Preview
FILED: DUTCHESS COUNTY CLERK 11/17/2022 11:39 AM INDEX NO. 2021-51452
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 11/17/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
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RICHARD VON DER LIETH,
Plaintiff, Index No.: 2021-51452
-against-
BARBARA GIORDANO A/K/A BARBARA NOTICE OF ENTRY
LEONAGGEO A/K/A BARBARA GIORDANO-
LEONAGGEO, ROGER LEONAGGEO, M-M2 RE
HOLDINGS 4, LLC, PORTFOLIO RECOVERY
ASSOCIATES, LLC, RAZOR CAPITAL II, LLC
A/P/O CREDIT ONE BANK, N.A., CATANIA, Assigned Judge:
MAHON, MILLIGRAM & RIDER, PLLC, Hon. Maria G. Rosa
Justice of the Supreme Court
Defendants.
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PLEASE TAKE NOTICE, that the within is a true copy of a DECISION AND ORDER
ON MOTION of the Hon. Maria G. Rosa dated November 15, 2022 and entered in the Office of
the Clerk of the within named Court on November 17, 2022.
Dated: Poughkeepsie, New York
November 17, 2022
Yours, etc.
HANDEL & CARLINI, LLP
By:__________________________________
Anthony C. Carlini, Jr., Esq.
Attorneys for Plaintiff
1984 New Hackensack Road
Poughkeepsie, New York 12603
Tel. No. (845) 454-2221
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF PUTCHESS -
Present:
Hon. Maria G. Rosa, Justice
RICHARD VON DER LIETH,
Plaintiff,
DECISION AND ORDER
-against- ON MOTION
BARBARA GIORDANO-LEONAGGEO, Index No.: 51452/21
ROGER LEONAGGEO, JACK GIORDANO,
M-M2 RE HOLDINGS- 4, LLC, et aI, Sequence #6
Defendants.
The following papers were read and considered on this motion by Defendant Barbara
Giordano-Leonaggeo for an order staying the foreclosure sale of the property located at 107
Homan Road, Stanfordville, New York 12581 (the "subject property") or vacating the sale if it
proceeded and for an order granting leave to reargue the July 5, 2022 decision and order of this
court granting a default judgment against the defendants and granting Plaintiff s motion for
summary judgment against Defendant M-M2 Re Holdings 4, LLC ("M;,M2") and appointing a
referee to compute the amount due to Plaiiltiff and to e'xamine whether the mortgaged property
may be sold in parcels and directing Plaintiffs counsel to submit a proposed judgment of
foreclosure and sale on or before October 3, 2022.
ORDER TO SHOW CAUSE
AFFIDAVIT IN SUPPORT
EXHIBITS A-G
AFFIRMATION IN OPPOSITION
EXHIBITS A-G
AFFIDAVIT IN REPLY
EXHIBITS A- G
The plaintiff alleges that in sum the defendant Barbara Giordano a/k/a Barbara Leonaggeo
asks this court to set aside the sale which tookplace on October 13,2022 on the basis that there is
a second mortgage on the property. She sets forth alleged circumstances pursuant to which the
second mortgage was created. She states she was under duress of an imminent tax sale and agreed
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to terms that were not in her best interest. In opposition, counsel points out that a motion for
leave to reargue under CPLR 2221 shall be based upon matters of fact or law overlooked or
misapprehended by the court in determining the prior motion but shall not include any matters of
fact not offered on the prior motion and shall be made within 30 days after service of a copy of the
decision and order on the prior motion and written notice of its entry. Plaintiff's attorney argues
that Defendants' motion is untimely. The notice of entry of the court's subject order (the amended
order confirming the referee's report and judgment offoreclosure and sale signed August 30,2022)
was served on September 6,2022. The defendant's order to show cause seeking leave to reargue
was filed October 11, 2022, more than 30 days later.
