Residential Bd. of Mgrs. of the Millennium Point Condominium v. Mingsen Chen

Residential Bd. of Mgrs. of the Millennium Point Condominium v Mingsen Chen

2025 NY Slip Op 32351(U) July 1, 2025

Supreme Court, New York County Docket Number: Index No. 155425/2022 Judge: Suzanne J. Adams

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.

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PRESENT:

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

HON.SUZANNEJ.ADAMS PART

Justice

40M

-----------------------------------------------------------------X INDEX NO.

MOTION DATE

MOTION SEQ. NO.

155425/2022

RESIDENTIAL BOARD OF MANAGERS OF THE

MILLENNIUM POINT CONDOMINIUM,

Plaintiff,

- V -

N/A

002

MINGSEN CHEN, SHUIGUN CHEN, J.P. MORGAN CHASE

BANK, N.A., NEW YORK CITY DEPARTMENT OF

FINANCE, JOHN DOE NO. 1 THROUGH JOHN DOE NO.

10 INCLUSIVE

DECISION + ORDER ON

MOTION

Defendant. --------------------------------. ------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 52, 53, 54, 55, 56,

57,58,59,60,61,62, 63,64,65,66,67,68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 98

were read on this motion to/for RENEWAL

Upon the foregoing documents, it is ordered that the motion of plaintiff Residential Board of Managers of the Millenium Point Condominium (the Condominium) is granted. Plaintiff commenced this action seeking to foreclose on a lien for unpaid common charges against the premises known as IO.West Street, Unit PH~lC, New York; New York 10004 (the Unit), and for an award of damages against defendants Ming sen Chen and Shuigun Chen ( the Ch ens), as well as costs and attorneys' fees pursuant to the Bylaws of the Condominium (see complaint [NYSCEF · Doc No. 1 ]). On July 5, 2022, a Notice of Pendency of this action was filed in the office of the Clerk of the County of New York (NYSCEF Doc No. 4 ). The Chens are the fee owners of the Unit, and the other named defendants have or may have mortgage or judgment liens against the Unit. It is undisputed that the Chens have defaulted under the Bylaws by refusing to pay their common charges since August 2020. By decision and order dated November 24, 2023 (see NYSCEF Doc No. 51), this court denied the Chens' motion to dismiss based on lack of personal

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Motion No. 002

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jurisdiction, and denied, without prejudice and with leave to renew, plaintiffs cross-motion for summary judgment against the Chens, and for a default judgment against the non-appearing defendants. Plaintiff now renews its motion, seeking summary judgment against the Chens, including a judgment of foreclosure and sale of the Unit; a default judgment against the non- appearing defendants (JP Morgan Chase Bank N.A. 1, The New York City Department of Finance, and John Doe No. 1 through John Doe No. 1 O); an Order of Reference pursuant to RP APL § 1321; and to amend the caption to strike the John Doe defendants. The Chens oppose the motion. Plaintiffs prior motion was denied based on the Chen's argument that certain evidence submitted in support of summary judgment was not admissible. The Chens asserted that the Deed for the premises was not certified, and that the Resident Transaction Report, which records each unit owner's payment of common charges, and any indebtedness caused by a failure to pay, had not been authenticated as a business record. In the instant motion, plaintiff fixes the evidentiary objections raised by the Chens in the prior motion, and the motion for summary judgment is granted.

With respect to the Deed, CPLR 4540 (b ), which governs the authentication of official records of New York, provides:

---------'-'"~Where-the-eopy-is-attested-by-an-0ffieer-0f-the-state,it-shaH-0e-aeeempaniea--e,v-· --r1---------

certificate signed by, or with a facsimile of the signature of, the clerk of a court having legal custody of the record, and, except where the copy is used in the same court or before one of its officers, with the seal of the court affixed; or signed by, or with a facsimile of the signature of, the officer having legal custody of the original, or his deputy or clerk, with his official seal affixed; or signed by, or with a facsimile of the signature of, the presiding officer, secretary or clerk of the public body or board and, except where it is certified by the clerk or secretary of either house of the legislature, with the seal of the body or board affixed. If the certificate is made by a county clerk, the county seal shall be affixed."

