Motion-Secondary: Richard Von Der Lieth v. Barbara Giordano a/k/a Barbara Leonaggeo a/k/a Barbara Giordano-Leonaggeo, Roger Leonaggeo, Jack Giordano, M-M2 Re Holdings 4, Llc, H&L Equine, Llc, Portfolio Recovery Associates, Llc, Razor Capital Ii, Llc a/p/o Credit One Bank, N.A., Catania, Mahon, Milligram & Rider, Pllc, John Doe 1-10 And Jane Doe 1-10, As Possible Heirs And Distributees Of The Interest Of Jack Giordano, If Deceased, John Doe 1-10, Jane Doe 1-10

On April 21, 2021 a Motion-Secondary was filed involving a dispute between Richard Von Der Lieth, and Barbara Giordano A K A Barbara Leonaggeo A K A Barbara Giordano-Leonaggeo, Catania, Mahon, Milligram & Rider, Pllc, H&L Equine, Llc, Jack Giordano, Jane Doe 1-10, John Doe 1-10, John Doe 1-10 And Jane Doe 1-10, As Possible Heirs And Distributees Of The Interest Of Jack Giordano, If Deceased, M-M2 Re Holdings 4, Llc, Portfolio Recovery Associates, Llc, Razor Capital Ii, Llc A P O Credit One Bank, N.A., Roger Leonaggeo, for Real Property - Mortgage Foreclosure - Commercial in the District Court of Dutchess County.

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FILED: DUTCHESS COUNTY CLERK 01/26/2022 02:03 PM INDEX NO. 2021-51452
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/26/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
------------------------------------------------------------------X
RICHARD VON DER LIETH,

Plaintiff, AFFIRMATION IN REPLY
AND OPPOSITION TO DEFENDANTS’
CROSS-MOTION
-against- Index No.: 2021-51452
BARBARA GIORDANO A/K/A BARBARA
LEONAGGEO A/K/A BARBARA GIORDANO-
LEONAGGEO, ROGER LEONAGGEO, JACK
GIORDANO, m-m2 RE HOLDINGS 4, LLC, H&L
EQUINE, LLC, PORTFOLIO RECOVERY
ASSOCIATES, LLC RAZOR CAPITAL II, LLC A/P/O
CREDIT ONE BANK, N.A., CATANIA, MAHON,
MILLIGRAM & RIDER, PLLC, “JOHN DOE #1-10”
and “JANE DOE #1-10”, AS POSSIBLE HEIRS AND
DISTRIBUTEES OF THE INTEREST OF JACK
GIORDANO, IF DECEASED, “JOHN DOE #1-10” AND
“JANE DOE #1-10”, said names being fictitious parties
Intended being possible tenants or occupants of premises,
corporations, other entities or persons who claim, or may
claim, a lien against the premises.

Defendant(s).
------------------------------------------------------------------X
ANTHONY C. CARLINI, JR., an attorney-at-law duly admitted to practice before the

courts of the State of New York, and not a party to this action, hereby affirms the following

under penalty of perjury:

1. I am a partner with the law firm of HANDEL & CARLINI, LLP, attorney(s)

for Plaintiff in the above-entitled action and as such, am fully familiar with the facts and

circumstances of this matter as set forth herein.

2. This Affirmation is provided in reply to Roger Leonaggeo and Barbara Giordano-

Leonaggeo’s (“Defendants” or “Leonaggeos”) opposition to Plaintiff’s motion for default and in

opposition to Defendants’ cross-motion: (i) dismissing the action against Defendants; (ii)

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denying Plaintiff’s motion for summary judgment, (iii) declaring the promissory note void, and

(iv) staying the cross-claim by Defendant M-M2 RE Holdings 4, LLC pending appeal. See

Faringer Affirmation ¶ 2.

3. Defendants attempt to confuse the Court by intentionally trying to manipulate two

unrelated cases to support their entirely baseless claims. Defendants admittedly borrowed

money from Plaintiff. As security for their promise to pay, Defendants admittedly granted

Plaintiff a mortgage in the property at Homan Road, Stanfordville, Town of Stanford, New York

12581 (Section:135200, Block: 6669-00, Lot: 533189-0000) which consists of vacant land. See

Mortgage pg. 1. Defendants admittedly did not pay the amount due and owing on the Note when

it matured, and Plaintiff now seeks the remedy of foreclosure in accordance with the Note and

Mortgage.

