Golden Bridge LLC v. DGS18 Realty LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

SUNDING the. LLC d/b/a GOLDEN BRIDGE MEMORANDUM & ORDER

, 22-CV-5857 (NGG) (CLP)

Plaintiff,

-against-

DGS18 REALTY LLC, ISRAEL DANA, and

“JOHN DOE NO. 1 TO 10,” inclusive, the last

ten names being fictitious and unknown to

plaintiff, the persons or parties intended being

the tenants, occupants, persons or corporations,

if any, having or claiming an interest in or lien

upon the premises described in the complaint,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Golden Bridge LLC d/b/a Golden Bridge Funding LLC

(“Golden Bridge” or “Plaintiff’) brings this commercial foreclo-

sure action against Borrower DGS18 Realty LLC (“Borrower”)

and Israel Dana (“Guarantor”) (collectively, “Defendants”).

Pending before the court are Plaintiffs (A) motion for summary

judgment and (B) motion to appoint a receiver. (Plaintiffs Mo-

tion for Summary Judgment (“Pl.’s Mot. for SJ”) (Dkt. 30-19);

Plaintiffs Motion to Appoint a Receiver (“Pl.’s Mot. for Receiver”)

(Dkt. 33-13); see also Plaintiffs Proposed Order Appointing Re-

ceiver (Dkt. 33-12).) Plaintiff also requests that the court

“amend[] the caption of this action to delete defendants sued

herein as ‘John Doe No. 1 to 10.” (Pl.’s Mot. for SJ at 1.) Defend-

ants oppose only Plaintiffs motion for summary judgment.

(Defendants’ Opposition to Summary Judgment (“Defs.’ Opp.”)

(Dkt. 31-9); see also PlaintifPs Reply (“Pl.’s Reply”) (Dkt. 32).)

For the reasons that follow, John Does No. 1 to 10 are DIS-

MISSED from this action, Plaintiffs motion for summary

judgment is GRANTED, and Plaintiffs motion to appoint a re-

ceiver is GRANTED. Additionally, Douglas Rosenberg is

APPOINTED as Receiver of the Brooklyn Premises, and the court

ADOPTS Plaintiffs Proposed Order Appointing Receiver in its en-

tirety.

I. BACKGROUND!

A. Factual Background

Borrower DGS18 Realty LLC is the owner of the premises located

at 2729-2731 West 16th Street, Brooklyn, New York 11224 (the

1 Unless otherwise noted, the following facts are drawn from the parties’

respective Local Civil Rule 56.1 statements and are undisputed. The rele-

vant 56.1 statements include Plaintiffs 56.1 Statement in support of the

instant motion for summary judgment, (Pl.’s 56.1 St. (Dkt. 30-1)), and De-

fendants’ Response to Plaintiffs 56.1 Statement, (Defs.’ Response to PIl.’s

56.1 St. (Dkt. 31-8)).

Defendants did not submit a 56.1 statement of their own. Instead, Defend-

ants state: “Rather than restate the facts not in dispute referenced in

Defendants’ Statement of Material Facts submitted by Defendants in sup-

port of their opposition to the Motion that statement and the exhibits

thereto are incorporated by reference.” (Defs.’ Response to Pl.’s 56.1 St. at

3.) To the extent Defendants intend to incorporate the statement of facts

from their memorandum in opposition as their own 56.1 statement, such

a maneuver does not comport with Local Rule 56.1. See E.D.N.Y. Loc. Civ.

R. 56.1(b) (noting that “[t]he papers opposing a motion for summary judg-

ment must include a correspondingly numbered paragraph admitting or

denying . . . each numbered paragraph in the statement of the moving

party, and if necessary, additional paragraphs containing a separate, short

and concise statement of additional material facts” (emphases added)). As

such, the court will not consider the facts set forth in Defendants’ memo-

randum of law. Additionally, while Defendants filed a Response to

Plaintiffs 56.1 Statement with “correspondingly numbered paragraphs ad-

mitting or denying . . . each numbered paragraph in [Plaintiffs]

statement,” most of Defendants’ responsive paragraphs contain flat deni-

als, unsupported by citation to admissible evidence. “Pursuant to Local

Civil Rule 56.1(d), bald denials cannot raise a genuine issue of material

“Brooklyn Premises”). (Pl.’s 56.1 St. 1.) On April 24, 2019,

Plaintiff loaned Borrower the principal sum of $1,142,000.00, as

evidenced by a mortgage note (the “Note”) executed on the same

day. Ud. § 2.) As security for payment of Borrower’s obligations

under the Note, Borrower executed and delivered to Plaintiff a

mortgage and assignment of leases and rents dated April 24,

2019 (the “Mortgage”), securing the principal amount of

$1,142,000.00 and encumbering: (1) the Brooklyn Premises and

(2) the real property located at 81 Sharrott Avenue, Staten Is-

land, New York 10309 (the “Staten Island Premises”). (Id. 4 3;

see also Note (Dkt. 1-2) at 1; Mortgage (Dkt. 1-3) at 1.) Also on

April 24, 2019, Israel Dana, the sole member of Borrower DGS18

Realty LLC, guaranteed to Plaintiff the full and prompt payment

of all of Borrower’s Indebtedness. (Pl.’s 56.1 St. 4; see also Guar-

anty (Dkt. 1-4); First Extension Agreement (Dkt. 30-15) at ECF

fact, and [the non-moving party] must accompany each denial with a cita-

tion to admissible evidence.” See Garnica v. Edwards, 72 F. Supp. 3d 411,

416 (S.D.N.Y. 2014); see also E.D.N.Y. Loc. Civ. R. 56.1(d) (stating that

“each statement denying and controverting any statement of material fact,

must be followed by citation to evidence”). Thus, “Defendants’ unsup- —

ported denials . . . cannot, without citation to any evidence in the record,

create a genuine issue of fact.” Arista Recs. LLC v. Lime Grp. LLC, No. 6-CV-

5936 (KMW), 2011 WL 1641978, at *4 (S.D.N.Y. Apr. 29, 2011) (collect-

ing cases); see also Harris v. Metro-North Commuter R.R., No. 12-CV-543

(NSR), 2014 WL 12543819, at *1 n.1 (S.D.N.Y. July 8, 2014) (“The parties

are reminded that Local Civil Rule 56.1 exists to aid the Court in efficiently

identifying issues of fact, and it is to be followed strictly.”). While the court

“has broad discretion to . . . overlook a party’s failure to comply with local

court rules,” here, the court considers the facts as set forth in the parties’

respective 56.1 statements, and only to the extent those statements and

denials are supported by citation to admissible evidence. Holtz v. Rockefel-

ler & Co., 258 F.3d 62, 73 (2d Cir. 2001), abrogated in part on other grounds

by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).

2 The record is unclear as to whether Borrower owns the Staten Island

Premises. Ultimately, while the Mortgage encumbers both the Brooklyn

and Staten Island Premises, Plaintiff seeks foreclosure only as to the Brook-

lyn Premises. (See Compl. (Dkt. 1) at 44 2, 15-28.)

p. 3.) The Mortgage was recorded on May 31, 2019. (PI.’s 56.1

St. 73.)

The Note, Mortgage, Guaranty, and related loan documents (col-

lectively, the “Loan Documents”) set a maturity date of May 2,

2020, meaning that “all amounts due and owing under the Loan

Documents” were due on that date. (Id. { 6; see also Note at 1.)

