Matter of People of the State of New York v DB Central, Inc.

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Matter of People of the State of New York v DB Central, Inc. 2020 NY Slip Op 31957(U) June 18, 2020 Supreme Court, Suffolk County Docket Number: 00710/2019 Judge: Martha L. Luft 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. [* 1] Short Form Order Index No .. 00710/2019 SUPREME COURT - STATE OF NEW YORK I.A.S. PART 50- SUFFOLK COUNTY COPY DECISION AND ORDER CASEDISP PRESENT: Hon. MARTHA L. LUFT Acting Justice of the Supreme Court Mot. Seq. No.: 001 - Mot.D Orig. Return Date: 03/12/2019 Motion Submit Date: 03/12/2019 ---------------------------------------------------------------)( In the Matter of the A pplication of the PEOPLE OF THE STA TE OF NEW YORK, Petitioner, For a Judgment Pursuant to CPLR 5225 Directing the Turnover of Assets Belonging to A Judgment Debtor, - against - TIMOTHY D. SINI District Attorney of Suffolk County Attorney for the Petitioner Craig D. Pavlik, Esq. & Joseph J. McCarthy, Jr., Esq. Assistant District Attorneys of counsel Wm. J. Lindsay Complex, Bldg. 77 Hauppauge, NY 11 787 DB CENTRAL, INC Respondent c/o Secretary of State One Commerce Plaza 99 Washington Avenue Albany, NY 12231-000 I TD BANK, N.A. Respondent 170 I Route 70 East DB CENTRAL, INC. and Cherry Hill, NJ 08054-5400 TD BANK, N.A., George 0. Guidi Presumptive Interested Party l 5 Bowker Court Ludlow, VT 05149 Respondents. ---------------------------------------------------------------)( Upon the following papers numbered I to _ I_read on this motion and Petition for a turnover order; Notice of Motion/ Order to Show Cause and supporting papers-1..:i_; Notice of Cross Motion and supporting papers _ _ ; Answering Affidavits and supporting papers_; Replying Affidavits and supporting papers_; Other: Petitioner's Exhibits A thru R; S through GG; HH through QQ; and Petitioner's Memo of Law ; (a11d afte1 hca1 ing cotmsel in sttpport and opposed to the motion) it is, [* 2] People of the State of New York v. DB Central, Inc .. et al. Index No. 00710/2019 LUFT, J. Page 2 ORDERED, that Petitioner's unopposed motion for an order pursuant to CPLR 5225 (b) directing respondent TD BANK, N.A. to tum over to the Sheriff of Suffolk County proceeds held in account ending in**** I050, in the name ofrespondent DB CENTR.A.L, INC., to partially satisfy a restitution judgment order issued in the matter of People v. George 0. Guld;. Suffolk County indictment number 02066-09, is granted as set forth herein; and it is. further, ORDERED, that the Petitioner's application for a money judgment in the amount of$ J84,600.00 as against Respondent DB CENTRAL, INC., and in favor of creditor/victim Bank of America, (as successor in interest to Counlfywide Loans, Inc.) is denied, and it is, further, ORDERED, that the Petitioner's application for a money judgment in the amount of$863,473.30 as against Respondent DB CENTRAL, INC., and in favor of creditor/victim Bank of America, (as successor in interest to Countrywide Loans, Inc. ) is denied , and it is, further, ORDERED that the petitioner shall file and serve a copy of this order with notice of its entry upon the respondents and criminal defendant George 0. Guidi, and the Clerk of the Court within 30 days of the date of this order, and shall promptly file proof of such service. This special proceeding was commenced to enforce a restitution judgment order that arises out of a Suffol k County, New York criminal prosecution and conviction entitled People ofthe State ofNew York v. George 0. Guidi, Indictment# 02066/09, wherein criminal defendant George 0. Guidi pleaded guilty, on November29, 2017, to a violationofNew York Penal Law§ 155.40(1), Grand Larceny in the Second Degree, a class C felony, in full satisfaction of both charges then pending on that docket. As part of the bargainedfor disposition under indictment #02066/09, People v. George 0. Guidi, on December 13,20 I 7 a restitution hearing was conducted by this Court (Mark D. Cohen, J.). After such hearing, this Court (Mark D. Cohen, J.) made certain findings