4. To that end, Defendants cannot and do not dispute the following:

• On December 22, 2015, Defendants executed a Note with Plaintiff promising to pay

$35,000.00 together with interest at 7% by the Note’s maturity date of December 22,

2016. See Exhibit A annexed to Plaintiff’s motion for default and summary judgment;

See Faringer Affidavit ¶ 5.

• The Note was secured by a mortgage dated December 22, 2015, whereby the

Mortgagors mortgaged the Premises described in the Mortgage and annexed to the

Mortgage on the accompanying “Schedule A”. The mortgage was duly recorded in the

office of the Dutchess County Clerk on February 3, 2016. See Exhibit B annexed to

Plaintiff’s motion for default and summary judgment; See Faringer Affidavit ¶ 5.

• Defendants failed to pay Plaintiff when the Note matured or at any point thereafter.

5. Notwithstanding the foregoing, Defendants argue that the Note should be declared void

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and allege that Plaintiff and Defendant M-M2 RE Holdings 4, LLC (“MM2”) fraudulently

induced them to borrow money. As will be set forth in detail below, MM2 and Defendants

history with MM2 have absolutely no bearing on this foreclosure proceeding.

6. In fact, in addition to being totally irrelevant to this proceeding, almost every argument

made by Defendants in support of their theory has already been argued and dispensed with by the

Hon. Michael G. Hayes in the matter of M-M2 RE Holdings 4, LLC v. Barbara Giordano-

Leonaggeo, et. al. (Index No. 2018-50671) (“Quiet Title Action”).

7. For the reasons set forth herein, Defendants’ cross-motion must be denied in its entirety

and Plaintiff’s application must be granted.

I. DEFENDANTS CANNOT INVALIDATE THE NOTE

8. As this Court is aware, Plaintiff has sought a default against Defendants for their failure

to appear in the underlying action.

9. Defendants conflate their response to the default with their basis for seeking dismissal on

the ground of fraudulent inducement.

10. Plaintiff can only offer a best guess as, critically, Defendants’ papers are entirely devoid

of any legal support or authority for their position regarding the alleged fraudulent inducement

and the default. Based upon this alone, the Court should decline to entertain Defendants’

arguments in any way.

11. Moreover, Defendants should not get a second chance to do this in reply, as it is well

settled that a court “may not consider points presented for the first time in reply, especially when

respondents’ initial failure to support dismissal …deprived petitioners of an opportunity to

respond”. See Matter of Clark v. Metropolitan Transp. Auth., 46 Misc.3d 344, 354 (NY Co.

2013); Liriano v. Eveready Ins. Co., 94 A.D.3d 716, 717 (2d Dept. 2012) (refusing to consider

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arguments raised for the first time in reply before the Supreme Court).

A) Defendants’ Treatment of Their Default

12. Defendants appear to address their default by citing to their Hardship Declaration and

simply stating that they believed they appeared in the underlying action by sending an email to

Plaintiff’s counsel. See Faringer Aff ¶ 23, Giordano Aff ¶ 33 (stating: “the reason we only

appeared by a simple email to counsel was that we were under the honest belief that nothing

more w[as] required of us”).

13. As noted above, no legal authority has been cited in support of this apparent attempt to

vacate their default. The legal standard is that a “defendant seeking to vacate a default in

appearing and answering the complaint must demonstrate a reasonable excuse for the delay in

appearing and answering and a meritorious defense to the action. See Dorrer v. Berry, 37 A.D.3d

519, 520 (2d Dept. 2007). Emphasis added. Quite simply Defendants cannot meet this burden.

a. Defendants have failed to set forth a reasonable excuse.

14. Defendants cannot establish a reasonable excuse. An email to opposing counsel is not

the same as appearing in an action pursuant to CPLR. See CPLR § 320. Defendants’ position

that they “honestly believed nothing more was required…” is also highly questionable.

15. As Defendants correctly assert, the parcel of land at issue has been the subject of a great

deal of litigation. In fact, in the Quiet Title Action, which was recently decided by the Hon.

