The following papers numbered 1 to 6 were fully submitted the 3rd day of

March, 2014.`

PapersNumbered

Plaintiff's Notice of Motion for Entry of Judgment of Foreclosure Sale,

with Supporting Papers, Affirmation of Costs

and Proposed Judgment of Foreclosure and Sale

(dated February 12, 2013)..................................................................................... 1

Plaintiff's Supplemental Affirmation in Support of Motion

(dated October 15, 2013)........................................................................................2

Order to Show Cause by Defendant Dominick Toscano,

with Supporting Papers

(dated December 5, 2013)......................................................................................3

Plaintiff's Affirmation in Opposition to Order to Show Cause

(dated January 20, 2014)........................................................................................4

Plaintiff's Memorandum of Law in Opposition to Order to Show Cause

(dated January 20, 2014)........................................................................................5 [*2]

Defendant's Reply Affirmation

(dated February 3, 2014)........................................................................................6

Upon the foregoing papers, the application (Seq. No. 002) of defendant Dominick Toscano, by order to show cause dated December 5, 2013, to dismiss the complaint and vacate the notice of pendency, or, in the alternative, to stay a pending Surrogate's Court proceeding involving the subject premises is denied; plaintiff's motion (Seq. No. 001) for the entry of a Judgment of Foreclosure and Sale, and for an award of legal fees, costs and disbursements is granted to the extent indicated.

By way of background, plaintiff is the holder of a certain "Tax Lien Certificate No. 5A" dated November 16, 2011 encumbering, inter alia, real property known as Block 3791, Lot 19, a/k/a 134 Freeborn Street, Staten Island, New York. The within tax lien foreclosure proceeding was commenced on or about June 4, 2012 and an Order Appointing a Referee to Compute was granted on October 25, 2012. Subsequently, although defendant Dominick Toscano (hereinafter, "defendant") interposed a Notice of Appearance dated December 3, 2012, he did not answer the complaint.

In support of his order to show cause, defendant maintains that contrary to plaintiffs' affidavit of service, he was not served with a foreclosure notice entitled "Help for Homeowners in Foreclosure" as required by RPAPL 1303. Relying upon New York City Administrative Code §11-335 which provides, in pertinent part, that "an action to foreclose a tax lien shall be regulated by the provisions of the civil practice law and rules and by all other provisions of law, and rules of practice applicable to actions to foreclose mortgages on real property" (NY City Admin. Code §11-335 [amended L.L. 26/1996, eff. Mar.18, 1996]), defendant further maintains that RPAPL 1303 is applicable to the instant tax lien foreclosure action. According to defendant, the failure to strictly comply with this statutory notice provision is an affirmative defense that can be raised at any time. As such, the dismissal of the instant foreclosure action is sought for failure to comply with a mandatory condition predecent to the commencement of this action. Finally, movant correctly points out that while plaintiffs' process server avers that he served the "1303 NOTICE - Help for Homeowners in Foreclosure" along with the summons and complaint and notice of pendency upon Dominick Toscano by substituted service at his actual place of residence, 291 Vogel Avenue, Staten Island, New York, a copy of the purported notice was never filed with the Court.

RPAPL 1303, as amended by the Laws of 2008, c. 472, §1, applies explicitly to mortgage foreclosure actions commenced on or after September 1, 2008, involving residential real property consisting of owner-occupied one-to-four family dwellings. The instant action is not a mortgage foreclosure action, nor has defendant made any claim that the subject property is his home or has ever been used for residential purposes. As a consequence, the notice requirements set forth in RPAPL 1303 are per se inapplicable to the foreclosure of plaintiffs' tax lien (see Directors of House Beautiful at Woodbury Homeowners Association, Inc. v Godt, 96 AD3d 983, 984-985; see also, Mendel Group, Inc. v Prince, 114 AD3d 732; Marcon Affiliates, Inc. v Ventra, 112 AD3d 1095, 1096). [*3]