of fact and conclusions of law which were incorporated within its restitution judgment order entered March 20, 2018. Such restitution judgment order was granted in favor of crime victim Bank of America, (as successor in inreresf to Countrywide Loans, Inc.,) in the amount of $863 ,473.30. The Court incorporates by reference the findings of fact and conclusions oflaw as enumerated within this Court's (Mark D. Cohen, J.) Decision and Order dated March 20, 2018. The instant turnover Petition relates to an Order of Attachment that the petitioner sought and was granted on April 3, 2009 by this Court (William B. Rebolini, J.) in the matter of Spotav. MacPherson, et al. , Suffolk County Index No. 12978/09. Said attachment proceeding was brought in advance of and relating to several Suffolk County, New York criminal prosecutions under indictment #'s l 709A/09 through I 709Q/09, (People v. Donald C. MacPherson. George 0. Guidi, [I709BI09], Dustin J Dente, Brandon Lisi, Ethan Ellner, et al.), as well as indictment# 02066109, (People v. George 0. Guidi). The Order of Attachment and subsequent Inventory of said Attachment includes numerous bank accounts and parcels of real property with improvements. The bank account which is the subject of the instant turnover proceeding is maintained with respondent TD Bank, N.A., the purported garnishee in possession. Said bank account ending in#**** 1050 is in the name of respondent DB Central, Inc .. Such account ending in ****1050 is said to have a balance of$25,928.32, as of June 23, 2009. The Court incorporates by reference the findings of fact and conclusions of law as enumerated within this Court' s (William B. Rebolini , J.) Decision and Order dated April 3, 2009. [* 3] People of the State of New York v. DB Central, Inc., et al. Index No. 00710/20 19 LUFT, J. Page 3 STANDING - PETITIONER - District Attorney of Suffolk County - Claiming Authority The Court notes at the outset, Petitioner is authorized under Penal Law §60.27 (1)(2) and Criminal Procedure Law §420.10(6)(a).(b) to institute civil proceedings on behalf of a victim awarded and entitled to restitution. "The district attorney may, in his or her discretion, and must, upon order of the court, institute proceedings to collect such fine, restitution or reparation" (CPL §420.1O[6](b]). As such, the People, as claiming authority, are authorized to seek restitution in this matter on behalf of crime victim Bank of America, (as successor in interest to Countrywide Loans, Inc.,). UNCONTROVERTED FACTS - DEEMED ADMITTED The instant motion is unopposed and as such the uncontroverted facts set forth in the motion papers and exhibits are deemed admitted (Kuehne & Nagel, Inc. V. Baiden, 36 NY2d 539, 369 N YS2d 667 (1975]; Torrorello v. Carlin, 260 AD2d 20 l, 688 NYS2d 64 l (I51 Dept 1999); see also, Hermatiage Inc. Co. V Trance Nite Club, Inc. , 40 AD3d 1032, 834 NYS2d 870 [2nd Dept 2007]). Moreover, the Court notes, and Petitioner's sworn affidavits of service confirm, that each of the Respondents, as well as George 0. Guidi as a presumptive interested party (see CPLR §§5225, 5239), were properly and timely served with all of the papers herein, and each have elected not to respond or intervene, as the case may be. C PLR § 5225 - Payment or delivery of property of judgment debtor CPLR 5225(b) authorizes a judgment creditor to commence a special proceeding "against a person in possession or custody of money or other personal property in which the judgment debtor has an interest, or against a person who is a transferee of money or other personal property from the judgment debtor, where it is shown that the judgment debtor is enti.tled to the possession of such property or that the judgment creditor's rights to the property are superior to those of the transferee" CPLR 5225(b). Here, the petitioner has commenced a special proceeding as required by statute. As such, the Court is required to make a summary determination of a special proceeding using the same test that is applied to a summary judgment motion (see CPLR 409[b]; MCGA Personal Lines Inc. v Hilton, 