Preview
FILED: KINGS COUNTY CLERK 03/28/2023 04:28 PM INDEX NO. 12592/2008
NYSCEF DOC.SUPREME
NO. 146 COURT OF THE STATE OF NEW YORK RECEIVED NYSCEF: 03/28/2023
COUNTY OF KINGS
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MIDFIRST BANK, Index No. 12592/08
Plaintiff,
AFFIRMATION IN
-against- OPPOSITION TO MOTION TO
REARGUE
SOLOMON MCKENZIE, ELMONT EQUITY, INC.
ASSOCIATES FIRST CAPITAL CORPORATION
SUCCESSOR BY MERGER TO ASSOCIATES
FINANCIAL SERVICES COMPANY, INC.
SUCCESSOR BY MERGER TO ASSOCIATES
CONSUMER DISCOUNT COMPANY, SANDRA
AKESSON as Administrator of the Estate of CALVIN
TRAYLOR, JOSEPH SIMONELLI, NEW YORK
CITY DEPARTMENT OF FINANCE, NEW YORK
CITY ENVIRONMENTAL CONTROL BOARD, NEW
YORK CITY TRANSIT ADJUDICATION
BUREAU, PEOPLE OF THE STATE OF NEW YORK,
SIDNEY MCLANEY, JOHN DOE (Said name being
fictitious, it being the intention of Plaintiff to designate any
and all occupants of premises being foreclosed herein, and
any parties, corporations or entities, if any, having or
claiming an interest or lien upon the mortgaged premises.),
Defendants.
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SANDRA AKESSON as Administrator of the Estate of
CALVIN TRAYLOR and SIDNEY McLANEY, THIRD-PARTY ACTION
Third-Party Plaintiffs, Index No. 75206/10
-against-
FIRST RESIDENTIAL MORTGAGE SERVICES CORP.,
IRWIN MORTGAGE CORPORATION and MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.,
Third-Party Defendants.
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SANDRA AKESSON as Administrator of the Estate of
CALVIN TRAYLOR and SIDNEY McLANEY,
SECOND THIRD-PARTY ACTION
Index No. 12592/08
Second Third-Party Plaintiffs,
-against-
HELLER and VERDI P.C., RICHARD VERDI, ESQ., and
CRAIG HELLER, ESQ.
Second Third-Party Defendants.
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FILED: KINGS COUNTY CLERK 03/28/2023 04:28 PM INDEX NO. 12592/2008
NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 03/28/2023
Lara A. Chassin, an attorney duly admitted to practice before the Courts of the State of
New York, pursuant to CPLR § 2106 and under the penalties of perjury, affirms:
1. I am Associate Counsel with Fidelity National Law Group, co-counsel for Plaintiff
MIDFIRST BANK (“MidFirst” or “Plaintiff”). I submit this affirmation in opposition to
defendants/Third-Party Plaintiffs/Second-Third-Party Plaintiff Sandra Akesson, Administrator of
the Estate of Calvin Traylor and former attorney for defendants/Third-Party Plaintiffs, Second-
Third Party Plaintiff Sidney McLaney, deceased’s motion for an order extending the time to file
then Note of Issue because the case was stayed when the prior deadline to file the Note of Issue
passed.
2. The Court did not misapprehend or overlook any matters of facts or law
necessitating a motion to reargue. See CPLR § 2221(d). Even if the Court does grant a motion to
reargue, the outcome should respectfully remain the same: Sidney McLaney had no interest in the
Property and, therefore, his death does not materially affect the merits of the case and should not
trigger a stay of the action.
3. This Court did not misapprehend any matters of fact. Although technically it was
not Sidney McLaney that deeded the Property back to Calvin Traylor, he was a party to the action
in which the Property was deeded back to Traylor, and asked the Court for the relief that the
Property revert to Traylor, instead of himself. See Affirmation of G. Wesley Simpson, dated
February 24, 2009, annexed here as Exhibit A. Therefore, McLaney willfully agreed and took steps
to ensure that the Property revert back to Traylor which, as established in Plaintiff’s motion to lift
the stay, it did.
