1644 Broadway LLC v. Jimenez

• Citation: 993 N.Y.S.2d 645 (Table)
• Decision Date: 30 May 2014
• Docket Number: No. 70096/13.,70096/13.
• Parties: 1644 BROADWAY LLC, Petitioner, v. Bienvenido JIMENEZ d/b/a Moca Deli Grocery, Respondent.
• Court: New York Civil Court

993 N.Y.S.2d 645 (Table)

1644 BROADWAY LLC, Petitioner
v.
Bienvenido JIMENEZ d/b/a Moca Deli Grocery, Respondent.

No. 70096/13.

Civil Court, City of New York, Kings County.

May 30, 2014.

Stern and Stern Law Offices, Brooklyn, Attorney for Petitioner.

Peter J. Pruzan, Esq. New York, Attorneys for Respondent.

Opinion

HARRIET L. THOMPSON, J.

On April 20, 2006, Keesha Fields executed a promissory note for the sum of the purchase price of the premises known as 1644 Broadway, Brooklyn, New York 11207 and granted the Lender, JP Morgan Chase Bank, NA, its successes and assigns, a first mortgage as security for the payment of the promissory note. During her ownership, Keesha Fields defaulted in the payment of the promissory note and the Lender, in accordance with the terms and conditions of the note and mortgage, commenced an action in the Supreme Court of the State of New York in the County of Kings to foreclose on the mortgage. The action was commenced by the filing of a Notice of Pendency and the service of the Summons and Verified Complaint.

JPMorgan Chase Bank, N.A. assigned the mortgage and note to Home Sales, Inc; then, subsequently, Home Sales, Inc. assigned said mortgage and note to Eastern Savings Bank, FSB. A Judgment of Foreclosure and Sale, dated September 19, 2012, was entered in the Supreme Court on behalf of Eastern Savings Bank, FSB which ordered and adjudged, inter alia, that the above-described property be sold in one parcel and in “as is” condition at a public auction at the footsteps of the courthouse located at 360 Adams Street, Brooklyn, New York.

In accordance with the Judgment of Foreclosure and Sale, a Referee was appointed by the court to give notice of the sale, to conduct the public auction, to offer said mortgaged lands and premises to the highest bidder and to sell said mortgage and land to the highest bidder as set forth in the court order.

Pursuant to the Judgment of Foreclosure and Sale, all rights, title and interest of Eastern Savings Bank, FSB, in consideration of the sum of $461,000.00, was transferred to the highest bidder at the public auction, namely, Abdul Salem Mohamed Mused.

According to the Referee's Deed, it appears that the Respondent, “MORA” DELI & GROCERY, located at 1644 Broadway, 1st Floor, Brooklyn, New York, was a named party in the foreclosure action. The aforementioned Referee's Deed, dated April 2, 2013 and recorded in the City Registry of the City of New York on April 22, 2013 under CRF No. 2013000158422 by a NYS title company, has the purported name of the Respondent on Schedule “B” annexed thereto.

On the same date, on April 2, 2013, Abdul Salem Mohamed Mused transferred all rights, title and interest in the subject premises to 1644 Broadway, LLC for no consideration and the deed was duly recorded on April 22, 2013 in the City Registry under CRF No. 2013000158423 by a NYS title company.

PROCEDURAL AND CASE HISTORY OF THIS SUMMARY PROCEEDING

On April 4, 2013, 1644 Broadway LLC, by Muhammed Ali, a “member”, executed a “Commercial 10–Day Notice after Foreclosure” seeking to recover possession of the commercial store and basement occupied by the Respondents and asserts the legal capacity to commence this proceeding.

The 10–Day Notice to Quit states that the landlord elects to terminate the occupancy of the commercial tenant and unless the commercial tenant vacates the subject premises by the effective date of April 25, 2013, the termination date, the Petitioner would commence summary proceedings pursuant to Article 7 of the RPAPL to remove all occupants from possession for holding over. The notice specifically states that it is served in compliance with RPAPL § 713[5] on the grounds that the property had been sold in foreclosure and the new owner seeks to recover possession of the subject premises.

Annexed to the “Commercial 10–Day Notice after Foreclosure” is a copy of the original Referee's Deed of Foreclosure certified pursuant to CPLR § 2105 by the closing attorney, Stanley Israel, Esq., dated April 2, 2013. Additionally annexed is a second deed, dated April 2, 2013, from the highest bidder, Abdul Salem Mohamed Mused to the Petitioner, 1644 Broadway LLC. This deed is a purported copy of the original recorded deed and does not contain any certification. The Affidavit of Service of Jessie Perez, a licensed Process Server, affirms that service was effectuated on April 8, 2013 by substituted service on “John Doe” who refused his name but was an employee authorized to accept service for the aforementioned corporation.

