U.S. Bank v. 167th St. CF Unit, LLC

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2023 NY Slip Op 31329(U)

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR READY CAPITAL MORTGAGE FINANCING 2020-FL4, LLC, BY AND THROUGH ITS SPECIAL SERVICER, KEYBANK NATIONAL ASSOCIATION, Plaintiff, v. 167TH STREET CF UNIT LLC, AMIR HASID, NIR AMSEL, ERAN POLACK Defendant.

Index No. 850177/2022, Motion Seq. Nos. 001, 002

Supreme Court, New York County

April 13, 2023

Unpublished Opinion

PRESENT: HON. FRANCIS A. KAHN, III Justice.

DECISION + ORDER ON MOTION

FRANCIS A. KAHN, III, A.J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 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, 68, 83, 84, 85, 86, 87, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 121 were read on this motion to/for _JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 122, 123, 124, 125, 126, 127, 128, 129 were read on this motion to/for _JUDGMENT - SUMMARY.

Upon the foregoing documents, the motion and cross-motion are determined as follows:

This is an action to foreclose on a mortgage encumbering a parcel of commercial real property located at 446-448 West 167th Street, Unit CF, New York, New York. The mortgage is evidenced by a consolidation, extension and modification agreement ("CEMA"). The CEMA secures a loan with an original principal amount of $3,931,798.00 memorialized by an amended and restated note. The mortgage and note were given by Defendant 167th Street CF Unit LLC ("167^th") to non-party Readycap Commercial, LLC ("Readycap") and executed by non-party Andrea Lawrence as Authorized Signatory of non-party HAP Development, LLC ("HAP"). HAP appears to be the third in a series of "shell" limited liability companies with ultimate control of 167^th. Concomitantly, Defendants Amir Hasid ("Hazid"), Nir Amsel ("Amsel"), Eran Polack ("Polack") executed both a guaranty of recourse obligations and a payment guaranty of the indebtedness. Defendant 167^th and non-party Keybank NA, as servicer, executed a forbearance agreement dated December 1, 2021, wherein a default in repayment was acknowledged.

Plaintiff commenced this action wherein it is alleged Defendant 167^th defaulted in repayment of the loan and the individual guarantors defaulted in their contractual obligations. Defendant 167^thanswered and pled thirteen [13] affirmative defenses, including Plaintiffs lack of standing and personal jurisdiction. Defendants Hasid, Amsel and Polack answered separately, but through the same counsel as 167^th, and pled identical affirmative defenses.

Now, Plaintiff moves (Mot Seq No 1) for summary judgment against the appearing Defendants, a default judgment against all other Defendants and an order of reference. Defendants Hasid and Amsel oppose the motion. Defendants 167^th and Polack oppose the motion and cross-move to dismiss the complaint pursuant to CPLR §3211 [a][8]. Plaintiff opposes the cross-motion. Defendants Hasid and Amsel move (Mot Seq No 2) for summary judgment dismissing the complaint based upon a lack of personal jurisdiction. Plaintiff opposes the motion.

Plaintiffs motion for summary judgment is denied as the moving papers fail to comply with sections 202.8-b[c] and 202.8-g of the Uniform Rules for Trial Courts [22 NYCRR], In any event, even were the motion considered on the merits, it would still fail.

In moving for summary judgment, Plaintiff was required to establish prima facie entitlement to judgment as a matter of law though proof of the mortgage, the note, and evidence of Defendants' default in repayment (see eg U.S. Bank, N.A. v James, 180 A.D.3d 594 [1^st Dept 2020]; Bank of NY v Knowles, 151 A.D.3d 596 [1^st Dept 2017]; Fortress Credit Corp, v Hudson Yards, LLC, 78 A.D.3d 577 [1^st Dept 2010]). Based upon Defendants' affirmative defense, Plaintiff was also required to demonstrate it had standing when this action was commenced (see eg Wells Fargo Bank, N.A. v Tricario, 180 A.D.3d 848 [2^nd Dept 2020]).

Proof supporting a prima facie case on a motion for summary judgment must be in admissible form (see CPLR §3212[b]; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 A.D.3d 780 [1^st Dept 2019]). A plaintiff may rely on evidence from persons with personal knowledge of the facts, documents in admissible form and/or persons with knowledge derived from produced admissible records (see eg U.S. Bank N.A. v Moulton, 179 A.D.3d 734, 738 [2d Dept 2020]). No particular set of business records must be proffered, as long as the admissibility requirements of CPLR 4518 [a] are fulfilled and the records evince the facts for which they are relied upon (see eg Citigroup v Kopelowitz, 147 A.D.3d 1014, 1015 [2d Dept 2017]).

Plaintiffs motion was supported with an affirmation from Shawyan Ahmadian ("Ahmadian"), an Asset Manager of Key Bank, the alleged special servicer for Plaintiff, U.S. Bank National Association, as Trustee for Ready Capital Mortgage Financing 2020-FL4, LLC ("US Bank"). Ahmadian claims his affidavit was made upon "personal knowledge" as well as the books and records of Plaintiff. However, he does not indicate what information is based on personal observation or derived from records (see Bank of N.Y.Mellon v Gordon, 171 A.D.3d 197, 206 [2d Dept 2019]["a witness may always testify as to matters which are within his or her personal knowledge through personal observation"]). To the extent Ahmadian's knowledge was based upon a review of books and records, his affidavit laid a proper foundation for the admission of Key Bank's records into evidence under CPLR §4518 (see Bank of N.Y.Mellon v Gordon, 171 A.D.3d 197 [2d Dept 2019]). Further, the records of U.S. Bank were also admissible since Ahmadian sufficiently established that those records were received from the maker, incorporated into the records Key Bank kept and that it routinely relied upon such documents in its business (see U.S. Bank N.A. v Kropp-Somoza, 191 A.D.3d 918 [2d Dept 2021]).

However, Ahmadian failed to lay an appropriate foundation for the admission the records created by the assignor and original lender, Readycap (eg. the note and mortgage). He demonstrated no knowledge of Readycap's record keeping practices nor did he attest that Readycap's records were received and incorporated into KeyBank's records (see Berkshire Bank v Fawer, 187 A.D.3d 535 [1st Dept 2020]; Indy Mac Fed. Bank, FSB v Vantassell, 187 A.D.3d 725 [2d Dept 2020]). At most, Ahmadian's affidavit demonstrates that he conducted a naked "review of [Readycap's] records maintained in the normal course of business [which] does not vest an affiant with personal knowledge" (JP Morgan Chase Bank, N.A. v Grennan, 175 A.D.3d 1513, 1517 [2d Dept 2019]).

Further, absent from Ahmadian's affidavit is any evidence demonstrating Key Bank's authority to act on behalf Plaintiff (see U.S. Bank v Tesoriero, 204 A.D.3d 1066, 1068 [2d Dept 2022]; HSBC Banyk USA, NA v Betts, 67 A.D.3d 735 [2d Dept 2009]).

Accordingly, since necessary documentary evidence proffered to demonstrate Plaintiffs prima facie case is not in admissible form, Movant failed to establish a basis for summary judgment on its cause of action for foreclosure (see Federal Natl. Mtge. Assn, v Allanah, 200 A.D.3d 947 [2d Dept 2021]).

The ...