Grand Palm (NY) LLC v Kamhi 2014 NY Slip Op 30877(U) April 7, 2014 Sup Ct, New York County Docket Number: /2009 Judge: Eileen A.

Similar documents
Casanas v Carlei Group, LLC 2014 NY Slip Op 30287(U) January 28, 2014 Sup Ct, New York County Docket Number: /12 Judge: Donna M.

LPP Mtge. Ltd. v Sabine Props., LLC 2010 NY Slip Op 32367(U) August 27, 2010 Supreme Court, New York County Docket Number: /10 Judge: Joan A.

Bowery Residents' Comm., Inc. v 127 W. 25th LLC 2011 NY Slip Op 33971(U) November 2, 2011 Supreme Court, New York County Docket Number: /11

Matter of DeJesus v New York City Hous. Auth NY Slip Op 31536(U) July 12, 2013 Sup Ct, New York County Docket Number: /2013 Judge: Eileen

Dixon v 105 W. 75th St. LLC 2015 NY Slip Op 30529(U) April 13, 2015 Supreme Court, New York County Docket Number: /2014 Judge: Manuel J.

Westside Radiology Assocs., P.C. v St. Luke's-Rossevelt Hosp. Ctr NY Slip Op 30970(U) May 26, 2016 Supreme Court, New York County Docket

Katehis v City of New York 2015 NY Slip Op 30787(U) April 17, 2015 Supreme Court, Queens County Docket Number: /2013 Judge: Kevin J.

Horrigan Dev. LLC v Drozd 2017 NY Slip Op 30270(U) February 3, 2017 Supreme Court, Kings County Docket Number: /2013 Judge: Sylvia G.

Hotel Carlyle Owners Corp. v Schwartz 2014 NY Slip Op 30458(U) February 25, 2014 Sup Ct, NY County Docket Number: /12 Judge: Ellen M.

Soldiers', Sailors', Marines' and Airmen's Club, Inc. v Carlton Regency Corp NY Slip Op 33455(U) December 19, 2013 Supreme Court, New York

BPP St Owner LLC v Carlotti 2016 NY Slip Op 32066(U) October 20, 2016 Civil Court of the City of New York, New York County Docket Number: 60387/15

Kryolan Corp. v 277 Bleecker LLC 2017 NY Slip Op 30728(U) April 13, 2017 Supreme Court, New York County Docket Number: /15 Judge: Barry

Zuniga v BAC Home Loans Servicing, LP 2014 NY Slip Op 33854(U) September 2, 2014 Supreme Court, Nassau County Docket Number: 3999/13 Judge: Jeffrey

Diaz v D&F Dev. Group, LLC 2014 NY Slip Op 32100(U) July 22, 2014 Sup Ct, Bronx County Docket Number: /11 Judge: Mark Friedlander Cases posted

91 Real Estate Assoc. LLC v Eskin 2013 NY Slip Op 31181(U) June 4, 2013 HCIV, New York County Docket Number: 78814/2012 Judge: Sabrina B.

Jurist Co., Inc. v 175 Varick St. LLC 2006 NY Slip Op 30756(U) September 8, 2006 Supreme Court, New York County Docket Number: /05 Judge:

Third District Court of Appeal State of Florida

Dormitory Auth. of the State of N.Y. v Roman Catholic Church of St. Ignatius 2016 NY Slip Op 31116(U) January 5, 2016 Supreme Court, Kings County

Lieberman v 244 E. 86th St., LLC 2014 NY Slip Op 32836(U) October 30, 2014 Supreme Court, New York County Docket Number: /2013 Judge: Anil C.

Combs v Ocwen Loan Servicing, LLC 2014 NY Slip Op 33362(U) December 10, 2014 Supreme Court, Kings County Docket Number: /14 Judge: Lawrence S.

Third District Court of Appeal State of Florida

Matter of Fortoso v State of New York Div. of Hous. & Community Renewal 2015 NY Slip Op 31895(U) September 18, 2015 Supreme Court, Bronx County

IN THE COURT OF APPEALS OF INDIANA

THE STATE OF NEW HAMPSHIRE SUPREME COURT

FILED: NEW YORK COUNTY CLERK 12/15/ :04 PM INDEX NO /2016 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/15/2016. Index No. [type in Index No]

Broadway Triangle Community Coalition v Bloomberg 2010 NY Slip Op 31665(U) June 28, 2010 Supreme Court, New York County Docket Number: /09

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

GREATER ATLANTIC LEGAL SERVICES, INC.

