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FILED: DUTCHESS COUNTY CLERK 07/11/2022 09:54 AM INDEX NO. 2021-51452
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 07/11/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
___-----------_______----______________Ç
RICHARD VON DER LIETH, Index No.: 2021-51452
Plaintiff, NOTICE OF ENTRY
-against-
BARBARA GIORDANO A/K/A BARBARA Assigned Judge:
LEONAGGEO A/K/A BARBARA GIORDANO- Hon. Maria G. Rosa
LEONAGGEO, ROGER LEONAGGEO, M-M2 RE Justice of the Supreme Court
HOLDINGS 4, LLC, PORTFOLIO RECOVERY
ASSOCIATES, LLC, RAZOR CAPITAL II,LLC
A/P/O CREDIT ONE BANK, N.A., CATANIA,
MAHON, MILLIGRAM & RIDER, PLLC,
Defendants.
---------------------______________________Ç
PLEASE TAKE NOTICE, that the within is a true copy of a DECISION AND ORDER
of the Hon. Maria G. Rosa dated July 5, 2022 and entered in the Office of the Clerk of the within
named Court on July 6, 2022.
Dated: Poughkeepsie, New York
July 11, 2022
Yours, etc.
HANDEL & CARL I, LLP
By:
Anthon C. Carlini, Jr.,Esq.
Attorneys for Plaintiff
1984 New Hackensack Road
Poughkeepsie, New York 12603
Tel. No. (845) 454-2221
TO:
Donald Cappillino, Esq., Referee
7 Broad Street
P.O. Box 390
Pawling, New York 12564
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Roger Leonaggeo
150 Homan Road
Stanfordville, NY 12581
Portfolio Recovery Associates, LLC
5425 Robin Hood Road
Norfolk, VA 23513-2441
Razor Capital II,LLC
a/p/o Credit One Bank, N.A.
8000 Norman CN DR860
Bloomington, Minnesota 55437
Catania, Mahon, Milligram
& Rider, PLLC
One Corwin Court
Newburgh, NY 12550
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
Present:
Hon. Maria G. Rosa, Justice
RICHARD VON DER ÙETH,
Plaintiff, .
DECISION AND ORDER
-against-
Index No.:.2021-51452
BARBARA GIORDANO A/KA BARBARA
LEONAGGEO A/K/A BARBARA GIORDANO- Motion Seq.: 1-3
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, MAHÒN,
#1-#10"
MILLIGRAM & RIDER, PLLC, "JOHN DOES
AND "JANE DOE #1-#10", AS POSSIBLE HEIRS AND .
DISTRIBUTEES OF THE INTEREST OF JACK
#1-#10"
GIORDANO, IF DECEASED, "JOHN DOE AND
"JANE DOE #1-#10", said names fictitious parties .
being
intended being possible tenants or occupants of premises,
corporations, other entities or persons who claim, or may
claim, a lien against the premises,
- Defendants.
The following papers were read on (1) Plaintiff's motion for default judgment against
Barbara Giordano a/k/a Barbara Giordano-Leonaggeo, Roger Leonaggeo, Jack Giordano, 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, and summary judgment against M-M2 RE
Holdings 4, LLC; to strike the Answer of M-M2 RE Holdings 4, LLC; to appoint a Referee; and
to amend the caption; (2) on the Cross-Motion of Defendants Barbara Giordano a/k/a Barbara
Giordano-Leonaggeo andRoger Leonaggeo to remove Jack Giordano and H&L Equine, LLC from
the case; dismissing the complaint pursuant to CPLR 321l(a)(1) and 3211(a)(7) for failure to state
a cause of action based upon documentary evidence; declaring the promissory note void; and
staying the cross-claim by Defendant M-M2 RE Holdings 4, LLC pending an appeal; and (3).the
Order to Show Case by Defendants Barbara Giordano a/k/a Barbara Giordano-Leonaggeo and
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Roger Leonaggeo to permit them to submit a letter from Karen E. Hagstrom, Esq. dated October
15, 2021 as a part of their initial motion papers: . .
NOTICE OF MOTION
AFFIRMATION IN SUPPORT
EXHIBITS A - G
AFFIDAVIT IN SUPPORT
STATEMENT OF MATERIA; FACTS
NOTICE OF CROSS-MOTION
AFFIDAVIT IN OPPOSITION AND IN SUPPORT OF CROSS-MOTION
AFFIRMATION IN OPPOSITION AND IN SUPPORT OF CROSS-MOTION
EXHIBITS A - J
AFFIDAVIT IN REPLY AND IN OPPOSITION TO CROSS-MOTION
AFFIRMATION IN REPLY ANI}OPPOSITION TO CROSS-MOTION
EXHIBITS A - C
ORDER TO SHOW CAUSE
AFFIRMATION ŠN SUPPORT .
EXH1BITS A - D
AFFIRMATION IN OPPOSITION TO ORDER TO SHOW CAUSE.
EXHIBIT A
AFFIRMATION IN OPPOSITION TO ORDER TO SHOW CAUSE
Plaintiff brings this action to foreclose on a mortgage which encumbers real property
located at 107 Homan Road, Stanfordville, New York ("the Property"). The Property consists of
approximately 101 acres of vacant land. This particular parcel, as well as others currently or
previously owned by Defendants Barbara Giordano a/k/a. Barbara Leonaggeo a/k/a Barbara
Giordano-Leonaggeo ("Barbara Giordano-Leonaggeo"), Roger Leonaggeo and/or Jack Giordano
have been.the subject matter of various litigation both before this Court (see M-M2 Re Holdings
4, LLCv Barbara Giordano-Leonaggeo, et al,Index No. 2018-50671) and before the Hon. Michael
G. Hayes (see M-M2 Re Holdings 4, LLC v Barbara et al,"Index No. 2018-
Giordano-Leonaggeo,
50671).
