Preview
FILED: NEW YORK COUNTY CLERK 05/09/2024 04:34 PM INDEX NO. 850183/2023
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 05/09/2024
Exhibit K
(Immediately Follows This Page)
FILED: NEW YORK COUNTY CLERK 05/09/2024
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NYSCEF DOC. NO. 113
78 RECEIVED NYSCEF: 05/09/2024
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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453 EAST 83 FUNDING L.P.,
Index No. 850183-2023
Plaintiff,
-against- NOTICE OF ENTRY OF
DECISION AND ORDER ON
453 EAST 83RD STREET LLC, CHESKIE WEISZ, MOTION
NEW YORK CITY DEPARTMENT OF FINANCE,
NEW YORK STATE DEPARTMENT OF
TAXATION & FINANCE, 1363 FIRST OWNER
LLC, and JG FUNDING CORP.,
Defendants.
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PLEASE TAKE NOTICE, that the annexed is a true and correct copy of the Decision
and Order on Motion of the Honorable Francis A. Kahn, III, J.S.C., dated February 9, 2024, and
entered in the Office of the New York County Clerk on February 25, 2024.
Dated: New York, New York
February 20, 2024
KRISS & FEUERSTEIN, LLP
Attorneys for Plaintiff
By: Michael A. Gould_______
Michael A. Gould, Esq.
360 Lexington Avenue, Suite 1200
New York, New York 10017
(212) 661-2900
TO: All counsel of record for all appearing parties via NYSCEF
Allen Schwartz, Esq. – (served via NYSCEF) Elaine Shay, Esq., - As Referee
Schwartz Law PLLC 757 3rd Avenue, Floor 20
Attorneys for Defendant 453 East 83rd Street LLC New York, NY 10017
150 Broadway, Suite 701
New York, NY 10038
Cheskie Weisz New York City Department of Finance
713 Bedford Avenue, #6 100 Church Street, 4th Floor
Brooklyn, NY 11206 New York, NY 10007
4893-7645-9686, v. 1
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1363 First Owner LLC New York State Department of
320 Roebling Street, Suite 304 Taxation & Finance
Brooklyn, NY 11211 Bldg 9, WA Harriman Campus
Albany, NY 12227
JG Funding Corp. New York County Clerk
531 Wild Avenue, Second Floor 60 Centre Street, Room 141B
Staten Island, NY 10314 New York, NY 10007
General Clerk’s Office
60 Centre Street, Room 119
New York, NY 10007
4893-7645-9686, v. 1
2 of 7
(FTLED._ NEW YORK
FILED: NEW YORK COUNTY
COUNTY CLERK
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. FRANCIS A. KAHN, Ill PART 32
Justice
x INDEX NO. 850183/2023
453 EAST 83RD FUNDING L.P., SEM EATE
Plaintiff.
ain MOTION SEQ. NO. 002
-V-
453 EAST 83RD STREET LLC,CHESKIE WEISZ, NEW
YORK CITY DEPARTMENT OF FINANCE, NEW YORK
STATE DEPARTMENT OF TAXATION & FINANCE, 1363
FIRST OWNER LLC,JG FUNDING CORP., JOHN DOE #1
THROUGH JOHN DOE #12, THE LAST TWELVE NAMES
BEING FICTITIOUS AND UNKNOWN TO PLAINTIFF, THE DECISION + ORDER ON
PERSONS OR PARTIES INTENDED BEING THE MOTION
TENANTS, OCCUPANTS, PERSONS OR
CORPORATIONS, IF ANY, HAVING OR CLAIMING AN
INTEREST UPON THE PREMISES DESCRIBED IN THE
COMPLAINT,
Defendant.
X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 42, 43, 44, 45, 46,
47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74,
75, 76
were read on this motion to/for JUDGMENT - SUMMARY
Upon the foregoing documents, the motion is determined as follows:
This is action to foreclose on a mortgage encumbering a parcel of commercial real property
located at 453 East 83rd Street, New York, New York. The mortgage was given by Defendant 453 East
83rd Street LLC (“Borrower”) to Plaintiff to secure a loan with an original principal amount of
$4,250,000.00 which is memorialized by a secured promissory note. The note and mortgage, both dated
September 14, 2014, were executed by non-party Michael Wittow as an authorized signatory of
Borrower. Concomitantly with these documents, Defendant Cheske Weisz (“Weisz”) executed a
guaranty of the indebtedness. On June 23, 2021, the parties entered a forbearance agreement wherein
Defendants admitted their default and acknowledged the indebtedness.