Michael G. Hayes, the Defendants actually appeared pro se and submitted a timely verified

answer. (Index No. 2018- 50671, NYSCEF Doc # 14). Defendants continued to represent

themselves pro se in that matter from submitting their answer on May 31, 2018, until August 9,

2021 when Ms. Faringer, Esq. recorded representation on their behalf. (Index No 2018- 50671,

NYSCEF Doc # 206). While pro-se however, Defendants remained extremely active in the

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case, filing motions, letters, and opposition papers. (Index No. 2018-50671, NYSCEF Doc. #s

29-34, 42, 50-52, 62-65, 82-88, 91-93, 98-107, 126, 185, 188-194, 196-203, 205).

16. Based on that history, it is extremely hard to believe that Defendants were suddenly

unaware that an email did not suffice as a timely appearance in a court action. Notwithstanding,

it is well settled that ignorance of the law and/or court processes do not constitute reasonable

excuses. U.S. Bank Natl. Assn. v. Slavinski, 78 A.D.3d 1167, 1167 (2d Dept. 2010).

17. Nor can Defendants rely on their Hardship Declaration. Ms. Faringer misinterprets the

nature of Plaintiff’s position surrounding the Hardship. Plaintiff is not contesting the validity of

the statements Defendants made in the hardship. Rather, Plaintiff asserts, and Defendants do not

dispute, that the piece of land upon which this foreclosure action is based, does not concern

residential real property. It concerns unimproved real property. To put it plainly, von der Lieth

is not foreclosing on Defendants’ house, and the moratorium and hardship declaration are only

applicable to residential real property.

18. The face of subpart B of Part C of the Covid-19 Emergency Eviction and Foreclosure

Prevention Act explicitly states:

This action shall apply to any action to foreclose a
mortgage relating to residential real property, provided
the owner of such property is a natural person…and
owns ten or fewer dwelling units whether directly or
indirectly. The ten or fewer dwelling units may be in
more than one property or building as long as the total
aggregate number of the units include the primary
residence of the natural person requesting such relief and
the remaining units are currently occupied by a tenant or
are available for rent…” L. 2021, c 417.

19. The Administrative Order cited by Defendants, and annexed to their papers as Exhibit I,

similarly refers to “residential foreclosures”. In any event the hardship declaration would do

nothing more than stay the foreclosure through the expiration of the moratorium on January 15,

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2022. That time has lapsed.

20. To explain their delay, Defendants also assert that Roger Leonaggeo was ill. See

Leonaggeo Aff ¶ 32. However, it is unclear what Defendants are trying to argue. They first

assert it was their honest belief that they did appear via email, which cannot be an excuse. Then

they assert they were delayed due to Mr. Leonaggeo’s illness. However, they never once

reached out to counsel or the Court to request additional time on this basis. A review of the

NYSCEF record in other matters Defendants appeared in, shows that they were reaching out to

the Court and formally requesting adjournments. See NYSCEF Doc No 185, Index No. 2018-

50671. Defendants are overwhelming familiar with the legal process.

21. Based on the foregoing, Plaintiff has demonstrated that Defendants cannot establish a

reasonable excuse for default. That is enough to end further inquiry, but it is worth noting that

Defendants cannot establish a meritorious defense either.

b) Defendants cannot establish a meritorious defense and are not entitled to a declaration
voiding the Note based on fraudulent inducement.

22. Again, without offering any legal support, Defendants seem to suggest their meritorious

defense is that the Note was allegedly obtained through fraudulent inducement. This appears

both to be the support in connection with the default as to the meritorious defense and

Defendants’ cross-motion to declare the Note null and void. Defendants have not met their

burden for either.

23. To support a claim sounding in fraudulent inducement the movant must establish

“representation of a material existing fact, falsity, scienter, deception and injury.” Dalessio v.

Kressler, 6 AD.3d 57, 61 (2d Dept. 2004). Moreover, to prove fraudulent inducement the

claimant must establish justifiable reliance on the misrepresentations or omissions at issue.

