Preview
FILED: OSWEGO COUNTY CLERK 01/08/2024 03:20 PM INDEX NO. EFC-2023-1492
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF OSWEGO
_ - - _ - - - - - - - - - - - - - - - - - x
U.S. BANK TRUST NATIONAL ASSOCIATION, Index No.:
NOT IN ITS INDIVIDUAL CAPACITY BUT EFC-2023-1492
SOLELY AS OWNER TRUSTEE FOR LEGACY
MORTGAGE ASSET TRUST 2019-GS7,
Plaintiff (s),
ATTORNEY AFFIRMATION
-against- IN SUPPORT OF MOTION
FOR ORDER FOR SERVICE
BY PUBLICATION AND
APPOINTMENT OF
GUARDIAN AD LITEM
UNKNOWN HEIRS AT LAW OF EDWARD L.
POWERS A/K/A EDWARD LAWRENCE POWERS,
and if they be dead, any and all
persons unknown to plaintiff, claiming,
or who may claim to have an interest
in, or generally or specific lien upon
the real property described in this
action, such unknown persons being
herein generally described and intended
to be included in the following
designation, namely the wife, widow,
husband, widower, heirs at law, next
of kin, descendants, executors,
administrators, devisees, legatees,
creditors, trustees, committees,
lienors, and assignees of such
deceased, any and all persons deriving
interest in or lien upon, or title to
said real property by, through or under
them, or either of them, and their
respective wives, widows, husbands,
widowers, heirs at law, next of kin,
descendants, executors, administrators,
devisees, legatees, creditors,
trustees, committees, lienors and
assigns, all of who and whose names,
except as stated, are unknown to
plaintiff; TONYA L. CRISAFULLI, AS HEIR
AT LAW OF EDWARD L. POWERS A/K/A EDWARD
LAWRENCE POWERS; THERESA LAMB, AS HEIR
AT LAW OF EDWARD L. POWERS A/K/A EDWARD
LAWRENCE POWERS; NEW YORK STATE
DEPARTMENT OF TAXATION AND FINANCE,
#1" #12"
"JOHN DOE through "JOHN DOE
the last twelve names being fictitious
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NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024
and unknown to Plaintiff, the persons
or parties intended being the tenants,
occupants, persons or corporations, if
any, having or claiming an interest in
or lien upon the premises, described in
the complaint,
Defendant(s).
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Jason E. Brooks, Esq., an attorney duly admitted to practice law
before the Courts of the State of New York, hereby affirms the
following under penalties of perjury and pursuant to CPLR 2106:
1. I am an associate attorney with Leopold & Associates, PLLC,
the attorneys of record for the Plaintiff in the within foreclosure
action. I have reviewed the file maintained by this office in this
matter and based thereon, I am familiar with the facts of this case
and the proceedings heretofore had herein. I submit this affirmation
in support of Plaintiff's application to extend Plaintiff's time to
serve UNKNOWN HEIRS AT LAW OF EDWARD L. POWERS A/K/A EDWARD LAWRENCE
POWERS Nunc Pro Tunc pursuant to CPLR section 306(b); and for service
by publication on any possible UNKNOWN HEIRS AT LAW OF EDWARD L.
POWERS A/K/A EDWARD LAWRENCE POWERS.
2. As alleged in the complaint, EDWARD L. POWERS A/K/A EDWARD
LAWRENCE POWERS (deceased) is a necessary party pursuant to a note
and mortgage executed August 25, 2006. See NYSCEF Docket # 1, Docket
# 7.
3. The within action was brought to foreclose a mortgage lien
on real property located in the County of OSWEGO, State of New York.
The summons, complaint and notice of pendency action were all duly
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FILED: OSWEGO COUNTY CLERK 01/08/2024 03:20 PM INDEX NO. EFC-2023-1492
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024
and regularly filed on October 23, 2023, in the Office of the Clerk
of the County of OSWEGO, that being the County in which the mortgaged
premises are situate.