Plaintiff commenced this action and pled that Defendants defaulted in repayment of the secured
sum. Defendants’ motion to compel arbitration or, in the alternative to dismiss the action, based upon
the terms of “Heter Iska” executed by the parties was denied by order of this Court dated August 2, 2023
(NYSCEF Doc No 37). Thereafter, Defendant Borrower answered and pled thirteen affirmative
defenses. Now, Plaintiff moves for summary judgment against the appearing Defendants, to strike its
answer and affirmative defenses, for a default judgment against the non-appearing Defendants, for an
order of reference and to amend the caption. Defendant Borrower opposes the motion.
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In moving for summary judgment, Plaintiff was required to establish prima facie entitlement to
judgment as a matter of law though proof of the mortgage, the note, and evidence of mortgagors’ default
in repayment (see U.S. Bank, N.A., v James, 180 AD3d 594 [1% Dept 2020]; Bank of NY v Knowles, 151
AD3d 596 [18' Dept 2017]; Fortress Credit Corp. v Hudson Yards, LLC, 78 AD3d 577 [1 Dept 2010]).
Proof supporting a prima facie case on a motion for summary judgment must be in admissible form (see
CPLR §3212[b]; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d 780 [1* Dept 2019]).
Plaintiff's motion was supported with an affirmation from Yitzhak Isaac Fried (“Fried”), a General
Partner of Plaintiff, as well as supporting documentation. The affidavit established the mortgage, note,
and evidence of mortgagor’s default and was sufficiently supported by appropriate admissible evidence
(see eg Bank of NY v Knowles, supra; Fortress Credit Corp. v Hudson Yards, LLC, supra). The
indebtedness and default were also established based on the terms of the forbearance agreement (see
Redrock Kings, LLC v Kings Hotel, Inc., 109 AD3d 602 [2d Dept 2013]; EMC Mortg. Corp. v Stewart, 2
AD3d 772 [2d Dept 2003]).
To the extent Plaintiff seeks summary judgment on its third cause of action it is unestablished.
The notice of motion contains no specific reference to that claim and no legal argument demonstrating
how Plaintiff is entitled to accelerated judgment on this claim is contained in the supporting papers (see
Penava Mech Corp v Afgo Mech Servs, Inc, 71 AD3d 493, 496 [1*' Dept 2010]). Indeed, Plaintiff's
proposed order does not contain an ordered paragraph regarding that cause of action.
In opposition, Defendants failed to raise an issue of fact concerning the “Heter Iska”. Contrary
to Plaintiffs assertion, the doctrine of law of the case is inapplicable under the circumstances (see 938
St. Nicholas Ave. Lender LLC v 936-938 Cliffcrest Hous. Dev. Fund Corp., 218 AD3d 417 [1* Dept
2023]). Nevertheless, Defendant Borrower’s arguments concerning the parties’ religious agreement are
unavailing based upon the reasoning in the Court’s August 2, 2023, decision. Borrower presented no
new or different facts from those offered in support of its motion to dismiss. Complaints regarding the
amount due do not preclude the issuance of summary judgment (see Orchard Hotel, LLC v DAB Group,
LLC, 106 AD3d 628, 630 [1* Dept 2013]).
Borrower’s reliance on RPAPL §1301[3] is entirely misplaced. Defendant Weisz, as “[a]
guarantor of the mortgage debt, while not a necessary party, is a permissible party in a mortgage
foreclosure action” (2 Bergman, New York Mortgage Foreclosures §12:13[2][2023]; see also Trustco
Bank, N.A. v Cannon Bldg. of Troy Assocs., 246 AD2d 797 [3d Dept 1998]; Bank of E. Asia v Smith, 201
AD2d 522, 523 [2d Dept 1994]; Morrison v Slater, 128 AD 467, 468 [1*' Dept 1909]).
