Iannucci v Fiorentino

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Iannucci v Fiorentino 2017 NY Slip Op 31679(U) July 25, 2017 Supreme Court, Suffolk County Docket Number: 4904/15 Judge: Thomas F. Whelan 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] SHORT FORM ORDER INDEX No. 4904/ 15 SUPREME COURT - STATE OF NI: 'W YORK I.A.S. PART 33 - SUFFOLK C()U:'1TY PRESENT: Hon. THOMAS F. WI IELAN Justice of the Supreme Court ---------------------------------------------------------------)( JOSEPH IANNUCCI, JR., Plaintiff, MOTION DATES: 10/26/16;11118/16 SUBMIT DATES: 06/16/17 Mot Seq:# 003 - MG Mot. Seq# 004 - XMOTD Conference Scheduled: 9/8/17 CDISP: NO NATALE J. TARTAMELLA, ESQ. Atty. For Plaintiff 235 Brooksite Dr. Hauppauge, NY 11788 -againstNICOLE FlORENTINO. Defendant. AHERN & AHERN, ESQS. Attys. For Defendant l Main St. Kings Park, NY 11754 STEPHEN L. O'BRIEN, ESQ. Referee 168 Smithtown Blvd. Nesconset, NY 11767 ---------~----------------------------------------------------X Upon the following papers numbered I to -1J._ read on this motion for confinnation of the first Report of the referee appointed pursuant to RPAPL Article 9 and cross motion by plaintiff for an order rejecting said report and other relief : Notice of Motion/Order to Show Cause and supporting papers I - 3 ; Notice of Cross Motion and ; Reply papers 9-10 ; Other: 11 - 12 (post trial supporting papers 4-6 ; Answering papers 7-8 memorandum of law): 13-18 (Affirmation and Supplemental Affirmation of Referee, Repo11 of Referee: 19 Short Form Order dated January 20. 2017; 20-2 l 2"" Supplemental Affirmation of Referee and Supplemental Report of Referee regarding creditor hearin!!; 12-23 C orrcspondence from counsel indicating no .-;er.test or objection to supplemental report of referee regarding ascerta :,micnt of creditors : it is, ORDERED that this motion (#003) by the defendant for an order confirming the September 26, 2016 first Report of the referee appointed herein pursuant to order dated October 28, 2015 is considered under CPLR Articles 43 and 44 and is granted; and it is further [* 2] Iannucci v Fion:ntino ln<le:-. No. 4904115 Page 2 ORDERED that those portions or the cross motion (#004) b) the plaintiff for an order n.:jecting such Report is consi<lcrcd under Articles 43 and 44 or the CPLR and is tknie<l: and it is further OIU>ERED that the remain ing portions or the cross motion {1/004) by the plaintiff, which wen.: not opposed hy the c.kll:ndant. for an order declaring the plainti Ir s entitlement to the monies denominated in a mortgage escrow refund check wh ich the plaintiff fo iled to present to the referee at the hearings held and other alternative relief with respect to said check is granted on ly to the extent that the court dedarl.!s plaintif'C is alone entitled to colb:t the monies represented by such check without payment of any of the proceeds to the dclcn<lant: and it is further ORDERE/) that upon the court ·sown motion, the Supplemental Report of the rclcrce <lated May ~5. 1017. which is limited to the matters embraced by the creditor ascertainment reference directed in the prior orders of this court is hereby confirmed pursuant lo CPLR 4403: and it is further ORDERED that the parties" rcspec:tiYe claims for partition and sale. ascertainment of shares rights and interests. adjustments nf those rights and accountings between the parties and for moneys expended in excess of their ownership interests and/or by reason of'ouster and/or use an<l occupancy are .\·e1 ered rrom all other pleaded claims set forth in the complaint and in the answer or the dcCendant. which severan ce shall be rcl1c<.:ted in the interlocutor") judgment lo be submi tted and entcn::c..l hereon and in the linal judgment or partition and sa le: and it is l'urthcr 1 ORDERED that the parties' respective claims for partition and sale oCthc premises known as 19 1-'tdton Avenue. Smithtown, New York 1 I 787 arc granted as thi s court has fou nd that said prcmi-;cs arc so t:ircumstanced that an actual physical partition thereof cannot be made witho ut great pn:judicc to the plainti IT and to the defendant. who together jointly own said premises with rights or survi\orship. and said premises shall be sold at a public auction as directed in thc interlocutory judgment to be submitted and issued herein as directed bc.:low: and it is further ORDERED that the parties· claims f(ir the ascertainment of the rights. shares and intcn.:sts of the parties arc granted and said rights. shares and intcresb an: as folio\\ s: that the plaintiff is seized in fCc simple absolute or an equal undi\'ided joint interest in the premises as is the defendant. each ha\'ing rights or survivorsh ip therein and that no others arc seized or any ownership interest in said pn:mises: and it is rurthcr OllDl:'RED that the parties· claims for an adjustment lo their respective 50% ownership shares <md interests in the subject premises arc denied as determined by the rclcn:c in his lirst Report [* 3] Iannucci ,. Fiorentino lntlcx o. 4904115 Page 3 datc<l Septemhcr 26. 