Preview
FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018
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STATE OF NEW
SUPREME COURT
YORK
COUNTY OF OSWEGO
iI AU$U1
IJON. JAM;: '. , ,*'ir-,r-' r
: " .. rz
MICHAEL CLARK, individually 6YE Cuu iiT
:--'ft
l. ; CHAiv:uc i{S
and o/b/o Carol Clark,
Plaintffi, JUDGMENT
Index No.: EFC-201 8-0527
-vs.-
WINTER HARBOR LLC,
Defendont.
This case was commenced by the filing of a summons and complaint on March 30, 2018,
and the subsequent service thereof. The case came before this Court upon the motion of the
Plaintiff, Michael Clark, individually and on behalf of Carol Clark, for an order granting various
forms of relief, including, inter alia, a restraint against the Defendant, Winter Harbor LLC, from
exercising any lien against the vessel which is the subject of the action, namely a 2007 Kanter
56'yacht, VIN No.2KNM5468G707, known as "Sunshine" (the "Vessel"), a stay of any sale of
the Vessel pursuant to the New York Lien Law, and for and inspection of the Vessel to ascertain
its condition. In support of the motion, the Plaintiff served and filed the Affidavit of Michael
Clark, with exhibits, sworn to March 19, 2018, the Affidavit of David P. Antonucci, Esq., with
exhibits, sworn to March 23,2018, and the Reply Affidavit of David P. Antonucci, Esq., with an
exhibit, sworn to April 17,2018.In opposition to the motion, the Defendant served and filed the
Affidavit of Thomas Pirro, Sr., with exhibits, sworn to April 16,2018, and the Affirmation of J.
Eric Charlton, dated April 16, 2018. The motion came on for argument on April 18, 2018.
Appearing on behalf of the Plaintiff was Antonucci Law Firm, LLP, by David P. Antonucci, of
counsel. Appearing on behalf of the Defendant was Barclay Damon LLP, by J. Eric Charlton, of
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counsel. The Court granted a temporary restraining order staying any sale of the Vessel pending
further order of the Court, granted the Plaintiff and his marine surveyor/repair person, permission
to inspect the Vessel conditioned upon the agreement of the Plaintiff and Carol Clark to
indemniff and save harmless the Defendant from liability for any damages to persons or property
as a result of such inspection, and ordered an evidentiary hearing under Lien Law section 201-a
commencing May 22,2018 at 10:00 a.m.
The hearing was held on May 22 and May 24,2018. The Plaintiff appeared, together with
his attorney of record. The Defendant appeared through its representative Thomas Pirro, Sr., and
its attomey of record. At the conclusion of testimony, the Court issued its Bench Decision, issued
as an order of the Court, dated May 30, 2018, directing entry of judgment in favor of the
Defendant for the relief granted therein.
NOW THEREFORE, on motion of Winter Harbor, LLC, by its attorneys, Barclay
Damon LLP, and upon the Bench Decision, a copy of which is attached hereto and incorporated
herein, it is hereby
ORDERED, ADJUDGED, AND DECREED that the above named Defendant, Winter
Harbor, LLC, has a first lien upon the 2007 Kanter 56' yacht, VIN No. 2KNM5468G707, known
as "sunshine" (the "Vessel") mentioned in the complaint herein, amounting at the date of said
Bench Decision, the 30th day of May, 2018, to the sum of $79,090.84, and also for further per
diem storage costs which have become or may grow due from the said 30th day of May, 2018, to
the day of sale, and for the sum of $_ [to be filled in by the Clerk of this Court]
adjudged to the Defendant for his costs and disbursements of this action as taxed by the Clerk of
this Court, and it is further
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ORDERED, ADJUDGED, AND DECREED that the Vessel be sold at public auction,
in accordance with sections 201 and202 of the New York Lien Law; that the Defendant or any
other party may become the purchaser or purchasers on such sale; that out of the moneys arising
from such sale, the Defendant shall deduct and retain an amount equal to the sum of: i) the
expenSeSofthesale;ii)$-[tobefilledinbytheClerkofthisCourt]adjudged
to the Defendant for costs and disbursements in this action; iii) $79,090.84 awarded herein; iv)
the amount that shall then be due for the per diem storage of the Vessel from the said 30th day of
May,2018, to the day of sale; and v) interest on the aforesaid amounts at the rate of 9Yo per
annum from the 30th day of May,2018, and that if any surplus remain, Defendant shall pay it to
the owner of said Vessel, Carol Ann Murry Clark, and it is further
ORDERED, ADJUDGED, AND DECREED, that after the sale takes place, the
Defendant shall file the original sale documents with the County Clerk and shall file copies of
the sale documents with the Court and a schedule showing the manner in which the Defendant
arrived at the costs and disbursements and further storage charge, and it is further
ORDERED, ADJUDGED, AND DECREED, that each and every one of the defendants
in this action, and all persons claiming under them or any or either of them or after the
commencement of this action be forever barred and foreclosed of all right, title, interest and
equity of redemption in the said chattel.
