The opinion
Shanghai Commercial Bank Ltd. v Chen Found., Inc.
2025 NY Slip Op 31521(U)
April 26, 2025
Supreme Court, New York County
Docket Number: Index No. 850013/2024
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. 850013/2024
NYSCEF DOC. NO. 277 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. 850013/2024
BRANCH, and THE SHANGHAI COMMERCIAL AND
SAVINGS, BANK LTD,
MOTION DATE --
Plaintiffs,
MOTION SEQ. NO. 003
-v-
CHEN FOUNDATION, INC., TLT & J ENTERPRISES, DECISION + ORDER ON
LLC, NEW WORLD ART CENTER, INC., TSING FANG MOTION
CHEN, LUCIA CHEN, TED CHEN, JULIE CHEN, A&H
INSTALLATION INC., NEW YORK CITY DEPARTMENT
OF FINANCE, NEW YORK STATE DEPARTMENT OF
TAXATION AND FINANCE, and JOHN DOE,
Defendants.
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HON. ANDREA MASLEY:
The following e-filed documents, listed by NYSCEF document number (Motion 003) 139, 140, 141, 142,
143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162,
163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182,
183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202,
203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222,
223, 224, 225, 226, 228, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243
were read on this motion to/for JUDGMENT - SUMMARY .
In motion sequence number 003, plaintiffs Shanghai Commercial Bank Ltd., New
York Branch, and The Shanghai Commercial and Savings Bank, Ltd. (together, Banks)
move (i) pursuant to CPLR 3212, for summary judgment of foreclosure of the
mortgaged property, 250 Lafayette Street, New York County, New York (designated as
block 496, lot 27), (ii) pursuant to CPLR 3212, for summary judgment against
defendants TLT & J Enterprises, LLC (TLT & J), New World Art Center, Inc., Tsing Fang
Chen, Lucia Chen, Ted Chen, and Julie Chen (collectively, Guarantors) pursuant to the
guaranties identified in the complaint (with respect to liability only, with damages as
deficiency judgments, if any), (iii) pursuant to CPLR 3218, to strike the answer of the
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FILED: NEW YORK COUNTY CLERK 04/28/2025 11:31 AM INDEX NO. 850013/2024
NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 04/26/2025
Chen Foundation and Guarantors (NYSCEF Doc. No. [NYSCEF] 95), or, in the
alternative, to deem the allegations identified in the accompanying memorandum of law
as admitted, (iv) pursuant to CPLR 3215, for default judgment against defendants A&H
Installation, Inc. (A&H), the New York City Department of Finance (Department of
Finance), and the New York Department of Taxation and Finance (Department of
Taxation and Finance) which have not appeared in this action, and (v) pursuant to
CPLR 3217, to dismiss the John Doe defendants from the action and to amend the
caption accordingly.
The Chen Foundation, TLT & J, Tsing Fang Chen, Lucia Chen, Ted Chen, and
Julie Chen cross-move pursuant to CPLR 602 (a) to consolidate this action with
Shanghai Commercial Bank Ltd. v New Tent LLC, Index No. 850240/2024 (Masley, J.)
and New Tent LLC v Shanghai Commercial Bank Ltd., Index No Forthcoming.
The Banks allege four claims: (1) mortgage foreclosure against the Chen
Foundation; (2) foreclosure of personal property against the Chen Foundation; (3)
breach of guaranty/deficiency judgment against the Chen Foundation and the
Guarantors; and (4) breach of the Forbearance Agreement against the Chen
Foundation and the Guarantors. (NYSCEF 2, Complaint ¶¶ 40-101.) As previously
stated, the Banks seek summary judgment of foreclosure of both real and personal
property (first and second causes of action) and on liability against the Guarantors as to
the guaranties.
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FOUNDATION, INC. ET AL
Motion No. 003
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FILED: NEW YORK COUNTY CLERK 04/28/2025 11:31 AM INDEX NO. 850013/2024
NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 04/26/2025
Discussion
Cross-Motion
For the reasons stated on the record on March 21, 2025, the cross-motion is
denied. Additionally, the parties are reminded that “[c]ross-motions to motions for
summary judgment are not permitted;” motions for summary judgment are to be made
by the deadline and the time cannot be extended by filing a cross motion after seeing
the adversary’s motion. (Part 48 Procedures ¶ 10[A].)
Items (i), (ii), and (iii)
For the reasons stated on the record on March 21, 2025, the motion is granted
as to item (i) and as to item (ii) on liability only. The damages, if any, due from the
Guarantors shall be determined after the foreclosure sale. In light of the court’s
decision, relief sought in item (iii) is moot.
Item (iv)
The Banks seek default judgment against A&H, Department of Finance, and
Department of Taxation and Finance for failure to answer the complaint. The Banks
named A&H as a defendant because it “docketed a mechanic’s lien in the sum of
$400,000” (NYSCEF 2, Complaint ¶ 16) and the Departments are named because “of
any claim, title, or lien [the Departments] may have or come to have against the
Properties.” (Id. ¶¶ 18, 20.) The Banks, however, allege no causes of action against
these defendants and seek no relief from them in the complaint. Thus, the motion for
default judgment against A&H, 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
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FILED: NEW YORK COUNTY CLERK 04/28/2025 11:31 AM INDEX NO. 850013/2024
NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 04/26/2025
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 ¶ 21.) 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
Douglas, 110 AD3d 452, 452 [1st Dept 2013] [citations omitted].) No special
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FILED: NEW YORK COUNTY CLERK 04/28/2025 11:31 AM INDEX NO. 850013/2024
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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 cross-motion is denied; and it is further
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), (ii) and
(v), and the balance of the motion is denied; and it is further
ORDERED that the parties shall submit via NYSCEF end email (sfc-
part48@nycourts.gov) a proposed order appointing referee to compute the amounts
due under the mortgage and to examine whether the property identified in the notice of
pendency can be sold in parcels; and it is further
ORDERED that the issue of any damages owed shall be determined after the
foreclosure sale; 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
directed to mark the court’s records to reflect the change in the caption herein; and it is
further
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FILED: NEW YORK COUNTY CLERK 04/28/2025 11:31 AM INDEX NO. 850013/2024
NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 04/26/2025
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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FOUNDATION, INC. ET AL
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