2016. "hich Report is hereb} confirmed. un<l th\.! net proceeds dcri n.!<l shall he dist rihuted cl1ually to the plaintiff and the <lclcndant in a 50% di,·ision thcrcor: and it further ORDER/:;[) that as reported in the Supplemental Report ol' l11e rekrcc dated May 20. 2017. or aJh:r thc publication a notice to unknown creditors. a certilid mailing or said noticl.! to the only known creditor. and alkr conducting a hearing pursuant to RPAPL ~ 913. thL: subject premises arc encumbercd by a mortgage lien in fovor of JPMorgan Chase l~ nnk. N.J\.. issued to the plaintiff and the ddcndant as joint ohligors on November 5. 2013. the outstand ing balance which. shall be: equally charged agai nst the parties. respective share interest in the gross proceeds dcri vcd from the public sale the premises and . pursuan! to RP/\ Pl .§ 962. the rclcree or sale shall , after deduction of the costs. expenses and lt:cs including: those set fo rth in RP/\PL 963(2). then chargeable to the plainti IT an<l thc defendant. pay in lo court on account of the mortgagee its successor or assigns. the portion of the proceeds of sale which equal the amount jointly owed by the parities lo the mortgagee. or its successors or assigns. and the funds so paid into court shal I. upon further order of the court he <listrihutcd to said mortgagee. its successors or assigns in sutisfoction of the mortgage debt then due in accordance \\ilh RP/\PI. ~ 963 and: and it is further or or sm-:. * ORDJ:,RJ:"J) that in accordance \\-ilh the terms of the onkr <lated October 28. 2015. in which the kc ol'Stl.!phen L. 0 ·Brien. Esq .. as referee lo ascertain the parties· rights. shares and interests and their respective claims for a<ljustmenls thereto. was lixcd at $250.00 p1.:r hour, and a reading of' the refcn:e·s three af'linnations of services. the court hereby awards said relcrcc the sum $20.000.00. inclusive dishurscmcnts, as compensation for the services he rendered in the proceedings held herein to date. which amount represents !he fair and reaso11ablc value of the services performed by said n.:kree under the reforenccs contained in the October 15. 2015 and January '.20. 2017 orders this court; a nd it is further or or OROER/:,'f) that the respective panics shall each beur liability f(H paymcntof 50% ol"thc Ice awarded above to Stephen I.. O' Bri en. Esq .. as referee to ascertain shan.:s and udjustmcnts if any, \\'hich shall be paid to him first out of the proceeds derived from the sale of the premises, and the court herd» directs that any deficiency in the payment or this Ice shal I be tht.: su~jec t of a mmH~) judgment which shall he rendered against the plai11ti ff and tht.: defen<lanl. jointly. in l"<n or the rcli.:rce a!'- provided in the interlocutory judgment and i necessary in the linal j udgmcnt to be enkrcd hereon: and it is rurther or r ORDERED that the referee or sak shall. l(lllO\"ing payment of the kc of the rekree to as<.:crtain shares awarded ahovc. and his deposit into court amounts equal lo the amount of the mortgage debt in an insun.:d account or accounts. deposit the net proceeds into an interest hearing accoun! or ac<.:ounls, and hold them subject to the disposition din.:cted by the further orderorthc court or [* 4] Iannucci \" Fiorentino lmkx No. -+90-l/ l 5 Page 4 and as may he included in the final judgment lo he entered herein, which shall also provide for the payment and equal allocation hy the parties of costs. Ices. disbursements and allowances if any. :m :.mk<l by further order or the court: and it i-; further ORDERED that tht: submission any proposed interlocutory judgment of partition and sail: or counter judgment must include a copy or this order nnd copies or the lirst Rpott and Suppli.:mcmal Ri.:porl of the rell.