Estate of Florence Jurzenia v Mims

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Estate of Florence Jurzenia v Mims 2014 NY Slip Op 30299(U) January 24, 2014 Sup Ct, Suffolk County Docket Number: 13490/2013 Judge: William B. Rebolini 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] co~ Short Form Order S PREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY PRESENT: B. REBOLINI Estate of Florence Jurz nia, Jean Jurzenia Burden, as co-Executor of the E tate of Florence Jurzenia, Edward Jurzenia, as co Executor of the Estate of Florence Jurzenia, Silv r Sands Motel, Inc., Jean Jurzenia Burden as Sha eholder in Silver Sands Motel, Inc., Edward Ju enia as Shareholder in Silver Sands Motel, Inc , Terry Keefe, as Shareholder in Silver S· nds Motel, Inc. and Walter H. Burden, III, Edward urzenia, individually, and Jean Jurzenia Burden, i dividually, Plaintiffs, -agatstJerry M. Mims, Eric Fr edlander, Long Island Capital Management C rp., Somer Estrin, Esq. , PM Advisory Group, S >l Lopiccolo, Anthony Galeotafiore, AJG Capital Group Associates, Inc. , Patricia Chessman, De orah Loftain, Peter Shembri, Gail Shembri Patricia A. Judd, Richard Olivo, Michael Harriso , Philip Solomon, Rosemary Solomon, A gela Sivillo, Annemarie Prokopiak, Annmarie P nagos, Susan Bonitch, Patricia Warner, Jennifi r R. Hain, Elizabeth R. Reis, The Gross Family Holdings, LLC, The Wheatley Harbor, LLC, Stanley Weisz and Stanley Gross, Brightwaters Ab -tract, Ltd., Tideland Abstract a/k/a Titleland Guarantee, Inc., Affirmative Land Servi es, Inc. , Hamlet Title Agency, Inc. , Defendants. Index No.: 13490/2013 Attorneys [See Rider Attached] Motion Sequence No.: 001; MD Motion Date: 8/27/13 Submitted: 10/9/13 Motion Sequence No.: 002; MD Motion Date: 10/7/13 Submitted: 10/23/13 [* 2] Estate of Florence Jurz nia v. Mims et al. Index No.: 13490/2013 Page 2 Upon the follo ing papers numbered 1 to 44 read upon these two motions to dismiss the complaint: Notice of otion and supporting papers, 1 - 6; 15 - 25 ; Answering Affidavits and supporting papers, 7 - 1 ; 26 - 36; Replying Affidavits and supporting papers, 37 - 40; 41 - 44; it is ORDERED tha this motion by defendants, Sal LoPiccolo, sued in this action as Sol LoPiccolo and P.M. A visory Group for an order pursuant to CPLR 321 l(a)(7) dismissing the complaint is denied; anc it is further ORDERED that he separate motion by defendants, Philip Solomon and Rosemary Solomon, for an order dismissing he complaint against them is denied; and it is further ORDERED thatlmovants shall serve their answer to the complaint within twenty (20) days from the date of this or~er. I Plaintiffs comm need this action by the filing of a summons and complaint on May 20, 2013, to recover damages an for other relief arising out of numerous allegedly fraudulent mortgage transactions. Central tot eir allegations are claims that defendants fraudulently profited from receipt of mortgage proceeds p id in connection with mortgages burdening plaintiffs' real properties. It is averred that defendants onspired with plaintiffs' former attorney, Jerry M. Mims, to profit from the transactions encumberi g numerous properties in which plaintiffs have an interest. Defendants LoP ccolo and P .M. Advisory Group (LoPiccolo) now move for an order pursuant to CPLR 3211 a)(7) dismissing the complaint against them. A review of the complaint reveals that at the core o plaintiffs' allegations against movants are claims that they accepted funds from the mortgage proc eds without plaintiffs' authority or knowledge. The defendants ~'olomon also move for an order dismissing the complaint against them on the ground that an awar of summary judgment in their favor in a foreclosure action arising out of a 2009 mortgage given t them by Walter H. Burden III and Jean J. Burden constitutes resjudicata and precludes the re-liti ation of the claims in this action. While the Appellate Division, Second Department found in S omon v Burden, 104 AD3d 839, 961 NYS2d 535 (2d Dept 2013), that plaintiffs had met their i itial burden of establishing their primafacie entitlement to a judgment of foreclosure by producin the mortgage, the note and evidence of default and that defendants had failed to raise a triable is ue of fact, the allegations of fraud against the defendants Solomon in this action involve more than just the 2009 mortgage on properties located at 1000 Cove Circle and 1090 Cove