Myrtle 684, LLC v. Tauber

• Decision Date: 23 December 2020
• Docket Number: Index No. 519536/16,2018–05474
• Citation: 139 N.Y.S.3d 252,189 A.D.3d 1431
• Parties: MYRTLE 684, LLC, plaintiff-appellant, v. Samuel TAUBER, respondent, Investors Bank, defendant- appellant, et al, defendants.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1431
139 N.Y.S.3d 252

MYRTLE 684, LLC, plaintiff-appellant,
v.
Samuel TAUBER, respondent,

Investors Bank, defendant- appellant, et al, defendants.

2018–05474
Index No. 519536/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 16, 2020
December 23, 2020

139 N.Y.S.3d 253

Fidelity National Law Group, New York, N.Y. (Michael C. Sferlazza and Donald G. Davis of counsel), for plaintiff-appellant.

Cuddy & Feder LLP, White Plains, N.Y. (Joshua E. Kimerling of counsel), for defendant-appellant.

Law Office of Bernard D'Orazio & Associates, P.C., New York, NY, for respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, BETSY BARROS, JJ.

139 N.Y.S.3d 254

DECISION & ORDER

In an action, inter alia, pursuant to RPAPL article 15 for declaratory relief regarding a judgment lien held by the defendant Samuel Tauber against certain real property in Brooklyn, the plaintiff and the defendant Investors Bank separately appeal from an order and judgment (one paper) of the Supreme Court, Kings County (Lawrence Knipel, J.), dated April 2, 2018. The order and judgment, insofar as appealed from by the plaintiff, denied that branch of the plaintiff's motion which was for summary judgment for a declaration in its favor and on the complaint insofar as asserted against the defendant Samuel Tauber, and insofar as appealed from by the defendant Investors Bank, denied the motion of the defendant Investors Bank for summary judgment on its cross claim for declaratory relief against the defendant Samuel Tauber, and, insofar as appealed from by the plaintiff and the defendant Investors Bank, granted the cross motion of the defendant Samuel Tauber for summary judgment for a declaration in his favor and dismissing the complaint insofar as asserted against him and all cross claims insofar as asserted against him by the defendant Investors Bank, and declared that those parties which recorded interests in the real property at issue after the defendant Samuel Tauber's judgment was docketed took such interests subject to a judgment lien in the sum of $217,245, together with accumulating interest.

ORDERED that the order and judgment is affirmed insofar as appealed from, with one bill of costs to the defendant Samuel Tauber.

In November 2016, the plaintiff, the owner of real property in Brooklyn (hereinafter the property) which is encumbered by a judgment lien held by the defendant Samuel Tauber, commenced this action pursuant to RPAPL article 15 against, among others, Tauber and the defendant Investors Bank, which holds a mortgage on the property subject to the judgment lien. At issue is the amount of the judgment lien. The plaintiff seeks, inter alia, a judgment declaring that the judgment lien held by Tauber against the property is limited to the amount of $16,050.

Following discovery, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against Tauber. Investors Bank had asserted a cross claim against Tauber for similar declaratory relief as to the amount of the judgment lien and moved for summary judgment on its cross claim against Tauber. Tauber cross-moved for summary judgment dismissing the complaint and Investors Bank's cross claim insofar as each was asserted against him, and for a declaration in his favor, contending that the judgment lien was in the amount of $217,245, with accumulating interest, even though the judgment docket index incorrectly recites the judgment amount to be only $16,050.

By order and judgment dated April 2, 2018, the Supreme Court, inter alia, denied those branches of the separate motions of the plaintiff and Investors Bank insofar as they sought relief against Tauber, granted Tauber's cross motion, and declared that those parties which recorded interests in the property after Tauber's judgment was

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