Segale v Wendell

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Segale v Wendell 2017 NY Slip Op 30574(U) March 22, 2017 Supreme Court, Suffolk County Docket Number: 018806/2015 Judge: John H. Rouse Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] COPY 1r'DEX NO. SUPREME COURT - STATE OF NEW YO ' l.A.S. PART 12 - SUFFOLK COUNTY 018806/2015 PRESENT: MO ION DATE: 10/27/2016 AD . DATE: 02/22/2017 Mot Seq. 001-MD Hon. John H. Rouse Acting Supreme Court Justice MOfION DATE: 10/27/2016 AD.Ji. DATE: 02/22/2017 Mot Seq. 002-MD MO ION DATE: 10/27/2016 AD . DATE: 02/22/2017 Mot Seq. 003-MG MOTION DATE: 10/27/2016 ADJ. DATE: 02/22/2017 Mot. Seq. 004-MD ANDREW SEGALE and ALTHEA SEGALE, Plaintiffs DECISION & ORDER -againstAMALIA A. WENDELL; WELLS FARGO BANK, N.A.; PAUL W. SCALIA and JAMES JACKSON, tenant, Defendants TO: SAMUEL J . DIMEGLIO JR., ESQ. 141 EAST MAIN STREET HUNTINGTON, NY I 1743 631-547-940 I FRENKEL LAMBERT WEISS WEISMAN 53 GIBSON STREET BAY SHORE, NY 117 6 631-969-3100 RAY, MITEV & ASSOCIATES 122 NO. COUNTRY RD, POB 5440 MILLER PLACE, NY I 1764 63 1-473-1000 SINNREICH KOSAKOFF & MESSINA, LLP 267 CARLETON AVE STE 301 CENTRAL ISLIP, NY 11722-4544 (631) 650-1200 Page 1 of 5 Please purchase PDFStamp Command Line product to remove this watermark. http://www.verypdf.com [* 2] Upon the reading and filing of the following papers in this matter: (1) JtJotice of Motion by Plaintiffs dated September 26, 2016 for a default judgment against Jar;les Jackson with Exhibits A and B attached thereto; (2) Notice of Cross Motion by Defendants Amalia A. Wendell and Paul W. Scalia dated October I 0, 2016 with Exhibits I to 3 attached t}\ereto; (3) Plaintiffs' Affirmation in Opposition to Defendants' Cross motion by Samuel J. ~·Meglio , Jr., Esq. affirmed on November 15, 2016; (4) Defendants' Reply Affirmation b Vesselin Mitev, Esq. affirmed on November 23, 2016; (5) Notice of Second Cross Motion b Plaintiffs dated December 7, 2016 for summary (6) Notice of Cross Motion by Defendf1.11ts dated January 26, 2017 with Exhibits 1-3 attached thereto; (7) Plaintiffs' Affirmation in 9pposition to Defendants Cross Motion dated February 6, 2017; and (8) Defendants' Reply Affi ation by Vesselin Mitev, Esq., affirmed on February 17, 2017; it is: ORDERED that the motions (Seq. #001 , 002 and 004) by Plaintiffs an Defendants are all denied; and it is further ORDERED that Plaintiffs' motion (Seq. 003) for summary judgment is granted to the extent that a referee is appointed to ascertain the rights and interests of the parties, and any non parties to this action; and it is further ORDERED that Vincent J. Messina, Jr., Esq. with offices located at SINNREICH KOSAKOFF & MESSINA, LLP 267 Carleton Ave Ste 301 Central Islip, NY 11722-4544 (631) 650-1200 is hereby appointed referee in this action to hear and report the rights, shares, and interest of the parties to this action in the property described in the complaint and of fhich partition is sought and to take proof of Plaintiffs' title and interest in the premises and of lhe matters set forth in the complaint, and to report whether the property, or any part of the propertty, is so circumstanced that a partition of the property cannot be made without great prejudice to the owners; and it is further ORDERED that Plaintiffs are directed, no later than April 12, 2017, fo pay the referee an initial fee of $500.00 to be credited to Plaintiffs in calculating the distributio of surplus moneys from the sale of the premises, if any; and it is further ORDERED that the referee is to be paid at a rate of $350.00 per hour, payable upon the distribution of surplus moneys from the sale of the premises, if any, an~ upon such prior approval as may under the circumstances be required by 22 NYCRR Part 36; iftrere be no surplus monies from the sale of the premises, or otherwise, said referee's fees are to bl a liability to be paid by Page 2 of 5 Please purchase PDFStamp Command Line product to remove this watermark. http://www.verypdf.com [* 3] Plaintiffs, Andrew Segale and Althea Segal, along with Defendant, AJalia A. Wendell, all jointly and severally; and it is further ORDERED that the referee is granted leave to make appropriate application(s) to the Court to insure that he is paid the fair value of services rendered; and it is further ORDERED that all communications between any party and the refereJ are to be conducted in the same manner as communications with the court, any submissions filed with the referee are to be provided to all other parties contemporaneously and made in the mann r prescribed by the referee; and it is further ORDERED that counsel for the Plaintiffs is directed, no later than A ril 12, 2017, serve upon the referee a copy of the most recent real property tax bill together wit a schedule of mortgages and any other encumbrances to the property, including leasehold estate , of which the Plaintiff is aware together with the current principal amount owing on each such encumbrance, if there be any; and it is further ORDERED that the Defendants to the extent such information has not been provided to the referee by the Plaintiff, is directed to, no later than May 3, 2017, serve upon the referee a copy of the most recent real property tax bill together with a schedule of mortgages and any other encumbrances to the property, including leasehold estates, of which the Defendants are aware together with the current principal amount owing on each such encumbrance, ifthere be any; and it is further ORDERED that ifthe referee concludes that a sale of the property, or any part of the property, is necessary, then the referee