297 AD2d 428, 746 NYS2d 204 [3d Dept 2002]; Lefkowitz v Mc Millen, 57 AD2d 979, 394 N YS2d 107 [3d Dept 1977]). The rules regarding special proceedings are set forth at CPLR article 4, where, at 409 (b), it is noted that "(t]he court shall make a summmy determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised. T he court may make any orders permitted on a motion for summary j udgment." Thus, if the papers fail to raise a triable issue, the court is to grant judgment as a matter of law in favor of the appropriate party. CPLR 5225, entitled "Payment or delivery of property ofjudgment debtor" provides in pertinent part: (b) Property Not in the Possession of Judgment Debtor. Upon a special proceeding commenced by the judgment creditor, against a person in possession or custody of money or other personal property in which the judgment debtor has an interest, or against a person who is a transferee of money or other personal property from the judgment debtor, where it is shown that the judgmenr debtor is entitled to the possession of such property or that the judgmen t creditor's rights to the property are superior to those of the transferee, the court shall require such person to pay the [* 4] People of the State of New York v. DB Central, Inc., et al. LUFT, J. Index No. 00710/2019 Page4 money, or so much of it as is sufficient to satisfy the judgment, co the judgment creditor and, if the amount to be so paid is insufficient to satisfy the judgment, to deliver any other personal property, or so much of it as is of sufficient value to satisfy the judgment, to a designated sheriff. Costs of the proceeding shall not be awarded against a person who did not dispute the judgment debtor's interest or right to possession. Notice of the proceeding shall also be served upon the judgment debtor in the same manner as a summons or by registered or certified mail, return receipt requested. The court may permit the judgment debtor to intervene in the proceeding. The court may permit any adverse claimant to intervene in the proceeding and may determine his rights in accordance with section 5239. Thus, upon a proper showing that a judgment creditor is entitled to property or payment in the judgment debtor's possession, the court "shall order" the judgment debtor to pay the money or deliver the property as appropriate. (CPLR 5225). POSSESSION OF PROCEEDS Regarding the possession of the subject proceeds, the Court reiterates that it has adopted the findings of fact and conclusions of law enumerated within the attachment proceedings, Decision and Order of this Court (William B. Rebolini , J.) dated April 3, 2009. The Court has also considered all of the uncontroverted facts contained within Petitioner' s petition and deemed same to have been admitted. Thus, it has been established that the subject funds as enumerated within the Inventory of Attachment dated June 23, 2009, (see: Petitioner 's Exhibit - [1'./} - Item #3-TD Bank Account # ending I 050 - DB Central. Inc. $25,928. 76), are in the possession of respondent TD BANK, N.A., as garnishee in possession, and in the name of respondent DB CENTRAL, INC., in the amount of $25,928.76, as ofJune 23, 2009. JUDGMENT DEBTOR - "INTEREST" IN PROCEEDS By its express language, CPLR 5225(b) provides for a two-step analysis in determining whether money or other personal property belonging to a judgment debtor, but in the possession of a third party, should be turned over to a judgment creditor. First, it must be shown that the judgment debtor has an interest in the money or other personal property that the creditor seeks to reach. Where this first step is satisfied, the court must then, secondly, make one of two findings: either that the judgment debtor is entitled to the possession of such money or other personal property, or alternatively, that the judgment creditor's rights to the money or other personal property are superior to those of the party in possession of the funds or other property. In order to establish that the funds cunently held with respondent TD BANK, N.A., in the amount of $25,928.76 and in