As to the branch of the motion to dismiss Defendants’ affirmative defenses, CPLR §3211[b]
provides that “[a] party may move for judgment dismissing one or more defenses, on the ground that a
defense is not stated or has no merit”. For example, affirmative defenses that are without factual
foundation, conclusory or duplicative cannot stand (see Countrywide Home Loans Servicing, L.P. v
Vorobyov, 188 AD3d 803, 805 [2d Dept 2020]; Emigrant Bank v Myers, 147 AD3d 1027, 1028 [2d Dept
2017]). When evaluating such a motion, a “defendant is entitled to the benefit of every reasonable
intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability
of a defense, it should not be dismissed” (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2d
Dept 2008}).
As pled, all the affirmative defenses are entirely conclusory and unsupported by any facts in the
answer. As such, these affirmative defenses are nothing more than unsubstantiated legal conclusions
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which are insufficiently pled as a matter of law (see Board of Mgrs. of Ruppert Yorkville Towers
Condominium v Hayden, 169 AD3d 569 [1° Dept 2019]; see also Bosco Credit V Trust Series 2012-1 v.
Johnson, 177 AD3d 561 [1 Dept 2020]; 170 W. Vil. Assoc. v. G & E Realty, Inc., 56 AD3d 372 [1st
Dept 2008]; see also Becher v Feller, 64 AD3d 672 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V & M
Opt., Inc., 51 AD3d 619 [2d Dept 2008]). Defendants’ opposition to dismissal of the affirmative
defenses was entirely conclusory and, by failing to raise specific legal arguments in rebuttal, those
affirmative defenses were abandoned (see U.S. Bank N.A. v Gonzalez, 172 AD3d 1273, 1275 [2d Dept
2019]; Flagstar Bank v Bellafiore, 94 AD3d 1044 [2d Dept 2012]; Wells Fargo Bank Minnesota, N.A v
Perez, 41 AD3d 590 [2d Dept 2007]).
The branch of Plaintiff's motion for a default judgment against the non-appearing parties is
granted without opposition (see CPLR §3215; SRMOF II 2012-1 Trust v Tella, 139 AD3d 599, 600 [1*
Dept 2016]).
The branch of Plaintiff's motion to amend the caption is granted (see generally CPLR §3025; JP
Morgan Chase Bank, N.A. v Laszio, 169 AD3d 885, 887 [2d Dept 2019).
Accordingly, it is
ORDERED that the branch of Plaintiff's motion for summary judgment against the appearing
Defendants, for a default judgment against the non-appearing parties as well as the other relief is
granted; and it is further
ORDERED that Elaine Shay, Esq., 800 3™ Avenue, Ste. 2800, New York, New York 10022
(212) 520-2690 is hereby appointed Referee in accordance with RPAPL § 1321 to compute the amount
due to Plaintiff and to examine whether the property identified in the notice of pendency can be sold in
parcels; and it is further
ORDERED that in the discretion of the Referee, a hearing may be held, and testimony taken; and
it is further
ORDERED that by accepting this appointment the Referee certifies that he is in compliance with
Part 36 of the Rules of the Chief Judge (22 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
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
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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 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 that failure to submit objections to the referee may be deemed a waiver of objections
before the Court on an application for a judgment of foreclosure and sale; and it is further
ORDERED that Plaintiff must bring a motion for a judgment of foreclosure and sale
within 45 days 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 defendants John Doe #1 through John Doe #12 are hereby dismissed from this
action; and it is further
ORDERED that the caption shall be amended to read as follows:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
453 EAST 83 FUNDING L.P.,
Plaintiff,
-against-
453 EAST 83RD STREET LLC, CHESKIE WEISZ,
NEW YORK CITY DEPARTMENT OF FINANCE,
NEW YORK STATE DEPARTMENT OF TAXATION
& FINANCE, 1363 FIRST OWNER LLC, and
JG FUNDING CORP.,
Defendants.
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
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
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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.
All parties are to appear for a virtual conference via Microsoft Teams on June 5, 2024, at 11:00
a.m. Ifa 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. Ifa
motion has not been made, then a conference is required to explore the reasons for the delay.
2/9/2024 a= GN 4
DATE FRANCIS A. KAHN, Ill, A.J.S.C,
CHECK ONE: CASE DISPOSED non HON ERANCIS A. ae |
GRANTED [ DENIED GRANTED IN PART [ ] OTHER J.S.E.