Dated: lruqtrt !0 .eoft ENTER
OswSgo, New Yo'rk
W. McCarthy
ustice of the Supreme Court
-3-
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Costs and disbursements taxed by the Clerk
ISignature of Clerk]
-4-
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1
f
1
SUPREI"II COURT Or'' THE STA?E Of NrW YORK
a CCUI.JTY CF OSWEGO: ClVIL THRM:
? *-----***-x
RJl * 3"7-18-0140
4 MICIIAEL CLARK and CAROL CLARK,
fndex * 2418-0527
q.
Pet it ione r.s,
6 versus BENCH DECISION
7 WINTER HARtsOR, LLC,
Ilespondent.
q Oswego County Courthouse
25 iast Oneida Streel
rn Oswego, New York 13126
_tl DA'I'U: May 24, 2C1B
l2 B e f o r e:
:!.3 TIONORABLE JAMIIS W. McCARTHY
Justice of the Supreme Cou::t
1n
IY
A p p e a r a n c e s:
16 DAVID ANTOI.{UCCI, ESQ.
Attorney for 9laintiff
L7
EARCLAY DAMCI.I, ILP
1B Ati:orneys for Defendant
BY: J. ERIC CHARJ,TOI.], ESQ.
19
ZV
27
.))
23
24
25
Jenrrifer Adydan
Cfficial Court Reporter
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I'lichael Clark v Winter ilarbor, LLC 2
I ?HE COURT: Irm prepared t,o make a bench
2 decj-sion. First we have co cross the p.rocedural step.
J The summons anci complaint filed by Mr. Antonucci is an
.)i action aL law as three'causes of action: Breach of
5 fiduciary duty and conversion, declaratory judgment and
5 breach of contract. The proceeding we just had for two
1 days, which by the way was on notice pursuanf to an
I e-mail I sent lo everyone on April 18th that said w€'re
q going to have a hearing under Lien Law Section 2C1 I had
10 dash one, real1y shoul-d have been dash A, on Tuesday,
11 May ?Znci at ten a.m. So we were aware it was a
1.) proceeding under Lj"en Law Section 201--a. That. is a
L3 proceeding, not an acl5"on, so pursuant to CPLR 103 (c),
1,t I'm converfing your sufiLmons to a notice of petilion and
1.5 your complalnt to a petil-ion under Lien Law 201-a.
1"5 Now, as to ti:at aspect, another procedural
1? mal-Ler is service. FIr. Firro, on behal-f of Wj-nter
1B Harbor, filed notice of claim of maritime I1en, it's in
19 evidence as a number of exhibits aEtached Lo Exhibit M,
')n The second page of that is notice of lien and sale under
2L the Deparrrnent of Motor vehicles Law, and it's signed by
22 Mr. Pirro I guess, general manager, WinLer Harbo::'
23 There's an affidavit of service by mailing and
24 aff ixing to the cloor with att,empts to serve Mrs. caro]
25 A. Murray Clark, and who. by the way, Mr' Clark on the
Jennifer AdYdan
Official Court RePorter
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Michael Clark v Winter I"larbor, LLC 3
1 vritness stand admj.tted she is the Lrue/ correct,
2 rig'ht.ful owner and also admitted that he was never [he
J1 owner anci the vessel" was always in her narne. There is
4 another affidavit of service, excuse me, itrs a copy cf
q
the first one, there's an affidavit of service by Rita
o M. Jones demonstraling that the service of the claim
7 was made by regular mail, certified mail and UPS
I overnight mail on March '7, 2Al8 Lo Mrs, Carol" &. Murray
I Clark. There's an adverLising receipt for t.he Palladium
10 Times for March 24t.ht 2018 and March 31st, 20La
11 demonstrating that pursuanl- t"a 242 of the Lien Law
72 proper notification through publ.lshing had taken place.
13 So i,lrs. Clark has had the legal notice of this
14 proceeding. Mr. Ciark iras filed this/ now itrs a
1c
LJ proceeding not an action, on his *- on behalf of himself
16 and Mrs, Clark.
1,7 Ncur relat-ive to that, as a si,de Lssue, there
1"8 has been no demonstration by Mr. Clark that he has any
19 auLhority, right or ability through a Power of Attorney,
ZV assignmenc of a cLaim or snything that he has j-n fact
2t aulhority frcm Caro} Clark to maintain Ehis action.
22 That being said, I've hear:d the testirnony, I'm stil.J
23 goinq to rnake a decision.
2A Now, Mr. CIark start.ed doing business wj-th t.he
25 ?linter Harbor in 2009 as demonstrated by Exhibit A w]-rich
Jennifer Adydan
Officj.al Court RePorter
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Michae] Clark r"r 'rlinter Harhor, LLC S
1 are paici invoices r^rhich go f rorn October 2009 r believe
2 is fhe earliest one, yes, October six. 2409, and the
? latest paid invoice is January second, 20L3, and in
4 evidence as Exhibits F, G and H are th::ee separate
5 contracts for the original storage of Sunshine al the
Winter Harbo:: premises, fir$t one was for October
"l
first, 2rAg Lo May 15, 2010, anci that he listed Carol A-
o Murray Clark as the registered ovrner, alt,hcugh he signerl
I the conlract as cwner signatrrre. The second one "i's for
1n Ocroher firsL, 2AA2 t"a i{ay 15, 2011. In ihat one, he
t1 ]isted l-he owner as t"like and Carol Ann Clark, and he
12 again signed as the owner. The last one, whj.ch is fr:r
13 the 2072/20i3 season, lists Michael Clark as the o$ner,
a,rj
.L and he siqneci as the owner, and as I said in his
1q Lestimony before the court, he acknowledged he was never
16 the owner in any event, and his restimony consisted
1'7 furt.hermore of stafing f,haC pursuant to Noreen Drabot,
1B if i'm pronouncing that right, testimony that Wir:ter
19 Harbor always sends the cont-ract-s out and that they did
20 so every year for the storage, thaL's r.rhat she likewise
2L testified to in her testimony.
