Wells Fargo Bank, N.A. v Portu
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Wells Fargo Bank, N.A. v Portu 2018 NY Slip Op 33999(U) July 27, 2018 Supreme Court, Greene County Docket Number: 16-0842 Judge: Lisa M. Fisher Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] GREENE COUNTY CLERK 07/30/2018 11:21 AM INDEX NO. 2016-842 NYSCEF DOC. NO. 61 I RECEIVED NYSCEF: 10/30/2020 • STATE OF NEW YORK STATE OF NEW YORK SUPREME SUPREME COURT COURT GREENE COUNTY GREENE COUNTY WELLS FARGO BANK, N.A., WELLS FARGO BANK, N.A., Plaintiff, Plaintiff, DECISION DECISION & & ORDER ORDER against -- against -- Index Index No.: No.: RJINo.: RJI No.: 16-0842 16-0842 19-16-9325 19-16-9325 VALERIE VALERIE M. VALERIE J. A/KIA VALERIE M. PORTU, J. PORTU PORTU A/K/A PORTU, BY THE INTERNAL UNITED STATES OF AMERICA AMERICA THE UNITED STATES OF BY INTERNAL DEPARTMENT REVENUE NEW YORK STATE REVENUE SERVICE, NEW YORK STATE DEPARTMENT SERVICE, THE COMMERCIAL OF AND FINANCE, THE COMMERCIAL OF TAXATION TAXATION AND FINANCE, LEWIS & DRIVER'S LICENSE SCHOOL, INC., LEWIS & DRIVER'S LICENSE SCHOOL, INC., JOHN DOE, and JOHN STANZIONE, and STANZIONE, DOE, Defendants. Defendants. LISA FISHER: M. PRESENT: HON. LISA PRESENT: HON. M. FISHER: ORDER DECISION & ORDER DECISION APPEARANCES: APPEARANCES: 2016-842 Carol A. Esq. Carol A. Wojtowicz, Esq. Wojtowicz, movant Counselfor Counsel.for Plaintiff, movant Plaintiff Hogan Lovells US LLP LLP Hogan Lovells US 875 Avenue 875 Third Third Avenue 10022 New York New York, New York 10022 New York, 11111111111111 11:21:16 AM 07/30/2018 o2730 2 18 11:21:16 Clerk: MF Clerk Marilyn Farrell. County Clerk P. Kingsley, Esq. John P. Esq. John Kingsley, Counsel for cross movant Counsel for Defendant, Defendant, cross movant J. Portu Portu Valerie Valerie J. P. Kingsley, P.C. John P. P.C. John Kingsley, 329 Main Main Street 329 Street New Catskill, New York 12414 York 12414 Catskill, FISHER, J.: J.: FISHER, residential on property located in West West This is attempt to aa residential mortgage on located in attempt foreclose mortgage This is a a second second to foreclose property 10No.: of New prior action (Index of and of The action (Index No.: 10Coxsackie, in of Greene, and State State New York. York. The prior in the the County Greene, Coxsackie, County for the failure Supreme Court the plaintiff's to 0274) was on 18, by Court (Ceresia, J.) plaintiffs failure to on June June 2013 was dismissed dismissed (Ceresia, 18, 2013 J.) for 0274) by Supreme proceed pursuant pursuant to 22 NYCRR NYCRR to 22 proceed ~§ 202.27. Same was appealed or Plaintiff moved not appealed or reargued. reargued. Plaintiff moved Same was not 202.27. to restore restore the the matter/vacate matter/vacate dismissal, dismissaL and and for for aa judgment judgment of of foreclosure foreclosure and and sale. sale. to This This Court Court of Plaintiff's Plaintiffs moving moving denied such such application application for for several several reasons, reasons. must must notably notably because because ··none "none of denied papers state state itit held held both both the the note note and and the the papers mortgage" at commencement. commencement. Further Further given given that that there there mortgage .. at \\as an an assignment assignment of of the the mortgage mortgage by hy aa now now defunct defunct law law firm firm renown renovvn for for improper improper assignments, assignments. was including by by one one of of its its counselors counselors known known as as aa including "robo-signor," "robo-signor." this this Court's Cou11·s denial denial on on August August 17, 17. 