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FILED: YATES COUNTY CLERK 03/01/2024 01:28 PM INDEX NO. 2023-5158
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/01/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF YATES
VILLAGE OF RUSHVILLE,
ATTORNEY AFFIRMATION IN
Plaintiff, OPPOSITION TO CROSS-
MOTION TO DISMISS
v.
Index No.: 2023-5158
JAMES LIEBEL, ROLOSON ELECTRIC,
and JOE DOE AND JANE DOE, the names being fictitious
and being intended to refer to all individuals or entities that Mortgaged Premises: 13 S. Main Street
have, or claim to have, any interest in or lien upon the Rushville, New York 14544
mortgaged premises,
Hon. Jason Cook, J.S.C.
Defendants.
ERICA L. MASLER, ESQ., under penalty of perjury, hereby affirms as follows:
1. I am an Associate Attorney with the firm of Hancock Estabrook, LLP, attorneys
for Plaintiff Village of Rushville (“Plaintiff” or “Village”). As such, I am fully familiar with the
facts and circumstances set forth herein.
2. I submit this Affirmation in opposition to Defendant James Liebel’s cross-motion
to dismiss pursuant to CPLR 3211(a)(1), (7) and in further support of Plaintiff’s Motion for a
Default Judgment and Order of Reference.
3. The instant action was commenced by filing a Summons and Verified Complaint
with exhibits [Docs. 1-4] and a notice of pendency [Doc. 5] with the Yates County Clerk’s
Office on June 20, 2023. See Attorney Affirmation of Anneliese R. Aliasso, Exs. A, B [Docs. 13-
14].
4. On July 12, 2023, and by subsequent mailing on July 13, 2023, the Summons and
Verified Complaint were served on Defendant Liebel via affix and mail pursuant to CPLR
308(4) by affixing a copy to Mr. Liebel’s dwelling place, and subsequently mailing a copy to his
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last known residence address. A copy of the Affidavit of Service on Defendant Liebel was filed
with the Court on July 14, 2023. Aliasso Aff., Ex. C [Doc. 15].
5. The time for Defendant Liebel to answer or otherwise respond to the Verified
Complaint expired on August 24, 2023. See CPLR 320(a); CPLR 308(4).
6. Defendant has failed to appear in this action by the service of an Answer or
otherwise. Therefore, Defendant is in default in this action.
7. Plaintiff’s pending motion for default judgment and order of reference [Docs. 11-
17] was originally set for a return date of October 10, 2023.
8. The return date for Plaintiff’s pending motion has been adjourned three times (to
December 19, 2023, January 9, 2024, and March 5, 2024). The return date for Plaintiff’s motion
is currently March 5, 2024 at 1:30 p.m.
9. I understand that there are unpaid real property taxes on the mortgaged premises
for the years 2022 and 2023 totaling at least $9,396.15.
10. An online search of public Yates County real property records indicates that the
2024 real property taxes on the mortgaged premises, in the amount of $5,101.31, also have not
been paid.
11. I have spoken with Yates County Attorney Scott Falvey, who has informed me
that Yates County intends to file a petition to foreclose on unpaid 2021 and 2022 real property
taxes as soon as this month.
12. Subsequent to Defendant’s filing of the cross-motion to dismiss, I discovered that
the copy of the Mortgage filed as Exhibit B to the Verified Complaint attached as Schedule A a
legal description that does not match the actual, correct legal description that was filed at the
Yates County Clerk’s Office by Defendant’s closing attorney.
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13. A true and correct copy of the Mortgage which was filed on December 10, 2020
with the Yates County Clerk’s Office and bearing Instrument Number 2020-3153 is attached
hereto as Exhibit 1. The Mortgage, including the legal description, is correctly referenced in the
Verified Complaint at paragraph 7. Dkt. No. 13 at 5, ¶ 7.
14. Plaintiff filed an Amended Notice of Pendency to include the correct legal
description of the Property subject to the Mortgage [Doc. 30].
WHEREFORE, Plaintiff Village of Rushville respectfully requests that Defendant James
Liebel’s cross-motion to dismiss be denied in its entirety and that Plaintiff’s motion for default and
order of reference be granted, together with such other and further relief as the Court deems just
and proper.
DATED: March 1, 2024
_______________________________________
ERICA L. MASLER
Erica L. Masler, Esq., an attorney at law licensed to practice in the State of New York, and the
attorney for Plaintiff in this action, hereby certifies that, to the best of her knowledge,
information and belief, formed after an inquiry reasonable under the circumstances, the
presentation of this pleading, affidavit, and the contentions contained herein are not frivolous as
defined by 22 NYCRR 130-1.1(c).
Dated: March 1, 2024 ____/s/ Erica L. Masler _______________
Erica L. Masler
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Certification Pursuant to 22 NYCRR § 202.8-b
I, Erica L. Masler, an attorney duly admitted to practice law before the courts of the State
of New York, hereby certify that this Attorney Affirmation complies with the word count limit
set forth in 22 NYCRR § 202.8-b, because it contains 588 words, excluding the parts exempted
by § 202.8-b(b). In preparing this certification, I have relied on the word count of the word-
processing system used to prepare the Affidavit.
Dated: March 1, 2024
Syracuse, New York s/ Erica L. Masler
Erica L. Masler, Esq.