4. Borrower, EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS is
deceased as of June 2, 2023. A copy of the Death Certificate is
attached hereto as Exhibit "A". Thereafter, her interest in the
Subject Property passed to the HEIRS AT LAW OF EDWARD L. POWERS A/K/A
EDWARD LAWRENCE POWERS.
5. A due diligence search identified the Heirs at Law of
EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS as TONYA L. CRISAFULLI
and THERESA LAMB. Annexed hereto as Exhibit "B" is Affirmation of
the
Investigation of Heirship, sworn to on October 17, 2023, by Ivy M.
Capelli, Esq., attorney of Leopold & Associates, PLLC. Therefore,
UNKNOWN HEIRS OF EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS and
TONYA L. CRISAFULLI and THERESA LAMB are necessary parties to this
action.
6. All of the remaining Defendants in this action have been
duly served with copies of the summons and complaint. Copies of the
affidavits of service are annexed hereto as Exhibit "C".
7. MATTHEW COLEMAN, who filed pro se ANSWER and requested
service of the complaint and all pleadings, motions and other papers
herein is entitled to notice of this application. None of the other
Defendants appeared, answered or made any motion raising any
objection to the complaint and they are in default and are not
entitled to notice.
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NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024
8. Because the time to serve and file proof of service has
expired, Plaintiff respectfully moves the court to agreeably consider
the proposed order submitted herewith, extending Plaintiff's time to
serve UNKNOWN HEIRS AT LAW OF EDWARD L. POWERS A/K/A EDWARD LAWRENCE
POWERS and file proof of service to 120 days from the entered date of
the Order.
9. Additionally, the Plaintiff has been and will be unable,
with due diligence to serve the Defendant, UNKNOWN HEIRS AT LAW OF
EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS personally.
10. Plaintiff requests that the attached order directing
service of the summons and complaint upon the UNKNOWN HEIRS AT LAW OF
EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS by publication be
signed by this Court.
11. Affirmant respectfully requests that the Court, pursuant to
its authority under CPLR §306-b, extend Plaintiff's time to
effectuate service upon the Defendants. The additional time is
required due to the time needed for the time to obtain a signed order
of publication and the length of time required to publish pursuant to
said order.
12. Your affirmant further requests that Plaintiff be allowed
ninety (90) days to commence publication after notice of entry of the
attached Order, instead of thirty (30) days, due to the time required
to prepare the publication and the permission that your affirmant
must obtain from the Plaintiff for the costs incurred from the
publication itself.
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13. Plaintiff further requests that a Guardian Ad Litem and
military attorney be appointed to appear herein and accept service on
behalf of any of the Defendants who may be absentees, infants or
incompetents, or unknown successors in interest or Defendants who may
be in the military service.
14. No previous application for the relief requested herein has
been made to any other Court or Justice.
WHEREFORE, Plaintiff respectfully requests that the annexed
order be signed permitting service of the summons by publication;
appointing a Guardian Ad Litem and military attorney; extending
Plaintiff's time to serve the Defendants and file proof of service
thereof; and providing for such other and further relief as to the
Court may seem just and proper, and for all of which no previous
application has been made to this Court or any Judge thereof.
Dated: Armonk, New York
January 5, 2024
LEOPOL SOCIA ES, PLLC
Jason E. Brooks, Esq.
A orneys for the Plaintiff
8 Business Park Drive, Suite 110
onk, NY 10504
(914)219-5787
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FILED: OSWEGO COUNTY CLERK 01/08/2024 03:20 PM INDEX NO. EFC-2023-1492
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024
CERTIFICATION BY ATTORNEY
Jason E. Brooks, Esq., an attorney duly admitted to practice law
before the Courts of the State of New York, an attorney with the firm
of Leopold & Associates, PLLC, attorneys for the Plaintiff herein,
pursuant to the Uniform Rule Section 130-1.1-a, states as follows:
1. I hereby certify, under penalty of perjury and as an officer
of the Court, that to the best of my knowledge, information
and belief, formed after an inquiry reasonable under the
circumstances, the presentation of the within paper or the
contentions there in are not frivolous as defined in
subsection (c) of section 130-1.1, including that the
substance of the factual statements therein are not false.