2015 was was largely largely based hased on on aa lack lack of of standing. standing. However, However. this this Court Court afforded afforded Plaintiff Plaintiff 60 60 days days toto 2015 Pagelof7 1 of 7 Page 1 of 7 [*FILED: 2] GREENE COUNTY CLERK 07/30/2018 11:21 AM NYSCEF DOC. NO. 61 INDEX NO. 2016-842 RECEIVED NYSCEF: 10/30/2020 move pursuant pursuant toto CPLR CPLR R. R. 2221 2221 toto submit submit supplcmêñtal supplemental and and competent competent evidence evidence toto remedy remedy the the move noted defects, defects, otherwise otherwise the the motion motion would would be be denied denied with with prejudice. prejudice. Plaintiff Plaintiff did did not not so so move. move. noted Plaintiff did did not not appeal. appeal. Plaintiff Rather, Plaintiff Plaintiff decided decided toto start start over over again again by by attempting attempting toto de-accelerating de-accelerating the the mortgage mortgage Rather, of limitations limitations period. period. The The Court Court has has debt and and then then re-accelerate re-accelerate it,it, thus thus renewing renewing that that statute statute of debt observed this this tactic tactic being being more more common common and and isis "an evolving issue issue of of law" law" (Bank of New NeH" York "an evolving (Bank vv York of observed Hutchinson, 57 57 Misc3d Misc3d 1204(A) [Sup Ct, Kings Kings County County 2017, 2017, Thompson, Thompson, J.]), J.]), largely largely aa creature creature Ct, 1204(A) [Sup Hutchinson, of the the Appellate Appellate Division, Division, Second Second Department. Department. of Whereas the the Appellate Appellate Division, Division. Third Third Whereas Department, has has only only indirectly indirectly blessed blessed this this process process and and has has yet yet toto have have the the opportunity opportunity toto decide decide Department, a more substantive substantive application. application. Trial Trial courts courts encompassed encompassed within within the the Third Third Department Department have have a more of aa mortgage mortgage and, and, while while accepting accepting the the principle, principle, viewed viewed the the scheme scheme reviewed the the de-acceleration de-acceleration of reviewed of de-accelerating de-accelerating aa mortgage mortgage more more critically critically and and not not as as forgiving forgiving as as matters matters inin the the Second Second of Wells Fargo Bank, Bank, N.A NA. vv Machell, Machell, 55 55 Misc3d Misc3d 1214(A) [Sup Court, Ulster Ulster (See Fargo Department. (See Wells Court, 1214(A) [Sup Department. Bank ofof New New York Mellon vv Slavin, Slavin, 54 54 Misc Misc 3d 3d 311, 311, 315 315 [Sup Ct, York County 2017, 2017, Fisher, Fisher, J.; J.; Bank Mellon Ct, [Sup County on other other grounds grounds 156 AD3d 1073 [3d Dept 2017].) 2017].) Rensselaer County County 2016, 2016, Zwack, Zwack, J.],reversed J.], reversed on 156 AD3d 1073 [3d Dept Rensselaer Now, Plaintiff Plaintiff moves moves for for summary summary judgment judgment and and toto appoint appoint aa referee. referee. Defendant Defendant Valerie Valerie Now, J. Portu (hereiñafter (hereinafter "Defendant") vehemently opposes opposes same, same, and and cross-moves cross-moves toto dismiss dismiss and and for for "Defendant") vehemently J. Portu counsel fees. fees. Plaintiff Plaintiff opposes opposes the the application. application. Oral Oral argument argument was was held held inin the the matter, matter, and and both both counsel parties were were permitted permitted and and duly duly submitted submitted supplements. supplements. parties of these these applications applications revolve revolve around around three three arguments, arguments, two two of of which which were were The gravamen gravamen of The Plaintiffs favor favor upon upon hearing hearing oral oral argument. argument. The The first first isis Defendant's Defendant's argument argument that that resolved inin Plaintiff's resolved barred by by res resjudicata, which the the Court Court rejects rejects as as the the prior prior dismissal-which dismissal-which this second second action action isis barred which judicata, this was by by Supreme Supreme Court Court (Ceresia, (Ceresia, J.) J.) on on June June 18, 2013 and and not not this this Court's Court's denial denial of of the the motion motion toto 18, 2013 was restore on on August August 17, 2015-was not not on on the the merits merits but but clearly clearly procedural procedural pursuant pursuant toto 22 22 NYCRR NYCRR 17, 2015-was restore ~ 202.27 § 202.27 due due toto Plaintiff's Plaintiffs failure failure toto proceed/for proceed/for abandonment. abandonment. (See Home Investors Investors Gramatan Home (See Gramatan 'mJJ. vr Lopez, Lopez, 46 46 NY2d NY2d 481, 481, 485 485 [[1979] 19791 ["a judgment on on the the merits merits by by aa court court of of competent competent C Corp. ["a judgment jurisdiction isis conclusive conclusive of of the the issues issues of of fact fact and and questions questions of of law law necessarily necessarily decided decided therein therein inin jurisdiction any subsequent subsequent action."].) action."].) The The second second argument argument by by Defendant Defendant was was also also dispelled dispelled by by the the affidavit affidavit any Kimberly Ann Ann Mueggenberg Mueggenberg which which establishes establishes standing, standing, and and most most notably notably that that Plaintiff's Plaintiffs of of Kimberly validly held held the the Note Note and and Mortgage Mortgage at at the the time time of of commcñcement commencement which which alleviates alleviates the the Court's Cow1·s validly firm and and aa "robo-signor." ''robo-signor." prior concerns concerns over over the the now now defunct defunct law law firm prior of 77 Page 22 of Page 2 of 7 [*FILED: 3] GREENE COUNTY CLERK 07/30/2018 11:21 AM NYSCEF DOC. NO. 61 INDEX NO. 2016-842 RECEIVED NYSCEF: 10/30/2020 But where the Court does agree with Plaintiff But where the Court does not agree with Plaintiff is of of not is the the application application of the the statute statute of limitations period and the the efforts efforts to de-accelerate de-accelerate the subject subject limitations period and to the Note and The of Note and Mortgage. Mortgage. The crux crux of this this argument raised Defendant is that notice of default default November argument raised by is of dated·November 9, provides that provides that the the notice dated 2008 that 9, 2008 by Defendant "will" the Note be accelerated if payment payment of the default the Note "will" be accelerated if of is by 9, the default is not not received received December 2008. 9, 2008. by December not made such date, Defendant argues Defendant argues that, since payment was by was and acceleration was automatic automatic since payment was not made and date, acceleration that, by such occurred before commencement of prior action on 8, Therefore, Defendant occurred before commencement of the the prior action on March March 2010. Defendant 8, 2010. Therefore, on December the applicable argues that this cause of action action accrued December argues that this cause of accrued on 9, and the applicable statute of and statute of 9, 2008, 2008, limitations period expired on 9, limitations period expired on December December 2014. 9, 2014. Plaintiff with Plaintiff disagrees with Defendant's interpretation and argues that the acceleration disagrees Defendant's interpretation and argues that acceleration the of the occurred at commencement the prior action on March March 2010 because the November occurred at of prior action on 8, because the November 9, 2008 commencement 8, 2010 9, 2008 unequivocal" correspondence was not "clear and unequivocal" enough enough to accelerate Plaintiff correspondence was and to by Thus, Plaintiff not "clear accelerate demand. Thus, by demand. acceleration on March within six-year contends its to its on 3, was the statute of contends election to revoke revoke its acceleration March 2016 was within the six-year statute of its election 3, 2016 allows them recommence action. limitations period which allows them to recommence this limitations period which to timely this action. timely action of limitations, An to aa mortgage is by statute oflimitations, (CPLR An action to foreclose foreclose is governed governed a six-year six-year statute (CPLR mortgage by a which run from each unpaid the debt § 4]), which "begins to the installment unless the 213 [ "begins to run from the due due date date of of each unpaid installment unless debt has has [4]), § 213 of an an action, once the debt has has been accelerated demand or commencement commeñcement been accelerated; once been accelerated by or of the debt a demand accelerated; action, by a been mortgage" run on and the the statute statute of limitations limitations beings on the the entire entire of beings to mortgage" the sum becomes due the entire entire sum becomes due and to run Saini Cinelli 289 