Centro Empresarial Cempresa S.A. v. America Movil, S.A.B de C.V., 76 A.D.3d 310, 329 (1st

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Dept. 2010). The party alleging fraud in the inducement bears the burden of proving the above

elements by clear and convincing evidence. 10-162 Corp. v. Tompkins Green Assoc., 179 AD.2d

450, 450 (1st Dept. 1992).

24. Defendants have not even made an attempt to establish any of these elements, nor can

they do so in reply.

25. Defendants point to a certain letter agreement in support of their position that they

entered into their arrangement with Plaintiff via fraudulent inducement. This is the sole

documentary evidence upon which Defendants base their application for dismissal pursuant to

CPLR §§(a)(1), (7). First of all, the letter agreement annexed to Defendants’ papers as Exhibit C

explicitly reserves all of Plaintiff’s rights and remedies under the Note and Mortgage. See

Defendants’ Exhibit C ¶ 2. Emphasis added.

26. The letter agreement most certainly does not invalidate von der Lieth’s ability to

foreclose pursuant to the mortgage. Quite the opposite, the letter agreement depends entirely on

Defendants’ cooperation and the ability to acquire a subdivision in the first place. Id.

27. To that very point, a close look at the timeline of events cited by Defendants makes it

abundantly clear that any alleged fraudulent behavior is actually and solely attributable to

Defendants:

• The maturity date on the Note was December 22, 2016. (See Note pg. 3).

• The Defendants breached their obligation to pay the balance due on the maturity date

and made no payment thereafter.

• Prior to the maturity date on October 11, 2016, the Defendants sold the entire parcel at

107 Homan Road, Stanfordville, New York to MM2, which included the land upon

which von der Lieth held a mortgage. Emphasis added. A copy of the relevant deed is

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annexed hereto as Exhibit “A” (“October 2016 Deed”). This sale took place without

von der Lieth’s consent.

28. Defendants’ sale of the property was expressly prohibited by the terms of the mortgage

which states: “Mortgagee may require Immediate Payment in Full if: (C) Without Lender’s prior

written consent (i) Mortgagor attempts to sell, transfer or assign all or part of the Premises, or (ii)

Mortgagor leases all or any part of the Premises. See Mortgage Rider ¶ 7(c). Critically, it would

have been impossible for von der Lieth to subdivide the property as Defendants’ claim. The

Defendants went behind von der Lieth and sold the Property almost two months before the

maturity date. No longer having any interest in the property, Defendants had absolutely no

standing to cooperate with a subdivision of the property or even agree to a subdivision.

Moreover, Defendants’ breach of the Mortgage gave von der Lieth the right to immediately

pursue foreclosure.

29. It is abundantly clear that none of the Defendants’ arguments amount to fraudulent

inducement. There was no misstatement made. To the contrary, the letter agreement, note, and

mortgage were all executed on December 22, 2015. The Defendants received copies of the

relevant documents for review. Presumably, Defendants chose not to retain counsel, but they

certainly were not forced to proceed independently. In fact, the Note itself contains a provision

which states: “Maker has been advised and is hereby advised that maker has the right to and that

Maker should consult with counsel of their choosing before entering into this Promissory Note.

Maker by signing this Promissory Note represents that Maker has either done so or elected not to

do so.” Note pg. 3.

30. The same exact language can be found in the Rider to the Mortgage which states

“Mortgagor has been advised and is hereby advised that Mortgagor has the right to and that

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Mortgagor should consult with counsel of their choosing before entering into this Mortgage.

Maker, by signing this Mortgage represents that Mortgagor has either done so or elected not to

do so. See Mortgage Rider pg. 4 ¶ 10.

31. Frankly, this is not an instance where any disparate bargaining power existed.

Defendants wished to borrow money. In return, they offered collateral in the form of a mortgage

for their promise to repay the Note. They failed to repay the Note and they are now attempting

any deceptive tactic to avoid the consequences of their deal and default.1 “It has long been held

that the failure of a signer to read an instrument in circumstances analogous to those here

amounts to gross negligence”. Gillman v. Chase Manhattan Bank, 73 NY.2d 1, 12 (1988); see

also Deangelis v. Korea First Bank, 270 A.D.2d 450, 450 (2d Dept. 2000) (party bound by terms

of personal guarantee he signed concerning underlying mortgage debt, despite allegations that he

failed to read the entire document and was unaware of all its provisions).

