RL 900 Park, LLC v. Ender, 1:18-cv-12121 (MKV)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtMARY KAY VYSKOCIL, United States District Judge
PartiesRL 900 PARK, LLC, Plaintiff, v. SIMONE ENDER, et al. Defendants, -and- CENTRAL PARK PARTNERS NY LLC Intervenor-Defendant.
Docket Number1:18-cv-12121 (MKV)
Decision Date25 February 2021

RL 900 PARK, LLC, Plaintiff,
v.
SIMONE ENDER, et al.
Defendants,
-and-
CENTRAL PARK PARTNERS NY LLC Intervenor-Defendant.

1:18-cv-12121 (MKV)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 25, 2021


OPINION AND ORDER

MARY KAY VYSKOCIL, United States District Judge:

This is a commercial mortgage foreclosure case brought by RL 900 Park, LLC ("RL"), an entity related to Rok Lending, LLC, which purports to be the assignee of a mortgage and the holder of the related promissory note both entered into by Defendant Simone Ender. The mortgage encumbers a New York City condominium originally owned by Ender as an investment and rental property. After the case had been pending for more than year and before any judgment was entered, title to the property at issue was transferred to Intervenor-Defendant Central Park Partners NY LLC ("CPP"). All Defendants other than CPP have defaulted or stipulated to judgment against them.

Before the Court are RL and CPP's cross-motions for summary judgment. By its Motion, RL seeks a final judgment of foreclosure against all Defendants, which would then allow the case to proceed to a foreclosure sale. In doing so, RL seeks to strike substantially all affirmative defenses raised by CPP as a bar to judgment. CPP, on the other hand, seeks dismissal of this case in its entirety on the basis of certain of those affirmative defenses. Each of RL and CPP

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also have filed motions for Rule 11 sanctions against the other, alleging that the other has raised frivolous legal arguments.

For the reasons that follow, RL's motion for summary judgment is DENIED, CPP's motion for summary judgment is GRANTED, and the cross-motions for sanctions are DENIED.

BACKGROUND

The facts as stated herein are drawn from the Parties' Statements of Material Facts pursuant to Local Rule 56.1. See Plaintiff's Rule 56.1 Statement in Support of its Motion, ECF No. 235 ("Pl. Facts"); Central Park Partners' Counterstatement of Facts in Opposition, ECF No. 241 ("Def. Counter"); Central Park Partners' Statement of Facts in Support of its Motion, ECF No. 242 ("Def. Facts"). Citations to the Local Rule 56.1 Statements incorporate by reference the documents and deposition testimony cited therein.

RL failed to file a Counterstatement of Facts along with its Opposition to CPP's Motion. As a result, the Court accepts the facts as stated in CPP's Statement of Facts as true unless contradicted expressly by the content of RL's previous Local Rule 56.1 filings. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) ("If the opposing party then fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted." (citing S.D.N.Y. Local Rule 56.1(c))); Biberaj v. Pritchard Indus., Inc., 859 F. Supp. 2d 549, 553 n.3 (S.D.N.Y. 2012) ("A nonmoving party's failure to respond to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible." (internal quotation mark omitted) (quoting T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009))). Similarly, where facts stated in a party's Local Rule 56.1 Statement are supported by testimonial or documentary evidence, and denied with only a conclusory statement by the other party, the Court finds such facts to be true. See Local Rule 56.1(c), (d).

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In February 2018, Defendant Simone Ender entered into a Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (the "Mortgage") with Rok Lending, LLC. See Pl. Facts ¶ 1. The Mortgage provides in relevant part that "the proceeds of the loan are to be used solely for business or commercial purposes and not for personal, family or household use." Pl. Facts ¶ 4. The mortgage was recorded on February 28, 2018, and encumbers a condominium located at 900 Park Avenue, Unit 6A, New York, New York (the "Property"). Pl. Facts ¶¶ 2-3. Rok Lending later assigned the Mortgage to RL and recorded the assignment with the New York County clerk. Pl. Facts ¶ 7.

In the fall of 2018, Ender defaulted on the Mortgage by failing to make payments as due in September and has not made any further payments on the Mortgage since then. Pl. Facts ¶ 14. Ender received two Notices of Default in October and November 2018, from Rok Lending and RL respectively, each specifying a period in which to cure her defaults (i.e. pay the amounts past due on the Mortgage). Pl Facts ¶¶ 17-18. When Ender failed to cure the defaults by the deadlines included in the notices, RL accelerated the loan pursuant to the terms of the Mortgage and commenced this action. Pl. Facts ¶¶ 19-20. The entire amount of the loan is now due and payable. Pl. Facts ¶¶ 15, 19.

