Wilmington Trust, N.A. v. Board of Mgrs. 229 W. 43rd St. Condominium

Wilmington Trust, N.A. v Board of Mgrs. 229 W. 43rd

St. Condominium

2025 NY Slip Op 31241(U)

April 11, 2025

Supreme Court, New York County

Docket Number: Index No. 154811/2023

Judge: Andrea Masley

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

FILED: NEW YORK COUNTY CLERK 04/11/2025 04:48 PM INDEX NO. 154811/2023

NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 04/11/2025

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 48

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WILMINGTON TRUST, NATIONAL ASSOCIATION, AS INDEX NO. 154811/2023

TRUSTEE, FOR THE BENEFIT OF THE HOLDERS OF

CD 2016-CD2 MORTGAGE TRUST COMMERCIAL

MORTGAGE PASS THROUGH CERTIFICATES, SERIES MOTION DATE

2016-CD2, WILMINGTON TRUST, NATIONAL

ASSOCIATION, AS TRUSTEE, FOR THE BENEFIT OF MOTION SEQ. NO. 001

THE REGISTERED HOLDERS OF JPMDB

COMMERCIAL MORTGAGE SECURITIES TRUST 2017-

C5 COMMERCIAL MORTGAGE PASS THROUGH DECISION + ORDER ON

CERTIFICATES, SERIES 2017-C5, DEUTSCHE BANK MOTION

TRUST COMPANY AMERICAS, AS TRUSTEE, ON

BEHALF OF THE REGISTERED HOLDERS OF

CITIGROUP COMMERCIAL MORTGAGE TRUST 2017-

P7 COMMERCIAL MORTGAGE PASS-THROUGH

CERTIFICATES, SERIES 2017-P7, WELLS FARGO

BANK, NATIONAL ASSOCIATION, AS TRUSTEE, ON

BEHALF OF THE REGISTERED HOLDERS OF CD2017-

CD3 MORTGAGE TRUST COMMERCIAL MORTGAGE

PASS-THROUGH CERTIFICATES, SERIES 2017-CD3

Plaintiff,

-v-

BOARD OF MANAGERS 229 WEST 43RD STREET

CONDOMINIUM,

Defendant.

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HON. ANDREA MASLEY:

The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 17, 18, 19, 20,

21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47,

48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 71, 72, 73, 74, 75, 76, 77,

78

were read on this motion to/for DISMISS .

Upon the foregoing documents, it is

This is an action for declaratory judgment declaring a proper method of allocation

of expenses arising from Local Law 11 façade work between the two units – the retail

unit and the commercial unit – of a condominium located at 229 West 43rd Street, New

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WEST 43RD STREET CONDOMINIUM

Motion No. 001

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York, New York 10036, as well as for damages resulting from the alleged improper

expense allocation. Plaintiffs in this action are (i) Wilmington Trust, National

Association (Wilmington Trust), as trustee, for the benefit of the holders of CD 2016-

CD2 Mortgage Trust Commercial Mortgage Pass Through Certificates, Series 2016-

CD2 (2016-CD2 Trust Certificate Holders), (ii) Wilmington Trust, as trustee, for the

benefit of the registered holders of JPMDB Commercial Mortgage Securities Trust

2017-C5 Commercial Mortgage Pass Through Certificates, Series 2017-C5, (iii)

Deutsche Bank Trust Company Americas, as trustee, on behalf of the registered

holders of Citigroup Commercial Mortgage Trust 2017-P7 Commercial Mortgage Pass-

Through Certificates, Series 2017-P7, and (iv) Wells Fargo Bank, National Association,

as trustee, on behalf of the registered holders of CD2017-CD3 Mortgage Trust

Commercial Mortgage Pass-Through Certificates, Series 2017-CD3 (collectively,

Lenders).

In motion sequence number 001, defendant Board of Managers 229 West 43rd

Street Condominium (Board) moves pursuant to CPLR 3211 (a) (1), (2), (3), (7), and

(10) to dismiss the verified complaint.

Background

Unless indicated otherwise, the following facts are taken from the verified

complaint and, for the purposes of this motion, are accepted as true.

