W. 45th Retail LLC v. Alandalous Props. Corp.
| Decision Date | 22 December 2022 |
| Docket Number | 850207/2021 |
| Citation | 2022 NY Slip Op 34375 (U) |
| Parties | WEST 45TH RETAIL LLC, Plaintiff, v. ALANDALOUS PROPERTIES CORP. F/K/A PEOPLES FOREIGN EXCHANGE CORPORATION, ABDELILAH ALAMI BINANI, NEW YORK STATE DEPARTMENT OF LABOR, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, NEW YORK CITY DEPARTMENT OF FINANCE, BOARD OF MANAGERS OF THE ACADEMY HOUSE CONDOMINIUM, JOHN DOE #1 THROUGH JOHN DOE #20 (SAID JOHN DOE DEFENDANTS BEING FICTITIOUS, IT BEING INTENDED TO NAME ALL OTHER PARTIES WHO MAY HAVE SOME INTEREST IN OR LIEN UPON THE PREMISES SOUGHT TO BE FORECLOSED), Defendant. |
| Court | New York Supreme Court |
DECISION+ ORDER ON MOTION
FRANCIS A. KAHN, III, A.J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57 58, 59, 60, 61, 62, 63, 69, 70, 71, 72, 73, 74, 75, 76, 77 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 92, 93, 96, 97, 98, 99, 100, 101, 102 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 64, 65, 66, 67, 68, 89,90,91,94,95 were read on this motion to/for RESTORE. Upon the foregoing documents, the motions and cross-motions are determined as follows:
This is an action to foreclose on a consolidated, extended and modified mortgage encumbering commercial real property located at 24 West 45th Street, Unit 1-C, New York, New York. The mortgage, given by Defendant Alandalous Properties Corp. ("Alandalous"), secures a promissory note which evidences a loan with an original principal amount of $1,300,000.00. The note and mortgage, both dated March 14, 2016, were executed by Defendant Abdelilah Alami Binani ("Binani") as President of Alandalous. Concomitantly with these documents, Binani executed a commercial guaranty of payment of the note.
It is undisputed that Defendant Alandalous failed to remit its December 14, 2020, installment payment under the note. On September 1, 2021, Plaintiff commenced this action and pled, inter alia, causes of action to foreclose on the mortgage and enforce the guaranty. On November 5, 2021, Plaintiff, Alandalous and Binani entered into two forbearance agreements. The first concerned the present loan. The second related to a loan between non-parties Liberty Avenue Retail, LLC ("Liberty"), the lender, and Lebchir Properties, LLC ("Libchir"), the borrower. The principals of Liberty and Lebchir are the same as Plaintiff and Alandalous, respectively. The forbearance agreements contain reciprocal default provisions which provide that the occurrence of a "Termination Event" under one agreement constitutes a "Termination Event" under the other.
Plaintiff claims Defendants Alandalous and Binani defaulted under the forbearance agreements and i demanded that they serve an answer as required thereunder. Defendants answered and pled fifteen affirmative defenses, including failure to comply with a contract condition precedent to foreclosure. Defendant Board of Managers of the Academy House Condominium ("Condominium"), an alleged holder of a subordinate lien for unpaid common charges, answered and pled, among other things, a crossclaim against Alandalous to foreclose on its common charge lien. An answer to the crossclaim was not demanded. Prior to commencement of this action, Condominium commenced an action (Board of Managers of the Academy House Condominium v Peoples Foreign Exchange, et al, NY Cty Index No 158796/2017) to recover its unpaid common charges and, on March 10, 2022, entered a money judgment against Defendant Alandalous in the amount of $149,131.98.
By order dated May 26, 2022, Plaintiffs ex parte application for the appointment of a receiver was granted and the Court designated Roberta Ashkin, Esq. as the Receiver of the premises at issue.
Now, Plaintiff moves (Motion Seq No 1) for summary judgment against the appearing parties, a default judgment against the non-appearing Defendants, an order of reference and to amend the caption. Defendants Alandalous and Binani oppose the motion and cross-move pursuant to CPLR §§2201 to stay this matter. Defendant Condominium cross-moves, inter alia, for foreclosure on the Board of Manager's common charge lien and to grant Plaintiff a judgment of foreclosure and sale. The Receiver moves (Motion Seq No 2), by order to show cause, for authorization to retain counsel, directing Plaintiff to fund an operating account and to set the Receiver's compensation. Plaintiff and Defendants Alandalous and Binani oppose Receiver's 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 under the note and mortgage (see U.S. Bank, N.A. v James, 180 A.D.3d 594 [1st Dept 2020]; Bank of NY v Knowles, 151 A.D.3d 596 [1st Dept 2017]; Fortress Credit Corp. v Hudson Yards, LLC, 78 A.D.3d 577 [1st Dept 2010]). "A default is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form" (Deutsche Bank Natl. Trust Co. v McGann, 183 A.D.3d 700, 702 [2d Dept 2020]).