AD2d AD2d Dept (Lavin vv Elmakiss, Elmakiss, 302 2003]; see Saini vv Cinelli Enters., 289 770, (Lavin 302 AD2d AD2d 638,639 [3d Dept Enters., 770, 638, 639 [3d ; see 2003] such 771 [3d denied 98 NY2d 602 [2002]). Once the debt election 771 2001 Iv denied 98 NY2d 602 Once the is such election [3d Dept Dept [2002]). debt is accelerated, 2001], ], lv accelerated, through an affirmative affirmative within statute of limitations "'could be revoked only through an act within the oflimitations period "could be revoked act occurring the statute period occurring only Federal 208 AD2d 894 [2d [2d (Lavin, 302 at quoting Federal Natl. Natl. Mtge. Mtge. Assn Assn vv Mebane, Mebane, 208 892, 894 302 AD2d AD2d at 639, AD2d 892, (Lavin, 639, quoting borrowers' obligation Dept 1994] [noting '"once aa mortgage debt is 'the borrowers' right and to Dept "once mortgage debt is accelerated, 'the right and obligation to accelerated, 1994] [noting sums due and and the make monthly installments ceased and [become] immediately due and make installments ceased and all all sums and payable', the payable', [become] immediately monthly run on on the debt."]). of begins to mortgage debt."]). six-year Statute six-year Statute of Limitations Limitations begins to run the entire entire mortgage the debt debt accelerated that fact must must be "Where, as it that was by that fact be as here, it is is alleged alleged that the was accelerated "Where, demand, here, by demand, manner" mortgagor in a and unequivocal unequivocal Mortg. communicated to in and manner" ((Goldman Goldman Sachs Mortg. Co. to the the mortgagor a clear clear Sachs Co. communicated letter or default 1122 is achieved achieved in a a demand demand default vv Mares, Mares, 135 1121, 1122 [3d 2016]). This is in letter or 135 AD3d AD3d [3d Dept Dept 2016]). This 1121, evaluated letters and found language such letter from the to Courts have these and language such letter bank to the borrowers. Courts have evaluated these letters found from the bank the borrowers. "may" 30 days to constitute constitute if is within 30 to to as as "may" accelerate accelerate if the default is not cured within days to be be insufficient insufficient the default not cured option accelerate id, at whereas language that to would acceleration (Mares, AD3d at 1122), whereas language that the the option to accelerate would acceleration 135 AD3d (Mares, 1122), id., 135 days ( & Supply Co. v v a be unless the was within 60 Colonie Block Block & Co. D. unless was cured cured within 60 days (Colonie be exercised exercised the delinquency Supply delinquency Page 3 of 7 Page 3 of7 3 of 7 [*FILED: 4] GREENE COUNTY CLERK 07/30/2018 11:21 AM NYSCEF DOC. NO. 61 INDEX NO. 2016-842 RECEIVED NYSCEF: 10/30/2020 "will" Overmyer 35 AD2d AD2d 897 [3d [3d Dept Dept H Overmyer Co., 897, 1970]) or that "will" accelerate or language language the bank bank that the accelerate Co., 35 897, 897 1970]) H. the loan loan balañce and proceed proceed with the balance and with aa foreclosure sale the was within 30 foreclosure sale unless unless the default default was cured within cured 30 days days Bank (Deutsche Co. v v Royal Trust (Deutsche Bank Nat. Nat. Trust Co. Royal Blue Blue Realty Realty Holdings, Holdings, Inc., Inc., 148 529, 530 148 AD3d AD3d 530 [2d [2d Dept Dept 529, ly denied denied 30 NY3d 959 lv denied denied 2017], Iv 30 NY3d 959 [2017], Iv 30 NY3d 960 to be to 30 NY3d 960 [2017]), to both both be sufficient sufficient to 2017], [2017], [2017]), constitute aceclcration demand. In the constitute acceleration by In above-cited Deutsche Bank Bank matter, the the immediately above-cited Deutsche the trial trial matter, by demand. immediately decision court's found that the the language the bank bank court's decision found that the "will accelerate the balance and language "will Loan accelerate the Loan and proceed balance proceed foreclosure" with to "mean that unless "mean unless plaintiff gets the with foreclosure" to that plaintiff gets within thirty days, the the money within the note note comes comes days, money thirty step" due and and foreclosure foreclosure will the next (See Deutsche due will be step" (See Deutsche Bank, Bank, 52 