Financial Freedom Acquisition, LLC v Braunsberg

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Financial Freedom Acquisition, LLC v Braunsberg 2017 NY Slip Op 31683(U) August 4, 2017 Supreme Court, Suffolk County Docket Number: 41334/2010 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] ME."10 DECISION & ORDER INDEX No. 41334/2010 SUPREME COURT - STATE OF NEW YORK l.A.S. PART 33 - SUFFOLK COUNTY COPY PRESENT: MOTION DATE: 5/24117 SUBMIT DATE: 6/7117 Mot. Seq. 014 - After Sanctions Submissions Pursuant to Order: 4/11117 CDISP: YES Hon. THOMAS F. WHELAN Justice of the Supreme Court -----------~---------------------------------------------------X FINANCIAL FREEDOM ACQUISITION, LLC, Plaintiff, -againstLINDA C. BRAUNSBERG, individually and as Distributee and Executrix of the Estate of Mary Falcone, MARY DIAZ, as heir at law of the Estate of Mary Falcone, CATHERINE SUMMA, as heir at law of the Estate of Mary Falcone, PHILLIP JAMES COLASANTO, as alternate devisee of the Estate of Mary Falcone, GIOVANNA MARI E COLOSANTO, as alternate : devisee of the Estate of Mary Falcone, INTERNAL : REVENUE SERVICE OF UNITED STATES OF AMERICA, NEW YORK STATE DEPT. OF TAXATION & -TAX COMPLIANCE DIVISION C.0. ATC, NYS CHILD SUPPORT ENFORCEMENT, NEW YORK STATE DEPT. OF TAXATION & FINANCE, CITY OF NEW YORK DEPARTMENT OF TRANSPORTATION PARKING VIOLATIONS BUREAU, CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD, NEW CITY ADJUDICATION BUREAU, Defendants. WINDELS , MARX, LANE, ET AL Attys. for Plaintiff 156 West 561h Street New York, NY 10019 MICHAEL BRAUNSBERG, ESQ. Atty. For Defendants Braunsberg, Diaz, Summa and Colosanto 370 Powells Street Staten Island, NY l 0312 : ---------------------------------------------------------------X Upon the following papers numbered I to _ 7_ submitted by the defendant Braunsberg and the remaining individual defendants set forth in the caption and their counsel, Michael P. Braunsberg, Esq. on May 24, 2017 in accordance with the prior order of this court dated April 11 , 2017: and papers numbered 8 - 9 submitted by plaintiff's counsel in response; and the supplemental and reply affirmation submitted by defense counsel numbered I0-1 J; 12-13 , all of which have been read by the court: and upon the prior Order of this court dated April 11, 20 17, and all others issued, it is, [* 2] Financial Freedom Acquisition I,LC v Braunshc..:rg Inde;.; \!o. .+ l:'D-VW IO Page 2 ORDERED that dc:.:lcns<.: counsd, Michuc.:I J>. Braunshcrg. Esq .. engaged in rrivolous wnduct as that term is defined in 22 NYCRR Part~ 110-1.1 (c)( I )(2) and (3) by his interposition or motions scquencc.:d as i!O 12 anu /1013, each or which were without hasis in law and unsupported hy any reasonable argument for an extension. modi lic.:ation or reversal ofexisting law and undertaken primaril) lo delay the resolution of this action and/or to harass the plaintiff following the issuance of the judgment orroreclosurc anJ sulc on July 27. 2015: and it is ru11her ORDERED that the plain ti IT is awarded costs in the form or n.:asonable attorneys fcc.:s in the amount or $10.692.00 that were incurn:d in del'Cnding against motions sequenced as If() 12. HO 13 and in interposing the plainti trs own motion sequenced HO14 for relief against the defendants· engagement in mot ion practict.: considered to be frivolous under 22 NYCRR § 130-1.1 (c): anJ it is further ORDERED thut the foregoing award oC costs, in the amount of$ I 0,692.00. is hereby assessed agninsL defense counsel. Michael P. Braunsberg. l·:sq., personally, pursuant to 22 NYCRR Part 1301.1 (a) and (b ), and he is adjudged lo be personally liable for the payment of such Ice:-, within sixty (60) days of the date or this order: and it is funher * s ORDERED that pursuant to 22 NYC'RR 130-1.2 and CPLR 2222. the Clerk is directed lo enter this order as a money judgment in the amount or$ I0.692.00 in favor of the plaintiff against attorney. Michael P. Braunsberg. Esq .. personally. and to docket said judgment. This foreclosure action v..as commenced by the plaintiff in November or 20 I0. Therein. the plaintiff sought a judgment foreclosing the lien ofa reverse mortgage in the amount of$1.938,000.00 given by the defendants· decedent. Mary Falcone. on April 2. 2008. The premises encumbered by such mortgage consist or residential real property located in East 1lampton. New York. which had previously been owned hy one or more or the named defendants since 2001 (see Order dated April 4. 