Counsel further asserts that even if the application were timely, there is no basis to grant
reargument. Defendant has raised for the first time the argument that there are two mortgages
which affect the subject property relying upon that as a basis to vacate the sale. As it stands,
Defendant is not the owner of the subject premises and therefore does not have standing to assert
her claims since, as she acknowledges, she transferred title to the property to M-M2 for $25,000.00.
This exchange was addressed by the Hon. Peter M. Forman, Acting Justice of the Supreme Court
(retired) in a decision and order dated November 19, 2020 filed under Index Number 50487 of
2018. Judge Forman pointed out that the defendants admitted that they came to an agreement
with Michael Milea (principal of M-M2) just prior to a scheduled auction of the premises by
Dutchess County due to non-payment of taxes. Defendants claimed before Judge Forman in that
action, as they do here, that just one day prior to closing and two days prior to the scheduled auction
Mr. Milea told them that the only way he would honor his agreement to lend them funds for
payment of taxes would be if they deeded the land to him. The defendants stated they did so for
$25,000.00 even though the property was worth as much as a million dollars. Judge Forman found
that Plaintiff M-M2 had established its entitlement to judgment as a matter of law dismissing the
defendants' affirmative defense alleging unclean hands and that Defendants had failed to raise a
triable issue of fact in opposition. This court cannot now rule otherwise. Judge Forman explained
in detail the reasoning for his determination and the lack of any question of fact based upon which
he granted M-M2's motion for summary judgment and directed submission of a proposed
judgment of foreclosure and sale.
In an action to quiet title brought under Index Number 50671 of 2018 before the Hon.
Michael G. Hayes, M-M2 sought an order adjudging it to be vested with absolute and
unencumbered title to the property located at 107 Homan Road in Stanfordville, New York and
awarding possession of the property to it and removing Defendants from possession, and for
related relief. Again, the transfer of the property, and the circumstances pursuant to which
Defendants transferred the property to Plaintiff in that action, were discussed in detail in Judge
Hayes' decision and order. M-M2 agreed that Defendants sold it the property pursuant to an
agreement that gave the defendants a one year option to buy back the property but that the
defendants did not exercise that option even after it was extended. Further, although prior to the
conclusion of discovery this court had held that there was a question of fact as to whether M-M2,
and Mr. Milea, took advantage of Defendants relative to their claimed defense of unclean hands,
Judge Hayes' determined upon summary judgment after the conclusion of discovery that there was
no such triable issue of fact. Judge Hayes also addressed the defendants' claim that they were
deceived into conveying the property to Plaintiff believing that M-M2/Mr. Milea was also
assuming the mortgage held by the plaintiff in this action, Richard Vonderlieth. As Judge Hayes
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pointed out in his decision and order of December 20, 2021, an assumption of mortgage must be
memorialized in an executed and acknowledged written form before an officer authorized to take
an acknowledgment of deeds and must contain a specific statement that the grantee assumes and
agrees to pay the mortgage and must identify the amount of the debt assumed (citing GOL ~5-
705). It was on the basis of the foregoing that Judge Hayes granted Plaintiff's motion for summary
judgment and Plaintiff succeeded in itsaction to quiet title. Again, this court is bound by the
decisions and orders of other Supreme Court Judges including Judge Hayes and Judge Forman.
Therefore, the foreclosure judgment granted by Judge Forman with respect to 150 Homan Road,
Stanfordville, New York, on behalf of the plaintiff in that action, M-M2, and the granting by Judge
Hayes ofM-M2's action to quiet titleto the subject property, stands as the law of the case. This
action, for foreclosure of the loan by the plaintiff in this case, Richard Vonderlieth, was also
decided. On July 5, 2022 this court granted Plaintiff's motion for a default judgment issuing
summary judgment and an order of reference. The notice of sale was filed September 9, 2022
with a sale date of October 13,2022. Defendants' motion filed on October 6, 2022 by notice of
motion made returnable October 10, 2022 was denied as the notice was insufficient. The court
considered the instant motion despite the pending sale and indicated in the order to show cause
that if Defendant established a basis to do so the sale could be vacated. However, Defendant has
failed to set forth any legal or factual basis for this court to vacate the sale.