1 Subsequent to submission of the instant motion, plaintiff and defendant JP Morgan Chase Bank, N.A. (Chase), entered into a settlement agreement and this action was discontinued as to Chase. (See NYSCEF Doc No. 100) 155425/2022 RESIDENTIAL BOARD OF MANAGERS OF THE MILLENNIUM POINT Page 2 of 8 CONDOMINIUM vs. CHEN, MINGSEN ET AL

Motion No. 002

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In accordance with CPLR 4540 (b ), plaintiff submits with its motion_ a certified copy of the Deed, as attested to by the City Register (see NYSCEF Doc No. 60).

As to the Resident Transaction Report, CPLR 4518 (a) governs the admissibility of business records and provides, in pertinent part, that:

"Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter."

For a document to qualify as a business record within the meaning of CPLR 4518 (a), all that need be shown is that "it was made in the ordinary course of a business, that it was the regular course of that business to make the record, and that the record was made contemporaneously with the event memorialized therein" (People v King, 102 AD3d 434, 434 [!5¹Dept 2013]). In accordance with CPLR 4518 (a), plaintiff submits a Resident Transaction Report reflecting the outstanding amounts due as a result of the Chens' refusal to pay the common charges (see NYSCEF Doc No. 63). Plaintiff also submits the affirmation of Lee Oren (NYSCEF Doc No. 65), the Residential Liaison for the Residences at The Ritz-Carlton New York, Battery Park, which comprises the residential section of the Condominium. In his affirmation, Mr. Oren provides a detailed description of the manner in which the Resident Transaction Report is created, maintained and relied upon in the ordinary course of business by the Residential Board (id.,~ 12). Mr. Oren also avers that the data concerning each owner's payment (or failure to pay, as in the Chens' case) is recorded upon receipt, and that plaintiff relies on the Resident Transaction Report to create monthly invoices that are sent to owners (see id.). In a,jdition, Mr. Oren states that he has

"confirmed that the Resident Transaction Report is accurate," and that, "to date, the Chens have never contested the accuracy of those invoices" (id.).

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This court finds that the foregoing affirmation is sufficient to demonstrate that the Resident Transaction Report was created, maintained and relied upon in the ordinary course of business (see e.g. Epic W14 LLC v Malter, 212 AD3d 575, 575-576 [Pt Dept 2023] [affidavit testimony from a managing agent that a ledger was prepared in the ordinary course of business and that entries were made as "they are charged and/or when payment, if any, is' made" sufficed to authenticate the ledger]).

Accordingly, there is no genuine dispute that the Chens are in default on their ongoing obligations to pay com~on charges to the Residential Board, as reflected in the notice of lien upon which this action is based (see NYSCEF Doc No. 58), and in the updated Resident Transaction Report for the Unit, which reflects that the Chens have not made any payments towards the balance of the unpaid common charges since the notice of lien was recorded and that the Chens now owe, as of the date of this motion, $493,655.67 in unpaid common charges (see Resident Transaction Report; see also Oren affirmation,, 17). The Bylaws provide that the Residential Board is entitled to recover its costs and legal fees incurred in pursuing the payment of unpaid common charges, ' '

including through an _action to foreclose a lien for unpaid common charges (Bylaws [NYSCEF Doc No. 59], § 6.6). Thus, plaintiff has established its prima facie right to a judgment as a matter of law-on-i-ts-eauses--0f-aeti0n-in-the-e0mrlaint,ineluEling-its-eau-se-0-f-aG-tien-te-fornG-lGS~n-th----------

notice of lien.

The Chens fail to raise a triable issue of fact. In their answer (NYSCEF Doc No. 24), the Chens asserted 12 affirmative defenses (see answer,,, 43-84). The first two affirmative defenses allege that the Chens ~ere not properly served under CPLR 308 (2), which were both rejected by the court in its decision on the prior motion. The remaining ten affirmative defenses (see answer ,, 75-84), are nothing more than boilerplate, conclusory" allegations that "fail to include any

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supporting facts and are therefore subject to dismissal" (Sonimi Props. Iv Matin, 2022 NY Misc LEXIS 2329, * 7 [Sup Ct, NY County 2022]; see also D&D Bldg. Co. LLC v 206 E. 59th St. Garage' Corp., 2022 NY Misc LEXIS 8503, * 5 [Sup Ct, NY County 2022] ["conclusory and boilerplate affirmative defenses should be dismissed"]).