Parties and Related Action

The Lenders collectively hold a loan consisting of nine promissory notes, which is

secured by a mortgage of the retail unit and related property, including the personal

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WEST 43RD STREET CONDOMINIUM

Motion No. 001

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property owned by the borrowers and located at the premises (collectively, Property).1

(See NYSCEF 1, VC ¶¶ 5, 10-16; NYSCEF 20, Consolidated, Amended and Restated

Mortgage [Mortgage] ¶ 1.01.) Wilmington Trust, as trustee, for the benefit of 2016-CD2

Trust Certificate Holders, also holds Assignment of Leases and Rents (Assignment)

(NYSCEF 1, VC ¶¶ 17-18, 27-28; NYSCEF 25, Assignment of Assignment to German

American Capital Corp. at 5/11; NYSCEF 26, Assignment of Assignment to Wilmington

Trust at 5/12), which was executed “to further secure the payment and performance of

all of the [borrowers’] Obligations.” (NYSCEF 21, Assignment at 4/18 ¶ C.) In sum,

pursuant to the Assignment, the borrowers “absolutely and unconditionally assign[ed]

and grant[ed] to” Wilmington Trust, as trustee, for the benefit of 2016-CD2 Trust

Certificate Holders, inter alia leases and any other agreements “grant[ing] a possessory

interest in, or right to use or occupy all or any portion of the” retail unit, rents, bankruptcy

claims against lessees, rights under lease guarantees, and proceeds. (Id. ¶ 1.1 [a]-[e].)

The borrowers defaulted on the loan in February 2020. (NYSCEF 1, VC ¶ 38.)

On November 5, 2020, the Lenders initiated a mortgage foreclosure action against the

borrowers and the Board, among others.2 (See id. ¶ 39; Index. No. 850176/2020,

NYSCEF 1, Summons and Complaint.) In the foreclosure action, the Board alleged (i) a

counterclaim against the Lenders alleging a lien for the unpaid common charges

pertaining to the retail unit and (ii) a cross-claim against the borrowers for foreclosure on

1 The borrowers, who are not parties to this action, are (i) Elmwood NYT Owner, LLC,

(ii) Landings NYT Owner, LLC, (iii) Oakwood NYT Owner, LLC, and (iv) Wallkill NYT

Owner, LLC. (NYSCEF Doc. No. [NYSCEF] 1, Verified Complaint [VC] ¶ 1.)

2 The foreclosure action is entitled Wilmington Trust, National Association, as Trustee

for the benefit of the Holders of CD 2016-CD2 Mortgage Trust Commercial Mortgage

Pass-Through Certificates, Series 2016-CD2 v Elmwood NYT Owner, LLC (Index. No.

850176/2020).

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Motion No. 001

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the Board’s lien for unpaid common charges and a related claim for attorneys’ fees.

(Index. No. 850176/2020, NYSCEF 24, Verified Answer Counterclaim and Cross-Claim

¶¶ 7-34.) Upon the Lenders’ motion (see Index. No. 850176/2020, NYSCEF 56,

counsel aff), the court appointed a receiver in the foreclosure action, who was directed

“to take possession of and administer, preserve and protect all real and personal

property that is the subject of the Mortgage.” (Index. No. 850176/2020, NYSCEF 65,

Order Appointing Klaus Kretschmann as Receiver at 2/15). The receiver was

authorized to pay common charges. (Id. at 7/15.) Due to the retail unit’s arrears on

common charges, the receiver could not exercise the retail unit’s voting rights on the

Board. (Index. No. 850176/2020, NYSCEF 217, Kretschmann aff ¶¶ 3-4.) The receiver

and the Board reached a settlement agreement whereby the receiver agreed pay a

portion of the arrears and the Board agreed that such payment constitutes full payment

of arrears through December 31, 2021, reinstating the retail unit’s voting rights. (Id. ¶ 5;

see also Index. No. 850176/2020, NYSCEF 218, Settlement Agreement ¶ 1.) The court

approved the settlement agreement, to which no opposition was raised. (Index. No.

850176/2020, NYSCEF 227, Decision and Order at 2 [mot. seq. no. 017].) The

foreclosure action was discontinued without prejudice as between the Lenders and the

Board, resulting in the Board’s dismissal from the foreclosure action. (Index. No.

850176/2020, NYSCEF 232, Stipulation of Discontinuance.)

