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Bank of New York v. 125-127 Allen Street Associates

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 10, 2009

THE BANK OF NEW YORK AS COLLATERAL AGENT & CUSTODIAN FOR THE BENEFIT OF NYCTL 1988-2 TRUST, PLAINTIFF-RESPONDENT,
v.
125-127 ALLEN STREET ASSOCIATES, ET AL., DEFENDANTS-APPELLANTS,
THE FEDERAL DEPOSIT INSURANCE CORPORATION, ETC., ET AL., DEFENDANTS.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered on or about March 14, 2008, which, insofar as appealed from, in this action to foreclose on a real estate tax lien, granted plaintiff's motion for summary judgment, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Saxe, McGuire, Moskowitz, Freedman, JJ.

101549/04

Plaintiff established its entitlement to summary judgment by submitting affidavits, including that of the New York City Tax Lien ombudsman, and exhibits showing that defendants-appellants failed to pay the subject real estate taxes in a timely manner. In opposition, appellants failed to raise triable issues of fact regarding whether the subject real estate taxes had been timely paid. The affidavit of appellants' managing agent was contradicted by documentary evidence showing that the interest on the late payments had not been paid and that the payments were not timely, and thus the allegations with respect to said issues were "not genuine, but feigned" (Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]). Furthermore, appellants' reliance on statements purportedly made by a supervisor in the City's Department of Finance, is misplaced as such statements constituted inadmissible hearsay.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090210

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