the name of respondent DB CENTRAL, INC., are subject to the instant CPLR 5225(b) turnover proceeding, Petitioner must show that criminal defendant George 0. Guidi, as judgment debtor, has an "interest" in those funds. [* 5] People of the State of New York v. DB Central, Inc., et al. Index No. 00710/2019 LUFT, J. Page 5 Additionally, Petitioner must show, as claiming authority on behalf of Bank of America, (successor in interest to crime-victim Country Wide Home Loans, Inc.) that Bank of America is entitled to those funds, or that it has an interest superior to that of respondent DB CENTRAL, fNC. in those funds (see Beauvais v. Allegiance Securities. Inc. 942 F2d 838, 840 (2d Cir 1991]). Of relevance here, the claiming authority has the burden of proving, by a preponderance of the evidence, that the funds sought are the proceeds of a crime (CPLR 1311 [3]; Hynes v Dallas, 83 AD3d 896, 922 N. Y.S.2d 137). In a post-conviction summary proceeding such as this, a claiming authority meets its burden by showing that the property sought to be forfeited either directly relates to a felony conviction or is grounded upon criminal activity arising from a common scheme or plan of which the felony conviction is a part, such as acting as an instrumentality of the felony conviction or acting as a co-conspirator to same (Vergari v Lockhart, 144 Misc 2d 860, 864, 545 N.Y.S.2d 223). Once the claiming authority has met its burden, it is incumbent on the defendant to come forward with proof to the contrary (Id.) . Here, Petitioner contends that respondent DB CENTRAL, INC and criminal defendant George 0. Guidi (hereinafter GULDI) are one and the same, and that GULDI is the alter ego of DB CENTRAL, fNC.. Petitioner also contends that DB CENTRAL, INC was, and remains, an instrumentality of the felony criminal transaction upon which GULDI stands convicted under Suffolk County indictment 02066/09. Petitioner further contends, as claiming authority, that it is entitled to the proceeds contained in DB CENTRAL fNC.'s account within the possession of respondent TD BANK, N.A., as garnishee in possession, and in the name of respondent DB CENTRAL, fNC. in the amount of$25,928.76 in account ending**** I050, pursuant to the restitution judgment order of this Court dated March 20, 2018 (Mark D. Cohen, J.) because DB CENTRAL, INC. and GULDI are one and the same; GULDI is the alter ego of DB CENTRAL, INC.; and DB CENTRAL, INC. acted as an instrumentality of the felonies upon which GULDI stands convicted under both indictments 2066/09 and 17098/09. The Court takes judicial notice of the facts and circumstances surrounding each of GULDI's thirty three felony convictions under indictments 2066/09 and 17098/09. On July 29, 201 l, under indictment# 1709B/09, GULDI pleaded guilty to twenty (20) COW1tS of Grand Larceny in the First Degree, (PL§ 155.42), eleven (11) counts of Grand Larceny in the Second Degree, (PL§ 155.40), and one count of Scheme to Defraud in the First Degree, (PL§ 190.65). On November 29, 2017, under indictment# 2099/09, OULDI pleaded guilty to one count of Grand Larceny in the Second Degree (PL§ 155.40). By his guilty pleas, under both indictments, GULD! established, beyond a reasonable doubt, each of the elements of the thirty-three (33) felonies upon which he stands convicted. The Court therefore finds, that both indictments involve a common scheme wherein GULDI employed the corporate entity, and respondent, DB CENTRAL, fNC., in furtherance of his criminal conduct. In particular, in an attempt to launder illicit funds, GULDI utilized both of his JP Morgan Chase Bank, N.A. accounts as essential components to fraudulently deposit and subsequently transfer funds that included proceeds he illegally obtained, giving rise to his thirty-three felony convictions under both indictments. Respondent DB CENTRAL, fNC. was an unindicted corporate co-conspirator with GULDI and an instrumentality used by him and an alter ego of him in the mortgage fraud scheme and the thirtytwo felony (32) convictions [indictment # I709B/2009] (see: paragraph 69 Petitioner's Verified