32. Defendants cannot establish scienter which requires that von der Lieth would have had

knowledge of the falsity of the alleged misrepresentations. Actually, the provision they

reference in the Note does not even expressly conflict with the letter agreement. The letter

agreement upholds the terms of the Note and Mortgage. The provision in the Note similarly says

that no agreement to the contrary invalidates the Makers’ liability on the Note: “no….other

agreement or instrument relating hereto shall release, modify, amend waive, extend, change,

1
A review of Defendants’ papers and general litigation history establish that this tactic is anything but surprising.
Defendants have a history of borrowing money, failing to pay it back and then claiming that they were the victims of
fraud or some other scheme: M-M2 RE Holdings 1, LLC v. Barbara Giordano-Leonaggeo (Index No 2018-50487)
(having borrowed the sum of $35,732.49 from Plaintiff and failed to pay it back, granting a mortgage to Plaintiff and
contesting the basis of the residential foreclosure proceeding based on duress, unclean hands, inducement etc.);
MM2 RE Holdings 4, LLC v. Barbara Giordano-Leonaggeo et al (Index No. 2018-50671)(having sold the property
to Plaintiff and contesting the validity of the sale alleging duress, unclean hands etc.); MM2 RE Holdings 13, LLC
v. Barbara Giordano-Leonaggeo et al (2018-53854)(having failed to pay back a note which was provided to the
Budais’ for $30,000.00 and assumed by Plaintiff on November 14, 2018); Catania, Mahon, Milligram & Rider,
PLLC v. Roger Leonaggeo and Barbara Leonaggeo (Index No. 2016-52229) (Judgment for unpaid legal fees in the
amount of $27,623.01).

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discharge, terminate or affect the liability of the Maker and any other person or entity who may

become liable for payment… of the debt evidenced by this … Note”. See Note pg. 3.

33. Quite simply, Defendants have no basis whatsoever to establish fraudulent inducement

and cannot have the Note declared null and void based on the letter agreement, as Defendants’

own actions in illegally selling the mortgaged property prior to the Note’s maturity date, made

the letter agreement moot.

B) Defendants Lack Standing to Assert Any Claims to The Property and Many Of
Defendants’ Claims Are Barred By Res Judicata.

34. Defendants refer the court to various matters pending with MM2 to somehow magically

bolster their arguments relative to the instant foreclosure action. Specifically, the Quiet Title

Action which will be discussed further below and a completely unrelated residential foreclosure

case MM2 Holdings, 1 LLC. v. Barbara Giordano-Leonaggeo, et. al. (Index No. 2018- 50487).

Some background regarding the Quiet Title Action is necessary to clarify the confusing history

Defendants have set forth and conclusively demonstrate that Defendants have no standing to

assert any of their claims.

35. In raising Defendants’ history of disputes with MM2, Defendants attempt to deceptively

cloud the very simple issue in this case, which is that von der Lieth is entitled to foreclosure and

that Defendants lack standing to challenge any of the relief sought herein. For clarity, the history

and substance of Judge Hayes’ recent Decision and Order in the Quiet Title Action attached

hereto as Exhibit “B” is essential (“Hayes Decision” or “Decision”).

36. In short, the Defendants sold the property at issue to MM2 on October 11, 2016,

pursuant to a sale-option agreement. The agreement gave defendants one year to buy back the

Property. MM2 offered an extension to Defendants in 2017 but Defendants again failed to buy

back the Property. See Decision at pg. 6.

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37. MM2 brought the Quiet Title Action under Article 15 of the CPLR on March 15, 2018.

(Index No 2018-50671, Doc # 1).

38. Defendants made various arguments in the Quiet Title Action which they repeat in their

instant motion papers including that: (i) the property was fraudulently conveyed to MM2 by

means of high-pressure tactics; and (ii) that MM2, through its member, Mr. Milea, made

Defendants believe that it was assuming von Der Lieth’s mortgage. See Leonaggeo Aff ¶¶ 11,

14, 15, 16-20, Faringer Aff ¶¶ 12,13, 19, 20. These arguments were all addressed in Judge

Hayes’ Decision and cannot be reconsidered or redecided as detailed below.

