Preview
FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024
SUPREMECOURT
STATEOFNEWYORK COUNTYOFULSTER
CITIZENS BANK,N.A.,
Plaintiff,
SMONS
-against-
Index No.
Filed:
SUSANGAFFNEYa/lda SUSANM. GAFFNEY;
SANTANDER
BANK, N.A. s/b/m to The Savings and Loan
Association of Newburgh, NewYork; and
"JOHN DOE#1" through "JOHN DOE#12", the last twelve names
being fictitious and unknown to Plaintiffs, 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,
Defendants.
NOTICE UNDER
FAIR DEBTCOLLECTIONSPRACTICESACT
THIS LAWFIRM IS ATTEMPTINGTOCOLLECTA DEBTAND
ANYINFORMATIONOBTAINEDWILL BE USEDFORTHATPURPOSE.
WEARENOTATTEMPTINGTOCOLLECTMONEYFROMANYPERSON
WHOHASRECEIVEDA DISCHARGEOFTHIS DEBTUNDER
UNITED STATESBANKRUPTCYLAWS.
TOTHEABOVE-NAMED
DEFENDANTS:
YOUAREHEREBYSUMMONED
and required to serve upon Plaintiffs attorneys an
answer to the complaint in this action within twenty (20) days after the service of this summons,
exclusive of the day of
service, or within
thirty (30) days
complete if the
after service is
summons is not personally served upon you within the State ofNew York. The United States, if
designated a Defendant on this action, may appear or answer within sixty (60) days of service.
In case of your failure to answer, judgment will be taken against you for the relief demandedin
the complaint.
The basis of the venue designated is that the mortgaged property is located in Ulster
County.
NOTICE
YOUAREIN DANGEROF LOSING YOURHOME
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If you do not respond to this summonsand complaint by serving a
copy of the answer on the attorney for the mortgage company who filed
this foreclosure proceeding against you and filing the answer with the
court, judgment may be entered and you can lose your home.
a default
Speak to an attorney or go to the court where your case is pending
for further information on how to answer the summonsand protect your
property.
Sending a payment to your mortgage company will not stop this
foreclosure action.
YOUMUSTRESPONDBY SERVINGA COPYOFTHEANSWER
ONTHE ATTORNEYFORTHE PLAINTIFF (MORTGAGE
COMPANY)ANDFILING THE ANSWER WITHTHE COURT.
DATED: May 15, 2024 COOPERERVING& SAVAGELLP
Albany, NewYork
By:
atthew E. M field, Esq.
Attorneys for Plaintiff
Woods Boulevard,
20 Corporate Suite 501
Albany, NewYork 12211
(518) 449-3900
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NOTICE OF OBJECTOFACTIONANDRELIEF SOUGHT
THEOBJECTof the above entitled action is to foreclose a mortgage to secure
$25,000.00 and interest recorded in the office of the Clerk of the County of Ulster on January 22,
2008, in Book MVolume 8658 at page 159 as Instrument No. 2008-00001393 covering premises
described as follows: 19 FELLICELO DRIVE, TOWN COUNTY
OFMARLBOROUGH,
OFULSTER,STATEOFNEWYORK.
The relief sought in the within action is: (1) a final judgment directing the sale of the
premises described above to satisfy the debt secured by the mortgage described above; and (2)
for a deficiency judgment against one of the makers/guarantors of the note(s) or mortgage(s)
herein.
TOTHEDEFENDANT
SUSANGAFFNEYa/k/a SUSANM. GAFFNEY:The
Plaintiff makes personal claims against you in this action.
Dated: May 15, 2024
Albany, NewYork
COOPERERVING& SAVAGELLP
BY:
atthew E. Minnig ield, Esq.
Attorneys for Plaintiff
Woods Boulevard,
20 Corporate Suite 501
Albany, New York 12211
(518) 449-3900
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Help for Homeowners in Foreclosure
NewYork State Law requires that we send you this notice about the foreclosure
process. Please read it carefully.
