA
TIC 3, LLC; NB-WEST SENECA TIC 4, LLC;
NB-WEST SENECA TIC 5, LLC; NB-WEST
SENECA TIC 6, LLC; NB-WEST SENECA TIC 7, LLC;
NB-WEST SENECA TIC 8, LLC; NB-WEST SENECA
TIC 9, LLC; NB-WEST SENECA TIC 10, LLC;
NB-WEST SENECA TIC 11, LLC; NB-WEST SENECA
TIC 12, LLC; NB-WEST SENECA TIC 13, LLC;
NB-WEST SENECA TIC 14, LLC; NB-WEST
SENECA TIC 15, LLC; NB-WEST SENECA
TIC 16, LLC; NB-WEST SENECA TIC 17, LLC;
NB-WEST SENECA TIC 18, LLC; NB-WEST
SENECA TIC 19, LLC; NB-WEST SENECA
TIC 20, LLC; NB-WEST SENECA TIC 21, LLC;
NB-WEST SENECA TIC 22, LLC; NB-WEST
SENECA TIC 23, LLC; NB-WEST SENECA
TIC 24, LLC; NB-WEST SENECA TIC 25, LLC;
NB-WEST SENECA TIC 26, LLC; NB-WEST
SENECA TIC 27, LLC; and NB-WEST SENECA
TIC 28, LLC; EDEN HEIGHTS OF WEST SENECA
OPERATING, LLC; PREMIER SENIOR LIVING, L.L.C.;
ROBERT BORSODY; WAYNE KAPLAN;
PAULA BORSODY, MARY T. BASSETT AS
COMMISSIONER NEW YORK STATE
DEPARTMENT OF HEALTH,
Defendants.
State of New York )
County of Onondaga )ss.:
The undersigned, an attorney admitted to practice in the courts of this state, affirms
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that:
1. He is one of the attorneys of record for the plaintiff in the above-entitled action;
2. The foregoing disbursements have been or will necessarily be made or incurred
in this action are reasonable in amount.
3. Copies of documents or papers as charged herein were actually and necessarily
obtained for use.
The undersigned affirms that the foregoing statements are true, under the penalties
of perjury.
Dated: Octobey3, 2023
aL
1% of 72
D OUN INDEX NO.-815037/2021
NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 1/20/2023
State of New York
Supreme Court County of Erie
SEFCU,
Plaintiff, AFFIRMATION IN
SUPPORT OF
-VS.- APPLICATION FOR
ATTORNEYS’ FEES
NELSON BROTHERS WEST SENECA, LLC;
NELSON BROTHERS WEST SENECA INVESTOR Index Number 815037/2021
UNITS, LLC; NB-WEST SENECA TIC 1, LLC;
NB-WEST SENECA TIC 2, LLC; NB-WEST SENECA
TIC 3, LLC; NB-WEST SENECA TIC 4, LLC;
NB-WEST SENECA TIC 5, LLC; NB-WEST
SENECA TIC 6, LLC; NB-WEST SENECA TIC 7, LLC;
NB-WEST SENECA TIC 8, LLC; NB-WEST SENECA
TIC 9, LLC; NB-WEST SENECA TIC 10, LLC;
NB-WEST SENECA TIC 11, LLC; NB-WEST SENECA
TIC 12, LLC; NB-WEST SENECA TIC 13, LLC;
NB-WEST SENECA TIC 14, LLC; NB-WEST
SENECA TIC 15, LLC; NB-WEST SENECA
TIC 16, LLC; NB-WEST SENECA TIC 17, LLC;
NB-WEST SENECA TIC 18, LLC; NB-WEST
SENECA TIC 19, LLC; NB-WEST SENECA.
