50 At the IAS Part:of the Supreme Court of the State of New York, held in and for the County

of Kings, at the County ourthouse located at 360 Adams Street, rooklyn, New York 11901, on t h d l day of= 201 1.

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Index No. Plaintiff, -against-

24818l2008

ORDER TO SHOW CAUSE

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DO-RAY 46, INC., ROLF GFUMSTEAD, EMILY FISHER a/k/a EMILY L. FISHER, WANK ADAMS SKLAVIN ASSOCIATES, LLC, NEW YORK STATE DEPARTMENT OF T,4XATION ANDFINANCE, THE NEW Y O N CITY DEPARTMENT OF FINANCE, PARK AVENUE FUNDING, LLC, HANKS SALOON a/k/a CLOCKTOWER 46, INC., HEIDE TROW AND SONIA GORDON D/B/A STIR IT UP,

.
Pr-es

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are*

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5 14 Atlantic Avenue, Brooklyn, New York ; 46 Third Avenue, Brooklyn, New York; 48 Third Avenue, Brooklyn, New York ,which are: Kings County Block 185, Lots 24,25 and 26

Upon the annexed affirmation of Yolande I. Nicholson, Esq, dated June 24,201 1, the apers annexed thereto, LET the plaintiff SHOW CAUSE BEFORE THE COURT, at IAS Part
I

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E, Room
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-' at the Courthouse thereof,

8 r9 1

Street, Brooklyn, New York 11201 at

o'clock in the forenoon on Order should not be entered as follows: 1.

such other time as counsel may be heard, why an

Vacating the default judgment, dated April 8,20 10, in the herein action, pursuant _-"c-

to CPLR 5015(a) and (a)(3);

2.

vacating the Judgment of Foreclosure and Order of Sale, dated May 2 201 1, ---..-"---. -__
- I - "

pursuant to CPLR 5015(a), (a)(3) and (a)(5);

3.

staying the foreclosure sale of the subject premises, scheduled for Thursday, July 28,201 1; and

4.

staying the passing of the deed of the subject premises, since, among other reasons: (a) plaintiff commenced knowing that it had no cause of action to foreclose on the Subject Premises as there was payment default as alleged in the complaint; (b) plaintiff misrepresented in some instances, and in other instances, failed to provide certain facts to the Court to secure a default judgment and a judgment of foreclosure and sale; (c) plaintiff failed to meet the CPLR standard for requisite proof of its claim for a default judgment and for a judgment of foreclosure and sale; (d) plaintiff failed to comply with the CPLR requirement to substitute in the proper party as plaintiff - that is, the Federal Deposit Insurance Corporation (the

"FDIC")- following the FDIC's seizure of plaintiff more than 12 months ago;
(e) plaintiff secured a judgment of foreclosure and sale on the basis of an attorney

affirmation that failed to substantially comply with the Justice Lippman's affirmation requirements in foreclosure actions and this Court's express order of December 10,2010 therefor as part of plaintiff's application for a judgment of foreclosure and sale;
( f ) plaintiff - which following March 12,20 10 - w s no longer in operation a

submitted an application for a judgment of foreclosure and sale and substitution of

Valley National Bank as plaintiff without the requisite proof that Valley National

Bank was the owner and holder of the relevant notes.

5.

Further, restraining referee in this action from conducting a public auction to sell

the Subject Premises on Thursday, July 28,201 1, and otherwise restraining plaintiff in this action and its employees, agents and representatives, from transferring of the Subject Premises to any third person or entity, by gift, assignment, sale, or otherwise, pursuant to CPLR 63 13, pending the hearing and determination of this motion, since immediate and irreparable financial injury will result to defendants Do-Ray 46, Inc., Rolf Grimsted and Emily Fisher (defendant Owners), if plaintiff, its employees, agents and representatives are not restrained.
7.

Granting to the defendant Owners such other and further relief as this Court

deems proper, including awarding costs, disbursements, and reasonable counsel fees, as to this

/ & -Ilr-

Court seems just and proper; and it is

ORDERED that, pending the hearing and d&ermk&mof this motion, the referee

Malachy Patrick Lyons, Jr., Esq. is STAYED AND ENJOINED from holding the public auction of the Subject Premises on Thursday July 28,201 1, or any other day thereafter pursuant to the
1 ,

42PLR, including 0 63 13 and the RPAPL;

\-

ORDERED that, pending the hearing and dekmimtbn of this motion, plaintiff and

anyone or any entity or business or service acting on its behalf is STAYED AND ENJOINED

f o the public sale or other transfer, and any further deed transfer, commencement or rm
prosecution of eviction proceedings with regard to Subject Premises pursuant to the CPLR,

including 8 6313 and the RPAPL; and it is further,

ORDERED, that pending the hearing a d n

n of this motion, plaintiff and

anyone or any entity or business or service or acting on its behalf or at its direction are hereby

STAYED AND ENJOINED pursuant to CPLR 63 13 from engaging in any action, entering into any contracts, soliciting any persons or entities to list, market and sell the Subject Premises, and further STAYED AND ENJOINED from taking any further action to regain possession of the Subject Premises, and are STAYED AND ENJOINED from reselling the premises; and it is, further
ORDERED that a

- &j 7
before

which it was made upon

1

by m g u b a d -on or

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201 1, shall be deemed sufficient service thereof.

EA)-Id:

J.S.C