Dated: Armonk, New York
January 5, 2024
LEOPOLD AND SSOC , LC
By· son E. Esq.
Brooks,
rneys for the Plaintiff
80 Business Park Drive, Suite 110
A onk, NY 10504
( 14)219-5787
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Preview
FILED: OSWEGO COUNTY CLERK 01/08/2024 03:20 PM INDEX NO. EFC-2023-1492 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF OSWEGO _ - - _ - - - - - - - - - - - - - - - - - x U.S. BANK TRUST NATIONAL ASSOCIATION, Index No.: NOT IN ITS INDIVIDUAL CAPACITY BUT EFC-2023-1492 SOLELY AS OWNER TRUSTEE FOR LEGACY MORTGAGE ASSET TRUST 2019-GS7, Plaintiff (s), ATTORNEY AFFIRMATION -against- IN SUPPORT OF MOTION FOR ORDER FOR SERVICE BY PUBLICATION AND APPOINTMENT OF GUARDIAN AD LITEM UNKNOWN HEIRS AT LAW OF EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS, and if they be dead, any and all persons unknown to plaintiff, claiming, or who may claim to have an interest in, or generally or specific lien upon the real property described in this action, such unknown persons being herein generally described and intended to be included in the following designation, namely the wife, widow, husband, widower, heirs at law, next of kin, descendants, executors, administrators, devisees, legatees, creditors, trustees, committees, lienors, and assignees of such deceased, any and all persons deriving interest in or lien upon, or title to said real property by, through or under them, or either of them, and their respective wives, widows, husbands, widowers, heirs at law, next of kin, descendants, executors, administrators, devisees, legatees, creditors, trustees, committees, lienors and assigns, all of who and whose names, except as stated, are unknown to plaintiff; TONYA L. CRISAFULLI, AS HEIR AT LAW OF EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS; THERESA LAMB, AS HEIR AT LAW OF EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, #1" #12" "JOHN DOE through "JOHN DOE the last twelve names being fictitious 1 of 6 FILED: OSWEGO COUNTY CLERK 01/08/2024 03:20 PM INDEX NO. EFC-2023-1492 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 and unknown to Plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint, Defendant(s). - _ - - - _ _ _ _ - _ - _ - - _ - _ - _ - x Jason E. Brooks, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under penalties of perjury and pursuant to CPLR 2106: 1. I am an associate attorney with Leopold & Associates, PLLC, the attorneys of record for the Plaintiff in the within foreclosure action. I have reviewed the file maintained by this office in this matter and based thereon, I am familiar with the facts of this case and the proceedings heretofore had herein. I submit this affirmation in support of Plaintiff's application to extend Plaintiff's time to serve UNKNOWN HEIRS AT LAW OF EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS Nunc Pro Tunc pursuant to CPLR section 306(b); and for service by publication on any possible UNKNOWN HEIRS AT LAW OF EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS. 2. As alleged in the complaint, EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS (deceased) is a necessary party pursuant to a note and mortgage executed August 25, 2006. See NYSCEF Docket # 1, Docket # 7. 3. The within action was brought to foreclose a mortgage lien on real property located in the County of OSWEGO, State of New York. The summons, complaint and notice of pendency action were all duly 2 of 6 FILED: OSWEGO COUNTY CLERK 01/08/2024 03:20 PM INDEX NO. EFC-2023-1492 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 and regularly filed on October 23, 2023, in the Office of the Clerk of the County of OSWEGO, that being the County in which the mortgaged premises are situate. 4. Borrower, EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS is deceased as of June 2, 2023. A copy of the Death Certificate is attached hereto as Exhibit "A". Thereafter, her interest in the Subject Property passed to the HEIRS AT LAW OF EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS. 5. A due diligence search identified the Heirs at Law of EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS as TONYA L. CRISAFULLI and THERESA LAMB. Annexed hereto as Exhibit "B" is Affirmation of the Investigation of Heirship, sworn to on October 17, 2023, by Ivy M. Capelli, Esq., attorney of Leopold & Associates, PLLC. Therefore, UNKNOWN HEIRS OF EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS and TONYA L. CRISAFULLI and THERESA LAMB are necessary parties to this action. 