Turning to plaintiff's request for an award of legal fees, pursuant to New York City Administrative Code §11-335, "[a] plaintiff in an action to foreclose a tax lien shall recover reasonable attorney's fees for maintaining such action". It is well established that "reasonable attorney's fees" are commonly understood to be those fees which represent the reasonable value of the services rendered (see RAD Ventures Corp. v Artukmac, 31 AD3d 412, 414, lv denied 7 NY3d 715; NYCTL 1998-1 Trust v Oneg Shabbos, 37 AD3d 789, 790-791). In making an award of attorney's fees "the court must possess sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered" (NYCTL 1998-1 Trust v Oneg Shabbos, 37 AD3d at 791 [citation omitted]). Further, the record must contain proof as to the "customary fee charged for similar services by lawyers in the community with like experience and of comparable reputation to those by whom the prevailing party was represented" (Friedman v Miale, 69 AD3d 789, 791-792 [internal quotation marks and citation omitted], lv denied 16 NY3d 706; see NYCTL 1996-1 Trust v Stavrinos Realty Corp., 113 AD3d 602, 604-605).

Consonant with the foregoing, on the papers before the Court, it is not clear whether the attorney's fee award sought by plaintiffs is reasonable (see Friedman v Miale, 69 AD3d at 792). Thus, a hearing should be conducted to determine the appropriate attorney's fees to be awarded in this case.

Also before the Court is the moving defendant's application for a "stay" pending the resolution of a certain proceeding pursuant to SPCA §2103 (i.e., a so-called "Turnover Proceeding") in the Surrogate's Court of Richmond County, brought in his capacity as the Limited Administrator of the Estate of Vito Toscano, to compel his brother, co-defendant Stanley Toscano, to turn over, inter alia, the real property which is the subject of the instant matter. According to defendant, a stay of this action is warranted since the parties in the Surrogate's Court proceeding are negotiating a settlement that would render the foreclosure of plaintiff's tax lien moot.

In view of the numerous adjournments of plaintiffs' motion for the entry of a Judgment of Foreclosure and Sale in order to facilitate ongoing settlement negotiations between the parties in both actions, it is not apparent that a resolution is forthcoming. Moreover, there is simply no showing that the moving defendant would likely prevail on any ground (see CPLR 6301) and/or that plaintiffs are not entitled to the entry of judgment. Preliminary injunctive relief is not warranted absent sufficient evidence of "a clear legal right thereto" (East 13th St. Homesteaders' Coalition v Lower E. Side Coalition Hous. Dev., 230 AD2d 622, 623; see Rubinstein v Bullard, 285 AD2d 366, 367). Under these circumstances, no basis exists for imposing a stay of the tax lien foreclosure proceedings.

Accordingly, it is

ORDERED, that plaintiffs' motion for a Judgment of Foreclosure and Sale is granted; and it is further

ORDERED, that the amount of reasonable legal fees to be awarded to plaintiffs is hereby referred to Court Attorney/Referee, pursuant to annexed Order, jointly with the reference directed in the companion tax lien foreclosure relating to Block 3791, Lot 18, [*4]bearing Index No. 102121/2012, to hear and report, with recommendations; and it is further

ORDERED, that the Court Attorney/Referee shall file his report with all due diligence; and it is further

ORDERED, that the entry of a Judgment of Foreclosure and Sale be held in abeyance pending receipt of the report and recommendations of said Court Attorney/Referee and a motion pursuant to CPLR 4403; and it is further

ORDERED, that if trial of the issue hereby referred is not begun within sixty days from the date of this order, or before such later date as the Court Attorney/Referee may fix upon good cause shown, this order shall be cancelled and revoked, shall be remitted by the Court Attorney/Referee to the court from which it was issued, and the matter hereby referred shall immediately be returned to the court for trial of those issues (22 NYCRR §202.43[d]); and it is further

ORDERED, that the application of defendant Dominick Toscano is denied in its entirety.

E N T E R,

Dated: April 7, 2014___/S/____________________________

HON. THOMAS P. ALIOTTA

J.S.C.