TIC 20, LLC; NB-WEST SENECA TIC 21, LLC;
NB-WEST SENECA TIC 22, LLC; NB-WEST
SENECA TIC 23, LLC; NB-WEST SENECA
TIC 24, LLC; NB-WEST SENECA TIC 25, LLC;
NB-WEST SENECA TIC 26, LLC; NB-WEST
SENECA TIC 27, LLC; and NB-WEST SENECA
TIC 28, LLC; EDEN HEIGHTS OF WEST SENECA
OPERATING, LLC; PREMIER SENIOR LIVING, L.L.C.;
ROBERT BORSODY; WAYNE KAPLAN;
PAULA BORSODY, MARY T. BASSETT AS
COMMISSIONER NEW YORK STATE
DEPARTMENT OF HEALTH,
Defendants
State of New York )
County of Onondaga )ss.:
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NYSCEF DOC. NO. 1
Preview
7 INDEX NO. 815037/2021 OUN [20/ y NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 11/20/2023 At Part 33 of the Supreme Court held in the County of Erie, at the Erie County Supreme Y Court Courthouse thereof, on the te" day of Maven «2023, PRESENT: HON. RAYMOND W. WALTER, J.5.0 STATE OF NEW YORK SUPREME COURT OF BRIE siencesinininnenenie cream X INDEX NO.; 815037/2021 SEFCU, Plaintiff, ¥. NELSON BROTHERS WEST 8. AL LSON AM DED JUDGMENT BROTHERS ST SENECA INV TOR LC; OF (CLOSURES AND NB-WEST CA TIC 1, LLC; NB-¥ CA SALE TIC 2, LLC; -WEST SENEt Fe 1B-WEST SENECA TIC 4, LLC; NB- WES Te §, LLC; NB. WEST SENECA TIC 6, UL ~ WE: ATIC 7, LLC; NB-WEST SENECA TIC ah B-WEST SENECA TIC 9, LLC; NB-WEST S TE 10, LLC; NB-WEST SENECA TIC 11, LI NB-WEST SENECA TC NB-WEST SE 223, LUC NB- WE A TIC 14, LE BW TC 15, LL ‘B-WEST SENECA is TE. VEST SENE FIC 17, LLC, N B-WE: LLG NE-WEST SENECA TH O18, STS TIC 20, 1 B-Y Ld WEST S ATIC 2 LL “WW ; NBAW N FIC &, WY SED ATIC 25, U EST SE: 026, 7,1 N EST and 8 ATIC DE HEIGHT SE A OPERATIN PRE OR LIVING, LL R OBE RT BORSODY, ¥ AY KAPLAN; PAULA BORSODY, AS AS COMMISSIONER NEW YORK STATE DEPAR TMB! NT OF HEALTH Defendants, Senet annie nme natin ainaener wantin: aX PRE 3030 Choton Stee ot Weat Seneca, New York 14224 1 of 72 IR 7 INDEX NO. 815037/2021 D OUN [20/ y NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 11/20/2023 Plaintiff having moved this Court for an Amended Judgment of Foreclosure and Sale, after the initial Judgment of Foreclosure and Sale was submitted to this Court and said Judgment of Foreclosure and Sale which was granted on August 24, 2022, and entered in the office of the Clerk of the County of Erie on September 1, 20% 2= 2 (hereinafter “Judgernent #1"). A copy of the signed Judgment of Foreclosure Sale and Notice of Entry are attached as Exhibit “1” to the affirmation of regularity supporting this motion, Thereafter, a public auction was scheduled for October 19, 2022, for the sale of the Premises, however an intervening bankruptcy filing by the defendant Nelson Brothers West Seneca Investor Units, LLC stayed the public auction. In the intervening bankruptcy proceeding involving defendant Nelson Brothers West Seneca Investor Units, LLC, the plaintiff, SEFCU, now known as Broadview FCU as a result of a merger made a successfil motion terminating the automatic stay and thus allowing the Plaintiff to move forward with this Amended Judgment of Foreclosure and Sale, A copy of the Order terminating the Automatic Stay is attached as Exhibit “2” to the affirmation or regularity suppartin, g this motion. NOW, upon the plaintiff's ex parte application at which time no appearances were required and upon all prior proceedings herein, and upon the Summons, Complaint, and Notice of Pendency filed in this action on the 3rd dey of November, 2021; the Affidavit of Amount Due of Gina Sullivan, dated June 7, 2022, and the Report of the Referee, Ralph M Mohr, Hag. dated Tone 16, 2622, by which Report it appears that the sum of Six Million Eighty-Two Thousand Nine Hundred Seventy-Four Dollars and 66/100 ($6,082,974.66) due as of May 31, 2022, and the mortgaged premises should be sold in one parcel, oll in support of Plaintiff's motion for a Judgment of Foreclosure and Sale; and 2 of 72 IR 7 INDEX NO. 815037/2021 D OUN [20/ y NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 11/20/2023 UPON proof that each of the defendants herein has been duly served with the Summons and Complaint in this action, and has voluntarily appeared either personally or