Wells Fargo Bank, N.A. v. 24 W. 57 APF LLC

Wells Fargo Bank, N.A. v 24 W. 57 APF LLC

2024 NY Slip Op 30483(U)

February 13, 2024

Supreme Court, New York County

Docket Number: Index No. 850014/2024

Judge: Francis A. Kahn III

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.

INDEX NO. 850014/2024

NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 02/13/2024

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. FRANCIS A. KAHN, Ill PART 32

Justice

--------------------X INDEX NO. 850014/2024

WELLS FARGO BANK, NATIONAL ASSOCIATION,

MOTION DATE

Plaintiff,

MOTION SEQ. NO. _ _ _0_0_2_ _

-v-

24 WEST 57 APF LLC,CRIMINAL COURT OF THE CITY

OF NEW YORK, CITY OF NEW YORK ENVIRONMENTAL

CONTROL BOARD, NEW YORK STATE DEPARTMENT

OF TAXATION AND FINANCE, NEW YORK CITY DECISION + ORDER ON

DEPARTMENT OF FINANCE, NEW YORK CITY MOTION

DEPARTMENT OF TRANSPORTATION, JOHN DOES 1-

10, JANE DOES 1-10

Defendant.

--------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 35, 36, 37, 38, 39,

40,41,42,43,44,45,46,47,48,49,50,51

were read on this motion to/for MISCELLANEOUS

I

Upon the foregoing documents, the motion is detennined as follows:

In this action to foreclose on a mortgage encumbering commercial real property located at 24/26

West 57th Street, New York, New York (Block 1217, Lot 20), Plaintiff moves, by ex parte motion.1,

pursuant to RPL §254[10] and RP APL §1325 for the appointment of a temporary receiver of the rents of

the mortgaged premises. Defendants submitted opposition to the motion.

In section 8.1 [g] of the Mortgage at issue it is provided that upon the occurrence of an event of

default, the mortgagee may: I

I

apply for the appointment of a receiver, trustee, liquidator or conservator of the

Property, without notice to Borrower, which notice Borrower expressly waives, and

without regard for the adequacy of the security for the Debt and without regard for the

solvency of Borrower, any guarantor or indemnitor under the Loan or any other Person

liable for the payment of the Debt and whose appointment Borrower expressly consents

to take possession of and to operate the Property and to collect the Rents and to otherwise

protect and preserve the Property

Under Real Property Law §254 [ 1O], the appointment of a receiver in the event of a default is

proper where the parties to the mortgage agree to same even without notice or without regard to the

--~-su-ff;"""1~c~ie~n-cy-ofsecunty (see ADHY Advisors LLC. v 530 W. 152nd St. LLC, 82 AD3d 619 [1 st Dept

I

1 A prior ex parte motion for the same relief was denied by order of this Court dated January 26, 2024.

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2011 ]; 366 Fourth St. Corp. v Foxfire Enters., 149 AD2d 692 [2 nd Dept 1989]). Despite the parties'

assent, the appointment is not perfunctory and the Court, in the exercise of its equitable power, retains

the discretion to deny the appointment of a receiver (see ADHY Advisors LLC. v 530 W. 152nd St. LLC,

supra; Nechadim Corp. v Simmons, 171 AD3d 1195, 1197 [2d Dept 2019D.

I . . I

In the present case, it is undisputed that the parties' mortgage provides that Plaintiff may apply

for the appointment of a receiver regardless of the adequacy of the property as security and Plaintiff pled

that Defendants defaulted in repayment Accordingly, Plaintiff established its entitlement to the

appointment of a receiver of the mortgaged premises (see eg SKW Hillside Bleeker Lender LLC v 145

Bleeker LLC, 217 DD3d 536 [t st Dept 2023 ]; CSFB 2004-C3 Bronx Apts LLC v Sinckler, Inc., 96 AD3d

680 [1 st Dept 2012]).