As counsel argues in his affirmation in opposition, this court previously held that
Defendants failed to offer an excuse for their default or a meritorious defense to the action and
failed to oppose Plaintiff's motion for summary judgment despite being given the opportunity to
do so. As has previously been determined by Judges Forman and Hayes there was no fraud,
collusion, mistake or misconduct relative to the transactions between the Defendants and the
plaintiff in this action and M-M2, nor has there been any fraud, collusion, mistake or misconduct
relative to the foreclosure sale of the subject property which took place on October 13,2022.
This court cannot find that the defendants have pointed to any facts or law overlooked or
misapprehended by the court in determining the prior motions. The fact that there are two
mortgages against the subject property has no effect on the claims before this court. The arguments
Ms. Giordano-Leonaggeo raises are further barred by the doctrine of res judicata based upon the
decisions and orders of Judges Forman and Hayes. Based upon allof the foregoing, it is hereby
ORDERED that Defendant's motion is denied in its entirety.
The foregoing constitutes the decision and order of the court.
Dated: November \5 '2022
Poughkeepsie, New York
ENTER:
~~-
MARlA G. ROSA, J.S.C.
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Scanned to the E-FileSystem 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.
Handel & Carlini, LLP Barbara Giordano-Leoriaggeo
1984 New Hackensack Road 150 Homan Road
Poughkeepsie, NY 12603 Stanfordville, NY 12581
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Preview
FILED: DUTCHESS COUNTY CLERK 11/17/2022 11:39 AM INDEX NO. 2021-51452 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 11/17/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS -----------------------------------------------------------------X RICHARD VON DER LIETH, Plaintiff, Index No.: 2021-51452 -against- BARBARA GIORDANO A/K/A BARBARA NOTICE OF ENTRY LEONAGGEO A/K/A BARBARA GIORDANO- LEONAGGEO, ROGER LEONAGGEO, M-M2 RE HOLDINGS 4, LLC, PORTFOLIO RECOVERY ASSOCIATES, LLC, RAZOR CAPITAL II, LLC A/P/O CREDIT ONE BANK, N.A., CATANIA, Assigned Judge: MAHON, MILLIGRAM & RIDER, PLLC, Hon. Maria G. Rosa Justice of the Supreme Court Defendants. ------------------------------------------------------------------X PLEASE TAKE NOTICE, that the within is a true copy of a DECISION AND ORDER ON MOTION of the Hon. Maria G. Rosa dated November 15, 2022 and entered in the Office of the Clerk of the within named Court on November 17, 2022. Dated: Poughkeepsie, New York November 17, 2022 Yours, etc. HANDEL & CARLINI, LLP By:__________________________________ Anthony C. Carlini, Jr., Esq. Attorneys for Plaintiff 1984 New Hackensack Road Poughkeepsie, New York 12603 Tel. No. (845) 454-2221 1 1 of 5 FILED: DUTCHESS COUNTY CLERK 11/17/2022 11:05 11:39 AM INDEX NO. 2021-51452 NYSCEF DOC. NO. 195 196 RECEIVED NYSCEF: 11/16/2022 11/17/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF PUTCHESS - Present: Hon. Maria G. Rosa, Justice RICHARD VON DER LIETH, Plaintiff, DECISION AND ORDER -against- ON MOTION BARBARA GIORDANO-LEONAGGEO, Index No.: 51452/21 ROGER LEONAGGEO, JACK GIORDANO, M-M2 RE HOLDINGS- 4, LLC, et aI, Sequence #6 Defendants. The following papers were read and considered on this motion by Defendant Barbara Giordano-Leonaggeo for an order staying the foreclosure sale of the property located at 107 Homan Road, Stanfordville, New York 12581 (the "subject property") or vacating the sale if it proceeded and for an order granting leave to reargue the July 5, 2022 decision and order of this court granting a default judgment against the defendants and granting Plaintiff s motion for summary judgment against Defendant M-M2 Re Holdings 4, LLC ("M;,M2") and appointing a referee to compute the amount due to Plaiiltiff and to e'xamine whether the mortgaged property may be sold in parcels and directing Plaintiffs counsel to submit a proposed judgment of foreclosure and sale on or before October 3, 2022. ORDER TO SHOW CAUSE AFFIDAVIT