Summonsand Complaint
You are in danger your home. If you fail to respond to the summonsand
of losing
complaint in this foreclosure action, you may lose your home. Please read the summons
and complaint carefully. You should immediately contact an attorney or your local legal
aid office to obtain advice on how to protect yourself.
Sources of Information and Assistance
The State encourages you to become informed about your options in foreclosure. In
addition to seeking assistance from an attorney or legal aid office, there are government
agencies and non-profit organizations that you may contact for information about possible
options, including trying to work with your lender during this process.
To locate near you, you may call the toll-free
an entity helpline maintained by the New
York Department of Financial Services at 1-800-342-3736 or visit the Department's
website at www.dfs.ny.gov.
Rights and Obligations
YOUARENOTREQUIREDTOLEAVEYOURHOME
AT THIS TIME. You have the
right your home during the foreclosure
to stay in process. You are not required to leave
your home unless and until your property is sold at auction pursuant to a judgment of
foreclosure and sale.
Regardless of whether you choose to remain in your home, YOUAREREQUIREDTO
TAKECAREOFYOURPROPERTYand pay property taxes in accordance with state
and local law.
Foreclosure Rescue Scams
"save" your home.
Be careful of people who approach you with offers There are
to
individuals who watch for notices of foreclosure action in order to unfairly profit from a
homeowner's distress. You should be extremely careful about any such promises and any
suggestions that you pay them a fee or sign over your deed. State law requires anyone
offering such services for profit to enter into a contract which fully describes the services
they will perform and fees they will charge, and which prohibits them from taking any
money from you until they have completed all such promised services.
Notice required by Real Property Actions and Proceedings Law Section 1303.
202902
REE1/2017
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SUPREMECOURT
STATEOFNEWYORK COUNTYOFULSTER
CITIZENS BANK,N.A.,
Plaintiff
FOREGOSM
'
COMPLAINT
-against-
Index No.
SUSANGAFFNEYa/k/a SUSANM. GAFFNEY; Fikd·
SANTANDER BANK,N.A. s/b/m to The Savings and Loan
Association of Newburgh, NewYork; and
"JOHN DOE#1" through "JOHN DOE#12", the last twelve
names being fictitious and unknown to Plaintiffs, the persons or
parties being the tenants, occupants, persons or
intended
corporations, having or claiming an interest in or
if any, lien
upon the premises described in the complaint,
Defendants.
NOTICE UNDERFAIR DEBTCOLLECTIONSPRACTICESACT
THIS LAWFIRM IS ATTEMPTINGTOCOLLECTA DEBTAND
ANYINFORMATIONOBTAINEDWILL BE USEDFORTHATPURPOSE.
WEARENOTATTEMPTINGTOCOLLECTMONEY FROMANYPERSON
WHOHASRECEIVEDA DISCHARGEOFTHIS DEBTUNDER
UNITED STATESBANKRUPTCY
LAWS.
Plaintiff, complaining of Defendants by ERVING& SAVAGE
COOPER LLP, its
attorneys, alleges:
AS ANDFORA FIRST CAUSEOFACTION
1. At all times mentioned herein, Plaintiff CITIZENS BANK,N.A., was and still is a
national bank organized and existing by and through the Comptroller of the Currency of the
United States of America, with its principal office in the City of Providence and County of
Providence and State of Rhode Island and is formerly known as RBSCitizens, N.A. The name
Citizens Bank, N.A. became effective April 16, 2014.
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2. Upon information and belief, any Defendants denominated as a corporation in the
above captioned action is a NewYork corporation. If any such Defendant is a foreign
corporation, the basis of jurisdiction is said Defendant is authorized to conduct business within
the State of NewYork by the Secretary of State or Defendant's de facto transaction of business
within the State of NewYork.
3. Upon information and belief, Defendant SUSANGAFFNEYa/k/a SUSANM.
GAFFNEYwas and still is a resident of the County of Ulster, State of New York. Title of record
is vested in SUSANGAFFNEYa/k/a SUSANM. GAFFNEYand Albert J. Perkowski III, as to
a life estate pur autre vie Fay C. Perkowski a/k/a Fay Christina Perkowski. However, the said
Fay C. Perkowski a/k/a Fay Christina Perkowski died on November 29, 2009, extinguishing
Albert J. Perkowski's life estate pur autre vie in the subject mortgaged premises, leaving SUSAN
GAFFNEYa/k/a SUSANM. GAFFNEYas the owner in fee of the within mortgaged premises.
