Conklin Ave Mgt. Corp. v Federal Natl. Mtge. Assn. 2025 NY Slip Op 32403(U) July 7, 2025 Supreme Court, Kings County Docket Number: Index No. 515653/2018 Judge: Richard J. Montelione 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 07/08/2025 10:39 AM INDEX NO. 515653/2018 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 07/08/2025
AtPart 99 ofth~ Kings County Supreme Court of the State of New York, located at360 Adams Street, Brooklyn, NY 11201 on the 7f!!yiay of July 2025.
SUPR.ENIE COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 99 DECISION and --· -------- . ----------------- ..----· --· --------- ... ---. ----- .----. -X ORDER CONKLIN AVE'MANA GEMENTCO RP.,
Plaintiff', IndexNo.: 515653/2018 -against:- Mot. Seq. Nos.: 2 & 3
FEDERAL NATIONAL MORTGAGE ASSOCIATI ON, RUPERT B. FORBES A/K/ARUPE RTFORBES . . . . . . . . ~
RG EAST 93 LLC C/O GAVRIEL BADALOV,
Defendants. --------. -----.. -... -. ----------. ------. -- ·-- .. ---- ·-------------X
After oral argument, the following papers were read on this motion pursuant to CPLR 2219(a):
Paoers Numbered
Notice ofMotion(Se q. No. 2)/Affirnmtion/Exhibits ................. ... 39~61 Answering Affinriation/Exhibits ................. ............ , ....... , ................. 64-68 April 10, 2025 Order; ............ , .... ; .................. ...... ; ........... , ..... ; 69 . Notice ofMotion (Seq, No. 3)/Affirmation/Exhibits 70-71 .Answering Affirmation/Exhibits• 82-86 Federal National lvfottgage Association v: Forbes, etaL, Sup Ct, Kings County.. Index No. 7153/2013: ·- Judgment of Foreclosure and Sale ofBlock: 8180, Lot: 47 and 147 [Feb. 9, 2017 (Partnow, J.)J~ . . - Order Denying Conklin Ave's OSC to Intervene [Mar. 20,. 2018 (Partuow, . . JJ]; -'- Order Refortningth e Legal Description ofthe Subject MortgageNunc Pro Tunc[Apr. 26, 2018 (Partnow,J.)] ; and; - Decision and Order [July 25; 2022 (Partnow, J.)]
The plaintiff Conklin Ave Management Corp. (Conklin Ave) commenced this action by filing. a summons cllld complaint on August· l, 2018; pursuantto RP APL· Article 15, to compel the determination of aclaim to real property, to quiet title, ror declaratory judgment, injunctive and equitablerelie f, and fot compensatory damages. Plaintiffalleg esthat it purchased real property from Defendant Rupert B, Forbes(Forbe s) by Deed dated March 5. 2014, (filed on
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ACRIS on March 14, 2014 underCRFN#2014000089 079). The property is described as 73 Conklin Avenue, Brooklyn, New York a/k/a Block 8180, Lot 147. Plaintiff alleges thatatthe tiille Plaintiffpurchased the property, there was no mortgage liert filed against the Property,. but does not indicate in the complaint whether plaintiffpaid for the property in cash, or whether money· was borrowed to purchase the property, and if so, the origin of any funds used to purchase the property. Plaintiff alleges that Forbes also ovmed a property located at 1120 East 93rd Street a/k/a Block 8180; LotA 7 _("Lot 47") which is adjacent to plaintiffs property: Lot 47 did have a filed mortgage encumbering it which was dated June 4 ,2007 and filed on July 10, 2007 with the assigned CRFN #2007000351292. The mortgage on Lot 47 was filed by Suntrust Mortgage, Inc,, in the amount of $456,000.00,that later assigned itto Defendant Fannie Mae, on or abmit Match 12, 2011, which wasthe real property subject to a prior foreclosure action. The court notes there were actually two. mortgages on the same legally described property filed by Suntrust Mortgage, Inc. The first mortgage was in the arn9unt of$456,000.00 (NYSCEF #4, Loan No. 0205421787) presumably for construction because there is a Residential Construction Rider attached to the mortgage, and the second was a conventional mortgagein the amount of $366,000.00 (NYSCEF #46); .