Third District Court of Appeal State of Florida

First Sterling Corp. v Union Sq. Retail Trust 2012 NY Slip Op 33378(U) February 10, 2012 Supreme Court, New York County Docket Number: /10

FILED: KINGS COUNTY CLERK 08/11/ :43 PM INDEX NO /2015 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/11/2015

FILED: NEW YORK COUNTY CLERK 10/02/ :22 PM INDEX NO /2016 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 10/02/2017 Motion Sequence No.

Forman Fifth LLC v Hong Shik Kim 2010 NY Slip Op 32287(U) June 7, 2010 Supreme Court, Queens County Docket Number: 21456/2009 Judge: Patricia P.

IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR CLAY COUNTY, FLORIDA

Oakwood Care Ctr., Inc. v Oakwood Operating Co., LLC 2010 NY Slip Op 32638(U) September 20, 2010 Supreme Court, Suffolk County Docket Number:

FILED: KINGS COUNTY CLERK 08/11/ :43 PM INDEX NO /2015 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/11/2015

IN THE COURT OF APPEAL BETWEEN. COLONIAL HOMES AND COMMERCIAL PROPERTIES LIMITED Formerly called BALMAIN PARK LIMITED AND

Matter of Southampton Assn., Inc. v Zoning Bd. of Appeals of the Inc. Vil. of Southampton 2010 NY Slip Op 32107(U) August 5, 2010 Sup Ct, Suffolk

BAYVIEW LOAN SERVICING, LLC OPINION BY v. Record No JUSTICE G. STEVEN AGEE January 11, 2008 JANET SIMMONS

, J.S.C. J.S.C., at a motion term of Part -7. of this Court, to be held in and for the County of New PRESENT: HON. BORN TO BUILD LLC, Index No.

IN THE SUPREME COURT OF FLORIDA COMMENTS OF THE HOUSING UMBRELLA GROUP OF FLORIDA LEGAL SERVICES, INC.

RIGHTS OF TENANTS WHEN THEIR LANDLORD IS IN FORECLOSURE OR HAS BEEN FORECLOSED ON

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Green Hills (USA), LLC v Marjam of Rewe Street, Inc NY Slip Op 30108(U) January 9, 2019 Supreme Court, Kings County Docket Number: /2015

FILED: NEW YORK COUNTY CLERK 11/18/ :12 PM INDEX NO /2014 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/18/2014

MANDATORY RENT DEPOSITS?; TENANTS USE DELAYING TACTICS TO GAIN EDGE IN CURRENT SYSTEM 1

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Court of Appeals of Ohio

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

THE STATE OF NEW HAMPSHIRE SUPREME COURT

STATE OF VERMONT ENVIRONMENTAL COURT. } Appeal of Robustelli Realty } Docket No Vtec } Decision on Cross-Motions for Summary Judgment

EVICTIONS including Lockouts and Utility Shutoffs

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO. Plaintiff-Appellee : C.A. CASE NO

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2010 MT 23N

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

CHAPTER 286. (Senate Bill 396)

TITLE 27 LEASEHOLD MORTGAGE OF TRIBAL TRUST LAND TABLE OF CONTENTS. CHAPTER General Purpose Statement Purpose 1

RIGHTS OF TENANTS WHEN THEIR LANDLORD IS IN FORECLOSURE OR HAS BEEN FORECLOSED ON. Oda Friedham, Esq. The Legal Aid Society Bronx, New York

ENTRY ORDER SUPREME COURT DOCKET NO JULY TERM, 2018

Third District Court of Appeal State of Florida

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM v. Case No. 5D

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Beatrice J. Brickhouse, District Judge

IN RE MOTION TO RESCIND ) NEW JERSEY COUNCIL ON BOROUGH OF ALLENDALE'S ) AFFORDABLE HOUSING SUBSTANTIVE CERTIFICATION ) OPINION COAH DOCKET #

ALBERTA REGULATION 480/81 Land Titles Act FORMS REGULATION

FILED: NEW YORK COUNTY CLERK 05/22/2012 INDEX NO /2012 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/22/2012

March Recommended Practices New York State Land Title Association, Inc. TABLE OF CONTENTS GENERAL PRACTICES

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT. v. Case No. 5D

Assembly Bill No. 140 Committee on Commerce and Labor

IN THE SUPREME COURT OF FLORIDA

Case 8:13-bk MGW Doc 391 Filed 07/01/14 Page 1 of 12

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

IN THE COMMONWEALTH COURT OF PENNSYLVANIA. James Walsh, : Appellant : : v. : NO C.D : East Pikeland Township : Argued: June 5, 2003

Matter of Elena Melius Found., Inc NY Slip Op 33288(U) October 6, 2007 Supreme Court, Nassau County Docket Number: / Judge: Geoffrey J.