4. Upon information and belief, no party to this action is an infant, incompetent or
absentee.
5. The subject mortgaged premises which are the object of this action are situate,
lying and being in the County of Ulster and State of NewYork.
6. On or about January 7, 2008, SUSANGAFFNEYa/k/a SUSANM. GAFFNEY,
for the purpose of evidencing her obligation to RBSCitizens, N.A. for the payment of
$25,000.00 loaned by RBSCitizens, N.A. to said Defendant and the performance of certain
obligations therein set forth and incorporated herein by reference for value received, duly
executed a certain Secondary Mortgage Loan HomeEquity Line of Credit Agreement (the
"Note") by which she obligated herself, her heirs, personal representatives, successors and
assigns, and each and every one of them, jointly and severally, for the payment and performance
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of said Note all as more fully appears in said Note, and in the terms, covenants and conditions
thereof.
7. As collateral security for the payment and performance of said Obligation,
SUSANGAFFNEYa/k/a SUSANM. GAFFNEYexecuted, acknowledged and delivered to
RBSCitizens, N.A., a Credit Line Mortgage, wherein and whereby said Defendant granted, sold
and mortgaged to RBSCitizens, N.A., its successors and assigns, the following described
premises ("Mortgaged Premises"):
**See Schedule "A" Attached**
SUBJECTto any and all enforceable covenants, easements and restrictions of record,
under the terms, covenants and conditions more fully set forth in the Mortgage.
8. Said Mortgage was duly recorded (and the mortgage tax due thereon was duly
paid) in the Ulster County Clerk's Office on January 22, 2008, in Book MVolume 8658 at page
159 as Instrument No. 2008-00001393.
9. Plaintiff is the owner and holder of the subject mortgage and note, or has been
delegated authority to commence the mortgage foreclosure action by the owner of the note and
mortgage and has complied with all the provisions of Banking Law Section 595-a, and any rules
and regulations promulgated there under, Banking Law Sections 6-1 and 6-m and RPAPL
Section 1304, including without limitation, the delivery of the 90 day Notice required by RPAPL
§ 1304.
10. Plaintiff has heretofore complied with the electronic filing provisions of RPAPL
Section 1306.
11. Defendant SUSANGAFFNEYa/k/a SUSANM. GAFFNEYhas failed and
neglected to comply with the terms, covenants and conditions of said Agreement by omitting and
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failing to pay items of principal and interest, and in particular, Defendant has failed and
neglected to make the payment of principal and interest due on August 11, 2023, and on the
eleventh day of each subsequent month. Accordingly, the Plaintiff has previously elected and
hereby elects to call due the entire balance presently secured by said Note.
12. There is due and owing to the Plaintiff upon above Note as of May 15, 2024:
Principal $15,823.52
Interest from 08/11/23 to and including 05/15/24 1,138.43
Escrow Advance 18,365.18
Total-Fees 50.50
Late Charges 108.98
Recoverable Balance 715.00
Total $36,201.61
13. No other action or proceeding has been commenced or maintained or is now
pending at law or otherwise for the foreclosure of said mortgage or for recovery of the said sum
secured by said Note or any part thereof.
14. The aforesaid Mortgage contained a provision in paragraph 28 thereof, that in the
event Plaintiff was required to enforce said Note, it was agreed that Plaintiff may add all
reasonable legal fees, costs, allowances and disbursements to the amount owed to Plaintiff,
together with interest. Plaintiff claims reasonable attorney's fees, costs, allowances and
disbursements in a sum to be fixed by the Court upon timely application for same.
15. Plaintiff shall not be deemed to have waived, altered released or changed the
election to accelerate hereinbefore made, or any or all of the defaults mentioned herein by reason
of any payment made by or on behalf of the Defendant after the commencement of this action,
and such election shall continue and remain effective.