Issue wasjoined only by Defendant Federal National Mortgage Association ("FNMA" or "Fannie Mae':,) on January 14, 2019, with filing of its answer (NYSCEF 13). Defendatit Fannie .Mae asserts as anaffirrnative defense: · ·
1 ... that on or about June4, 2007, Suntrust Mortgage, Inc. ("Suntrust") extended a loan to Rupert Forbes ('"Forbes") in the ·original principal.balanceof$366,0 00.00 (the""FNMA Loan") and secured by a mortgage {"FNMA Mortgage") on the real estate 'commonly known as 1120 East 93rd Street; Brooklyn; New York 11236 (the "FNMA Property'').
2. The FNMA Mortgage was recorded on July 10, 2007 with the Office of the City Register of the City of New York as Document No. 2007000351299.
3. Ort information and belief, Forbes·wasalsothe owner of the property adjacent to the FNMA Property commonly known as 73 Conklin Avenue, Brooklyn, New York (''Adjacent Property'').
4. On information and belief, the FNMA Property and Adjacent Property were joined under the same parceLand legal description and the legal description for the FNMA Mortgage included the Adjacent Property." ·
Defendant RG East 93 LLC was served through the Secretary of State on November 21, 2018 and the affidavit of service was filed on December 5, 2018. Defendant RG East93 LLC defaulted in answering. . However~ . no proceedings were ever commenced to enter a default 2 of6
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judgment against RG East 93 rd • Subsequently, on January 14, 2024, defendant RG East 93 filed a Notice ofMotion seeking, inter alia, to vacate its default in answering aridto dismiss plaintiff's complaint (MS# 2). Although plaintiff filed opposition papers, plaintiffdefaulted in appearing for oral argument on the motion on.April 10, 2024. As•a direct result of plaintiff's.default, defendant RG East93 rd 's motion to vacate its default and to dismiss (MS# 2) was granted~ •{Order dated April 10, 2024NYSCEFDoc. No. 69). Theplaintiffnowrnoves.to vacate its default and for the court to hear the defendant R G East 9yd' s motion (MS#2) on the merits.
Plaintiff's MS# 3has met theJirst prong of its CPLR 5015(a) application and this court finds excusable default on the part ofplaintiff's counsel. Thatportion cifplaintiffs MS# 3 to vacate its default in appearing and arguing against .defendant RG East 93 rd 's motion is granted; the court's order dated April 10, 2024 is vacated and MS# 2 is restored. The failure of the plaintiffto ever take any proceedings to enterjudgmentagainst Defendant RG East 93rd pursuant to CPLR ·3215, "shall" result in dismissal. Although defendant RG East 93 rd seeks in MS#· 2 ·to vacate its·default, and plaintiff opposes, at this point plaintiff lost its right for defaultjudgnient under CPLR 3215 and the action against defendant RG East 93 rd would g<::nerally be dismissed. However, given the particular procedural posture, the court grants the CPLR 5015(a)application in the interest of justice as no party is prejudiced and the court will consider defendant RG East 93 rd 's motion to.dismiss.
The issue of whether plaintiff has a meritorious cause of action, o_r Whether RG East 93 rd ·is entitled to a CPLR 3211 (a)(7) and {a)(8) dismissal is analyzed below.
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Conklin Ave Mgt. Corp. v Federal Natl. Mtge. Assn. 2025 NY Slip Op 32403(U) July 7, 2025 Supreme Court, Kings County Docket Number: Index No. 515653/2018 Judge: Richard J. Montelione 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 07/08/2025 10:39 AM INDEX NO. 515653/2018 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 07/08/2025
AtPart 99 ofth~ Kings County Supreme Court of the State of New York, located at360 Adams Street, Brooklyn, NY 11201 on the 7f!!yiay of July 2025.
