Preview
INDEX NO. E2023004004
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/20/2023
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3644002
Book Page CIVIL
Return To: No. Pages: 7
ESTHER S. GABRIEL
333 W. Washington Street Instrument: AFFIRMATION
Suite 200
Syracuse, NY 13202 Control #: 202311200761
Index #: E2023004004
Date: 11/20/2023
ESL Federal Credit Union Time: 12:43:45 PM
Shufelt, Eileen M.
John Doe and/or Mary Roe
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING — THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO.
MONROE COUNTY CLERK
MIT
lof 7
FLEE HONROE COUNTY CLERK 1172072023 11:39 AM INDE&& NOE 2623023004004
| NYSCEF Doc. NO. 21 RECEIVED NYSCEF: 11/20/2023
|
|
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
meee cence nee ene ene neem ene nnnnnennenenennenenneneeeee K
INDEX NO: E2023004004
ESL Federal Credit Union,
ATTORNEY AFFIRMATION
Plaintiff, IN SUPPORT OF PLAINTIFF’S
MOTION FOR A DEFAULT
JUDGMENT AND ORDER OF
REFERENCE
MORTGAGE PROPERTY:
77 Windsor Road
Rochester, NY 14612
Eileen M. Shufelt aka Eileen M. Shufet SBL: 060.08-2-26
“John Doe” and/or “Mary Roe”, Town of Greece
County of Monroe
Defendants.
anne nee nee nnn n cere ee en ene ene en neneneenennenene K
Esther S. Gabriel, Esq., pursuant to CPLR 2106 and under the penalties of perjury, affirms
as follows:
1 Tam an attorney at law and an Associate with Harris Beach, PLLC the attorneys of
record for the Plaintiff. I am fully familiar with the facts, court papers and proceedings of this
action based upon a review of the file maintained by my office.
2 True and accurate copies of the following supporting documents are attached
hereto:
Document Tab
Certificate of Merit Exhibit A
Note Exhibit B
Mortgage Exhibit C
Consent to Change Attorney Exhibit D
Additional Certificate of Merit Exhibit E
Notice of Default Exhibit F
RPAPL §1304 90 Day Notice Exhibit G
Department of Defense Search results Exhibit H
Summons and Complaint Exhibit I
Notice of Pendency Exhibit J
2 0f 7
FLEE HONROE COUNTY CLERK 1172072023 11:39 AM INDEEXNG E 2823003000004
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/20/2023
Affidavits of Service Exhibit K
Affidavit of Service by Mail pursuant to CPLR 3215(g)(3)(iii) Exhibit L
Affidavit of Merit and Amount Due Exhibit M
Affirmation of Standing Exhibit N
Legalback No. 2 — filed contemporaneous with this motion
Proposed Order of Reference
All personal non-public information has been redacted from the attached supporting
documents.
3 This residential mortgage foreclosure action was commenced by filing the
summons and complaint in the Monroe County Clerk’s office on April 19, 2023, in the County
where the mortgaged property is located. The action was brought to foreclose:
a Mortgage dated August 1, 2008, executed by Eileen M. Shufelt aka Eileen M.
Shufet to ESL Federal Credit Union, to secure the sum of Sixty Three Thousand
Five Hundred and 00/100 Dollars ($63,500.00), and recorded in the Monroe
County Clerk’s September 11, 2008, in Book 22009, page 85.
4 On April 19, 2023, Plaintiff filed a notice of pendency in accordance with RPAPL
§1331 and CPLR Article 65, a copy of which is attached hereto as Exhibit “J”.
5 The Summons, Complaint and Notice of Pendency are in the form prescribed by
statute and contain all the particulars required by law. The Summons complies with the
requirements of RPAPL §1320, contains the required notice in boldface type and is in the format
required by statute. According to the affidavit of service, the Summons was served together with
the Complaint. Copies of the Summons, Complaint, Notice of Pendency and affidavits of service
are attached hereto as Exhibits “I,” “J,” and “K.”
6 On April 19, 2023, Plaintiff was the Holder of the subject note. See Affidavit of
Michelle Jones, Supervisor of Loan Payment Solutions of Plaintiff, attached hereto as Exhibit
“M.”
3 0f 7
FLEE HONROE COUNTY CLERK 1172072023 11:39 AM INDEEXNG E 2823003000004
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/20/2023
7
The Certificate of Merit required pursuant to CPLR 3012-b was filed together with
supporting documents and is attached hereto as Exhibit “A.”