201~ I Emerson . .I.!). Following service of the summons and complaint, delcndanl. Linda l3raunsberg. an attorney. appeared herein by an answer prepared by her husband. attorney Michad F. Braunsberg. Esq. De!Cndants Diaz. Summa and Colosanto separately appeared herein by an answer likewise prepared by Michael F. Braunsbcrg, Esq. By Short Form Order dated /\pril 4. 2012 11 ~merson. J.1. on motion #00 I. the plaintiff was awardl.!d summary judgment dismissing the anirmative defenses set forth in the answers served and further awarded summary judgment on the plainti n-::; complaint for foreclosure amt sale against the answering dcfondants and a separate order of rc lcrcnce. The plaintiff was also awarded default j udgnicnts against al I other delcndants served with process and the appoint1nent ora rcl<:rci:: to computl.!. Thereal"lcr. the appearing delC:ndants moved (#002) to renew their opposition to the plaintiffs motion {1/001) and for a nu11H.h11ory senlement conlcrence. which motion (//002) was denied by order dated Novemher 15, 2012 I l ~merson, .I. I). While that motion \Vas pending. the answering dc!Cndants interposed a separate motion (#001) returnable September 17. 2012 for a stay of all proceedings. which motion "as denied by order dated ovember 26. 2012 IEmerson. J ·I). The plaintiffs sl..!cond application f(.)r relief (motion sequence :JOO.+) was rcturnabk in March or 20 I:l and it therein sought confirmation of the rl.!port of the referee to compute anti the issuance of a .i udgmcnt of foreclosure and sale. The court" s consideration or that motion and the dckndanls · [* 3] Financial Fn;edom Acquisition Ll.C \' Bruunsberg Index No. -t 1334/20 I 0 Pug1; 3 opposilion therclo was delayed hy numerous appearances before the previousl y assigned .lust ice at court conlcrcnccs aimed at resolving the matter even though said Justice had previously determined that the conforcncc settlement proceedings mandated by CJ>LR 3408 were not applicable to this action because the mortgaged premises were encumbered by a reverse mortgage (see Order issued on motion sequence 1/002 dated November 15. 2012 IEmerson, J. ]l. Thes1.: con lcrcnccs concluc.led in August or 20 I-+ without resolution or any matter in issue. This action was thcreatler administratively transferred to the civil case inventory of this court on lkcembcr 31, 2014. alter which, Lhe plaintiffs motion for judgment (#004). together with the opposition thereto. was calendared for June 12. 20 15 and marked submitted on that date. In l't.:S(Xl11.'il:. the answering defendants filed a barrage or separate motions all asserting challenges to the issuance o f any judgment of foreclosure and sale <md to the judgment once issued. The first four of those separate motions, namdy. 11005 (Stay proceedings & Removal); #006 (Dismissal): //007 (Stay Proceedings): and //008 (Dismissal) were denied as lacking in merit in two separate orders of this court dated July 27, 2015. the last or which warned the ddcndants and their counsel ··to refrain from the interposition or furthe r motions whid1 do not comport with the procedural requirements imposed upon motions by ( ' PLR 2214 l'I. seq .• an<l arc without basis in law or fact. as such conduct is frivolous as ddined in 22 NY( 'RR Part 1~0-1 and may subject ddcndant I3raunsberg and her counsd to the imposition or snnctions. costs and l°Ges of the type set rorth therein.. (see Order on motion sequences !W07 & 1 1008 dated July 27. 2015). J\lso issued on July 27 . 2015, was a separate Memo Decision and Order lWhclan, J .1. in which the cnu11 granted the plaintiffs motion (11004) for confirmation or the referee· s report and issuance of a judgmcm and a separate judgment or fon:closurc and sale i:ssucd on that date. The defendants' opposition was rejected as lacking in merit due to, among other things. violations or the rules prohibiting re-litigation matters previously decided. or The answering defendants nevertheless interposed three further motions all of which wen. : returnable on separate dates in July or 2015. Each or these were found to be equally lacking in merit due the absence or any basis in fact or in law. In mot ion sequenced as # 009. the dekndants sought an order lo ··withdraw cases" and ··removing this action to frderal c-ourf'. In a separate motion sequenced as 110 I 0. the defendants sought a vacatur of the judgment and/or dismissal of the action under CPLR 65 I 3. The defendants then sought by motion sequenced as #011, an order cancel ling the Notice or Pcndcncy. These motions were denied by this court in separate orders elated J\ugust 6, 20 15 and August 17. 