`HON. ADAM W. SILVERMAN, J.S.C.
`---------------------------------------------------------------------X
`ISANTHES, LLC,
`
`
`Plaintiff
`
`-against-
`
`
`BURTON GUTNICK, JR., AS ADMINISTRATOR OF
`THE ESTATE OF EDWARD J. NIHILL; KATHLEEN
`NIHILL; THOMAS NIHILL; BRANDON NIHILL;
`MICHAEL NIHILL; KATHLEEN MCGARRITY;
`CITIBANK, N.A.; PEOPLE OF THE STATE OF NEW
`YORK BY THE DEPARTMENT OF TAXATION AND
`FINANCE; UNITED STATES OF AMERICA BY THE
`INTERNAL REVENUE SERVICE,
`
`
`Defendants
`
`At the Supreme Court of the State of New
`York held in and for the County of Greene, at
`the Courthouse thereof, at 320 Main Street,
`Catskill, NY 12414, on the _____ day of
`__________________, 20___.
`
`Index No. EF2016-9
`
`
`JUDGMENT OF FORECLOSURE
`AND SALE
`
`
`Mortgaged Premises
`6244 Main Street
`Tannersville, NY 12485
`
`Section: 165.20
`Block: 1
`Lot: 11.111
`
`Mortgage Servicer: Land Home Financial
`Services, Inc.
`Mortgage Servicer Phone #: 949-247-
`7400
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`---------------------------------------------------------------------X
`ON the Summons, Verified Complaint and Notice of Pendency duly filed in the Greene County
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`Clerk’s Office on January 6, 2016, the Successive Notice of Pendency filed on October 24, 2018, the
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`Supplemental Summons, Amended Complaint, and Amended Notice of Pendency filed on August 6,
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`2019, and all proceedings thereon; and on reading and filing the Notice of Motion dated April 28, 2021,
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`Affirmation of Regularity of Juliana Thibaut, Esq. dated April 28, 2021, with exhibits annexed thereto,
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`showing that all of the Defendant(s) herein have been duly served within this State with a copy of the
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`Summons in this action, or have voluntarily appeared pro se or by their respective attorneys, or after due
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`diligent efforts to effectuate service having been unsuccessful and a determination made that such service
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`upon certain Defendant(s) cannot be effected; and on proof of service upon and appearance, if any, by the
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`Defendant(s) herein heretofore filed in this action; and stating that more than the legally required number
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`Firm File No. 180965-1
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`of days have elapsed since said Defendant(s) were so served; and that all Defendant(s) herein have
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`defaulted in pleading by failing to serve an answer to said Complaint except United States of America by
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`the Internal Revenue Services, nor has their time to do so been extended; and
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` ON the Order of Reference granted September 21, 2020 and entered in the Greene County Clerk’s
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`Office on September 29, 2020, appointing Ralph C. Lewis, Jr., Esq. as Referee in this action to ascertain
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`and compute the amount due Plaintiff for principal, interest and advances made pursuant to the Note and
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`Mortgage, and to examine the Plaintiff or its agent on oath as to allegations of the complaint, and to
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`examine and report whether the Mortgaged Premises should be sold in one or more parcels;
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`
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`AND on reading and filing the oath and report of the aforesaid Referee sworn to and dated April 22,
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`2021, it appears that the sum of $86,432.15was due the Plaintiff for principal, interest and advances made
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`pursuant to the Note and Mortgage, as of April 15, 2021, plus interest for every day thereafter, on the date
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`of said Report and that the Mortgaged Premises should be sold in one parcel;
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`
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`AND this Court having initiated and held status conference(s) in accordance with the provisions of
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`Administrative Order 157/20 prior to the issuance of this Order,
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`
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`NOW, on motion of Friedman Vartolo LLP, the attorneys for the Plaintiff, it is:
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` ORDERED, that the instant motion is granted; and it is further
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` ORDERED, ADJUDGED AND DECREED that the report of Ralph C. Lewis, Jr., Esq. dated April
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`22, 2021, be, and the same is hereby, in all respects, ratified and confirmed; and it is further
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` ORDERED, ADJUDGED AND DECREED that by accepting this appointment the Referee
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`certifies that they are in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36),
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`including, but not limited to, section 36.2(c) (“Disqualification from appointment”), and section 36.2(d)
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`(“Limitations on appointments based upon compensation”); and it is further
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`Firm File No. 180965-1
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` ORDERED, ADJUDGED AND DECREED that the Mortgaged Premises 62-44 Main Street,
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`Tannersville, NY 12485; a description of said Mortgaged Premises is annexed hereto and made a part
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`hereof as Schedule A (hereinafter “Mortgaged Premises”) as further described in the complaint in this
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`action, or such part thereof as may be sufficient to discharge the mortgage debt under the Note and
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`Mortgage, the expenses of the sale and the costs of this action as provided by the Real Property Actions
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`Proceeding
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`Law
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`be
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`sold,
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`in
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`one
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`parcel,
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`at
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`public
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`auction
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`at
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`_____________________________________________________________________________
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`_____________________________________________________________________________ by and