In opposition, Defendants have not demonstrated that denial of the appointment of a receiver is

an appropriate exercise of the Court's discretion (see id.; US Bank, NA. v Rufai, 202 AD3d 719, 721 [2d

Dept 2022]; Shaw Funding, LP v Bennett, 185 AD3d 857, 858 [2 nd Dept 2020]). The cases relied on by

Defendants regarding what circumstances must exist before a court exercises its discretion to appoint a

referee are inapposite. The cited authority predominantly concerns appointment of a receiver absent an

express agreement to same pursuant to CPLR §6401 (see eg Groh v Halloran, 86 AD2d 30 [1 st Dept

1982]), The Appellate Division cases are clear that where, as here, the mortgage contains a provision

that a lender may ''without notice and without regard for the adequacy of the security for the Debt and

without regard for the solvency of Borrower'", under RPL §254[10], that provision denotes that a

mortgagee may apply for a receiver '"regardless of proving the necessity for the appointment"' (see

GECMC 2007-Cl Ditmars Lodging, LLC v Moho/a, LLC, 84 AD3d 1311, 1312 [2d Dept 2011], citing

Naar v. IJ Litwak & Co., 260 AD2d 613 [2d Dept 1999]; see also SKW Hillside Bleeker Lender LLC v

145 Bleeker LLC, supra).

Accordingly, it is

ORDERED that the motion for the appointment of a Temporary Receiver is granted; and it is

further

ORDERED that Kenneth A. Kanfer, Esq. ofKanfer & Holtzer LLP is hereby appointed with

the usual powers and directions of a Temporary Receiver for the benefit of Plaintiff of all the rents and

profits now due and unpaid or become due during the pendency of this action and issuing out the

mortgaged property mentioned in the complaint, known by the street addresses as: 24/26 West 57th

Street, New York, New York (Block 1217, Lot 20); and it is further

ORDERED that the Temporary Receiver is authorized to take charge and enter into possession

of the property; and it is further

I

ORDERED that before entering her/his duties, the Temporary Receiver shall be sown to fairly

and faithfully discharge the duties committed to him and shall execute to the People of the State of New

York and file with the Clerk of the Court an undertaking in the sum of$300.000.00 conditioned for the

faithful discharge of the duties of Temporary Receiver; and it is further

ORDERED that the Temporary Receiver is hereby directed to demand, collect and receive from

-·--------- - the-occupa:iits,-teriaiits·ancffic-e6eeiTripi5ssession of said premises, or other persons liable therefor,

inclusive of the mortgagor, all the rents and license fees thereof now due or unpaid or hereafter that

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become fixed or due and the Temporary Receiver is authorized to institute and carry on all legal

proceedings necessary for the protection of said premises or to recover possession of the whole, or any

part thereof, and apply to this Court to fix reasonable rental value and license fee value and to compel

the tenants and occupants to attom to the Temporary Receiver; and it is further

I

I

ORDERED that the Temporary Receiver may institute and prosecute suits for the collection of

rent, license fees and other charges now due or hereafter to become due and fixed, and summary

proceedings for the removal of any t~nants or licensees or other persons therefrom; and it is further

I

ORDERED that pursuant to the General Obligation Law section 7-105, anybody holding

any deposits or advances of rental as security under any lease or license agreement affecting space in the

premises affected by this action shall tum same over to said Temporary Receiwr 1.vithin five (5) days

after said Temporary Receiver shall be qualified; and thereupon the said Temporary Receiver shall hold

such security subject to such disposition thereof as shall be provided in an Order of the Court to be made

and entered in this action; and it is further

ORDERED that anybody in possession of same shall tum over to said Temporary Receiver all

rent lists, orders, unexpired and expired leases, agreements, correspondence, notices and registration

statements relating to rental spaces or facilities in the premises; and it is further

ORDERED that notwithstanding anything to the contrary contained in this order, the