20 15 as academic due to the defense counsel's production ora July 28, '.2015 notice or removal or this action to a nearby federal courl. By order dated June 16, '2016. Judge /\11hur D. Spratt or the !·:astern District federal court in New York n:~jeckcl the removal attempt by defense counsel linding that its ··sole purpose" was aimed al ·'cfkctivcly reversing the multiple, well reasoned opinions of Suffolk County Supreme Court Justices. and a linal judgment in favor o 1· tht: pl ainti Ir. In 1-'ehruary of2017, the plaimi ff tiled a consent to change its attorney to its current c.:ounsd and served the appearing defendants with notice of the Ckrk ·sentry of the July 27. 2015 judgment or the judgment of forcdosun: on August 7. 2015. [* 4] Financial Fn:cdom Acquisition LLC v Hraunsbcrg Index 1 o. 41334/2010 Page 4 Thereafter. the answering defendants interposed two more motions. In the lirst. sequenced as 1 I 2. the dcf\.:mlants sought an order pursuant ( 'PLR 5519(c) to stay all proceedings hen.:rn pending :0 a purported appeal or the judgment or foreclosure and sale entered herein on August 17. ::w 15 and for a renewal or a prior motion (//0 I 0) by de fondants for relief pursuant to CPLR 6513. In the second motion. sequcrnxd as /iO 13. the defendants sought a ··ret:onsidcration .. of' the July 27. 20 15 judgment that was entered on /\ugust 17. 20 15 by the Clerk. These motions were opposed by the plaintiff who inkrposcd its own motion (#0 14) seeking to restrain the answering de fondants from interposing further baseless motions <tnd !'or an award of costs tmd/or sanctions or the type contemplated by 22 NYC RR Part I:HJ-1 . 1. By order <latcc..I April 1J. 2 107. this court denied the dcfendc.mts' motion (#012) for a stay ol'this action pursuant CPLR 5519 as being without a basis in law. The court further denied the defendants· motion (ft 013) for a .. reconsideration .. of the of July 27. 2015 judgment of foreclosure as without basis in law in or in fact. ln that same order. the court granted the plaintiff''s responsive motion (#014) for injunctive relief. The remaining portions of the plaintiffs motion (//0 14) wherein it sought an award or ICcs. costs and/or the imposition of monetary sanctions against thl.! ddcndants and their counsel was grnnted to the extent that the defondants and their counsel were afforded the opportunity to shov; cause why an order should not be issued and cnlcrcd imposing monetary sanctions and/or foes and costs against the defendants or their counsel by the submission of affidavits and/or an affirmation on these issues 011 or before May 24, 2017, in response to which, 1he plaintiff shall have the opportunity lo reply by way of anidavit and/or a!Tirrnation of counsel. In its /\pri I I l, 2017 order. the court went on to direct. upon irs own motion made pursuant to 22 NYCRR § 130-1.1 (d). lha1 counsel for the respective parties .. show cause why an order should not be issuc<l and entered imposing monetary sanctions and/or fees and costs against the defendants or ihcir counsel due to their engagement in facially l'rivolous conduct in interposing motions sequenced /JOOS 11012 and in pursuing an attempt to remove this action to federal court, by the submission af'lidavits and/or anirmations on these issues on or before May 24, 2017". This directive was premised upon the following findings set forth on page 6 of the April 11, 2017 order or the court: ..This court linds that the conduct the de fondants and their counsel in filing and serving the motions sequenced as //005. I() J/006, 1/007, If 008, #009. #010 und #0 I I. in ad Ji ti on to the filing and sl.!rvice of motions sequenced J 12 und 110I1 tbal arc addressed above, are presumptively frivolous under 22 N YCR R~ 130-1 .1(c)( I ). (2) and possibly (3 ). The wurt further linds that the conduct of dcf'cnsc counsel regarding the various emails complained about in the plaintitrs moving papers is also presump1ively frivolous in that it contained misleading if not false allegations of fact. The court also linds that all such conduct constituted an abuse hy defense counsel of the legal system in as much as it was used as a vehicle Jl)]' unjust ilied and undul.! delay. harassment, ill will and/or spite. all or which. prejudiced the remedies granted to the plaintiff under prior orders and the judgment or this court entered in .!