When the Respondents failed to voluntarily vacate, a Notice of Petition and Petition was allegedly served on the Respondents by substituted service on May 8, 2013, again, on “John Doe,” an employee authorized to accept service.

The petition was noticed to be heard on May 20, 2013 in Commercial Part 52. A review of the court record shows that this case was adjourned to July 2, 2013 for trial and for the Respondents to retain counsel. On June 4, 2013, the Respondents interposed a Notice of Appearance and Attorney Verified Answer, which avers the following affirmative defenses to the petition, to wit: improper service of process of the Notice to Terminate and the Notice of Petition and Petition; the Petitioner is not a party entitled to bring this proceeding pursuant to RPAPL § 713[5] ; the original deed delivered pursuant to the Judgment of Foreclosure and Sale was not “exhibited to the Respondent”; the Petition fails to state a cause of action; the purported certified deed is not properly certified and as an absolute defense, the Respondent is in possession with a valid written lease agreement.

The case was adjourned from July 2, 2013 to August 5, 2013 for trial in accordance with a Decision and Order of the Hon. Reginald Boddie. The contentions were that the Respondent had retained counsel too late and should be denied any adjournment.

The court file also shows that on August 1, 2013, the Respondent submitted an Order to Show Cause to the court returnable on August 1, 2013 seeking summary judgment pursuant to CPLR § 3212 and for a stay of the trial on August 5, 2013

In a two-attorney Stipulation, dated August 1, 2013, the parties agreed to a briefing schedule in which the Petitioner agreed to serve opposition papers on or before October 18, 2013 and the Respondent agreed to serve reply papers on or before October 30, 2013. In addition, both parties agreed to oral argument before the undersigned judge.

On the adjourn date of October 31, 2013, after oral argument, this matter was referred to the undersigned and submitted for a final disposition.

While sub judice, on February 5, 2014, the attorney for the Petitioner, Stern & Stern, Esqs., moved this court by Notice of Motion, returnable on February 14, 2014, for an Order to compel the Respondent to make interim payments of use and occupancy pending a determination of the summary judgment motion.

The Respondent moves for leave under CPLR § 3212(b) seeking judgment as a matter of law and the dismissal of the petition. The Respondent asserts that the Petitioner is not Abdul Salem Mohamed Mused, the highest bidder at the foreclosure sale, and is therefore not a proper party to bring this proceeding. In addition, the Respondent argues that the Petitioner, 1644 Broadway LLC does not have standing to maintain the proceeding. Next, the Respondent attacked the sufficiency of the claims in the predicate notice that the certified deed was “exhibited” to the Respondent. In the supporting Affidavit of BIENVENIDO JIMENEZ, the Respondents claim that the original deed was never exhibited to him or to an authorized agent of the business. Additionally, the Respondent states that the attorney certification is defective based on the fact that “no page of the copy of deed bares a certification.” (Affirmation of Peter Pruzan, Esq., at ¶ 14). Lastly, the Respondent states that the petition fails to state a cause of action, but does not articulate the basis for such claim.

Most importantly for purposes of this motion, in the supporting Affidavit by BIENVENIDO JIMENEZ, in paragraph 2, and as shown in Respondent's Exhibit 3 to the motion, there is a commercial lease agreement dated September 1, 2013 between Harold Willis, as Landlord, and BIENVENIDO JIMENEZ, as Tenant, that commenced on October 1, 2013 and terminates on September 30, 2023. Standing on this lease, the Respondents contend that BIENVENIDO JIMENEZ and the restaurant may not be evicted in this type of proceeding because he has a lease, was not named in the foreclosure action to terminate his leasehold interest and hence, the lease is still effective and the case should be dismissed.

The Petitioner, in opposition, asserts that Muhammed Ali, as President of the Petitioner–Corporation, presented the deed personally to the Respondent after the purchase of the premises. He claims to have displayed the deed to the person working behind the counter of the store and was informed that the owner was in Santo Domingo. He also attests to exhibiting the deed to the Respondent in this proceeding on a later date. The Petitioner disputes the fact that the Respondent was not named in the foreclosure action and asserts that the Notice of Pendency, clearly missing from the exhibits, named the Respondent in the action.

The Petitioner also attacks the validity of the lease. The Petitioner specifically...