SUPR.ENIE COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 99 DECISION and --· -------- . ----------------- ..----· --· --------- ... ---. ----- .----. -X ORDER CONKLIN AVE'MANA GEMENTCO RP.,
Plaintiff', IndexNo.: 515653/2018 -against:- Mot. Seq. Nos.: 2 & 3
FEDERAL NATIONAL MORTGAGE ASSOCIATI ON, RUPERT B. FORBES A/K/ARUPE RTFORBES . . . . . . . . ~
RG EAST 93 LLC C/O GAVRIEL BADALOV,
Defendants. --------. -----.. -... -. ----------. ------. -- ·-- .. ---- ·-------------X
After oral argument, the following papers were read on this motion pursuant to CPLR 2219(a):
Paoers Numbered
Notice ofMotion(Se q. No. 2)/Affirnmtion/Exhibits ................. ... 39~61 Answering Affinriation/Exhibits ................. ............ , ....... , ................. 64-68 April 10, 2025 Order; ............ , .... ; .................. ...... ; ........... , ..... ; 69 . Notice ofMotion (Seq, No. 3)/Affirmation/Exhibits 70-71 .Answering Affirmation/Exhibits• 82-86 Federal National lvfottgage Association v: Forbes, etaL, Sup Ct, Kings County.. Index No. 7153/2013: ·- Judgment of Foreclosure and Sale ofBlock: 8180, Lot: 47 and 147 [Feb. 9, 2017 (Partnow, J.)J~ . . - Order Denying Conklin Ave's OSC to Intervene [Mar. 20,. 2018 (Partuow, . . JJ]; -'- Order Refortningth e Legal Description ofthe Subject MortgageNunc Pro Tunc[Apr. 26, 2018 (Partnow,J.)] ; and; - Decision and Order [July 25; 2022 (Partnow, J.)]
The plaintiff Conklin Ave Management Corp. (Conklin Ave) commenced this action by filing. a summons cllld complaint on August· l, 2018; pursuantto RP APL· Article 15, to compel the determination of aclaim to real property, to quiet title, ror declaratory judgment, injunctive and equitablerelie f, and fot compensatory damages. Plaintiffalleg esthat it purchased real property from Defendant Rupert B, Forbes(Forbe s) by Deed dated March 5. 2014, (filed on
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ACRIS on March 14, 2014 underCRFN#2014000089 079). The property is described as 73 Conklin Avenue, Brooklyn, New York a/k/a Block 8180, Lot 147. Plaintiff alleges thatatthe tiille Plaintiffpurchased the property, there was no mortgage liert filed against the Property,. but does not indicate in the complaint whether plaintiffpaid for the property in cash, or whether money· was borrowed to purchase the property, and if so, the origin of any funds used to purchase the property. Plaintiff alleges that Forbes also ovmed a property located at 1120 East 93rd Street a/k/a Block 8180; LotA 7 _("Lot 47") which is adjacent to plaintiffs property: Lot 47 did have a filed mortgage encumbering it which was dated June 4 ,2007 and filed on July 10, 2007 with the assigned CRFN #2007000351292. The mortgage on Lot 47 was filed by Suntrust Mortgage, Inc,, in the amount of $456,000.00,that later assigned itto Defendant Fannie Mae, on or abmit Match 12, 2011, which wasthe real property subject to a prior foreclosure action. The court notes there were actually two. mortgages on the same legally described property filed by Suntrust Mortgage, Inc. The first mortgage was in the arn9unt of$456,000.00 (NYSCEF #4, Loan No. 0205421787) presumably for construction because there is a Residential Construction Rider attached to the mortgage, and the second was a conventional mortgagein the amount of $366,000.00 (NYSCEF #46); .