This action to foreclose on the Property was commenced with the filing of RL's complaint on December 28, 2018. Pl. Facts ¶ 20; see also Complaint, ECF No. 1. In the operative complaint, RL names as Defendants all those it believed feasibly could claim any interest in the Property. They are:

- Simone Ender, both individually and as Executrix of the Estate of Paul Anthony Ender (Amended Complaint, ECF No. 148, ¶ 5);
- Monique Ender Silberman, daughter of Paul Anthony Ender (Amended Complaint ¶ 6);
- Brigette Laing, daughter of Paul Anthony Ender (Amended Complaint ¶ 7);

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- Danuta Maryiak, Guardian for minor Emelye Ender, who is a daughter of Paul Anthony Ender (Amended Complaint ¶ 8);
- Jack and Joan Mann, the tenants residing at the Property at the time this action was commenced (Amended Complaint ¶ 9);
- the Board of Managers of the Park 900 Condominium (the "Board of Managers"), which is the acting association that manages the condominium where the Mortgaged Property is located, and which has a lien on the Mortgaged Property for common charges unpaid by Ender (Amended Complaint ¶ 10);
- the New York City Department of Finance (the "NYCDF"), the taxation agency for the State of New York , which has or may have a lien on the Property related to unpaid taxes (Amended Complaint ¶ 11); and
- the Unknown Tenants who, unknown to RL, may reside at the Property or hold other leasehold, tenancy, possessory, or other interests.

During the pendency of this litigation, certain Defendants settled the claims asserted by RL or otherwise stipulated to the entry of judgment against them. These Defendants include Danuta Maryniak, as guardian for Emelye Ender [ECF No. 78], Jack and Joan Mann [ECF Nos. 63, 95], and the Board of Managers [ECF No. 176]. All other Defendants were served and then defaulted. Plaintiff obtained certificates of default against them. See ECF Nos. 42 [Ender], 47 [Silberman], 71 [Laing], 163 [NYCDF].

Ender and Silberman moved to vacate their defaults. See Motion to Vacate Default, ECF No. 79. In an Order dated January 3, 2020, Judge Analisa Torres denied the request to vacate the defaults, noting that the defaults by Ender and Silberman were "plainly willful." See RL 900 Park LLC v. Ender, No. 18-cv-12121, 2020 WL 70920, at *3 (S.D.N.Y. Jan. 3, 2020). The case was transferred to me shortly thereafter.

While the litigation was ongoing, and without first informing RL, Ender transferred title to the Property to CPP on March 3, 2020.1 Pl. Facts ¶ 31. The transfer was recorded by the New

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York County clerk. Pl. Facts ¶ 31. CPP acquired the Property with notice of the Mortgage, but without notice of this foreclosure action. See Pl. Facts ¶¶ 32, 35, 38-40; Def. Facts ¶¶ 1-2; Def. Counter ¶¶ 32a, 35a, 38a-40a. Four months after the transfer and more than a year and a half after filing this case, on July 2, 2020, RL filed an "Amended Notice of Pendency" of the foreclosure action with the New York County clerk, which was recorded against the Property. Pl. Facts ¶ 35; see also Def. Facts ¶ 6. No notice of pendency of this action had previously been filed or recorded against the Property. See Def. Facts ¶¶ 1-2, 6. The "Amended Notice" purported to amend a "Notice of Pendency" [ECF No. 9], which had been filed on the ECF docket in this case at commencement, but which was never filed with the New York County clerk and was not indexed against any property. As noted below, this document is not an effective notice of pendency because it was never indexed against the Property. See infra at 25.

CPP moved to intervene in this case after RL sought a default final judgment of foreclosure. See Motion to Intervene and to Dismiss, ECF No 190; Pl. Facts ¶ 30. The Court granted CPP's motion to intervene and denied the motion for a default judgment without prejudice to renewal. See Order Denying Without Prejudice Motion for Default Judgment, ECF No. 197; Order Granting Motion to Intervene, ECF No. 195. In particular, the Court denied the default judgment motion because it was unclear what title, if any, the original Defendants retained in the Property following the transfer to CPP. See Order Denying Without Prejudice Motion for Default Judgment, ECF No. 197; Transcript of July 29, 2020, Conference, ECF No. 199, at 14:18-21.

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After the motion for a default judgment was denied, RL and CPP engaged in discovery, including depositions of at least two members of CPP. See Pl. Facts ¶¶ 37, 44. At the close of discovery, RL and CPP each moved for summary judgment.2

LEGAL STANDARD

A. Motion for Summary Judgment

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A court can conclude that there is no genuine dispute as to any material fact in three circumstances. See Johnson v. Nat'l Football League Players Ass'n, No. 17-cv-5131 (RJS), 2019 WL 3531957, at *2 (S.D.N.Y. Aug. 2, 2019). First, the parties agree on all facts (that is, there are no disputed facts). Second, the parties disagree on some or all facts, but no reasonable fact-finder could accept the non-moving party's version of the...

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