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT [| REFERENCE
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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453 EAST 83 FUNDING L.P., Index No. 850183-2023
Plaintiff, AFFIDAVIT OF SERVICE
-against-
453 EAST 83RD STREET LLC, CHESKIE WEISZ,
NEW YORK CITY DEPARTMENT OF FINANCE,
NEW YORK STATE DEPARTMENT OF
TAXATION & FINANCE, 1363 FIRST OWNER
LLC, and JG FUNDING CORP.,
Defendants.
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STATE OF NEW YORK }
} ss.:
COUNTY OF NEW YORK }
I, Claumery Cabrera, am over 18 years of age, I am not a party to the action, and I reside
in Queens County in the State of New York. On February 20, 2024, I caused to be served a true
and correct copy of the annexed Decision and Order on Motion with Notice of Entry, (i) upon
all counsel of record for all appearing parties by filing same of the New York State Courts
Electronic Filing System (“NYSCEF”); and (ii) by Regular, First Class Mail, by depositing same
enclosed in a postpaid, properly addressed envelope, an official depository under the exclusive
care and custody of United States Post Office within the State of New York to the addressee(s)
as indicated below:
Allen Schwartz, Esq. – (served via NYSCEF) Elaine Shay, Esq., - As Referee
Schwartz Law PLLC 757 3rd Avenue, Floor 20
Attorneys for Defendant 453 East 83rd Street LLC New York, NY 10017
150 Broadway, Suite 701
New York, NY 10038
Cheskie Weisz New York City Department of Finance
713 Bedford Avenue, #6 100 Church Street, 4th Floor
Brooklyn, NY 11206 New York, NY 10007
4880-5105-9622, v. 1
1 of 2
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1363 First Owner LLC New York State Department of
320 Roebling Street, Suite 304 Taxation & Finance
Brooklyn, NY 11211 Bldg 9, WA Harriman Campus
Albany, NY 12227
JG Funding Corp. New York County Clerk
531 Wild Avenue, Second Floor 60 Centre Street, Room 141B
Staten Island, NY 10314 New York, NY 10007
General Clerk’s Office
60 Centre Street, Room 119
New York, NY 10007
Sworn to before me on this
20th day of February, 2024
Cindy Lopez
_______________________
Notary Public Notary Public, State of New York
Registration No. 01LO6103764
Qualified in Rockland County
My Commission Expires Jan. 12, 2028
4880-5105-9622, v. 1
2 of 2
Preview
FILED: NEW YORK COUNTY CLERK 05/09/2024 04:34 PM INDEX NO. 850183/2023 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 05/09/2024 Exhibit K (Immediately Follows This Page) FILED: NEW YORK COUNTY CLERK 05/09/2024 02/20/2024 04:34 04:27 PM INDEX NO. 850183/2023 NYSCEF DOC. NO. 113 78 RECEIVED NYSCEF: 05/09/2024 02/20/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------x 453 EAST 83 FUNDING L.P., Index No. 850183-2023 Plaintiff, -against- NOTICE OF ENTRY OF DECISION AND ORDER ON 453 EAST 83RD STREET LLC, CHESKIE WEISZ, MOTION NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DEPARTMENT OF TAXATION & FINANCE, 1363 FIRST OWNER LLC, and JG FUNDING CORP., Defendants. -----------------------------------------------------------------x PLEASE TAKE NOTICE, that the annexed is a true and correct copy of the Decision and Order on Motion of the Honorable Francis A. Kahn, III, J.S.C., dated February 9, 2024, and entered in the Office of the New York County Clerk on February 25, 2024. Dated: New York, New York February 20, 2024 KRISS & FEUERSTEIN, LLP Attorneys for Plaintiff By: Michael A. Gould_______ Michael A. Gould, Esq. 360 Lexington Avenue, Suite 1200 New York, New York 10017 (212) 661-2900 TO: All counsel of record for all appearing parties via NYSCEF Allen Schwartz, Esq. – (served via NYSCEF) Elaine Shay, Esq., - As Referee Schwartz Law PLLC 757 3rd Avenue, Floor 20 Attorneys for Defendant 453 East 83rd