CFSP 2024-AHP1 147-03 Northern Boulevard LLC v. Flushing Realty NY LLC et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CFSP 2024-AHP1 147-03 NORTHERN
BOULEVARD LLC,
MEMORANDUM
AND ORDER
25-CV-2768 (EK) (TAM)
Plaintiff,
-against-
FLUSHING REALTY NY LLC, JOEL
WIENER, NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD,
and “JOHN DOE” NO. 1 THROUGH
“JOHN DOE” NO. 100, the names of the
“John Doe” Defendants being Fictitious
and Unknown to Plaintiff, the Persons
and Entities Intended Being Those Who
May Be in Possession of, or May Have
Possessory Liens or Other Interests in, the
Premises Herein Described,
Defendants.
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TARYN A. MERKL, United States Magistrate Judge:
Plaintiff CFSP 2024-AHP1 147-03 Northern Boulevard LLC, acting by and
through Berkeley Point Capital LLC d/b/a Newmark in its capacity as Special Servicer
(“Plaintiff” or “CFSP”), commenced this action on May 16, 2025, seeking foreclosure of
a property located at 147-03 Northern Boulevard a/k/a 35-33 147th Street, Flushing,
New York 11354, and “more particularly described as Block 5005, Lot 1 on the tax map
of the Borough and County of Queens and the City and State of New York” (the
“Property”). See generally Compl., ECF 1.
Plaintiff now moves, pursuant to Rule 66 of the Federal Rules of Civil Procedure,
to appoint Trigild IVL (“Trigild”) as receiver to secure and oversee the maintenance of
the Property until a foreclosure sale takes place. Order to Show Cause to Appoint a
Receiver, ECF 10; Mem. in Supp. of Mot. for the Appointment of Receiver (“Pl.’s
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Mem.”), ECF 10-23. Defendants Flushing Realty NY LLC (the “Borrower”) and Joel
Wiener (the “Guarantor”) (collectively, “Defendants”) oppose the motion. See Mem. in
Opp’n to Mot. to Appoint Receiver (“Opp’n”), ECF 11. The Honorable Eric R. Komitee
referred the motion to the undersigned Magistrate Judge. See July 11, 2025 ECF Order
Referring Mot. For the reasons that follow, Plaintiff’s motion to appoint Trigild as
receiver is granted.1
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. 	Factual Background
As set forth in the complaint, on or about June 12, 2015, the Borrower took out a
$4,630,000.00 loan from New York Community Bank, the original lender; the transaction
was memorialized in an amended and restated mortgage note (the “Note”), pursuant to
which the Borrower agreed, inter alia, to pay the sum of the loan plus interest at the
rates set forth in the Note. Compl., ECF 1, ¶¶ 15–16. The Note was payable on the first
day of each month (the “Monthly Payment”) from August 1, 2015, until the maturity
date, July 1, 2025 (the “Maturity Date”), on which day all unpaid principal, accrued and
1 A magistrate judge’s grant of a motion to appoint a receiver is considered non-
dispositive. See, e.g., U.S. Bank Nat’l Ass’n as Tr. for the Registered Holders of J.P. Morgan Chase
Com. Mortg. Sec. Corp. Multifamily Mortg. Pass-Through Certificates, Series 2019-SB58 v. Mazel on
Del LLC, No. 22-CV-602V(F), 2023 WL 2501046, at *2 n.4 (W.D.N.Y. Mar. 14, 2023) (citing Cadena
v. A-E. Cont., LLC, No. 3:08-CV-574 (WWE), 2013 WL 6178515, at *2 (D. Conn. Nov. 22, 2013) and
Fleet Dev. Ventures, LLC v. Brisker, No. 3:06-CV-570 (RNC), 2006 WL 2772686, at *13–14 (D. Conn.
Sept. 12, 2006)).
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unpaid interest, and all other amounts owed as part of the Loan were due and payable
in full.2 Id. ¶ 16.
On June 15, 2015, the Borrower and the original lender entered into a
consolidation, modification and extension agreement (the “CMEA”), which included a
mortgage, assignment of leases and rents, and security agreement (the “Mortgage”),
and a collateral assignment of leases and rents (the “ALR”) (collectively, the “Loan
Documents”). Id. ¶¶ 17, 19, 21.