This Action

The Lenders subsequently filed this action against the Board. The condominium

is governed a Declaration of 229 West 43rd Street Condominium (Declaration) and

Condominium By-Laws (Bylaws). (NYSCEF 1, VC ¶¶ 43, 47; NYSCEF 28, Declaration

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Motion No. 001

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and Bylaws.) “Except as otherwise set forth in … By-Laws … or expense allocation

schedule annexed to [Bylaws] … the allocation of General Common Expenses among

the Retail Unit and the Commercial Unit shall be in accordance with their relative

proportionate Common Interest” (NYSCEF 10, Bylaws ¶ 6.1.1. [a] [at 76/132]), which is

41.37% for the retail unit and 58.63% for the commercial unit. (NYSCEF 28,

Declaration at Schedule B [at 51/132].) Per the expense allocation schedule annexed

to the Bylaws, “[t]he following expenses shall be split based on usage: [e]xterior

inspections, maintenance and repairs (façade).” (NYSCEF 28, Bylaws at Expense

Allocation Schedule [at 122/132].)

The Lenders allege that the retail unit’s “‘usage’ of the façade is far less than its

Proportionate Common Interest percentage.” (NYSCEF 1, VC ¶ 57.) The Lenders

allege that the Board “has incorrectly allocated, and continues to incorrectly allocate,

charges to the Retail Unit based on Proportionate Common Interest” (id. ¶ 56), resulting

in overcharges to the Retail Unit. (Id. ¶ 57.) The Lenders seek (i) a declaration that all

costs for work on the façade under Local Law 11 must be allocated by usage and not by

Proportionate Common Interest and (ii) a declaration as to the exact percentage of

usage of the façade for the commercial unit and the retail unit for all actual Local Law 11

work that has been performed on the façade. (Id. ¶ 68 [A]-[B].) The Lenders also seek

a money judgment for “any overpayment of the Local Law 11 façade work, pursuant to

Section 6.1.1(c) of the Bylaws.” (Id. ¶ 68 [C].)

Procedural History

At the time this action was initialed, the Lenders alleged that they held the

mortgage of the retail unit and related property, including the personal property owned

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WEST 43RD STREET CONDOMINIUM

Motion No. 001

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by the borrowers and located at the premises. (Id. ¶¶ 5, 10-16; see NYSCEF 20,

Mortgage ¶ 1.01.) In this motion to dismiss, the Board argues that the Lenders, as

lienholders, have no standing. After this motion was briefed and argued, the Lenders

informed the court that as a result of the foreclosure sale, the retail unit and related

personal property were transferred to Wilmington Trust, as trustee, for the benefit of CD

2016-CD2 Trust Certificate Holders. (NYSCEF 68, Letter; NYSCEF 69, Referee’s

Deed; NYSCEF 70, Judgment of Foreclosure and Sale.) The Lenders stated that

Wilmington Trust, as trustee, for the benefit of CD 2016-CD2 Trust Certificate Holders,

now “owns and holds the Property for the benefit of all [Lenders] pursuant to the Co-

Lender Agreement.” (NYSCEF 73, Lenders’ Suppl Brief at 2/7.)

Discussion

The Board moves to dismiss the complaint pursuant to CPLR 3211 (a)(3) for lack

of standing. On a motion to dismiss pursuant to CPLR 3211 (a)(3), “the burden is on

the moving defendant to establish, prima facie, the plaintiff’s lack of standing.”

(Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 59-60 [2d Dept 2015]; see also

Brunner v Estate of Lax, 137 AD3d 553, 553 [1st Dept 2016].) “To defeat a defendant’s

motion, the plaintiff has no burden of establishing its standing as a matter of law; rather,

the motion will be defeated if the plaintiff’[s submissions raise a question of fact as to its

standing.” (Deutsche Bank Trust Co. Ams., 131 AD3d at 60 [citation omitted].)

“The test for determining a litigant’s standing is well settled. A plaintiff has

standing to maintain an action upon alleging an injury in fact that falls within his

or her zone of interest. The existence of an injury in fact--an actual legal stake in

the matter being adjudicated--ensures that the party seeking review has some

concrete interest in prosecuting the action which casts the dispute in a form

traditionally capable of judicial resolution.” (Silver v Pataki, 96 NY2d 532, 539

[2001] [internal quotation marks and citation omitted], rearg denied 96 NY2d

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Motion No. 001

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938 [2001].)

The court first determines whether the Lenders had standing at the

commencement of the action. (See Rizack v Signature Bank, N.A., 169 AD3d 612, 613

[1st Dept 2019].)

The Board argues that the Lenders as merely lienholders have no standing to

bring this action to determine the retail unit owner’s obligations to pay common charges.

