FILED: KINGS COUNTY CLERK 12/07/ :02 PM INDEX NO /2017 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 12/07/2017

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS OBIGOR, LLC, Index No /2017 Plaintiff, -against- BARBARA GORDON, RUDOLF KATS, d/b/a COLUMBIA CAPITAL CO., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, THE UNITED STATES OF AMERICA, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, THE BANK OF NEW YORK MELLON, NEW YORK CITY BUREAU OF HIGHWAY OPERATIONS and JOHN DOE #1 through JOHN DOE #10, the last ten names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described herein, AFFIDAVIT OF OBIGOR, LLC IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND EXIGENCY Defendants. STATE OF NEW YORK ) ) ss: COUNTY OF QUEENS ) IFEANYI OBIAKOR, M.D., being duly sworn, deposes and says: INTRODUCTION AND EXIGENT CIRCUMSTANCES 1. I am the managing member and majority owner of Plaintiff Obigor, LLC ( Obigor ) in this Action. As such, I have personal knowledge of the facts set forth below. 2. Obigor has a deal to sell the subject property and there is an impending foreclosure judgment. The proceeds of the sale will pay the foreclosing mortgage. Obigor brought this action to quiet title because defendant Barbara Gordon ( Gordon ) claimed to own the property, clouding title and preventing a sale. Gordon now admits Obigor owns the property and Obigor seeks judgment quieting title so it can complete the sale and avoid foreclosure. 1 of 5

2 3. I submit this affidavit in support of Obigor s motion for an order: a. Pursuant to CPLR 3212, granting summary judgment in favor of Obigor, LLC on its first cause of action and, upon the grant of summary judgment, entering judgment declaring that: (i) Obigor, LLC is the owner of the subject property known as 1860 Bedford Avenue, Brooklyn, New York, Block 5031, Lot 57 (the Property ) and (ii) Gordon is barred from claiming any right, title, or interest in the Property; b. Directing the Office of the City Register of the City of New York, Kings County to record a certified copy of any decision, order, and/or judgment entered in this action into the chain of title for the Property; c. Pursuant to CPLR 6514, cancelling the Notice of Pendency filed July 27, 2012 against the Property by Gordon, under Kings County Index Number 3922/2012; and d. Granting such other and further relief this Court deems just and proper. THE SUBJECT PROPERTY AND IMPETUS FOR THIS ACTION 4. Obigor is the owner of the Property by virtue of a deed dated and executed May 25, 2004, by Will James Equity Partners, Inc. and simultaneously delivered to Obigor (the Deed ). The Deed was recorded on July 8, 2004 as City Register File Number ( CRFN ) A copy of the Deed is annexed as Exhibit A. 5. For at least the last eight years, Defendant Gordon has sought to seize control and ownership of the Property from Obigor. Those efforts are more fully detailed in my prior affidavit in this matter, dated April 21, 2017 and annexed hereto as Exhibit B. I reaffirm each and every fact set forth therein and incorporate it into this Affidavit of 5

3 6. Relevant to this Motion, in 2012, Defendant Gordon instituted a lawsuit in the Supreme Court, Kings County, Index Number 3922/2012 seeking a constructive trust against the Property (the 2012 Action ). 1 There is a Notice of Pendency of the 2012 Action filed on July 27, 2012, which was indexed against the Property (the 2012 Notice of Pendency ). A copy of the 2012 Notice of Pendency is annexed as Exhibit C. 7. The 2012 Action was abandoned and disposed, and no judgment entered. The 2012 Action has sat dormant for almost 3 years. A copy of the County Clerk Minutes in the 2012 Action is annexed as Exhibit D. 8. While preparing to sell the Property, I was advised by a title company that the 2012 Notice of Pendency remains of record and needs to be cancelled in order for Obigor to convey clear title to any buyer. FIRST MORTGAGE AND PENDING FORECLOSURE 9. Defendant Rudolf Kats, d/b/a Columbia Capital Co. ( Mortgagee ), is the record holder or owner of a $450,000 mortgage against the Property, dated March 6, 2007, and recorded on March 22, 2007 as CRFN (the First Mortgage ). 10. The First Mortgage is being foreclosed in an action in this Court filed under Index No /2014 (the Foreclosure ). A copy of the Notice of Pendency in the Foreclosure is annexed as Exhibit E. 11. As I advised in my April 21, 2017 Affidavit (Exhibit B), Obigor has been seeking to sell the Property, in particular to resolve the Foreclosure and satisfy the debt underlying the First Mortgage which accrues interest at a default interest rate of 24% per annum, or approximately $ per day. 1 The 2012 Action did not specifically seek a judgment affecting title to the Property, however the demand for relief broadly sought to impose a constructive trust on all property of Obigor and I am advised that the Notice of Pendency of the 2012 Action was indexed against the Property and remains outstanding of 5

4 12. As of October 31, 2017, the payoff on the First Mortgage is $989,482.56, plus $3, in fees, and per diem interest in the amount of $ per day, exclusive of additional fees and other charges. 13. A motion for judgment of foreclosure and sale was filed in the Foreclosure on July 24, 2017 and the adjourned return date of the motion is December 7, 2017 ( Motion for Judgment ). The motion has already been adjourned 2 times and I am advised by counsel that the motion may not be further adjourned. A copy of the Motion for Judgment is annexed as Exhibit F. A copy of the New York State Unified Court System E-courts appearance detail for the Foreclosure action is annexed as Exhibit G. 14. If judgment of foreclosure and sale is entered in the Foreclosure, I am advised that the Property may be auctioned in as little as 2-3 months. AGREEMENT TO SELL PROPERTY 15. To date, Defendant Gordon s efforts to seize control and ownership of the Property have hampered Obigor s ability to sell the Property and satisfy the First Mortgage, all to Obigor s detriment. 16. Obigor has entered into a contract to sell the Property (the Contract of Sale ). I have been advised that the buyer will not close under the Contract of Sale until the issue of Gordon s claim to own the Property is adjudicated. I am also advised that the buyer will not close under the Contract of Sale if the Foreclosure action proceeds to public auction. 17. Therefore, Obigor cannot close under the Contract of Sale until (a) the doubt cast on its title by Gordon is resolved and (b) the Notice of Pendency of the 2012 Action is cancelled of 5

5 5 of 5