Several of the Loan Document provisions are of relevance to the pending
receivership motion. Section 12.2 of the Mortgage provides that a failure by the
Borrower “to pay or deposit when due any amount required by the Note, this Mortgage
or any other Loan Document” constitutes an “Event of Default” under the Loan
Documents. Id. ¶ 35; CMEA, ECF 1-3, at ECF p. 55. The Mortgage also provides that
“Secured Obligations,” i.e., “all amounts due and owing or to come due under any of
the Loan Documents,” may become immediately due and payable upon the occurrence
of an Event of Default. Compl., ECF 1, ¶¶ 48–49; CMEA, ECF 1-3, at ECF p. 17. The
Mortgage further provides that, upon the occurrence and during the continuation of an
Event of Default, Plaintiff may, inter alia, apply for the appointment of a receiver,
without notice to the Borrower, as the Borrower expressly waived notice and expressly
consented to the appointment of a receiver. Compl., ECF 1, ¶ 54; see also CMEA, ECF 1-
2 Section 3(c) of the Note provides that, during the adjustable rate period, which was
July 1, 2020, through June 30, 2025, and amended to the period from December 1, 2023, until
June 30, 2025 (following the Borrower and original lender’s agreement to modify the method of
calculating the relevant interest rate), the Borrower agreed to make monthly payments in an
amount that would amortize the unpaid principal balance of the Note in equal monthly
installments; these monthly installments would include accrued interest at the applicable
adjusted interest rate. Compl., ECF 1, ¶¶ 36–39.
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3, at ECF pp. 59–60. Finally, Section 5.4(3) of the Mortgage and Paragraph 6 of the ALR
provide that, once an Event of Default occurs, the Borrower’s license to collect rents
automatically terminates and Plaintiff becomes entitled to all rents that become due and
payable, including any unpaid rents. Compl., ECF 1, ¶ 44; CMEA, ECF 1-3, at ECF pp.
33–34; see also ALR, ECF 1-5, at ECF p. 6.
The Loan and the Loan Documents were subsequently reassigned after their
initial execution. Compl., ECF 1, ¶¶ 25–31; see Notes & Allonges, ECF 1-2. As alleged in
the complaint, on April 15, 2025, the interim holder of the Loan executed and delivered
an assignment of the mortgage (the “Third Assignment of Mortgage”), an assignment of
the ALR (the “Third Assignment of ALR”), and an allonge to the Note (the “Third
Allonge”) in favor of Plaintiff, such that Plaintiff became the holder of the CMEA, the
ALR, and the Note. Compl., ECF 1, ¶¶ 32–34; see also Third Assignment of Mortgage,
ECF 1-12; Third Assignment of ALR, ECF 1-13; Notes & Allonges, ECF 1-2, at ECF p. 23.
Plaintiff alleges that the Borrower has failed to make the required Monthly
Payments due on the first day of each month from January 1, 2025, through and
including May 1, 2025 (“Payment Events of Default”). Compl., ECF 1, ¶ 40.
After the Borrower failed to make multiple Monthly Payments, on April 17, 2025,
Plaintiff provided notice, as required under the Mortgage, to the Borrower that the Loan
was in default and that the Borrower’s license to collect rents was terminated. Id. ¶ 45;
CMEA, ECF 1-3, at ECF p. 66. Plaintiff also demanded that the Borrower (1) cure the
Payment Events of Default within the 10-day period provided by Section 15.1 of the
Mortgage and (2) immediately turn over all rents collected from and after January 1,
2025, for as long as the Events of Default continue. Compl., ECF 1, ¶ 45. On April 22,
2025, the Guarantor confirmed receipt of the notice of default after Plaintiff sent the
notice to the Borrower’s new address. Id. ¶ 46. The Borrower’s time to cure the Payment
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Events of Default expired on April 28, 2025; Plaintiff alleges that the Borrower has since
failed to cure the default and failed to turn over any rents to Plaintiff. Id. ¶ 47.
On April 30, 2025, Plaintiff accelerated the Loan and declared the Secured
Obligations immediately due and payable. Id. ¶¶ 48–50. Plaintiff alleges that the
Borrower has failed to repay the Secured Obligations, and that the Loan remains
unpaid. Id. ¶¶ 60–61.
II. Procedural History
Plaintiff filed its complaint on May 16, 2025. Compl., ECF 1. Defendants filed an
answer on July 10, 2025. Answer, ECF 9.