Circle, Greenport, ew York. It is alleged in the complaint that the defendant Mims falsely represented to plaintiff ean Jurzenia Burden (Burden) the nature of a transaction into which she entered with the Solom ns in 2008, and that Burden was unaware that she was giving defendant Solomon a mortgage on 1er property located at 1400 Silvermere Road, Greenport, New York. It is also alleged that Burden suffers from ocular histoplasmosis, a serious eye disease that affects her vision, and that she was nable to read the documents that she signed at the time. In addition, it is [* 3] Estate of Florence Jurzen av. Mims et al. Index No.: 13490/2013 Page 3 alleged in the complaint that Burden was threatened and coerced through use of force into signing the 2008 mortgage. Furt ermore, it is asserted that the mortgage funds totaling $200,000.00 were disbursed to Mims, and t at Burden ultimately received only $23,217.06 from the 2008 mortgage. It is also claimed that Mi s made arrangements with the defendant Solomon to enter into another mortgage transaction wit Burden to encumber the Cove Circle properties. Burden claims, however, that it was not her intenti n to secure the mortgage with the property located at 1090 Cove Circle, and that she was assured by defendants Mims, Solomon and Estrin that the 2009 mortgage would not encumber that parcel. It is also claimed that the 2009 mortgage is void ab initio on the ground that it alleged was execu ed by Burden for Walter H. Burden III upon a forged power of attorney. Thus, the complaint in t is action does not involve one isolated mortgage transaction in 2009 but, instead, describes a serie of transactions that are alleged to have involved fraud by defendants. While plaintiffs ave set forth facts regarding the underlying mortgage transactions in sufficient detail to give otice to the defendants of the nature of the claims against them, plaintiffs also assert that facts ess ntial to justify opposition may exist but cannot be stated presently (see CPLR 3211 [d]). In parti ular, plaintiffs claim that they have been unable to obtain documentation to identify how the pro eeds from the various mortgages on their properties were distributed. Furthermore, it is plainti fBurden's claim that she was coerced by her attorney Mims, who has since been suspended from th practice oflaw (see Matter of Mims, 102 AD3d 238, 958 NYS2d 52 [2d Dept 2012]), to sign doct ments without having been given sufficient information to understand the underlying transactions. Under the particular circumstances of this case, dismissal of the claims against movants at this st ge is inappropriate, as plaintiffs have set forth a reasonable basis to believe that with additional disc >very they will be able to develop facts sufficient to establish the elements of their claims of fraud gainst the defendants (see Lemle v Lemle, 92 AD3d 494, 939 NYS2d 15 [1st Dept 2012]; see als Giunta's Meat Farms, Inc. v Pina Constr. Corp., 89 AD3d 799, 932 NYS2d 523 [2d Dept 2011]). Dated Pir J{tyI I \ ~;4~1 HON. WILLIAM B. REBOLINI, J.S.C. NON-FINAL DISPOSITION [* 4] RIDER Clerk of the Court Attorney for Plaintiff: Weber Law Group, LLP 290 Broadhollow Road, 'uite 200E Melville, NY 11747 Defendant Pro Se: Jerry M. Mims 130 Barton A venue Patchogue, NY 11772 and Richard Olivo: Butler, Fitzgerald, Fives n & McCarthy Nine East 45th Street, 9th Joor New York, NY 10017 I Attorney for Defendant Slome Estrin, Esq.: Gerald L. Lotto, Esq. 3330 Veterans Memorial Highway Bohemia, NY 11716 , II ! i Attorne for Defendants Grou and Sal LoPiccolo s/h/a ol Lo Piccolo: L' Abbate, Balkan, Colav ta & Contini, LLP 1001 Franklin Avenue Garden City, NY 11530 nthon Galeotafiore ssociates Inc.: ' : Charles Chaim Liechtun~', Esq. 71 S. Central Avenue, Suite 103 Valley Stream, NY 115 80 ' Attorney for Defendant t Peter Shembri and Gail Slhembri: Egan & Golden, LLP 96 South Ocean A venue ! Patchogue, NY 11772 [* 5] Solomon: Law Office of John J. A drews 503 Main Street Port Jefferson, NY 117 7 Kenneth S. Pelsinger, E. q. 3601 Hempstead Turnpike, Suite LLF Levittown, NY 11756 Attorne for Defendants he Gross Famil Holdin s and The Wheatle Harb r LLC: Conforti & Waller, LLP 250 North Sea Road Southampton, NY 1196 Attorne for Defendant ' itleland Abstract a/k/a Titleland Guarante Inc.: William J. Fallon, Esq. I P.O. Box 575 Rockville Centre, NY 11571

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