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`under the direction of Ralph C. Lewis, Esq., who is hereby appointed Referee for that purpose; that said
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`Referee give public notice of the time and place of such sale in accordance with the law, practice of this
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`Court and RPAPL §231 in ____________________________________ and that the Plaintiff or any other
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`party to this action may become the purchaser at such sale; that in case the Plaintiff or its assignee shall
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`become the purchaser at the said sale, they shall not be required to make any deposit thereon; that said
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`Referee execute to the purchaser or purchasers on such sale a deed of the premises sold; that in the event a
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`party other than the Plaintiff or its assignee becomes the purchaser or purchasers at such sale they shall be
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`required to tender a deposit of 10% of the purchase price in certified funds and the closing of title shall be
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`had thirty days after such sale unless otherwise stipulated by all parties to the sale and if such closing is
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`required, and the Referee seeks and is awarded additional fees for said closing, those fees shall be paid by
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`purchaser; and it is further
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`ORDERED, ADJUDGED AND DECREED, that Plaintiff may assign its interests and rights
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`under the instant Judgment to a third party of its choosing by filing an Assignment of Cause of Action
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`with the County Clerk and providing a copy to the Referee appointed within the instant order; and it is
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`further
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` ORDERED, ADJUDGED AND DECREED, that if the Referee does not conduct the sale within 90
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`days of the date of the judgment, in accordance with CPLR 2004, the time fixed by RPAPL §1351(1) is
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`extended for the Referee to conduct the sale as soon as reasonably practicable; and it is further
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`ORDERED, ADJUDGED AND DECREED, that said Referee on receiving the proceeds of the
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`sale, shall forthwith pay therefrom, in accordance with their priority according to law, the taxes,
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`assessments, sewer rents or water rates which are or may become liens on the premises at the time of sale
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`with such interest or penalties which may have lawfully accrued thereon to the date of payment; and it is
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`further,
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` ORDERED, ADJUDGED AND DECREED, that Plaintiff or any other party that may become the
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`purchaser or purchasers at such sale shall pay all transfer taxes and recording expenses, any and all
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`maintenance fees and assessments, taxes, water rates, and any fees associated with the transfer of title for
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`the Mortgaged Premises accrued from the sale date forward are the obligation of the purchaser, and that in
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`the event a party, other than Plaintiff, becomes the purchaser or purchasers at such sale, the closing of title
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`shall be had thirty days after such sale unless otherwise stipulated by all parties to the sale, including
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`Plaintiff and that failure of the purchaser(s) to close within thirty days may result in forfeiture of any
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`deposit tendered by purchaser(s), in lieu of closing, and that Plaintiff reserves the right to sell to the next
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`highest bidder at said sale; that any purchaser, other than Plaintiff, shall pay interest on the purchase price
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`from the date of sale to the date of delivery of the deed; that in case Plaintiff shall become the purchaser at
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`the said sale, it shall not be required to make any deposit thereon; and it is further
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` ORDERED, ADJUDGED AND DECREED, that said Referee then deposit the balance of said
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`proceeds of sale in his/her own name as Referee in _____________________________, and shall
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`thereafter make the following payments and his/her checks drawn for that purpose shall be paid by said
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`depository;
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`Firm File No. 180965-1
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`FIRST: That statutory fees of the Referee pursuant to CPLR §8003(b) which shall not exceed the
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`sum of $750.00 unless the sale price (the amount of the accepted bid) exceeds $50,000.00 In the event the
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`sale price exceeds fifty thousand dollars and additional compensation (including commissions) in excess
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`of $750.00 is sought pursuant to CPLR §8003(b) and if no surplus monies are produced by the sale, the
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`parties may present a stipulation, signed by the Referee and all parties appearing, agreeing to a stated
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`sum, to be so-ordered by the Court. Where surplus monies will be available following the distribution of
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`sums as provided herein, or where the parties are unable to agree to the Referee’s proper compensation
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`under CPLR §8003(b), application shall be made to this Court on notice to all parties known to be entitled
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`to claim against any surplus monies, including the defaulting owner of equity of redemption. Such
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`application shall be promptly submitted to the Court within five days of the transfer of deed and prior to
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`filing the Report of Sale. The five-day period for payment of surplus money into Court as set forth in
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`RPAPL §1354(4), and the thirty-day period set forth in RPAPL §1355 for the filing of the Report of Sale
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`shall be deemed extended pending the decision of the Court regarding such application.