by an attorney OR have not served any answer to the Complaint or otherwise appeared, nor had their time to do so extended; and it appearing that more than the legally required number of days has elapsed since defendant MARY T. BASSETY AS COMMISSIONER NEW YORK STATE DEPARTMENT OF HEALTH was so served; and Plaintiff having established to the court’s satisfaction that a judgment against defendants is warranted; and UPON proof that non-appesring defendant MARY T. BASSETT AS COMMISSIONER. NEW YORK STATE DEPARTMENT OF HEALTH are not absent, in accordance with RPAPL §1321(2); and A Referee having been appointed to compute the amount due to Plaintiffupon the bond‘note and mortgage set forth in the Complaint and to examine whether the mortgaged property can be sold in parcels; and UPON reading and filing the Report of Ralph M. Mohr, Usq., dated June 16, 2022, showing the sum of Six Million Eighty-Twe Thousand Nine Hundred Seventy-four Dollars and 66/100 ($6,082,974.66) due as of May 31, 2022, and that the mortgaged property may not be sold in parcels; and UPON proof of due notice of this motion upon all parties entitled to receive same, and upon all the prior proceedings and papers filed herein, NOW, on motion by Daniel M. Austin, Eeq., attorney for the Plaintiff, tt ts hereby ORDERED, ADJUDGED AND REED that the motion for an Amended Judgment of Foreclosure and Sale is granted; and it is farther ORDERED, ADJUDGED AND DECREED that the Referee’s Report be, and the same 3 of 72 IR 7 INDEX NO. 815037/2021 D OUN [20/ y NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 11/20/2023 is, hereby in all respects ratified and confirmed, and it is further ORDERED, ADIUDGED AND DECREED that the sum of Six Million Eighty-Two ‘Thousand Nine Hundred Seventy-Foor Dollars and 66/100 ($6,082,974.66) due as of May 31, 2022, may be reduced by the arnount of rent collected or may be collected by the Temporary Receiver. ORDERED, ADIUDGED AND DECR D that the receivership and the rights and powers of the Temporary Receiver previously granted by this Court shall continue until further order of this Court; and it is further ORDERED, ADIUDGED AND DECREED, that the mortgaged property described in the Complaint and as hereafter described, or sach part thereof as may be sufficient to discharge the mortgage debt, the expenses of the sale, and the costs of this action as provided by the date of this Judgment, in one parcel, at a public auction at RPAPL be sold, within 90 days ? .¢ f the the OX. Low ly Had 23 by and under the direction of Rainh M oly ot, Lancaster, rhe 3 x 1480 231 16}.6S sho is hereby appointed Referee for that purpose; that said Referee give public notice of the time and place of sale in accordance with RPAPL §231 in ~~ ask Peal ate t sk. seine peewee ; and it is further ORDERED, ADJUDGED AND DISCREED that by accepting this appointment, the Referee certifies that he’she is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), inchiding, but not limited to $36.2 (©) (Disqualifications from appointment”) and §36.2 (d) (Limitations on appointments based apor compensation”); and, if the Referee is disqualified from receiving an appointment pareuant to the provisions of that Rule, the Referee shall immediately notify the Appointing Judge; and it is further 4 of 72 IR 7 INDEX NO. 815037/2021 D OUN [20/ y NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 11/20/2023 ORDERED, ADJUDGED AND DECREED that the Referee is prohibited from accepting or retaining any finds for him/herself or paying finds to him/herself without compliance with Part 36 of the Rules of the Chief Adminisirative Judge; and it is further ORDERED, ADJUDGED AND DECREED that the Referee shall conduct the foreclosure sale only if Plaintiff, its successors and/or assignees, or its representative 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 representative; and itis further ORDERED, ADJUDGED AND DECREED that if the Referee does not conduct the sale within 90 days of the date of the Judgment, in accordance with CPLR 2004, the time fixed by RPAPL §1351(1) is extended for the Referee to