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 [1st Dept 2019]). A plaintiff may rely on evidence from persons with personal knowledge of the facts, documents in admissible form and/or persons with knowledge derived from produced admissible records (see eg U.S. Bank N.A. v Moulton, 179 A.D.3d 734, 738 [2d Dept 2020]). No particular set of business records must be proffered, as long as the admissibility requirements of CPLR 4518 [a] are fulfilled and the records evince the facts for which they are relied upon (see eg Citigroup v Kopelowitz, 147 A.D.3d 1014, 1015 [2d Dept 2017]).
Plaintiffs motion was supported with an affidavit from Ariel Jacobov ("Jacobov"), a member of the Plaintiff. Jacobov properly attested that the knowledge was based upon his personal knowledge as well as the business records of his employer (see eg Wells Fargo Bank, N.A. v Yesmin, 186 A.D.3d 1761, 1762 [2d Dept 2020]; Deutsche Bank Natl. Trust Co. v Kirschenbaum, 187 A.D.3d 569 [1st Dept 2020]). Jacobov laid a proper foundation for the admission of Plaintiff s records by demonstrating the requisites of CPLR §4518 ). The records of non-party Habib American Bank, the original lender and Plaintiffs assignor, were also admissible since Jacobov attested those records were received from the maker, incorporated into the records his employer kept and were routinely relied on by Plaintiff in its business (see Bank of Am., N.A. v Brannon, 156 A.D.3d 1, 10 [1st Dept 2017]; see also U.S. Bank Trust, N.A. v Bank of Am., N.A., 201 A.D.3d 769, 772 [2d Dept 2022]). Annexed to Jacobov's affidavits were the records which he relied upon (see eg Ciras, Inc. v Katz, 202 A.D.3d 590 [1st Dept 2022]).
The affidavit established the mortgage, note, and evidence of mortgagor's default which was sufficiently supported by appropriate documentary evidence (see eg Bank of NY v Knowles, supra; Fortress Credit Corp. v Hudson Yards, LLC, supra). As to the default, in the forbearance agreement executed by Alandalous and Binani, they acknowledged the debt, ratified the loan documents, and admitted the existence of a default thereunder (see Redrock Kings, LLC v Kings Hotel, Inc., 109 A.D.3d 602 [2d Dept 2013]; EMC Mortg. Corp. v Stewart, 2 A.D.3d 772 [2d Dept 2003]).
Where, as here, a defendant pleads affirmative defenses claiming lack of standing and failure to comply with contractual pre-foreclosure notice requirements, a plaintiff is ordinarily required to demonstrate its standing and substantial compliance with the notice requisites (see eg see Deutsche Bank Natl. Trust Co. v Pariser, 207 A.D.3d 518 [2d Dept 2022]; Wells Fargo Bank, N.A. v Tricario, 180 A.D.3d 848 [2nd Dept 2020]; Wells Fargo Bank, N.A. v McKenzie, 186 A.D.3d 1582, 1584 [2d Dept 2020]). However the defense of standing is not jurisdictional in nature and, therefore, is waivable (see Wells Fargo Bank, N.A. v Muskopf, 44 Misc.3d 1223 [A] [Sup Ct, Suffolk Cty 2014]).
In the recitals contained in the forbearance agreement, the parties agreed that the "Loan and the Loan Documents have been assigned by Habib American Bank to Lender and Lender is now the sole, true, and lawful owner and holder of the Loan Documents". As such, Defendants Alandalous and Binani waived any reliance on lack of standing (see U.S. Bank N.A. v RJFI10 Realty LLC, __Misc3d__, 2016 NY Slip Op 31273 [U] [Sup Ct NY Cty 2016]). Similarly, in paragraph eight of that agreement, any pre-foreclosure notice requirement contained in the note and mortgage was waived. |
In opposition, Defendants' claim that an issue of fact exists based upon their exercise of an option to extend the moratorium on prosecution of this action contained in the forbearance agreement is not established. That extension option provides that "[s]o long as a Termination Event has not occurred", Defendants could extend the termination date of the forbearance, along with the required full re-payment of the loan, by giving notice and making monthly payments to Plaintiff of $10,000.00. Defendant Binani avers in an affidavit that the option was exercised, and that Plaintiff accepted same as well as compulsory payments for April, May and June 2022. Defendants proffered a letter dated April 14, 2022, purporting to exercise the option, but no corroboration of the alleged payments was submitted. More...
To continue reading
Request your trial