Upon the following papers read on this motion seeking summary judgment and a default judgment; Notice of Motion and supporting papers by plaintiff dated June 9, 2020; Notice of Cross-Motion and supporting papers__; Affirmation/affidavit in opposition and supporting papers by defendant 106 Lexington dated July 9, 2020; Affirmation/affidavit in reply and supporting papers by plaintiff dated July 15, 2020; Other__; it is, ORDERED that Plaintiff’s motion seeking a default judgment against Defendant Laura A. Roth and further seeking summary judgment against Defendant 106 Lexington Rd LLC is granted. Plaintiff’s complaint seeks to quiet title to real property located at 106 Lexington Rd, Shirley New York (“Property”) which was purchased by Plaintiff at public auction held on April 16, 2019 as a result of a judgment of foreclosure and sale entered on March 3, 2017. The Memorandum of Sale annexed to the Terms of Sale was executed on behalf of Plaintiff Rocian Lands and Property Corp. on April 16, 2019. The Purchaser’s Receipt, executed by the Referee and annexed to the Memorandum of Sale and Terms of Sale, indicated receipt of the sum of $22,000.00 as ten percent deposit. The full purchase price was $216,000.00. The Referee’s deed transferring title to Plaintiff is dated August 26, 2019 and was made effective by its terms as of April 16, 2019. It was recorded by the Suffolk County Clerk on September 16, 2019. The original deed had a small scrivener’s error in Plaintiff’s name which was corrected by correction deed dated January 15, 2020. More than three months after the sale, on July 2, 2019, the former owner of the Property, Defendant Laura A. Roth (“Roth”), executed a deed transferring her interest in the Property to Defendant 106 Lexington Rd LLC (“106 Lexington”), an LLC which was subsequently formed on October 8, 2019. The consideration for the transfer was the sum of $2,000.00. After the transfer, Defendant Roth apparently continued to live at the Property. Defendant 106 Lexington brought an eviction proceeding against her in Sixth District Court, Suffolk County in August2019. That proceeding was settled by stipulation dated August 28, 2019 providing that Roth would refund the $2,000.00 and that upon payment in full, 106 Lexington would void the deed and 106 Lexington would be dissolved as an LLC (although it had not yet formed). The within action was commenced on October 30, 2019 and issue was joined as to 106 Lexington only. Defendant Roth was served pursuant to CPLR§308(1) on January 8, 2020 and she has failed to answer or otherwise appear. The time to do so has lapsed. Plaintiff seeks no relief against Roth and avers that she was named because she was a prior owner of the property. Plaintiff further avers that Roth has no objection to the relief sought but no affidavit is offered in support of this assertion. Plaintiff now seeks summary judgment against Defendant 106 Lexington striking and dismissing Defendant 106 Lexington’s answer, awarding Plaintiff a declaration that Plaintiff is the sole legal and equitable fee owner of the premises and directing the Suffolk County Clerk to discharge 106 Lexington’s deed from the property records. Plaintiff also seeks a default judgment against Defendant Roth. A party moving for summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 NY2d 320,324,508 NYS2d 923 [1986]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (Vega v. Restani Constr. Corp., 18 NY3d 499,942 NYS2d 13 [2012]; Zuckerman v. City of New York, 49 NY2d 557,427 NYS2d 595 [1980]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see O’Brien v. Port Auth. of N.Y. & N.J., 29 NY3d 27, 52 NYS3d 68 [2017]). The opposing party must “produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Stonehill Capital Mgmt., LLC v. Bank of the West., 28 NY3d 439, 448, 68 NE3d 683, 688 [2016](quoting Alvarez v. Prospect Hosp., 68 NY2d at 324, 508 NYS2d 923, 501 NE2d 572). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party ( Ortiz v. Varsity Holdings, LLC, 18 NY3d 335,339,937 NYS2d 157 [2011]). On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (S.J. Capelin Associates v. Globe Mfg. Corp., 34 NY2d 338,357 NYS2d 478,313 NE2d 776 [1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v. Keltie’s Bum Steer, 163 AD2d 595, 559 NYS2d 354 [2d Dept 1990]). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then summary judgment should be granted (Prunty v. Keltie’s Bum Steer, supra, citing Glick & Dolleck v. Tri-Pac Export Corp., 22 NY2d 439, 293 NYS2d 93, 239 NE2d 725 [1968]; Columbus Trust Co. v. Campolo, 110 AD2d 616,487 NYS2d 105 [2d Dept 1985], affd, 66 NY2d 701, 496 NYS2d 425, 487 NE2d 282). Here, Plaintiff has demonstrated that it purchased the Property on April 16,2019, when it was the successful bidder at public auction. On that date a deposit was made and a Referee deed subsequently issued. As of the date of the foreclosure sale, Roth, who was the prior owner of the Property and defendant in the foreclosure proceedings, lost her right of redemption as a matter of law (Liberty Dabar Assocs. v. Mohammed, 183 AD3d880, 124 NYS3d 708, 710-11 [2d Dept. 2020]; LIC Assets, LLC v. Chriker Realty, LLC, 131 AD3d 946, 947, 17 NYS3d 41 [2d Dept 2015]; Chase Manhattan Mortg. Corp. v. Harper, 54 AD3d 987, 987-88, 865 NYS2d 127 [2d Dept 2008]; Am. Holdings In v. Corp. v. Josey, 71 AD3d 927,930,899NYS2d 252,255 [2d Dept. 2010]; Norwest Mortg., Inc. v. Brown, 35 AD3d 682, 683-84, 830 NYS2d 158, 159-60 [2d Dept 2006]). The extinguishment of this right occurs by operation of law regardless of whether or not the deed has yet issued (Kolkunova v. Guaranteed Home Mortg. Co., 43 AD3d 878, 878-79, 842 NYS2d 46, 47-48 [2d Dept2007]; Liberty, supra; Chase, supra). Such right cannot be revived, even by court order (Kolkunova, supra; Chase, supra; LIC, supra). Plaintiff asserts that Defendant 106 Lexington’s deed was invalid at inception because Defendant Roth possessed no right in the property and had nothing to convey. Plaintiff also claims that 106 Lexington was not a vaid entity at the time of the alleged transfer because the New York Department of State record database shows the filing date of the LLC having being October 8, 2019. 106 Lexington does not dispute its date of formation. It challenges Plaintiff s proof. The court takes notice of the information contained in the New York Department of State database. The proof provided by Plaintiff is consistent with this record and Defendant 106 Lexington provides no substantive challenge. An entity not in legal existence cannot take title in real property unless the de facto corporation doctrine, which also applies to limited liability companies, is shown to apply (Lehlev Betar, LLC v. Soto Dev. Grp., Inc., 131 AD3d 513, 15 NYS3d 168, 169-70 [2d Dept. 2015); In re Hausman, 51 AD3d 922, 923-24, 858 NYS2d 330 [2d Dept 2008], affd, 13 NY3d 408,921 NE2d 191 [2009]). “Under very limited circumstances, courts may invoke the de facto corporation doctrine where there exists (1) a law under which the corporation might be organized, (2) an attempt to organize the corporation and (3) an exercise of corporate powers thereafter” (In re Hausman, 13 NY3d 408, 412-13, 921 NE2d 191, 193-94 [2009]). Here, there is no evidence presented of any attempt to file the Articles of Organization at any time prior to the execution the deed by Defendant Roth. Based upon the extinguishment of Defendant Roth’s rights in the property prior to execution of the deed and the fact that 106 Lexington was not a legal entity at the time of the alleged property transfer, Plaintiff has made a prima facie case of entitlement to judgment as a matter of law. In opposition, Defendant 106 Lexington states that its deed pre-dated the Referee deed, that summary judgment is premature due to the lack of discovery and that there were various procedural irregularities in the foreclosure filings. Defendant 106 Lexington has demonstrated no standing to object to the foreclosure proceedings and its deed was invalid at inception. Additionally, although