Preview
FILED: DUTCHESS COUNTY CLERK 01/26/2022 02:03 PM INDEX NO. 2021-51452
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/26/2022
EXHIBIT “C”
FILED: DUTCHESS COUNTY CLERK 05/30/2019
01/26/2022 01:35
02:03 PM INDEX NO. 2018-50487
2021-51452
NYSCEF DOC. NO. 64
60 RECEIVED NYSCEF: 05/29/2019
01/26/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
Present:
Hon. Maria G. Rosa, Justice
M-M2 RE HOLDINGS 4, LLC
DECISION AND ORDER
Plaintiff,
Index No. 50671/18
-against- /
BARBARA GIORDANO-LEONAGGEO, JACK GIORDANO,
if he be dead, his respective executors, administrators, heirs at law,
next of kin, distributees, legatees, grantees, assignees, judgment-
creditors, receivers, trustees, committees, lienors and successors in
interest and their husbands, wives, or widows, executors, administrators,
heirs at law, next of kin, distributees, legatees, devisees, grantees,
assignees, judgment-creditors, receivers, trustees in bankruptcy,
trustees, committees, lienors and successors in interest, if any, and all
persons claiming by, through or under any of them, if any, all of
whom and whose names are unknown to plaintiff; and generally all
parties having or claiming to have an interest in or lien upon the premises
described in the complaint or any amendment thereto, by, through or under
said defendant, all of whom and whose place of residence or business are
unknown to the plaintiff and cannot after due diligent inquiry be
ascertained; ROGER LEONAGGEO, H&L EQUINE, LLC and JOHN
DOE # 1through JANE DOE #10", the last ten names being fictitious and
unknown to plaintiff, the persons or parties intended being the tenants,
occupants, persons or entities, if any, having or claiming an interest in or
lien upon the mortgaged premises, described in the verified complaint~
Defendants.
The following papers were read on Plaintiff s motion for summary judgment and Defendants'
motion to consolidate:
NOTICE OF MOTION
AFFIRMATION IN SUPPORT
EXHIBITS A -H
AFFIDAVIT IN OPPOSITION
EXHIBITS A -I
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FILED: DUTCHESS COUNTY CLERK 05/30/2019
01/26/2022 01:35
02:03 PM INDEX NO. 2018-50487
2021-51452
NYSCEF DOC. NO. 64
60 RECEIVED NYSCEF: 05/29/2019
01/26/2022
REPLY AFFIRMATION
EXHIBIT A
NOTICE OF MOTION
AFFIDAVIT IN SUPPORT
EXHIBITS A -B ( .
AFFIRMATION IN OPPOSITION
EXHIBITS A-B
REPLY AFFIDAVIT
EXHIBITS A -H
Plaintiff moves for summary judgment in an action to quiet title pursuant to RP APL Article
15. Defendants Barbara. Giordano- Leonaggeo and Roger Leonaggeo ("Defendants")" move to
consolidate this action with a pending foreclosure action seeking to foreclose on a parcel of real
property adjacent to the property at issu~.in the Article 15 action.
Plaintiff seeks to quiet titleto real property located at 107 Homan Road, Stanfordville, New.
York. To obtain summary judgment in an action to quiet titlepursuant to RP APL Article 15, the
movant must establish,primajacie, thafit holds title,or that the non-movant's titleclaim is without
merit. White Sands Motel Holding Corp. v. Trustees of Freeholders & Commonalty of Town ofE.
Hampton, 142AD3d 1073, 1074(2 ndDept2016). Plaintiffhas establishedaprimajacie entitlement
to summary judgmenflhrough the production of a deed dated October 11, 2016 in which the
Defendants deeded all right, titleaild interest in the subj ect property to the Plaintiff. Plaintiff has
also produced documentary evidence establishing that Defendant Barbara Giordano-Leonaggeo
lawfully deeded any interest decedents Jack and Josephine Giordano, Barbara Giordano's late
parents, had in the property based on her being her father's sole heir and next of kin, the sole
beneficiary under her mother's last will and testament, and in her capacity as the executrix of her
mother's estate.
In opposition, defendants maintain that they executed the deed under duress and raise the.
doctrine of unclean hands. Defendants claims that at the time they executed the deed they were in
negotiations with Michael Milea, the principal ofM-M2 Re: Holdings4, LLC, to obtain a loan in
the amount of $35,732.49 secured by a mortgage on an adjacent parce1"on which they lived. It
appears from the record that Defendants sought that loan to avoid losing that adjacent property in .
)
a tax sale. Defendants assert that the day before they were scheduled to close on the mortgage loan
with Mr. Milea, his attorney advised them that Milea would only give them the loan if they agreed
to sell him the subject property for $25,000.00. The property consists of 101 acres of vacant land.