Street LLC New York, NY 10017 150 Broadway, Suite 701 New York, NY 10038 Cheskie Weisz New York City Department of Finance 713 Bedford Avenue, #6 100 Church Street, 4th Floor Brooklyn, NY 11206 New York, NY 10007 4893-7645-9686, v. 1 1 of 7 FILED: NEW YORK COUNTY CLERK 05/09/2024 02/20/2024 04:34 04:27 PM INDEX NO. 850183/2023 NYSCEF DOC. NO. 113 78 RECEIVED NYSCEF: 05/09/2024 02/20/2024 1363 First Owner LLC New York State Department of 320 Roebling Street, Suite 304 Taxation & Finance Brooklyn, NY 11211 Bldg 9, WA Harriman Campus Albany, NY 12227 JG Funding Corp. New York County Clerk 531 Wild Avenue, Second Floor 60 Centre Street, Room 141B Staten Island, NY 10314 New York, NY 10007 General Clerk’s Office 60 Centre Street, Room 119 New York, NY 10007 4893-7645-9686, v. 1 2 of 7 (FTLED._ NEW YORK FILED: NEW YORK COUNTY COUNTY CLERK CLERK 02/15/2024 02/15/2024 04:45 02/20/2024 05/09/2024 PM 04:45 PM 04:27 04:34 INDEX NO 850184/ 2023 INDEX NO. 850183/2023 NYSCEF DOC. NYSCEF DOC. NO. NO 113 77 77 78 RECEI VED NYSCEF: RECEIVED NYSCEF: 05/09/2024 02/ 14/ 2024 02/14/2024 02/20/2024 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. FRANCIS A. KAHN, Ill PART 32 Justice x INDEX NO. 850183/2023 453 EAST 83RD FUNDING L.P., SEM EATE Plaintiff. ain MOTION SEQ. NO. 002 -V- 453 EAST 83RD STREET LLC,CHESKIE WEISZ, NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DEPARTMENT OF TAXATION & FINANCE, 1363 FIRST OWNER LLC,JG FUNDING CORP., JOHN DOE #1 THROUGH JOHN DOE #12, THE LAST TWELVE NAMES BEING FICTITIOUS AND UNKNOWN TO PLAINTIFF, THE DECISION + ORDER ON PERSONS OR PARTIES INTENDED BEING THE MOTION TENANTS, OCCUPANTS, PERSONS OR CORPORATIONS, IF ANY, HAVING OR CLAIMING AN INTEREST UPON THE PREMISES DESCRIBED IN THE COMPLAINT, Defendant. X The following e-filed documents, listed by NYSCEF document number (Motion 002) 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76 were read on this motion to/for JUDGMENT - SUMMARY Upon the foregoing documents, the motion is determined as follows: This is action to foreclose on a mortgage encumbering a parcel of commercial real property located at 453 East 83rd Street, New York, New York. The mortgage was given by Defendant 453 East 83rd Street LLC (“Borrower”) to Plaintiff to secure a loan with an original principal amount of $4,250,000.00 which is memorialized by a secured promissory note. The note and mortgage, both dated September 14, 2014, were executed by non-party Michael Wittow as an authorized signatory of Borrower. Concomitantly with these documents, Defendant Cheske Weisz (“Weisz”) executed a guaranty of the indebtedness. On June 23, 2021, the parties entered a forbearance agreement wherein Defendants admitted their default and acknowledged the indebtedness. Plaintiff commenced this action and pled that Defendants defaulted in repayment of the secured sum. Defendants’ motion to compel arbitration or, in the alternative to dismiss the action, based upon the terms of “Heter Iska” executed by the parties was denied by order of this Court dated August 2, 2023 (NYSCEF Doc No 37). Thereafter, Defendant Borrower answered and pled thirteen affirmative defenses. Now, Plaintiff moves for summary judgment against the appearing Defendants, to strike its answer and affirmative defenses, for a default judgment against the non-appearing Defendants, for an order of reference and to amend the caption. Defendant Borrower opposes the motion. 