8 On June 21, 2023, Plaintiff, its former counsel Lacy Katzen LLP, and Harris Beach
PLLC, consented and agreed that Harris Beach PLLC be substituted for Lacy Katzen LLP as the
attorneys for Plaintiff in this action. A copy of the Consent to Change Attorney is attached hereto
as Exhibit D.
9 Thereafter, an additional Certificate of Merit required pursuant to CPLR 3012-b
was filed together with the Note and Mortgage on July 20, 2023, after Plaintiff transferred this
case from Lacy Katzen LLP to Harris Beach PLLC. A copy of the additional Certificate of Merit
is attached hereto as Exhibit E.
10. Pursuant to CPLR 3408 the court held a mandatory settlement conference in this
action. Plaintiff attended settlement conferences on September 12, 2023, and September 26, 2023.
No settlement was reached, and the case was released from the settlement conference part.
11. Defendants were served with the notice required by RPAPL §1303 printed on
colored paper together with the summons and complaint printed on white paper. The RPAPL
§1303 notice complies with the requirements of that statute, with the title in bold, 20-point type
and the text in bold, 14-point type. The RPAPL § 1303 notice was delivered to the mortgagors on
its own separate page, together with the summons and complaint. See Exhibit I and Exhibit K.
12. Defendant(s) were timely served with the 90-Day Pre-Foreclosure notice required
by RPAPL § 1304. Plaintiff filed the name, address and telephone number of the Defendant(s),
the amount claimed to be due, and the type of loan at issue with the superintendent of banks within
three business days of the mailing of the 90-day Pre-Foreclosure notice as required by RPAPL §
1306. Copies of these notices are attached hereto as Exhibit G.
3
4o0f 7
FLEE HONROE COUNTY CLERK 1172072023 11:39 AM INDEEXNG E 2823003000004
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/20/2023
13. Plaintiff served an additional copy of the Summons in compliance with CPLR
3215(g)(3). The affidavit of service by mail is attached hereto as Exhibit L.
14. A tenant resides at the mortgaged property. Therefore, Plaintiff requests that Quinn
Shufelt be added as named defendants in this action pursuant to RPAPL §1311 and that the caption
be amended to add Quinn Shufelt in place of the “John Doe” and/or “Mary Roe” defendants as
party defendants to this action.
15. The following defendants did not answer or appear and their time to answer has
expired: Eileen M. Shufelt aka Eileen M. Shufet and Mary Roe a/k/a Quinn Shufelt.
Accordingly, these defendants are in default.
16. No defendant is an infant. No defendant is in the armed services of the United States
of America. Upon information and belief no defendant is incompetent.
17. Plaintiff has not made any previous motion for this or like relief.
18. Therefore, it is respectfully requested that the Court grant Plaintiff's motion for a
Default Judgment and Order of Reference in accordance with RPAPL §1321 and award such other
and further relief as the Court may deem just and proper.
WHEREFORE, Plaintiff requests an order from this Court:
A. Appointing a referee to compute the amount due Plaintiff and to examine whether
the mortgaged property known as 77 Windsor Road, Rochester, NY 14612 can be
sold in parcels, and make his/her computation and report with all convenient speed
pursuant to RPAPL §1321;
Adding names of a tenant residing at mortgaged property as a named defendant
pursuant to RPAPL §1311, amending the caption to add Quinn Shufelt and
removing “John Doe” and/or “Mary Roe”as a party defendant in this action;
C. Determining all non-appearing and non-answering Defendants to be in default;
D. Granting such additional relief as the Court may deem just and proper.
5 of 7
INDEEXNG E 2823003000004
FYEEBO’ MONROE COUNTY CLERK 11/20/2023 11:39 AM
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/20/2023
The undersigned affirms that the foregoing statements are true, under the penalties of
perjury.
DATED: November 1, 2023
Syracuse, New York
OA ALL
Esther S. Gabriel, Esq.
Esther S. Gabriel, Esq. an attorney at law licensed to practice in the State of New York, and the
attorney for Plaintiff in this action, hereby certifies that, to the best of his/her knowledge,
information and belief, formed after an ‘inquiry reasonable under the circumstances, the
presentation of this pleading, affidavit (or motion if applicable), and the contentions contained
herein are not frivolous as defined by 22 NYCRR 130-1.1(c).
bh LL
Esther S. Gabriel, Esq.
6 of 7
INDEEXNG E 2823003000004
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/20/2023
CERTIFICATION PURSUANT TO 22 NYCRR 202.8-b(c)
1 I hereby certify that the foregoing Attorney Affirmation complies with the word
count limit pursuant to 22 NYCRR 202.8-b(a) as the total number of words in this Affirmation is
1,277 exclusive of the caption, signature block, affidavit of mailing, and this certification.