conduct the sale as soon as reasonably practicable; and it is further ORDERED, ADJUDGED AND DECREED that at the time of sale the Referee may accept a written bid from the Plaintiff or the Plaintiff's attorney, just as though Plaintiff were physically present to submit said bid; and it is further ORDERED, ADJUDGRD AND DE 1D that the Referee shall accept the highest bid offered by « bidder who shall be identified upon the court record, and shall require that the successful bidder immediately execute Terms of Sale tor the purchase of the property, and pay to the Referee, in cash or certified or bank check, ten percent (10%) of the aun bid, anleas the suovessfal bidder is Plaintiffin which case no deposit against the purchase price shall be required; and it is farther ORDERED, ADJUDGED AND DECREED that, in the event the first successful bidder fails to execute the Torms of Sale immediately following the bidding upon the subject property or fails to immediately pay the ten percent (10%} deposit as required, the property shall 5 of 72 IR 7 INDEX NO. 815037/2021 D OUN [20/ y NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 11/20/2023 immediately and on the same day be reoftered at auction; and it is farther ORDERED, ADJUDGED AND DECREED that the Referee shall then deposit the down \ payment and proceeds of sale, ag necessary, it gon, in his/her own name as Referee, in accordance with CPLR §2600; and it is Ather ORDERED, ADJUDGED AND DECRESD that afler 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 futher ORDERED, ADJUDGED AND DECREED thai, in the event a party other than the Plaintiff becomes the purchaser at the sale, the closing of tide shail be held no later than 30 days after the date of such sale unless otherwise stipulated by all parties to the sale; and it is forther ORDERED, ADJUDGED AND DECREED that the Referee, on receiving the proceeds of such sale, shall forthwith pay therettom, in accordance with their priority according to law, all taxes, assessments, sewer rents, Gr water rates, which are, or may become, liens on the property at the time of sale, with such interest or penalties which may have lawfully accrued thereon to the date of payment; and it is further ORDERED, ADIUDGED AND DECREED, that the Referee then deposit the balance of said proceeds of sale in her/his own name as Referee 18 a _, and shall thereafter make the following payments in accordanee with RPAPL $1354, as follows: FIRST: The Referee’s siatulory fees for conducting the sale, in accordance with CPLR 8603¢h), not to exceed $756.00 unless the property sells for $50,000.00 or more, of in the event a sale was cancelled or postponed, Plaintiff shall compensate the Referee in the sunt off 5 oO Oe each adjourmment 6 of 72 IR 7 INDEX NO. 815037/2021 D OUN [20/ y NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 11/20/2023 or cancellation, unless the Referee caused the delay; SECOND: All taxes, assessments, and water rates that are liens upon the property and monies necessary to redeem the property from any sales for unpaid faxes, asseasmenis, or water rates thai have not become absolute, and any other amounts due in accordance with RPAPL §1354(2). Purchaser shali be responsible for interest and penalties due on any real property taxes accruing after the sale. ‘The Referee shall not be responsible for the payment of penalties or fees pursuant to this appointment. The Purchaser shall hold the Referee harmless from any such penalties or fees assessed; THIRD: The expenses of the sale and the advertising expenses as shown on the bills presented and certified by said Referee to be correct, duplicate copies of which shall be annexed to the repart of sale; FOURTH: Referee shall then pay to Plaintiff or its attomey the following: Amount Due per Referee’s Report: Six Million Eighty-Two Thousand Nine Hundred Seventy-Pour Dollars and 66/100 (85,082,974.66} due as of May 31, 2022, together with interest from the date of computation (May 3 1, 2022) to the date of the judgment of foreclosure and sale (Judgment #1) which totals $179,156.10, plus interest from the