The opinion
Shanghai Commercial Bank Ltd. v New Tent, LLC
2025 NY Slip Op 31523(U)
April 26, 2025
Supreme Court, New York County
Docket Number: Index No. 850240/2024
Judge: Andrea Masley
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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This opinion is uncorrected and not selected for official
publication.
FILED: NEW YORK COUNTY CLERK 04/28/2025 11:31 AM INDEX NO. 850240/2024
NYSCEF DOC. NO. 195 RECEIVED NYSCEF: 04/26/2025
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 48
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SHANGHAI COMMERCIAL BANK LTD., NEW YORK INDEX NO. 850240/2024
BRANCH, and THE SHANGHAI COMMERCIAL &
SAVINGS BANK, LTD.,
MOTION DATE --
Plaintiffs,
MOTION SEQ. NO. 002
-v-
NEW TENT, LLC, NEO IMAGE ENTERPRISES, LLC, A&H DECISION + ORDER ON
INSTALLATION INC., MILESTONE CONSTRUCTION MOTION
CORP., COLGATE RENTALS CORP., UNITED STATES
SMALL BUSINESS ADMINISTRATION, M & D
INSTALLERS, INC., NEW YORK CITY ENVIRONMENTAL
CONTROL BOARD, NEW YORK CITY DEPARTMENT OF
FINANCE, NEW YORK STATE DEPARTMENT OF
TAXATION AND FINANCE, and JOHN DOE NO. 1 TO
JOHN DOE NO. 100,
Defendants.
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HON. ANDREA MASLEY:
The following e-filed documents, listed by NYSCEF document number (Motion 002) 77, 78, 79, 80, 81,
82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106,
107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126,
127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 146, 150,
151, 152, 153, 154, 155, 156, 157, 158, 160, 162, 163, 164, 165, 166, 169, 170, 171, 172, 173, 174,
178, 192
were read on this motion to/for JUDGMENT - SUMMARY .
In motion sequence number 002, plaintiffs Shanghai Commercial Bank Ltd., New
York Branch (Shanghai Bank) and The Shanghai Commercial & Savings Bank, Ltd.
(Shanghai Commercial & Savings Bank; together, Banks) move (i) pursuant to CPLR
3212, for summary judgment against defendants New Tent, LLC and Neo Image
Enterprises, LLC (together, Borrowers) for breach of the Forbearance Agreement,
requiring transfer of title to the property at issue in this action, 335 West 35th Street,
New York County, New York (designated as block 759, lot 18), by the terms of that
agreement, and/or, in the alternative, for foreclosure against the Borrowers, (ii) pursuant
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to CPLR 3218, to strike the Borrowers’ answer (NYSCEF Doc. No. [NYSCEF] 74), or, in
the alternative, deem the allegations identified in the accompanying memorandum of
law as admitted, (iii) pursuant to CPLR 3212, for summary judgment against defendant
M&D Installers, Inc., d/b/a M&D Door and Hardware (M&D) and to enter an order
affirming the seniority of the Banks’ lien over M&D’s mechanics’ lien; (iv) pursuant to
CPLR 3215, for default judgment against defendants Milestone Construction Corp.
(Milestone), Colgate Rentals Corp. (Colgate), the United States Small Business
Administration (USSBA), the New York City Environmental Control Board
(Environmental Control Board), the New York City Department of Finance (Department
of Finance), and the New York Department of Taxation and Finance (Department of
Taxation and Finance), and (v) pursuant to CPLR 3217, to dismiss the John Doe
defendants from the action and to amend the caption accordingly.
The Banks allege the following three claims: (1) declaratory judgment1/breach of
the Forbearance Agreement against the Borrowers, or in the alternative, (2) for
mortgage foreclosure against the Borrowers and (3) for foreclosure of personal property
against the Borrowers. (NYSCEF 2, Complaint ¶¶ 28-78.) The Banks allege no claims
against the other named defendants. As previously stated, in this motion the Banks
1 The Banks seek a declaration that the Banks “are entitled to immediately record a
deed and related documentation establishing good and valid title to 335 West 35th, and
that the Borrowers must cooperate with [the Banks] in accordance with their obligations
under the Forbearance Agreement to effectuate the same, immediately and
permanently deliver possession of the property and collateral, along with a judgment for
interest, attorneys’ fees, and costs allowable by agreement or applicable law (such
sums limited for purposes of this action to recovery from the proceeds of the collateral).”