GREATER ATLANTIC LEGAL SERVICES, INC.

STATE OF MICHIGAN COURT OF APPEALS

P.F. WOOD, APPELLANT, V. C. MANDRILLA, RESPONDENT. SAC. NO SUPREME COURT

Borowski v. STEWART TITLE GUARANTY COMPANY, Wis: Court of Appeals, 1st...

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA

FILED: NEW YORK COUNTY CLERK 02/05/ :48 PM INDEX NO /2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/05/2018

Daniel M. Schwarz of Cole Scott & Kissane, P.A., Plantation, for Appellants.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

BACKGROUND. Earnest money dispute. Should the money be released to the seller? Why should the

ADDRESSES MUST BE CORRECT

Illinois Official Reports

How to Answer Your Eviction Case

This Commitment shall not be valid or binding until countersigned by a validating officer or authorized signatory.

Basic Eviction Defense Training

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 21 May 2013

M J SAUER/OWNER NO CA-0197 VERSUS COURT OF APPEAL SANDRA JOHNSON FOURTH CIRCUIT STATE OF LOUISIANA * * * * * * *

STATE OF MICHIGAN COURT OF APPEALS

IN THE COURT OF APPEALS OF IOWA. No / Filed February 23, Appeal from the Iowa District Court for Wapello County, Michael R.

MEMORANDUM AND ORDER Case No. 1:17-cv FB Case No. 1:17-cv FB. Appellant, -against-

VILLAGE OF SAGAPONACK. PO Box Montauk Highway Sagaponack, NY (FAX)

ORDINANCE #05/05 PROCEDURES GOVERNING LEASEHOLD MORTGAGES MADE TO SECURE LOANS UNDER THE FOND DU LAC SECTION 184 LOAN PROGRAM

THE TAX SALE PROCESS

PRESENT: Lemons, Goodwyn, Millette, Mims, and Powell, JJ., and Russell and Koontz, S.JJ.

H 7816 AS AMENDED S T A T E O F R H O D E I S L A N D

CIVIL CASES COUNTY COURT

IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO

GREATER ATLANTIC LEGAL SERVICES, INC.

Transcription:

Grand Palm (NY) LLC v Kamhi 2014 NY Slip Op 30877( April 7, 2014 Sup Ct, Ne York County Docket Number: 111981/2009 Judge: Eileen A. Rakoer Cases posted ith a "30000" identifier, i.e., 2013 NY Slip Op 30001(, are republished from various state and local government ebsites. These include the Ne York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.

[* 1] l!llj!ll------...!llb""------------------- SCANNED 1?N4/8/2014,""".---------ll!l'l!'!"'- '!"!,l!~,,,,!!1.. SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: ga f< o \.<-' 1Z IC. PART / 5~ Justice INDEX NO. //1'1E?//cJ<t MOTION DATE I ~ 7&'#'"-~v -}(A,-?'#/_, 7~<... MOTION SEQ. NO. MOTION CAL. NO. The folloing papers, numbered 1 to ere read on this motion to/for.. - -z 0 <C a: (!) o- z i== ~...J ::::>...J..., 0 0 LL I- c :::c l a: a: a: 0 ~LL. a: > -I...J ::::> LL 1- u a. a: <C u 2 -- 0 Notice of Motion/ Order to Sho Cause - Affidavits - Exhibits... I, 2.. Anserin g Affidavits - Exhibits -------------- Rep I yin g Affidavits -----------------~ Cross-Motion: D Yes ~ No Upon the foregoing papers, it is ordered that this motion Dated: DECIDED M ACCORDMCE rrn ~;CCfJf~.~~t~Y~~;~ DEC-t~~ON I ORDER PAPERS NUMBERED Fl LED APR 0 8 2014 COUNTY CLERK'S OFFICE NEW YORK c_f#j.t~,_._~_,_1~_1 ~~- : HON. en:en A. RAKOWE.fi.c... Check one: 0 FINAL DISPOSITION ~ NON-FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 REFERENCE

[* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 15 ------------------------------------------------------------------.:X:: GRAND PALM (NY) LLC, - v - Plaintiffs, STEVEN KAMHI, MAURICE ENBAR, 23-123RD STREET LLC, 60 WEST 124 LLC, CRAIG MAR.:x::, BOARD OF MANAGERS - THE SARA TOGA CONDOMINIUM, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD LIENS, NEW YORK CITY DEPARTMENT OF HOUSING & PRESERVATION & DEVELOPMENT, BANK OF AMERICA, N.A., MICHELE GOODSTEIN, CITY NATIONAL BANK, and CLAIRE M. KAMHI, Defendants. ------------------------------------------------------------------)( HON. EILEEN A. RAKOWER, J.S.C. Index No. 111981/2009 DECISION and ORDER Mot. Seq. 15 FILED APR 0 8 2014 COUNTY CLERK'S OFFICE NEW YORK Plaintiff-mortgagee, Grand Palm (NY) LLC ("Grand Palm" or "Plaintiff'), the purchaser at a foreclosure sale held on January 22, 2014, brings this action to obtain possession of the foreclosed premises, located at 330 East 75th Street, Unit l lj, Ne York, Ne York, 10021, Block 01449, Lot 1100, Borough of Manhattan, City, State, and County of Ne York (the "Premises"). Plaintiff claims that defendantmortgagor, Steven Kamhi ("Kamhi"), and Craig Marx ("Marx") (collectively, "Defendants"), the Premises' occupant, refuse to surrender the Premises to Plaintiff, even though Defendants' interests in the Premises ere extinguished upon the foreclosure judgment and sale. The underlying foreclosure action as brought to foreclose a mortgage made

[* 3] by Plaintiff's predecessor in interest to Kamhi. Although Kamhi appears to have occupied the Premises, from time to time, along ith Marx, Marx no claims to be the sole tenant and occupant at the Premises. Grand Palm no moves, pursuant to RP APL 221 and CPLR 5107, for a Writ of Assistance directing the Sheriff to put Plaintiff in possession of the Premises and/or ejecting defendants Craig Marx and/or Steven Kamhi therefrom, and for an Order directing Marx and/or Kamhi to pay Plaintiff use and occupancy during their unlaful possession of the Premises and holding Kamhi and/or Marx in contempt for their illful violation of the Court's Order directing that Plaintiff be let into possess10n. Marx appeared, prose, for oral argument in opposition to the rit of assistance on March 18, 2014. "The rit of assistance, so far as foreclosures are concerned... may be had to enforce any judgment or order aarding the possession of real property other than the common judgment in a direct action for land. A rit of assistance is, in ordinary cases, the process for giving possession of land under an adjudication and ill be granted upon the sale being confirmed, and proof that the purchaser has received a deed of conveyance from the master, hich has been shon to the party in possession accompanied by a demand of possession, hich has been refused." (Kilpatrick v. Argyle Co., 199.A.D. 753, 758 [1st Dep't, 1922]) (citations omitted); (Hudson Riv. Park Trust v. Basketball City USA, LLC, 22 A.D.3d 422, 423 [1st Dep't 2005]) ("Inasmuch as the court's final order and judgment affected the possession, enjoyment or use of real property, and directed delivery of possession of the property to the party entitled to it, the court's issuance of a rit of assistance pursuant to RP APL 221 as appropriate."). Section 221 of the Real Property Actions and Proceedings La provides, in relevant part: Where a judgment affecting the title to, or the possession, enjoyment or use of, real property allots to any person a distinct parcel of real property, or contains a direction for the sale of real property, or confirms such an allotment or sale, it also may direct the delivery of the 2