On July 10, 2025, Plaintiff filed an order to show cause seeking emergency relief
to appoint a receiver. Order to Show Cause to Appoint a Receiver, ECF 10; see also Pl.’s
Mem., ECF 10-23; Barrett Decl., ECF 10-3. On July 11, 2025, Judge Komitee referred the
motion to the undersigned Magistrate Judge. July 11, 2025 ECF Order Referring Mot.
That same day, the Court directed Defendants to respond to Plaintiff’s order to show
cause by July 16, 2025. July 11, 2025 ECF Order.
On July 17, 2025, Defendants filed a memorandum in opposition to Plaintiff’s
order to show cause. Opp’n, ECF 11. The Court directed Plaintiff to file any response by
July 22, 2025. July 17, 2025 ECF Order. Plaintiff filed a reply in support of its order to
show cause on July 22, 2025. Reply, ECF 12.
On September 26, 2025, Plaintiff filed a motion to strike Defendants’ opposition
memorandum. Mot. to Strike, ECF 13. In the motion, Plaintiff represented that
Defendants’ opposition memorandum contained fictitious quotations.3 Id. at 1. Plaintiff
3 Plaintiff’s reply previously raised concerns about the fictitious case quotes in
Defendants’ memorandum. See Reply, ECF 12, at 1–4.
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stated that Defendants filed a “substantively identical” memorandum in a different case
in the Southern District of New York and then quickly filed a corrected memorandum
that deleted the fictitious case quotes, but did not do so in this case. Id. at 1–2. Plaintiff
then requested that the Court strike Defendants’ memorandum and decide the receiver
motion unopposed “because of Defendants’ lack of candor and diligence.” Id. at 2.
Plaintiff also directed the Court’s attention to a decision recently issued by the
Honorable Ronnie Abrams in the Southern District case, as Plaintiff suggested that it
had “identical facts and arguments detailed therein.” Id.
The Court then ordered Defendants to show cause, directing Defendants to, inter
alia, provide the Court with a copy of all cases cited in their opposition brief, or, if it
could not do so, explain in writing why counsel should not be sanctioned for
submitting fictitious case citations to the Court, and explaining why the opposition brief
should not be stricken. See Oct. 3, 2025 ECF Order. In response, Defendants’ counsel
submitted a declaration, averring that the failure to correct the inaccuracies identified in
the briefing was the result of human error, not due to the use of artificial intelligence,
and submitted a corrected opposition memorandum as Exhibit A. See generally Resp. to
Order to Show Cause, ECF 15; Corrected Mem., Ex. A, ECF 15, at ECF pp. 6–17. The
Court discharged the October 3, 2025 order to show cause, declined to impose
sanctions, accepted the corrected version of Defendants’ memorandum, and denied in
part Plaintiff’s motion to strike as unnecessary. See Oct. 15, 2025 ECF Order. The Court
also took the instant motion under advisement. Id.
DISCUSSION
I. 	Standard for Appointment of Receiver
“[R]eceivership is ‘traditionally used to protect the value of an asset that is the
subject of litigation.’” U.S. Bank Nat’l Ass’n v. Nesbitt Bellevue Prop. LLC, 866 F. Supp. 2d
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247, 255 (S.D.N.Y. 2012) (quoting United States v. Ianniello, 824 F.2d 203, 205 (2d Cir.
1987)). Appointing a receiver constitutes an “‘extraordinary remedy and . . . should be
employed cautiously and granted only when clearly necessary to protect plaintiff’s
interests in the property.’” Rosen v. Siegel, 106 F.3d 28, 34 (2d Cir. 1997) (quoting
Citibank, N.A. v. Nyland (CF8) Ltd., 839 F.2d 93, 97 (2d Cir. 1988) (internal quotation
marks omitted)). Rule 66 of the Federal Rules of Civil Procedure “govern[s] an action in
which the appointment of a receiver is sought.” Fed. R. Civ. P. 66; see also Greystone Bank
v. Tavarez, No. 09-CV-5192 (SLT) (JMA), 2010 WL 11651639, at *1 (E.D.N.Y. Apr. 26,
2010) (collecting cases discussing how federal law applies to receivership inquiries).
“[T]he existence of a provision authorizing the application for a receiver in the
event of a default, ‘strongly supports the appointment of a receiver’ when there is a
default.” Nesbitt Bellevue Prop., 866 F. Supp. 2d at 250 (quoting Nyland (CF8) Ltd., 839
F.2d at 97); see D.B. Zwirn Special Opportunities Fund, L.P. v. Tama Broad., Inc., 550 F.