On or about December 22, 2015, Defendants Barbara Giordano-Leonaggeo, Roger
"Deceased"
Leonaggeo, Jack Giordano (signed by Maker) and Josephine Giordano (signed
"Deceased"
by Maker) (collectively "Mortgagors"), executed and signed a Promissory Note
("Note") whereby the Mortgagors promised to pay Plaintiff the principal sum of $35,000.00, with .
interest at the rate of 7% per annum. The Note was secured by a Mortgage of the Property. While
neitlier the Note nor the Mortgage specifically include the address of the Property, a property
description is annexed to the Mortgage as Schedule A. The Mortgage was recorded in the Office
of the Dutchess County Clerk on February 3, 2016 as Document No. 01-2016/761 The Note
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matured on December 22, 2016. The Note provides that on the date, all interest
maturity principal,
and other amounts due shall become due and payable. The Note further provides that
immediately
upon a default, the Mortgagors will pay, from the date of such default, interest on the unpaid
balance of principal, interest and other amounts outstanding at a rate equal to the applicable interest
rate per annum plus 12% or at the maximum interest rate which be paid law, whichever is
may by
lower. Plaintiff contends that Mortgagors defaulted and failed to pay back the loan on the maturity
date. Plaintiff further claims that the amount due and owing is the principal sum of $35,000.00
plus applicable interest.
This action was commenced by the filing of a summons and verified complaint April 21,
2021. Issue was joined by Defendant M-M2 Re Holdings 4, LLC ("M-M2") on July 12, 2021 by
the of its verified answer with cross-claim against the Defendants Barbara Giordano-
filing
Leonaggeo and Roger Leonaggeo (callectively the "Leonaggeo Defendants").
On or about October 7, 2021, Plaintiff filed the instant motion for default judgment as
against the non-answering defendants, summary judgment as against M-M2, for the appointment
of a referee, and to amend the caption. On or about October 15, 2021, a notice of appearance was
filed on behalf of the Leonaggeo Defendants. The Court granted the Leonaggeo Defendants two
extensions to respond to the motion. On or about January 5, 2022, the Leonaggeo Defendants filed
a cross-motion to remove Jack Giordano and H&L Equine, LLC from the case; seeking dismissal
of the complaint for failure to state a cause of action based upon documentary evidence; a
declaratory judgment that the promissory note is void; and requesting a stay of the cross-claim by
Defendant M-M2 RE Holdings 4, LLC pending an appeal. After the motions were fully submitted,
the Leonaggeo Defendants filed an order to show cause requesting that the Court consider
additional evidence on the fully submitted motions. Defendant Barbara Giordano-Leonaggeo filed
for Chapter 13 bankruptcy on March 3, 2022. Plaintiff was granted relief from the automatic stay
in connection with the Property, and the automatic stay expired on May 26, 2022.
"[A] plaintiff moving for a default judgment against a defendant must submit proof of
service of the summons and complaint, proof of the facts constituting the claim, and proof of the
answer"
defendants failure to appear or (DLI Mortg. Capital, Inc. v United Gen. Title
defaulting
Ins. Co., 128 AD3d 760, 761 [2d Dept 2015]). To demonstrate the facts constituting the claim,
plaintiff is "required to support their motion for a default judgment with at least enough facts to
exists"
enable the court to determine that a viable cause of action (Resnick v Lebovitz, 28 AD3d
533 [2d Dept [internal quotations and citation omitted]). The plaintiff must proffer the facts
2006]
in either an affidavit or a complaint verified by a party with personal knowledge of the facts (see
Williams v North Shore LIJ Health Sys,, I 19 AD3d 937 [2d Dept 2014]). Where a verified
claim"
complaint has been served, it may be used as the affidavit of the facts constituting the
(CPLR §3215[f]). Moreover, to obtain a default judgment against an individual defendant for an
alleged nonpayment of a contractual obligation, additional notice is required under CPLR
§3215(g)(3). "To oppose a motion for leave to enter a judgment based upon the
successfully
defendants failure to appear or answer in an action, the defendant must demonstrate a reasonable
defense"
excuse for the default and a meritorious (Howard v Proudlove, 269 AD2d 356, 357 [2d
Dept 2000]).
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Here, Plaintiff has submitted affidavits of service demonstrating that the non-answering
individual Defendants were personally served and that the LLC entities were served through the
of State. Plaintiff further submitted affidavits of service evidencing that the additional
Secretary
notice requires of CPLR were satisfied. In addition to the verified complaint, Plaintiff
3215(g)(3)
has submitted an affidavit, together with the Note and Mortgage and attests that the loan has not
been paid.
In opposition to the motion, the Leonaggeo Defendants were required to set forth a
reasonable excuse for their default and a meritorious defense (see Josovich v Ceylan, 133 AD3d
570, 571 [2d Dept 2015]). They do not specifically state either, but itcan be gleaned from their
. papers that the Leonaggeo Defendants claim a reasonable excuse for the delay based upon their
having sent a COVID Hardship Declaration to Plaintiff's counsel, and their belief that M-M2
assumed the mortgage.
While the Leonaggeo Defendants completed a hardship declaration this did not obviate
their obligation to appear or answer. The Court notes that this matter does not involve a residential
foreclosure, but rather vacant land, which was not subject to the restrictions put in place regarding
financial hardships due to COVID. Moreover, the Leonaggeo Defendants litigated the issue of
whether M-M2 assumed the instant mortgage in M-M2 Re Holdings 4, LLC v Barbara Giordano-
Leonaggeo, et al,Index No. 2018-5067L Judge Hayes rejected this argument in his December 10,
2021 Decision and Order. Thus, the Leonaggeo Defendants have failed to demonstrate a
reasonable excuse for their failure answer the complaint.