Prior to maturity, the Loan Documents required Borrower to

make monthly payments at an interest rate of 9%, or $8,565.00

per month. (Note at 1.) The Loan Documents also provided that

the entire debt “shall become due” after the occurrence of one or

more specified events, including “default in the payment of any

installment of principal or interest.” (Mortgage { 33(a).) Upon

the occurrence of any default, the interest rate would increase to

the “Default Rate” of 24%. (Id. {4 7, 37.) □

On September 9, 2020, Plaintiff and Borrower executed an ex-

tension agreement (the “First Extension Agreement”), pursuant

to which Plaintiff agreed to extend the original maturity date

from May 2, 2020 to May 2, 2021 and to continue to accept in-

terest-only monthly payments of $8,565.00, in consideration of

an extension fee and legal fees.3 (Pl.’s 56.1 St. 9; First Extension

3 Plaintiff contends that, after the May 2, 2020 maturity date, Borrower

“was unable to fulfill its obligations under the Loan Documents,” citing the

declaration of Golden Bridge’s Chief Executive Officer, Erez Britt, in sup-

port of its claim. (Pl.’s 56.1 St. { 7; see also First Britt Decl. (Dkt. 30-10) 4

9.) Defendants blanketly deny this assertion, but cite no evidence in sup-

port of their denial. (Defs.’ Response to Pl.’s 56.1 St. { 7.) While such a

blanket denial would ordinarily permit the court to deem the fact admit-

ted, Plaintiffs assertion is belied by its own 56.1 Statement. Specifically,

three paragraphs after it contends that Borrower “was unable to fulfill its

obligations under the Loan Documents” after May 2, 2020, Plaintiff states:

“As evidenced by the [Borrower Statement] submitted in support of

Golden Bridge’s original motion for summary judgment, Borrower contin-

ued to make payments of $8,565.00 . . . through the end of 2020 and

continuing through and after May 2, 2021.” (Pl.’s 56.1 St. {9 7, 10.) In-

deed, the Borrower Statement demonstrates Borrower’s—mostly timely—

Agreement at ECF pp. 2-3.) According to the parties, the First

Extension Agreement “incorrectly references the [Staten Island

Property],” but “[aJll of the other references in the First Exten-

sion Agreement accurately reflect the extension of the Note and □

its application to the [Brooklyn Premises].” (Pl.’s 56.1 St. 4 9;

Defs.’ Response to Pl.’s 56.1 St. { 9; First Extension Agreement at

ECF p. 2.)

Borrower continued to make interest-only monthly payments

through May 2, 2021. (Pl.’s 56.1 St. ¢ 10; Borrower Statement.)

Then, following the expiration of the extended maturity date of

May 2, 2021, counsel for Plaintiff prepared a second extension

agreement (the “Second Extension Agreement”), to extend the .

maturity date to May 1, 2022. (Pl.’s 56.1 St. 11-12; Unexe-

cuted Copy of Second Extension Agreement (Dkt. 30-17).)

Inexplicably, Plaintiff at once claims that Borrower did not exe-

cute and return the Second Extension Agreement or pay an

extension fee, while at the same time asserting that the loan did,

in fact, have a maturity date of May 1, 2022 and that Borrower

did, in fact, “pa[y] an extension fee of $22,840.00 to counsel for

Golden Bridge in January 2022.” (Pl.’s Mot. for SJ at 4-6; Pl.’s

56.1 St. { 13; First Britt Decl. 15.) Plaintiff even goes so far as

to request, as part of its summary judgment motion, that the

court “conform the pleadings to the proof’ and consider May 2,*

2022 as the actual maturity date. (Pl.’s Reply at 5.) Defendants,

compliance with its monthly payment obligations through January 30,

2022. (Borrower Statement (Dkt. 30-16).) As such, the court does not ac-

cept as true Plaintiffs assertion that, after the May 2, 2020 maturity date,

Borrower “was unable to fulfill its obligations under the Loan Documents.”

(PI’s 56.1 St. 4 7.)

4 Plaintiff also contradicts itself with respect to the exact date of maturity,

asserting both that the second modified maturity date was May 1, 2022,

and that it was May 2, 2022. (Compare Pl.’s 56.1 St. ¢ 12 (May 1, 2022

maturity date), and Pl.’s Mot. for SJ at 4 (May 1, 2022 maturity date), with

Pl.’s Reply at 5 (May 2, 2022 maturity date).)

for their part, assert that Plaintiff and Borrower “entered the sec-

ond agreement extending the maturity date of the Note to May

1, 2022, and [counsel for Defendants] paid [the] second exten-

sion fee of $22,840.00 to then-counsel for Golden Bridge in

January 2022.” (Defs.’ Response to Pl.’s 56.1 St. { 13; see also

Email Thread (Dkt. 31-2) (containing email thread wherein the

parties discuss execution of the Second Extension Agreement and

payment of the extension fee).)

Although neither party produces a copy of the executed agree-

ment, the parties apparently agree that they executed the Second

Extension Agreement, that counsel for Defendants paid the sec-

ond extension fee, and that the agreement extended the loan’s

maturity date to May 1, 2022. (Pl.’s 56.1 St. € 12; Defs.’ Response

to Pl.’s 56.1 St. 12, 13; see also Unexecuted Copy of Second

Extension Agreement at ECF p. 2 (providing for a maturity date

of May 1, 2022).) The parties also agree that, following the sec-

ond modification, Borrower continued to make interest-only □

monthly payments through January 2022, including three pay-

ments on January 30, 2022 credited for November 2021,

December 2021, and January 2022. (Pl.’s 56.1 St. 4 14; Defs.’

Response to Pl.’s 56.1 St. 44 13-14; Borrower Statement.)

Plaintiff asserts that Defendants made no further loan payments

after January 2022, including the payments due on the May 1,

2022 maturity date. (Pl.’s 56.1 St. 15; First Britt Decl. { 17.)

Defendants blanketly deny this assertion, but cite no evidence in

support of their denial. (Defs.’ Response to Pl.’s 56.1 St. 4 15.)

The parties do agree, however, that on May 11, 2022, Plaintiff

sent a letter to Guarantor (the “Default Letter”), stating, among

other things, that the “DGS18 Loan” had matured, that “Bor-

rower[] failed to pay the outstanding amount[] due upon

maturity,” and that the amount then due was $1,167,695.00,

which is equal to the principal amount of $1,142,000.00 plus

three monthly interest payments of $8,565.00. (Default Letter

(Dkt. 1-5) at ECF pp. 3-4; Note at 1; Pl.’s 56.1 St. § 17; Defs.’

Response to Pl.’s 56.1 St. { 17.) The parties also agree that while

Plaintiff sent a Default Letter to Guarantor, it did not send a sim-

ilar letter addressed to Borrower. (Pl.’s 56.1 St. 4 16-19; Defs.’

Response to Pl.’s 56.1 St. 4 17-18.)

B. Procedural History

Plaintiff commenced this action on September 30, 2022, alleging

‘that Borrower defaulted on May 2, 2020, when it failed to make

the required principal and interest payments due on the loan’s

maturity date, and that Guarantor then failed to make payments

pursuant to the Default Letter, as required by the Guaranty.

(Compl. % 19-22.) Plaintiff seeks an order of foreclosure, a di-

rective that the Brooklyn Premises be sold and the resulting

proceeds be due to Plaintiff, a deficiency judgment against Bor-

rower and Guarantor, and attorneys’ fees. Ud. at 8-9.) The

Complaint and its attachments make no mention of the First or

Second Extension Agreements. (See generally id.)