Issue wasjoined only by Defendant Federal National Mortgage Association ("FNMA" or "Fannie Mae':,) on January 14, 2019, with filing of its answer (NYSCEF 13). Defendatit Fannie .Mae asserts as anaffirrnative defense: · ·
1 ... that on or about June4, 2007, Suntrust Mortgage, Inc. ("Suntrust") extended a loan to Rupert Forbes ('"Forbes") in the ·original principal.balanceof$366,0 00.00 (the""FNMA Loan") and secured by a mortgage {"FNMA Mortgage") on the real estate 'commonly known as 1120 East 93rd Street; Brooklyn; New York 11236 (the "FNMA Property'').
2. The FNMA Mortgage was recorded on July 10, 2007 with the Office of the City Register of the City of New York as Document No. 2007000351299.
3. Ort information and belief, Forbes·wasalsothe owner of the property adjacent to the FNMA Property commonly known as 73 Conklin Avenue, Brooklyn, New York (''Adjacent Property'').
4. On information and belief, the FNMA Property and Adjacent Property were joined under the same parceLand legal description and the legal description for the FNMA Mortgage included the Adjacent Property." ·
Defendant RG East 93 LLC was served through the Secretary of State on November 21, 2018 and the affidavit of service was filed on December 5, 2018. Defendant RG East93 LLC defaulted in answering. . However~ . no proceedings were ever commenced to enter a default 2 of6
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judgment against RG East 93 rd • Subsequently, on January 14, 2024, defendant RG East 93 filed a Notice ofMotion seeking, inter alia, to vacate its default in answering aridto dismiss plaintiff's complaint (MS# 2). Although plaintiff filed opposition papers, plaintiffdefaulted in appearing for oral argument on the motion on.April 10, 2024. As•a direct result of plaintiff's.default, defendant RG East93 rd 's motion to vacate its default and to dismiss (MS# 2) was granted~ •{Order dated April 10, 2024NYSCEFDoc. No. 69). Theplaintiffnowrnoves.to vacate its default and for the court to hear the defendant R G East 9yd' s motion (MS#2) on the merits.
Plaintiff's MS# 3has met theJirst prong of its CPLR 5015(a) application and this court finds excusable default on the part ofplaintiff's counsel. Thatportion cifplaintiffs MS# 3 to vacate its default in appearing and arguing against .defendant RG East 93 rd 's motion is granted; the court's order dated April 10, 2024 is vacated and MS# 2 is restored. The failure of the plaintiffto ever take any proceedings to enterjudgmentagainst Defendant RG East 93rd pursuant to CPLR ·3215, "shall" result in dismissal. Although defendant RG East 93 rd seeks in MS#· 2 ·to vacate its·default, and plaintiff opposes, at this point plaintiff lost its right for defaultjudgnient under CPLR 3215 and the action against defendant RG East 93 rd would g<::nerally be dismissed. However, given the particular procedural posture, the court grants the CPLR 5015(a)application in the interest of justice as no party is prejudiced and the court will consider defendant RG East 93 rd 's motion to.dismiss.
The issue of whether plaintiff has a meritorious cause of action, o_r Whether RG East 93 rd ·is entitled to a CPLR 3211 (a)(7) and {a)(8) dismissal is analyzed below.
The instant action.is related·toKings County action, Federal National A1ortgage Association v: Forbes, et al., 7153/2013(7153/2013), wherein Justice Mark Partnowpreyiously established the rights to the same parcel ofland at issue herein, namely 1120 E, 93rd Street, Brooklyn, NY, Block: 8180, Lots:47and, 147 with ajudg;ment of foreclosure (NYSCEF #5).
