All other terms and conditions of the order dated July 11, 20J2 (a copy of which

Transcription

1 / / SHORT FORM ORDER Present: SUPREME COURT - STATE OF NEW YORK HON. STEVEN M. JAEGER, Acting Supreme Court Justice TD BANK, N.A., TRIAL/IAS, PART 41 NASSAU COUNTY INDEX NO.: Plaintiff, -against- CHABAD OF PORT WASHINGTON, ECR GROUP LTD., MEYER MECHANICAL SERVICES, INC., AND JOHN AND JANE DOES 1-10, Defendants. Pursuant to the letter dated July 17, 2012 from the Receiver appointed by this Court's order dated July 11, 2012, and the letter dated July 26, 2012 from counsel for CHABAD OF PORT WASHINGTON, the Court hereby vacates said appointment and appoints as Receiver, E. David Woycik, Jr., Fiduciary No , 100 Herricks Road, Mineola, New York All other terms and conditions of the order dated July 11, 20J2 (a copy of which is attached hereto) remain in full force and effect. Dated: August 2, 2012 STEVEN M. JAEGER A.J S AUG MA58AU COUNTY

2 . Maniello,...'," At an I.A.S Part 41 of the Supreme Court of the State of New York, County of Nassau, held at the Courthouse at 100 Supreme Court Drive, Mineola, New York on the // date ofxwy 2012 PRESENT: HON. STEVEN M. JAEGER, Acting Supreme Court Justice TD BANK, N.A. Plaintiff, Index No against CHABAD OF PORT WASHINGTON, ECR GROU P LTD., MEYER MECHANICAL SERVICES, INC., AND JOHN AND JANE DOES 1-10, ORDER APPOINTING RECEIVER Defendants. On reading and filing the annexed Affidavit of George Guarino, sworn to February 10, / 2012 and the exhibits annexed thereto, the Affidavit of Margaret McGowan, sworn to on March 26, 2012, the Affirmation of Mark A. Slama, Esq., sworn to on March 30, 2012 and the exhibits annexed thereto, the Memorandum of Law dated March 30, 2012, Affirmation in Opposition of Esq., sworn to on April 17, 2012, Affidavit of Rabbi Shalom M. Paltiel, sworn to on April I TS, 1 w, l2012, Reply Affirmation of Mark A. Slama, Esq., sworn to on April 24, 2012, and upon all other papers and proceedings already had herein, and it appearing to the satisfaction of this Court that this action is brought to foreclosure a mortgage on a parcel of real estate in the County of Nassau from which it appears that the Plaintiff is the owner and holder of a certain mortgage on premises hereinafter described, and the Defendant, Chabad of Port Washington is in default in the payment of principal, interest, and other charges on said mortgage and that the within proceeding has been instituted for foreclosure of said mortgage and { :1}

3 ;)/ that said mortgage contains a clause authorizing the appointment of a Receiver for all rents and profits of said premises, without notice, in the event of foreclosure thereof; and the Honorable Steven M. Jaeger having issued an Orddr dated June 1, 20 (l granting the motion for the appointment of a receiver. Now, on motion of Windels Marx Lane & Mittendorf, LLP, atorneys for the Plaintiff it is ORDERED, that M UJ 6*r<k(l[j fifiduciary ID # dal& J having offices a, VOO flic, olq CXy ijy HSfti, hereby appointed Receiver with the usual powers and direction as Receiver for the benefit of the Plaintiff of all rents and pro fits now due and to become due during the pendency of this action and issuing out of the Mortgaged Premises all as set forth in the Complaint and known as 80 Shore Point Road, Port Washington, New York ("Mortgaged Premises"), and it is further ORDERED, that by accepting this appointment the Receiver certi fies that he/she is in compliance with Part 36 Rules of the Chief Judge (22NYCRR part 36), including, but not limited to section 36.2(c), ("Disquali fications from appointment."), and section 36.2(d), ("Limitations on appointments based upon compensation. " ), and it is further ORDERED, that payment of the Receiver's fees shall be determined upon written application to this Court; and it is further ORDERED, that the Receiver is authorized to forthwith take charge and enter into possession of the property; and it is fu rther ORDERED, that the said Receiver, prior to engaging in any action that may result in expenses being incurred of more that $1,000, be and he/she hereby is directed to contact the ' { :1} 2

4 " Plaintiffs attorney, Windels Marx Lane & Mittendorf, LLP, to ascertain the status of the foreclosure action and whether he/she should proceed with his/her duties; and it is further t? ORDERED, that before commencing with his/her duties ad Receiver, said Receiver shall ' W et 0 s Court his/her Oath and a bond or unde rtaking with sufficient sureties Ju thereon subject to the approval of this Court in the amount of $ SOjOdO, conditioned for the faithful performance of his duties a Receiver; and it is further ORDERED, that the said Receiver be and he/she hereby is directed to demand, collect and receive from occupants, tenants, and licensees in possession of said premises or others liable therefore, inclusive of the mortgagor, all the rents and license fees thereof to become fixed and now due and unpaid, and herea fter to become due and that said Receiver be and he/she hereby 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/or apply to the Cou rt to fix reasonable rental value and license fee value to compel the tenants and occupant(s) to attorn to the Receiver; and it is further ORDERED, that the Receiver may institute and prosecute suits for the collection of rents, license fees and other charges now due or herea fter to become due or fixed, and summary proceedings for the removal of any tenants or licenses or other persons therefrom; and it is further ORDERED, that pursuant to the provisions of the General Obligations 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 turn over to said Receiver within five (5) days, a fter said Receiver shall have qualified; and thereupon the said Receiver { :1} 3