121 0(A) [Sup Ct, New be the next 52 Misc3d Misc3d Ct, New 1210(A) [Sup York J.]). York County 2016, Bluth, J.]). The court further noted that record on shows The trial trial court further noted that "the "the record on this this motion motion shows 2016, Bluth, County that there there were no notices between of the] notices the [ [date default letter the [ that were no between the date of letter and date of and the [date of the] foreclosure the] default the] foreclosure commencement" 52 Misc3d *3). case commencement" (Id., case 52 at Misc3d at *3). (Id., the default letter November Here, the letter dated November 9, contains language mirroring Colonie Block default dated 2008 contains language Colonie Block Here, 9, 2008 mirroring and Deutsche loan and Deutsche Bank. Bank. It that the payments on loan can current It provides provides that "[u]nless "[u]nless the payments on your your can be be brought brought current December will become to accelerate accelerate your and pursue by 9, it become necessary to your Mortgage Note and it will Mortgage Note pursue 9, 2008, 2008, by December necessary Trust" your or Deed for mortgage or of added). It that remedies provided remedies provided for in in your mortgage Deed of Trust" (emphasis added). It continues continues (emphasis that Note" "[y]our failure to pay acceleration of your '"[y]our failure to pay this ... result in of Mortgage Note" this delinquency . . . will will result in the the acceleration your Mortgage delinquency ultimatum total (emphasis added). The default notice sets for the due to default for (emphasis added). The default notice sets an an ultimatum for the total due to cure default for cure December 9, in typeface and sized font and December 2008 in bold bold typeface and in in a a larger larger font than than the rest of of the the letter, and further further sized the rest letter, 9, 2008 acceleration" funds are by stated time, we proceed with acceleration" provides "[i]f "[i]f funds are not not received received the above above we will will proceed with stated time, by the provides (emphasis added]). the correspondence provides acceleration has occurred, (emphasis added]). Additionally, the provides "[o]nce acceleration has correspondence "[o]nce Additionally, occurred, initiated." action . . . may Plaintiff that the acceleration aa foreclosure action ... be Plaintiff argues that in foreclosure be ~tiated." Although Although argues the acceleration in this this may Court the action, to the preceding sentence creates aa clear distinction case case was was the foreclosure foreclosure to the the Court the preceding sentence creates clear distinction action, "acceleration" action," between and would between "acceleration" and aa "foreclosure action," and to otherwise would create aa and "foreclosure to hold hold otherwise create in the the letter. letter. redundancy in redundancy the trial trial (which not identical Like the court in Deutsche Bank Bank (which was on similar if Like court in Deutsche was affirmed affirmed on very similar if not identical very notice," language), this Court does not find this to notice," there was no this Court not find this to be be a a ''wishy-washy there was no further further does language), "wishy-washy repeated correspondence between the notice and action, and threat that correspondence between default and the the foreclosure foreclosure and the the repeated threat that the default notice action, "will" the default not cured date certain, which was in in bold bold the if is by which was typeface the debt debt "will" accelerate accelerate if the default is not cured a date typeface certain, by a the rest rest of of the is a clear and unequivocal unequivocal manner to accelerate accelerate and sized font than the is and manner to and a a larger larger sized font than the letter, a clear letter, Court that the the statute limitations the by Therefore, the agrees with Defendant that of the debt debt demañd. the Court agrees with Defendant statute of limitations Therefore, by demand. December was not not cured), and expired period began to I10,0, 2008 (the the was and period began to run run on on December 2008 (the day after the