shall ascertain whether there is any creditor,~ot a party to this action, who has a lien on the undivided share or interest of any party in the pro erty previously described; and it is further ORDERED that counsel for the Plaintiffs, no later than May 3, 2017, are directed to provide to the referee a partition search from a reputable title or abstract company with all convenient speed, toward the end that the referee report to the court as soon as possible the name of each creditor, if any, whose lien is satisfactorily proved to him, the nature and extent of the lien, the date of the lien and the amount due or to become due on the lien; and it is further ORDERED that Plaintiffs' attorney, if he has not already done so, is to immediately file a notice of pendency of this partition action as against the subject premises; and it is further Page 3 of 5 Please purchase PDFStamp Command Line product to remove this watermark. http://www.verypdf.com [* 4] ORDERED that the referee is directed to take proof and report the m)t recent full assessed value of the premises at issue as reported by the local tax assessor and lhe current sum of all outstanding encumbrances so the court may determine whether either Plaintiff or Defendant have any monetary equity in the premises and the respective shares each party may have in the property, if any; and it is further ORDERED that pending the submission of the referee's report further 'udicial proceedings in this matter are hereby stayed, except to the extent that the application ay be made to the undersigned by any party or the referee concerning those matters relev t to the execution and purposes of this order or as is necessary to appeal from this order or ot er applicable proceeding; and it is further ORDERED that it shall be the obligation of the referee hereby appoint · d to insure compliance with 22 NYCRR Part 36, and make all necessary filings to insure conti?ued compliance with Part 36. ORDERED that the referee is directed to report to the Court if either Plaintiffs or Defendants fail to timely comply with this order in any part, such report as made upon simple affirmation of the referee, on notice to the parties who have appeared, such report may result in a determination by the Court to immediately discharge of the referee from further obligation to the court, and in the dismissal of the action for default in complying with this order; or the imposition of costs or ~anctions ~s the court, upon due notice and an opportunity to be heard, ray thereafter determine is appropriate DECISION This action for partition of real property, as provided by Article 9 of th Real Property Actions and Proceedings Law, and for an accounting was commenced by Plaint ffs by filing on October 29, 2015. The first judicial intervention requested by the parties was n t until the first motion that was made returnable on October 27, 2016 which have been adjou ed by the parties and resulted in successive cross motions as made by the Defendant, the Pla~ntiff and again by the Defendant. This Court follows the CPLR and the Uniform Rules of Trial Court. The parties, to date, have not. Plaintiffs move (Mot. 001) for a default judgment against James Jackson, a person whom they allege upon information and belief is/was a tenant. The allegations are insufficient to support a default judgment and the motion is denied, with leave to renew after the report of the referee in partition has been confirmed by the court. Defendants, Amalia A. Wendell and Paul W. Scalia cross move (Mot. 002) for summary judgement. The motion is devoid of merit and is denied. Page 4 of 5 Please purchase PDFStamp Command Line product to remove this watermark. http://www.verypdf.com [* 5] Plaintiffs cross move for summary judgment (Mot. 003) Plaintiffs are c rrect that it remains undisputed between the parties to this action that Plaintiffs are joint tenants by the entirety of the subject property together with Amalia A. Wendell, accordingly this mo ·on is granted to the extent that a referee is appointed to determine the legal right, title and i terest of the parties to this action as well as any other person or entity that may have cognizabl right or interest in the subject real property. 14) for the imposition of Defendants, Amalia A. Wendell and Paul W. Scalia cross move (Mot. sanctions upon the failure of the Plaintiffs to follow the CPLR when th filed the cross motion for summary judgement. Both parties have engaged in motion practice hat is either outside the practices authorized by the CPLR or advance claims with no legal meritr Accordingly, the motion is denied. However, counsel are advised that legal process, motions, and procedures, are not to be it is undertaken primarily to delay or prolong the resolution oflthe litigation, or to harass ; or maliciously injure another. It if further directed that Plaintiffs, who c mmenced this action more than a year ago, are directed to scrupulously adhere to the require ents of this decision and order as well as the directives of the referee. The failure to do so may r1sult in a dismissal of the action. Similarly, Defendants are directed to assiduously conform to the requirements of this decision and order, as well as all directives of the referee. The failure td do so may result in the imposition of costs and/or sanctions. The foregoing shall constitute the decision and order of the cou Dated: March 22, 2017 JOHN H. ROUSE lcting .s.c. NON-FINAL DISPOSITION Page 5 of 5 Please purchase PDFStamp Command Line product to remove this watermark. http://www.verypdf.com

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