4. Even if the Court granted a motion to reargue based on the distinction of whether
it was McLaney or another entity in title that deeded the Property back to Traylor, upon
reargument, this Court should find that this distinction has no bearing on the outcome. The
Property will not, under any circumstances, revert back to Sidney McLaney, or his estate, because
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FILED: KINGS COUNTY CLERK 03/28/2023 04:28 PM INDEX NO. 12592/2008
NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 03/28/2023
it has already been transferred back to Traylor’s estate. Therefore, only Traylor’s estate has
standing to challenge Plaintiff’s mortgage, and the causes of action asserted by McLaney “survive
only to a coplaintiff” so the action may proceed without a substitution, and with the decedent’s
death merely noted on the record.” Neuman v. Neumann, 85 A.D.3d 1138, 1139, 026 N.Y.S.2d
632, 634 (2d Dept. 2011). McLaney’s death has no bearing on the merits of the case because he
no longer has any interest in the Property. See Bova v. Vinciguerra, 139 A.D.2d 797, 799, 526
N.Y.S.2d 671, 673-74 (3d Dept. 1988).
5. The only other issue of fact raised in the motion to reargue is that McLaney, and
not Traylor, was allegedly defrauded out of his equity in the Property. This argument was not
alleged in the opposition to Plaintiff’s motion to lift the stay and, therefore, should not be
entertained. CPLR § 2221(d) (a motion to reargue should not include any matter of fact not offered
on the prior motion).
6. To the extent that Third-Party Plaintiffs are alleging that McLaney has claims
related to the alleged fraud, those claims are equally held by the estate of Traylor, which now owns
the Property, and who also allege the loss of equity due to the alleged fraud. To the extent Third-
Party Plaintiffs allege that McLaney has damages claims, even Third-Party Plaintiffs admitted that
those claims are shared with the estate of Traylor. G. Wesley Simpson’s Affirmation in Opposition
to Plaintiff’s Motion to Lift the Stay argued “Sidney McLaney also has an interest in the third-
party actions since he shares in any award with Sandra Akesson, Administrator for Calvin
Traylor.” (NYSCEF Doc. No. 105, ¶ 17). Finally, to the extent that McLaney’s claim for damages
are distinct from Traylor’s, as stated in the Motion to Lift the Stay, those claims can be severed
and decided at inquest after final judgment in this action.
7. Furthermore, Third-Party Plaintiffs have filed a motion to lift the stay in the
Appellate Division, Second Department, on the appeals they have noticed, confirming that even
they do not think that the matter should be stayed at this juncture.
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NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 03/28/2023
8. Thus, there were no issues of fact or law misrepresented or misapprehended by this
Court, and the motion to reargue should respectfully be denied.
CONCLUSION
9. For the foregoing reasons, the Motion to Reargue should be denied, and the stay
should remain lifted.
Dated: New York, New York
March 27, 2023
FIDELITY NATIONAL LAW GROUP
_________________________
By: Lara A. Chassin, Esq.
Title Counsel for MidFirst Bank
(“MidFirst”)
350 Fifth Avenue, Suite 3000
New York, New York 10118
Tel: (646) 708-8086
Fax: (646) 304-1749
Lara.chassin@fnf.com
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FILED: KINGS COUNTY CLERK 03/28/2023 04:28 PM INDEX NO. 12592/2008
NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 03/28/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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MIDFIRST BANK, Index No. 12592/08
Plaintiff,
CERTIFICATE OF WORD COUNT
-against-
SOLOMON MCKENZIE, ELMONT EQUITY, INC.
ASSOCIATES FIRST CAPITAL CORPORATION
SUCCESSOR BY MERGER TO ASSOCIATES
FINANCIAL SERVICES COMPANY, INC.