Borrower and Guarantor answered on November 7 and Novem-

ber 11, 2022, respectively. (Borrower Answer (Dkt. 8);

Guarantor Answer (Dkt. 11).) In their answers, Borrower and

Guarantor raise numerous affirmative defenses, including that

Plaintiff lacks standing, that Plaintiff and Borrower “entered into

an express modification agreement which extended the terms of

[the] mortgage loan well beyond the purported default date,”

5 The Loan Documents show that Guarantor and Borrower have the same

mailing address: 2621 East 63rd Street, Brooklyn, New York 11234. (Com-

pare Default Letter at ECF p. 2 (listing mail-to address as: Israel Dana, 2621

East 63rd Street, Brooklyn, New York 11234), with Mortgage {55 (listing

mail-to address for Borrower as: DGS18 REALTY LLC, 2621 East 63 Street,

Brooklyn, New York 11234).) This is the address to which Plaintiff sent the

Default Letter addressed to Guarantor. (Default Letter at ECF p. 2.) Thus,

while the Default Letter was addressed to Israel Dana, the court notes that

the Letter was sent to the mailing address of both Guarantor and Borrower.

7 .

" and that Plaintiff failed to provide Borrower with notice of de-

fault as required by the Loan Documents. (See Borrower Answer

29-31; Guarantor Answer {{ 29, 36.) With leave of court,

Plaintiff filed its first motion for summary judgment on April 6,

2023. (See Pl.’s First Mot. for SJ (Dkt. 21-15); see also Pl.’s Reply

in Support of First Mot. for SJ (Dkt. 22).) Defendants filed their

opposition to Plaintiffs first motion for summary judgment on

March 24, 2023. (See Defs.’ Opp. to First Mot. for SJ (Dkt. 18-

1).) On December 14, 2023, Plaintiff filed its first unopposed mo-

tion to appoint a receiver. (Pl.’s First Mot. for Receiver (Dkt. 25).)

On January 2, 2024, the court denied Plaintiffs motion for sum-

mary judgment without prejudice to renewal for the principal

reason that Plaintiff failed to provide documentary evidence

demonstrating that Borrower was in default—a necessary ele-

ment of a prima facie case of foreclosure under New York law.

Golden Bridge LLC v. DGS18 Realty LLC, No. 22-CV-5857 (NGG)

(CLP), 2024 WL 22784, at *2-3 (E.D.N.Y. Jan. 2, 2024).© At the

time of the court’s decision, Plaintiff alleged that Borrower was

in default as of May 2, 2020, while Defendants argued that they

were not in default because the parties had modified their agree-

ment—although Defendants provided no evidence of such a

modification. Id. at *3. To prove default, Plaintiff pointed to a

declaration by Erez Britt, who swore that Borrower was in de-

fault, and a document labeled “Borrower Statement of Account.”

Id. at *2. The court concluded that this did not prove default,

reasoning:

This Borrower Statement . .. does not provide “documentary

□ evidence” that the Borrower was in default. This statement

is one page, showing a summary in the top right corner and,

_ in the bottom half of the page, a table with dates between

April 24, 2019 and January 2, 2022. In the summary, the

6 When quoting cases, unless otherwise noted, all citations and internal

"quotation marks are omitted, and all alterations are adopted.

statement indicates that as of February 8, 2023, the Bor-

rower had $0.00 of any unpaid interest, $0.00 of late charges

and $0.00 of any other charges that were due. It also indi-

cates that the “Regular Payment” is $8,565.00 and that the

“Note Rate” was 9.000%. The table indicates that the Bor-

rower made payments of $8,565.00 monthly between May

2019 and January 2022 (the last date shown in the table)

and that the Borrower was not required to and did not make

payments for “Late” charges or “Other” charges. The table

also notes next to each interest payment a description of

“Payment — Thank You.” Reviewing this table, the court is

unable to see how it supports that the Borrower was in de-

fault. While January 2022 is past the maturity date of May

2, 2020, there is nothing indicating that Borrower was in de-

fault beginning on that date, as Plaintiff asserts, as opposed

to making timely payments under a modified loan agree-

ment, as Defendants assert. For instance, in no month did it

appear that Plaintiff charged the higher Default Rate of 24%.

Nor is there any indication that Plaintiff paid any late

charges. Thus, there is no indication from this exhibit that

the Borrower paid anything less than the amount required

~ each month, □

Id. at *3. The court further concluded that because the Default

Letter was sent to Guarantor and not Borrower, stated an amount

that is equal to principal and only three months’ interest at the

9% rate (not the 24% Default Rate), and did not provide addi-

tional evidence of non-compliance with the required payment

schedule, the Default Letter “does not provide sufficient docu-

mentary evidence that the Borrower was in default.” Id. Thus, the

court denied without prejudice Plaintiffs motion for summary

judgment.’ Id.

7? The court denied Plaintiffs motion to appoint a receiver for substantially

the same reasons. (See Order Dated 5/2/2024.)

Thereafter, the court granted Plaintiff leave to file a renewed mo-_

tion for summary judgment. (See Order Dated 2/2/2024.)

Plaintiff filed the instant fully briefed motion for summary judg-

ment on April 24, 2024, and the instant unopposed motion to

appoint a receiver on May 20, 2024. (See Pl.’s Mot. for SJ; PI.’s

Mot. for Receiver.) It is in these papers that Plaintiff, for the first

time, describes the First and Second Extension Agreements. (See

Pl.’s Mot. for SJ at 3-4.)

If. LEGAL STANDARDS

. A. Motion for Summary Judgment

Summary judgment is warranted where “the movant shows that

there is no genuine dispute as to any material fact and the mo-

vant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “It is the movant’s burden to show that no genuine factual

dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373

F.3d 241, 244 (2d Cir. 2004). As such, Local Civil Rule 56.1 pro-

vides that a motion for summary judgment “must be

accompanied by a separate, short, and concise statement, in

numbered paragraphs, of the material facts as to which the mov-

ing party contends there is no genuine issue to be tried.” E.D.N.Y.

Loc. Civ. R. 56.1(a) (eff. Jan. 2, 2025). Once the movant meets

its initial burden of demonstrating the absence of a genuine issue

of material fact, the opposing party “must identify specific facts

and affirmative evidence that contradict those offered by the

moving party to demonstrate that there is a genuine issue for

trial.” Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 349

(E.D.N.Y. 2015) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986)); see also E.D.N.Y. Loc. Civ. R. 56.1(b) (providing that the

papers opposing a motion for summary judgment “must include

a correspondingly numbered paragraph admitting or denying . .

. each numbered paragraph in the statement of the moving party,

and if necessary, additional paragraphs containing a separate. .

10

. statement of additional material facts as to which it is contended □

that there exists a genuine issue to be tried”).

“An issue of fact is material . . . if it might affect the outcome of

the suit under the governing law.” Konikoff v. Prudential Ins. Co.

of Am., 234 F.3d 92, 97 (2d Cir. 2000). A “genuine” issue of fact

“is one where the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Khotovitskaya v.

Shimunov, 723 F. Supp. 3d 235, 241 (E.D.N.Y. 2024). Im-

portantly, a genuine issue of material fact “cannot be established

by conclusory allegations, conjecture, and speculation.” Id. “Bare

denials, without more, will not create a genuine issue of fact.”

Allstate Ins. Co. v. Longwell, 735 F. Supp. 1187, 1193 n.2

(S.D.N.Y. 1990). Thus, Local Rule 56.1 provides that “[eJach

statement by the movant or opponent under Rule 56.1(a) and

(b), including each statement denying and controverting any

statement of material fact, must be followed by citation to evi-

dence that would be admissible and set forth as required by Fed.

