Lake Wildwood Props. v. Horseblock Rd. Props.

• Citation: 2019 NY Slip Op 33186 (U)
• Decision Date: 23 October 2019
• Docket Number: Index No.: 23912/2010
• Parties: Lake Wildwood Properties, Inc., Plaintiff, v. Horseblock Road Properties, LLC, Thaler & Gertler, LLP, JDM Capital Funding, LLC, Eugene Fernandez, as Trustee of the Eugene Fernandez Revocable Living Trust, Eugenio Fernandez, C.A.S.S. Holdings, LLC, by Eugene Fernandez in his capacity as Managing Member, The Phen Group, LLC, Old Field Properties, LLC, Lake Avenue Properties, LLC, Global Homes II, LLC, Global Home Group, LLC, Half Hollow Estates, LLC, People of the State of New York, Defendant.
• Court: New York Supreme Court

2019 NY Slip Op 33186(U)

Lake Wildwood Properties, Inc., Plaintiff,
v.
Horseblock Road Properties, LLC, Thaler & Gertler, LLP,
JDM Capital Funding, LLC, Eugene Fernandez,
as Trustee of the Eugene Fernandez Revocable Living Trust,
Eugenio Fernandez, C.A.S.S. Holdings, LLC,
by Eugene Fernandez in his capacity as Managing Member,
The Phen Group, LLC, Old Field Properties, LLC,
Lake Avenue Properties, LLC, Global Homes II, LLC,
Global Home Group, LLC, Half Hollow Estates, LLC,
People of the State of New York, Defendant.

Index No.: 23912/2010

SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY

October 23, 2019

COPY

Short Form Order

PRESENT: WILLIAM B. REBOLINI Justice

Motion Sequence No.: 005; MDTD
Motion Date: 5/1/19
Submitted: 8/7/19

Attorneys [See Rider Annexed]

Upon the following papers read on this application by defendants Horseblock Road Properties, LLC and Eugene Fernandez for an order vacating the Judgment of Foreclosure and Sale dated January 24, 2012, for an order invalidating the notice of sale, for a stay of the foreclosure sale scheduled for April 23, 2019, and for an order pursuant to CPLR 2221 and 5015 for reargument and modification of the Judgment of Foreclosure and Sale dated January 24, 2012; Order to Show Cause dated April 18, 2019 and supporting papers, together with Exhibits A through S submitted therewith; Affirmation in Opposition dated May 6, 2019 and Exhibits A through W annexed thereto; and Attorney Affirmation dated July 31, 2019; it is

ORDERED that the motion by defendants Horseblock Road, LLC and Eugene Fernandez is granted to the extent that the plaintiff shall submit an amended Order of Reference and include therein, inter alia, a provision that defendants be afforded an opportunity to submit evidence to the

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referee in computing the amount due the plaintiff and that such evidence be submitted to the referee within thirty (30) days from date of service of the order of reference with notice of entry; and it is further

ORDERED that within ninety (90) days from the date of the Order of Reference, that plaintiff submit an amended judgment of foreclosure and sale; and it is further

ORDERED that the motion by defendants' to invalidate the notice of sale and for a stay of the foreclosure sale is denied as moot.

In this foreclosure action, an order of reference was granted on October 19, 2011 and a judgment of foreclosure and sale was granted on January 24, 2012. A foreclosure sale was scheduled for April 23, 2019. On April 18, 2019, after a hearing was held before this court, an order to show cause containing a stay of the foreclosure sale was issued. In that application, defendants Horseblock Road, LLC ("Horseblock") and Eugene Fernandez (collectively referred to herein as "defendants") seek an order vacating the Judgment of Foreclosure and Sale dated January 24, 2012 and invalidating the notice of sale, for a stay of the foreclosure sale scheduled for April 23, 2019, and for an order pursuant to CPLR 2221 and 5015 for reargument and modification of the Judgment of Foreclosure and Sale dated January 24, 2012.

By way of background, prior to the granting of a judgment of foreclosure and sale, the parties entered into a stipulation dated January 18, 2012, that was so-ordered by the court, providing for defendants to make certain payments to plaintiff and as part of that stipulation defendants agreed to the entry of the judgment of foreclosure and sale. After the judgment of foreclosure and sale was issued and prior to a foreclosure sale scheduled for July 17, 2012, another agreement was entered into between plaintiff and defendants and RCS Management, LLC ("RCS"), who was a proposed third-party purchaser of plaintiff's interest in the subject mortgage and note. The new agreement dated July 13, 2012, provided drat RCS would make certain payments to plaintiff, RCS was an additional obligor on the mortgage, and defendant Horseblock issued a promissory note to plaintiff in the amount of $100,000.00 together with prepaid interest in the amount of $16,000. As part of that agreement, the foreclosure sale was cancelled but the action remained open and a foreclosure sale could only be re-noticed in the event of a default in the payments due under the agreement. It is undisputed that plaintiff and defendant Horseblock agreed on July 16, 2014 to extend the maturity date of the mortgage and note to January 5, 2015 although Horseblock and RCS were behind on their monthly interest payments in the amount of $14,805.88. It is further undisputed that RCS and defendants did not fulfill certain of their obligations under the July 13, 2012 agreement. Plaintiff claims that the only payments made by either RCS or defendants pursuant to the July 13, 2012 agreement were interest payments or presumably payments made by defendants on the $100,000 promissory note. Defendants, however, assert that additional sums towards the principal amount due and owing were paid on the mortgage after the entry of the judgment of foreclosure and sale. Defendants proposed to satisfy the mortgage in full for $1,091,913.90, which is the amount they claim is due and owing on the mortgage. Plaintiff, however, rejects defendants' assertions as to the actual amount...