default default expired cured), day after Page4of7 Page 4 of 7 4 of 7 [*FILED: 5] GREENE COUNTY CLERK 07/30/2018 11:21 AM NYSCEF DOC. NO. 61 INDEX NO. 2016-842 RECEIVED NYSCEF: 10/30/2020 on December December 2014. the attempt to de-accelerate de-accelerate the loan March on 10, Thus, the to the 2, was attempt loan on on March was without without 10, 2014. Thus, 2, 2016, 2016, effect. effect. the extent extent Plaintiff argues To that Plaintiff argues there are tolls for administrative orders, To the that there are applicable applicable for tolls administrative orders, other and other have been evaluated FEMA, and attenuated reasons, these been evaluated and as The attenuated these have and declined declined as inapplicable. inapplicable. The FEMA, reasons, palatable toll is the the six-month six-month toll for a a dismissal dismissal under only palatable toll is toll for under NY § (a), which affording NY 205 which (a), only § 205 affording Plaintiff the benefit of the the most termination date of August August Plaintiff the benefit of most forgiving termination date of 17, this action this action 17, 2015, 2015, forgiving on October commenced on 11, was late. commenced October 2016 was ten ten months months late. 11, 2016 further It is is further noted even Plaintiff's that the of limitations of It noted that, considering Plaintiff's argument that argument the statute statute limitations that, even considering did notrun until until March did March 8, Plaintiff would still be As by in Plaintiff would still be unsuccessful. unsuccessful. As noted noted this Court not run Court in 2016, 8, 2016, by this Wells Fargo 55 Misc3d Wells Fargo Bank, Bank, N.A. N.A. vv Machell Machel/ (supra 55 1214(A) [Sup Court, Ulster County 2017, Ulster (supra Misc3d Court, 2017, 1214(A) County [Sup there no appellate-level appellate-level Fisher, J.]), has decision noting the and in has been been no decision the manner manner and formalities formalities in which which Fisher, J.]), there noting de-acceleration letter shall be given. given. Within the third judicial which where aa de-acceleration letter shall be Within the judicial district, which is this third is where this Court Court district, is situated situated which is encompassed encompassed the Third Third in Bank ofNew is and is by the Department, the court in Bank of New York and which the trial trial court York Department, by Slavin Mellon vv Slavin (supra, 54 3d built on by of 54 Misc Misc 3d at at 315) built on the the rule rule of of law law articulated articulated of the the trial trial (supra, 315) by many many Mellon courts in the Second Department courts in Department by the that revocation should be the requirement requirement that "the "the revocation should be clear, the Second clear, adding by adding election in sum, unequivocal, and actual notice to borrower of election to in akin and give give actual notice to the the borrower of the lender's to revoke akin the lender's revoke unequivocal, sum, accelerate" plaintiff to accelerate" (Slavin, to plaintiff gave to the to 54 at 54 Misc3d Misc3d at 315). 315). to the the manner manner gave notice notice to exercise exercise the option option (Slavin, deIn Machell, this Court Court agreed and rejected the attempt the plaintiff-also plaintiff-also Fargo-to In Machel/, this agreed and the by Wells Fargo-to derejected attempt Wells by the notice" debt as as the borrowers receive "actual within of limitations accelerate the did "actual notice" within the oflimitations accelerate the debt the borrowers did riot not receive the statute statute period. period. Plaintiff provides information for the two de-acceleration Here, Plaintiff provides the information for de-acceleration letters the USPS USPS tracking the two letters Here, tracking have been mailed on March 2016 not actually received which, while claiming to been mailed on 2, were not received by while to have March were the which, 2, 2016 by the claiming actually March USPS until March 5, but were not to until March 14, USPS until March but nonetheless nonetheless were not delivered delivered to Defendant Defendant until 2016 14, 2016 5, 2016, 2016, Whichever neither before and