(NYSCEF 2, Complaint ¶ 50.) Upon review of the motion papers, the Banks do not
seek a judgment for interest, attorneys’ fees, and costs.
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seek an entry of a declaratory judgment (first cause of action), or, in the alternative,
foreclosure of real and personal property (second and third causes of action).
Discussion
Items (i) and (ii)
For the reasons stated on the record on March 21, 2025, the motion is granted
as to item (i). Pursuant to the Forbearance Agreement,
“Borrower Parties hereby agree that, upon the expiration or early termination of
the Forbearance Period without the simultaneous repayment in full of the Loan,
Borrower shall immediately deliver (or shall immediately cause the delivery of)
possession of the Property to Agent, Lenders or their designee(s), free and clear
of all liens and encumbrances whatsoever except for liens and encumbrances
expressly permitted under the Loan Documents, and any other collateral granted
in connection with the Loan to Agent, Lenders or their designee(s), and the Deed
in Lieu Documents shall, upon Agent’s direction at such time or any time
thereafter, be automatically and unconditionally released from escrow to Agent or
its designee(s). From and after the expiration or termination of the Forbearance
Period, Agent shall have the right to file and/or record with the appropriate
governmental authorities the Deed In Lieu Documents and exercise Agent’s and
Lenders’ rights hereunder and thereunder against the Property …. If the Deed In
Lieu Documents are released to Agent in accordance with this Agreement, Agent
shall have the right to fill in the name of itself, any Lender, or its designee(s) as
the grantee under the Deed In Lieu Documents and/or any dates and other
factual information (which, absent manifest error shall be deemed to be correct
and accurate) required under the Deed in Lieu Documents, including, without
limitation, the legal description of the Property. If Agent elects to file and/or
record the Deed In Lieu Documents, Borrower and each other applicable
Borrower Party covenant that they shall take all action reasonably requested by
Agent or any Lender in connection with such recordation, including, without
limitation, to deliver any other documents or instruments that Agent or any
Lender reasonably believes are necessary to transfer the Property to Agent, any
Lender and/or their designee.” (NYSCEF 80, Forbearance Agreement § 3[c]
[emphasis added].)
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The Banks have demonstrated the Borrowers’ failure to repay the loan in full
upon the expiration of the forbearance period. (See NYSCEF 78, Wu2 aff ¶ 4; NYSCEF
5, Nov. 15, 2022 letter.) In light of the court’s decision, relief sought in item (ii) is moot.
Item (iii)
The Banks seek summary judgment against M&D and an order affirming the
seniority of the Banks’ lien over M&D’s mechanics’ lien. As stated, the Banks asserted
no claims against M&D in the complaint; they named M&D as defendant because M&D
“may be a necessary party as, although there does not appear to be a perfected
lien or UCC according to the title searches conducted by [the Banks], M&D filed a
proof of claim in the New Tent Bankruptcy indicating that it had a claim in the
amount of $38,683.83, approximately $8,156.37 of which was allegedly secured
by a lien on the property of New Tent with the remainder being unsecured.”
(NYSCEF 2, Complaint ¶ 18.)
M&D filed an answer with three affirmative defenses asserting that M&D’s lien is
superior to the Banks’ lien. (NYSCEF 75, Answer at 8.) Given that no claims are
asserted against M&D, summary judgment cannot be entered against M&D.
Item (iv)
The Banks seek default judgment against Milestone, Colgate, USSBA,
Environmental Control Board, Department of Finance, and Department of Taxation and
Finance for failure to answer the complaint. These parties were named as defendants
because they recorded a lien against the property at issue or may come to have such a
lien. (NYSCEF 2, Complaint ¶¶ 10, 14, 16, 22, 24.) The Banks, however, allege no
causes of action against these defendants and seek no relief from them in the
complaint. Thus, motion for default judgment against Milestone, Colgate, USSBA,
2 Chiu Nam Wu is Vice President of Shanghai Bank, which is authorized to act as agent
for Shanghai Commercial & Savings Bank. (NYSCEF 78, Wu aff ¶ 1.)