.)') Now, relative to that, we have an issue as to
23 this boal, vessel, allegedly belng damageC through
2d aclionsoforimproperfjxaLionofclevicescnitby
Winler Harbor' The first aspect of that' comes up
AdYdan
"Tennifer
Official Court RePorter
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MichaeL Clark v Wj.nter Harbor, LLC 5
1 through Mr. Ciark's testimony and lvlr. Stewart's
,)
l,estimony thal i.n ?011, and that is l4r. Slewart
3 testifieei that he was talking to Mr" Clark on the
4 vessel, and Jolrn Lombardi was there and Chuck Pritchard
5 was there, and Mr. Clark pointed out the leaks that he
6 had observed, and Mr. Ster.rart acknowledged that there
7 may be leaks, and further, Mr. Stewart Lestified he told
I at some point in Lime Mr. Pirro about the ]eaks. Mr.
9 John Lr>mbardi got on the witness stend, sald f don't
10 recall any cont/ersatlon abouL that v/hat.soever' Mr.
11 Pi::ro gets on the witness stand and says fhe f irst. l-ime
12 f was t.o1d about any leaks was in the July ?Oth, 2Al7
IJ e-mail at tab twenty of Exhibit L.
14 Now relaLive to thal, Mr. Stswart test!fied
1q upon questioning by the Court that the work that he
r6 believed was done that caused t.he damage to the vessel
l? wes the Janua.ry 20Lh, 2011 invoice of ilxhibit A, and he
1()
fv specificalty Iooked at, rhe January 20uh, 201L invoice,
19 said thal's t.he work I think was done on the cleck that
2C caused the l"eak. He maintained it was coming from the
27 upper deek.
1r> Now Mr. Jones t.esL jf ies as a marj-ne surveyor on
ZJ trehalf r:f the defendant. that he believes Lhe leak
NA
L1 emanafes from the mast as the canvass that surrouncled it
LJ was in a degraded form. and he also tesLified that there
Jennifer AdYdan
Official Court Reporter
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Mi-chae} Clark v Winter Harbcr, LLC 6
,il appeared to be some kind of caulking around, soineone had
,fl apparently tried to fix it or do something around the
mast, anci you will recall the testimony of Mr. Clark
Llra[ he teslified relative to sorne of the work done sn
the boaL that he actually took part in iL, and more
particularly, in tab twenty, demonstrating the e-mail of
iil Exhibil L, he says, quote, 'rI chink T can repair the
I
]"eaks." The e-rnail goes on to say it was first noliced
:I after lhe f loor fir:j.sh was damaged by water which was
10 t finished in 201"1.
,ri James Stewart said in his opinion that the l"eak
could also be in the area of the mast Lhrough improper
welds in the superstructure around the mast'
l;il {Transcr-ipt page L45, 4-9) . This testirnony corroborates
to some extent the testimony of the marine surveyor, Mr.
Jones, that the leaks were from an area around the mast,
Ifl albeit from a different $ource'
,t IntabnineteenofsxhibitL,andreviewingall
fl
,n thesee-mailstoday,Istartedreviewingat20lL,I
il
believe the f ir.sl one was January 2Btht 2011 which is
tab five, because as you recall at some time ln 2011
Lhat Mr. stewart relates the conversation wiLh Mr' clark
itfl andthatMr.Clarksaysthathenoticedthe}eak,andin
no e-maitrs rhrough 201'1 until July 1?t,h,'.ruly 1?th,
l ::fl 2Al.7 t tab twenty, is there a word about the leaks' and
x
I Jennifer AdYdan
0fficial Court RePorter
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Michael C.Lark v liinter I'larbor, LLC "7
I in f act he not j-ced j-t in 2011., he sailed it in 2A!2,
a
Z summer of 2012, and therets no mention of any leaks
until 2011, and you could say we1l, the only e-mails
4 provi"cied was by the defendant so he's not going to
5 provide e*mails that show that Mr. Clark told him about
o the .Leaks. The only problem wit.h that is Mr. Clark
1 coulci have brought in e-mails Uhat he sent ro him saying
5 here's the leaks, I tolcl him about them, arrd Lhere are
I no such e-mails [hat Mr. C].ark brought in. Mr. Stewart
LIJ Lestified {:hat Mr. Clark sent him e*rnails about the
11. leaks. He further Lestifj.ed he no longer has the
72 e-mai1s from Mr. Clark.