-rec that \,ven; conlirmed herein: and it is further ORDER/:,"/) that '111 remaining claims f<.ff rdicf demanded in the complaint and the answer served which relate. among other things. to disputes over personal propctty items and liability for \V edding expenditures and the like. shall alone continue herein and shall be the subject of the next compliance conli:n;nce which is now scheduled fo r September 8, 2017. ·1his partition aclinn arises out of the parties· engagement to be married and their purchase. as joint tenants with survivorship rights. or an improved pared or residential real prnperly in Smithtown. CW York in November or2013 . In addition to the remedy or partition and sale. the plaintiff seeks di.:claratory and/or mandatory injunctive relier with respect to his entitlement to an engagement ring given to the defendant by the plaintiff. recovery or the value or a vacuum cleaner and the amount of wedding C\ cnts allegedly expended by the plaintiff. J\.c<.:ording to the plaintiff. the dclcndant vacated the suhjc<.:t premises on /\ugust JO. 2014. without the consent of the plain ti IT. v;hik the dcfcndam claims that the plaintiff ousted her by changing. the locks and by barring her from returning to said premises. In the answer served. the delcndant counterclaimed for a ju<lgmi.:nt or partition an<l sale, distribution of the proceeds of the sale in accordance with the parties' rights, shares and interests as dt:tcrmincd by a referee. a claim for. in effect. a judicial declaration that the dclcnd<mt is entitled 10 keep the cngagcmclll ring, recover) of wcd<ling t:Xpenses paid hy the dclCndant and the rCCl)\'l'f)' of legal fees incurred by the ddcndant. The parties each moved ror summaryj u<lgment in /\ugusLand September oi"2015 with respect to the pleaded cluims for parti tion and sale. l3y order dated October. 28. 2015. th1: court granted those motions to the extent that it fi.iu n<l that the parti1:s· cross demands for parliti(>ll were meritorious and that no issues of fact e\istcd so as to preclude the court from awarding summary judgment on their respective claims for that limited relief. The court further found that the parties were entitled to the remedy or partition and sale rather than actual partition because the premises were so circumstanced that actual partition wul<l not he made without great prejudice to the panics pursuant to RP /\Pl , * 915 LH'l' Order dated October 28. 2015. page 5 ). I Iowe' er. an immed iatc sale 01' the premises was pn.:cluded due to lht: existence or other matters in nt:ed or determination, including. an ascertainment [* 5] Iannucci v Fion.:nlino Index ·o. 4904115 Page 5 or lhc rights. shares and inten.:sts or the panics by due proof thcn.:of and a determination of thc adjustments t)f thosc rights as each orthc parties demanded so in their pleadings. Tht: re.solution ol' lhcse m:.lllers \\ould then control the divi-;ion of the proceeds derived from the sale in accordancl.! with the dictates of th\.'. equities or such parties and the rights or creditors. should any exist. In its Oduhcr 28. '.W 15 order. the court apointcd. pursuant to RP /\Pl , *<) I I. attorney Stephl.!n I..()' 13ricn. Esq .. as referee to ascertain the rights, shares and interests of the parties to this action hy due proof of an abstract of the conveyances by which the same are held. and to take proor of tht: parties· rights. title and inlt:rcs1 in the subject properties and the several otht:r matters Sl.!l forth in th1.: pleadings. Such matters included the cost or insurance. taxes and other expenses of the subject prem ises as may have bt:cn paid by the parti1.:s and their entitlements lo adjustments thereof. if any. and the receipt or income. rents and profits and v. hcther adjustments thereto have been proved, accountings by and between and the other claims asserted by the parties with respect to these matters. In addition. because lht.: cuurL cktermim.:d that the premises ''ere so circumstanced that an actual partition could not be made without great prejudice to the parties. the court further <liredcd tht.: rderl.!c to ascertain, pursuant to RP /\PL ~ 913. whether there arc any creditors. not parties to this action. having liens on the umfi, idc<l share or interest of any party and. if so, the amount and the priorities or such lien. and to repo rt to the court as to al l matters rdcrred in the October 28, 2015 order. The St:cond rel'crencc ror purposes of ascertaining creditors was con ti ngcnt upon the plainti n~s service upon the rt.!l'er<.:1.: of a search. certified by the Suffolk County Clerk. as to the existence of any and all liens against the subject property. and upon that showing the existence or al least one nonparty creditor. the issuance a publication or a notice for four (4) successive v:ceks in u local nc'"'spapcr requiring each person not a party lo this action who had a lien upon any undivided share or interest in the properly to appear bd'ore the referee at a specilic<l place and on or before a spt:cilied day 10 prove his or her lien and the true amount due to him or her by reason thereof. The referee was rurthcr din~<.:ted to serVI.! all known creditors with such notice hy muil at such creditor's last known address. ifknown to the n:l\.!rcc. not less chan twcnt) (20) clays prior to the specified hearing date. The record n:lkc1s that dm: to a clerical error. tht.! O<.:tober 28. 