As for a meritorious defense and in support of their cross-motion to dismiss the compliant
based upon documentary evidence and void the Note, the Leonaggeo Defendants contend that the
Note and Mortgage were obtained by fraudulent inducement.
A motion to dismiss based on documentary evidence will be granted only if the
documentary evidence resolves all factual issues as a matter of law and conclusively disposes of a
plaintiff's claim (see Fontanetta v Doe, 73 AD3d 78 [2d Dept 2010]). To be considered
"documentary"
the evidence must be unambiguous and of undisputed authenticity (see id.).
In order to sustain a cause of action to recover damages for fraud, a party must
prove (1) that the defendant made a representation, (2) as to a material fact, (3)
which is false, (4) and known to be false by the defendant, (5) thatthe representation
was made for the purpose of inducing the other party to rely upon it,(6) that the
other party rightfully did so rely, (7) in ignorance of its falsity,(8) to his injury.
Absent an intent to deceive, mere unfulfilled promissory statements as to what will
be done in the future are not actionable as fraud (Crafton Bldg. Corp. v St. James
Const. Corp., 221 AD2d 407, 408 [2d Dept 1995]).
In support of their claim, the Leonaggeo Defendants submit a Letter Agreement executed
by them and Plaintiff simultaneously with the Note and Mortgage. The Letter Agreement provides
that in the event of a default,. Plaintiff would seek to subdivide the Property and create an
independent parcel of land, and Plaintiff would accept a deed for the parcel for no additional
consideration in lieu of foreclosure. The Letter Agreement requires the Leonaggeo Defendants to
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fully cooperate with Plaintiff in obtaining the subdivision. The Leonaggeo Defendants contend
that they were induced to enter into the Note and Mortgage based upon their that
understanding
Plaintiff would not foreclose on the entire Property based on the Letter Agreement. They further
contend that the Note contains language that voided the Letter Agreement. However, the Letter
Agreement specifically provides that Plaintiff shall have allof its rights and remedies under the
Note, Mortgage, at law or in equity; thus, the Letter Agreement did not invalidate Plaintiff's ability
to foreclose pursuant to the Mortgage. Moreover, prior to the rnaturity date of the Mortgage, the
Leonaggeo Defendants transferred title to the entire parcel to Defendant M-M2. The Leonaggeo
Defendants'
transfer of the Property not only violated the terms of the Mortgage, but also made it
a practical impossibility for Plaintiff to subdivide the Property and accept a deed in lieu of
foreclosure to a smaller parcel. Accordingly, the Leonaggeo Defendants have failed to establish a
meritorious defense to the foreclosure action nor have they presented documentary evidence that
conclusively dispenses with Plaintiff's foreclosure action.
However, Plaintiff does not oppose that part of the Leonaggeo Defendants motion seeking
to remove Jack Giordano and H&L Equine, LLC as defendants. Jack Giordano is deceased and
Defendant Barbara Giordano-Leonaggeo is his sole heir and inherited the Property. Defendant
Barbara Giordano-Leonaggeo attests that H&L Equine, LLC was a partnership created for the
purpose of developing an equine medical facility on the land, however the plans never materialized
and the company is defunct.
Plaintiff next moves for summary judgment on itsforeclosure claim against M-M2.
The proponent of a motion for summary judgment carries the initial burden of tendering
sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of
law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). If a movant has met this threshold
burden, to defeat the motion the opposing party must present the existence of a triable issue of fact
(see Zuckerman v New York, 49 NY2d 557, 562 [1980]). In deciding a motion for summary
judgment, "the trial court must afford the party opposing the motion every inference which may
be properly drawn from the facts presented, and the facts must be considered favorable to the
nonmovant"
(Szczerbiakv Pilat, 90 NY2d 553 [1997]).
In for summary judgment on an action to foreclose a mortgage, a plaintiff
moving
establishes itscase through the production of the mortgage, the unpaid note and evidence of default
(see Central Mortg. Co. v Davis, 149 AD3d 898 [2d Dept 2017]; Wells Fargo Bank, N.A. v
Webster, 61 AD3d 856 [2d Dept 2009]; US. Bank Trust Nat. AssI Tr. v Butti, 16 AD3d 408 [2d
Dept 2005]).
Plaintiff has produced the mortgage, unpaid note and evidence of the default. M-M2 does
not oppose Plaintiff's motion.
Finally, the Leonaggeo Defendants failed to demonstrate that the letter they seek to have
thisCourt consider full submission of the papers was not previously in their possession
following
and available to them. Moreover, even if the Court were to consider the document itdoes not
establish that M-M2 assumed Plaintiff's mortgage.
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Based upon the foregoing, itis hereby
ORDERED that Plaintiff's inotion for default judgment as against Barbara Giordano a/k/a
Barbara Giordano-Leonaggeo, Roger Leonaggeo, Portfolio Recovery Associates, LLC, Razor
Capital II, LLC a/p/o Credit One Bank, N.A., Catania, Mahon, Milligram & Rider, PLLC is
granted; and itis further
ORDERED that Plaintiff's motion for summary judgment against.Defendant M-M2 RE
Holdings LLC is granted and their Answer is stricken; however, their Cross-Claim against
4,
Defendants Barbara Giordano a/k/a Barbara Giordano-Leonaggeo and Roger Leonaggeo remains;
and itis further
ORDERED that Defendants Barbara Giordano a/k/a Barbara ·Giordano-Leonaggeo and
Roger Leonaggeo's motion is granted in part in that the claims against Jack Giordano and H&L
LLC are dismissed, and denied in all other respects; and itis further
Equine,
ORDERED that Defendants Barbara Giordano a/k/a Barbara Giordano-Leonaggeo and
Roger Leonaggeo's Order to Show Cause is denied in its entirety; and itis further
ORDERED that Plaintiff's motion to amend the caption to remove the John Doe
Defendants is granted; and itis further
ORDERED that the caption of the action is amended as follows:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
RICHARD VON DER LIETH,
Plaintiff,
.