R. Civ. P. 56(c).” E.D.N.Y. Loc. Civ. R. 56.1(d) (emphasis added).

Federal Rule of Civil Procedure 56(c), in turn, provides that “[a]

party asserting that a fact cannot be or is genuinely disputed must

support the assertion” by (A) “citing to particular parts of mate-

rials in the record” or (B) “showing that the materials cited do

not establish the absence or presence of a genuine dispute, or

that an adverse party cannot produce admissible evidence to sup-

port the fact.” Fed. R. Civ. P. 56(c)(1). If a party fails to properly

support an assertion or denial of fact as required by Rule 56(c),

the court may, among other things, “consider the fact undis-

puted” or “grant summary judgment if the motion and

supporting materials .. . show that the movant is entitled to it.”

Fed. R. Civ. P. 56(e)(2)-(3).

Finally, in adjudicating a motion for summary judgment, the

court must “construe the evidence in the light most favorable to

the non-moving party and draw all reasonable inferences in its

11

favor.” ING Bank N.V. v. M/V TEMARA, IMO No. 9333929, 892

F.3d 511, 518 (2d Cir. 2018).

B. Motion to Appoint A Receiver

Receiverships are “traditionally used to protect the value of an

asset that is the subject of litigation.” United States v. Ianniello,

824 F.2d 203, 205 (2d Cir. 1987); see also United States v. Falls

Ct. Props. Co., No. 8-CV-1197, 2009 WL 1924771, at *6

(N.D.N.Y. July 1, 2009) (“The appointment of receiver serves an

important function of protecting assets pledged as security for a

debt and permits the lender to preserve income and control ex-

penses associated with the operation of the property in

question.”). “The court’s authority to appoint a receiver is ulti-

mately equitable, but is procedurally governed by Rule 66.”

Nissan Motor Acceptance Corp. v. Nemet Motors, LLC, No. 19-CV-

3284 (NGG) (CLP), 2022 WL 6784868, at *2 (E.D.N.Y. May 5,

2022); Fed. R. Civ. P. 66 (“These rules govern an action in which

the appointment of a receiver is sought or a receiver sues or is

sued. But the practice in administering an estate by a receiver or

a similar court-appointed officer must accord with the historical

practice in federal courts or with a local rule.”)

Upon a motion to appoint a receiver, the court’s “threshold in-

quiry” is “whether the mortgage contains a clause authorizing

such appointment.” Wilmington PT Corp. v. Tiwana, No. 19-CV-

2035 (DLI), 2020 WL 13158288, at *3 (E.D.N.Y. Mar. 25, 2020)

(quoting NWL Props., Inc. v. 401 E. 89th St. Owners, Inc., 95-CV-

85 WFK), 1995 WL 221078, at *1 (S.D.N.Y. Apr. 12, 1995)). In

addition to considering the mortgage’s express terms, courts also

consider the following equitable factors:

(1) any fraudulent conduct on the part of the defendant; (2)

the imminent danger of the property being lost, concealed,

injured, diminished in value, or squandered; (3) the inade-

quacy of the available legal remedies; (4) the probability that

harm to the plaintiff by denial of the appointment would be

12

greater than the injury to the parties opposing appointment;

and, in more general terms, (5) the plaintiffs probable suc-

cess in the action; and (6) the possibility of irreparable injury

to the plaintiffs interests in the property.

Nissan Motor Acceptance Corp., 2022 WL 6784868, at *2. “The

appointment of a receiver is considered an extraordinary remedy

that should be employed with great caution and granted only

where such relief is clearly necessary to protect a plaintiffs inter-

ests in the relevant property.” Bristol Oaks, L.P. v. Werczberger,

No. 95-CV-3973 (FB), 1996 WL 19207, at *1 (E.D.N.Y. Jan. 2,

1996).

Ill. DISCUSSION

A. Motion for Summary Judgment

In a case involving real property “located in New York, the appli-

cable law is New York law.” 641 Ave. of Ams. Ltd. P’ship v. 641

Assocs., Ltd., 189 B.R. 583, 590 (S.D.N.Y. 1995) (citing Butner v.

United States, 440 U.S. 48, 51-54 (1979) (recognizing that “Con-

gress has generally left the determination of property rights in

the assets of a bankrupt’s estate to state law”)). To establish a

prima facie case of foreclosure in New York, a plaintiff must

demonstrate: “the existence of the mortgage and mortgage note,

ownership of the mortgage, and the defendant’s default in pay-

ment.” Gustavia Home, LLC vy. Bent, 321 F. Supp. 3d 409, 414 □

(E.D.N.Y. 2018) (applying New York law); 1077 Madison St., LLC

v. Smith, 670 F. App’x 745, 746 (2d Cir. 2016) (summary order)

(same). However, “foreclosure of a mortgage may not be brought

by one who has no title to it.” U.S. Bank, N.A. v. Sharif, 89 A.D.3d

723, 724 (2d Dep’t 2011). Thus, “[w]here standing is raised as a

defense by the defendant, the plaintiff is required to prove its

standing before it may be determined whether the plaintiff is en-

titled to relief.” Id. Additionally, where notice is required by

statute or the mortgage agreement, the plaintiff-mortgagee must

13

show that it provided such notice. See N.Y. Real Prop. Acts. §

1304(1) (requiring ninety days’ notice for mortgages securing

home loans); see also Wells Fargo Bank Nat'l Ass’n v. 366 Realty

LLC, No. 17-CV-3570 (SJ) (RER), 2021 WL 9494173, at *4 &n.6

(E.D.N.Y. Mar. 16, 2021) (explaining that, for mortgages secur-

ing other types of loans, notice is not required unless provided

for in the mortgage agreement).

“Once a plaintiff... has established a prima facie case by pre-

senting a note, a mortgage, and proof of default, it has a

presumptive right to foreclose that can only be overcome by an

affirmative showing by the mortgagor.” Windward Bora, LLC v.

Brown, No. 21-CV-3147 (KAM) (RER), 2022 WL 875100, at *3

(E.D.N.Y. Mar. 24, 2022). In other words, once a plaintiff demon-

strates its prima facie case, the burden shifts to the defendant “to

raise a triable issue of fact, including with respect to any alleged

defenses or counterclaims.” Gustavia Home, 321 F. Supp. 3d at

414-15. A plaintiff-mortgagee is entitled to summary judgment

“if it establishes by documentary evidence the facts underlying its

cause of action and the absence of a triable fact.” U.S. Bank, N.A.

y. Squadron VCD, LLC, 504 F. App’x 30, 32 (2d Cir. 2012) (sum-

mary order); see also R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59

n.2 (2d Cir. 1997) (same). .

With respect to proof of default, general allegations will not suf-

fice. See Gustavia Home, 321 F. Supp. 3d at 415. Instead, “there

must be some proof in the form of an affidavit of a person with

knowledge, or a complaint verified by a person with knowledge.”

Id.; see also Yusubov v. Zoya AB Mgmt., LLC, No. 20-CV-3913

(RPK) (CLP), 2023 WL 6308074, at *4 (E.D.N.Y. Sept. 28, 2023)

(“At the summary judgment stage, a plaintiff may establish de-

fault in the form of an affidavit of a person with knowledge.”).

Thus, courts regularly accept as proof of default the affidavits of

persons with knowledge of the loan. See, e.g., Gustavia Home,

321 F. Supp. 3d at 415 (accepting as proof of default the affidavit

14

of plaintiff-mortgagee’s single member, stating based on “his own

knowledge and from reviewing Plaintiffs business records kept

in the ordinary course of Plaintiffs business” that defendant

failed to cure the default); Wilmington Sav. Fund Soc’y, FSB vy.