Supp. 2d 481, 490–91 (S.D.N.Y. 2008). However, contractual provisions providing for
receivership, while informative, are not dispositive, see D.B. Zwirn Special Opportunities
Fund, 550 F. Supp. 2d at 491, and the appointment of a receiver falls under the
“discretion of the district court,” Miss Jones LLC v. Stiles, No. 17-CV-1450 (NSR), 2019
WL 3034906, at *2 (S.D.N.Y. July 10, 2019).
Courts look to the following equitable considerations when determining whether
to appoint a receiver:
“[1] Fraudulent conduct on the part of defendant; [2] the imminent danger
of the property being lost, concealed, injured, diminished in value, or
squandered; [3] the inadequacy of the available legal remedies; [4] the
probability that harm to plaintiff by denial of the appointment would be
greater than the injury to the parties opposing appointment; and, in more
general terms, [5] plaintiff’s probable success in the action and [6] the
possibility of irreparable injury to his interests in the property.”
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Nesbitt Bellevue Prop., 866 F. Supp. 2d at 249–50 (quoting Varsames v. Palazzolo, 96 F.
Supp. 2d 361, 365 (S.D.N.Y. 2000) (internal quotation marks omitted)). Some courts also
consider the “financial status of the debtor,” Miss Jones LLC, 2019 WL 3034906, at *2, as
well as “whether the interests of the plaintiff and others sought to be protected will in
fact be served by receivership” when assessing the appropriateness of appointing a
receiver, Greystone Bank, 2010 WL 11651639, at *2 (quotation marks omitted).
II. Analysis
A. Motion to Appoint Receiver
Plaintiff argues that receivership is appropriate for several reasons. According to
Plaintiff, the Borrower has committed repeating and continuing Events of Default. See
Pl.’s Mem., ECF 10-23, at 1–2. More specifically, Plaintiff alleges that the Borrower has
breached the Loan Documents by (1) failing to make the Monthly Payments from
January 1, 2025, through July 1, 2025; (2) failing to deliver any rents to Plaintiff, as
required under the Mortgage and ALR; (3) failing to comply with financial reporting
obligations under Section 10.3 of the Mortgage; and (4) failing to replenish the escrow
account as required by the Loan Documents to ensure property taxes are paid.4 Id.
Plaintiff also contends that appointment of a receiver is proper here because the
Borrower expressly consented to the appointment of a receiver upon an event of default
in the Loan Documents, Plaintiff is likely to succeed on its foreclosure action, and any
other legal remedies would be inadequate. Id. at 2–3.
4 The Court notes that the complaint, which was filed on May 16, 2025, only includes
allegations of failure to make monthly payments through May 1, 2025, and failure to deliver
rents to Plaintiff as required under the Mortgage and ALR. See Compl., ECF 1, ¶¶ 59, 80, 83.
Additionally, the complaint does not include any allegations as to financial reporting
obligations or obligations as to escrow accounting.
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Defendants strongly contest the appointment of a receiver. Defendants argue
that the receivership clause in the Mortgage does not automatically entitle Plaintiff to a
receiver; rather, the appointment of a receiver is discretionary. Corrected Mem., ECF 15,
at ECF p. 16. Defendants further contend that Plaintiff’s “[c]onclusory allegations” do
not satisfy any of the factors supporting the discretionary appointment of a receiver,
and that the equitable considerations do not permit the appointment of a receiver in
cases like this one, where there is no “actual emergency.” Id. at ECF pp. 15–17 (emphasis
in original). Defendants also argue that Plaintiff lacks standing under New York law to
bring this foreclosure action.5 Id. at ECF pp. 12–15.
As noted above, the Loan Documents expressly provide for the appointment of a
receiver if an Event of Default occurs. Compl., ECF 1, ¶ 54; CMEA, ECF 1-3, at ECF pp.
59–60 (“Lender shall be entitled, as a matter of strict right, without notice to any
Person . . . to have a receiver appointed . . . .”); Pl.’s Mem., ECF 10-23, at 10. Such a
provision is not dispositive, and appointment of a receiver remains subject to the
Court’s discretion. See D.B. Zwirn Special Opportunities Fund, 550 F. Supp. 2d at 491; Miss
Jones LLC, 2019 WL 3034906, at *2. However, “the existence of such language,
presumably negotiated between the parties, is a factor militating in plaintiff’s favor.”