on 31, Whichever date is neither were before Plaintiff's and another another on March March 2016. date that that is chosen, were Plaintiff's 31, 2016. chosen, of March March 2016 statute of limitations limitations expire. Court suggested date 8, that of would expire. This Court agrees suggested date of that the the statute would This agrees 8, 2016 with and Slavin Slavin that the the notice notice of de-acceleration, used herein as a a scheme scheme to re-start re-start Machel/ and that of used herein as to aa with Machell de-acceleration, foreclosure case was in and in must equally be clear, foreclosure case which which was dismissed dismissed in 2013 2013 and for for a a default default in 2008, must be 2008, clear, equally so required. of and is unequivocal, and actual notice just as and give give actual notice just as the the notice notice of default default and to to accelerate accelerate is so required. unequivocal, here. the Court that the the portion of the the complaint complaint which Plaintiff failed to As the finds that portion of which Plaintiff to do do that that here. As such, Court finds failed such, is DISMISSED, thus this branch of Plaintiffs Plaintiff's motion thus of motion seeks on property is seeks to to foreclose foreclose on the the subject subject this branch DISMISSED, property GRANTED. and this this branch branch of Defendant's cross-motion is GRANTED. is and of cross-motion is is DENIED DENIED Defendant's Page Page 5 5 of7 of 7 5 of 7 [*FILED: 6] GREENE COUNTY CLERK 07/30/2018 11:21 AM INDEX NO. 2016-842 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 10/30/2020 Plaintiff that Defendant notes that Plaintiff alleges Defendant the Court Court As As it it pertains pertains to to the the remaining claims, the notes that alleges that claims, remaining after her her husband in failed to pay taxes and on property after husband passed passed away in January and insurance on the the subject subject to pay taxes insurance failed away January property for these Plaintiff's also requests requests compensation these monies monies paid of 2013. 2013. the extent extent that Plaintiff's complaint of To that complaint also compensation for paid To the for unjust construed as a claim unjust enrichment and is is for and under what insurance under what is liberally a claim is construed as for enrichment and for taxes taxes and insurance liberally does and to to the the extent extent that Defendant not of period, and that Defendant does not still within the statute within the six-year six-year statute of limitations limitations still period, Court in her application the Court will and insurance insurance her application contest that she paid such taxes and in herein, the will contest that she has has not not paid such taxes herein, branch of Defendant's Defendant's cross-motion. of Plaintiff's motion and DENY DENY this this branch GRANT this of motion and of cross-motion. GRANT branch Plaintiff's this branch nor taxes and is Inasmuch as action is frivolous due taxes and insurance, nor is Inasmuch action not frivolous due to to the the unpaid unpaid as this this is not insurance, present application warrant counsel such the prevailing at this this juncture to warrant Defendant the party at juncture to counsel fees, such present application Defendant fees, prevailing party become to renew renew should Defendant the for counsel fees is but without prejudice to should Defendant become the but without prejudice for counsel fees is DENIED, DENIED, herein. prevailing party party herein. prevailing whether shall wherein it will will be discussed referee The will be set wherein it be discussed whether aa referee shall matter will be set for for a a conference, The matter conference, and insurance from on the the subject subject of and owned on property from the amount amount of taxes taxes insurance owned be appointed to the to determine determine property be appointed were the present. In Machell,'the Defendant stopped same to the Machel/, 'the parties parties were the date stopped paying same to present. In the alleged alleged date that that Defendant paying will eñgage is expected expected the parties able the and the