IN SUPPORT EXHIBITS A-G AFFIRMATION IN OPPOSITION EXHIBITS A-G AFFIDAVIT IN REPLY EXHIBITS A- G The plaintiff alleges that in sum the defendant Barbara Giordano a/k/a Barbara Leonaggeo asks this court to set aside the sale which tookplace on October 13,2022 on the basis that there is a second mortgage on the property. She sets forth alleged circumstances pursuant to which the second mortgage was created. She states she was under duress of an imminent tax sale and agreed 1 2 of 4 5 FILED: DUTCHESS COUNTY CLERK 11/17/2022 11:05 11:39 AM INDEX NO. 2021-51452 NYSCEF DOC. NO. 195 196 RECEIVED NYSCEF: 11/16/2022 11/17/2022 to terms that were not in her best interest. In opposition, counsel points out that a motion for leave to reargue under CPLR 2221 shall be based upon matters of fact or law overlooked or misapprehended by the court in determining the prior motion but shall not include any matters of fact not offered on the prior motion and shall be made within 30 days after service of a copy of the decision and order on the prior motion and written notice of its entry. Plaintiff's attorney argues that Defendants' motion is untimely. The notice of entry of the court's subject order (the amended order confirming the referee's report and judgment offoreclosure and sale signed August 30,2022) was served on September 6,2022. The defendant's order to show cause seeking leave to reargue was filed October 11, 2022, more than 30 days later. Counsel further asserts that even if the application were timely, there is no basis to grant reargument. Defendant has raised for the first time the argument that there are two mortgages which affect the subject property relying upon that as a basis to vacate the sale. As it stands, Defendant is not the owner of the subject premises and therefore does not have standing to assert her claims since, as she acknowledges, she transferred title to the property to M-M2 for $25,000.00. This exchange was addressed by the Hon. Peter M. Forman, Acting Justice of the Supreme Court (retired) in a decision and order dated November 19, 2020 filed under Index Number 50487 of 2018. Judge Forman pointed out that the defendants admitted that they came to an agreement with Michael Milea (principal of M-M2) just prior to a scheduled auction of the premises by Dutchess County due to non-payment of taxes. Defendants claimed before Judge Forman in that action, as they do here, that just one day prior to closing and two days prior to the scheduled auction Mr. Milea told them that the only way he would honor his agreement to lend them funds for payment of taxes would be if they deeded the land to him. The defendants stated they did so for $25,000.00 even though the property was worth as much as a million dollars. Judge Forman found that Plaintiff M-M2 had established its entitlement to judgment as a matter of law dismissing the defendants' affirmative defense alleging unclean hands and that Defendants had failed to raise a triable issue of fact in opposition. This court cannot now rule otherwise. Judge Forman explained in detail the reasoning for his determination and the lack of any question of fact based upon which he granted M-M2's motion for summary judgment and directed submission of a proposed judgment of foreclosure and sale. In an action to quiet title brought under Index Number 50671 of 2018 before the Hon. Michael G. Hayes, M-M2 sought an order adjudging it to be vested with absolute and unencumbered title to the property located at 107 Homan Road in Stanfordville, New York and awarding possession of the property to it and removing Defendants from possession, and for related relief. Again, the transfer of the property, and the circumstances pursuant to which Defendants transferred the property to Plaintiff in that action, were discussed in detail in Judge Hayes' decision and order. M-M2 agreed that Defendants sold it the property pursuant to an agreement that gave the defendants a one year option to buy back the property but that the defendants did not exercise that option even after it was extended. Further, although prior to the