D.B. Zwirn Special Opportunities Fund, 550 F. Supp. 2d at 491.
Additionally, given the allegations that the Borrower has failed to pay the
Monthly Payments between January 1, 2025, and July 1, 2025, has not turned over rents
5 Defendants’ standing arguments pertain to standing to bring a foreclosure action under
New York law, which is distinct from Article III standing. See Blue Castle (Cayman) Ltd. v. Miller,
772 F. Supp. 3d 416, 423, n.5 (S.D.N.Y. 2025) (distinguishing “federal constitutional standing”
from the “separate requirements for standing in foreclosure actions governed by state law,”
which “amount to additional substantive elements for a foreclosure cause of action”).
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to Plaintiff, and has not paid the Secured Obligations, while there is no indication in the
record that the Borrower has since corrected the multiple Events of Default or fully
repaid the loan, the Court finds that Plaintiff has provided substantial evidence to show
that the loan is in default.6 See, e.g., Pl.’s Mem., ECF 10-23, at 4–6; Barrett Decl., ECF 10-3,
¶¶ 25–30. Accordingly, the burden of persuading the Court that appointment of a
receiver is improper rests with Defendants.7 See D.B. Zwirn Special Opportunities Fund,
550 F. Supp. 2d at 491; Fed. Nat’l Mortg. Ass’n v. 204 Ellery St., LLC, No. 23-CV-5343
(ENV) (RML), 2024 WL 2939179, at *3 (E.D.N.Y. Apr. 23, 2024), report and recommendation
adopted, 2024 WL 3716031 (E.D.N.Y. Aug. 8, 2024). An analysis of the equitable
considerations, which range from neutral to positive in Plaintiff’s favor, follows.
1. 	Fraudulent Conduct by Defendants
Plaintiff has acknowledged that it has no evidence that Borrower engaged in
fraudulent conduct, though it asserts that there is a “strong possibility” that fraudulent
conduct may be discovered once a receiver is appointed and reviews the Property’s
finances and accounts. Pl.’s Mem., ECF 10-23, at 11. However, “evidence of fraud is not
6 Plaintiff also argued that Defendants were in default because of their failure to comply
with their financial reporting obligations under Section 10.3 of the Mortgage and to replenish
the escrow account as required by the Loan Documents to ensure property taxes are paid. Pl.’s
Mem., ECF 10-23, at 1–2. Because neither these obligations nor the allegedly resulting defaults
were alleged in the complaint, the Court declines to rely on these arguments when determining
whether Plaintiff is likely able to establish that the loan is in default or whether receivership is
appropriate.
7 Where a mortgage contains a receivership provision, “and the mortgagee has
consented to such appointment and repeatedly defaulted on conditions of the mortgage, the
mortgagee ‘bears the burden of demonstrating why a receiver should not be appointed.’” Fed.
Nat’l Mortg. Ass’n v. 204 Ellery St., LLC, No. 23-CV-5343 (ENV) (RML), 2024 WL 2939179, at *3
(E.D.N.Y. Apr. 23, 2024) (quoting D.B. Zwirn Special Opportunities Fund, 550 F. Supp. 2d at 491),
report and recommendation adopted, 2024 WL 3716031 (E.D.N.Y. Aug. 8, 2024). Here, the Mortgage
does contain a receivership provision, and the Court finds that Plaintiff has advanced
substantial evidence that the loan is in default.
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required for the appointment of a receiver.” 204 Ellery St., 2024 WL 2939179, at *3; see
also U.S. Bank Nat’l Ass’n as Tr. for Registered Holders of Wells Fargo Com. Mortg. Sec., Inc.
v. 1078 Whillmore LLC, 740 F. Supp. 3d 157, 177 (E.D.N.Y. 2024) (appointing receiver
despite no allegations of fraud). The lack of evidence of fraud does not provide a basis
for denying relief; rather, this factor does not weigh for or against Plaintiff’s motion.
2. 	Imminent Danger to the Property and Inadequacy of Available Legal Remedies
Factors two and three require the Court to examine any imminent danger to the
property and whether the available legal remedies are adequate. Fed. Nat’l Mortg. Ass’n
v. 1488 Bushwick, LLC, No. 23-CV-4030 (RPK) (TAM), 2024 WL 4728666, at *4 (E.D.N.Y.