2015 order failed to spl..'.eify a newspaper in whic.:h publication of the notice to creditors was to be made, an error which could and should have been l.!asily und immediately remedied had any person ol'intercst nolilit.:d the court 01· such error. The record further rclkcts that the plaintiff foiled lo serve the refcn:c with the certified search by the Suffolk Coumy Ckrk regardi ng the existence of creditors as di rected in the October 28. 20 15 order. and instead. submitted a judgment and lien search from a title company as proof nl'the l..'.:-:istcnct: creditors. Tht:rein. only one lienholdcr creditor was reported; namely, JPMorgan Chase Hank. the mortgag.t.:I.! \\'ho funded the pmtics· purchase of the su~ject premises in nvcmheror2013. [* 6] Iannucci v Fiorentino lnde~ o. -t90-UI 5 Page 6 /\ccordingly. the n:lcrcc did not publish the notice to creditors that was required by the October 28. 2015 orc.ler or thl' court prior to conducting hearings on the issues referred to him pur-;uant to RP/\ Pl , § 911 rt.!gan.ling his ascertainment of the shares anc.l interests or the part ii.!'> anc.l their rights. if" any. to equitable udjustml.!nts then:to. In his likd Report dated September 26. 20 I 6. the referee requested that the com1 provide a f"urthcr order naming the newspaper in whid1 publication nf the notice lo creditors should be made or modifying its prior order lo delete this requirement by deeming the judgment anc.l licn search by the title company. Reliable Abstract Corp .. which the plaintiff produced and placed into the record at the hearings conducted by the rclcrce without objection (see Exhibit P) sufficient within the contemplation ol"RP/\PL § 915. Although the parties took no posi tion upon this alternative request for rel id in their submissions on their motions, the court denied this request for alternative relier. By order dated January 20. 2017. the coun directed the referee lo publish the notice lo creditors required by RPJ\J>I, ~ <) 13 whenever at least one creditor is known. in the SmNhtoim Neirs ··with a ll convenient speed .. ( RP/\PL § 91312]). The court further directed the referee to conduct a hearing." ith respect to the matters cmhraecd in the ascertainment of creditors rclcrcncc dircctt:d in the October 28. 201.5 order or this court. The court thus adjourned the motion (lf003) and cross motion (IJ004) now before it to .I une I(>. 2017 to allow the rel"cree to complete the creditor reft:rcnce hearing as directed in the court ·s order or .January 20, 2017 and to Jile a Supplemental Report with respect thc:rcto together with a supplemental aflinnation regarding the time spent hy the referee on these mailers to aid the court in <lctcrmining his compensation. the hourly rate or which, was lixt:d in the October 28. 2015 ordl!r or the court. In accordance with these directives. the reforec issued the requisi te notices to creditors and held a hearing duly noticed on April 25. 2017. at Vvhich no creditor appeared. On .lune I. 2017. the rclcrcc filed a Supplemental Report dated May 25. 2017. finding only one creditor of record. namely, JPMorgan Chase Bank, N.A., as having a lien against the premises. The delendant"s motion ( lfOm) for confirmation of the first Report of the rclcrcc and the cross motion (#00-t) by the pluintiff for rejt:clion of that Report mrn hd'nrt: this court. were marked submitted on the adjnurm:d date~ of .lune 16. 2017. In correspondence to tbe court dated July 19. :!017. counsd for the respective parties inc.licaled that they had no objections lo the matters reported upon in the Supplemental Report nf"thl' referee " ·hich is limited to the identification or but one creditor. namdy. JPMorgan Chase Bank. N./\.. as the o\\'ner or a purchase monc) mortgage given to the plaintiff and the defendant on Novcmher 5. 201~. [* 7] Iannucci ,. Fiorentino Index No. 4904/l 5 Page 7 Upon a reading or the Supplememal Report of the referee dated, Ma) 25. 1017. and the transcript of the hearing h!.!ld by said referee. both being limited to the asc1.:rtainment of creditors as contemplated hy RP/\ PL ~ 913 . the court hereh) confirms sai<l Report and the findings of the n:lcrcc contained therein. Th<.: <.:our! thus a<lopls the linding that there is but one credi tor of'm.:ord. namely. JPMorgan Chasc Bank, N./\ .. who issuc<l a mortgage to the plaintiff and defendant on November 5. 