Sharestates Invs. Dacl v. 158At128th LLC

• Decision Date: 09 September 2022
• Docket Number: Index No. 850178/2021
• Citation: 2022 NY Slip Op 33058 (U)
• Court: New York Supreme Court
• Parties: SHARESTATES INVESTMENTS DACL, LLC, Plaintiff, v. 158AT128TH LLC, MICKEY BERLIANSHIK, BAP VENTURES LLC, NYC ENVIRONMENTAL CONTROL BOARD, NYS DEPARTMENT OF TAXATION & FINANCE, JOHN DOE 1-10 TENANTS Defendant.

2022 NY Slip Op 33058(U)

SHARESTATES INVESTMENTS DACL, LLC, Plaintiff,
v.
158AT128TH LLC, MICKEY BERLIANSHIK, BAP VENTURES LLC, NYC ENVIRONMENTAL CONTROL BOARD, NYS DEPARTMENT OF TAXATION & FINANCE, JOHN DOE 1-10 TENANTS Defendant.

Index No. 850178/2021

Supreme Court, New York County

September 9, 2022

Unpublished Opinion

PRESENT: HON. FRANCIS A. KAHN, III Justice.

DECISION + ORDER ON MOTION

FRANCIS KAHN, III, A.J.S.C.

1

The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, the motion is determined as follows:

The within action is to foreclose on a commercial mortgage encumbering a parcel of real property located at 156 West 128^th Street, New York, New York. The mortgage, given by Defendant 158AT128TH, LLC ("158AT128"), secures a loan with an original principal amount of $2,395,000.00 which is memorialized by a consolidated note dated March 6, 2020. The note and mortgage were executed by Defendant Mickey Berlianshik ("Berlianshik"). Concomitantly therewith, Berlianshik executed an unconditional guaranty of the indebtedness. Plaintiff commenced this action alleging Defendants defaulted in making installment payments under the note. Defendants 158AT128 and Berlianshik answered jointly and pled twenty affirmative defenses, including lack of standing and failure to comply with RPAPL §§1303, 1304 and 1306.

Now, Plaintiff moves for summary judgment against Defendants 158AT128 and Berlianshik, striking their answer and affirmative defenses, a default judgment against all non-appearing parties, to appoint a Referee to compute and to amend the caption. Defendants 158AT128 and Berlianshik oppose the motion.

In moving for summary judgment, Plaintiff was required to establish prima facie entitlement to judgment as a matter of law though proof of the mortgage, the note, and evidence of Defendants' default in repayment (see U.S. Bank, N.A. v James, 180 A.D.3d 594 [1^st Dept 2020]; Bank of NY v Knowles, 151 A.D.3d 596 [1^st Dept 2017]; Fortress Credit Corp, v Hudson Yards, LLC, 78 A.D.3d 577 [1^st Dept 2010]). Proof supporting a prima facie case on a motion for summary judgment must be in admissible form (see CPLR §3212[b]; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 A.D.3d 780 [1^st Dept 2019]). As Defendants raised lack of standing in their answer, Plaintiff was required to demonstrate same (see eg Wells Fargo Bank, N.A. v Tricario, 180 A.D.3d 848 [2^nd Dept 2020]). Plaintiff was also obliged to prove it substantially complied with the condition precedent in the mortgage requiring the lender to send a

Here, Shayanfekr states in paragraph 12 of his affidavit that notice of default was sent on September 8, 2020 "through counsel". But Shayanfekr failed to demonstrate he had personal knowledge of this claim, familiarity with the record keeping practices and procedures of its counsel or proffer a copy of the notice in admissible form and proof of mailing (see HSBC Mtge. Corp. (USA) v Gerber, supra; Emigrant Bank v Myers, supra). "The plaintiffs failure to make a prima facie showing in this regard required the denial of those branches of its motion, regardless of the sufficiency of the opposition papers." (Wells Fargo Bank N.A. v Sakizada, 168 A.D.3d 789, 791 [2d Dept 2019]).

2

notice of default prior to acceleration of the indebtedness (see HSBC Mtge. Corp. (USA) v Gerber. 100 A.D.3d 966, 966-967 [2d Dept 2012]; see also Deutsche Bank Natl. Trust Co. v Pariser, 207 A.D.3d 518 [2d Dept 2022]; Wells Fargo Bank, N.A. v McKenzie, 186 A.D.3d 1582, 1584 [2d Dept 2020]).

On the issue of standing, it is undisputed that...