against-
BARBARA LEONAGGEO -
BARBARA GIORDANO A/KA
A/K/A BARBARA GIORDANO-LEONAGGEO, ROGER
M-M2 RE HOLDINGS 4, LLC, PORTFOLIO
LEÓNAGGEO,
RECOVERY ASSOCIATES, LLC, RAZOR CAPITAL II,LLC
A/P/O CREDIT ONE BANK, N.A., CATANIA, MAHON,
MILLIGRAM & RIDER, PLLC,
Defendants.
And itis further .
with an address of 7 Broad Street,
ORDERED that Donald Cappillino, Esq., #145538,
appointed in accordance
PO Box 390, Pawling, NY 12564, 845-855-5444 is hereby Referee,
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with RPAPL §1321, to compute the amount due to Plaintiff and to examine whether the mortgaged
property maybe sold in parcels; and itis further . .
ORDERED that the Referee make his computation and report with allconvenient speed;
and itis further
ORDERED that, ifnecessary, the Referee may take testimony pursuant to RPAPL 91321;
and itis further.
ORDERED that pursuant to 22 NYCRR §36.1, the·Referee shall be subject to Part 36 of
the Rules of the Chief Judge; and itis further
ORDERED that by accepting thisappointment the attorney certifies he is familiar with the
duties and responsibilities of the appointment and has experience in such area, and is fully capable
and prepared to assume those duties and responsibilities which are commensurate with his abilities;
and itis further
ORDERED that attorneys or support staffin the Referee's office may perform tasks under
-the Referee's direct supervision (unless otherwise 'directed by the court) but all substantive
appearances and reports must be performed and/or created by the Referee and itis further
ORDERED that ifthe Referee's fees are anticipated to exceed $1,10.0.00, the Referee must
apply by letterto the court for approval of such fees, and the Referee must comply with 22 NYCRR
§36.4, before such fees can be paid; and itis further
ORDERED that Plaintiff is authorized to the referee fees in excess of $1,100.00
only pay
upon receipt of an order the court authorizing such payment; and itis further
by
ORDERED that the of titleshall take place at the office of the Referee or at such
closing
other location as the Referee shall determine, following a judgment of foreclosure and sale, within
forty-five days after such sale unless otherwise stipulated all parties, The Referee shall transfer
by
title to the su cessful bidder at the auction. Any delay or adjournment of the closing date
only
beyond forty-five days be stipulated the parties, with the Referee's consent, up to
may among
days from the date of but adjournments beyond ninety days may be setonly with
ninety sale, any
the approval of this court; and itis further
ORDERED that Plaintiff's counsel shall submit a proposed Judgment of Foreclosure and
Sale within 90 days; and itis further
ORDERED that this appointment the Referee certifies tliathe is in compliance
by accepting
of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to
with Part 36
("Disqualifications from appointment"), and ("Limitations on appointments
§36.2(c) §36.2(d)
compensation"),· ifthe Referee is disqualified from receiving an appointment
based upon and,
pursuant to the provisions of the Rule, the Referee shall immediately notify the Apljointing Judge;
and itis further
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ORDERED that pursuant to CPLR 8003(a) a fee of $500.00, shall be paid to the Referee . .
for the computation of the amount due and upon $500.00 upon sale and $100.00 upon the filing of .
the surplus money fonn and the Referee shall not request or accept additional compensation for
the computation unless ithas been fixed the court in accordance with CPLR
by 8003(a); and it is
further
ORDERED that the Referee is prohibited from accepting. or funds for
retaining any
himself or paying funds to himself without compliance with Part 36 of the Rules of the Chief
Admimstrative Judge.
The foregoing coIstitutes the..decision and order of the Court.
Dated:1biÏ5 ,2022 .
Poughkeepsie, New York
ENTER: .
..
MARIA G. ROSA, J.S.C.
Scanned to the E-File System only .
Pursuant to CPLR §5513, an appeal as of right must be.taken withiri thirty days after service by a
upon the appellant of a of the judgment or order appealed from and written notice of .
party copy
its entry, except that when the appellant has served a copy of the judgment or order and written
notice of itsentry, the appeal must be taken within thirty days thereof. .
. Handel & Carlini, LLP
1984 New Hackensack Road ·
Poughkeepsie, NY 12603
Barbara Giordano Leonaggeo
150 Horman Road
Stanfordville, NY 12584
Stenger, Diamond & Glass, LLP
1136 Route 9 .
. Wappingers Falls,NY 12590 .