Nov. 8, 2024); see also Nesbitt Bellevue Prop., 866 F. Supp. 2d at 250 (observing that “the
existence of any imminent danger of the diminution of the value of the properties . . . is
a critical factor in the analysis of whether to appoint a receiver”). Plaintiff argues that
the Property is in imminent danger by virtue of the Borrower’s defaults. Pl.’s Mem.,
ECF 10-23, at 10–11. Further, Plaintiff asserts that the Loan has gone unpaid for over six
months and no amounts have been escrowed for insurance and tax payments, and that
Plaintiff has already advanced its own funds to ensure the Property’s taxes have been
timely paid and will likely have to continue to do so until a receiver is appointed or the
Property is sold. Id. at 11. Defendants, for their part, contend that there is no proof, let
alone allegations, of “tenant complaints, unpaid taxes, or municipal violations that
would suggest the property is being materially diminished.” Corrected Mem., ECF 15,
at ECF p. 15. Defendants do not, however, aver or submit evidence to show that they are
paying taxes and insurance on the Property.
Here, no evidence in the record indicates that the Property is in significant and
immediate danger. However, “other courts have found this factor met in similar cases
where plaintiffs had to advance their own funds to avoid tax liens, which would result
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in a diminution in value of the Propert[y].” CFSP 2024-AHP1 81-83 Seaman Ave. LLC v.
81 Seaman Realty LLC, No. 25-CV-4113 (RA), 2025 WL 2606687, at *4 (S.D.N.Y. Sept. 9,
2025) (alteration in original) (quotation marks omitted); see also Wilmington Tr., Nat’l
Ass’n v. 31 Prince St., LLC, No. 22-CV-5855 (JGK) (S.D.N.Y. Jan. 25, 2023) (finding a
plaintiff’s advancement of over $1.3 million to pay unpaid taxes on a borrower’s
property weighed in favor of receivership). Plaintiff has not indicated how much it has
paid in insurance and tax payments, beyond representing that it has made payments on
the Borrower’s behalf and that these payments are depleting Plaintiff’s escrow accounts.
Pl.’s Mem., ECF 10-23, at 6. On balance, however, the Court finds this factor weighs
somewhat in favor of Plaintiff.
3. 	Balance of Harms
When the Borrower is a single-asset entity, whose sole asset is the property at
issue, and the property is “the only vehicle for any meaningful recovery on the
mortgage loans . . . it is critical that the value of the Propert[y] be maintained.” 204
Ellery St., 2024 WL 2939179, at *4; see also Sovereign Bank v. 347 East 173 LLC, No. 11-CV-
1061 (LBS), 2011 WL 2693525, at *3 (S.D.N.Y. June 29, 2011) (appointing a receiver where
the “Borrowers’ continued management will irreparably harm Plaintiff’s interest in the
Mortgaged Properties”). Plaintiff argues that the balance of harms supports
receivership, as the Borrower’s sole asset is the Property, and Plaintiff is limited in its
ability to recover on the Loan. Pl.’s Mem., ECF 10-23, at 12; Reply, ECF 12, at 9.
Defendants generally assert that equity does not support receivership, but do not make
any specific arguments as to the balance of harms. Corrected Mem., ECF 15, at ECF pp.
16–17.
Given that the Borrower is a single-asset entity, and Defendants provide no
concrete harms that would befall them if a receiver is appointed, the balance of harms
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slightly favors the imposition of a receiver. See Kairos Credit Strategies Operating P’ship,
LP v. Friars Nat’l Ass’n, Inc., No. 23-CV-2960 (JPO), 2023 WL 3675921, at *3 (S.D.N.Y.
May 26, 2023) (finding a “significant diminution” of possible harm to Defendant “due to
its voluntary accession to a receivership remedy in the bargaining process”).
4. 	Plaintiff’s Probable Success
On the basis of the present record, Plaintiff has established it is likely to succeed
in this foreclosure action.
a. 	Standing to Proceed with Foreclosure
First, the Court finds that Plaintiff is likely to have established its standing to
bring a mortgage foreclosure action under New York law. “Under New York law, ‘[a]
plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that,
when the action was commenced, it was either the holder or assignee of the underlying
note.’” OneWest Bank, N.A. v. Melina, 827 F.3d 214, 222 (2d Cir. 2016) (quoting Wells
Fargo Bank, N.A. v. Rooney, 19 N.Y.S.3d 543, 544 (App. Div. 2d Dep’t 2015)). “Either a
written assignment of the underlying note or the physical delivery of the note prior to
the commencement of the foreclosure action is sufficient to transfer the obligation, and
the mortgage passes with the debt as an inseparable incident.” U.S. Bank, N.A. v.