39. As Judge Hayes cites in his recent Decision, the Quiet Title Action was previously

before your Honor in this Court under Index No. 2018-50671. When the matter was before your

Honor, MM2 brought a motion for summary judgment and your Honor held that MM2 had

established prima facie entitlement to summary judgment through the production of the October

2016 Deed, but declined to award summary judgment to MM2 solely on the ground that the

Leonaggeos raised issues of fact relative to their unclean hands defense. A copy of that Decision

and Order is annexed hereto as Exhibit “C”.

40. Following this Court’s Decision, the parties engaged in depositions and discovery and

MM2 brought a motion for summary judgment again, which formed the basis of the Hayes

Decision where Judge Hayes held:

The law of this case as established by the legal determination resolved
on the merits by Judge Rosa in the Decision and Order dated May 21,
2019 is that plaintiff has established a prima facie entitlement to
summary judgment through the production of a deed dated October 11,
2016. The defendants deeded all rights, title and interest in the
Property to the Plaintiff. Moreover, Judge Rosa found that Ms.
Giordano-Leonaggeo lawfully deeded any interest of her late parents
in the property to the plaintiff. Hayes Decision pg. 17.

41. The Hayes Decision also dispensed with the Leonaggeos’ unclean hands defense

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holding that the evidence produced by “MM2 also affirmatively establishes, prima facia, that the

[Leonaggeos’] received the benefit of their bargain. Had they not contracted with Mr. Milea,

their home would have been sold at auction…The [Leonaggeos’] felt great relief and

experienced a significant reduction in stress following the closing, as expressed by Ms.

Giordano-Leonaggeo in her October 11, 2016 email. As part of this bargain, Mr. Milea gave the

defendants a one-year option to buy back the Property, which went unexercised…” Hayes

Decision pg. 18.

42. That holding divests the Defendants of standing to contest von der Lieth’s foreclosure

in this matter as Defendants have no interest whatsoever in the property at issue. “Standing is a

threshold determination which is not bestowed simply because the matter sought to be

adjudicated is one of important public concern. Instead, standing requires an actual legal stake in

the outcome of the proceeding/action or, in other words, an injury in fact worthy and capable of

judicial resolution. It is a petitioner’s burden to establish standing.” Matter of LaBarbera v.

Town of Woodstock, 29 A.D.3d 1054 (3d Dept. 2006).

43. The matter of Bancplus Mortgage Corp. v. Galloway, 203 A.D.2d 222 (2d Dept. 1994)

is instructive on the issue of standing. In Bancplus Mortgage Corp., the Plaintiff (Bancplus)

brought a foreclosure against Galloway, one of the record owners of the property. Id. Galloway

did not appear in the underlying foreclosure and the action proceeded to judgment in 1991 and

was sold at a foreclosure sale thereafter. Id. at 222. Prior to the judgment of foreclosure and

sale, Galloway transferred her ownership interest in the property to her son. Id. After

transferring the property to her son, Galloway sought to vacate the judgment of foreclosure and

sale arguing that she was never served. The lower court initially agreed with Galloway, but on

reargument found that Galloway had no standing to contest the judgment or sale because she

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deeded away her ownership interest. The Appellate Court affirmed explaining:

“It is undisputed that Galloway, as a fee owner of the property, was an
indispensable party to the foreclosure action. Since she was never
properly served, the default judgment was not binding upon her.
Nevertheless, since Galloway transferred her entire interest in the subject
property during the pendency of the foreclosure action, she lacked any
standing to challenge the subsequent judgment of foreclosure and sale, or
to otherwise seek redemption of the property”. Id. at 223.
See also, MSMJ Realty LLC v. DLJ Mtge. Capital, Inc., 52 Misc.3d 314, 315 (Kings Co. 2016)

(holding that it has long been the law in New York that a property owner who transfers her

interest in the property to a third party prior to making a motion to vacate an order of reference

or judgment of foreclosure lacks standing because the former property owner is held to have no

interest in the property).

44. The breath of the Hayes Decision did not stop there. The Decision directly addressed and

dispensed with most of the arguments Defendants try to use herein.