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FILED: DUTCHESS COUNTY CLERK 07/11/2022 09:54 AM INDEX NO. 2021-51452 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 07/11/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ___-----------_______----______________Ç RICHARD VON DER LIETH, Index No.: 2021-51452 Plaintiff, NOTICE OF ENTRY -against- BARBARA GIORDANO A/K/A BARBARA Assigned Judge: LEONAGGEO A/K/A BARBARA GIORDANO- Hon. Maria G. Rosa LEONAGGEO, ROGER LEONAGGEO, M-M2 RE Justice of the Supreme Court HOLDINGS 4, LLC, PORTFOLIO RECOVERY ASSOCIATES, LLC, RAZOR CAPITAL II,LLC A/P/O CREDIT ONE BANK, N.A., CATANIA, MAHON, MILLIGRAM & RIDER, PLLC, Defendants. ---------------------______________________Ç PLEASE TAKE NOTICE, that the within is a true copy of a DECISION AND ORDER of the Hon. Maria G. Rosa dated July 5, 2022 and entered in the Office of the Clerk of the within named Court on July 6, 2022. Dated: Poughkeepsie, New York July 11, 2022 Yours, etc. HANDEL & CARL I, LLP By: Anthon C. Carlini, Jr.,Esq. Attorneys for Plaintiff 1984 New Hackensack Road Poughkeepsie, New York 12603 Tel. No. (845) 454-2221 TO: Donald Cappillino, Esq., Referee 7 Broad Street P.O. Box 390 Pawling, New York 12564 1 1 of 10 FILED: DUTCHESS COUNTY CLERK 07/11/2022 09:54 AM INDEX NO. 2021-51452 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 07/11/2022 Roger Leonaggeo 150 Homan Road Stanfordville, NY 12581 Portfolio Recovery Associates, LLC 5425 Robin Hood Road Norfolk, VA 23513-2441 Razor Capital II,LLC a/p/o Credit One Bank, N.A. 8000 Norman CN DR860 Bloomington, Minnesota 55437 Catania, Mahon, Milligram & Rider, PLLC One Corwin Court Newburgh, NY 12550 2 2 of 10 FILED: DUTCHESS COUNTY CLERK 07/11/2022 09:54 AM INDEX NO. 2021-51452 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 07/11/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS Present: Hon. Maria G. Rosa, Justice RICHARD VON DER ÙETH, Plaintiff, . DECISION AND ORDER -against- Index No.:.2021-51452 BARBARA GIORDANO A/KA BARBARA LEONAGGEO A/K/A BARBARA GIORDANO- Motion Seq.: 1-3 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, MAHÒN, #1-#10" MILLIGRAM & RIDER, PLLC, "JOHN DOES AND "JANE DOE #1-#10", AS POSSIBLE HEIRS AND . DISTRIBUTEES OF THE INTEREST OF JACK #1-#10" GIORDANO, IF DECEASED, "JOHN DOE AND "JANE DOE #1-#10", said names fictitious parties . being intended being possible tenants or occupants of premises, corporations, other entities or persons who claim, or may claim, a lien against the premises, - Defendants. The following papers were read on (1) Plaintiff's motion for default judgment against Barbara Giordano a/k/a Barbara Giordano-Leonaggeo, Roger Leonaggeo, Jack Giordano, 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, and summary judgment against M-M2 RE Holdings 4, LLC; to strike the Answer of M-M2 RE Holdings 4, LLC; to appoint a Referee; and to amend the caption; (2) on the Cross-Motion of Defendants Barbara Giordano a/k/a Barbara Giordano-Leonaggeo andRoger Leonaggeo to remove Jack Giordano and H&L Equine, LLC from the case; dismissing the complaint pursuant to CPLR 321l(a)(1) and 3211(a)(7) for failure to state a cause of action based upon documentary evidence; declaring the promissory note void; and staying the cross-claim by Defendant M-M2 RE Holdings 4, LLC pending an appeal; and (3).the Order to Show Case by Defendants Barbara Giordano a/k/a Barbara Giordano-Leonaggeo and 1 of 8 3 of 10 FILED: DUTCHESS COUNTY CLERK 07/11/2022 09:54 AM INDEX NO. 2021-51452 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 07/11/2022 Roger Leonaggeo to permit them to submit a letter from Karen E. Hagstrom, Esq. dated October 15, 2021 as a part of their initial motion papers: . . NOTICE OF MOTION AFFIRMATION IN SUPPORT EXHIBITS A - G AFFIDAVIT IN SUPPORT STATEMENT OF MATERIA; FACTS NOTICE OF CROSS-MOTION AFFIDAVIT IN OPPOSITION AND IN SUPPORT OF CROSS-MOTION AFFIRMATION IN OPPOSITION AND IN SUPPORT OF CROSS-MOTION EXHIBITS A - J AFFIDAVIT IN REPLY AND IN OPPOSITION TO CROSS-MOTION AFFIRMATION IN REPLY ANI}OPPOSITION TO CROSS-MOTION EXHIBITS A - C ORDER TO SHOW CAUSE AFFIRMATION ŠN SUPPORT . EXH1BITS A - D AFFIRMATION IN OPPOSITION TO ORDER TO SHOW CAUSE. EXHIBIT A AFFIRMATION IN OPPOSITION TO ORDER TO SHOW CAUSE Plaintiff brings this action to foreclose on a mortgage which encumbers real property located at 107 Homan Road, Stanfordville, New York ("the Property"). The Property consists of approximately 101 acres of vacant land. This particular parcel, as well as others currently or previously owned by Defendants Barbara Giordano a/k/a. Barbara Leonaggeo a/k/a Barbara Giordano-Leonaggeo ("Barbara Giordano-Leonaggeo"), Roger Leonaggeo and/or Jack Giordano have been.the subject matter of various litigation both before this Court (see M-M2 Re Holdings 4, LLCv Barbara Giordano-Leonaggeo, et al,Index No. 2018-50671) and before the Hon. Michael G. Hayes (see M-M2 Re Holdings 4, LLC v Barbara et al,"Index No. 2018- Giordano-Leonaggeo, 50671). On or about December 22, 2015, Defendants Barbara Giordano-Leonaggeo, Roger "Deceased" Leonaggeo, Jack Giordano (signed by Maker) and Josephine Giordano (signed "Deceased" by Maker) (collectively "Mortgagors"), executed and signed a Promissory Note ("Note") whereby the Mortgagors promised to pay Plaintiff the principal sum of $35,000.00, with . interest at the rate of 7% per annum. The Note was secured by a Mortgage of the Property. While neitlier the Note nor the Mortgage specifically include the address of the Property, a property description is annexed to the Mortgage as Schedule A. The Mortgage was recorded in the Office of the Dutchess County Clerk on February 3, 2016 as Document No. 01-2016/761 The Note 2 2 of 8 4 of 10 FILED: DUTCHESS COUNTY CLERK 07/11/2022 09:54 AM INDEX NO. 2021-51452 h NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 07/11/2022 FILED : DUTCHESS COUNTY CLER -TxTod/2ofr-1 : 30 PM h 2u2141e2 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/05/2022 matured on December 22, 2016. The Note provides that on the date, all interest maturity principal, and other amounts due shall become due and payable. The Note further provides that immediately upon a default, the Mortgagors will pay, from the date of such default, interest on the unpaid balance of principal, interest and other amounts outstanding at a rate equal to the applicable interest rate per annum plus 12% or at the maximum interest rate which be paid law, whichever is may by lower. Plaintiff contends that Mortgagors defaulted and failed to pay back the loan on the maturity date. Plaintiff further claims that the amount due and owing is the principal sum of $35,000.00 plus applicable interest. This action was commenced by the filing of a summons and verified complaint April 21, 2021. Issue was joined by Defendant M-M2 Re Holdings 4, LLC ("M-M2") on July 12, 2021 by the of its verified answer with cross-claim against the Defendants Barbara Giordano- filing Leonaggeo and Roger Leonaggeo (callectively the "Leonaggeo Defendants"). On or about October 7, 2021, Plaintiff filed the instant motion for default judgment as against the non-answering defendants, summary judgment as against M-M2, for the appointment of a referee, and to amend the caption. On or about October 15, 2021, a notice of appearance was filed on behalf of the Leonaggeo Defendants. The Court granted the Leonaggeo Defendants two extensions to respond to the motion. On or about January 5, 2022, the Leonaggeo Defendants filed a cross-motion to remove Jack Giordano and H&L Equine, LLC from the case; seeking dismissal of the complaint for failure to state a cause of action based upon documentary evidence; a declaratory judgment that the promissory note is void; and requesting a stay of the cross-claim by Defendant M-M2 RE Holdings 4, LLC pending an appeal. After the motions were fully submitted, the Leonaggeo Defendants filed an order to show cause requesting that the Court consider additional evidence on the fully submitted motions. Defendant Barbara Giordano-Leonaggeo filed for Chapter 13 bankruptcy on March 3, 2022. Plaintiff was granted relief from the automatic stay in connection with the Property, and the automatic stay expired on May 26, 2022. "[A] plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the answer" defendants failure to appear or (DLI Mortg. Capital, Inc. v United Gen. Title defaulting Ins. Co., 128 AD3d 760, 761 [2d Dept 2015]). To demonstrate the facts constituting the claim, plaintiff is "required to support their motion for a default judgment with at least enough facts to exists" enable the court to determine that a viable cause of action (Resnick v Lebovitz, 28 AD3d 533 [2d Dept [internal quotations and citation omitted]). The plaintiff must proffer the facts 2006] in either an affidavit or a complaint verified by a party with personal knowledge of the facts (see Williams v North Shore LIJ Health Sys,, I 19 AD3d 937 [2d Dept 2014]). Where a verified claim" complaint has been served, it may be used as the affidavit of the facts constituting the (CPLR §3215[f]). Moreover, to obtain a default judgment against an individual defendant for an alleged nonpayment of a contractual obligation, additional notice is required under CPLR §3215(g)(3). "To oppose a motion for leave to enter a judgment based upon the successfully defendants failure to appear or answer in an action, the defendant must demonstrate a reasonable defense" excuse for the default and a meritorious (Howard v Proudlove, 269 AD2d 356, 357 [2d Dept 2000]). 3 3 of 8 5 of 10 FILED: DUTCHESS COUNTY CLERK 07/11/2022 09:54 AM INDEX NO. 2021-51452 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 07/11/2022 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07 /05 /2022 Here, Plaintiff has submitted affidavits of service demonstrating that the non-answering individual Defendants were personally served and that the LLC entities were served through the of State. Plaintiff further submitted affidavits of service evidencing that the additional Secretary notice requires of CPLR were satisfied. In addition to the verified complaint, Plaintiff 3215(g)(3) has submitted an affidavit, together with the Note and Mortgage and attests that the loan has not been paid. In opposition to the motion, the Leonaggeo Defendants were required to set forth a reasonable excuse for their default and a meritorious defense (see Josovich v Ceylan, 133 AD3d 570, 571 [2d Dept 2015]). They do not specifically state either, but itcan be gleaned from their . papers that the Leonaggeo Defendants claim a reasonable excuse for the delay based upon their having sent a COVID Hardship Declaration to Plaintiff's counsel, and their belief that M-M2 assumed the mortgage. While the Leonaggeo Defendants completed a hardship declaration this did not obviate their obligation to appear or answer. The Court notes that this matter does not involve a residential foreclosure, but rather vacant land, which was not subject to the restrictions put in place regarding financial hardships due to COVID. Moreover, the Leonaggeo Defendants litigated the issue of whether M-M2 assumed the instant mortgage in M-M2 Re Holdings 4, LLC v Barbara Giordano- Leonaggeo, et al,Index No. 2018-5067L Judge Hayes rejected this argument in his December 10, 2021 Decision and Order. Thus, the Leonaggeo Defendants have failed to demonstrate a reasonable excuse for their failure answer the complaint. As for a meritorious defense and