Collymore, 890 N.Y.S.2d 578, 580 (App. Div. 2d Dep’t 2009). “‘No special form or
language is necessary to effect an assignment as long as the language shows the
intention of the owner of a right to transfer it.’” OneWest Bank, 827 F.3d at 223 (quoting
Suraleb, Inc. v. Int’l Trade Club, Inc., 788 N.Y.S.2d 403, 404 (App. Div. 2d Dep’t 2004)); see
also Courchevel 1850 LLC v. Koznitz I LLC., 23-7263-cv, 2025 WL 1512953, at *3 (2d Cir.
May 28, 2025) (summary order) (finding that a plaintiff had standing where it showed
“that it obtained the note and endorsements by physical delivery before commencing
this foreclosure action” and that it held an interest in the note).
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Here, Defendants allege that Plaintiff lacks standing because the “Third
Allonge,” which purportedly transferred the Note to Plaintiff, is facially defective, as it
was not properly and “firmly affixed” to the Note. Corrected Mem., ECF 15, at ECF pp.
13–14. Defendants heavily rely on 175 West 76th Street LLC v. Lichter Real Estate Number
One, L.L.C., 232 N.Y.S.3d 724 (Sup. Ct. N.Y. County 2025), for their standing arguments.
As Plaintiff contends, though, the holding in Lichter is tension with the majority of New
York and Second Circuit decisions. See, e.g., 81 Seaman Realty LLC, 2025 WL 2606687, at
*3 (rejecting defendant’s argument that plaintiff must show the relevant allonge was
firmly affixed to the note when it was signed); OneWest Bank, 827 F.3d at 222–23
(collecting New York Court of Appeals cases and finding that a plaintiff did not need to
“provide details pertaining to the transfer or delivery of [the] Note in order to prove its
standing to foreclose on the associated mortgage”). Furthermore, Lichter, as a New York
trial court opinion, is not binding precedent here.
In this case, Plaintiff submitted documents to illustrate that, at the time this
action was commenced, it was the assignee of the Note and Allonges via an “unbroken
chain of transfer.” Courchevel, 2025 WL 1512953, at *3; see also 81 Seaman Realty LLC, 2025
WL 2606687, at *3 (finding that CFSP established standing by demonstrating it
“possesses an interest in [the note] through a valid assignment”). See Compl., ECF 1,
¶¶ 25–34 (detailing the chain of transfer and assignments of the Mortgage and ALR to
Plaintiff on April 15, 2025, and the execution and delivery of the Third Allonge,
“pursuant to which Interim Holder transferred to Plaintiff all of its rights, title and
interest in and to the Note”); Notes & Allonges, ECF 1-2; Third Assignment of
Mortgage, ECF 1-12; Third Assignment of ALR, ECF 1-13; Reply, ECF 12, at 4–8. The
Court therefore finds that Plaintiff is likely able to show that it will succeed in
establishing standing to proceed with foreclosure under New York law.
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b. 	Evidence of Default
Second, Plaintiff has shown that the Borrower has repeatedly defaulted on the
Loan and has proffered sufficient evidence to illustrate its “probable success in the
action.” Nesbitt Bellevue Prop., 866 F. Supp. 2d at 250 (quotation marks omitted). This
factor thus weighs in favor of receivership.
5. 	Possibility of Irreparable Injury to Plaintiff’s Property Interests
As previously discussed, Plaintiff does not allege that there are current
violations, citations, or judgments against the Property, though it suggests that the
Borrower’s failure to turn over rents “present[s] Borrower with the opportunity to
misapply, misappropriate, or otherwise squander” rents and “has created massive
uncertainty” as to the Property’s operation and finances. Pl.’s Mem., ECF 10-23, at 11.
The Court finds Plaintiff’s concerns to be somewhat speculative, but acknowledges that
the record suggests there is significant rental income being generated from the Property
that has not been turned over to Plaintiff. Id.; see Compl., ECF 1, ¶ 47. This factor
therefore weighs in favor of receivership.