Petilion). Likewise, respondent DB CENTRAL, fNC. was an unindicted corporate co-conspirator with GULDI, and an instrumentality used by him, and an alter ego of him, in the fraud scheme and single (1) Grand Larceny conviction under indictment 2066/09. The uncontroverted facts of the within petition, [* 6] People of the State ofNew York v. DB Central, Inc., et al. Index No. 00710/2019 LUFT, J. Page 6 coupled with the findings of fact and conclusions of law contained within this Court's (Mark D. Cohen, J.) Decision and Order dated March 20, 2018, clearly establish that respondent DB CENTRAL, INC played an intricate and instrumental role in both cases. Accordingly, the turn over of money and/or property held as a result of this Court's (William B. Rebolini , J.) Decision and Order of Attaclunent dated Apti.l 3, 2009 is directly connected to both indictments, and said Order of Attachment is appropriately employed by Petitioner to partially satisfy the restitution judgment order referenced herein (see: CPLR § 5225 [b]). Notably, although GULDI has elected not to intervene as a presumptive interested party, had he elected otherwise, he would not have been pennitted to collaterally attack his criminal convictions in this summary proceeding. A criminal conviction, whether by plea or after a trial, is conclusive proof of its underlying facts and collaterally estops a party from relitigating the facts on which the conviction is based in a subsequent civil action (Morgenthau v Western Express Intl. , Inc., 2014 N.Y. Misc. LEXIS 3276, 2014 NY Slip Op 31915[U], citing Grayes v DiStasio, 166 AD2d 261, 262-263 , 560 N.Y.S.2d 636). GULDI pleaded guilty and was convicted of twenty (20) counts of Grand Larceny in the First Degree, twelve ( 12) counts of Grand Larceny in the Second Degree, and one (I) count of Scheme to Defraud in the First Degree under two separate indictments. His convictions conclusively establish the facts underlying this summary proceeding, which is based on the same transactions as his criminal convictions. GULDI is, therefore, estopped from relitigating those facts in this or any other proceeding (see, Kuriansky v Professional Care, Inc. , 158 AD2d 897, 900, 551N.Y.S.2d695). CORPORATE VEIL - PIERCING & REVERSE-PIERCING Precedent shows that the legal theories most frequently employed to establish a judgment debtor's "interest" in property in possession of a third party pursuant to CPLR 5225(b) are based on principles of fraudulent conveyance, or corporate veil-piercing. See e.g., WBP Cenlra/ Assocs, LLC v. DeCola, 50 AD3d 693, 855 N.Y.S.2d 210 (2nd Dept 2008) (fraudulent conveyance); EAC ofNew York, Inc, v. Capri 400, Inc., 49 AD3d 1006, 853 N.Y.S.2d 419 (3rd Dept 2008) (piercing the corporate veil); FDIC v. Conte, 204 AD2d 845, 612 N.Y.S.2d 261 (2nd Dept 1994) (fraudulent conveyance). Piercing the corporate veil is an equitable concept that allows a creditor to disregard a corporation and hold its controlling shareholders personally liable for the corporate debt. Reverse-piercing, as is relevant here, flows in the opposite direction, and makes the corporation liable for the debt of its shareholders. In both situations, there is a disregard of the corporate form, and the controlling shareholders are treated as alter egos of the corporation, and vice-versa (see: Sweeney, Cohn, Stahl & Vaccaro v Kane, 33 AD3d 785, 822 N.Y.S.2d 632 (2nd Dept 2006), lv app dism 8 NY3d 858, 863 N.E.2d 109, 831N.Y.S .2d105 (2007). To pierce the corporate veil it must be established that (1) an owner or shareholder exercised complete domination over the corporation with respect to the transaction at issue, and (2) that such domination was used to commit a fraud or wrong that injured the party seeking to pierce the veil (see: Morris v. Ne w York State Dept ofTaxation, 82 NY2d 135, 141, 623 N.E.2d 1157, 603 N.Y.S.2d 807 (1993); Queens West Dev. Corp. v. Nixbot Realty Assoc., 121AD3d903, 2014 WL 5151295 (2d Dept [* 7] People of the State ofNew York v. DB Central, Inc., et al. Index No. 00710/2019 LUFT, J. Page 7 2014]; Flushing Plaza Assoc. # 2 v. Alberr, 