13 I'low, the fact of the matcer that Mr. Clark
74 didn'L sign any contracts, he admiEted that they were
L5 senL to him, and Lhat corroborates Noreen Drabot's
16 testimony. He is not going to take advantage of his
1? failure to sign the contracts but 1et the vessel be
18 srored there. It's not going to happen. Exhibit N
1v demonstrates the owner was Carol Ann Murray Clark, and
20 bill of sale is Exhibit O was to Carol Ann Murray Clark,
2L and ii- appears that over chis perioci of time for
22 whatever reason Mr. Clark j"nLentionally or negligently
23 failed to pay lhe st-orage bill. You got to remember
an
L1 specifically in tab, I think iL was twenty of ExhibiI L,
4J again. he said I think I can repair the leaks, and
Jerrni fer Adydan
Official CourE RePorcer
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MichaeL CLark v biinter Harbor, LLC I
1 throughout Lhis proceedi"ng, he had the ab"ility to inforrn
2 Mr. Pirro directly of the leaks he says he only
)
J contacted Mr, Stewart.
.t I'1r. Stewart has certainly obviously as
5 demcnsLrated by Exhibit 8F in his resti:nony at least an
6 animus toward Mr. Pirro and Wint.er Harbor' and f don't
1 credit his testimony at all relative to a conversation
I with Mr. Clark and Mr. Clarkrs statement to him that he
I saw leaks. Thac would rnake no sense to say thai after:
10 2QlL, he sails the boat in 201"2, he keeps taking it i:ack
i. l. there, and in all Llrese e-mai"Ls and transfer of
r2 information between Mr. Pirro and Winter Harbor and Mr.
IJ Cl-ark, he doesn't menticn one word of the leaks in Lire
14 l bcat al- all.
15 The Court in all respects finds that uhe
16 version as proposed by the defendant herein is true and
3-7 correct and does not credi.t the tesLj.mony of Mr. Stehiart
1B and the testimony of Mr. Clark as Lo any leaks being on
19 the boal caused by Winter Harbor- The Court enters a
20 i udgment as fo"l.]ows:
2L Petitioner, by his at.tor:ney, Mr. Anf,onucci,
22 having commenced a special proceeding which has been
23 converted by Lhe court pursuant to Lj.en Law 2a1-a for a
n/l
L1 juclgment discounting t.he lj.en r*hatsoever of winter
25 Harbor, petit,j.oner claimed by the respondent in notice
Jennifer AclYdan
Official Court Reporter
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M.ichael CLark v rrlinter Harbcr, LLC 9
1- of sale served uporr the pelitioner pursuant. to Lien Law
L Sect.ion 201, and the issues in the above-enritled
3 proceeding having duly come on to be heard, and the
4 pet,itioner havj.ng appeared by petitioner's attorney and
5 the respondent having appeared by Mr. Eric Charleton,
6 its attorney, and the proofs of both parties having been
7 adduced and their respective counsel having been heard,
U and after due del-iberaticn in the proofs of both partie$
I i* this matLer having been hel.d hereon, and the decision
10 of tl"ris court oral}y having just been rendered by the
11 Court and having been made herein in favor of the
1? responcient, and judgment as hereinafter provided, and
1? the costs of t.he respondent wil] be duly taxed, it is
1A ordered, adjudged and decreed that the amount of sa:d
15 Lien shall be and hereby ls in the sum of $79,090.84,
1.6 and j.t is further ordered and adjudged and decreed that
11 che sale of the above-rnent.ioned l'essel when afcer
1a cornplying once again with 201 of the Lien Law by
19 noticing cnce again Carol Ann Clark, the registered
2A owner, pursuant co said 1aw, and by further advert.ising
27 once again under Section 202 of fhe Lien Law pursuanl
22 thereon, it sha-l-l be adjudg*d to sell Lhe vessel under
23 the Lien Law and the monies derived therefrom shal] be
24 appiied tr: Lhe payrienl of the lien and the costs and
.E
LJ d|sbursements inclusive of further storage costs between
Jennifer AdYdan
Officia] Court RePorter
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Michael Clark v lJinter llar:bor, LLC 1C
L no,* and the actual. date of sale anci thereafter nine
2 percenl legal interest upon Chal. Once those are paid,
? the attorney for the respondent shail renlt the
q rernainder of Lhe money to the registered owner who is
f
Carol Ann Murray Clark. and the foregoinE constitutes
6 the judg'ment of the Court.
?he Cor.rrt is directing the attorney for the
I respondent to file aft.er the saLe takes place -- file
I Lhe original sa,1.e documenLs with the County Clerk and
1n file copies of the sale dr:cuments with this courl and
1.1 Lhe manner in which you arrived aL: t-ire costs and
72 disbursements and further sLorage charge.
13 The Court directs a copy of tiris Decision and
1t i;he Judgment to be drawn by respondent Is attorney. be
served by certified mail on the registered owner, Carol
to Clark, wichin five days after filing with the County
1i CLerk.