In deciding whether plaintiff has a meritorious cause of attion or whether defendant RG East 93 nb s CPLR 3 211 (a)(7) arid 3211 (a)(8) motion should be granted, the court takes judicial notice ofKings County actipn; Federal National).JortgageAssocia tion v. Forbes; et al., Index No, 7153/2013, (a none-filed action); and v.rithin that action, the following orders:
a. Judgment ofForeclosure and Sale ofBlock: 8180, Lot: 47and 147, entered on February 9, 2017 (Partnow, J.) (Foreclosure Judgment);
b. March 20, 2018, OrderDenying ConkliriAve;s OSC to Intervene{Partnow, 1) (Intervention OSC);
c. April 26, 2018, Order Reforming the Legal Description of the Subject Mortgage Nunc Pro Tune (Partnow, J.); and
d. Decision and Order entered on July 25, 2022 (PartnOW; J.).
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The Foreclosure Jµdg~en,t. was granted under Index No. 7153/20 i 3 ·upon, inter alia, a review of the report of Aaron D. Maslow, Esq., issued upon an Order of Reference for him to ,compute the amount due the plaintiff therein, FederalNational Mortgage Association. Justice Partnowtatified and cqnfiimed th¢ report, and directed that the property be sold at auction.
Plaintiff Conklin Ave, ·in th€;: prior foreclosure, action under Index No, 7153i'J,0 13 moved by ordet to show cause to intervene. .The order to show cause was, "denied iri its e.ntirety as it failed to annex proposed.pie.adittgs.;• A reviewofthe:DocketSheet under Index·No. 7153/2013 fails to ·show that Conklin Ave filed a notice ofappeal 1n connection with the denial. of its OSC or make a subsequent motion by Order to Show Cause to renew therein with proposed pleadings, Such pleadings are required. 1\Joha:wk 1.\1aintenance Co. v Drake, 29 AD2d ·689, 287 NYS2d · 124, 57 Lab Cas P 51827 [2d Dept 1968].
Ort April 26, 2018, in 7153/2013, Justice Partllowis~ued an order reforming the legal desc.ription ofthe Mortga,ge' nunc·pro tune. Justice Partnow ''Ordered, Adjuq.ged .and Decreed, that the.1r.iortgagewhic];i is the' s·ubJect of this action. is hereby refohnedtQ·m.atch the. legal de:scription annexed and attached to this order as· •Exhibit A)':" Justice Partnow further ''Ord~.req, Adjudged m;id. Decr~ed, that the legal description. contai11ed in. ihe. ).udgrnent of Foreclosure and Sale entered in the instant action on February 9, 2017. is hereby reformed to match the legal description annexed and attached to this order as 'Exhibit A•.;~ Exhibit A thereto is the·"Adva:ntage Foreclosure Services, Inc., Title No, FCL-70622~11 (File No .. STMI-98391) Schedule A Description~ Block 8180 and Lots 47& 147 ..... Premises krtowas 1120 East 93 rd Street a/k/a 73 Conklin.Avenue_; Brooklyn_,New York."
L~t\y, Justice P~ow•~.July 25, 2022, Decbion ;mq Order indicates that o.n.May 18, 2017. a foreclosure auction 'was held. A referee• s d~ed was issuedthat had a legal description whi.ch includeq both LQt& 47·.and 147. The defendan(RO East 93rd was the ~inning. bidder at the auction•.
•'Two requirements. must be met before collateral .estoppel can be invoked. There must be an identity of issue which ha$ necessarily been decided in the prior action and is de.cisive of the · .present action, and there must have been a full and fair opportunity to contest the decision now sa,id t.o be. i:ontrolling." (See·Gilbe,~g v Barbieri, 53 NY2cf285,291 [I 9811). ''The party to be ·precluded from relitigating the issue be&rs the burden .of de.iilqnstrating th~ absenc.e of a full and fajr opportunity to contest the prior ,determination/' ·(Bu~chel v Bain; 97 N. Y.Zd 295, 303--04 [2001]. See alsq Camperlengo'vBarell, 78 NY2&674, 68H [1991] [th~·elements of collateral estopp~l re.quire··there. be an'' 'identity i:>fthe issue[s}' necessarily decided inthe prior action:.ot proceeding and 'a full artd fair opportunity' to contest the decision now said to be controlling'']).