2 In making this certification, I relied upon the word-processing system used to
prepare this document.
DATED: November 1, 2023
f LL
bh
Esther S. Gabriel, Esq.
7 of 7
Preview
INDEX NO. E2023004004 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/20/2023 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3644002 Book Page CIVIL Return To: No. Pages: 7 ESTHER S. GABRIEL 333 W. Washington Street Instrument: AFFIRMATION Suite 200 Syracuse, NY 13202 Control #: 202311200761 Index #: E2023004004 Date: 11/20/2023 ESL Federal Credit Union Time: 12:43:45 PM Shufelt, Eileen M. John Doe and/or Mary Roe Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING — THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO. MONROE COUNTY CLERK MIT lof 7 FLEE HONROE COUNTY CLERK 1172072023 11:39 AM INDE&& NOE 2623023004004 | NYSCEF Doc. NO. 21 RECEIVED NYSCEF: 11/20/2023 | | SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE meee cence nee ene ene neem ene nnnnnennenenennenenneneeeee K INDEX NO: E2023004004 ESL Federal Credit Union, ATTORNEY AFFIRMATION Plaintiff, IN SUPPORT OF PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT AND ORDER OF REFERENCE MORTGAGE PROPERTY: 77 Windsor Road Rochester, NY 14612 Eileen M. Shufelt aka Eileen M. Shufet SBL: 060.08-2-26 “John Doe” and/or “Mary Roe”, Town of Greece County of Monroe Defendants. anne nee nee nnn n cere ee en ene ene en neneneenennenene K Esther S. Gabriel, Esq., pursuant to CPLR 2106 and under the penalties of perjury, affirms as follows: 1 Tam an attorney at law and an Associate with Harris Beach, PLLC the attorneys of record for the Plaintiff. I am fully familiar with the facts, court papers and proceedings of this action based upon a review of the file maintained by my office. 2 True and accurate copies of the following supporting documents are attached hereto: Document Tab Certificate of Merit Exhibit A Note Exhibit B Mortgage Exhibit C Consent to Change Attorney Exhibit D Additional Certificate of Merit Exhibit E Notice of Default Exhibit F RPAPL §1304 90 Day Notice Exhibit G Department of Defense Search results Exhibit H Summons and Complaint Exhibit I Notice of Pendency Exhibit J 2 0f 7 FLEE HONROE COUNTY CLERK 1172072023 11:39 AM INDEEXNG E 2823003000004 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/20/2023 Affidavits of Service Exhibit K Affidavit of Service by Mail pursuant to CPLR 3215(g)(3)(iii) Exhibit L Affidavit of Merit and Amount Due Exhibit M Affirmation of Standing Exhibit N Legalback No. 2 — filed contemporaneous with this motion Proposed Order of Reference All personal non-public information has been redacted from the attached supporting documents. 3 This residential mortgage foreclosure action was commenced by filing the summons and complaint in the Monroe County Clerk’s office on April 19, 2023, in the County where the mortgaged property is located. The action was brought to foreclose: a Mortgage dated August 1, 2008, executed by Eileen M. Shufelt aka Eileen M. Shufet to ESL Federal Credit Union, to secure the sum of Sixty Three Thousand Five Hundred and 00/100 Dollars ($63,500.00), and recorded in the Monroe County Clerk’s September 11, 2008, in Book 22009, page 85. 4 On April 19, 2023, Plaintiff filed a notice of pendency in accordance with RPAPL §1331 and CPLR Article 65, a copy of which is attached hereto as Exhibit “J”. 5 The Summons, Complaint and Notice of Pendency are in the form prescribed by statute and contain all the particulars required by law. The Summons complies with the requirements of RPAPL §1320, contains the required notice in boldface type and is in the format required by statute. According to the affidavit of service, the Summons was served together with the Complaint. Copies of the Summons, Complaint, Notice of Pendency and affidavits of service are attached hereto as Exhibits “I,” “J,” and “K.” 6 On April 19, 2023, Plaintiff was the Holder of the subject note. See Affidavit of Michelle Jones, Supervisor of Loan Payment Solutions of Plaintiff, attached hereto as Exhibit “M.” 3 0f 7 FLEE HONROE COUNTY CLERK 1172072023 11:39 AM INDEEXNG E 2823003000004 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/20/2023 7 The Certificate of Merit required pursuant to CPLR 3012-b was filed together with supporting documents and is attached hereto as Exhibit “A.” 8 On June 21, 2023, Plaintiff, its former counsel Lacy Katzen LLP, and Harris Beach PLLC, consented and agreed that Harris Beach PLLC be substituted for Lacy Katzen LLP as the attorneys for Plaintiff in this action. A copy of the Consent to Change Attorney is attached hereto as Exhibit D. 9 Thereafter, an additional Certificate of Merit required pursuant to CPLR 3012-b was filed