The opinion
Wilmington Savings Fund Socy., FSB v Mallikarjun
2024 NY Slip Op 31544(U)
April 29, 2024
Supreme Court, New York County
Docket Number: Index No. 850224/2021
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.
[FILED: NEW YORK COUNTY CLERK 04/30/2024 04:39 P~ INDEX NO. 850224/2021
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 04/30/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. FRANCIS A. KAHN, Ill PART 32
Justice
-----------------------------------------------------------------------X INDEX NO. 850224/2021
WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN
MOTION DATE
ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER
TRUSTEE OF CSMC 2018-SP3 TRUST,
MOTION SEQ. NO. 001
Plaintiff,
- V -
SREERAM MALLIKARJUN, BOARD OF MANAGERS OF
THE ORION CONDOMINIUM HOMEOWNERS
ASSOCIATION, CITY OF NEW YORK ENVIRONMENTAL
CONTROL BOARD, CITY OF NEW YORK PARKING DECISION + ORDER ON
VIOLATIONS BUREAU, CITY OF NEW YORK TRANSIT MOTION
ADJUDICATION BUREAU, JOHN DOE, SAID NAME
BEING FICTITIOUS, IT BEING THE INTENTION OF
PLAINTIFF TO DESIGNATE ANY AND ALL OCCUPANTS
OF PREMISES BEING FORECLOSED HEREIN, AND ANY
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 54, 55, 56, 57, 58,
59,60,61,62,63,64,65,66,67,68, 69, 70, 71, 72, 73, 74, 75, 76, 77
ORDER OF REFERENCE/REFERENCE TO
were read on this motion to/for COMPUTE
Upon the foregoing documents, the motion and cross-motion are determined as follows:
This is an action to foreclose on a mortgage encumbering residential real property located at at
350 West 42nd Street Apartment 53C, New York, New York. The mortgagor Sreeram Mallikarjun
("Mallikarjun") defaulted in appearing at two CPLR §3408 conferences and appearing in this action.
Defendant Board of Managers of the Orion Condominium Homeowners Association ("Board")
answered and pied four crossclaims, but no affirmative defenses.
Now, Plaintiff moves for a default judgment against the non-appearing parties, for an order of
reference, for an extension of time to serve Defendant Board and to amend the caption. Defendant
Board cross-moves for, inter alia, summary judgment on its crossclaims and the appointment of a
receiver for the collection of rent. Neither Plaintiff nor Board opposes the other parties' motion.
The branches of Plaintiffs motion for a default judgment on its causes of action for a default
judgment on its foreclosure cause of action and appointment of a referee to compute are granted without
opposition. The branch of the motion to extend Plaintiffs time to serve Board, or to ratify its service, is
denied as unnecessary. Board appeared in this action and filed an answer without a personal jurisdiction
defense. As such, a claim that service upon Board was defective was waived (CPLR §3211 [e]).
850224/2021 WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY Page 1 of 4
BUT SOLELY AS OWNER TRUSTEE OF CSMC 2018-SP3 TRUST vs. MALLIKARJUN, SREERAM
ET AL
Motion No. 001
[* 1] 1 of 4
[FILED: NEW YORK COUNTY CLERK 04/30/2024 04:39 P~ INDEX NO. 850224/2021
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 04/30/2024
The branch of Board's cross-motion for issuance of a money judgment against Mallikarjun for
unpaid common charges is granted without opposition. As to the branch of the motion for the
appointment of a receiver, despite Mallikarjun's contractual assent, the appointment is not perfunctory
and a court, in the exercise of it equitable power, retains the discretion to deny the appointment of a
receiver (see ADHY Advisors LLC. v 530 W 152nd St. LLC, 82 AD3d 619 (1 st Dept 2011]; see also
Nechadim Corp. v Simmons, 171 AD3d 1195, 1197 [2 nd Dept 2019]). As it does not appear that the
premises are in imminent danger, are presently inadequate security for Plaintiffs debt or that a
prolonged litigation is presently likely, the Court finds that it is an appropriate exercise of its discretion
to decline to appoint a temporary receiver at present.