102 AD3d 737, 738, 958 NYS2d 713 [2d Dept 2014]; Baccash v. Sayegh, 53 AD3d 636, 639, 862 NYS2d 564 [2d Dept 2008]; see also: Presser, Piercing the Corporate Veil § 2.33 [3], at 2-304--2-313). Veil-piercing is used when the dominion and control results "in wrongful or inequitable consequences." TNS Holdings, Inc, v MKJ Securities Corp., 92 NY2d 335, 339, 703 N.E.2d 749, 680 N.Y .S.2d 891 (1998), and thus, principals underlying veil-piercing are relevant in analyzing the petitioner's conclusion that GULDI, the judgment debtor herein, contrived to commit a wrong, and in so doing, employed the facilities of respondent DB CENTRAL, INC. so as to shield himself from the reach of Petitioner judgment creditor. It was established at the restitutionjudgment hearing (Mark D. Cohen, J.) ofDecember 13, 2017, conducted in the matter of People v. Guidi, Indictment #02066/09, that GULDI transferred and/or deposited, or caused to be transferred and/or deposited, not less than $184,600.00, into respondent DB CENTRAL, INC 's checking account ending ****1050, through eight distinct transactions. Said DB CENTRAL, INC. account ending in **** 1050 is maintained with respondent TD BANK, N.A .. The eight deposits began on January 30, 2009 with a $40,000 deposit. Thereafter, seven additional deposits were similarly made in the amounts: $10,600 dated [2/4/09]; $55,000 dated [2/11 /09]; $10,500 dated [2/25/09); $17,000 dated [3/4/09); $23,000 dated [3/ 11 /09]; $16,000 dated (3/ 18/09]; and $12,500 dated [4/2/09]. Each of the eight deposits were dravm from criminal defendant GULDI's JP Morgan Chase Bank, N.A. checking account ending ****8 194. Notably, it is uncontroverted that each of the eight transfers and/or deposits were made without consideration (see Petitioner 's Exhibit J-3). It was also established at the restitution judgment hearing (Mark D. Cohen, J.), that, on and between January 20, 2009 and April 6, 2009, defendant GULDI fraudulently transferred, or caused to be transferred, $570,750.00 of the $863 ,473.30 insurance check he received from American International Insurance Company into his JP Morgan Chase Bank, N.A. bank account ending ****8194. The American International Insurance Company insurance check of $863,473.30 was the corpus of the larceny upon which GULDI stands convicted under Suffolk County indictment number 02066/09 (plea date: November 29. 2017: sentence date: March 20. 2018) (see Petitioner 's Exhibits J-2, J-)1). Such conviction and sentence included the restitution judgment and order referenced herein. It was further established at the restitution judgment hearing (Mark D. Cohen, J.), that criminal defendant GULDI initially and fraudulently deposited the American International Insurance Company check number 70122383 into his JP Morgan Chase Bank, N.A. bank account ending in ***86497. Of note, both of the JP Morgan Chase Bank, N.A . accounts were linked accounts with one another. (See Petitioner 's Exhibit J-3. J-./, J -5, J-6). In summary. criminal defendant GULDI initially and fraudulently deposited the American International Insurance Company insurance check of $863,473.30 into JP Morgan Chase Bank, N.A. bank account ending in ***86497, then transforred $570,750.00 of those funds into JP Morgan Chase Bank, N.A. bank account ending in ****8194, then finally transferred $184,600.00 into DB CENTRAL INC's, TD Bank, N.A. bank account ending in****] 050. [* 8] People of the State of New York v. DB Central, Inc., et al. l ndex No. 00710/2019 LUFT, J. Page 8 Furthermore, the Court notes, it was established at the restitution judgment hearing (Mark D. Cohen, J.), that criminal defendant GULDI was the sole individual who, at all times herein mentioned, had authority to act under each of the aforementioned banking accounts, and as such exercised complete control of the aforementioned transactions. Additionally, it is unrefuted that criminal defendant GULDI is DB CENTRAL, INC's sole shareholder and Chief Executive Officer, who dominated DB CENTRAL, lNC's management, and that DB CENTRAL, INC. is and was a closely-held corporation. Here, and