date of Judgment #1 to the date of the failed aie (Gctober 19, 2022) at thy statutory rate of 9.0% which totals $88,013.13, plus interest from date of the failed sale (Geisber 19, 2022) to November 30, 2023 which amounts fo $663,602.64 together with any interest at the statutory rate to until the date the deed is transferred; & gether with any advances as provided for in the note and mortgage which Plain Ytias made fer taxes, insurance, principal, of 72 IR 7 INDEX NO. 815037/2021 D OUN [20/ y NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 11/20/2023 and interest, and any other charges due to prior mortgages or to maintain the property pending consummation of this foreclosure sale, not previously included in the computation, upon presentation eceipts for said expenditures to the Referee; and all taken together which may be reduced by the arnount of rent collected or may be collecied by the Temporary Receiver. ~~; Costs and Disbursements: 3 & 4d} 4 adjudged to the Plaintiff for costs and disbursements in this action (as taxed or calculated by the Clerk and inserted herein), with interest at the statutory judgment rate from the date of entry of this jadgment in addition to the amount of $6,249.64 which is the amount in the initial Judgment of Foreciasare and Sale, phis interest at the statutory judgment rate; Additional Allowance: $ So _is hereby awarded to Plaintiff in addition to costs, with interest ai the statutory judgment rate from the date of entry of this judgment, pursuant io CPLR Article 83 in addition to the amount of $50.00 which is the amount in the initial Jadgment of Foreclosure and Sale, plus interest at the statutory pAugment rate; Attomey Fees: $f lo SO8.” _is hereby awarded to Plaintiff ag reasonable legal fees herein, with interest at the statutory rate from the date of entry of this judgment which represents the amount of attorney’s fees expended from the filing of the bankrapicy petition for Neison Brothers West Seneca Investor Units, LLC on Gctober 19, 2022 to October 2, 2023 as well as those reasonable attorneys’ fees that will be incurred by Plaintiffup and inchuding the public auction and transfer of the dead, if necessary. The above noted attorney’s 8 of 72 IR 7 INDEX NO. 815037/2021 D OUN [20/ y NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 11/20/2023 fees are in addition fo the $144,503.50 in attorney’s fees that was already awarded in Judgment #1. Additionally, this Amended Jedgement of Foreclosure and Sale shall include the Receiver’s receivership fees, commissions, and disbursements due to the Temporary Receiver of the rents and profits herein in the sum of $77,370.22 which represents a 3% commission of the monthly rent for the Real 1 Property of $128,950.40 from September 1,2 2 021 through September 30, 2022 as well as costs and disbursements of the Receiver incurred during the pendency of this action in the amount of $719.00 and judgment interest of $7,965.09 which is valculated at the rate of 8% from October 19, 2022 until November 30, 2023 fora total amount due the Reegiver of $86,054.31; FIFTH: Surplus munies usiging from the sale shail be paid inte court by the officer conducting the sale within five days after receipt in accordance with RPAPL §1354(3} and in accordance with local County rules regarding Surplus Monies; and it is further ORDERED, ADJUDGED AND I "RIEED that if the Plaintiff is the purchaser of the property, or in the event that the righis of the purchasers at such sale and the terms of sale wider this judgment shall he assigned to and be acquired by the Plaintiff, and a valid assignment thereatis filed with said Referee, said Referee shall not require Plaintiff te pay in cash the entire amount bid at said sale, but shall execute and deliver to the Plaintiffor its assignee, a deed or deeds of the property sold upon the payment to said Referee of the amounts speeitied in items marked “First”, “Second”, and “Third” above; that the Referee shall allow the Plaintiffto pay the amounts specified in “Second” and * nied” above when it is recording the deed; that the balance of