18 IL is furt.her ordered and adjudged chat the
19 owner or owner's agent may redeem the vessel i:y paying
)r\ the lien and per
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FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018 ;tr E,\*, l,-d1 !, ail ti i STATE OF NEW SUPREME COURT YORK COUNTY OF OSWEGO iI AU$U1 IJON. JAM;: '. , ,*'ir-,r-' r : " .. rz MICHAEL CLARK, individually 6YE Cuu iiT :--'ft l. ; CHAiv:uc i{S and o/b/o Carol Clark, Plaintffi, JUDGMENT Index No.: EFC-201 8-0527 -vs.- WINTER HARBOR LLC, Defendont. This case was commenced by the filing of a summons and complaint on March 30, 2018, and the subsequent service thereof. The case came before this Court upon the motion of the Plaintiff, Michael Clark, individually and on behalf of Carol Clark, for an order granting various forms of relief, including, inter alia, a restraint against the Defendant, Winter Harbor LLC, from exercising any lien against the vessel which is the subject of the action, namely a 2007 Kanter 56'yacht, VIN No.2KNM5468G707, known as "Sunshine" (the "Vessel"), a stay of any sale of the Vessel pursuant to the New York Lien Law, and for and inspection of the Vessel to ascertain its condition. In support of the motion, the Plaintiff served and filed the Affidavit of Michael Clark, with exhibits, sworn to March 19, 2018, the Affidavit of David P. Antonucci, Esq., with exhibits, sworn to March 23,2018, and the Reply Affidavit of David P. Antonucci, Esq., with an exhibit, sworn to April 17,2018.In opposition to the motion, the Defendant served and filed the Affidavit of Thomas Pirro, Sr., with exhibits, sworn to April 16,2018, and the Affirmation of J. Eric Charlton, dated April 16, 2018. The motion came on for argument on April 18, 2018. Appearing on behalf of the Plaintiff was Antonucci Law Firm, LLP, by David P. Antonucci, of counsel. Appearing on behalf of the Defendant was Barclay Damon LLP, by J. Eric Charlton, of l548llr8.l 1 of 15 FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018 counsel. The Court granted a temporary restraining order staying any sale of the Vessel pending further order of the Court, granted the Plaintiff and his marine surveyor/repair person, permission to inspect the Vessel conditioned upon the agreement of the Plaintiff and Carol Clark to indemniff and save harmless the Defendant from liability for any damages to persons or property as a result of such inspection, and ordered an evidentiary hearing under Lien Law section 201-a commencing May 22,2018 at 10:00 a.m. The hearing was held on May 22 and May 24,2018. The Plaintiff appeared, together with his attorney of record. The Defendant appeared through its representative Thomas Pirro, Sr., and its attomey of record. At the conclusion of testimony, the Court issued its Bench Decision, issued as an order of the Court, dated May 30, 2018, directing entry of judgment in favor of the Defendant for the relief granted therein. NOW THEREFORE, on motion of Winter Harbor, LLC, by its attorneys, Barclay Damon LLP, and upon the Bench Decision, a copy of which is attached hereto and incorporated herein, it is hereby ORDERED, ADJUDGED, AND DECREED that the above named Defendant, Winter Harbor, LLC, has a first lien upon the 2007 Kanter 56' yacht, VIN No. 2KNM5468G707, known as "sunshine" (the "Vessel") mentioned in the complaint herein, amounting at the date of said Bench Decision, the 30th day of May, 2018, to the sum of $79,090.84, and also for further per diem storage costs which have become or may grow due from the said 30th day of May, 2018, to the day of sale, and for the sum of $_ [to be filled in by the Clerk of this Court] adjudged to the Defendant for his costs and disbursements of this action as taxed by the Clerk of this Court, and it is further .\ 15481118.1 2 of 15 FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018 ORDERED, ADJUDGED, AND DECREED that the Vessel be sold at public auction, in accordance with sections 201 and202 of the New York Lien Law; that the Defendant or any other party may become the purchaser or purchasers on such sale; that out of the moneys arising from such sale, the Defendant shall deduct and retain an amount equal to the sum of: i) the expenSeSofthesale;ii)$-[tobefilledinbytheClerkofthisCourt]adjudged to the Defendant for costs and disbursements in this action; iii) $79,090.84 awarded herein; iv) the amount that shall then be due for the per diem storage of the Vessel from the said 30th day of May,2018, to the day of sale; and v) interest on the aforesaid amounts at the rate of 9Yo per annum from the 30th day of May,2018, and that if any surplus remain, Defendant shall pay it to the owner of said Vessel, Carol Ann Murry Clark, and it is further ORDERED, ADJUDGED, AND DECREED, that after the sale takes place, the Defendant shall file the original sale documents with the County Clerk and shall file copies of the sale documents with the