SUCCESSOR BY MERGER TO ASSOCIATES
CONSUMER DISCOUNT COMPANY, SANDRA
AKESSON as Administrator of the Estate of CALVIN
TRAYLOR, JOSEPH SIMONELLI, NEW YORK
CITY DEPARTMENT OF FINANCE, NEW YORK
CITY ENVIRONMENTAL CONTROL BOARD, NEW
YORK CITY TRANSIT ADJUDICATION
BUREAU,PEOPLE OF THE STATE OF NEW YORK,
SIDNEY MCLANEY, JOHN DOE (Said name being
fictitious, it being the intention of Plaintiff to designate any
and all occupants of premises being foreclosed herein, and
any parties, corporations or entities, if any, having or
claiming an interest or lien upon the mortgaged premises.),
Defendants.
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SANDRA AKESSON as Administrator of the Estate of
CALVIN TRAYLOR and SIDNEY McLANEY,
Third-Party Plaintiffs, THIRD-PARTY ACTION
-against- Index No. 75206/10
FIRST RESIDENTIAL MORTGAGE SERVICES CORP.,
IRWIN MORTGAGE CORPORATION and MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.,
Third-Party Defendants.
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SANDRA AKESSON as Administrator of the Estate of
CALVIN TRAYLOR and SIDNEY McLANEY,
Second Third-Party Plaintiffs,
SECOND THIRD-PARTY ACTION
-against- Index No. 12592/08
HELLER and VERDI P.C., RICHARD VERDI, ESQ., and
CRAIG HELLER, ESQ.
Second Third-Party Defendants.
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NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 03/28/2023
Pursuant to Rule 202.8-b of the Rules of this Court, I certify that the accompanying Reply
Affirmation in Further Support of Motion to Lift Stay contains 745 words, excluding the parts of
the document that are exempt under Rule 202.8-b (b). This certificate was prepared in reliance on
the word-count function of the word processing system (Microsoft Word) used to prepare the
document.
Dated this 28th day of March 2023.
FIDELITY NATIONAL LAW GROUP
_________________________________
Lara A. Chassin, Esq.
Title Counsel for Midfirst Bank
711 Third Avenue, 8th Floor
New York, New York 10017
Tel: (646) 708-8086
Fax: (646) 304-1749
Lara.Chassin@fnf.com
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Preview
FILED: KINGS COUNTY CLERK 03/28/2023 04:28 PM INDEX NO. 12592/2008 NYSCEF DOC.SUPREME NO. 146 COURT OF THE STATE OF NEW YORK RECEIVED NYSCEF: 03/28/2023 COUNTY OF KINGS -----------------------------------------------------------------------X MIDFIRST BANK, Index No. 12592/08 Plaintiff, AFFIRMATION IN -against- OPPOSITION TO MOTION TO REARGUE SOLOMON MCKENZIE, ELMONT EQUITY, INC. ASSOCIATES FIRST CAPITAL CORPORATION SUCCESSOR BY MERGER TO ASSOCIATES FINANCIAL SERVICES COMPANY, INC. SUCCESSOR BY MERGER TO ASSOCIATES CONSUMER DISCOUNT COMPANY, SANDRA AKESSON as Administrator of the Estate of CALVIN TRAYLOR, JOSEPH SIMONELLI, NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, PEOPLE OF THE STATE OF NEW YORK, SIDNEY MCLANEY, JOHN DOE (Said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises.), Defendants. -----------------------------------------------------------------------X SANDRA AKESSON as Administrator of the Estate of CALVIN TRAYLOR and SIDNEY McLANEY, THIRD-PARTY ACTION Third-Party Plaintiffs, Index No. 75206/10 -against- FIRST RESIDENTIAL MORTGAGE SERVICES CORP., IRWIN MORTGAGE CORPORATION and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Third-Party Defendants. -----------------------------------------------------------------------X SANDRA AKESSON as Administrator of the Estate of CALVIN TRAYLOR and SIDNEY McLANEY, SECOND THIRD-PARTY ACTION Index No. 12592/08 Second Third-Party Plaintiffs, -against- HELLER and VERDI P.C., RICHARD VERDI, ESQ., and CRAIG HELLER, ESQ. Second Third-Party Defendants. -----------------------------------------------------------------------X 1 of 6 FILED: KINGS COUNTY CLERK 