Bates Holdings II LLC v. ZB Prospect Realty, LLC

2024 NY Slip Op 33871(U)

Opinion

Bates Holdings II LLC v ZB Prospect Realty, LLC 2024 NY Slip Op 33871(U)

October 29, 2024

Supreme Court, Kings County Docket Number: Index No. 509047/2024 Judge: Leon Ruchelsman

Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 10/29/2024 01:29 PM INDEX NO. 509047/2024 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 10/29/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 ---------- ---- ------- - - --- - -------x BATES HOLDINGS II LLC, acting by am:l through ~ts servicer Field Point Servicin1 , LLC, Plaintiff , Decision and orde.r

Ihdex No. 509047/20 24

~ against -

ZB PROSPECT REALTY, LLC, ZALMEN BIEDERMAN, CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, U.S. SMALL BUSINESS _ADMINI~TRATION, and ''JOHN DOE #1" through "JOHN DOE #12," the last twelve names being fi.cti tious and unknown to the Plaintiff i the persons or parties, if any, having or claiming ah interest in or lien upon the premises, described in the Complaint ;

Defendant s, October 29, 2024 ---- ---- ' --------- ---- ----- ---------- x PRESENT: HON. LEON RUCHELSMAN Motion Seq. #1 & #2

The plaintiff seeks the appointme nt of a receiver pursuant to RPL §254 (10). The defendant s have cross-mov ed seeking to dismiss the complaint on the g-rounds there 'has been no complianc e with RPALPL §1.303 ( 1) (b) . The motionB have been opposed respective ly. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determina tion, On November 21; 2019 the defendant s executed a mortgage and accompany ing agreement s in the amount of $8,250,00 0. The mortgage and note were assigned to the plaintiff on October 4; 2021. The mortgage) and note concerned property located at 846

1 of 4

[* 1]

FILED: KINGS COUNTY CLERK 10/29/2024 01:29 PM INDEX NO. 509047/2024 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 10/29/2024

Prosp~.c-t, Place in- K.ing-s County. Th¢ pla_intif:f 'allege.s a default occurred whe.n the defendants failed to make any payments in October 2020·. Although. ·some. payments were ma,de after tha.t date t·ollowing a1;1 attempt t.o ·glob:a,J.Ly resoly.e :the outsta:ndihg -debts,

as of the filing of the summons and complaint the defendants owed ·$7, 481, :592. 58 plus interest, late charge.s and o:ther fees.

The plairttif:f has· ·moved seeking th;e ·a,ppoin.tment. of i3-

receiver bpth pursuant to statute and pursuaht to the agreements betwe:en. the p-arti·es. T.he plaintiff ass·erts the. ctefendarit-s are;1,

collecting rents and h~ve fa}led tp pay the mortgag_e as .noted. The request for a .receiver is oppb'sed on the grounds the· lawsuit IllUSt be d.isini-_ssed becaus·e th.e plaintiff failed to pr;0perly- serve the defendants pursuant to RPl\PL §;1303 (1) {b) • As noted, the motions are qppos·ed.

Conclrision~ bf Law

P1i:rsuant to RPA.PL §1303. any p:a:rty f_oreclof?ing ·upon -~ mortgeJ.g~ on: .reside,mt:,ial, property must .serve a. notice. entitled ''No1:i.ce to ·Te.ri.artt"i::; of Buildings in Foreclosure·" to. aJ,l tenarit ·of .the property. Pursuant to RPAPL 'S1303 C4) conce:tnin.g buil.d.ings

with more than five dwelling units :the notice must be conspicu:ously p.osted" at ~v~:rry entrar+c~ and eti t ·o"f the building.

J:n t)1.-is case tne. proc_ess server subrtti tted an affirmation which stated that he posted the. requis.ite n,otice on the "east

2

2 of 4

[* 2]

FILED: KINGS COUNTY CLERK 10/29/2024 01:29 PM INDEX NO. 509047/2024 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 10/29/2024

entrance and exit of building at 846 Prospect Place" (gee, Affidavit of Tyietn Ratnello Pinder, dated April 10, 2024 {NYSCEF Doc. Nb. 4 8] ) . The defendant s a:ssert and it is undispute d that 8 4 6 Prospect Place has another en t ranee . Thus, the de.f ehdant s contend there was a failure to strictly comp1y with RPAPL §1303. Following the submissio n of the cross"""'.'mo tion to dismiss the plaintiff submitted a supplemen tal affidavit from the process server that asserts in addition to the service of the not.ice as indiCated the notice was also served on the side entrance (see, Affidavit of Tyiem Rame1lo Pinder, dated August 2, 2024 {NYSCEF Doc. No. 93]).

It is true that generally a process server's affidavit .Provides prima facie evidence of proper service (Household Finance Realty corp., of New York v. Brown, 13 AD3d 340, 785 NYS2d 7 42 [2d Dept., 2004]) . Although the first affidavit of the process server did not rrie:htion all locations where the notice was posted the supplemen tal affidavit explained that the notice was posted at all entrances in full complianc e with the statute. There has been no evidence presented questionin g the veracity of the process server or why a hearing regarding service is required. Therefore , the cross motion seeking to dismiss the complaint is denied.

Concerning the plaintiff 's motion seeking the appointme nt of a receiver, such motion is granted for the same reasoning

3 of 4

[* 3]

FILED: KINGS COUNTY CLERK 10/29/2024 01:29 PM INDEX NO. 509047/2024 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 10/29/2024

outiin_ed in· prior c;iecisions conce·rning t.he sa:rne pa-rtie:S ~ 19-.:Stly,_ the ¢iefendants request to .compel the piaintiff to accept the defend,;J.nt's answer- is granted. Considering the facts :of this cas-e: no def?1.ilt is appropriate.

So ordered.

ENTER:

"DATED: October 29, 2024 Brooklyn N.Y, Hon. Leon Ruchels~ari ..TSC

4

4 of 4

[* 4]