Court and a schedule showing the manner in which the Defendant arrived at the costs and disbursements and further storage charge, and it is further ORDERED, ADJUDGED, AND DECREED, that each and every one of the defendants in this action, and all persons claiming under them or any or either of them or after the commencement of this action be forever barred and foreclosed of all right, title, interest and equity of redemption in the said chattel. Dated: lruqtrt !0 .eoft ENTER OswSgo, New Yo'rk W. McCarthy ustice of the Supreme Court -3- 1548ilr8.1 3 of 15 FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018 Costs and disbursements taxed by the Clerk ISignature of Clerk] -4- 1s481il8.1 4 of 15 FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018 1 f 1 SUPREI"II COURT Or'' THE STA?E Of NrW YORK a CCUI.JTY CF OSWEGO: ClVIL THRM: ? *-----***-x RJl * 3"7-18-0140 4 MICIIAEL CLARK and CAROL CLARK, fndex * 2418-0527 q. Pet it ione r.s, 6 versus BENCH DECISION 7 WINTER HARtsOR, LLC, Ilespondent. q Oswego County Courthouse 25 iast Oneida Streel rn Oswego, New York 13126 _tl DA'I'U: May 24, 2C1B l2 B e f o r e: :!.3 TIONORABLE JAMIIS W. McCARTHY Justice of the Supreme Cou::t 1n IY A p p e a r a n c e s: 16 DAVID ANTOI.{UCCI, ESQ. Attorney for 9laintiff L7 EARCLAY DAMCI.I, ILP 1B Ati:orneys for Defendant BY: J. ERIC CHARJ,TOI.], ESQ. 19 ZV 27 .)) 23 24 25 Jenrrifer Adydan Cfficial Court Reporter 5 of 15 FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018 I'lichael Clark v Winter ilarbor, LLC 2 I ?HE COURT: Irm prepared t,o make a bench 2 decj-sion. First we have co cross the p.rocedural step. J The summons anci complaint filed by Mr. Antonucci is an .)i action aL law as three'causes of action: Breach of 5 fiduciary duty and conversion, declaratory judgment and 5 breach of contract. The proceeding we just had for two 1 days, which by the way was on notice pursuanf to an I e-mail I sent lo everyone on April 18th that said w€'re q going to have a hearing under Lien Law Section 2C1 I had 10 dash one, real1y shoul-d have been dash A, on Tuesday, 11 May ?Znci at ten a.m. So we were aware it was a 1.) proceeding under Lj"en Law Section 201--a. That. is a L3 proceeding, not an acl5"on, so pursuant to CPLR 103 (c), 1,t I'm converfing your sufiLmons to a notice of petilion and 1.5 your complalnt to a petil-ion under Lien Law 201-a. 1"5 Now, as to ti:at aspect, another procedural 1? mal-Ler is service. FIr. Firro, on behal-f of Wj-nter 1B Harbor, filed notice of claim of maritime I1en, it's in 19 evidence as a number of exhibits aEtached Lo Exhibit M, ')n The second page of that is notice of lien and sale under 2L the Deparrrnent of Motor vehicles Law, and it's signed by 22 Mr. Pirro I guess, general manager, WinLer Harbo::' 23 There's an affidavit of service by mailing and 24 aff ixing to the cloor with att,empts to serve Mrs. caro] 25 A. Murray Clark, and who. by the way, Mr' Clark on the Jennifer AdYdan Official Court RePorter 6 of 15 FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018 Michael Clark v Winter I"larbor, LLC 3 1 vritness stand admj.tted she is the Lrue/ correct, 2 rig'ht.ful owner and also admitted that he was never [he J1 owner anci the vessel" was always in her narne. There is 4 another affidavit of service, excuse me, itrs a copy cf q the first one, there's an affidavit of service by Rita o M. Jones demonstraling that the service of the claim 7 was made by regular mail, certified mail and UPS I overnight mail on March '7, 2Al8 Lo Mrs, Carol" &. Murray I Clark. There's an adverLising receipt for t.he Palladium 10 Times for March 24t.ht 2018 and March 31st, 20La 11 demonstrating that pursuanl- t"a 242 of the Lien Law 72 proper notification through publ.lshing had taken place. 13 So i,lrs. Clark has had the legal notice of this 14 proceeding. Mr. Ciark iras filed this/ now itrs a 1c LJ proceeding not an action, on his *- on behalf of himself 16 and Mrs, Clark. 1,7 Ncur relat-ive to that, as a si,de Lssue, there 1"8 has been no demonstration by Mr. Clark that he has any 19 auLhority, right or ability through a Power of Attorney, ZV assignmenc of a cLaim or snything that he has j-n fact 2t aulhority frcm Caro} Clark to maintain Ehis action. 22 That being said, I've hear:d the testirnony, I'm stil.J 23 goinq to rnake a decision. 