Motion Date: April 17, 2013
DECISION AND ORDER
ELLEN COIN, A.J.S.C.
Defendant 409 Edgecombe Avenue Housing Development Fund Corporation (409 Edgecombe) moves to dismiss the complaint and any cross-claims asserted herein against it. Defendants Tane Waterman & Wurtzel, P.C. (TW&W) and Natacha Pasquis Simmons a/k/a Paige Simmons (Simmons) move for similar relief.
Plaintiffs Elena Slukina (Slukina) and Adam Plotch (Plotch) are two apparently unrelated individuals who both submitted bids at the foreclosure auction of apartment 13 A in a cooperative apartment building located at 409 Edgecombe Avenue in the County, City and State of New York. (Compl. ¶¶ 1, 11, 20, 35). According to the Notice of Auction, the sale was precipitated by the default of the proprietary lessee upon her financial obligations to 409 Edgecombe.
TW&W is the law firm that represents 409 Edgecombe, and Simmons is an associate attorney employed by TW&W. (Compl.¶¶ 4-7). Defendants Semret and Mekuria are the current record owners of unit 13 A. (Compl. ¶¶ 8, 64-69). Plaintiffs assert no cause of action against defendant Citybank, N.A.
Plaintiffs allege that after unit 13A was foreclosed upon, the shares appurtenant to it were put up for auction on two occasions: first, on June 6, 2011, and again on July 11, 2011. Each auction was preceded by public notice published in the New York Post. (Compl. ¶¶11-19, 26- 30). Plaintiffs specifically assert that the first of these notices (the June notice) stated, in pertinent part, as follows:
This sale is to satisfy an indebtedness in the principal amount of [$63, 462.64] plus interest thereon, late fees, attorneys fees, plus maintenance and assessments in arrears, if any, and all other charges due Lessor [i.e., 409 Edgecombe].
The apartment will be sold "as is" without representation or warranty. This sale is held to enforce the rights of the Lessor as holder of a security interest in the shares herein described based upon the non-payment of charges due it and unpaid. Lessor reserves the right to bid/purchase and reject all bids to the extent that the amount bid for the apartment is not greater than the amount of sums owing on the apartment as of the auction date. This sale is subject to the approval of the successful bidder by the Lessor if the Lessor is not the successful bidder. A bank or certified check or money order, payable to [TW&W's] escrow account ... in an amount equal to ten percent (10%) of the successful bid is required at knockdown to purchase the apartment if the Lessor is not the successful bidder. No cash will be accepted. All funds must be exhibited to the auctioneer prior to the commencement of bidding. Unless proper funds have been verified, you will not be permitted to bid. The balance of the successful bid is payable at closing, which shall be held within thirty (30) days of the auction date, time being of the essence therefore.
(Id., Ex. C).
Plaintiffs also specifically assert that the second of these notices (the July notice) contained the exact same language as the earlier, although the amount of the indebtedness had been increased to $70, 043.04, a change not reflected in the text of the July notice. (Id., Ex. D).
Plaintiffs have also presented copies of the "Terms of Sale" (terms of sale) that were appended to each notice. Both copies are identical, and assert, in pertinent part, as follows:
1. The property to be sold at the public auction of the captioned date (the "Auction Date") consists of certain collateral in the possession of [409 Edgecombe]. The collateral consists of 250 shares of the capital stock (the "Shares") of Cooperative ..., and the proprietary lease (the "Lease") appurtenant to the Shares ... for apartment 13A (the "Apartment") in the building ...