850183/2023 453 EAST 83RD FUNDING L.P. vs. 453 EAST 83RD STREET LLC ET AL Page 1 of 5 Motion No. 002 1 of 1 3 of 5 5 7 (FILED: NEW YORK FILED: NEW YORK COUNTY COUNTY CLERK CLERK 02/15/2024 02/15/2024 04:45 02/20/2024 05/09/2024 PM 04:45 PM 04:27 04:34 INDEX No 85018##/ 2023 INDEX NO. 850183/2023 NYSCEF DOC. NYSCEF DOC. NO. NO 113 77 77 78 RECEI VED NYSCEF: RECEIVED NYSCEF: 05/09/2024 02/ 14/ 2024 02/14/2024 02/20/2024 In moving for summary judgment, Plaintiff was required to establish prima facie entitlement to judgment as a matter of law though proof of the mortgage, the note, and evidence of mortgagors’ default in repayment (see U.S. Bank, N.A., v James, 180 AD3d 594 [1% Dept 2020]; Bank of NY v Knowles, 151 AD3d 596 [18' Dept 2017]; Fortress Credit Corp. v Hudson Yards, LLC, 78 AD3d 577 [1 Dept 2010]). Proof supporting a prima facie case on a motion for summary judgment must be in admissible form (see CPLR §3212[b]; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d 780 [1* Dept 2019]). Plaintiff's motion was supported with an affirmation from Yitzhak Isaac Fried (“Fried”), a General Partner of Plaintiff, as well as supporting documentation. The affidavit established the mortgage, note, and evidence of mortgagor’s default and was sufficiently supported by appropriate admissible evidence (see eg Bank of NY v Knowles, supra; Fortress Credit Corp. v Hudson Yards, LLC, supra). The indebtedness and default were also established based on the terms of the forbearance agreement (see Redrock Kings, LLC v Kings Hotel, Inc., 109 AD3d 602 [2d Dept 2013]; EMC Mortg. Corp. v Stewart, 2 AD3d 772 [2d Dept 2003]). To the extent Plaintiff seeks summary judgment on its third cause of action it is unestablished. The notice of motion contains no specific reference to that claim and no legal argument demonstrating how Plaintiff is entitled to accelerated judgment on this claim is contained in the supporting papers (see Penava Mech Corp v Afgo Mech Servs, Inc, 71 AD3d 493, 496 [1*' Dept 2010]). Indeed, Plaintiff's proposed order does not contain an ordered paragraph regarding that cause of action. In opposition, Defendants failed to raise an issue of fact concerning the “Heter Iska”. Contrary to Plaintiffs assertion, the doctrine of law of the case is inapplicable under the circumstances (see 938 St. Nicholas Ave. Lender LLC v 936-938 Cliffcrest Hous. Dev. Fund Corp., 218 AD3d 417 [1* Dept 2023]). Nevertheless, Defendant Borrower’s arguments concerning the parties’ religious agreement are unavailing based upon the reasoning in the Court’s August 2, 2023, decision. Borrower presented no new or different facts from those offered in support of its motion to dismiss. Complaints regarding the amount due do not preclude the issuance of summary judgment (see Orchard Hotel, LLC v DAB Group, LLC, 106 AD3d 628, 630 [1* Dept 2013]). Borrower’s reliance on RPAPL §1301[3] is entirely misplaced. Defendant Weisz, as “[a] guarantor of the mortgage debt, while not a necessary party, is a permissible party in a mortgage foreclosure action” (2 Bergman, New York Mortgage Foreclosures §12:13[2][2023]; see also Trustco Bank, N.A. v Cannon Bldg. of Troy Assocs., 246 AD2d 797 [3d Dept 1998]; Bank of E. Asia v Smith, 201 AD2d 522, 523 [2d Dept 1994]; Morrison v Slater, 128 AD 467, 468 [1*' Dept 1909]). As to the branch of the motion to dismiss Defendants’ affirmative defenses, CPLR §3211[b] provides that “[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit”. For example, affirmative defenses that are without factual foundation, conclusory or duplicative cannot stand (see Countrywide Home Loans Servicing, L.P. v Vorobyov, 188 AD3d 803, 805 [2d Dept 2020]; Emigrant Bank v Myers, 147 AD3d 1027, 1028 [2d Dept 2017]). When evaluating such a motion, a “defendant is entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed” (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2d Dept 2008}). As pled, all the affirmative defenses are entirely conclusory and unsupported by any facts in the answer. As such, these affirmative defenses are