Temporary Receiver shall not, without the further, prior order of this Court, upon prior notice to the

plaintiff, make improvements or substantial repairs to the property at a cost in excess of$2,000.00,

except that in an emergency, if funds need to be expended in excess of$2,000.00 or would otherwise

require Court intervention, no Court approval will be necessary if counsel for plaintiff agrees in vvriting

that the receiver may make such disbursement; and it is further

ORDERED that the Tempodzy Receiver shall deposit all monies received by her/him into any

FDIC-insured bank where she has an account for this purpose and such account shall show the name of

this action and the Temporary Receiver shall furnish plaintiff's attorneys with monthly statements of the

receipts and expenditures of the Receivership together with a photocopy of the monthly statements

received from said depository and no withdrawals shall be made therefrom except as directed by the

Court or on a draft or check signed by the Temporary Receiver; and it is further

ORDERED that the Temporary Receiver is authorized from time to time to rent and lease any

part of the premises for terms not exceeding five (5) years or such longer terms as may be required by

applicable laws or regulations; to keep the premises insured against loss by damage or fire; to pay the

taxes, assessments, water rates, sewer rates, vault rents, salaries of employees, supplies and other

charges; to comply with all lawful requirements of any municipal department or other authority of the

municipality in which the mortgaged premises are situated and to procure such fire, liability and other

insurance as may be reasonably necessary; and it is further

ORDERED, that the tenants, licensees or other persons in possession of said premises attom to

the Temporary Receiver and pay over to the Temporary Receiver all rents, license fees, and other

charges of such premises now due and unpaid or that may hereafter become due; and that the defendants

be enjoined and restrained from collecting the rents, license fees and other charges of said premises from

interfering in any manner with the property or its possession; and from transferring, removing or in any

way disturbing and of the occupants or employees; and that all tenants, occupants, employees and

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licensees of the premises and other persons liable for the rents be and hereby are enjoined and restrained

from paying any rent or license fees or other charges for such premises to the defendants, their agents 1

I . . . I

servants or attorneys; and it is further

ORDERED that the Temporary Receiver is prohibited from incurring obligations in excess of the

monies in her hands without further Order of this Court or written consent of Plaintiff's attorney and

Plaintiff may advance money, which can be recouped in this litigation; and it is further

ORDERED that the Owner turn over to the Temporary Receiver all rents collected from and

after the date of this Order; and it is further

ORDERED that all persons now and hereafter in possession of said premises, or any part

thereof, and not holding such possession under valid and existing leases or tendencies, do forthwith

surrender such possession to the T cmporary Receiver, subject to emergency laws, if any, and it is further

ORDERED that the Temporary Receiver after paying the expenses of the management and care

of the said premises as above provided retain the balance of the monies which may come into his hands

until the sale of the said premises under the judgment to be entered in this action and/or until further

Order of this Court, and it is further

ORDERED that the Temporary Receiver, or any party hereto, may at any time, on proper notice

to all parties who have appeared in this action, apply to the Court for further and other instructions or

powers necessary to enable the Temporary Receiver to properly fulfill her duties or for interim fee

payments; and it is further

ORDERED that the appointed named herein shall comply with Section 35a of the Judiciary Law,

Sections 6401-6404 of the CPLR, Section 1325 ofRPAPL and Rule 36 of the Chief Judge; and it is

further

ORDERED that notwithstanding any other provision of this order, the Temporary Receiver shall

not appoint an attorney, managing agent, appraiser, auctioneer or accountant without prior order of this

Court, and that the receiver shall apply to the court and file a separate application for appointment of a

managing agent, attorney or other managing services pursuant to 36.1 of the Uniform Court Rules.

2/13/2024

DATE FRANCIS A. KAHN, Ill, A.J.S.C.

§

CHECK ONE: CA.SE DISPOSED NON-ANAL DISPOSITION

GRANTED □ DENIED GRANTED lN PART □ OTHER

APPLlCATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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