Block .8180, Lots 47 and 147, were foreclosed upon pur$uant fo ·the F oreclo.sure Judgment in the 7153/2013 action. Thereafter the real property~ both lots, were auctioned and sold to defendant.RG East 93 rd• Areferee·;·.S tle.e.d wasissued baying ~ legal de$cription .of the, property as.Block 8080 rtnd both Lots 4 7 and 147. Plaintiff attempted fo intervene in the. IP-~tter under index l~fo- 71 $3/20 i 3, but its motion was denied solely because plaintiff failed to . annex 4·of6
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proposed pleadings. Plaintiff never moved to renew and it appears no appeal was taken of this decision and order notwithstanding that Justice Partnow addressed, by his orders, whether a mortgage that was in foreclosure included both Lots 4 7 ·and .147, ot just Lot 4 7 1·• Because plaintiff was on notice of the issues before the court in the matter under Index No, 7153/20lt and moved to intervene but failed to attachthe pleadings, and further failed to renew with proposed pleadings or to appeal Justice Partnow's decision and order, plaintiff cannot argue that it did not have a ''fair opportunity to litigate the issue" ahd therefore fails to meet its bµrden, On the contrary, plaintiffhad a fair o,pportunity and failed to litigate the•issue by providing the court With necessary pleadings or otherwise taking any further steps to intervene. See Athena Hopkins, etc., appellant, v James J Terwilliger, respondent (and a third-Party action). (Action No. 1) Kenneth Hopkins, appellant,, 2025 NY Slip Op 04002, 2025 \VL 1813116 [2d Dept July 2, 2025],Athena Hopkins, etc., appellant, v JamesJ. Terwilliger, respondent (and a third-Party action). (Action No. 1) Kenneth Hopkins, appellant,, 2025 NY Slip Op 04002, 2025 WL 18131 I 6, at *2 [2d Dept July 2, 2025}. See also Caminero v Michael Flyn11, Esq., PLLC, 2025 NY Slip Op 03701, 2025 WL 1699693; at *l [2dDept June 1.8,2025}:
" 'This doctrine applies ohly if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the ... party to be bound had a full and fair opportunity to litigate the issu_e in the earlier action' "· (}Jatter of Maione v. Zucker; 210 A.D; 3d at 777, 178 N. Y. S. 3d 142 [alteration and internal quotation marks omitted];, quotingCity a/New Yorkv. WeJsbach Elec; Corp., 9 N.Y.3d 124,128,848 N.Y.S.2d 551,878 N£.2d 966);
The issue of whether Lots 47 and 147 was within thelegal description of the teal properly foreclosed upon. was necessarily decided in the matter under Index No. ·7153/2013 and plaintiff is bound by the Judgment ofFoteclOsure;
Based on the fott!going, it is
ORDERED, that plaintiffCoriklin Ave Management Corp,'s motion (MS#3) is GRANTED TO THE EXTENT that its defaultto appear on April 10, 2024 is vacated and defendant RG East 93 LLC's motion to vacate its default and dismiss the complaint (MS#2) is restored and considered; and it is·further
ORDERED, that defendant RG East 93 LLC's motion to vacate its default and dismiss the complaint is GRANTED and the complaint is DISMISSED (MS#2) as the issue of quieting title to Tax Map Identification Lots 47 and 147 of Block 8180 was necessarily decided in a prior action, which decision is determinative in the present action, and plaintiff Conklin Ave
1 lt appears that after the mortgages were filed Lbt4 7 was split into. Lots 47 and 14 7, but this did not change the encumbrances bf the mortgages as the. logical consequence bf the Judgment of Foreclosure.
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Management Corp. did not meet its burden of demonstrating the absence of a full and fair opportunity to contest the prior determination; and it is further
ORDERED, that any other reliefrequested is DENIED.
This constitutes the decision and order of the Court.
Dated: JUL O7 2021
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