nothing more than unsubstantiated legal conclusions 850183/2023 453 EAST 83RD FUNDING L.P. vs. 453 EAST 83RD STREET LLC ET AL Page 2 of 5 Motion No. 002 2 of 2 4 of 5 5 7 (FILED. NEW YORK FILED: NEW YORK COUNTY COUNTY CLERK CLERK 02/15/2024 02/15/2024 04:45 02/20/2024 05/09/2024 PM 04:45 PM 04:27 04:34 INDEX NO 85018}9/ 2023 INDEX NO. 850183/2023 NYSCEF DOC. NYSCEF DOC. NO. NO 113 77 77 78 RECEI VED NYSCEF: RECEIVED NYSCEF: 05/09/2024 02/ 14/ 2024 02/14/2024 02/20/2024 which are insufficiently pled as a matter of law (see Board of Mgrs. of Ruppert Yorkville Towers Condominium v Hayden, 169 AD3d 569 [1° Dept 2019]; see also Bosco Credit V Trust Series 2012-1 v. Johnson, 177 AD3d 561 [1 Dept 2020]; 170 W. Vil. Assoc. v. G & E Realty, Inc., 56 AD3d 372 [1st Dept 2008]; see also Becher v Feller, 64 AD3d 672 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V & M Opt., Inc., 51 AD3d 619 [2d Dept 2008]). Defendants’ opposition to dismissal of the affirmative defenses was entirely conclusory and, by failing to raise specific legal arguments in rebuttal, those affirmative defenses were abandoned (see U.S. Bank N.A. v Gonzalez, 172 AD3d 1273, 1275 [2d Dept 2019]; Flagstar Bank v Bellafiore, 94 AD3d 1044 [2d Dept 2012]; Wells Fargo Bank Minnesota, N.A v Perez, 41 AD3d 590 [2d Dept 2007]). The branch of Plaintiff's motion for a default judgment against the non-appearing parties is granted without opposition (see CPLR §3215; SRMOF II 2012-1 Trust v Tella, 139 AD3d 599, 600 [1* Dept 2016]). The branch of Plaintiff's motion to amend the caption is granted (see generally CPLR §3025; JP Morgan Chase Bank, N.A. v Laszio, 169 AD3d 885, 887 [2d Dept 2019). Accordingly, it is ORDERED that the branch of Plaintiff's motion for summary judgment against the appearing Defendants, for a default judgment against the non-appearing parties as well as the other relief is granted; and it is further ORDERED that Elaine Shay, Esq., 800 3™ Avenue, Ste. 2800, New York, New York 10022 (212) 520-2690 is hereby appointed Referee in accordance with RPAPL § 1321 to compute the amount due to Plaintiff and to examine whether the property identified in the notice of pendency can be sold in parcels; and it is further ORDERED that in the discretion of the Referee, a hearing may be held, and testimony taken; and it is further ORDERED that by accepting this appointment the Referee certifies that he is in compliance with Part 36 of the Rules of the Chief Judge (22 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 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 850183/2023 453 EAST 83RD FUNDING L.P. vs. 453 EAST 83RD STREET LLC ET AL Page 3 of 5 Motion No. 002 3 of 3 5 of 5 5 7 (FTLED:_ NEW YORK FILED: NEW YORK COUNTY COUNTY CLERK CLERK 02/15/2024 02/15/2024 04:45 02/20/2024 05/09/2024 PM 04:45 PM 04:27 04:34 INDEX No. 85018/ 2023 INDEX NO. 850183/2023 NYSCEF DOC. NYSCEF DOC. NO. NO 113 77 77 78 RECEI VED NYSCEF: RECEIVED NYSCEF: 05/09/2024 02/ 14/ 2024 02/14/2024 02/20/2024 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 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 that failure to submit objections to the referee may be deemed a waiver of objections before the Court on an application for a judgment of foreclosure and sale; and it is further ORDERED that Plaintiff must bring a motion for a judgment of foreclosure and sale within 45 days 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 defendants John Doe #1 through John Doe #12 are hereby dismissed from this action; and it is further ORDERED that the caption shall be amended to read as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 453 EAST 83 FUNDING L.P., Plaintiff, -against- 453 EAST 83RD STREET LLC, CHESKIE WEISZ, NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DEPARTMENT OF TAXATION & FINANCE, 1363 FIRST OWNER LLC, and JG FUNDING CORP., Defendants. 