2A Now, Mr. CIark start.ed doing business wj-th t.he 25 ?linter Harbor in 2009 as demonstrated by Exhibit A w]-rich Jennifer Adydan Officj.al Court RePorter 7 of 15 FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018 Michae] Clark r"r 'rlinter Harhor, LLC S 1 are paici invoices r^rhich go f rorn October 2009 r believe 2 is fhe earliest one, yes, October six. 2409, and the ? latest paid invoice is January second, 20L3, and in 4 evidence as Exhibits F, G and H are th::ee separate 5 contracts for the original storage of Sunshine al the Winter Harbo:: premises, fir$t one was for October "l first, 2rAg Lo May 15, 2010, anci that he listed Carol A- o Murray Clark as the registered ovrner, alt,hcugh he signerl I the conlract as cwner signatrrre. The second one "i's for 1n Ocroher firsL, 2AA2 t"a i{ay 15, 2011. In ihat one, he t1 ]isted l-he owner as t"like and Carol Ann Clark, and he 12 again signed as the owner. The last one, whj.ch is fr:r 13 the 2072/20i3 season, lists Michael Clark as the o$ner, a,rj .L and he siqneci as the owner, and as I said in his 1q Lestimony before the court, he acknowledged he was never 16 the owner in any event, and his restimony consisted 1'7 furt.hermore of stafing f,haC pursuant to Noreen Drabot, 1B if i'm pronouncing that right, testimony that Wir:ter 19 Harbor always sends the cont-ract-s out and that they did 20 so every year for the storage, thaL's r.rhat she likewise 2L testified to in her testimony. .)') Now, relative to that, we have an issue as to 23 this boal, vessel, allegedly belng damageC through 2d aclionsoforimproperfjxaLionofclevicescnitby Winler Harbor' The first aspect of that' comes up AdYdan "Tennifer Official Court RePorter 8 of 15 FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018 MichaeL Clark v Wj.nter Harbor, LLC 5 1 through Mr. Ciark's testimony and lvlr. Stewart's ,) l,estimony thal i.n ?011, and that is l4r. Slewart 3 testifieei that he was talking to Mr" Clark on the 4 vessel, and Jolrn Lombardi was there and Chuck Pritchard 5 was there, and Mr. Clark pointed out the leaks that he 6 had observed, and Mr. Ster.rart acknowledged that there 7 may be leaks, and further, Mr. Stewart Lestified he told I at some point in Lime Mr. Pirro about the ]eaks. Mr. 9 John Lr>mbardi got on the witness stend, sald f don't 10 recall any cont/ersatlon abouL that v/hat.soever' Mr. 11 Pi::ro gets on the witness stand and says fhe f irst. l-ime 12 f was t.o1d about any leaks was in the July ?Oth, 2Al7 IJ e-mail at tab twenty of Exhibit L. 14 Now relaLive to thal, Mr. Stswart test!fied 1q upon questioning by the Court that the work that he r6 believed was done that caused t.he damage to the vessel l? wes the Janua.ry 20Lh, 2011 invoice of ilxhibit A, and he 1() fv specificalty Iooked at, rhe January 20uh, 201L invoice, 19 said thal's t.he work I think was done on the cleck that 2C caused the l"eak. He maintained it was coming from the 27 upper deek. 1r> Now Mr. Jones t.esL jf ies as a marj-ne surveyor on ZJ trehalf r:f the defendant. that he believes Lhe leak NA L1 emanafes from the mast as the canvass that surrouncled it LJ was in a degraded form. and he also tesLified that there Jennifer AdYdan Official Court Reporter 9 of 15 FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018 Mi-chae} Clark v Winter Harbcr, LLC 6 ,il appeared to be some kind of caulking around, soineone had ,fl apparently tried to fix it or do something around the mast, anci you will recall the testimony of Mr. Clark Llra[ he teslified relative to sorne of the work done sn the boaL that he actually took part in iL, and more particularly, in tab twenty, demonstrating the e-mail of iil Exhibil L, he says, quote, 'rI chink T can repair the I ]"eaks." The e-rnail goes on to say it was first noliced :I after lhe f loor fir:j.sh was damaged by water which was 10 t finished in 201"1. ,ri James Stewart said in his opinion that the l"eak could also be in the area of the mast Lhrough improper welds in the superstructure around the mast' l;il {Transcr-ipt page L45, 4-9) . This testirnony corroborates to some extent the testimony of the marine surveyor, Mr. Jones, that the leaks were from an area around the mast, Ifl albeit from a different $ource' ,t IntabnineteenofsxhibitL,andreviewingall fl ,n thesee-mailstoday,Istartedreviewingat20lL,I il believe the f ir.sl one was January 2Btht 2011 which is tab five, because as you recall at some time ln 2011 Lhat Mr. stewart relates the conversation wiLh Mr' clark itfl andthatMr.Clarksaysthathenoticedthe}eak,andin no e-maitrs rhrough 201'1 until July 1?t,h,'.ruly 1?th, l ::fl 2Al.7 t tab twenty, is there a word about the leaks' and x I Jennifer AdYdan 0fficial Court RePorter 10 of 15 FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018 Michael C.Lark v liinter I'larbor, LLC "7 I in f act he not j-ced j-t in 2011., he sailed it in 2A!2, a Z summer of 2012, and therets no mention of any leaks until 2011, and you could say we1l, the only e-mails 4 provi"cied was by the defendant so he's not going to 5 provide e*mails that show that Mr. Clark told him about o the .Leaks. The only problem wit.h that is Mr. Clark 1 coulci have brought in e-mails Uhat he sent ro him saying 5 here's the leaks, I tolcl him about them, arrd Lhere are I no such e-mails [hat Mr. C].ark brought in. Mr. Stewart LIJ Lestified {:hat Mr. Clark sent him e*rnails about the 11. leaks. He further Lestifj.ed he no longer has the 72 e-mai1s from Mr. Clark. 