Fernandez, 712 F. Supp. 3d 324, 333 (E.D.N.Y. 2024) (accepting

as proof of default the affidavit of plaintiff-mortgagee’s Vice Pres-

ident, “stating based on his personal knowledge and review of its

business records that the loan is due... and... outstanding”);

Plenitude Cap. LLC v. Utica Ventures, LLC, 592 F. Supp. 3d 82, 86

(E.D.N.Y. 2021) (accepting as proof of default the affidavit of

plaintiff-mortgagee’s attorney, establishing the default);

Yusubov, 2023 WL 6308074, at *4 (accepting as proof of default

the affidavit of plaintiffs father, who was “primarily responsible

for executing the mortgage agreement and collecting on the un-

derlying obligation”); Wells Fargo Bank, N.A. v. Watts, No. 16-CV-

6919 (ENV) (RER), 2019 WL 8325097, at *4 (E.D.N.Y. Dec. 16, .

2019) (accepting as proof of default the affidavit of a person with

“personal knowledge of the matter,” expressing that “[t]here is a

default under the terms and conditions of the Promissory Note _

and Mortgage because [certain] payments were not made”).

Plaintiff argues that it is entitled to summary judgment against

Borrower and Guarantor, and that Defendants’ “conclusory” af-

firmative defenses—which Plaintiff claims Defendants

“abandoned” by failing to mention them in their opposition

brief—should be dismissed. (P].’s Mot. for SJ at 7-19; Pl.’s Reply

at 2-5, 6-8.) Plaintiff additionally “seeks to conform the pleadings

to the proof,” requesting that the court consider May 2, 2022 as

the alleged maturity and default date, rather than May 2, 2020,

as pled in the Complaint. (Pl.’s Reply at 5.) Finally, Plaintiff asks

the court to “amend[] the caption . . . to delete defendants sued

herein as John Doe No. 1 to 10.” (Pl.’s Mot. for SJ at 1.)

Defendants oppose Plaintiffs motion. First, they argue that Britt’s

declaration is improper because he “fails to offer a copy of the

15

documents he allegedly relied upon in drafting his declaration,”

thus, “there is no way Mr. Britt has personal knowledge of the

relevant facts in connection with the alleged defaults.” (Defs.’

Opp. at 4-5.) Second, Defendants assert that Plaintiff fails to pro-

vide any new evidence of default, instead relying on the same

documentary evidence that “has already been rejected by this

Court.” (id. at 5-7.) Third and finally, Defendants contend that

summary judgment must be denied because Plaintiff failed to

provide notice of default to Borrower, as required by the Loan

Documents. (Id. at 7-9.)

The court concludes that Plaintiff has standing to bring this fore-

closure action, that Plaintiff has established its prima facie case of

foreclosure, and that Defendants have not met their burden “to

raise a triable issue of fact, including with respect to any alleged

defenses or counterclaims.” Gustavia Home, 321 F. Supp. 3d at

414-15. As such, Plaintiff is entitled to summary judgment, and

the court grants Plaintiffs unopposed request to dismiss John

Does No. 1 to 10 from this action.

1. Standing

The court concludes that Plaintiff has standing to bring this fore-

closure action. “Where standing is raised as a defense by the

defendant, the plaintiff is required to prove its standing before it

may be determined whether the plaintiff is entitled to relief.”

Sharif, 89 A.D.3d at 724. “In a mortgage foreclosure action, a

plaintiff has standing where it is both the holder or assignee of

the subject mortgage and the holder or assignee of the underly-

ing note at the time the action is commenced.” U.S. Bank, N.A. v.

Collymore, 68 A.D.3d 752, 753 (2d Dep’t 2009). Borrower claims

that Plaintiff lacks standing because “it was not in possession of

the original mortgage note at the time this action was com-

menced.” (Borrower Answer 4 29.) However, Plaintiff attached a

copy of the Note to the Complaint. (See Compl. 4 9; see also

Note.) In New York, a plaintiff may “establish[] its standing as

16

holder of [a] note by demonstrating that the note was in its pos-

session .. . as evidenced by its attachment of the endorsed note

to the complaint.” Fed. Nat'l Mortg. Ass’n. v. Yakaputz If, Inc., 141

A.D.3d 506, 507 (2d Dep’t 2016); JPMorgan Chase Bank, N.A. v.

Roseman, 137 A.D.3d 1222, 1223 (2d Dep’t 2016) (“[A] copy of

the note was annexed to the complaint, establishing prima facie

that the plaintiff had standing.”). As such, Plaintiff has standing

to bring this foreclosure action.

2. Proof of Mortgage and Note

As the court held in its prior decision denying Plaintiffs first mo-

tion for summary judgment, Plaintiff “has demonstrated its

ownership of a mortgage encumbering the [Brooklyn Premises]

and the authenticity of the Guarantee.” Golden Bridge, 2024 WL

22.784, at *2 (citing Loan Documents). In particular, Plaintiff has

submitted copies of the Mortgage and Note, which evidence its

ownership and possession of the same. (See Note; Mortgage.) De-

fendants do not dispute the validity of the Loan Documents. (See

Defs.’ Response to Pl.’s 56.1 St. 4 2-4.) As such, Plaintiff demon-

strates “the existence of the mortgage and mortgage note [and]

ownership of the mortgage.” Gustavia Home, 321 F. Supp. 3d at

414-15 (accepting as proof of the existence and ownership of the

mortgage copies of the mortgage, note, and chain of assign-

ments).

3. Proof of Default

The sole remaining issue regarding Plaintiffs prima facie case is

whether Plaintiff provides sufficient evidence of default. The

court concludes that it does.

As noted above, the court previously determined that Plaintiff

was not entitled to summary judgment because it failed to pro-

vide sufficient documentary evidence of default. Golden Bridge,

2024 WL 22784, at *2-3. This was so because, while Plaintiff al-

leged that Defendants were in default as of May 2, 2020, the

17

Borrower Statement showed, among other things, that Borrower

continued to make monthly payments through at least January

2022. Id. at *3. Such evidence was inconsistent with a default as

of May 2, 2020. Id.

Now, the parties have submitted evidence of the First Extension

Agreement, which extended the loan’s maturity date to May 2,

2021. (See First Extension Agreement at ECF pp. 2-3.) Moreover, —

while neither party produced a copy of the executed Second Ex-

tension Agreement, the parties apparently agree—despite the

blatant self-contradictions in Plaintiffs papers—that they exe-

cuted the Second Extension Agreement extending the loan’s

maturity date to May 1, 2022. Such an agreement, which affects

an interest in real property, is governed by New York’s Statute of

Frauds and must ordinarily be memorialized in a writing signed

by both parties to be enforceable. See N.Y. Gen. Oblig. Law. § 5-

703(3) (requiring the existence of a signed writing to enforce an

agreement for an interest in real property); see also Freedom

Mortg. Corp. v. Heirs, No. 19-CV-1273 (KMK), 2020 WL

3639989, at *4 (S.D.N.Y. July 6, 2020) (“[I]n New York, modifi-

cation of a mortgage is subject to the statute of frauds and

accordingly must be in writing to be enforceable and signed by

the party to be charged.”); Gleason v. Wells Fargo Home Mortg.,

Inc., No. 651311/11, 2013 WL 4734875, at *1 (N.Y. Sup. Ct.

Aug. 28, 2013) (“[P]laintiffs position that the note stands on its

own, apart from the mortgage, and is not subject to the statute

of frauds, is without merit.”). However, “[a]n agreement which

violates the statute of frauds may nonetheless be enforceable

where there has been part performance unequivocally referable

to the contract by the party seeking to enforce the agreement.”

Barretti v. Detore, 95 A.D.3d 803, 806 (2d Dep’t 2012) (explain-

ing that “unequivocally referrable’ conduct is conduct

“inconsistent with any other explanation”). And the Court of Ap-

peals of New York has held that “oral agreements that violate the

Statute of Frauds are nonetheless enforceable where the party to

18

be charged admits having entered into the contract.” Matisoff v.