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Environmental Control Board, Department of Finance, and Department of Taxation and
Finance is denied. (See Medina v Sheng Hui Realty LLC, 2018 NY Misc LEXIS 1789,
*6-7, 2018 WL 2136441, *6-7 [Sup Ct, NY County 2018] [“On a motion for a default
judgment under CPLR 3215 based upon a failure to answer the complaint, a plaintiff
demonstrates entitlement to a default judgment against a defendant by submitting: (1)
proof of service of the summons and complaint; (2) proof of the facts constituting its
claim; and (3) proof of the defendant’s default in answering or appearing” (citations
omitted)]; Bd. of Mgrs. of 255 Hudson Condominium v Esen, 2018 NY Misc LEXIS
11105, *3 n 3 [Sup Ct, NY County] [“Although plaintiff alleges that defendants New York
City Department of Finance, New York City Water Board, and John Does 1-10 may
have liens on plaintiff’s recovery, no default can be taken against these entities since no
claims were asserted against them in the complaint”].)
Item (v)
The Banks allege that defendants “John Doe No. 1 to John Doe No. 100” are
“fictitious and unknown to [the Banks] and are named herein to designate any and all
non-party tenants, occupants, persons, corporations, or other entities, if any, having or
claiming an interest in or lien upon the Properties or any part thereof, which is subject to
the liens of [the Banks] discussed herein.” (NYSCEF 2, Complaint ¶ 25.) Upon
application to the court, it is within the court’s discretion to permit plaintiff to voluntarily
discontinue the action. (See CPLR 3217 [b].) “While the determination upon such an
application is generally within the sound discretion of the court, a party ordinarily cannot
be compelled to litigate and absent special circumstances, such as prejudice to adverse
parties, a discontinuance should be granted.” (Bank of America, National Association v
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Douglas, 110 AD3d 452, 452 [1st Dept 2013] [citations omitted].) No special
circumstance has been shown here, and thus, the court grants the portion of the motion
seeking to discontinue this action against “John Doe No. 1 to John Doe No. 100.”
This decision supplements the decision made on the record on March 21, 2025.
Accordingly, it is
ORDERED that the Shanghai Commercial Bank Ltd., New York Branch and The
Shanghai Commercial and Savings Bank, Ltd.’s motion is granted as to items (i) and (v)
and the balance of the motion is denied; and it is further
ADJUDGED and DECLARED that Shanghai Commercial Bank Ltd., New York
Branch and The Shanghai Commercial & Savings Bank, Ltd. are entitled to immediately
record a deed and related documentation establishing good and valid title to the
property at issue, 335 West 35th Street, New York County, New York (designated as
block 759, lot 18), and that the New Tent, LLC and Neo Image Enterprises, LLC must
cooperate with Shanghai Commercial Bank Ltd., New York Branch and The Shanghai
Commercial & Savings Bank, Ltd. in accordance with their obligations under the
Forbearance Agreement to effectuate the same, immediately and permanently deliver
possession of the property and collateral; and it is further
ORDERED that the action is discontinued as against “John Doe No. 1 to John
Doe No. 100”; and it is further
ORDERED that caption be amended to reflect the discontinuance and that all
future papers filed with the court bear the amended caption; and it is further
ORDERED that counsel for movants shall serve a copy of this order with notice
of entry upon the Clerk of the Court and the Clerk of the General Clerk’s Office, who are
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directed to mark the court’s records to reflect the change in the caption herein; and it is
further
ORDERED that such service upon the Clerk of the Court and the Clerk of the
General Clerk’s Office shall be made in accordance with the procedures set forth in the
Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases
(accessible at the “E-Filing” page on the court’s website at the address
www.nycourts.gov/supctmanh).
4/26/2025
DATE ANDREA MASLEY, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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