Defendants claim that at the time the property was worth approximately $995,000.00 but they agreed
to sell him the property for $25,000 to avoid losing the adjacentproperty on which theylived at a
tax sale.
2
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FILED: DUTCHESS COUNTY CLERK 05/30/2019
01/26/2022 01:35
02:03 PM INDEX NO. 2018-50487
2021-51452
NYSCEF DOC. NO. 64
60 RECEIVED NYSCEF: 05/29/2019
01/26/2022
Economic duress exists when a party is forced to agree to a contract by means of a wrongful
threat which precludes the exercise of his or her free will. See Finserv Computer Corp. v.
Bibliographic Retrieval Serv., Inc., 125 AD2d 765 (3rdDept 1986). Defendants fail to establish a
material issue of fact as to their duress defense. The alleged refusal ofMr. Milea to go forward with
a mortgage loan for a separate piece of property would not constitute the type of wrongful threat that
would preclude the exercise of Defendants' free will in deciding whether to execute the deed.
Defendants fail to establish they had no other alternatives or that they could not have walked away
from the transaction. See Sitar v. Sitar, 61 AD3d 739 (2 nd Dept 2017). The threat not to issue a loan
on an unrelated piece of property cannot be deemed coercion as Mr. Milea had no obligation to make
the mortgage loan. See generally Appel v. Ford Motor Co., 111 AD2d 731 (2ndDept 1985).
Defendants have, however, raised a material issue of fact as to their affirmative defense of
unclean hands. The doctrine of unclean hands applies when an offending party is guilty of immoral,
unconscionable conduct and "when the conduct relied on is directly related to the subject matter in
litigation and the party seeking to invoke the doctrine was injured by such conduct." Kopsidas v.
Krokos, 294 AD2d 406,407 (2nd Dept. 2002). Unclean hands in participating in a course of conduct
of deception and deceit is an effective barto an action. Chun Wang v. Chun Wong, 163 AD2d 300,
302 (2 ndDept. 1990).
Defendants make unrefuted allegations that Plaintiff s principal negotiated a deal under
which he would loan them money to avoid an immediate tax sale on the residential property on
which they lived. They assert that in reliance upon the negotiated deal they appeared for a closing
the day before the scheduled tax sale. On that date they state that Mr. Milea refused to loan them
the necessary funds to payoff the outstanding taxes due unless they sold him the parcel at issue in
this action at a severely discounted rate. They assert that the 107 acre parcel had previously been
appraised for a value of one million dollars. In support of this assertion they have submitted a May
2011 letter from a licensed real estate broker opining that the property is worth $995,000.00. The
foregoing is sufficient to create an issue of fact as to whether Plaintiff was proceeding with unclean
hands at the closing of the property. Notably, Plaintiff has not submitted any evidence refuting
Defendants' factual assertions. Its opposition consists entirely of an affirmation of counsel which
is not based upon first-hand knowledge of the facts inserted therein. As the court is required on a
motion for summary judgment to construe the facts in a light most favorable to the non-moving party
and Defendants have made factual allegations that could, if proven, establish a defense of unclean
hands, it is
ORDERED that Plaintiffs motion for summary judgment is denied. It is further
ORDERED that Defendants' motion to consolidate this action with a foreclosure action for
residential real property where they live at 150 Homan Road is granted. There are related factual
issues surrounding the closing of the mortgage in the foreclosure action and the transfer of property
in this action. Wherefore, the action pending before this court (Forman, J.) under Index Number
2018-50487 is hereby consolidated for purposes of discovery with this action under Index Number
2018-50671. As the action before Judge Forman is older, the consolidated action is now before
3
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FILED: DUTCHESS COUNTY CLERK 05/30/2019
01/26/2022 01:35
02:03 PM INDEX NO. 2018-50487
2021-51452
NYSCEF DOC. NO. 64
60 RECEIVED NYSCEF: 05/29/2019
01/26/2022
Judge Forman, The parties are directed to appear for a conference before the Hon. Peter M. Forman
on both actions on June 10,2019 at 10:00 a.m.
The foregoing constitutes the decision and order of the Court.
Dated: May d\ , 2019
Poughkeepsie, New Yark
ENTER:
~
MARlA G. ROSA, J.S.C.
Scanned to the E-File System only
Pursuant to CPLR 95513, an appeal as of right must be taken within thirty days after service by a
party upon the appellant of a copy of the judgment or order appealed from and written notice' of its
entry, except that when the appellant has served a copy of the judgment or order and written notice
of its entry, the appeal must be taken within thIrty"days thereof.