[* 4] possession of the property to the person entitled thereto, subject to the rights and obligations set forth in thirteen hundred five of this chapter. If a party, or his representative or successor, ho is bound by the judgment, ithholds possession from the person thus declared to be entitled thereto, the court, by order, in its discretion... may require the sheriff to put that person into possession. A purchaser at a foreclosure sale may properly be granted a rit of assistance under RP APL 221 here the defendant as party to the underlying foreclosure action, has been served ith a copy of the judgment of foreclosure and sale, and as duly apprised of the sale of the property. (Tri-Land Properties, Inc. v. 115 West 28th St. Corp., 267 A.D.2d 142 [1st Dep't 1999]). Hoever, here a purchaser at a foreclosure sale accepts rent for premises so purchased, he recognizes the person paying rent as a tenant, and his right to a rit of assistance is gone. (Blackmer v. Dargan, 189 N.Y.S. 582 [N.Y. Sup. Ct. 1921]). "The determination hether to grant a rit of assistance lies ithin the discretion of the trial court, and it must give consideration to the relative equities of the particular situation." (Morgan v. Morgan, 2 Misc. 3d 101 l(a) (N.Y. Sup. Ct. 2004). Additionally, RP APL 1305(2), effective January 14, 2010, changes prior la by giving residential tenants a right to remain in foreclosed premises, for the remainder of the lease or 90 days, hichever is greater, so long as the rent is not substantially less than the fair market rent. Thus, the rights of a residential tenant cannot be cut off by serving the tenant as a party to the foreclosure proceeding, although the tenant of one unit hich is not subject to regulatory control may be removed after 90 days if the ultimate purchaser desires the unit as his or her primary residence. For purposes ofthis provision, the term "tenant" is defined as "any person ho at the time the notice required by subdivision four of section thirteen hundred three of this article... is a party to an oral or implied rental agreement ith the mortgagor and obligated to pay rent to the mortgagor or such mortgagor's representative, for the use or occupancy of one or more delling units of a residential real property." RPAPL 1305(1)(c). Here, Plaintiff argues that it obtained a judgment of foreclosure and sale on 3

[* 5] October 21, 2013, hich "extinguishes all rights, claims, liens, and interests that any defendant may have had in the Premises." Plaintiff argues that Defendants ere named as parties to the underlying foreclosure action, and ere served ith Judgement of Foreclosure and Sale, and ere duly apprised of the sale of the property. Plaintiff further argues that Defendants have refused Plaintiffs demands for possession, hich ere sent by letter, dated February 21, 2014, to Marx and to counsel for Kamhi, and received on February 25, 2014. As a result, Plaintiff contends, Plaintiff is entitled to a rit of assistance. Kamhi has failed to respond to Plaintiffs demand for possession, or to appear on Plaintiffs motion. Marx, in turn, claims to occupy the Premises as a residential tenant ith no onership interest in the residential property at issue, based on the terms of a purported lease agreement ith Kamhi. Marx claims to have entered into a lease agreement, as tenant, ith Kamhi, as landlord, hereby Marx as obligated to pay Kamhi $2,000 in rent for the Premises, plus an additional $500 for an option to purchase the Premises. Marx claims that his tenancy as not extinguished by the Judgement of Foreclosure and Sale because Marx is a residential tenant hose tenancy came into existence before Plaintiff purchased the Premises upon foreclosure, and that, as a result, Plaintiff cannot compel possession. The claimed lease agreement has not yet expired by its alleged terms. Here, the purported lease agreement as not disclosed until years after the foreclosure proceeding as commenced. Indeed, Kamhi repeatedly represented that he resided at the Premises, and not that he leased them. Furthermore, although Marx as named as a defendant in the underlying foreclosure action, Marx failed to appear in that action and made no attempt to assert the legitimacy of his tenancy in opposition to the foreclosure proceedings underlying Plaintiffs claim. (Coronet Capital Co. v. Spodek, 202 A.D.2d 20, 28 [1st Dep't 1994]) ("The inordinate and unexplainable delay in asserting the presence of a lease by defendant casts serious doubts as to the authenticity of the agreement"). While there is a question as to hether the rent purportedly oed under the lease agreement in question is substantially less than fair market value for the Premises, it is undisputed that Marx has paid no rent or use and occupancy for the subject premises for quite some time, and Marx does not contend that he has tendered any such payment. Accordingly, the parties are directed to appear for a prompt hearing to examine the validity of the purported lease agreement, and if Marx is determined to be a 4

[* 6] ~~--------------------- - legitimate residential lessee, Plaintiff may present evidence, in admissible form, establishing the fair market value of the premises. Wherefore, it is hereby, ORDERED that the parties are to appear on April 23, 2014, at 9:30 A.M. to be heard on this matter. This constitutes the decision and order of the Court. All other relief requested is denied. Dated: April 'f,-2014 Eileen A. Rakoer, J.s:t-. FILED APR 0 8 2014 COUNTY CLERK 1 S OFFICE NEW YORK 5