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 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 850183/2023 453 EAST 83RD FUNDING L.P. vs. 453 EAST 83RD STREET LLC ET AL Page 4 of 5 Motion No. 002 4 of 4 6 of 5 5 7 (FTLED:_ NEW YORK FILED: NEW YORK COUNTY COUNTY CLERK CLERK 02/15/2024 02/15/2024 04:45 02/20/2024 05/09/2024 PM 04:45 PM 04:27 04:34 INDEX NO 850183/ 2023 INDEX NO. 850183/2023 NYSCEF DOC. NYSCEF DOC. NO. NO 113 77 77 78 RECEI VED NYSCEF: RECEIVED NYSCEF: 05/09/2024 02/ 14/ 2024 02/14/2024 02/20/2024 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. All parties are to appear for a virtual conference via Microsoft Teams on June 5, 2024, at 11:00 a.m. Ifa 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. Ifa motion has not been made, then a conference is required to explore the reasons for the delay. 2/9/2024 a= GN 4 DATE FRANCIS A. KAHN, Ill, A.J.S.C, CHECK ONE: CASE DISPOSED non HON ERANCIS A. ae | GRANTED [ DENIED GRANTED IN PART [ ] OTHER J.S.E. APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT [| REFERENCE 850183/2023 453 EAST 83RD FUNDING L.P. vs. 453 EAST 83RD STREET LLC ET AL Page 5 of 5 Motion No. 002 5 of 5 7 of 5 5 7 FILED: NEW YORK COUNTY CLERK 05/09/2024 02/20/2024 04:34 04:27 PM INDEX NO. 850183/2023 NYSCEF DOC. NO. 113 79 RECEIVED NYSCEF: 05/09/2024 02/20/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------x 453 EAST 83 FUNDING L.P., Index No. 850183-2023 Plaintiff, AFFIDAVIT OF SERVICE -against- 453 EAST 83RD STREET LLC, CHESKIE WEISZ, NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DEPARTMENT OF TAXATION & FINANCE, 1363 FIRST OWNER LLC, and JG FUNDING CORP., Defendants. ----------------------------------------------------------------x STATE OF NEW YORK } } ss.: COUNTY OF NEW YORK } I, Claumery Cabrera, am over 18 years of age, I am not a party to the action, and I reside in Queens County in the State of New York. On February 20, 2024, I caused to be served a true and correct copy of the annexed Decision and Order on Motion with Notice of Entry, (i) upon all counsel of record for all appearing parties by filing same of the New York State Courts Electronic Filing System (“NYSCEF”); and (ii) by Regular, First Class Mail, by depositing same enclosed in a postpaid, properly addressed envelope, an official depository under the exclusive care and custody of United States Post Office within the State of New York to the addressee(s) as indicated below: Allen Schwartz, Esq. – (served via NYSCEF) Elaine Shay, Esq., - As Referee Schwartz Law PLLC 757 3rd Avenue, Floor 20 Attorneys for Defendant 453 East 83rd Street LLC New York, NY 10017 150 Broadway, Suite 701 New York, NY 10038 Cheskie Weisz New York City Department of Finance 713 Bedford Avenue, #6 100 Church Street, 4th Floor Brooklyn, NY 11206 New York, NY 10007 4880-5105-9622, v. 1 1 of 2 FILED: NEW YORK COUNTY CLERK 05/09/2024 02/20/2024 04:34 04:27 PM INDEX NO. 850183/2023 NYSCEF DOC. NO. 113 79 RECEIVED NYSCEF: 05/09/2024 02/20/2024 1363 First Owner LLC New York State Department of 320 Roebling Street, Suite 304 Taxation & Finance Brooklyn, NY 11211 Bldg 9, WA Harriman Campus Albany, NY 12227 JG Funding Corp. New York County Clerk 531 Wild Avenue, Second Floor 60 Centre Street, Room 141B Staten Island, NY 10314 New York, NY 10007 General Clerk’s Office 60 Centre Street, Room 119 New York, NY 10007 Sworn to before me on this 20th day of February, 2024 Cindy Lopez _______________________ Notary Public Notary Public, State of New York Registration No. 01LO6103764 Qualified in Rockland County My Commission Expires Jan. 12, 2028 4880-5105-9622, v. 1 2 of 2