conclusion of discovery this court had held that there was a question of fact as to whether M-M2, and Mr. Milea, took advantage of Defendants relative to their claimed defense of unclean hands, Judge Hayes' determined upon summary judgment after the conclusion of discovery that there was no such triable issue of fact. Judge Hayes also addressed the defendants' claim that they were deceived into conveying the property to Plaintiff believing that M-M2/Mr. Milea was also assuming the mortgage held by the plaintiff in this action, Richard Vonderlieth. As Judge Hayes 2 2 3 of 4 5 FILED: DUTCHESS COUNTY CLERK 11/17/2022 11:05 11:39 AM INDEX NO. 2021-51452 NYSCEF DOC. NO. 195 196 RECEIVED NYSCEF: 11/16/2022 11/17/2022 pointed out in his decision and order of December 20, 2021, an assumption of mortgage must be memorialized in an executed and acknowledged written form before an officer authorized to take an acknowledgment of deeds and must contain a specific statement that the grantee assumes and agrees to pay the mortgage and must identify the amount of the debt assumed (citing GOL ~5- 705). It was on the basis of the foregoing that Judge Hayes granted Plaintiff's motion for summary judgment and Plaintiff succeeded in itsaction to quiet title. Again, this court is bound by the decisions and orders of other Supreme Court Judges including Judge Hayes and Judge Forman. Therefore, the foreclosure judgment granted by Judge Forman with respect to 150 Homan Road, Stanfordville, New York, on behalf of the plaintiff in that action, M-M2, and the granting by Judge Hayes ofM-M2's action to quiet titleto the subject property, stands as the law of the case. This action, for foreclosure of the loan by the plaintiff in this case, Richard Vonderlieth, was also decided. On July 5, 2022 this court granted Plaintiff's motion for a default judgment issuing summary judgment and an order of reference. The notice of sale was filed September 9, 2022 with a sale date of October 13,2022. Defendants' motion filed on October 6, 2022 by notice of motion made returnable October 10, 2022 was denied as the notice was insufficient. The court considered the instant motion despite the pending sale and indicated in the order to show cause that if Defendant established a basis to do so the sale could be vacated. However, Defendant has failed to set forth any legal or factual basis for this court to vacate the sale. As counsel argues in his affirmation in opposition, this court previously held that Defendants failed to offer an excuse for their default or a meritorious defense to the action and failed to oppose Plaintiff's motion for summary judgment despite being given the opportunity to do so. As has previously been determined by Judges Forman and Hayes there was no fraud, collusion, mistake or misconduct relative to the transactions between the Defendants and the plaintiff in this action and M-M2, nor has there been any fraud, collusion, mistake or misconduct relative to the foreclosure sale of the subject property which took place on October 13,2022. This court cannot find that the defendants have pointed to any facts or law overlooked or misapprehended by the court in determining the prior motions. The fact that there are two mortgages against the subject property has no effect on the claims before this court. The arguments Ms. Giordano-Leonaggeo raises are further barred by the doctrine of res judicata based upon the decisions and orders of Judges Forman and Hayes. Based upon allof the foregoing, it is hereby ORDERED that Defendant's motion is denied in its entirety. The foregoing constitutes the decision and order of the court. Dated: November \5 '2022 Poughkeepsie, New York ENTER: ~~- MARlA G. ROSA, J.S.C. 3 3 4 of 4 5 FILED: DUTCHESS COUNTY CLERK 11/17/2022 11:05 11:39 AM INDEX NO. 2021-51452 NYSCEF DOC. NO. 195 196 RECEIVED NYSCEF: 11/16/2022 11/17/2022 Scanned to the E-FileSystem 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. Handel & Carlini, LLP Barbara Giordano-Leoriaggeo 1984 New Hackensack Road 150 Homan Road Poughkeepsie, NY 12603 Stanfordville, NY 12581 4 4 5 of 4 5