Corbally, Gartland and Rappleyea, LLP
35 Market Street.
Poughkeepsie, NY 12601
Barbara Giardano-Leonaggeo
150 Horman Road
Stanfordville, NY 12581
Roger Leonaggeo
150 Homan Road
Stanfordville, NY 12581
4
4 of 4
Preview
FILED: DUTCHESS COUNTY CLERK 01/26/2022 02:03 PM INDEX NO. 2021-51452 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/26/2022 EXHIBIT “C” FILED: DUTCHESS COUNTY CLERK 05/30/2019 01/26/2022 01:35 02:03 PM INDEX NO. 2018-50487 2021-51452 NYSCEF DOC. NO. 64 60 RECEIVED NYSCEF: 05/29/2019 01/26/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS Present: Hon. Maria G. Rosa, Justice M-M2 RE HOLDINGS 4, LLC DECISION AND ORDER Plaintiff, Index No. 50671/18 -against- / BARBARA GIORDANO-LEONAGGEO, JACK GIORDANO, if he be dead, his respective executors, administrators, heirs at law, next of kin, distributees, legatees, grantees, assignees, judgment- creditors, receivers, trustees, committees, lienors and successors in interest and their husbands, wives, or widows, executors, administrators, heirs at law, next of kin, distributees, legatees, devisees, grantees, assignees, judgment-creditors, receivers, trustees in bankruptcy, trustees, committees, lienors and successors in interest, if any, and all persons claiming by, through or under any of them, if any, all of whom and whose names are unknown to plaintiff; and generally all parties having or claiming to have an interest in or lien upon the premises described in the complaint or any amendment thereto, by, through or under said defendant, all of whom and whose place of residence or business are unknown to the plaintiff and cannot after due diligent inquiry be ascertained; ROGER LEONAGGEO, H&L EQUINE, LLC and JOHN DOE # 1through JANE DOE #10", the last ten names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or entities, if any, having or claiming an interest in or lien upon the mortgaged premises, described in the verified complaint~ Defendants. The following papers were read on Plaintiff s motion for summary judgment and Defendants' motion to consolidate: NOTICE OF MOTION AFFIRMATION IN SUPPORT EXHIBITS A -H AFFIDAVIT IN OPPOSITION EXHIBITS A -I 1 of 4 FILED: DUTCHESS COUNTY CLERK 05/30/2019 01/26/2022 01:35 02:03 PM INDEX NO. 2018-50487 2021-51452 NYSCEF DOC. NO. 64 60 RECEIVED NYSCEF: 05/29/2019 01/26/2022 REPLY AFFIRMATION EXHIBIT A NOTICE OF MOTION AFFIDAVIT IN SUPPORT EXHIBITS A -B ( . AFFIRMATION IN OPPOSITION EXHIBITS A-B REPLY AFFIDAVIT EXHIBITS A -H Plaintiff moves for summary judgment in an action to quiet title pursuant to RP APL Article 15. Defendants Barbara. Giordano- Leonaggeo and Roger Leonaggeo ("Defendants")" move to consolidate this action with a pending foreclosure action seeking to foreclose on a parcel of real property adjacent to the property at issu~.in the Article 15 action. Plaintiff seeks to quiet titleto real property located at 107 Homan Road, Stanfordville, New. York. To obtain summary judgment in an action to quiet titlepursuant to RP APL Article 15, the movant must establish,primajacie, thafit holds title,or that the non-movant's titleclaim is without merit. White Sands Motel Holding Corp. v. Trustees of Freeholders & Commonalty of Town ofE. Hampton, 142AD3d 1073, 1074(2 ndDept2016). Plaintiffhas establishedaprimajacie entitlement to summary judgmenflhrough the production of a deed dated October 11, 2016 in which the Defendants deeded all right, titleaild interest in the subj ect property to the Plaintiff. Plaintiff has also produced documentary evidence establishing that Defendant Barbara Giordano-Leonaggeo lawfully deeded any interest decedents Jack and Josephine Giordano, Barbara Giordano's late parents, had in the property based on her being her father's sole heir and next of kin, the sole beneficiary under her mother's last will and testament, and in her capacity as the executrix of her mother's estate. In opposition, defendants maintain that they executed the deed under duress and raise the. doctrine of unclean hands. Defendants claims that at the time they executed the deed they were in negotiations with Michael Milea, the principal ofM-M2 Re: Holdings4, LLC, to obtain a loan in the amount of $35,732.49 secured by a mortgage on an adjacent parce1"on which they lived. It appears from the record that Defendants sought that loan to avoid losing that adjacent property in . ) a tax sale. Defendants assert that the day before they were scheduled to close on the mortgage loan with Mr. Milea, his attorney advised them that Milea would only give them the loan if they agreed to sell him the subject property for $25,000.00. The property consists of 101 acres of vacant land. Defendants claim that at the time the property was worth approximately $995,000.00 but they