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16. Plaintiff requests that in the event that this action will proceed to judgment of
foreclosure and sale, said premises should be sold subject to the following:
(a) Any state of facts that an inspection of the premises would disclose;
(b) Any state of facts that an accurate survey of the premises would show;
(c) Covenants, restrictions, easements and public utility agreements of record, if any;
(d) Building and zoning ordinances of the municipality in which the mortgaged
premises are located and possible violations of the same;
(e) Any rights of tenants or persons in possession of the subject premises;
(f) Any equity of redemption of the United States of America to redeem the premises
within 120 days from date of sale;
(g) Any equity of redemption of the Federal Deposit Insurance Corporation as a
consequence of the receivership of a Defendant in this action, if any;
(h) Prior mortgage liens of record, if any, and any advances and arrears thereunder, if
any; and
(i) Prior lien(s) of record, if any.
17. In the event the Plaintiff possesses any other lien(s) against said mortgaged
premises either by way of judgment, junior mortgage or otherwise, Plaintiff requests that such
other lien(s) shall not be merged in Plaintiff s cause(s) of action set forth in this complaint, but
the Plaintiff shall be permitted to enforce said other lien(s) and/or seek determination of priority
thereof in any independent action(s) or proceeding(s), including, without limitation, any surplus
money proceedings.
18, Plaintiff believes that during the pendency of this action, in order to protect the
security of the within Note, it may be compelled to make advances on its own account or to prior
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mortgagees, if any, for installments of principal and interest, taxes, assessments, water rates,
and/or fire insurance premiums that are or may become due under said prior mortgage or to the
receiver of taxes, or to the fire insurance company, and to make advances to preserve and/or
secure the mortgaged premises which advances are to be included in the balance due to Plaintiff,
plus interest, as provided for in the within mortgage foreclosed and deemed further secured
thereby.
19. Each of the Defendants named in the within captioned action have, or claim to
have, some interest in the mortgaged premises, as more fully set forth below, which such interest
is subsequent, subordinate and junior to the lien of Plaintiff s mortgage.
#1" #12" tenants or sub-
20. Defendants "John Doe through "John Doe are possible
tenants in possession of the premises whose true name is now unknown to Plaintiff who have, or
claim to have, a leasehold or other possessory interest in the premises, which said interest if any,
is subject to the lien held by Plaintiff.
21. Plaintiff has no adequate remedy at law.
AS ANDFORA SECOND
CAUSEOFACTION
22. Plaintiff repeats and realleges with the same force and effect as if fully set forth at
"1" "21"
length herein the allegations stated and contained in Paragraphs through above.
23. By mutual mistake of Plaintiff and Defendant and by scrivener's error, the
schedule
"A" description attached to the subject mortgage fails to recite the legal
property
description: "ALL THATCERTAINPIECE, PARCEL, ORLOT OFLAND, situate, lying and
being in the Town of Marlborough, County of Ulster and State of New York, more particularly
described as follows: BEG1NNING
at a point on the southwesterly line of lands of now or
48° 30' 20" East 290.51 and South 48°
formerly Hester & Abiah, said point being distant feet
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10' 20" East 294.20 measured along said division from the intersection of said
feet, line,
division line with the southeasterly line of Lattintown Road and running Thence along said
South 47°
55' 20" East 239.61 feet to a point; Thence leaving and running
division line, said line
over and through lands of Felicello Realty Corp., along the northerly line of Lot No. 4 as shown
25'
on a certain map entitled Felicello Estates, South 71° 40 West 305.21 feet to a point on the
northeasterly line of a proposed road, Felicello Drive; Thence along the northeasterly line of said
proposed road, Felicello Drive, on a curve convex to the northeast having a radius of 175.00 feet
and a length northwesterly 91.49 feet to a point; Thence leaving said line and running over and
through lands of aforesaid Felicello Realty Corp., along the southerly line of Lot No. 2 as shown
29' 40"
on a certain map entitled Felicello Estates, North 41° East 243.58 feet to the point of
beginning"
paragraph as recited in the deed chain. The Exhibit A description annexed to the
mortgage does clearly contain the correct tax parcel number.
