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JP Morgan Chase Bank, N.A. v. Peters

Supreme Court, New York County

January 23, 2017

JP Morgan Chase Bank, N.A., Plaintiff,
v.
Martin Peters, THE CITY OF NEW YORK DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, BOARD OF MANAGERS OF STRIVERS GARDENS CONDOMINIUM, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, D.S.S. & DIVISION OF LIENS AND RECOVERY, CITY OF NEW YORK DEPARTMENT OF TRANSPORTATION PARKING VIOLATION BUREAU AND "JANE SMITH, ", Defendants.

          Plaintiff: Ras Boriskin, LLC, Westbury, New York Defendant Peters: Pro Se (Did not Appear)

          Defendant City of New York: Corporation Counsel, New York, 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

         The other defendants did not appear in this action.

          ARLENE P. BLUTH, JSC

         Plaintiff's 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.

         The cross-motion by non-party East Fork Capital Equities, LLC (East Fork) to dismiss the complaint is denied.

         Background

         The 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.

         Plaintiff 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.

         Three 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.

         East 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.

         East 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 ...


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