together with the Note and Mortgage on July 20, 2023, after Plaintiff transferred this case from Lacy Katzen LLP to Harris Beach PLLC. A copy of the additional Certificate of Merit is attached hereto as Exhibit E. 10. Pursuant to CPLR 3408 the court held a mandatory settlement conference in this action. Plaintiff attended settlement conferences on September 12, 2023, and September 26, 2023. No settlement was reached, and the case was released from the settlement conference part. 11. Defendants were served with the notice required by RPAPL §1303 printed on colored paper together with the summons and complaint printed on white paper. The RPAPL §1303 notice complies with the requirements of that statute, with the title in bold, 20-point type and the text in bold, 14-point type. The RPAPL § 1303 notice was delivered to the mortgagors on its own separate page, together with the summons and complaint. See Exhibit I and Exhibit K. 12. Defendant(s) were timely served with the 90-Day Pre-Foreclosure notice required by RPAPL § 1304. Plaintiff filed the name, address and telephone number of the Defendant(s), the amount claimed to be due, and the type of loan at issue with the superintendent of banks within three business days of the mailing of the 90-day Pre-Foreclosure notice as required by RPAPL § 1306. Copies of these notices are attached hereto as Exhibit G. 3 4o0f 7 FLEE HONROE COUNTY CLERK 1172072023 11:39 AM INDEEXNG E 2823003000004 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/20/2023 13. Plaintiff served an additional copy of the Summons in compliance with CPLR 3215(g)(3). The affidavit of service by mail is attached hereto as Exhibit L. 14. A tenant resides at the mortgaged property. Therefore, Plaintiff requests that Quinn Shufelt be added as named defendants in this action pursuant to RPAPL §1311 and that the caption be amended to add Quinn Shufelt in place of the “John Doe” and/or “Mary Roe” defendants as party defendants to this action. 15. The following defendants did not answer or appear and their time to answer has expired: Eileen M. Shufelt aka Eileen M. Shufet and Mary Roe a/k/a Quinn Shufelt. Accordingly, these defendants are in default. 16. No defendant is an infant. No defendant is in the armed services of the United States of America. Upon information and belief no defendant is incompetent. 17. Plaintiff has not made any previous motion for this or like relief. 18. Therefore, it is respectfully requested that the Court grant Plaintiff's motion for a Default Judgment and Order of Reference in accordance with RPAPL §1321 and award such other and further relief as the Court may deem just and proper. WHEREFORE, Plaintiff requests an order from this Court: A. Appointing a referee to compute the amount due Plaintiff and to examine whether the mortgaged property known as 77 Windsor Road, Rochester, NY 14612 can be sold in parcels, and make his/her computation and report with all convenient speed pursuant to RPAPL §1321; Adding names of a tenant residing at mortgaged property as a named defendant pursuant to RPAPL §1311, amending the caption to add Quinn Shufelt and removing “John Doe” and/or “Mary Roe”as a party defendant in this action; C. Determining all non-appearing and non-answering Defendants to be in default; D. Granting such additional relief as the Court may deem just and proper. 5 of 7 INDEEXNG E 2823003000004 FYEEBO’ MONROE COUNTY CLERK 11/20/2023 11:39 AM NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/20/2023 The undersigned affirms that the foregoing statements are true, under the penalties of perjury. DATED: November 1, 2023 Syracuse, New York OA ALL Esther S. Gabriel, Esq. Esther S. Gabriel, Esq. an attorney at law licensed to practice in the State of New York, and the attorney for Plaintiff in this action, hereby certifies that, to the best of his/her knowledge, information and belief, formed after an ‘inquiry reasonable under the circumstances, the presentation of this pleading, affidavit (or motion if applicable), and the contentions contained herein are not frivolous as defined by 22 NYCRR 130-1.1(c). bh LL Esther S. Gabriel, Esq. 6 of 7 INDEEXNG E 2823003000004 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/20/2023 CERTIFICATION PURSUANT TO 22 NYCRR 202.8-b(c) 1 I hereby certify that the foregoing Attorney Affirmation complies with the word count limit pursuant to 22 NYCRR 202.8-b(a) as the total number of words in this Affirmation is 1,277 exclusive of the caption, signature block, affidavit of mailing, and this certification. 2 In making this certification, I relied upon the word-processing system used to prepare this document. DATED: November 1, 2023 f LL bh Esther S. Gabriel, Esq. 7 of 7