in support of their cross-motion to dismiss the compliant based upon documentary evidence and void the Note, the Leonaggeo Defendants contend that the Note and Mortgage were obtained by fraudulent inducement. A motion to dismiss based on documentary evidence will be granted only if the documentary evidence resolves all factual issues as a matter of law and conclusively disposes of a plaintiff's claim (see Fontanetta v Doe, 73 AD3d 78 [2d Dept 2010]). To be considered "documentary" the evidence must be unambiguous and of undisputed authenticity (see id.). In order to sustain a cause of action to recover damages for fraud, a party must prove (1) that the defendant made a representation, (2) as to a material fact, (3) which is false, (4) and known to be false by the defendant, (5) thatthe representation was made for the purpose of inducing the other party to rely upon it,(6) that the other party rightfully did so rely, (7) in ignorance of its falsity,(8) to his injury. Absent an intent to deceive, mere unfulfilled promissory statements as to what will be done in the future are not actionable as fraud (Crafton Bldg. Corp. v St. James Const. Corp., 221 AD2d 407, 408 [2d Dept 1995]). In support of their claim, the Leonaggeo Defendants submit a Letter Agreement executed by them and Plaintiff simultaneously with the Note and Mortgage. The Letter Agreement provides that in the event of a default,. Plaintiff would seek to subdivide the Property and create an independent parcel of land, and Plaintiff would accept a deed for the parcel for no additional consideration in lieu of foreclosure. The Letter Agreement requires the Leonaggeo Defendants to 4 4 of 8 6 of 10 FILED: DUTCHESS COUNTY CLERK 07/11/2022 09:54 AM INDEX NO. 2021-51452 NYSCEF DOC. NO. 100 30 RECEIVED NYSCEF: 2 2 21 C2 07/11/2022 }FILED : DUTCHESS COUNTY CLERK 07 / 0 6 / 2022 12 : RECE IVE D NYSCEF: 07/05/2022 NYS'CEF DOC. NO. 99 fully cooperate with Plaintiff in obtaining the subdivision. The Leonaggeo Defendants contend that they were induced to enter into the Note and Mortgage based upon their that understanding Plaintiff would not foreclose on the entire Property based on the Letter Agreement. They further contend that the Note contains language that voided the Letter Agreement. However, the Letter Agreement specifically provides that Plaintiff shall have allof its rights and remedies under the Note, Mortgage, at law or in equity; thus, the Letter Agreement did not invalidate Plaintiff's ability to foreclose pursuant to the Mortgage. Moreover, prior to the rnaturity date of the Mortgage, the Leonaggeo Defendants transferred title to the entire parcel to Defendant M-M2. The Leonaggeo Defendants' transfer of the Property not only violated the terms of the Mortgage, but also made it a practical impossibility for Plaintiff to subdivide the Property and accept a deed in lieu of foreclosure to a smaller parcel. Accordingly, the Leonaggeo Defendants have failed to establish a meritorious defense to the foreclosure action nor have they presented documentary evidence that conclusively dispenses with Plaintiff's foreclosure action. However, Plaintiff does not oppose that part of the Leonaggeo Defendants motion seeking to remove Jack Giordano and H&L Equine, LLC as defendants. Jack Giordano is deceased and Defendant Barbara Giordano-Leonaggeo is his sole heir and inherited the Property. Defendant Barbara Giordano-Leonaggeo attests that H&L Equine, LLC was a partnership created for the purpose of developing an equine medical facility on the land, however the plans never materialized and the company is defunct. Plaintiff next moves for summary judgment on itsforeclosure claim against M-M2. The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). If a movant has met this threshold burden, to defeat the motion the opposing party must present the existence of a triable issue of fact (see Zuckerman v New York, 49 NY2d 557, 562 [1980]). In deciding a motion for summary judgment, "the trial court must afford the party opposing the motion every inference which may be properly drawn from the facts presented, and the facts must be considered favorable to the nonmovant" (Szczerbiakv Pilat, 90 NY2d 553 [1997]). In for summary judgment on an action to foreclose a mortgage, a plaintiff moving establishes itscase through the production of the mortgage, the unpaid note and evidence of default (see Central Mortg. Co. v Davis, 149 AD3d 898 [2d Dept 2017]; Wells Fargo Bank, N.A. v Webster, 61 AD3d 856 [2d Dept 2009]; US. Bank Trust Nat. AssI Tr. v Butti, 16 AD3d 408 [2d Dept 2005]). Plaintiff has produced the mortgage, unpaid note and evidence of the default. M-M2 does not oppose Plaintiff's motion. Finally, the Leonaggeo Defendants failed to demonstrate that the letter they seek to have thisCourt consider full submission of the papers was not previously in their possession following and available to them. Moreover, even if the Court were to consider the document itdoes not establish that M-M2 assumed Plaintiff's mortgage. 5 5 of 8 7 of 10 FILED: DUTCHESS COUNTY CLERK 07/11/2022 09:54 AM INDEX NO. 2021-51452 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 07/11/2022 NY SCE F DOC . No . 