6. All of the remaining Defendants in this action have been duly served with copies of the summons and complaint. Copies of the affidavits of service are annexed hereto as Exhibit "C". 7. MATTHEW COLEMAN, who filed pro se ANSWER and requested service of the complaint and all pleadings, motions and other papers herein is entitled to notice of this application. None of the other Defendants appeared, answered or made any motion raising any objection to the complaint and they are in default and are not entitled to notice. 3 of 6 FILED: OSWEGO COUNTY CLERK 01/08/2024 03:20 PM INDEX NO. EFC-2023-1492 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 8. Because the time to serve and file proof of service has expired, Plaintiff respectfully moves the court to agreeably consider the proposed order submitted herewith, extending Plaintiff's time to serve UNKNOWN HEIRS AT LAW OF EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS and file proof of service to 120 days from the entered date of the Order. 9. Additionally, the Plaintiff has been and will be unable, with due diligence to serve the Defendant, UNKNOWN HEIRS AT LAW OF EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS personally. 10. Plaintiff requests that the attached order directing service of the summons and complaint upon the UNKNOWN HEIRS AT LAW OF EDWARD L. POWERS A/K/A EDWARD LAWRENCE POWERS by publication be signed by this Court. 11. Affirmant respectfully requests that the Court, pursuant to its authority under CPLR §306-b, extend Plaintiff's time to effectuate service upon the Defendants. The additional time is required due to the time needed for the time to obtain a signed order of publication and the length of time required to publish pursuant to said order. 12. Your affirmant further requests that Plaintiff be allowed ninety (90) days to commence publication after notice of entry of the attached Order, instead of thirty (30) days, due to the time required to prepare the publication and the permission that your affirmant must obtain from the Plaintiff for the costs incurred from the publication itself. 4 of 6 FILED: OSWEGO COUNTY CLERK 01/08/2024 03:20 PM INDEX NO. EFC-2023-1492 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 13. Plaintiff further requests that a Guardian Ad Litem and military attorney be appointed to appear herein and accept service on behalf of any of the Defendants who may be absentees, infants or incompetents, or unknown successors in interest or Defendants who may be in the military service. 14. No previous application for the relief requested herein has been made to any other Court or Justice. WHEREFORE, Plaintiff respectfully requests that the annexed order be signed permitting service of the summons by publication; appointing a Guardian Ad Litem and military attorney; extending Plaintiff's time to serve the Defendants and file proof of service thereof; and providing for such other and further relief as to the Court may seem just and proper, and for all of which no previous application has been made to this Court or any Judge thereof. Dated: Armonk, New York January 5, 2024 LEOPOL SOCIA ES, PLLC Jason E. Brooks, Esq. A orneys for the Plaintiff 8 Business Park Drive, Suite 110 onk, NY 10504 (914)219-5787 5 of 6 FILED: OSWEGO COUNTY CLERK 01/08/2024 03:20 PM INDEX NO. EFC-2023-1492 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 CERTIFICATION BY ATTORNEY Jason E. Brooks, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, an attorney with the firm of Leopold & Associates, PLLC, attorneys for the Plaintiff herein, pursuant to the Uniform Rule Section 130-1.1-a, states as follows: 1. I hereby certify, under penalty of perjury and as an officer of the Court, that to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the within paper or the contentions there in are not frivolous as defined in subsection (c) of section 130-1.1, including that the substance of the factual statements therein are not false. Dated: Armonk, New York January 5, 2024 LEOPOLD AND SSOC , LC By· son E. Esq. Brooks, rneys for the Plaintiff 80 Business Park Drive, Suite 110 A onk, NY 10504 ( 14)219-5787 6 of 6