The Lenders counter that they have standing pursuant to the loan documents. The

Lenders cite provisions of the Mortgage3 and the Assignment,4 which list certain

3 The Lenders cite the following provisions of the Mortgage: “Mortgagor does hereby

irrevocably mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey

to Mortgagee and its successors and assigns, WITH POWER OF SALE, all right, title,

interest and estate of Mortgagor now owned, or hereafter acquired, in and to the

following (collectively, the ‘Property’): … (g) Personal Property. … general intangibles,

contract rights … and all other personal property of any kind or character whatsoever

(as defined in and subject to the provisions of the Uniform Commercial Code) other than

Fixtures, which are now or hereafter owned by Mortgagor and which are located within

or about the Land, the Unit, the Common Elements and the Improvements …; (m)

Agreements. … all agreements, contracts, certificates, instruments, franchises, permits,

licenses, plans, specifications and other documents, now or hereafter entered into, and

all rights therein and thereto, respecting or pertaining to the use, occupation,

construction, management or operation of the Land, the Unit, the Common Elements

and any part thereof …; (s) Condominium. All right, title and interest in and to (i) the

condominium unit known as the Retail Unit (the ‘Unit’) more particularly described in

Exhibit B attached hereto and situated on the Land as part of a condominium regime

(the ‘Condominium’) established pursuant to the condominium declaration described

on Exhibit B attached hereto (the ‘Condominium Declaration’) and (ii) the interest in

the common elements of the Condominium appurtenant to ownership of the Unit.”

(NYSCEF 20, Mortgage ¶ 1.01 [g], [m], [s] [emphasis in original].)

4 The Lenders cite the following provisions of the Assignment: “Borrower hereby

absolutely and unconditionally assigns and grants to Lender the following property,

rights, interests and estates, now owned or hereafter acquired by Borrower: (a) Leases.

All leases, subleases or subsubleases, lettings, licenses, concessions or other

agreements …. (f) Other. All rights, powers, privileges, options and other benefits of

Borrower as the lessor under any of the Leases … including, without limitation, the

immediate and continuing right … to do all other things which Borrower or any lessor is

or may become entitled to do under any of the Leases or Lease Guaranties.” (NYSCEF

21, Assignment ¶ 1.1 [a], [f] [emphasis in original].)

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Motion No. 001

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mortgaged and assigned property, , arguing that these documents vested the Lenders

with the right to bring this action to protect their interest in their collateral. The Lender

state that “this lawsuit arises directly out of the Property and the Condominium

Declaration (to which the Bylaws are an exhibit), which is itself, along with all rights and

interest thereto and therein, are Lender’s collateral.” (NYSCEF 56, Opp Brief at 15/24.)

On its face, this is an action to determine the Retail Owner’s share of the Local

Law 11 façade work expenses and for the return of the alleged overpayment. The

obligation to pay common expenses is a covenant “touching and concerning the land

and thus run with the land.” (In re Raymond, 129 BR 354, 362 [Bankr SD NY 1991],

citing Neponsit Property Owners’ Assn, Inc. v Emigrant Industrial Savings Bank, 278 NY

248 [1938], rearg denied 278 NY 704 [1938].) Admittedly, however, when this action

was filed, the Lenders were not the retail unit owners; the Lenders merely held a lien on

the Property, including the retail unit (see NYSCEF 20, Mortgage ¶ 1.01), as well as an

assignment of leases, rents, and related property. (NYSCEF 21, Assignment ¶ 1.1.)

Indeed, the Lenders acknowledge that “[a] justiciable controversy exists between the

Board and Lender, on behalf of the Retail Unit, as to the method of allocation of General

Common Charges for the Local Law 11 work on the façade.” (NYSCEF 1, VC ¶ 61

[emphasis added].) The Lenders point to no provisions in the Mortgage or the

Assignment vesting the Lenders, as mere lienholders, with any interest in the

determination of the proper expense allocation method. Thus, at the time this action

was filed, the Lenders had no standing in this dispute over the proper method of

allocation of Local Law 11 work expenses between the two condominium units. (See

generally Johnson v Augsbury Org., Inc., 167 AD2d 783, 784 [3d Dept 1990] [“A lien is

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Motion No. 001

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nothing more than a right or claim against a property interest …. A real estate mortgage

is collateral security for the payment of a debt; it is personal property, not real property.