summary judgment may be denied, pursuant to CPLR §3212(f), under circumstances where discovery is incomplete, the discovery sought must be more than a fishing expedition. It may not be predicated upon speculative hope that evidence supporting a theory may be uncovered (Greenberg v. McLaughlin, 242 AD2d 603, 604, 662 NYS2d 100, 101 [2d Dept 1997]; Zarzona v. City of New York, 208 AD2d 920, 920, 617 NYS2d 534, 535 2d Dept 1994]; Price v. Cty. of Suffolk, 303 AD2d 571, 572, 756 NYS2d 758, 759 [2d Dept 2003]). A mere hope that further discovery will uncover some helpful fact is insufficient to deny summary judgment as premature; there must be a real basis for the assertion that discovery is necessary (Zarzona v. City of New York, 208 AD2d 920, 920, 617 NYS2d 534, 535 [2d Dept 1994]; Greenberg v. McLaughlin, 242 AD2d 603,604,662 NYS2d 100,101 [2d Dept 1997]; Price v. Cty. of Suffolk, 303 AD2d 571, 572, 756 NYS2d 758,759 [2d Dept 2003]). Defendant 106 Lexington has failed to demonstrate such necessity. It is the burden of the party opposing summary judgment to “produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Stonehill Capital Mgmt., LLC v. Bank of the West., 28 NY3d 439, 448, 68 NE3d 683, 688 [2016](quoting Alvarez v. Prospect Hosp., 68 NY2d at 324, 508 NYS2d 923, 501 NE2d 572). 106 Lexington has failed in this burden. Accordingly, summary judgment is granted in favor of Plaintiff and against 106 Lexingtoa Additionally, based upon Ms. Roth’s failure to answer or otherwise appear, Plaintiff is granted a default judgment against her. Defendant 106 Lexington’s counterclaims consist of assertions that it should be repaid for alleged expenditures made to improve the Property and that the within action is frivolous. Both claims lack merit In prior motion submissions, which were referenced in the Court’s March 12, 2020 order, 106 Lexington’s principal acknowledged that he routinely purchased properties in foreclosure if he thought there was an opportunity to negotiate with the bank due to perceived defects in the foreclosure pleadings. In this case, he cited the small typographical error in the deed, among several other factors he believed to be to his advantage. It is unclear when 106 Lexington first saw Plaintiffs deed; however, it is uncontroverted that it had knowledge of the sale no later than October 2019. Despite knowledge of the title dispute, 106 Lexington alleged that it proceeded in making expenditures related to “improvement” of the Property and it asserts a right to recover such expenditures. No evidence has been presented which would support this claim. Furthermore, 106 Lexington’s affirmative defenses lack substance. Accordingly, summary judgment is granted dismissing Defendant 106 Lexington’s counterclaims and affirmative defenses. Plaintiff has averred that Defendant is in violation of the Court’s temporary restraining order in renting out the premises to numerous tenants and that Plaintiff intends to bring a criminal contempt motion. As this motion is not yet before the Court, the Court will not comment on Defendant’s alleged activities. Based upon the foregoing, Plaintiff’s motion seeking a default judgment against Defendant Laura A. Roth is granted and summary judgment is granted as against 106 Lexington. Upon the evidence presented, the Court finds that Rocian Lands and Property Corp. is the sole legal owner of the Property. The Bargain and Sale deed from Laura A. Roth as transferor to 106 Lexington Rd LLC as transferee dated July 2,2019 recorded at Liber D00013028, Page 616 relating to the Property at 106 Lexington Rd, Shirley New York, Dist: 0200 Sect: 937.00 Block: 04.00 Lot:015.000 is determined to be invalid in all respects. Upon service of the within order upon the Suffolk County Clerk with proper notice and payment of any applicable fees, the Suffolk County Clerk is hereby directed to correct the property record to reflect the Court’s determination. CHECK ONE: XX FINAL DISPOSITION NON-FINAL DISPOSITION Dated: August 17, 2020
