CIPRIANI CLUB RESIDENCES AT 55 WALL CONDOMINIUM v. 55 WALL STREET HC 905 LLC (2023)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 were read on this motion for DEFAULT JUDGMENT.¹

In this action to collect unpaid condominium common charges and to foreclose on a common-charges lien, plaintiff, Cipriani Club Residences at 55 Wall Condominium, moves without opposition for default judgment under CPLR 3215 against defendants, 55 Wall Street HC 905 LLC, New York City Department of Finance, New York State Department of Taxation and Finance, Dylan Howard, and Anil Bansal. The motion is granted in part and denied in part.

A plaintiff moving for default judgment must establish proper service on the defendant, defendant's nonappearance, and the facts constituting plaintiff's claims. (CPLR 3215 [f].) Plaintiff has established proper service on all defendants. (See NYSCEF Nos. 7-11 [affidavits of service].) No defendant has appeared. And plaintiff has established the facts constituting some—but not all—of its claims.

1. With respect to the unpaid common charges and associated fees, plaintiff has provided an affidavit from its managing agent that attests to the amount of those charges through the filing of this motion. (NYSCEF No. 14.) The affidavit attaches supporting documentation, including a detailed ledger. (See NYSCEF No. 19.) This proof establishes for default-judgment purposes that plaintiff is entitled to a money judgment for the claimed amount of $93,731.47. Plaintiff also demonstrates that it is entitled to collect attorney fees from defendant 55 Wall Street HC 905 LLC. The amount of those fees shall be determined at the end of the action.

2. With respect to plaintiff's claim for foreclosure on the common-charges lien, plaintiff has established that it is entitled to foreclose on the lien. And Real Property Law § 339-aa permits plaintiff simultaneously to seek a lien foreclosure and entry of a money judgment for the unpaid charges at issue. (See Board of Managers of Central Park Place Condominium v Potoschnig, 178 AD3d 489, 489 [1st Dept 2019].) Given plaintiff's entitlement to foreclose on the lien, this court also agrees with plaintiff that a referee to compute should be appointed.

3. One issue relating to the foreclosure bears further discussion. Real Property Law § 339-z provides that a common-charges lien has priority over all other liens except all sums unpaid on the first mortgage of record and tax liens. Plaintiff asserts that it is “without dispute that any lien any of the defendants may have against the Unit is subordinate to the Condominium's lien” under that statute. (NYSCEF No. 13 at ¶ 25.) This court is not so sure.

Plaintiff's verified complaint acknowledges that defendant 55 Wall 905 executed mortgages in favor of defendant Anil Bansal, and that these mortgages, as consolidated, were recorded prior to plaintiff's common-charges lien. (See NYSCEF No. 2 at ¶¶ 30-32.) The complaint goes on to allege that the mortgages were paid in full and satisfied. (Id. at ¶ 33.) That allegation, however, is made only on information and belief, without identifying the source of the belief. (See id.)

If the amended complaint is correct that the Bansal mortgages, as consolidated, have been paid off and satisfied, then plaintiff's common-charges lien would take priority over all other liens, even if Bansal did not file a satisfaction of mortgage. (See Board of Mgrs. of Parkchester N. Condominium v Richardson, 238 AD2d 282, 283-284 [1st Dept 1997].) If, however, the amended complaint proves to be incorrect on that point, and the Bansal mortgages remain unsatisfied, any purchaser of the condominium unit at foreclosure would take the unit subject to those mortgages.² (See Board of Mgrs. of Regent's Park Gardens Condo v Chavez, 136 AD3d 953, 954 [2d Dept 2016], citing New York Community Bank v Vermonty, 68 AD3d 1074, 1076 [2d Dept 2009].)

The current record's lack of clarity on this issue does not bear on plaintiff's right to foreclose on the common-charges lien. But given that lack of clarity, plaintiff has not established the facts constituting its fourth cause of action, for a declaratory judgment that the Bansal mortgage liens have been paid in full and satisfied, and an order directing discharge of the liens.³ (See NYSCEF No. 2 at ¶¶ 40-42 [relief requested on fourth cause of action].) Default judgment on that claim is therefore denied.

4. Finally, plaintiff moves under CPLR 2001 for an order amending the caption of this action. That request is granted. A court may, at any point during litigation, allow a party to correct a “mistake, omission, defect[,] or irregularity.” (CPLR 2001.) A caption may be amended to include and reflect the name of any defendants who were intended to be included in the lawsuit if they will not be prejudiced by this addition. (Fink v Regent Int'l Hotels, Ltd., 234 AD2d 39, 41 [1st Dept 1996].) Additionally, a caption may be amended to remove “John Does” and/or “Jane Does” previously named. (Flagstar Bank v Bellafiore, 94 AD3d 1044, 1046 [2d Dept 2012].) Here, Bansal was included in the caption of the summons, identified as a defendant in the body of the complaint and properly served as a defendant. (NYSCEF No. 2 at 2; NYSCEF No. 7.) There would thus be no prejudice to Bansal or to the other defendants from remedying his erroneous exclusion from the caption of the complaint. Therefore, the caption of this action should be amended to include Bansal and to remove “Jane Doe” and “John Doe.”

Settle Order.

FOOTNOTES

1.   Counsel for defendant New York City Department of Finance has appeared in the action, but did not submit papers on the current motion.

2.   The unit would also remain subject to any outstanding tax liens. Neither the verified complaint nor plaintiffs’ motion papers address whether any tax liens have been filed against the unit.

3.   Although it is not entirely clear from plaintiff's motion papers whether plaintiff is seeking default judgment on this claim, the court assumes that plaintiff is doing so.

Gerald Lebovits, J.