03/28/2023 04:28 PM INDEX NO. 12592/2008 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 03/28/2023 Lara A. Chassin, an attorney duly admitted to practice before the Courts of the State of New York, pursuant to CPLR § 2106 and under the penalties of perjury, affirms: 1. I am Associate Counsel with Fidelity National Law Group, co-counsel for Plaintiff MIDFIRST BANK (“MidFirst” or “Plaintiff”). I submit this affirmation in opposition to defendants/Third-Party Plaintiffs/Second-Third-Party Plaintiff Sandra Akesson, Administrator of the Estate of Calvin Traylor and former attorney for defendants/Third-Party Plaintiffs, Second- Third Party Plaintiff Sidney McLaney, deceased’s motion for an order extending the time to file then Note of Issue because the case was stayed when the prior deadline to file the Note of Issue passed. 2. The Court did not misapprehend or overlook any matters of facts or law necessitating a motion to reargue. See CPLR § 2221(d). Even if the Court does grant a motion to reargue, the outcome should respectfully remain the same: Sidney McLaney had no interest in the Property and, therefore, his death does not materially affect the merits of the case and should not trigger a stay of the action. 3. This Court did not misapprehend any matters of fact. Although technically it was not Sidney McLaney that deeded the Property back to Calvin Traylor, he was a party to the action in which the Property was deeded back to Traylor, and asked the Court for the relief that the Property revert to Traylor, instead of himself. See Affirmation of G. Wesley Simpson, dated February 24, 2009, annexed here as Exhibit A. Therefore, McLaney willfully agreed and took steps to ensure that the Property revert back to Traylor which, as established in Plaintiff’s motion to lift the stay, it did. 4. Even if the Court granted a motion to reargue based on the distinction of whether it was McLaney or another entity in title that deeded the Property back to Traylor, upon reargument, this Court should find that this distinction has no bearing on the outcome. The Property will not, under any circumstances, revert back to Sidney McLaney, or his estate, because 2 2 of 6 FILED: KINGS COUNTY CLERK 03/28/2023 04:28 PM INDEX NO. 12592/2008 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 03/28/2023 it has already been transferred back to Traylor’s estate. Therefore, only Traylor’s estate has standing to challenge Plaintiff’s mortgage, and the causes of action asserted by McLaney “survive only to a coplaintiff” so the action may proceed without a substitution, and with the decedent’s death merely noted on the record.” Neuman v. Neumann, 85 A.D.3d 1138, 1139, 026 N.Y.S.2d 632, 634 (2d Dept. 2011). McLaney’s death has no bearing on the merits of the case because he no longer has any interest in the Property. See Bova v. Vinciguerra, 139 A.D.2d 797, 799, 526 N.Y.S.2d 671, 673-74 (3d Dept. 1988). 5. The only other issue of fact raised in the motion to reargue is that McLaney, and not Traylor, was allegedly defrauded out of his equity in the Property. This argument was not alleged in the opposition to Plaintiff’s motion to lift the stay and, therefore, should not be entertained. CPLR § 2221(d) (a motion to reargue should not include any matter of fact not offered on the prior motion). 