Mortgages convey no title. They [give] rise only to a lien upon the land” (internal

quotation marks and citations omitted)]; Suderov v Ogle, 149 Misc 2d 906, 909 [App

Term 1991] [“When a lease is assigned as security for a mortgage, no matter what

language is used in the instrument of assignment, no transfer of title to the lease can be

effected”].) The provision of the Mortgage giving the Lender the right, “while an Event of

Default is continuing,” to “commence any action or proceeding to protect [their] interest

… in the Property” is of no consequence. (NYSCEF 20, Mortgage ¶ 1.01 [l].)5

Further, the Lenders’ argument that the funds used to pay for the retail unit

owner’s share of the façade work expenses are also their collateral is conclusory. The

Lenders thus fail to demonstrate an injury in fact due to the Board’s allegedly improper

expense allocation between the two condominium units. (See Robinson v City of NY,

143 AD3d 641, 641 [1st Dept 2016] [“Plaintiffs lack standing to challenge the tax

classification system, as they have failed to show that they sustained an ‘injury in fact.’

Plaintiffs failed to identify where they live, other than being in apartment buildings in the

Bronx and Queens; how much rent they pay; and, what portion, if any, of their rent is

attributable to their landlord’s property tax obligation. Additionally, plaintiffs failed to

allege that they in fact paid a higher rent rate than they would have had their landlords

received a more favorable property tax rate” (citations omitted)].) Even if the underlying

5The court notes that despite the Lenders’ insistence that they have standing to bring

this action, the Lenders identified no cases where a lienholder was held to have

standing to pursue an action against a building’s board to determine an owner’s

obligations to pay common charges. The court located no such cases.

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Motion No. 001

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funds were the Lenders’ collateral, however, the Lenders would still have no standing to

bring this action, as discussed infra.6

The Lenders cite the Assignment’s provision that grants to Wilmington Trust, as

trustee, for the benefit of 2016-CD2 Trust Certificate Holders,

“[u]pon the occurrence and during the continuance of an Event of Default,

Borrower’s irrevocable power of attorney, coupled with an interest, to take any or

all of the actions set forth in Section 3.1 of this Assignment, and any and all other

actions designated by Lender for the proper management and preservation of the

Property.” (NYSCEF 21, Assignment ¶ 1.1 [h] [emphasis in original].)

Accepting as true, without deciding, the proposition that Wilmington Trust, as

trustee, for the benefit of 2016-CD2 Trust Certificate Holders, can bring this action in its

own name pursuant to the power of attorney, the condominium’s declaration bars any

actions against the Board by any party other than a unit owner. (NYSCEF 28,

Declaration ¶ 9.5 [at 25/132] [“only a Unit Owner shall exercise any rights granted under

this Declaration and the Condominium By-Laws and in no event shall any other party

but a Unit Owner maintain any action against the Condominium Board or any other Unit

Owner with respect to the rights granted under this Declaration or the Condominium By-

Laws”].) The power of attorney does not overcome this bar. (See Cortlandt St.

Recovery Corp. v Hellas Telecom., S.A.R.L., 47 Misc 3d 544, 553 [Sup Ct, NY County

2014] [citation omitted] [dismissing claims based on lack of standing where instruments

at issue “authorize[d] only a ‘Holder’ of notes … or the trustee to maintain an action to

recover on the notes” and plaintiff was an assignee “of a right of collection, not of title to

the claims”; and stating that “[t]he grant of a power of attorney — i.e. power to sue on

6In their supplemental brief, the Lenders argue that the right to file this action is also

their collateral. (NYSCEF 77, Lenders’ Suppl Brief at 5-6/12.)

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Motion No. 001

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and collect on a claim — ‘is not the equivalent of an assignment of ownership’” of the

claim (citation omitted)], rearg sub nom. Cortlandt St. Recovery Corp. v Bonderman,

2015 NY Slip Op 30180[U], *1 [Sup Ct, NY County 2015], mod sub nom. Cortlandt St.

Recovery Corp. v Hellas Telecom., S.A.R.L., 142 AD3d 833, 835 [1st Dept 2016]; see

also Mackay Shields LLC v Sea Containers, Ltd., 300 AD2d 165, 166 [1st Dept 2002]

[“The indentures define a ‘holder’ as one in whose name a senior note is registered.

Inasmuch as it is undisputed that plaintiffs are not registered holders, they are without

standing to sue, regardless of whether they are beneficial holders”].)

The Lenders acknowledge that this case “arises directly out of … the

Condominium Declaration” (NYSCEF 56, Opp Brief at 15/24), but failed to address

section 9.5 of the condominium’s declaration in their opposition. The Lenders also

failed to proffer any evidence that the Board approved the Assignment so as to raise the

issue of whether their alleged right under the Assignment to initiate this action

supersedes the bar on actions by third parties contained in section 9.5 of the

condominium’s declaration.