Dobi, 90 N.Y.2d 127, 134 (1997).

Here, the parties agree that they executed the Second Extension

Agreement, extending the loan’s maturity date to May 1, 2022,

and that counsel for Defendants paid the second extension fee of

$22,840.00 to counsel for Golden Bridge in January 2022. (PIl.’s

56.1 St. 412; Defs.’ Response to Pl.’s 56.1 St. 12.) The Borrower

Statement further confirms that Borrower made, and Plaintiff ac-

cepted, monthly interest payments of $8,565.00 through at least

January 2022—conduct “inconsistent with any .. . explanation”

other than the existence of a fully executed second modification

agreement. Barretti, 95 A.D.3d at 806. (See also Borrower State-

ment.) Thus, because both parties “admit[] having entered into

the [Second Extension Agreement],” Matisoff, 90 N.Y.2d at 134,

and their conduct is “inconsistent with any other explanation,”

Barretti, 95 A.D.3d at 806, for purposes of deciding this motion

for summary judgment, the court accepts as true the fact that the

parties executed the Second Extension Agreement extending the

loan’s maturity date to May 1, 2022.

A maturity date of May 1, 2022 casts Plaintiffs evidence in a new

light. Now, the court is presented with an affidavit from Erez

Britt, who states, based on his personal knowledge as Golden

Bridge’s CEO, that “following the three Interim Payments on Jan-

uary 30, 2022, Borrower failed to make any further Interim

Payments, or any other payments pursuant to the Loan Docu-

ments (the ‘Default’). . . . [and] Guarantor failed to make any

payments pursuant to the Loan Documents.” (First Britt Decl. { □

- 17.) Britt, in turn, cites to the Borrower Statement, which shows

a payment of $2,284.00 in May 2019, followed by monthly pay-

ments of $8,565.00 from June 2019 to October 2021, and three

separate payments of $8,565.00 in January 2022, but no pay-

ments after January 2022. (Borrower Statement.) Plaintiff also

19 .

cites the Default Letter, which claims a default “[a]s of May 4,

2022.” (Default Letter at ECF p. 3.)

While the Borrower Statement still reflects that, as of February

8, 2023, Borrower had $0.00 of unpaid interest, $0.00 of late

charges, and $0.00 of any other charges due, Defendants offer

no explanation as to why, with a maturity date of May 1, 2022,

monthly interest payments for February, March, and April of

2022 would be missing from this document. (See Borrower State-

ment.) Instead, Defendants blanketly deny Britt’s statement that

Defendants failed to make any payments after January 2022,

with no evidence to back that up. (Defs.’ Response to Pl.’s 56.1

St. 4 15; Defs.’ Opp. at 4-5.) Nor do they offer any support for

their bald assertion that there is “no way” Britt—PlaintifPs CEO— _

could have personal knowledge of the relevant facts in connec-

tion with the alleged default. (Defs.’ Opp. at 5.) These

unsupported denials do not create a genuine dispute of fact re-

garding whether Defendants were in default. See Fed. R. Civ. P.

56(e)(2) (“If a party fails to properly . . . address another party’s

assertion of fact as required by Rule 56(c), the court may...

consider the fact undisputed.”); Matsushita Elec. Indus. Co. v. Zen-

ith Radio Corp., 475 U.S. 574, 586 (1986) (“When the moving

party has carried its burden under Rule 56(c), its opponent must

do more than simply show that there is some metaphysical doubt

as to the material facts.”); Bustamante v. Kind, LLC, 100 F.4th

419, 432 (2d Cir. 2024) (“Conclusory allegations, conjecture,

and speculation are insufficient to create a genuine issue of

fact.”); EC ex rel. RC v. Cnty. of Suffolk, 882 F. Supp. 2d 323, 346

(E.D.N.Y. 2012) (“Mere unsubstantiated denials do not create

genuine issues of material fact.”).

_ Britt’s declaration, based on his personal knowledge, that De-

fendants were in default after January 2022 is sufficient in and

of itself to satisfy Plaintiffs prima facie burden of proving default.

See, e.g., Gustavia Home, 321 F. Supp. 3d at 415 (accepting as

20

proof of default the affidavit of plaintiff-mortgagee’s single mem-

ber, stating based on “his own knowledge and from reviewing

Plaintiffs business records kept in the ordinary course of Plain-

tiffs business” that defendant failed to cure the default);

Wilmington Sav., 712 F. Supp. 3d at 333 (accepting as proof of

default the affidavit of plaintiff-mortgagee’s Vice President, “stat-

ing based on his personal knowledge and review of its business

records that the loan is due... and... outstanding”). Thus,

Plaintiff has established its prima facie case, and the burden shifts

to Defendants “to raise a triable issue of fact, including with re-

spect to any alleged defenses or counterclaims.” Gustavia Home,

321 F. Supp. 3d at 414-15. Because Defendants’ blanket denials

do not raise a triable issue of fact regarding Plaintiffs’ prima facie

case, the court turns to Defendants’ affirmative defenses.

4. Notice of Default

Defendants claim that Plaintiff failed to provide notice of default

to Borrower as required by the Loan Documents. (Defs.’ Opp. at

7-9; Borrower Answer { 31; Guarantor Answer § 36.) Specifi-

cally, Defendants point to the following paragraphs from the

Mortgage as evidence that the Loan Documents required notice

to Borrower:

33. The Debt shall become due, at the option of the Mort-

gagee, upon the occurrence of any of the following

events:

(a) after default in the payment of any installment of prin-

cipal or interest as provided in the Note,

(b) after default in payment and reimbursement of the

Mortgage, after demand, for any casts, expenses, and

fees advanced or incurred by the Mortgagee in curing any

default or failure of the Mortgagor under this Mortgage,

[subsections (c) through (i) omitted]

21

55. All notices or other communications required to be

given pursuant to this Mortgage shall be in writing and . □□

.. addressed as follows:

If to the Mortgagor: DGS18 REALTY LLC

2621 East 63 Street

Brooklyn, NY 11234

If to the Mortgagee: GOLDEN BRIDGE LLC d/b/a

GOLDEN BRIDGE FUNDING, LLC [address omitted]

(Mortgage {{ 33, 55 (emphasized portions in bold); Defs.’ Opp.

at 7-8.) Defendants additionally characterize the court’s prior de-

cision as “den[ying] Plaintiffs First Motion [for summary

. judgment] [because] it failed to provide documentary evidence.

that it sent a notice of default to the Borrower.” (Defs.’ Opp. at

7.)

Plaintiff contends that the Loan Documents do not require notice

of default to Borrower or Guarantor. (PI.’s Mot. for SJ at 14; Pl.’s

Reply at 6-7.) In particular, Plaintiff-points out that paragraph

33(b) of the Mortgage requires “notice” (i.e., a demand) only

when the mortgagee seeks reimbursement of costs, expenses,

and/or fees advanced by it to cure the mortgagor’s default. (Pl.’s

Reply at 7 (citing Mortgage { 33(b)).) Thus, Plaintiff contends

that “a fair reading of the Mortgage reveals that in the event of a

payment default, notice is not required.” (Id.)

The court concludes that the Mortgage did not require Plaintiff —

to provide Borrower with notice of default.®

8 Although neither party raises the issue, the court notes that, notwith-

standing the terms of the Mortgage, New York law does not require a

22.

First, notice of default is not statutorily required in these circum-

stances. 366 Realty, 2021 WL 9494173, at *4 & n.6 (explaining

that, for mortgages securing loans other than home loans, notice

is not required unless provided for in the mortgage agreement).