6. To the extent that Third-Party Plaintiffs are alleging that McLaney has claims related to the alleged fraud, those claims are equally held by the estate of Traylor, which now owns the Property, and who also allege the loss of equity due to the alleged fraud. To the extent Third- Party Plaintiffs allege that McLaney has damages claims, even Third-Party Plaintiffs admitted that those claims are shared with the estate of Traylor. G. Wesley Simpson’s Affirmation in Opposition to Plaintiff’s Motion to Lift the Stay argued “Sidney McLaney also has an interest in the third- party actions since he shares in any award with Sandra Akesson, Administrator for Calvin Traylor.” (NYSCEF Doc. No. 105, ¶ 17). Finally, to the extent that McLaney’s claim for damages are distinct from Traylor’s, as stated in the Motion to Lift the Stay, those claims can be severed and decided at inquest after final judgment in this action. 7. Furthermore, Third-Party Plaintiffs have filed a motion to lift the stay in the Appellate Division, Second Department, on the appeals they have noticed, confirming that even they do not think that the matter should be stayed at this juncture. 3 3 of 6 FILED: KINGS COUNTY CLERK 03/28/2023 04:28 PM INDEX NO. 12592/2008 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 03/28/2023 8. Thus, there were no issues of fact or law misrepresented or misapprehended by this Court, and the motion to reargue should respectfully be denied. CONCLUSION 9. For the foregoing reasons, the Motion to Reargue should be denied, and the stay should remain lifted. Dated: New York, New York March 27, 2023 FIDELITY NATIONAL LAW GROUP _________________________ By: Lara A. Chassin, Esq. Title Counsel for MidFirst Bank (“MidFirst”) 350 Fifth Avenue, Suite 3000 New York, New York 10118 Tel: (646) 708-8086 Fax: (646) 304-1749 Lara.chassin@fnf.com 4 4 of 6 FILED: KINGS COUNTY CLERK 03/28/2023 04:28 PM INDEX NO. 12592/2008 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 03/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------------X MIDFIRST BANK, Index No. 12592/08 Plaintiff, CERTIFICATE OF WORD COUNT -against- SOLOMON MCKENZIE, ELMONT EQUITY, INC. ASSOCIATES FIRST CAPITAL CORPORATION SUCCESSOR BY MERGER TO ASSOCIATES FINANCIAL SERVICES COMPANY, INC. SUCCESSOR BY MERGER TO ASSOCIATES CONSUMER DISCOUNT COMPANY, SANDRA AKESSON as Administrator of the Estate of CALVIN TRAYLOR, JOSEPH SIMONELLI, NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU,PEOPLE OF THE STATE OF NEW YORK, SIDNEY MCLANEY, JOHN DOE (Said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises.), Defendants. -----------------------------------------------------------------------X SANDRA AKESSON as Administrator of the Estate of CALVIN TRAYLOR and SIDNEY McLANEY, Third-Party Plaintiffs, THIRD-PARTY ACTION -against- Index No. 75206/10 FIRST RESIDENTIAL MORTGAGE SERVICES CORP., IRWIN MORTGAGE CORPORATION and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Third-Party Defendants. -----------------------------------------------------------------------X SANDRA AKESSON as Administrator of the Estate of CALVIN TRAYLOR and SIDNEY McLANEY, Second Third-Party Plaintiffs, SECOND THIRD-PARTY ACTION -against- Index No. 12592/08 HELLER and VERDI P.C., RICHARD VERDI, ESQ., and CRAIG HELLER, ESQ. Second Third-Party Defendants. -----------------------------------------------------------------------X 5 5 of 6 FILED: KINGS COUNTY CLERK 03/28/2023 04:28 PM INDEX NO. 12592/2008 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 03/28/2023 Pursuant to Rule 202.8-b of the Rules of this Court, I certify that the accompanying Reply Affirmation in Further Support of Motion to Lift Stay contains 745 words, excluding the parts of the document that are exempt under Rule 202.8-b (b). This certificate was prepared in reliance on the word-count function of the word processing system (Microsoft Word) used to prepare the document. Dated this 28th day of March 2023. FIDELITY NATIONAL LAW GROUP _________________________________ Lara A. Chassin, Esq. Title Counsel for Midfirst Bank 711 Third Avenue, 8th Floor New York, New York 10017 Tel: (646) 708-8086 Fax: (646) 304-1749 Lara.Chassin@fnf.com 6 6 of 6