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FILED: YATES COUNTY CLERK 03/01/2024 01:28 PM INDEX NO. 2023-5158 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/01/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF YATES VILLAGE OF RUSHVILLE, ATTORNEY AFFIRMATION IN Plaintiff, OPPOSITION TO CROSS- MOTION TO DISMISS v. Index No.: 2023-5158 JAMES LIEBEL, ROLOSON ELECTRIC, and JOE DOE AND JANE DOE, the names being fictitious and being intended to refer to all individuals or entities that Mortgaged Premises: 13 S. Main Street have, or claim to have, any interest in or lien upon the Rushville, New York 14544 mortgaged premises, Hon. Jason Cook, J.S.C. Defendants. ERICA L. MASLER, ESQ., under penalty of perjury, hereby affirms as follows: 1. I am an Associate Attorney with the firm of Hancock Estabrook, LLP, attorneys for Plaintiff Village of Rushville (“Plaintiff” or “Village”). As such, I am fully familiar with the facts and circumstances set forth herein. 2. I submit this Affirmation in opposition to Defendant James Liebel’s cross-motion to dismiss pursuant to CPLR 3211(a)(1), (7) and in further support of Plaintiff’s Motion for a Default Judgment and Order of Reference. 3. The instant action was commenced by filing a Summons and Verified Complaint with exhibits [Docs. 1-4] and a notice of pendency [Doc. 5] with the Yates County Clerk’s Office on June 20, 2023. See Attorney Affirmation of Anneliese R. Aliasso, Exs. A, B [Docs. 13- 14]. 4. On July 12, 2023, and by subsequent mailing on July 13, 2023, the Summons and Verified Complaint were served on Defendant Liebel via affix and mail pursuant to CPLR 308(4) by affixing a copy to Mr. Liebel’s dwelling place, and subsequently mailing a copy to his {H5420079.1} 1 1 of 4 FILED: YATES COUNTY CLERK 03/01/2024 01:28 PM INDEX NO. 2023-5158 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/01/2024 last known residence address. A copy of the Affidavit of Service on Defendant Liebel was filed with the Court on July 14, 2023. Aliasso Aff., Ex. C [Doc. 15]. 5. The time for Defendant Liebel to answer or otherwise respond to the Verified Complaint expired on August 24, 2023. See CPLR 320(a); CPLR 308(4). 6. Defendant has failed to appear in this action by the service of an Answer or otherwise. Therefore, Defendant is in default in this action. 7. Plaintiff’s pending motion for default judgment and order of reference [Docs. 11- 17] was originally set for a return date of October 10, 2023. 8. The return date for Plaintiff’s pending motion has been adjourned three times (to December 19, 2023, January 9, 2024, and March 5, 2024). The return date for Plaintiff’s motion is currently March 5, 2024 at 1:30 p.m. 9. I understand that there are unpaid real property taxes on the mortgaged premises for the years 2022 and 2023 totaling at least $9,396.15. 10. An online search of public Yates County real property records indicates that the 2024 real property taxes on the mortgaged premises, in the amount of $5,101.31, also have not been paid. 11. I have spoken with Yates County Attorney Scott Falvey, who has informed me that Yates County intends to file a petition to foreclose on unpaid 2021 and 2022 real property taxes as soon as this month. 12. Subsequent to Defendant’s filing of the cross-motion to dismiss, I discovered that the copy of the Mortgage filed as Exhibit B to the Verified Complaint attached as Schedule A a legal description that does not match the actual, correct legal description that was filed at the Yates County Clerk’s Office by Defendant’s closing attorney. {H5420079.1} 2 2 of 4 FILED: YATES COUNTY CLERK 03/01/2024 01:28 PM INDEX NO. 2023-5158 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/01/2024 13. A true and correct copy of the Mortgage which was filed on December 10, 2020 with the Yates County Clerk’s Office and bearing Instrument Number 2020-3153 is attached hereto as Exhibit 1. The Mortgage, including the legal description, is correctly referenced in the Verified Complaint at paragraph 7. Dkt. No. 13 at 5, ¶ 7. 14. Plaintiff filed an Amended Notice of Pendency to include the correct legal description of the Property subject to the Mortgage [Doc. 30]. WHEREFORE, Plaintiff Village of Rushville respectfully requests that Defendant James Liebel’s cross-motion to dismiss be denied in its entirety and that Plaintiff’s motion for default and order of reference be granted, together with such other and further relief as the Court deems just and proper. DATED: March 1, 2024 _______________________________________ ERICA L. MASLER Erica L. Masler, Esq., an attorney at law licensed to practice in the State of New York, and the attorney for Plaintiff in this action, hereby certifies that, to the best of her knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this pleading, affidavit, and the contentions contained herein are not frivolous as defined by 22 NYCRR 130-1.1(c). Dated: March 1, 2024 ____/s/ Erica L. Masler _______________ Erica L. Masler {H5420079.1} 3 3 of 4 FILED: YATES COUNTY CLERK 03/01/2024 01:28 PM INDEX NO. 2023-5158 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/01/2024 Certification Pursuant to 22 NYCRR § 202.8-b I, Erica L. Masler, an attorney duly admitted to practice law before the courts of the State of New York, hereby certify that this Attorney Affirmation complies with the word count limit set forth in 22 NYCRR § 202.8-b, because it contains 588 words, excluding the parts exempted by § 202.8-b(b). In preparing this certification, I have relied on the word count of the word- processing system used to prepare the Affidavit. Dated: March 1, 2024 Syracuse, New York s/ Erica L. Masler Erica L. Masler, Esq. {H5420079.1} 4 4 of 4