Plaintiff: Ras Boriskin, LLC, Westbury, New York Defendant
Peters: Pro Se (Did not Appear)
Defendant City of New York: Corporation Counsel, New York,
Defendant Board of Managers of Strivers Gardens Condo:
Mitofsky, Shapiro, Neville and Hazen LLP, New York, New York
Non-Party East Fork: Paula Miller, Esq. Smithtown, New York
other defendants did not appear in this action.
P. BLUTH, JSC
motion to confirm the referee's oath and report, to grant
a judgment of foreclosure and sale and to appoint a
substitute referee is granted. Plaintiff is directed to
settle order on notice.
cross-motion by non-party East Fork Capital Equities, LLC
(East Fork) to dismiss the complaint is denied.
unusual circumstances of this foreclosure action arise out of
a mortgage held by plaintiff covering 300 West 135th Street
Unit 5N, New York, NY. According to plaintiff, a referee was
appointed by the Court on September 2, 2009. The referee, Mr.
Papastrat, issued his report on February 9, 2010 and found
that plaintiff was due $377, 468.81 as of December 31, 2009.
claims that on February 4, 2016, it was advised that the
referee could no longer carry out his responsibilities and,
therefore, plaintiff asks this Court to appoint a substitute
referee to sell the property.
years after the referee issued his report in February 2010,
without plaintiff doing anything more in this case, the Board
of Managers of Strivers Gardens Condominium (Board) initiated
its own foreclosure action against defendant Peters for
unpaid common charges (see Index No. 153717/13).
Unlike plaintiff, the Board prosecuted its case and secured a
judgment of foreclosure and sale, and the Board was the
successful bidder at a public auction. The Board then
assigned its bid to East Fork, which assumed all liabilities
under the terms of the sale, including payment of the
purchase price of $113, 413.30. East Fork claims it now
retains title to the subject premises and, thus, has an
interest in defending this action.
Fork claims that defendant Peters' default should be
vacated pursuant to CPLR 5015(a) and that the instant action
should be dismissed because defendant Peters was never
properly served. East Fork insists that Peters was serving a
life sentence at Clinton Correctional Facility and had not
resided at the premises, where he was allegedly served, since
at least 2006.
Fork also argues that this case should be dismissed because
plaintiff failed to move for a default judgment within one
year as required by CPLR 3125(c). East Fork claims that it
can raise these defenses because, as the current owner of the
premises, it is an interested ...