In addition, in their opposition to the motion, the Chens' principal argument is predicated upon their assertion that certain unidentified and unspecified amenities that were, at one time, made available to members of the public by a certain commercial unit owner of the Condominium, are now no longer available for their use. However, in making this argument, the Chens rely exclusively upon the affirmation of their counsel (see opposition affirmation [NYSCEF Doc No. 69]). The Chens' attorney fails to attach any exhibits or other admissible evidence to his affirmation (see id.). An opposition predicated entirely upon an attorney's affirmation that does not annex admissible evidence does not constitute a basis to defeat summary judgment (see e.g. G Bldrs. LLC v Bondex)ns. Co., 193 AD3d 452, 452 [Pt Dept 2021] [opposition to summary judgment "was supported only by an attorney's affirmation, which was insufficient to establish an issue of fact"]; Lewis v Safety Disposal Sys. of Pa., Inc., 12 AD3d 324, 325 [1 ^st Dept 2004] ["an opposing attorney's assertions, unsupported by any factual proof whatsoever, are ofno probative -----,'•l'H'act1-1luc,-aru:kher-efer-e,----fai-l-te--rai-se---a-tr-i-a0le---i-ssue-0f-f.aet.:..'_] r., -------------------

The court also rejects the Chens' argument that summary judgment should be denied

because the Residential Board allegedly did not comply with a requirement under RP APL § 1303 involving service of a notice printed on colored paper (see opposition affirmation, 114). While it is true that RPAPL § 1303 (4) requires notices thereunder to be served with the complaint on colored paper, RPAPL § 1303 does not apply to claims .predicated upon non~mortgage

foreclosures, such as those arising from claims by homeowners associations, condominiums and

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tax liens (see Board of Directors of House Beautiful at Woodbury Homeowners Assn., Inc. v Godt, · 96 AD3d 983, 984 [2d Dept 2012]; see e.g. Board of Mgr. of the Villas on the Bay at E. Moriches Condominium v Merkle, 2013 NY Slip Op 32806[U], * 5 [Sup Ct, Suffolk County 2013] ["the serving of a RP APL § 1303 notice is not a condition precedent to foreclose on a condominium lien for a failure to pay common charges"]). Because the instant action comprises claims sounding in non-mortgage foreclosure, RPAPL § 1303 does not apply.

The Chens next contend that the Default Notice, which they do not deny having received, was defective because it was allegedly not served via certified mail, as required by the By-Laws. The court rejects this argument, as plaintiff submits evidence that the Chens were, in fact, served (see affirmation of Scott D. Woller [NYSCEF Doc No. 76],, 13). Absent evidence that the Chens did not receive the Default Notice, or that they made a prompt objection to the manner of service, the alleged failure to serve a notice of default by certified mail does not constitute a basis upon which to defeat summary judgment (see e.g. Rower v West Chamson Corp., 210 AD2d 7, 7 [!8¹ Dept 1994] [defendant's use of certified mail instead of registered mail does not invalidate the · service of the notices of termination and cure of a lease, even though the lease required use of registered mail]; see also Juleah Co., L.P. v Greenpoint-Goldman Corp., 49 AD3d 282, 283-284 -------1+51-freptzefrSj-fBefendant-also-argues-that-the-request-for-an-est-oppel--eertifieate--was-n(')t-sent--bw-------

registered mail, as required in [the] lease. However; defendant's receipt of the request and its failure to object promptly constitute a waiver of that defect; service was not invalidated under the circumstances"]).

Hence, the motion for summary judgment is granted. The motions for a default judgment and to remove the John Doe defendants from the caption are also granted. It is undisputed that defendant The New York City Department of Finance and the John Doe defendants have all failed

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