Accordingly, it is
ORDERED that the motion for a default judgment against the non-appearing parties and the
appointment of a referee to compute is granted without opposition; and it is further
ORDERED that Defendant Board of Managers of the Orion Condominium Homeowners
Association is granted summary judgment on its second and fourth crossclaims against Defendant
Sreeram Mallikarjun; and it is further
ORDERED that Defendant Board of Managers of the Orion Condominium Homeowners
Association may enter a money judgment with the New York County Clerk for $23,162.38, representing
unpaid common charges incurred after July 1, 2022, together with statutory interest from that date until
the entry of judgment. Plaintiff is also granted costs to be award upon submission to the Clerk of an
appropriate bill of costs; and it is further
ORDERED that Doron Leiby, Esq., 32 Broadway, 13th Floor, New York, New York 10004 -
212-227-4200 is hereby appointed Referee in accordance with RP APL § 1321 to compute the amount
due to Plaintiff and examine whether the tax parcel can be sold in parcels; and it is further
ORDERED that if a Defendant appears and contests the amount due, in the discretion of the
Referee, a hearing may be held, and testimony taken, otherwise the Referee shall hold no hearing and
take no testimony or evidence other than by written submission; and it is further
ORDERED that by accepting this appointment the Referee certifies that he is in compliance with
Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to §36.2 (c)
("Disqualifications from appointment"), and §36.2 (d) ("Limitations on appointments based upon
compensation"), and, if the Referee is disqualified from receiving an appointment pursuant to the
provisions of that Rule, the Referee shall immediately notify the Appointing Judge; and it is further
ORDERED that, pursuant to CPLR 8003(a), and in the discretion of the court, a fee of $350 shall
be paid to the Referee for the computation of the amount due and upon the filing of his report and the
Referee shall not request or accept additional compensation for the computation unless it has been fixed
by the court in accordance with CPLR 8003(b); and it is further
ORDERED that the Referee is prohibited from accepting or retaining any funds for himself or
paying funds to himself without compliance with Part 36 of the Rules of the Chief Administrative Judge;
and it is further
850224/2021 WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY Page 2 of 4
BUT SOLELY AS OWNER TRUSTEE OF CSMC 2018-SP3 TRUST vs. MALLIKARJUN, SREERAM
ET AL
Motion No. 001
2 of 4
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[FILED: NEW YORK COUNTY CLERK 04/30/2024 04:39 P~ INDEX NO. 850224/2021
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 04/30/2024
ORDERED that if the Referee holds a hearing or is required to perform other significant services
in issuing the report, the Referee may seek additional compensation at the Referee's usual and
customary hourly rate; and it is further
ORDERED that plaintiff shall forward all necessary documents to the Referee and to defendants
who have appeared in this case within 30 days of the date of this order and shall promptly respond to
every inquiry made by the referee (promptly means within two business days); and it is further
ORDERED that if defendant(s) have objections, they must submit them to the referee within 14
days of the mailing of plaintiffs submissions; and include these objections to the Court if opposing the
motion for a judgment of foreclosure and sale; and it is further
ORDERED the failure by defendants to submit objections to the referee shall be deemed a
waiver of objections before the Court on an application for a judgment of foreclosure and sale; and it is
further
ORDERED that plaintiff must bring a motion for a judgment of foreclosure and sale
within 30 days ofreceipt of the referee's report; and it is further
ORDERED that if plaintiff fails to meet these deadlines, then the Court may sua 5ponte vacate
this order and direct plaintiff to move again for an order of reference and the Court may sua sponte toll
interest depending on whether the delays are due to plaintiffs failure to move this litigation forward;
and it further
ORDERED, that the remaining "JOHN DOE" and "JANE DOE" defendants are hereby stricken
from the caption as unnecessary parties, and it is further
ORDERED that the request that certain JOHN DOES (Refused Name) be added to the caption is
denied as the New York County Clerk will not accept a judgment with a "Doe" defendant in the caption,
and it is further
ORDERED that the caption shall read as follows:
SUPREME COURT OF THE STA TE OF NEW YORK
COUNTY OF NEW YORK
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Wilmington Savings Fund Society, FSB, not in its
individual capacity but solely as Owner Trustee of
CSMC 2018-SP3 Trust,
Plaintiff,
-against-
Sreeram Mallikarjun; Board of Managers of The Orion
Condominium Homeowners Association; City of New
York Environmental Control Board; City of New York
Parking Violations Bureau; City of New York Transit
Adjudication Bureau,
850224/2021 WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY Page 3 of 4
BUT SOLELY AS OWNER TRUSTEE OF CSMC 2018-SP3 TRUST vs. MALLIKARJUN, SREERAM
ET AL
Motion No. 001
3 of 4
[* 3]
[FILED: NEW YORK COUNTY CLERK 04/30/2024 04:39 P~ INDEX NO. 850224/2021
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 04/30/2024
Defendants.
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and it is further
ORDERED that counsel for plaintiff shall serve a copy of this order with notice of entry upon
the County Clerk (60 Centre Street, Room 141B) and the General Clerk's Office (60 Centre Street,
Room 119), who are directed to mark the court's records to reflect the parties being removed pursuant
hereto; and it is further
ORDERED that such service upon the County Clerk 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)]; and it is further
ORDERED that Plaintiff shall serve a copy of this Order with notice of entry on all parties and
persons entitled to notice, including the Referee appointed herein.
All parties are to appear for a virtual conference via Microsoft Teams on September 19, 2024, at
12:40 p.m. If a motion for judgment of foreclosure and sale has been filed Plaintiff may contact the Part
Clerk (SFC-Part32-Clerk@nycourts.gov) in writing to request that the conference be cancelled. If a
motion has not been made, then a conference is required to explore the reasons for the delay.
4/29/2024
DATE FRANCIS KA~rsll~.J~A.HN 111
CHECK ONE: CASE DISPOSED JolO,bLD~~!i . J.S.C.
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
850224/2021 WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY Page 4 of 4
BUT SOLELY AS OWNER TRUSTEE OF CSMC 2018-SP3 TRUST vs. MALLIKARJUN, SREERAM
ET AL
Motion No. 001
4 of 4
[* 4]