13 I'low, the fact of the matcer that Mr. Clark 74 didn'L sign any contracts, he admiEted that they were L5 senL to him, and Lhat corroborates Noreen Drabot's 16 testimony. He is not going to take advantage of his 1? failure to sign the contracts but 1et the vessel be 18 srored there. It's not going to happen. Exhibit N 1v demonstrates the owner was Carol Ann Murray Clark, and 20 bill of sale is Exhibit O was to Carol Ann Murray Clark, 2L and ii- appears that over chis perioci of time for 22 whatever reason Mr. Clark j"nLentionally or negligently 23 failed to pay lhe st-orage bill. You got to remember an L1 specifically in tab, I think iL was twenty of ExhibiI L, 4J again. he said I think I can repair the leaks, and Jerrni fer Adydan Official CourE RePorcer 11 of 15 FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018 MichaeL CLark v biinter Harbor, LLC I 1 throughout Lhis proceedi"ng, he had the ab"ility to inforrn 2 Mr. Pirro directly of the leaks he says he only ) J contacted Mr, Stewart. .t I'1r. Stewart has certainly obviously as 5 demcnsLrated by Exhibit 8F in his resti:nony at least an 6 animus toward Mr. Pirro and Wint.er Harbor' and f don't 1 credit his testimony at all relative to a conversation I with Mr. Clark and Mr. Clarkrs statement to him that he I saw leaks. Thac would rnake no sense to say thai after: 10 2QlL, he sails the boat in 201"2, he keeps taking it i:ack i. l. there, and in all Llrese e-mai"Ls and transfer of r2 information between Mr. Pirro and Winter Harbor and Mr. IJ Cl-ark, he doesn't menticn one word of the leaks in Lire 14 l bcat al- all. 15 The Court in all respects finds that uhe 16 version as proposed by the defendant herein is true and 3-7 correct and does not credi.t the tesLj.mony of Mr. Stehiart 1B and the testimony of Mr. Clark as Lo any leaks being on 19 the boal caused by Winter Harbor- The Court enters a 20 i udgment as fo"l.]ows: 2L Petitioner, by his at.tor:ney, Mr. Anf,onucci, 22 having commenced a special proceeding which has been 23 converted by Lhe court pursuant to Lj.en Law 2a1-a for a n/l L1 juclgment discounting t.he lj.en r*hatsoever of winter 25 Harbor, petit,j.oner claimed by the respondent in notice Jennifer AclYdan Official Court Reporter 12 of 15 FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018 M.ichael CLark v rrlinter Harbcr, LLC 9 1- of sale served uporr the pelitioner pursuant. to Lien Law L Sect.ion 201, and the issues in the above-enritled 3 proceeding having duly come on to be heard, and the 4 pet,itioner havj.ng appeared by petitioner's attorney and 5 the respondent having appeared by Mr. Eric Charleton, 6 its attorney, and the proofs of both parties having been 7 adduced and their respective counsel having been heard, U and after due del-iberaticn in the proofs of both partie$ I i* this matLer having been hel.d hereon, and the decision 10 of tl"ris court oral}y having just been rendered by the 11 Court and having been made herein in favor of the 1? responcient, and judgment as hereinafter provided, and 1? the costs of t.he respondent wil] be duly taxed, it is 1A ordered, adjudged and decreed that the amount of sa:d 15 Lien shall be and hereby ls in the sum of $79,090.84, 1.6 and j.t is further ordered and adjudged and decreed that 11 che sale of the above-rnent.ioned l'essel when afcer 1a cornplying once again with 201 of the Lien Law by 19 noticing cnce again Carol Ann Clark, the registered 2A owner, pursuant co said 1aw, and by further advert.ising 27 once again under Section 202 of fhe Lien Law pursuanl 22 thereon, it sha-l-l be adjudg*d to sell Lhe vessel under 23 the Lien Law and the monies derived therefrom shal] be 24 appiied tr: Lhe payrienl of the lien and the costs and .E LJ d|sbursements inclusive of further storage costs between Jennifer AdYdan Officia] Court RePorter I 13 of 15 FILED: OSWEGO COUNTY CLERK 08/10/2018 10:56 AM INDEX NO. EFC-2018-0527 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/10/2018 Michael Clark v lJinter llar:bor, LLC 1C L no,* and the actual. date of sale anci thereafter nine 2 percenl legal interest upon Chal. Once those are paid, ? the attorney for the respondent shail renlt the q rernainder of Lhe money to the registered owner who is f Carol Ann Murray Clark. and the foregoinE constitutes 6 the judg'ment of the Court. ?he Cor.rrt is directing the attorney for the I respondent to file aft.er the saLe takes place -- file I Lhe original sa,1.e documenLs with the County Clerk and 1n file copies of the sale dr:cuments with this courl and 1.1 Lhe manner in which you arrived aL: t-ire costs and 72 disbursements and further sLorage charge. 13 The Court directs a copy of tiris Decision and 1t i;he Judgment to be drawn by respondent Is attorney. be served by certified mail on the registered owner, Carol to Clark, wichin five days after filing with the County 1i CLerk. 18 IL is furt.her ordered and adjudged chat the 19 owner or owner's agent may redeem the vessel i:y paying )r\ the lien and per