5 ., shall hold such security subject to such disposition thereof as shall be provided in an order of this Court to be made and entered in this action; and it is further ORDERED, that anybody in possession of same shall turn over to said 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 the Defendants and their agents, officers, employees and contractors are hereby directed to deliver and attorn to the Receiver all rent lists, shareholder lists, unexpired and expired leases, proprietary leases, agreements, contracts, recognition agreements, corporate bylaws, correspondence, notices, registration statements, tenants, securities, shareholders, escrows, and lists of current rent and other monies, arrears, relating to space in the Mortgaged Premises; and it is further ORDERED, that notwithstanding anything to the contrary contained in this order, the Receiver shall not, without the further, prior order of this Court, upon prior notice to Plaintiff, make improvements or substantial repairs to the property at a cost in excess of $1,000; and it is further 0 ORDERED, that the Receiver r T$?$0m the 1050 FRANKLIN AVENUE subject premises, shall promptly deposit the sggi EN CITY NY ln acc0 in his name as Receiver, and such account shall show Hie nlneof fi ase, and the depository shall furnish monthly account statements to the Receiver and to the attorney for the Plaintiff, and its further ORDERED, that no funds shall be withdrawn from the Receiver ' s account and no check thereon shall be honored unless directed by this order or other of this Court or the check is countersigned by the Receiver ' s sureties, and it is further { :1} 4

6 ORDERED, said Receiver is not authorized to hire counsel, an accountant, auctioneer, appraiser, property manager or real estate broker (secondary appointees) without an order of this Court, said Receiver is not authorized to pay fees to any secondary appointee(s) without further order of this Court, and it is further ORDERED, that the Receiver shall procure liability insurance and from time to time, rent or lease all or any part of the Mortgaged Premises for terms of one (1) year or such longer terms as may be required by the State of New York pursuant to applicable rent rules; and keep said Mortgaged Premises insured against loss or damage by fire and other hazards for the benefit of the Plaintiff in the event Plaintiff is not the beneficiary of the owner's insurance or Plaintiff does not have its own insurance thereon; and to keep said Mortgaged Premises in repair; and to pay the taxes, assessments, water and sewer rents, vault charges, salaries of employees, supplies and other charges, to comply with all the lawful requirements of any municipal department or other autho rity of the municipality in which the Mo rtgaged Premises are situated; to procure such fire, plate glass, liability and other insurance as may be reasonably necessary thereon; all in compliance with Section 5228(a) of the Civil Practice Law and Rules; an it is further ORDERED, that the tenants, subtenants or other persons in possession of said Mortgaged Premises attorn to said Receiver and pay over to said Receiver all rents, license fees and other charges of such premises or other monies of said Mortgaged Premises now due and unpaid or that may hereafter become due; and that the Defendants and their agents, o ficers, employees and attorneys are enjoined and restrained from: (i) collecting the rents, license fees and other charges of said Mortgaged Premises; (ii) interfering in any manner with the Mortgaged Premises or its possession, or with the Receiver 's management thereof; (iii) and from transferring, removing or in any way disturbing any of the occupants or employees; and that all the tenants of the { :1} 5

7 Mortgaged Premises and other persons liable for the rents be and they hereby are enjoined and restrained from paying any rents for said Mortgaged Premises to the Defendants, their agents, servants or attorneys; and it is further ORDERED, that all persons now or herea fter in possession of the Mortgaged Premises or any part thereof, and not holding such possession under valid and existing leases, do forthwith surrender such possession to the Receiver at the option of the Receiver, subject to Emergency Rent laws, if any; and it is further ORDERED, that the Receiver, after paying the expenses of the management and care of said Mortgaged Premises, retain the balance of the money which may come into his/her hands until the sale of the said premises under the judgment to be entered into his action an/or until further order of this Court; and it is further ORDERED, that the owner turn over to the Receiver all rents collected from and after the date of this Order; and its is further ORDERED, that the Receiver comply with all lawful requirements of any municipal department or other authority of the municipality in which the Mortgaged Premises are situated; and it is further ORDERED, that the Receiver or any party hereto may at any time, on proper notice to all parties who may have appeared in this action, apply to this Court for an order or for instructions or powers necessary to enable such Receiver to property and faithfully perform his/her duties; and it is further ORDERED, that the Receiver appointed herein shall continue in his/her duties as such until the Receivership is terminated by court order; and it is further { :1} g

8 ORDERED, that the Receiver appointed herein shall file a monthly accounting from the date of this order, and each and every month thereafter during the pendency and existence of this receivership, with copies of said accounting to be forwarded to Plaintiffs attorneys; and its is further ORDERED, that the Receiver, upon receiving written notification from the Plaintiffs attorneys that the borrower has entered into a forbearance agreement with Plaintiff, shall cease from his/her duties until further w ritten notification from Plaintiffs attorneys; and so ordered by this Court, and it is further ORDERED, that the appointee named herein shall comply with Section 35a of the Judiciary Law, CPLR Sections , RPAPL Section 1325, and Part 36 Rules of the Chief Judge. ENTER: CP { :1} 7