the bid, afler deducting the smounts paid by the Plaintiff, shall be applied to the amount due 9 of 72 IR 7 INDEX NO. 815037/2021 D OUN [20/ y NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 11/20/2023 Plaintiff and the Receiver as specified in paragraph “Fourth” above; that Plaintiff shall pay any surplus after applying the balance of the bid to the Referee, who shall deposit it in accordance with paragraph “FiRh” above; and it is further ORDERED, ADJUDGED AND DECREED that all expenses of recording the Referee’s deed, including real property tranafer tax, which is not a Hen upon the property at the ime of sale, shall be paid by the purchaser, not by the Referee from sale proceeds, and that any transfer tax shall be paid in accordance with Tax Law $1404 by the purchaser, and it is further ORDERED, ADIUDGED AND DECREED that if the sale proceeds distribated in accordance with paragraphs “First,” “Second, “Third”, and “Fourth” above are insufficient to pay Plaintiff the Amount Due per the Referoe’s Report as set forth in paragraph “Fourth” above, Plaintiff may seek to recover a deficiency judgment against NELSON BROTHERS WEST SENECA, LLC; NELSON BROTHERS WEST SENECA INVESTOR UNITS, LLC; NB- WEST 3: ENECA TIC 1, LLC; NB-WEST SERNSCA TIC 2, LLC; NB-WEST SENECA TIC 3, LLC; NB-WEST SE c ATIC 4, LLC: NB-WEST SENECA TIC 5, LLC; NB-WEST . SENECA TIC 6, LLO; NB-WEST SENEC ATIO?, “3 NB-WEST SENECA TIC 8 LLC; NB-WES'T SENECA TIC 9, LLC; NBAWEST SENECA TIC 10, LLC, NB-WEST SENECA TIC 11, LLC; NB-WEST SENECA TIC Ya, £ WB-WEST SENECA TIC 13, LUC; NB- WEST SENECA TiC 14, LLC NB-¥ TY SENECA TIC 15, ULC; NB-WEST SENECA TIC 16, LLC; NB-WEST SENECA TIC 17, LLC; NB-WEST SENECA TIC 18, LLC, NB-WEST SE A TIC 19, LLC; NB-WEST SENECA TIC 20, LLC; NB-WEST SENECA TIC 21, LLC; NB-WEST SENECA TIC 22, LLC: NS-WEST SENECA “NC 23, LLC, NB-WEST SENECA TIC 24, LLC; NB-WEST SENECA TIC 28, LLC; NB-WEST SENECA TIC 26, LLC; NB- WEST SENECA TIC! 27, LLC; NS-WEST SENECA TIC 28, LLC, EDEN HEIGHTS OF 10 of 72 IR 7 INDEX NO. 815037/2021 D OUN [20/ y NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 11/20/2023 WEST SENECA OPERATING, LLC; PREMIER SENIOR LIVING, L.L.C.; ROBERT BORSODY; WAYNE KAPLAN; AND PAULA BORSODY in accordance with RPAPL §1371 if permitted by law; and it is further ORDERED, ADIUDGED AND DECREED that the mortgaged property is to be 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 acourste 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 prop: prior Hens of record, if any, except those hens 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 gale; and any rights pursuant to CPLR §§317, 2003, and 5015, or any appeal of the underlying action or additional litigation brought by any defendant or its successor or agsignes contesting the validity of this foreclosure; and it is further ORDERED, ADJURGED AND DE RK 1D that the parchaser be Jet ito 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 farther ORDERED, ADMUDGED AND DECRERD that the Defendants in this action and all persons claiming through them and any person obtaining an interest in the property after the filing of the Notice of Pendency are barred and foreclosed of all ight, claim, Hen, title, and interest in the property after the sale of the mor te:a aged property; and it is further ORDERED, ADJUDGED ) DECREED that within 30 days after completing the sale and executing the proper conveyance ts the parchaser, unless the time is extended by the court, 11 of 72 IR 7 INDEX NO. 815037/2021 OUN [20/ y NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 11/20/2023 the officer making the sale shall fle with the clerk a report under oath of the disposition of the proceeds of the sale in accordance with RPAPL $1355()) and follow all local County rules regarding handling of Surplus Monies: ar: S$ Rurther ORDERED, ADIUDGED AND DE D that if the purchaser or purchasers at said sale defauli(s) upon the bid and/or the terms of sale the Referee may place the property for resale without prior application to the Court unless Piaintifl’s attorneys shall elect to make such application; and it is