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`
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`In the event the scheduled sale is cancelled or postponed, pursuant to CPLR §8003(a), Plaintiff shall
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`compensate the Referee the sum of $250.00 for each adjournment or cancellation unless the Referee has
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`requested the delay. Such compensation may be recouped from the proceeds of sale as a cost to Plaintiff.
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`This order shall constitute the necessary prior authorization for compensation as set forth herein.
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`
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`No compensation in excess of $750.00, including compensation authorized pursuant to CPLR
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`§8003(a) for computation of the sum due to Plaintiff, may be accepted by the Referee without Court
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`approval and compliance with the filing provision of Section 36.4 of the Rules of the Chief Judge.
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`SECOND:
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`The expenses of sale and the advertising expenses as shown on the bills
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`presented and certified by said Referee to be correct, copies of which shall be annexed to the Report of
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`Sale and the NYC Transfer Tax, pursuant to 19 RCNY 23-03(d)(2), if applicable, payable within 30 days
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`of delivery of deed pursuant to 19 RCNY 23-08(a). The Referee shall not be held responsible for the
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`payment of penalties or fees pursuant to this appointment. Purchaser and any title company hired by the
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`Purchaser shall be responsible for any penalties or fees incurred as a result of late payment of the tax as
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`required pursuant to City Administrative Code 19 RCNY 23-08(a) which requires payment within 30
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`days. The Purchaser shall hold the Referee harmless from any such penalties as a result of late payment of
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`these taxes.
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` THIRD:
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`Pursuant to Real Property Actions and Proceedings Law 1354, in
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`accordance with their priority according to law, taxes, assessments, sewer rents, water rates and any
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`charges placed upon the property by a city agency which have priority over the foreclosed Mortgage,
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`which are liens on the premises at the time of sale with such interest or penalties which may have lawfully
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`accrued thereon the date of payment.
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`FOURTH: Said Referee shall also pay to the Plaintiff or Plaintiff’s attorney, the sum of
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`$3,501.73 to be determined by the Clerk and adjudged to the Plaintiff for costs and disbursements in this
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`action or as taxed by the Clerk on the Costs of Plaintiff and inserted therein, with interest thereon from the
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`date hereof; and also the sum of $86,432.15, the said amount so reported due as aforesaid, together with
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`contractual interest thereon from April 15, 2021, the date interest was calculated to in said report to the
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`date of entry of this Order, and thereafter the statutory post-judgment date to the date of transfer of title,
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`or so much thereof as the purchase money of the Mortgaged Premises will pay of the same, together with
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`reasonable attorney’s fees in the sum of $2,900.00 as provided for in paragraph 22 of the Mortgage,
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`together with any advances as provided for in the Note and Mortgage which plaintiff has made for taxes,
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`insurance, principal and interest and any other charges due to prior mortgages or to maintain the premises
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`pending consummation of this foreclosure sale, not previously included in the computation, upon
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`presentation to the Referee of receipts for said expenditures, all together with interest thereon pursuant to
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`the Note and Mortgage as above provided. Copies of such receipts shall be annexed to the Referee’s
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`Report of Sale pursuant to RPAPL §1355; and it is further
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`ORDERED, ADJUDGED AND DECREED that in case the Plaintiff or Plaintiff’s assignee be
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`purchaser of said Mortgaged Premises at said sale, or in the event that the rights of the purchaser at said
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`sale and the terms of sale under the judgment shall be assigned to and be acquired by the Plaintiff or
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`Plaintiff’s assignee, and a valid assignment thereof filed with said Referee, said Referee shall not require
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`the Plaintiff or its assignee to pay in cash the entire amount bid at said sale, but shall execute and deliver
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`to the Plaintiff or its assignee, a deed or deeds of the premises sold upon the payment to said Referee of
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`the amount specified above in items marked “FIRST,” “SECOND” and “THIRD,” if such expenses
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`were paid by the Referee, or in lieu of the payment of said last mentioned amounts, upon filing with said
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`Referee receipts of the proper municipal authorities showing payment thereof. The balance of the amount
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`of the bid, after deducting the aforesaid amounts paid to the Referee for compensation and expenses,
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`taxes, assessments, sewer rents and water rents, and priority liens of a city agency, shall be allowed to the
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`plaintiff and applied by said Referee upon the amounts due to the plaintiff specified in item marked
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`“FOURTH.” If upon so applying the balance of the amount bid, there shall be a surplus over and above
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`the said amounts due to the Plaintiff or its assignee, the Plaintiff or its assignee shall pay to said Referee,
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`upon delivery to Plaintiff or its assignee of said Referee’s deed, the amount of the surplus [which will be