Thus, notice of default is not required unless provided for in the

Mortgage.

Second, “[n]Jotice of default and demand for repayment are two □

distinct principles.” Miss Jones LLC v. Stiles, No. 17-CV-1450

(NSR), 2019 WL 3034906, at *3 (S.D.N.Y. July 10, 2019). While

a notice “inform|[s] the debtor that he is in default,” a demand “is

imperative” and “requires the recipient to take specified action.”

Id. The Mortgage itself recognizes this distinction: For example,

while paragraph 33(b) requires a “demand” when Plaintiff seeks

“casts, expenses, and fees advanced or incurred by the Mortgagee

in curing any default,” paragraph 33(e) requires “notice and de-

mand” after “default . . . either in assigning and delivering the

policies insuring the Improvements or the Personal Property

against loss ... or in reimbursing the Mortgages for premiums

paid on such insurance.” (Mortgage {{ 33(b), (e).) While the par-

ties refer to the Default Letter interchangeably as a “notice” and

“demand,” the Letter functions as a demand for repayment from

Guarantor. Specifically, the Demand Letter states that Guarantor

is “immediately obligated and required to pay in full the Out-

standing Debt .. . plus accruing interest and default interest,

accruing attorneys’ fees and expenses, plus costs of collection,”

and demands that such payment be made “by May 17, 2022.”

mortgagee to give advance notice of a foreclosure action in these circum-

stances, See Yusubov, 2023 WL 6308074, at *5 (noting that, while New

York law “requires at least ninety days’ notice before a mortgagee can fore-

close on a mortgage securing a ‘home loan,’ there is no such statutory

requirement for other types of mortgages,” and, to qualify as a home loan,

“the borrower must be a ‘natural person”). Thus, because the borrower

here is DGS18 Realty LLC, a corporation, the statutory notice requirement

does not apply. See id.

23

(Default Letter at ECF p. 4.) While the characterization ulti-

mately has no impact on the court’s decision, it appears that the

Default Letter is more accurately described as a demand for re-

payment, rather than a notice of default. The court keeps this

distinction in mind in assessing Defendants’ notice defense.

Third, the Mortgage did not require notice of default to Borrower

in these circumstances. As Plaintiff points out, the Mortgage pro-

vides that “[t]he Debt shall become due, at the option of the

Mortgagee, upon the occurrence of any of the following events,”

one of which is “default in the payment of any installment of prin-

cipal or interest as provided in the Note.” (Mortgage { 33(a)

(emphases added).) The undisputed facts demonstrate that is ex-

actly what happened here: Borrower defaulted on its interest

payments after January 2022, and defaulted on the remaining

interest and principal payments as of May 1, 2022. The plain lan-

guage of the Mortgage provides that the Debt shall become due,

at the option of Plaintiff, upon the occurrence of such an event—

without any requirement for a “demand” or “notice” to Borrower.

id.) In fact, the only circumstance in which the Mortgage re-

quires “notice” prior to the debt becoming due is “after default .

.. either in assigning and delivering the policies insuring the Im-

provements or the Personal Property against loss . .. or in

reimbursing the Mortgages for premiums paid on such insur-

ance.” (Ud. { 33(e).) Defendants do not suggest that such

‘conditions were present here. Thus, at least in these circum-

stances, the Mortgage did not require notice of default to

Borrower.

Finally, while the Default Letter states that Plaintiff seeks “attor-

neys’ fees[,] expenses, [and] costs of collection,” (Default Letter

at ECF p. 4), thus seemingly implicating paragraph 33(b)’s re-

quirement of a “demand” prior to the collection of “casts,

expenses, and fees” incurred in curing a default, the undisputed

24

facts show that Plaintiff complied with the requirements of para-

graph 33(b), (Mortgage 4 33(b).) As noted above, the Default

Letter functions as a demand to Guarantor for repayment of the

outstanding debt. And Defendants do not claim that the Loan

Documents required Plaintiff to provide a demand to Borrower

for repayment of the outstanding debt. (See generally Defs.’ Opp.)

Rather, Defendants assert that the Loan Documents required

Plaintiff to provide notice of default to Borrower. (Id. at 7-9.)

Moreover, even if Defendants argued that Plaintiff violated par-

agraph 33(b) by failing to provide a demand to Borrower for

repayment of the outstanding debt, the Mortgage provides that

the debt “shall become due, at the option of the Mortgagee, upon

the occurrence of any of the [events listed in paragraph 33].”

(Mortgage § 33.) One of those events—“default in the payment

of any installment of principal or interest’—occurred here, and

there can be no genuine dispute that the Mortgage does not re-

quire notice or demand in such circumstances. (Id. § 33(a).)

Thus, the court concludes that the Mortgage did not require no-

tice of default to Borrower, and Defendants’ affirmative defense

on this basis fails.

5. Remaining Affirmative Defenses

Defendants raise numerous other affirmative defenses in their re-

" spective answers, but do not mention these defenses in their

opposition brief. (Pl.’s Mot. for SJ at 10-19 (addressing Defend-

ants’ affirmative defenses); see generally Defs.’ Opp.; Pl.’s Reply

at 8.) As such, the court deems these defenses abandoned. See

Jackson v. Fed. Express, 766 F.3d 189, 198 (2d Cir. 2014) (“[A]

court may, when appropriate, infer from a party’s partial opposi-

tion that relevant claims or defenses that are not defended have

been abandoned.”); Taylor v. City of New York, 269 F. Supp. 2d

68, 75 (E.D.N.Y. 2003) (“Federal courts may deem a claim aban-

doned when a party moves for summary judgment on one

25

ground and the party opposing summary judgment fails to ad-

dress the argument in any way.”); Capitol Recs., LLC v. ReDigi Inc.,

No. 12-CV-95 (RJS), 2015 WL 5076457, at *4 (S.D.N.Y. Aug. 27,

2015) (“A court may also deem an [affirmative] defense to have

been waived, despite being pleaded in the party’s answer, if the

party does not press it in its summary judgment papers.”); Dun-

kin’ Donuts Franchised Rests. LLC v. Tim & Tab Donuts, Inc., No.

7-CV-3662 (KAM) (MDG), 2009 WL 2997382, at *9 (E.D.N.Y.

Sept. 15, 2009) (“As a result of defendants’ failure to oppose

plaintiffs’ [summary judgment] motion as to their defenses and

counterclaims, the court finds that the defendants abandoned

their affirmative defenses and counterclaims.”).

Although Defendants abandoned their remaining affirmative de-

fenses, the court nevertheless examines Defendants’ answers to

determine if they “contain[] any facts that might conflict with

plaintiffs evidence.” Gustavia Home, 321 F. Supp. 3d at 415.

Plaintiff describes Defendants’ affirmative defenses as “conclu-

sory” and lacking in “any additional supporting evidence.” (P1.’s

Mot. for SJ at 10-11.) The court agrees that Defendants’ answers

contain only unsupported assertions, including that: any and all

damages allegedly sustained by Plaintiff “were caused, in whole

or in part, by the culpable conduct, carelessness, recklessness,

negligence, or wrongdoing of Plaintiff, its agents, and others for

whom it was responsible,” (Borrower Answer § 32; Guarantor

Answer 4 30); Plaintiffs Note and Mortgage “assess high interest

rates which violate civil laws of usury in the State of New York,”

(Borrower Answer { 34; Guarantor Answer { 31); Plaintiff “has

breached its own loan agreement by its refusal to comply with

the terms of said loan agreements and refusal to negotiate in

good faith,” (Borrower Answer § 35; Guarantor Answer { 32);

Plaintiffs “purported personal guaranty is unenforceable as it

lacks mutual assent and a meeting of the minds necessary to cre-

ate an enforceable agreement,” (Guarantor Answer 4 33);

Plaintiffs “purported personal guaranty is unenforceable as it

26

fails for lack of consideration,” (id. 34); the Guaranty is “limited

in scope and the property to which payment was guaranteed has

already been disposed of and the debt repaid in full to the Plain- □

tiff,” Gd. { 35); Plaintiff “materially altered the underlying debt”

without notifying Guarantor, (id. 4 37); Plaintiff “negligently ad-

ministered this loan in a way that materially increased the risk of

default,” (id. { 38); and Plaintiff “has a duty under the common

law to pursue [Borrower] first, prior to making demands under

the purported guarantee,” (id. 4 39).