* 	* 	* 	* 	*
In sum, given the explicit receivership provision in the Mortgage and that the
balance of equitable factors weighs in favor of receivership, the Court finds that
appointment of a receiver is warranted, and Plaintiff’s motion to appoint a receiver is
granted.
B. Appointment of Trigild
In its motion, Plaintiff proposes Trigild, acting through one of its principals,
Chris Neilson, as receiver. Pl.’s Mem., ECF 10-23, at 13. Plaintiff posits that Trigild and
Mr. Neilson are well qualified to serve as receiver. Id.; see also Neilson Decl., ECF 10-18
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(providing Trigild’s and Mr. Neilson’s professional qualifications); Trigild’s
Receivership Assignments List, ECF 10-21; see also Trigild Proposal for Property, ECF
10-22. Defendants, while objecting to the general appointment of a receiver, have
provided no specific objection to Trigild. Plaintiff also proposes that, given Trigild’s and
Mr. Neilson’s experience as receivers, the Court waive the bond requirement for the
appointed receiver or require a minimal bond of no more than $5,000. Pl.’s Mem., ECF
10-23, at 13–14. Plaintiff suggests that “[u]nder the circumstances present here,
requiring a bond would only cause further depletion of the Borrower’s Assets, and a
bond is not essential to protect Borrower’s interest in the Property.” Id. at 14.
Trigild is a full-service commercial real estate company that has handled over
2,000 receivership appointments since 1988. Neilson Decl., ECF 10-18, ¶¶ 7–9; Trigild
Proposal for Property, ECF 10-22, at ECF p. 3; Trigild’s Receivership Assignments List,
ECF 10-21 (listing Trigild’s receiver/REO management assignments). Mr. Neilson is the
Managing Director of Trigild and an approved fiduciary in New York. See Neilson
Decl., ECF 10-18, ¶¶ 2, 4–5; Neilson CV, ECF 10-19. Mr. Neilson has also represented
that neither he nor Trigild “have any involvement or affiliation with Borrower’s
property at issue in this action, the Plaintiff, or any of the Defendants that would
interfere” with receivership. Neilson Decl., ECF 10-18, ¶ 10.
The Court finds that Trigild is well qualified to serve as receiver. It is therefore
appointed. See 204 Ellery St., 2024 WL 2939179, at *4; see also Fed. Nat’l Mortg. Ass’n v.
KRCM Astoria Portfolio Corp., No. 25-CV-1401 (NGG) (TAM), 2025 WL 2793646, at *8
(E.D.N.Y. Oct. 1, 2025) (appointing Trigild as receiver). The Court further finds that a
$5,000 bond is appropriate.
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C. Plaintiff’s Proposed Order
In support of its motion, Plaintiff submitted a proposed order appointing Trigild
as receiver. See Proposed Order, ECF 10-24. Notwithstanding the Court’s finding that
Plaintiff has shown that appointment of a receiver is warranted, the Court declines to
enter Plaintiff’s proposed order at this time.8 Rather, the parties are directed to meet and
confer to determine whether there is a proposed order on which they can agree and to
file an agreed-upon proposed order by December 1, 2025. If the parties cannot agree,
Defendants are directed to submit any objections to the terms of Plaintiff’s proposed
order by December 3, 2025; any response by Plaintiff shall be due by December 10, 2025.
See Nesbitt Bellevue Prop., 866 F. Supp. 2d at 257 (granting motion for appointment of
receiver; directing parties to provide a proposed order appointing receiver).
CONCLUSION
For the foregoing reasons, Plaintiff’s motion to appoint a receiver is granted.
Trigild, acting through its principal, Chris Neilson, will be appointed receiver for the
property located at 147-03 Northern Boulevard a/k/a 35-33 147th Street, Flushing, New
York 11354, following the parties’ supplemental submissions as outlined above.
SO ORDERED.
Dated: Brooklyn, New York
November 13, 2025
_____________________________________
TARYN A. MERKL
UNITED STATES MAGISTRATE JUDGE
8 The Court notes that some of the provisions of the proposed order purport to enjoin or
restrain third parties who have not had an opportunity to be heard in connection with this case.
See, e.g., Proposed Order, ECF 10-24, ¶ 7 (enjoining financial institutions in control of Borrower’s
assets from taking certain actions with respect to those assets); id. ¶ 9 (barring utility companies
from interrupting service due to pre-receivership liabilities). Should Plaintiff seek to include
such provisions in the final proposed order, it is directed to submit any authority in support of
its position.
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