farther ORDERED, ADIUDGED AND DECREED 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 or persons entitled to seevice, inchiding the Referee appointed herein; and it is forth: ORDERED, ADJUDGED AND DECREE that nothing herein shall be deemed to relieve Plaintiffof any obligation imposed by RPAPL $1307 and RPAPL $1308 to secure and maintain the property until such time as ownership of the property bas been transferred and the deed duly recorded; and it is farther ORDERED, ADJUDGED AND DECREED that, when the Referee files a report of sale he or she shall concurrently file a Foreclosure Actions Surplus Monies form; and it is further ORDERED, ADFUDGED AND DEC) {9 that lo ensure compliance herewith, Plaintiff shall file a written report with the court wittin six months from the date of entry of this judgment stating whether the sale has occurred and the outcome thereof Said property is commonly known as 3030 Clinton Street, West Seneca, New York 14224. The legal description of the mortgaged property referred to herein is annexed hereto as Schedhile A ENTER: Soy oo “se oN ian RAYMOND W. WALTER, J.S.C. DATED ii {te 2023 Judgment Signed and Filed 11/ P fleas 12 of Michael afKearns Coane County Clerk — D OUN [20/ INDEX NO. 815037/2021 NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 1/20/2023 SCHEDULE “A” ALL THAT TRACT OR PARCEL OF LAND situate in the Town of West Seneca, County of Erie and State of New York, being part of Lot No. 29 of the Ebenezer Lands as same is laid out on map filed in the Erie County Clerk's Office under Cover No. 58 and more particularly described as follows: BEGINNING at a point in the center line of Clinton Street, said center line being the southwesterly line of said Lot No. 29 distant 115.00 feet southeasterly from the southwesterly corner of said lot; thence southeasterly along the southwesterly line of said Lot No. 29, a distance of 413.02 feet to the southeasterly comer of said lot; thence northeasterly at an exterior angle of 89° 40' 14" and along the southeasterly line of said lot, a distance of 1315.34 feet to the northeasterly corner of said lot; thence southwesterly at an interior angle of 68° 45’ 30" and along the northerly line of said lot, a distance of 565.62 feet to the northwesterly comer of said lot; thence southwesterly at an interior angle of 111 ° 17' 02" and along the northwesterly line of said lot, a distance of 870.45 feet; thence southeasterly at an interior angle of 90° 00' 00" a distance of 115.00 feet; thence southwesterly at an interior angle of 270° 00' 00" a distance of 242.25 feet to the point or place of beginning. 13 of 72 OUN INDEX NO. 815037/2021 NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 1/20/2023 State of New York Supreme Court County of Erie SEFCU. Plaintiff, COSTS OF PLAINTIFF -vs- Index Number 815037/2021 NELSON BROTHERS WEST SENECA, LLC; OT CON RROTUERS WHET CONT, meno NELSON BROTHERS WEST SENECA INVESTOR UNITS, LLC; NB-WEST SENECA TIC 1, LLC; NB-WEST SENECA TIC 2, LLC; NB-WEST SENECA TIC 3, LLC; NB-WEST SENECA TIC 4, LLC: NB-WEST SENECA TIC 5, LLC; NB-WEST SENECA TIC 6, LLC; NB-WEST SENECA TIC 7, LLC: NB-WEST SENECA TIC 8, LLC; NB- WEST SENECA TIC 9, LLC; NB-WEST SENECA TIC 10, LLC. NB-WEST SENECA TIC 11, LLC; NB-WEST SENECA TIC 12, LLC; NB-WEST SENECA TIC 13, LLC: NB-WEST SENECA TIC 14, LLC; NB-WEST SENECA TIC 15, LLC; NB-WEST SENECA TIC 16, LLC; NB-WEST SENECA TIC 17, LLC. NB-WEST SENECA TIC 18, LLC; NB-WEST SENECA TIC 19, LLC; NB-WEST SENECA TIC 20, LLC; NB-WEST SENECA TIC 21, LLC NB-WEST SENECA TIC 22, LLC; NB-WEST SENECA TIC 23, LLC; NB-WEST SENECA TIC 24, LLC; NB-WEST SENECA TIC 25, LLC. NB-WEST SENECA TIC 26, LLC; NB-WEST SENECA TIC 27, LLC; and NB-WEST SENECA TIC 28, LLC; EDEN HEIGHTS OF WEST SENECA OPERATING, LLC; PREMIER SENIOR LIVING, L.L.C ROBERT BORSODY; WAYNE KAPLAN: PAULA BORSODY, MARY T. BASSETT AS COMMISSIONER NEW YORK STATE DEPARTMENT OF HEALTH. Defendants. Costs before Note of Issue is filed, CPLR §8201(1) $200.00 14 of 72 a INDEX NO<* 815637/2021 D OUN [207 NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 1/20/2023 Costs