agreed to sell him the property for $25,000 to avoid losing the adjacentproperty on which theylived at a tax sale. 2 2 of 4 FILED: DUTCHESS COUNTY CLERK 05/30/2019 01/26/2022 01:35 02:03 PM INDEX NO. 2018-50487 2021-51452 NYSCEF DOC. NO. 64 60 RECEIVED NYSCEF: 05/29/2019 01/26/2022 Economic duress exists when a party is forced to agree to a contract by means of a wrongful threat which precludes the exercise of his or her free will. See Finserv Computer Corp. v. Bibliographic Retrieval Serv., Inc., 125 AD2d 765 (3rdDept 1986). Defendants fail to establish a material issue of fact as to their duress defense. The alleged refusal ofMr. Milea to go forward with a mortgage loan for a separate piece of property would not constitute the type of wrongful threat that would preclude the exercise of Defendants' free will in deciding whether to execute the deed. Defendants fail to establish they had no other alternatives or that they could not have walked away from the transaction. See Sitar v. Sitar, 61 AD3d 739 (2 nd Dept 2017). The threat not to issue a loan on an unrelated piece of property cannot be deemed coercion as Mr. Milea had no obligation to make the mortgage loan. See generally Appel v. Ford Motor Co., 111 AD2d 731 (2ndDept 1985). Defendants have, however, raised a material issue of fact as to their affirmative defense of unclean hands. The doctrine of unclean hands applies when an offending party is guilty of immoral, unconscionable conduct and "when the conduct relied on is directly related to the subject matter in litigation and the party seeking to invoke the doctrine was injured by such conduct." Kopsidas v. Krokos, 294 AD2d 406,407 (2nd Dept. 2002). Unclean hands in participating in a course of conduct of deception and deceit is an effective barto an action. Chun Wang v. Chun Wong, 163 AD2d 300, 302 (2 ndDept. 1990). Defendants make unrefuted allegations that Plaintiff s principal negotiated a deal under which he would loan them money to avoid an immediate tax sale on the residential property on which they lived. They assert that in reliance upon the negotiated deal they appeared for a closing the day before the scheduled tax sale. On that date they state that Mr. Milea refused to loan them the necessary funds to payoff the outstanding taxes due unless they sold him the parcel at issue in this action at a severely discounted rate. They assert that the 107 acre parcel had previously been appraised for a value of one million dollars. In support of this assertion they have submitted a May 2011 letter from a licensed real estate broker opining that the property is worth $995,000.00. The foregoing is sufficient to create an issue of fact as to whether Plaintiff was proceeding with unclean hands at the closing of the property. Notably, Plaintiff has not submitted any evidence refuting Defendants' factual assertions. Its opposition consists entirely of an affirmation of counsel which is not based upon first-hand knowledge of the facts inserted therein. As the court is required on a motion for summary judgment to construe the facts in a light most favorable to the non-moving party and Defendants have made factual allegations that could, if proven, establish a defense of unclean hands, it is ORDERED that Plaintiffs motion for summary judgment is denied. It is further ORDERED that Defendants' motion to consolidate this action with a foreclosure action for residential real property where they live at 150 Homan Road is granted. There are related factual issues surrounding the closing of the mortgage in the foreclosure action and the transfer of property in this action. Wherefore, the action pending before this court (Forman, J.) under Index Number 2018-50487 is hereby consolidated for purposes of discovery with this action under Index Number 2018-50671. As the action before Judge Forman is older, the consolidated action is now before 3 3 of 4 FILED: DUTCHESS COUNTY CLERK 05/30/2019 01/26/2022 01:35 02:03 PM INDEX NO. 2018-50487 2021-51452 NYSCEF DOC. NO. 64 60 RECEIVED NYSCEF: 05/29/2019 01/26/2022 Judge Forman, The parties are directed to appear for a conference before the Hon. Peter M. Forman on both actions on June 10,2019 at 10:00 a.m. The foregoing constitutes the decision and order of the Court. Dated: May d\ , 2019 Poughkeepsie, New Yark ENTER: ~ MARlA G. ROSA, J.S.C. Scanned to the E-File System only Pursuant to CPLR 95513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice' of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thIrty"days thereof. Corbally, Gartland and Rappleyea, LLP 35 Market Street. Poughkeepsie, NY 12601 Barbara Giardano-Leonaggeo 150 Horman Road Stanfordville, NY 12581 Roger Leonaggeo 150 Homan Road Stanfordville, NY 12581 4 4 of 4