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`applied by the Referee upon motion made pursuant to RPAPL §1351(3) and proof satisfactory to the
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`Referee of the sums due thereon, to any subordinate mortgage duly recorded against the property,
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`pursuant to RPAPL §1354(3), which payments shall be reported in the Referee’s Report of Sale.] Any
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`surplus remaining after all payments as herein provided shall be deposited into Court in accordance with
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`RPAPL §1354(4) and the Referee shall immediately give notice of such surplus to the owner of the
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`mortgaged premises as identified by Plaintiff at the time of the sale; and it is further
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` ORDERED, ADJUDGED AND DECREED that said Referee shall take the receipt of the Plaintiff’s
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`or the attorneys for the Plaintiff for the amounts paid as directed in item “FOURTH,” and file it with
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`his/her Report of Sale; that he/she deposit surplus monies, if any, with the Greene County Clerk within
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`five days after the same shall be received unless such period is deemed to be extended by the filing of an
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`application for additional compensation as set forth herein, to the credit of this action, to be withdrawn
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`only on Order of this Court, signed by a Justice of the Court; that said Referee shall make his/her report of
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`such sale under oath showing the disposition of the proceeds of the sale and accompanied by the vouchers
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`of the persons to whom payments were made, and shall file it with the Greene County Clerk within thirty
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`days after completing the sale and executing the proper conveyance to the purchaser or within thirty days
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`of the decision of the court with respect to any application for additional compensation; and it is further
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`ORDERED, ADJUDGED AND DECREED that if the proceeds of such sale be insufficient to
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`pay the amount reported due to the Plaintiff or its assignee with interest and costs as aforesaid, the
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`Plaintiff or its assignee shall recover from the Defendant, Estate of Edward J. Nihill, the whole deficiency
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`or so much thereof the Court may determine to be just and equitable of the residue of the mortgage debt
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`remaining unsatisfied after the sale of the Mortgaged Premises and the application of the proceeds
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`thereof, provided a motion for a deficiency judgment shall be made within 90 days of the delivery of the
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`deed by the Referee, and the amount thereof is determined and awarded by an order of this Court as
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`provided for in said action ; and it is further
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` ORDERED, ADJUDGED AND DECREED, that the purchasers at such sale be let into possession
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`upon service of the Referee’s deed or deeds; and it is further
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`ORDERED, ADJUDGED AND DECREED, that each and all of the Defendant(s) in this action
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`and all persons claiming under them, or any of either of them, after the filing of such notice of pendency
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`Firm File No. 180965-1
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`of this action, be and they are hereby forever barred and foreclosed of all right, claim, lien, title, interest
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`and equity of redemption in said Mortgaged Premises and each and every part thereof; and it is further
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`ORDERED, ADJUDGED AND DECREED, that said premises is to be sold in one parcel in “as
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`is” physical order and condition, subject to any state of facts that an inspection of the premises would
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`disclose; any state of facts that an accurate survey of the premises would show, and covenants,
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`restrictions, declarations, reservations, easements, rights of way and public utility agreement of record, if
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`any; any building and zoning ordinances of the municipality in which the Mortgaged Premises is located
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`and possible violations of same; any rights of tenants or persons in possession of the subject premises;
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`prior lien(s) of record, if any, except those liens addressed in §1354 of the Real Property Actions and
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`Proceeding Law; any equity of redemption of the UNITED STATES OF AMERICA to redeem the
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`premises within 120 days from date of sale; and it is further
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`ORDERED, that in the absence of the Referee, the Court may designate a Substitute Referee
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`forthwith; and it is further
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`ORDERED, that the Referee appointed herein is subject to the requirements of 36.2(c) of the
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`Chief Judge, and if the Referee is disqualified from receiving an appointment pursuant to the provisions
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`of that Rule, the Referee shall notify the Appointing Judge forthwith; and it is further
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`ORDERED, that a copy of this Judgment with Notice of Entry shall be served upon the
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`designated Referee, the owner of the equity of redemption, as of the date of this Order, any tenants named
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`in this action and any other party entitled to notice within twenty days of entry and no less than thirty (30)
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`days prior to sale; and it is further
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`Dated: _________________
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`
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`________________________________________
`HON. ADAM W. SILVERMAN, J.S.C.
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`Firm File No. 180965-1
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`SCHEDULE A—LEGAL DESCRIPTION
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`Firm File No. 180965-1
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`Firm File No. 180965-1
`Firm File No. 180965-1
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