The Lenders next argue that “this is not the first instance in which Lender has

sought to prosecute claims relating to the Property.” (NYSCEF 56, Opp Brief at 13/24.)

The Lenders cite a judgment enforcement action, Wilmington Trust, National

Association, as Trustee for the Benefit of the Holders of CD 2016-CD2 Mortgage Trust

Commercial Mortgage Pass Through Certificates, Series 2016-CD2 v Irving Langer

(Index. No. 522793/2019), where, the Lenders argue, Wilmington Trust, as trustee, for

the benefit of 2016-CD2 Trust Certificate Holders, was substituted as plaintiff based on

the Mortgage and the Assignment. The substitution, however, was on consent, and

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Motion No. 001

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thus the issue of standing was not adjudicated. (See Index. No. 522793/2019; NYSCEF

188, April 12, 2021 Stipulation; NYSCEF 191, Order.) A stipulation filed in the judgment

enforcement action also makes clear that “the judgment at issue … has been assigned

to Lender and is the property of Lender.” (Index. No. 522793/2019, NYSCEF 188, April

12, 2021 Stipulation ¶ 1.) Here, as stated, the Lenders were merely lienholders.

The Lender’s reliance on two orders by the United States Bankruptcy Court is

misplaced for the same reasons. In both cases, the borrowers, as landlords, asserted

bankruptcy claims. (See NYSCEF 52, Hon. Kevin R Huennekens’ Order ¶ 3 [In re:

Guitar Center Holdings, Inc.]; NYSCEF 53, Hon. Lisa G. Beckerman’s Order at 1, ¶¶ 3,

4-5 [In re: Gulliver’s Gate, LLC].)7 The orders granted Wilmington Trust, as trustee, for

the benefit of 2016-CD2 Trust Certificate Holders’, unopposed motions to intervene on

the grounds that Wilmington Trust, as trustee, for the benefit of 2016-CD2 Trust

Certificate Holders, is entitled to receive any sums that would otherwise be payable in

connection with the borrowers’ claims. (See NYSCEF 52, Hon. Kevin R Huennekens’

Order ¶¶ 3, 5 [In re: Guitar Center Holdings, Inc.]; NYSCEF 66, Certificate of No

Objection [In re: Guitar Center Holdings, Inc.]; NYSCEF 53, Hon. Lisa G. Beckerman’s

Order at 1, ¶¶ 3, 4-5 [In re: Gulliver’s Gate, LLC].)

The Lenders’ lack of standing at the time this action was initiated is incurable.

(See Park Royal I LLC v HSBC Bank USA, N.A., 2022 NY Slip Op 33501[U], *3 [Sup Ct,

NY County 2022] [stating that “the lack of standing was simply not curable” where

7In In re: Gulliver’s Gate, LLC, the bankruptcy claim was field by nonparty Times

Square Associates LLC (NYSCEF 53, Hon. Lisa G. Beckerman’s Order ¶ 3 [In re:

Gulliver’s Gate, LLC]) who is an “an affiliate and assignee of the Borrowers.” (NYSCEF

56, Opp Brief at 13/24.)

154811/2023 WILMINGTON TRUST, NATIONAL ASSOCIATION, AS TRUSTEE, FOR THE Page 12 of 13

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WEST 43RD STREET CONDOMINIUM

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“plaintiffs … were asserting claims even though they lack beneficial or legal interest in

such claims” and collecting cases].) Accordingly, it is irrelevant that Wilmington Trust,

as trustee, for the benefit of 2016-CD2 Trust Certificate Holders, subsequently became

the owner “and [now] holds the [retail unit] for the benefit of all [Lenders] pursuant to the

Co-Lender Agreement.” (NYSCEF 73, Lenders’ Suppl Brief at 2/7.)

The court considered the remainder of the parties’ arguments on the issue of

standing and finds them without merit or not warranting an alternate result. Further,

having found that the Lenders lack standing to bring this action, the court declines to

consider the parties’ remaining arguments.

Accordingly, it is

ORDERED that the motion is granted, and the action is dismissed.

4/11/2025

DATE ANDREA MASLEY, J.S.C.

CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

□

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

154811/2023 WILMINGTON TRUST, NATIONAL ASSOCIATION, AS TRUSTEE, FOR THE Page 13 of 13

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