\ugust or 2015''. or or The court is now in receipt or the parties· submissions regarding thl.! existence or abscncc or frivolous conduct as framed in th<:: orc.kr of this court dated April 11, 2017. I lav ing read and duly rnnsidered these submissions and. after consideration of the circumstances under which the conduct took place. including the time available for investigating the leg.al or factual basis of the conJuct. and whether or not the conduct was continued when its Jack or legal or factual hasis was apparent should have been apparl.!nt nr was brought to the attention or counsel or the party (st't' 22 NYCRR 130 l. l ltl: [* 5] Financial i"n:cdom Acquisition LLC v Braunsberg Index o. 41334nO Io Page 5 Marrero v New York Ci~}! Tr. A utlt .. 150 /\D3<l 1097. 52 N YS3d 652 I2d [)cpl 2017 ). this court finds as fol krws : that the conduct of<..kfense counsel in filing motions sequenced as f/O 12 und ffO13 following the unsucccssl'ul application to remove this action to federal court fulls well within the ambit ol'22 NYCRR ~ 130-1.1 ( 1)(c) in that such conduct was: 1) completely without merit in law and cannot be ;-;upportc<l by a reasonable argument fo r an extension, modilication or reversal tif existing law: and (2) \.Vas undertaken primmily to delay or prolong the reso lution or this action and to barass the plaintiff. The re lief' so ught in these two motions (#0 12 and #013 ), which were interposed within days or each other, lacked substantive merit and were repetiti ve of previnusly rej ected applications that wen.; similarl y interposed and were equally lacking in merit. Defense counsel ' s conduct was also aimed at delaying or deterring the public sale orthe premises and at harassing the plaintiff by compelling it to ddcnd aga inst the Jcfendants' frivolous motions ( #0 l2 and #013) and thus fi·ivolous under 22 NYC RR Pm1 130- 1.1 (b ). There was more than su fficient time for defense counsel to investigate the legal and factua l basis for those applications und the lack of merit therein should have been apparent under the circumstances, particularly in light of prior warnings from the court with respect to engagement in frivol ous conduct on the part of the de fondants or their counsel. The foregoing conduct or defense counsel was thus frivolous under 22 NYC RR ~ 130- 1. J (c) (a) and (b) (see Accocel/a v Well\· Fargo Ba11k, N.A. , I 39 ADJd 647. 32 NYS1d I 8712d Dept 2016 ]). Tbc contentions. claims and avcnncnts set forth in the papers s ubmitted by the defrndants and their counsel. in an cn<.m to show the absence of frivolous conduct on their part and/or their counsel. f'ai led to <lo so. Nor did the defendants challenge or contest the nature or amount or costs in the form or counsel lees demanded by t h~ plaintiff. Under these circumstances, the plaintiff is awarded costs in the amount or $I 0.692.00. which amount the cou11 line.ls to be the reasonable attorneys fees incurred by the plaintiff in connection 'vi th its del'cnsc of motions sequenced as #012 and #013 and those incurred with the preparation and interposition of its own motion (1/ 0 14) in which it sought injunctive relief and an award of costs under 22 NYC RR Part 130-1 due to the defendants' engagement in motion practice considered to be frivolous and harassing. The court declines to award costs in the form or attorneys fees in excess of$ I 0.692.00. as ii finds that the additional sums requested for fees and disbursements by the plaintiff are beyond that which were 111.:cessary, reasonable and justly attributable to the frivolous conduct lt)und by this court tn have been undertaken hy defense counsel Michat:l J>. Braunsberg. Esq. Accordingly. the award of costs in the form or reasonable counsel fees actually incurred by the plaintiff in the amount of$] 0,692.00 is herehy assessed against de lens<.: counsel Michael P. 13raunsberg, Esq., personally. pursuant to 22 NYC RR Pai1§130-1. l(a) and (b), and he is adjudged to he personally liable 1w the payment or such fees within sixty (60) days of the date of this order. Pursuant to 22 1. NYCH.R ~ 130-J .2. and CP LR 2212. this order shall be entered as a money judgment in the amount or $ 1().()()2.00 in fa vor of the plai111iff against attorney Michael P. 8raunsbcrg, Esq .. personally. and doeketcd as such by the Clerk or this court. . t· r-( ' DATED: / ~ fa['( 1f J A \\l u~Y.c

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