45. Specifically, Defendants argue in their motion papers that they were somehow deceived

into conveying the property to MM2 under the belief that MM2 through its member, Mr. Milea,

orally agreed to assume the von der Lieth mortgage. See Faringer Aff ¶ 20; Leonaggeo Aff at

¶¶ 17 -21. However, Judge Hayes already held that the grounds for that argument were

procedurally defective being raised for the first time in a cross-motion. Notwithstanding, he

directly addressed the merits anyway. Citing to GOL 5-705, Judge Hayes correctly held that

“an assumption of mortgage debt must be executed and acknowledged before an officer

authorized to take an acknowledgement of deeds, must contain a statement that the grantee

assumes and agrees to pay such mortgage and must specifically identify the amount of debt

assumed”. Hayes Decision pg. 20. Hayes found that there was no evidence of any intent to

assume the mortgage.

46. Based on the doctrine of res judicata, this Court should not entertain any of Defendants’

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attempts to argue the same issues decided by Judge Hayes. The general doctrine of res

judicata gives binding effect to the judgment of a court of competent jurisdiction and prevents

the parties to an action, and those in privity with them, from subsequently relitigating any

questions that were necessarily decided therein. Serio v. Town of Islip, 87 A.D.3d 533, 927

N.Y.S.2d 793 (2d Dept. 2011), citing Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8,

13, 892 N.E.2d 380, 862 N.Y.S.2d 316 (2008), quoting Matter of Grainger [Shea Enters.], 309

N.Y. 605, 616, 132 N.E.2d 864 (1956). Under New York's transactional approach to res

judicata, once a claim is brought to a final conclusion, all other claims arising out of the same

transaction or series of transactions are barred, even if based on different theories or seeking a

different remedy. Id. at 533-534, quoting O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 429

N.E.2d 1158, 445 N.Y.S.2d 687 (1981).

II. DEFENDANTS HAVE NO GROUNDS FOR A STAY PENDING AN APPEAL
WHICH HAS NOT OCCURRED AND RELATES TO AN UNRELATED MATTER.
47. Defendants simply ask this Court to stay MM2’s cross claim pending the upcoming

appeal. See Faringer Aff ¶ 10. It is unclear if this request is extended to von der Lieth’s

foreclosure so Plaintiff will address it briefly.

48. Defendants cite to absolutely no authority and have no basis to stay this matter pending

an appeal in a completely unrelated matter.

49. Even if they did, such an application would have to be brought on a separate motion

pursuant to CPLR § 5519 or some other authority (CPLR § 2201) and it would have to be

brought in the court of original instance. CPLR § 5519(c). Further, Defendants would have to

post a substantial undertaking in accordance with CPLR § 5519(d).

50. Moreover, Plaintiff could find no authority to justify a stay of von der Lieth’s foreclosure

pending the outcome of an unrelated appeal in a different case. The Quiet Title Action is over;

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Defendants have been divested of their ownership interest in the Property at issue. There is

actually no appeal pending at this point and the Quiet Title Action has absolutely nothing to do

with von der Lieth’s right to foreclose. To put it plainly, even if Defendants were to

theoretically win on this hypothetical appeal, it would restore their ownership in the Property

but, would have no effect on von der Lieth’s right to foreclose. The Court should disregard

Defendants’ improper and procedurally defective request for any stay.

III. DEFENDANTS HAVE NOT SET FORTH A BASIS TO DISMISS PURSUANT TO
CPLR §3211(A)(1) AND (7).
51. Once again, without stating any legal standard whatsoever Defendants assert in a

conclusory fashion that: “For all of these reasons, it is clear that Plaintiff has failed to state a

cause of action and a defense is founded upon documentary evidence. Therefore, the case

against Defendants must be dismissed, pursuant to CPLR 3211(a)(1) and CPLR 3211(a)(7)”.

See Faringer Aff ¶ 25.

52. The legal standard is as follows: In considering a motion to dismiss a complaint

pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true,

accord plaintiffs the benefit of every possible favorable inference, and determine only whether

the facts as alleged fit within any cognizable legal theory. Mawere v. Landau, 130 A.D.3d 986,

988 (2d Dept. 2015). A motion to dismiss a complaint on the ground that the action is barred by

documentary evidence may only be granted where the “documentary evidence utterly refutes

the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of

law”. Id. at 987. Defendants have failed to meet this standard.