99 RECEIVED NYSCE F : 07/0 5 /2022 Based upon the foregoing, itis hereby ORDERED that Plaintiff's inotion for default judgment as against Barbara Giordano a/k/a Barbara Giordano-Leonaggeo, Roger Leonaggeo, Portfolio Recovery Associates, LLC, Razor Capital II, LLC a/p/o Credit One Bank, N.A., Catania, Mahon, Milligram & Rider, PLLC is granted; and itis further ORDERED that Plaintiff's motion for summary judgment against.Defendant M-M2 RE Holdings LLC is granted and their Answer is stricken; however, their Cross-Claim against 4, Defendants Barbara Giordano a/k/a Barbara Giordano-Leonaggeo and Roger Leonaggeo remains; and itis further ORDERED that Defendants Barbara Giordano a/k/a Barbara ·Giordano-Leonaggeo and Roger Leonaggeo's motion is granted in part in that the claims against Jack Giordano and H&L LLC are dismissed, and denied in all other respects; and itis further Equine, ORDERED that Defendants Barbara Giordano a/k/a Barbara Giordano-Leonaggeo and Roger Leonaggeo's Order to Show Cause is denied in its entirety; and itis further ORDERED that Plaintiff's motion to amend the caption to remove the John Doe Defendants is granted; and itis further ORDERED that the caption of the action is amended as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS RICHARD VON DER LIETH, Plaintiff, . against- BARBARA LEONAGGEO - BARBARA GIORDANO A/KA A/K/A BARBARA GIORDANO-LEONAGGEO, ROGER M-M2 RE HOLDINGS 4, LLC, PORTFOLIO LEÓNAGGEO, RECOVERY ASSOCIATES, LLC, RAZOR CAPITAL II,LLC A/P/O CREDIT ONE BANK, N.A., CATANIA, MAHON, MILLIGRAM & RIDER, PLLC, Defendants. And itis further . with an address of 7 Broad Street, ORDERED that Donald Cappillino, Esq., #145538, appointed in accordance PO Box 390, Pawling, NY 12564, 845-855-5444 is hereby Referee, 6 f 8 8 of 10 FILED: DUTCHESS COUNTY CLERK 07/11/2022 09:54 AM INDEX NO. 2021-51452 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 07/11/2022 FI1,ED : DUTCHESS COUNTY .CLERK 07/06/2022 12:30 P NYSCEF DOC. NO. 99 . RECEIVED NYSCEF: 07/05/2022 with RPAPL §1321, to compute the amount due to Plaintiff and to examine whether the mortgaged property maybe sold in parcels; and itis further . . ORDERED that the Referee make his computation and report with allconvenient speed; and itis further ORDERED that, ifnecessary, the Referee may take testimony pursuant to RPAPL 91321; and itis further. ORDERED that pursuant to 22 NYCRR §36.1, the·Referee shall be subject to Part 36 of the Rules of the Chief Judge; and itis further ORDERED that by accepting thisappointment the attorney certifies he is familiar with the duties and responsibilities of the appointment and has experience in such area, and is fully capable and prepared to assume those duties and responsibilities which are commensurate with his abilities; and itis further ORDERED that attorneys or support staffin the Referee's office may perform tasks under -the Referee's direct supervision (unless otherwise 'directed by the court) but all substantive appearances and reports must be performed and/or created by the Referee and itis further ORDERED that ifthe Referee's fees are anticipated to exceed $1,10.0.00, the Referee must apply by letterto the court for approval of such fees, and the Referee must comply with 22 NYCRR §36.4, before such fees can be paid; and itis further ORDERED that Plaintiff is authorized to the referee fees in excess of $1,100.00 only pay upon receipt of an order the court authorizing such payment; and itis further by ORDERED that the of titleshall take place at the office of the Referee or at such closing other location as the Referee shall determine, following a judgment of foreclosure and sale, within forty-five days after such sale unless otherwise stipulated all parties, The Referee shall transfer by title to the su cessful bidder at the auction. Any delay or adjournment of the closing date only beyond forty-five days be stipulated the parties, with the Referee's consent, up to may among days from the date of but adjournments beyond ninety days may be setonly with ninety sale, any the approval of this court; and itis further ORDERED that Plaintiff's counsel shall submit a proposed Judgment of Foreclosure and Sale within 90 days; and itis further ORDERED that this appointment the Referee certifies tliathe is in compliance by accepting of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to with Part 36 ("Disqualifications from appointment"), and ("Limitations on appointments §36.2(c) §36.2(d) compensation"),· ifthe Referee is disqualified from receiving an appointment based upon and, pursuant to the provisions of the Rule, the Referee shall immediately notify the Apljointing Judge; and itis further 7 . 7 of 8 9 of 10 FILED: DUTCHESS COUNTY CLERK 07/11/2022 09:54 AM INDEX NO. 2021-51452 NYSCEF FILED DOC. : NO. 100 - DUTCHESS COUNTY CLERK 07/0E72022 12 : 30-PM| RECEIVED ""^ NYSCEF: 21 "2 07/11/2022 NYSC1F .DOC. NO. 99 RECEIVED NYSCEF: 07/05/2022 ORDERED that pursuant to CPLR 8003(a) a fee of $500.00, shall be paid to the Referee . . for the computation of the amount due and upon $500.00 upon sale and $100.00 upon the filing of . the surplus money fonn and the Referee shall not request or accept additional compensation for the computation unless ithas been fixed the court in accordance with CPLR by 8003(a); and it is further ORDERED that the Referee is prohibited from accepting. or funds for retaining any himself or paying funds to himself without compliance with Part 36 of the Rules of the Chief Admimstrative Judge. The foregoing coIstitutes the..decision and order of the Court. Dated:1biÏ5 ,2022 . Poughkeepsie, New York ENTER: . .. MARIA G. ROSA, J.S.C. Scanned to the E-File System only . Pursuant to CPLR §5513, an appeal as of right must be.taken withiri thirty days after service by a upon the appellant of a of the judgment or order appealed from and written notice of . party copy its entry, except that when the appellant has served a copy of the judgment or order and written notice of itsentry, the appeal must be taken within thirty days thereof. . . Handel & Carlini, LLP 1984 New Hackensack Road · Poughkeepsie, NY 12603 Barbara Giordano Leonaggeo 150 Horman Road Stanfordville, NY 12584 Stenger, Diamond & Glass, LLP 1136 Route 9 . . Wappingers Falls,NY 12590 . 8 8 of 8 10 of 10