based upon the foregoing, Petitioner has established by a preponderance of the evidence that criminal defendant GULDI exercised complete control of DB CENTRAL, INC. in all respects, and that GULDI knowingly and intentionally utilized respondent DB CENTRAL, INC. and its bank accounts as an instrumentality of the criminal conduct upon which GULDI stands convicted. In sum, DB CENTRAL, TNC., dominated by GULDl, was a tool by which the defendant committed the larceny crime for which he stands convicted under indictment # 2066/09. This domination and use of a corporation to perpetrate a crime and fraud are the quintessential grounds for piercing the corporate veil of the instrumental corporation. As such, the Court finds that DB CENTRAL, INC. is the alter ego of criminal defendant GULDI, and that DB CENTRAL, INC. and GULDI are one and the same. Thus, Petitioner, as claiming authority, is entitled to the proceeds.contained within DB CENTRAL INC. 's account in the possession of respondent TD BANK, N.A., as garnishee in possession, and in the name of respondent DB CENTRAL, INC. in the amount of $25 ,928.76 in account ending"'*** I 050, pursuant to the restitution judgment order of this Court dated March 20, 2018 (Mark D. Cohen, J.). (see Morris v. New York State Dept of Taxation, ibid). Accordingly, Petitioner's application to pierce the corporate veil of DB CENTRAL, INC. , is granted. Based upon all of the foregoing, the Court further finds that the claiming authority has established, by a preponderance of the evidence, that GULDI engaged in a scheme to conceal the fruits of his criminal conduct and conviction under indictment 2066/09, upon the charge of Grand Larceny in the Second Degree in violation of New York Penal Law§ 155.40, a class C felony. Accordingly, the Court directs that the restrained funds, in the amount of $25,928.76 as of June 23, 2009, held by garnishee in possession and respondent TD BANK, N.A. , in account ending • .. • • t 050, in the name of respondent DB CENTRAL, INC., be released to the claiming authority as set forth herein. MONEY JUDGMENTS The Court has considered that branch of Petitioner's application seeking a money judgment against DB CENTRAL, fNC., and in favor of creditor/victim Bank of America (as successor in interest to Country Wide Home Loans, Inc.) in the amount of $863,473.30. Based upon all of the foregoing, that branch of Petitioner's application is denied. The restitution judgment hearing conducted by this Court (Mark D. Cohen, J.) on December 13, 2017, and the subsequent findings of fact and conclusions oflaw giving rise to the restitution judgment order referenced herein, established GULDI's financial liability in the amount of $863 ,473.30 in favor of creditor/victim Bank of America, (as successor in interest to Countrywide loans, Inc.). Therefore, that portion of Petitioner's application is denied, as it is duplicative of an existing judgment. [* 9] LUFT, J. People of the State of New York v. DB Central, Inc., et al. Index No. 00710/2019 Page 9 Similarly, the Court has considered that branch of Petitioner's application seeking a money judgment against DB CENTRAL, INC., and in favor of creditor/victim Bank of America (as successor in interest to Country Wide Home Loans. Inc.) in the amount of $184,600.00. Based upon all of the foregoing, that branch of Petitioner' s application is likewise denied. Once again, the restitution judgment hearing conducted by this Court (Mark D. Cohen, J.) on December 13, 2017, and the subsequent findings of fact and conclusions of law giving rise to the restitution judgment order referenced herein, established GULDl' s financial liability in the amount of $863,473.30 in favor of creditor/victim Bank of America, (as successor in interest to Counflywide Loans, Inc.). Accordingly, that portion of Petitioner' s application is also denied, as set forth above. The foregoing shall constitute the Decision and Order of the Court. ENTER Dated: June l ~) 2020 Riverhead, New York X FINAL DISPOSITION NON-FlNAL DISPOSITION 9

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