53. Plaintiff is seeking the remedy of foreclosure. It is undisputed that Defendants borrowed

money, they signed a Note, and they provided a mortgage to secure their promise to pay back

the Note. It is undisputed that Defendants failed to pay the Note. It is well settled that in

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providing the Note, mortgage and evidence of default, von der Lieth has demonstrated prima

facie entitlement to his right to foreclose. See Paterson v. Rodney, 285 AD.2d 453,454 (2d.

Dept. 2001) (“The plaintiffs established their entitlement to judgment as a matter of law by

producing the mortgage and mortgage note, along with evidence of default by the appellant.”)

Defendants seek to dismiss on the basis of alleged fraudulent inducement and provide the letter

agreement as documentary evidence. But as set forth above, the letter agreement was entirely

moot, as Defendants breached the terms of their mortgage and sold the property without von der

Lieth’s consent, making their cooperation in any subdivision impossible.

54. Although absolutely absurd, we are compelled to also address the completely false

allegation that “there was direct contact between Mr. Milea and von der Lieth regarding this

matter.” See Leonaggeo Aff ¶ 19. As established in the accompanying affidavit of Richard von

der Lieth, Mr. von der Leith and Mr. Milea, member of MM2, did not know each other, nor had

they ever communicated with each other during the time when MM2 purchased the Property.

55. Defendants provide an impermissible version of “facts” in support of their theory. As

discussed above, essentially all of those arguments were dispensed with by Judge Hayes.

Ignoring his ruling, Defendants reargue the same deceptive theory and same irrelevant facts to

this Court.

56. Finally, it is worth noting that Defendants appear to raise a laches defense, explaining

that they were shocked that von der Lieth would bring a foreclosure action against them five

years after the maturity date. Leonaggeo Aff ¶ 22, Faringer Aff ¶ 20.

57. While Defendants do not frame this as a legal argument, Plaintiff will give it brief

attention to conclude the matter. The doctrine of laches is not available in a foreclosure action

brought within the period of limitations. New York State Mortgage Loan Enforcement &

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Admin. Corp. v. North Town Phase II House, Inc., 191 A.D.2d 151, 152 (1st Dept. 1993);

WHEREFORE, it is respectfully requested that Plaintiff’s motion for default and summary

judgment be granted in its entirety, Defendants’ cross-motion be denied in its entirety and that

the Court award such other and further relief as se

Case Info

Judge

Maria G Rosa Track Judge’s New Case

Case No.

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Document Filed Date

January 26, 2022

Case Filing Date

April 21, 2021

County

Parties

Barbara Giordano a/k/a Barbara Leonaggeo a/k/a Barbara Giordano-Leonaggeo Defendant
CARLINI, ANTHONY CARLOS Attorney for the Plaintiff
Catania, Mahon, Milligram & Rider, PLLC Defendant
EALY, DAVID H. Attorney for the Defendant
HAGSTROM, KAREN E Attorney for the Defendant
H&L Equine, LLC Defendant
Jack Giordano Defendant
Jane Doe 1-10 Defendant
John Doe 1-10 Defendant
John Doe 1-10 and Jane Doe 1-10, as possible heirs and distributees of the interest of Jack Giordano, if deceased Defendant
m-m2 RE Holdings 4, LLC Defendant
Portfolio Recovery Associates, LLC Defendant
Razor Capital II, LLC a/p/o Credit One Bank, N.A. Defendant
Richard Von der lieth Plaintiff
Roger Leonaggeo Defendant
STENGER, KENNETH M. Attorney for the Defendant
DONALD CAPPILLINO Attorney
CARA AHOLA Attorney
MITCHELL STENGER Attorney
MIKAEL STENSTROM Attorney
GUNILLA PEREZ-FARINGER Attorney
SEAN LEYDEN Attorney
MICHAEL FAKHOURY Attorney
REBECCA MANTELLO Attorneys for Defendants
KENNETH ROTH Attorney
SHANE EGAN Attorney
JORDAN HAUG Attorney
LEWIS WROBEL Attorney

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