Thus, it the parties will engage matter and discontinued discontinued the action. action. it is resolve the matter able to to resolve Thus, be expected that Plaintiff prior conference. It would would therefore in discussions prior to It therefore be expected that Plaintiff in settlement discussions to the the conference. settlement Plaintiff as Plaintiff is insurance to begin the negotiations, submit aa demand for taxes and paid to begin the as is for the the owed owed taxes and insurance paid submit demand negotiations, information. holder of such such information. the holder of the parties' have contentions To not addressed above, the contentions have addressed the parties' remaining extent not specifically To the the extent above, remaining specifically or rendered rendered academic. in merit merit been and to in or academic. found be lacking been examined examined and found to be lacking of this this of the Please note that This constitutes the and Order of · Please note that aa copy of Decision Order the Court. Court. constitutes and This the Decision copy with Chambers the motion papers filed Decision and along with the motion papers are filed by with the with original are being Decision Order the original and Order being by Chambers along to comply Decision and.Order returned to the the prevailing original is being County Clerk. The Decision and Order is returned to party, to The original Clerk. party, prevailing comply being County provisions of this this with from applicable Rule with CPLR R. Counsel is from the provisions of Rule with Counsel not relieved relieved the applicable R. 2220. 2220. is not with CPLR of Entry. Entry. and Notice regard to entry and Notice of regard to filing, filing, entry ORDERED. IT IT IS IS SO SO ORDERED. DATED: 2018 DATED: July 27 27, 1 2018 July New York Catskill, New York Catskill, ENTER: E N T E R : H9Ñ. LIS SUPREME Page Page 6of7 6 of 7 6 of 7 M. HE CO T J STICE [*FILED: 7] GREENE COUNTY CLERK 07/30/2018 11:21 AM NYSCEF DOC. NO. 61 INDEX NO. 2016-842 RECEIVED NYSCEF: 10/30/2020 Considered: Papers Considered: Papers of motion, affidavit of Kimberly dated May 18, affidavit of Ami Mueggenberg, with I) Notice of dated Ann with motion, 18, 2017; 2017; Mueggenberg, 1) Notice May Kimberly of Carol Carol A. Wojtowicz, with annexed dated of A. Esq., annexed annexed exhibits, dated May affidavit affidavit annexed Wojtowicz, exhibits, 17, 2017; 2017; Esq., with May 17, with exhibits, dated May affidavit dated affidavit of of Kristin Kristin Corsi, Esq., with annexed annexed exhibit, dated dated exhibits, 4, 2017; 2017; Corsi, Esq., exhibit, May 4, supplemental with April affirmation of Carol Carol A. annexed 7, supplemental affirmation of A. Wojtowicz, Esq., with annexed April 7, 2017; 2017; Wojtowicz, Esq., Plaintiff's memorandum of law, with with annexed dated exhibit, dated May Plaintiff's memorandum dated oflaw, annexed exhibits, dated 15, 2017; 2017; exhibits, exhibit, May 15, May 18, 2017; 2017; May 18, of cross-motion, dated affirmation of John John with Notice P. Kingsley, 2) Notice of dated July 14, affirmation of P. Esq., with Kingsley, cross-motion, 14, 2017; 2017; Esq., 2) July Defendant's memorandum of law, dated dated August annexed dated oflaw, August 17, annexed exhibits, dated July 14, Defendant's memorandum 14, 2017; 2017; 17, exhibits, July 2017; 2017; of law, of Brandon dated August Plaintiff's memorandum 3) Affidavit of McNeal, dated August 9, Plaintiff's reply memorandum oflaw, Affidavit Brandon McNeal, 9, 2017; 2017; reply 3) dated August with annexed with annexed exhibits, dated August 9, exhibits, 9, 2017; 2017; Oral argument 4) Oral argument notes; notes; 4) December supplemental memorandum with annexed dated 5) Plaintiff's supplemental memorandum oflaw, with annexed exhibits, dated December 20, Plaintiff's of law, 20, exhibits, 5) 2017; 2017; and dated December Correspuñdeñce from Defendant's 6) Correspondence from Defendant's attorney, dated December 2~, and 27, 2017; 2017; attorney, 6) 2018. argument received Oral 7) Oral argument transcript, received May 16, 2018. transcript, May 16, 7) of 7 Page Page 7 7 of7 7 of 7
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