pursuant to CPLR §8302(b): Percentage on $200.00 at ten percent 20.00 Percentage on $800.00 at five percent 40.00 Percentage on $2,000.00 at two percent 40.00 Percentage on $5,000.00 at one percent 50.00 Additional Allowance 50.00 FEES AND DISBURSEMENTS Fee for index number, CPLR §8018(a) 411.96 Referee’s fee, CPLR §8301(a)1, 8003(a) 350.00 Clerk’s fee, filing notice of pendency, CPLR§8018(e), §8021(a)12 61.79 Paid for searches and copies, CPLR §8301(a)(10) 1,073.18 Serving copy of summons and complaint, CPLR §8011(c)1, §8301(d) 3,123.75 Courier/Federal Express and Accommodation Expense Request for Judicial Intervention 95.00 Court Costs 190.54 Courier/Federal Express and Accommodation Expense 563.42 TOTAL $6,269.64 15 of 72 D OUN INDEX NO. 815037/2021 NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 1/20/2023 State of New York Supreme Court County of Erie SECFU Plaintiff, ATTORNEY’S AFFIRMATION -vs- Index Number 815037/2021 NELSON BROTHERS WEST SENECA, LLC; NELSON BROTHERS WEST SENECA INVESTOR UNITS, LLC; NB-WEST SENECA TIC 1, LLC; NB-WEST SENECA TIC 2, LLC; NB-WEST SENECA TIC 3, LLC; NB-WEST SENECA TIC 4, LLC; NB-WEST SENECA TIC 5, LLC; NB-WEST SENECA TIC 6, LLC; NB-WEST SENECA TIC 7, LLC; NB-WEST SENECA TIC 8, LLC; NB-WEST SENECA TIC 9, LLC; NB-WEST SENECA TIC 10, LLC; NB-WEST SENECA TIC 11, LLC; NB-WEST SENECA TIC 12, LLC; NB-WEST SENECA TIC 13, LLC; NB-WEST SENECA TIC 14, LLC; NB-WEST SENECA TIC 15, LLC; NB-WEST SENECA TIC 16, LLC; NB-WEST SENECA TIC 17, LLC; NB-WEST SENECA TIC 18, LLC; NB-WEST SENECA TIC 19, LLC; NB-WEST SENECA TIC 20, LLC; NB-WEST SENECA TIC 21, LLC; NB-WEST SENECA TIC 22, LLC; NB-WEST SENECA TIC 23, LLC; NB-WEST SENECA TIC 24, LLC; NB-WEST SENECA TIC 25, LLC; NB-WEST SENECA TIC 26, LLC; NB-WEST SENECA TIC 27, LLC; and NB-WEST SENECA TIC 28, LLC; EDEN HEIGHTS OF WEST SENECA OPERATING, LLC; PREMIER SENIOR LIVING, L.L.C.; ROBERT BORSODY; WAYNE KAPLAN; PAULA BORSODY, MARY T. BASSETT AS COMMISSIONER NEW YORK STATE DEPARTMENT OF HEALTH, Defendants. State of New York ) County of Onondaga )ss.: The undersigned, an attorney admitted to practice in the courts of this state, affirms 16 of 72 Bhai INDEX “NOs -815037/2021 D OUN [207 NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 1/20/2023 that: 1. He is one of the attorneys of record for the plaintiff in the above-entitled action; 2. The foregoing disbursements have been or will necessarily be made or incurred in this action are reasonable in amount. 3. Copies of documents or papers as charged herein were actually and necessarily obtained for use. The undersigned affirms that the foregoing statements are true, under the penalties of perjury. Dated: Octobey3, 2023 aL 1% of 72 D OUN INDEX NO.-815037/2021 NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 1/20/2023 State of New York Supreme Court County of Erie SEFCU, Plaintiff, AFFIRMATION IN SUPPORT OF -VS.- APPLICATION FOR ATTORNEYS’ FEES NELSON BROTHERS WEST SENECA, LLC; NELSON BROTHERS WEST SENECA INVESTOR Index Number 815037/2021 UNITS, LLC; NB-WEST SENECA TIC 1, LLC; NB-WEST SENECA TIC 2, LLC; NB-WEST SENECA TIC 3, LLC; NB-WEST SENECA TIC 4, LLC; NB-WEST SENECA TIC 5, LLC; NB-WEST SENECA TIC 6, LLC; NB-WEST SENECA TIC 7, LLC; NB-WEST SENECA TIC 8, LLC; NB-WEST SENECA TIC 9, LLC; NB-WEST SENECA TIC 10, LLC; NB-WEST SENECA TIC 11, LLC; NB-WEST SENECA TIC 12, LLC; NB-WEST SENECA TIC 13, LLC; NB-WEST SENECA TIC 14, LLC; NB-WEST SENECA TIC 15, LLC; NB-WEST SENECA TIC 16, LLC; NB-WEST SENECA TIC 17, LLC; NB-WEST SENECA TIC 18, LLC; NB-WEST SENECA TIC 19, LLC; NB-WEST SENECA. TIC 20, LLC; NB-WEST SENECA TIC 21, LLC; NB-WEST SENECA TIC 22, LLC; NB-WEST SENECA TIC 23, LLC; NB-WEST SENECA TIC 24, LLC; NB-WEST SENECA TIC 25, LLC; NB-WEST SENECA TIC 26, LLC; NB-WEST SENECA TIC 27, LLC; and NB-WEST SENECA TIC 28, LLC; EDEN HEIGHTS OF WEST SENECA OPERATING, LLC; PREMIER SENIOR LIVING, L.L.C.; ROBERT BORSODY; WAYNE KAPLAN; PAULA BORSODY, MARY T. BASSETT AS COMMISSIONER NEW YORK STATE DEPARTMENT OF HEALTH, Defendants State of New York ) County of Onondaga )ss.: 18 of 72 D OUN [20/ INDEX NO. 815037/2021 NYSCEF DOC. NO. 1