Defendants provide no evidentiary support for these abandoned

defenses, and no such support exists in the record. (See generally

Defs.’ Opp.; Borrower Answer; Guarantor Answer.) Therefore, in

light of the uncontroverted evidence in the record, the court con-

cludes that Plaintiff is entitled to summary judgment in this

mortgage foreclosure action. See Gustavia Home, 321 F. Supp. 3d

at 416 (adopting similar approach to abandoned affirmative de-

fenses in a mortgage foreclosure action).

B. Motion to Appoint A Receiver

Plaintiff moves for the appointment of Douglas Rosenberg of BPC

Management Corporation as receiver of the Brooklyn Premises,

and attaches, inter alia, the Britt Declaration and a declaration

from Plaintiffs counsel Steven S. Rand in support of its motion.

(See generally Pl.’s Mot. for Receiver; Second Britt Decl. (Dkt. 33-

1); Rand Decl. (Dkt. 33-10).)? Plaintiff asserts that the factual

° The Rand Declaration indicates that “Mr. Rosenberg has agreed that it

would be expeditious and cost efficient for the Court if he was appointed

receiver as to both properties[,]” presumably referring to the Brooklyn

Premises and the Staten Island Premises. (Rand Decl. { 16.) However, the

Receiver Motion requests that the court appoint Mr. Rosenberg as receiver

of only “Borrower's Assets,” (see id. {4 12-13), which is defined as the prem-

ises located at 2729-2731. West 16th Street, Brooklyn, New York 11224

(ie., the Brooklyn Premises) and “the Leases, the Rents, the books, records

and other property related to the ownership of the [Brooklyn] Premises,”

27

background relevant to Plaintiffs motion is “fully set forth” in the

Declarations and other documents attached to the Receiver Mo- ;

tion, including the Mortgage. (Pl.’s Mot. for Receiver at 2.)

Plaintiffs motion is unopposed.

Plaintiff argues that the court should appoint a receiver over the

Brooklyn Premises because the express terms of the loan docu-

ments provide for the appointment of a receiver upon

Defendant’s default, and default has “indisputably transpired.”

(Id. at 3.) The Mortgage’s section on Remedies provides:

40. The Mortgagee, in any action to foreclose this Mort-

gage, shall be entitled, without regard to the solvency or

insolvency of any person or entity obligated for the pay-

ment of the Debt or the adequacy of any security for the

Debt and without notice, to the appointment of a re-

ceiver and notice of such appointment is hereby

expressly waived. The Mortgagee or any receiver shall be

entitled to take possession of the Mortgaged Property from

the owner[,] tenants and/or occupants of the whole or any

part thereof and to collect and receive the Rents and the

value of the use and occupation of the Mortgaged Property,

or any part thereof, from the then owner, tenants and/or oc-

cupants thereof for the benefit of the Mortgagee. The

Mortgagor will pay monthly in advance to the Mortgagee or

to any receiver appointed to collect the Rents the fair and

reasonable rental value for the use and occupation of the

Mortgaged Property, or of such part thereof as may be in the

possession of the Mortgagor, and upon default in any such

payment the Mortgagor will vacate and surrender the pos-

session of the Mortgaged Property to the Mortgagee or such

receiver.

(Pl.’s Mot. for Receiver at 1.) Accordingly, the court considers Plaintiffs

motion to appoint a receiver as limited to the Brooklyn Premises.

28

(Mortgage § 40 (emphasis added).)

The court finds that the appointment of a receiver over the

Brooklyn Premises is appropriate because the Mortgage provides □

for a receiver’s appointment, and additional factors weigh in fa-

vor of the appointment of a receiver. The Mortgage expressly

contemplates the appointment of a receiver “in any action to

foreclose th[e] Mortgage,” empowering the Mortgagee or “any

receiver” to take possession of the Brooklyn Premises and to “col-

lect and receive the Rents and the value of the use and

occupation of the [Brooklyn Premises].” (Id.) See Wilmington PT

Corp., 2020 WL 13158288, at 3* (reasoning that the court’s

“threshold inquiry” on a motion to appoint a receiver is whether

the mortgage contains a clause providing for the appointment of

a receiver). Furthermore, under the Mortgage’s express terms,

Defendants agreed to “transfer[] and assign[]” rents from the

Brooklyn Premises “as further security for the payment of the

[Mortgage] Debt.” (Mortgage { 24.)!° Pursuant to the Mort-

gage’s provision concerning the appointment of a receiver, (id. 4

40), Plaintiff brought this action to foreclose the Mortgage,

(Complaint 8), and the Mortgage was secured in part by the

Brooklyn Premises, (Mortgage at 1 (listing the Brooklyn Premises

and Staten Island Premises as the “Mortgaged Property”).)

10 “The Rents of the Mortgaged Property are hereby transferred and as-

signed to the Mortgagee as further security for the payment of the Debt,

and the Mortgagee shall have the right to enter upon the Mortgaged Prop-

erty for the purpose of collecting the same and to let and operate the

Mortgaged property or any part thereof and to apply the Rents, issues and

profits, either in whole or in part, as the Mortgagee elects, to the payment

of all charges and expenses of the Mortgaged Property or in reduction of

any part of the Debt or other sums due or to become due under the Mote

or [sic] this Mortgage. This assignment and grant shall continue in effect

until the Debt and all other obligations secured by this Mortgage are paid.”

(Mortgage { 24.)

29

Additional factors also weigh in favor of the appointment of a

receiver. See Nissan Motor Acceptance Corp., 2022 WL 6784868,

at 2* (listing factors courts consider in deciding whether to ap-

point a receiver). Plaintiffs successful motion for summary

judgment conclusively establishes its probability of success as to

the Brooklyn Premises. And the probability of harm to Plaintiff

by denial of the receivership outweighs the risk of injury to De-

fendants in granting it because Defendant “continues to collect

Rents monthly,” but “has failed to turnover those funds to Plain-

tiff.” (Second Britt Decl. { 22-23.) Absent a receiver that would __

collect the rent, Plaintiff stands to lose $5,200 in current monthly

rental income for the Brooklyn Premises, and Plaintiff's appraiser

opined that the market monthly rental income for the Brooklyn

Premises is $6,900. (See Appraisal Report (Dkt. 33-9) at ECF p.

5.) The court finds that Douglas Rosenberg is well qualified to

serve as receiver.

IV. CONCLUSION

For the foregoing reasons, John Does No. 1 to 10 are DISMISSED

from this action, Plaintiffs motion for summary judgment is

GRANTED, and Plaintiffs motion to appoint a receiver is

GRANTED. Additionally, Douglas Rosenberg is APPOINTED as

Receiver of the Brooklyn Premises, and the court ADOPTS Plain-

tifPs Proposed Order Appointing Receiver in its entirety.

SO ORDERED.

Dated: Brooklyn, New York

March 26, 2025

s/Nicholas G. Garaufis

[NICHOLAS G. GARAUFIS

nited States District Judge

30