2013. that the plaintiff and defendant are the joint obligors under saiu note and mortgage and that such mortgage is a lien against th1.: propcrl) and that there arc no other liens or encumbrances or record against the su~ject pn.:mis<.:s. The court also confirms the first Report of the referee dated September 26. 2016 an<l each of the line.lings and conclusions set forth therein. It is well established that the determination ora referee appointed to hear and report is entitled to great weight. particularl y where con fli cting testimony and matters orcredihility me al issue. since the Rclcrec. as the trier or foct. had the opportunity 10 sec and hear the witnesses and to observe them on the stan<l (see Frater v Lavine. 219 J\D'.2d 564, 564. 64(l NYS2d 46. 47 12<l Dept 19C)(lj)... Where. as here, a rd'crce is appointed to hear and report. the rcrcrec's report and recommendation ·should he confirme<l if' the lindings in the report arc supported hy th<: record ... (Fere111i11i v /"ere11ti11i. T1 AD3d 882. 899 YS2d 335 I2d Dept 20 I 0: q11oth1g Frater ,, Lel'i11e. 229 ;\1)2<l 564. 564. suprn). The first Report of the referee dated September 26, 2016 is based upon the record or the hearings he conducted at which the parties appeared and offered cvidencc in suppon or their n.:spectivc claims. Said Report includes findings and determinations of the referee wi th respect to the matters reforrcd to him pursuant lo RP /\PL §§ 91 l and 915 in the order of this court dated October 25. 201 :\namely. asc.:1.:nainment of' the rights, shmes and interests of the parties to this action upon duc proof of an abstrm:t orthc com·ey1.mces by which the same arc held, and the taking ol'other proor as to the parties· title and interest in the subject properties and of the several matters set forth in the pleadi ngs. Such mailers also ind udcd t11l' cost of insurance. taxes and other expenses of tht.: su~jcct premises as may have been paid hy the parties and their entitlements to adjustments thereof. ir any. and the receipt of income. rents and prolits and whether claimed adjustments thereto have been proved or arc otherwise warranted under equity principles as well as the claims of' ouster by the dc lcndant and the plaintirrs claims fo r contribution and/or reimbursement for imprO\cmcnts made lo the premises by him. l lpon its re\'iew or the rclcrec·s first Report. the transcript of the hearings conducted. the evidentiary c:-.hihits and other submissions or the parties. the court line.ls a rational basis or ->upport in the record for the rclcrce · s detcnninations that the parties arc joint tenant owners or the premises [* 8] Iannucci v Fiorentino Index No . ..+904115 Page 8 with rights or survivorship. They an.: thus cntitled to an equal share of'liabilitics for the encumbrance of record against the premises. thc liabilitit..:s incurred in this actions and to an cqual 50% division or the nct proceeds dcrivcd from the public sak of the premises which this court previously found was the appropriate partition remedy to be accorded to the parties. The rel'ercc · s rurther determinations or the parties· claims for udjustmcnt of this equal division ofth1: net procct.:ds of sale wt.:rc ~itht:r not established or warranted under the circumstances of the parties or the equities existent in this action. also have a rational basis in the voluminous rccord or the procccdings t.:ondrn.:tcd hert.:in. None or the objections to the rdcrec's determinations. rulings or findings posited by counsel for the plaintiff in hi~ cross moving papers have merit am! all arc rejected by the court as lacking therein (see T11rrisi 1-.\'everi110. 77 AD1d 91..+, 9 10 NYS2d 50412d Dept 20101: Kiernan v Martin. 48 J\D1d 641. 852 NYS3d >51 12<l Dept 20081: Slte11 v Slte11. 21 J\D3d I078. I079, 803 NYS2d 57<) 12<l Dept 20051: Frater" Lavine. 229 AD2d 56-L 564. supra: Jolt11stn11 v Marti11 . I 83 AD2d 10 I 9. 583 NYS2d 615 l'.kl Dept 199:?. j: llufi111gelvBr1111s, 152 J\D2d 459, 542 NYS2d 652 I l'' Dcpt 19891). Settle. on not less than Ii Ileen ( 15) days notice. an interlocutory judgment of tht.: type required 0) RPAPL ~ 915 ('/., \'(' (j.. providing in blank for the COlll1·s appointment ora referee orsak. those otht.:rwisc n:quircd by law RPAPI. Article 9 and the other matter~ set forth in this order. including. the severance or lhc partit.:s · claims partition and sale and related matters directed herein. DATED:

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