24. Plaintiff has no adequate remedy at law unless the subject mortgage description
be reformed so that the description of said subject mortgaged premises reads as shown on
Schedule
"A"
annexed hereto.
AS ANDFORA THIRD CAUSEOFACTION
25. Plaintiff repeats and realleges with the same force and effect as if fully set forth at
"1" "24"
length herein the allegations stated and contained in Paragraphs through above.
26. On or about July 31, 1972, Albert J. Perkowski and Fay C. Perkowski, his wife,
entered into a mortgage transaction with The Savings and Loan Association of Newburgh, New
York for a mortgage on the subject mortgaged premises in the amount of $20,000.00 which was
recorded in the Ulster County Clerk's Office on August 22, 1972 in Liber 1044 at page 197.
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27. Said mortgage was modified by a Consolidation, Extension, and Modification
Agreement dated May21, 1976, increasing the principal balance to $26,200.00 and including a
term of 20 years. Said mortgage was recorded on May 25, 1976, in the Ulster County Clerk's
Office in Liber 1355 at page 265.
28. Upon information and belief, said mortgage was paid in full and a discharge of
mortgage was never filed.
29. Defendant SANTANDER
BANK,N.A. is the successor by merger to The
Savings and Loan Association of Newburgh, New York.
30. The above mortgage was due and owing more than 20 years ago and, as such,
should be considered an ancient mortgage and should be discharged of record pursuant to
RPAPL1931.
WHEREFORE,
Plaintiff demandsjudgment against the Defendants as follows:
ONTHEFIRST CAUSEOFACTION
a. Adjudging and decreeing the amounts due the Plaintiff on the Obligation
including principal, interest, expenses, and any amounts advanced by Plaintiff for taxes,
water rents, insurance premiums or other costs or expenses pursuant to said Mortgage;
b. That the Defendants and all persons claiming by, through or under them or
either of them, subsequent to the commencementof this action and the filing of a notice
pendency hereof, be barred and forever foreclosed of and from all estate, right, title,
interest, claim, lien and equity of redemption of, in and to the Mortgaged Premises, and
each and every part and parcel thereof;
c. That the Mortgaged Premises be ordered to be sold, according to law;
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d. That out of the monies arising from the sale thereof, the Plaintiff may be paid
the amount adjudged to be due on said Note as herein above set forth, with interest to the
time of such payment and the expenses of such sale, together with the Plaintiff s
expenses, and the costs, allowances and disbursements of this action, and any monies
advanced and paid pursuant to the terms and provisions of said Note or to protect the lien
of said Mortgage, together with taxes, water and sewer charges, insurance premiums, and
all other charges and liens thereon to be paid, with interest upon those amounts from the
dates of the respective payments and advances thereon, so far as the amount of such
monies properly applicable thereto will pay the same;
e. That a receiver be appointed forthwith to collect the rents and profits of the
Mortgaged Premises during the pendency action with the usual powers and duties;
f. That any judgment or other liens of the Plaintiff arising subsequent to said
Note be foreclosed herein and be deemedtransferred to any surplus monies arising from
the sale of the Mortgaged Premises with the same priority which such liens had with
respect to the Mortgaged Premises, specifically reserving to the Plaintiff its right to share
in such surplus monies in accordance with the priority of such liens, all as though
Plaintiff were named herein as a party Defendant;
g. That the Court award Plaintiff reasonable attorney fees, costs, allowances and
disbursements;
h. That Defendant SUSANGAFFNEYa/k/a SUSANM. GAFFNEYbe
adjudged to pay any deficiency that may remain after the applying of all of the said
monies so applicable thereto; and
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i. Awarding Plaintiff such other and further relief as to the Court may seemjust
and proper.
ONTHESECONDCAUSEOFACTION
j. To reform the description made a part of the mortgage to contain the language
Schedule
"A" herein.
set forth in
ONTHETHIRD CAUSEOFACTION
k. That the mortgage recorded on May 25, 1976, in the Ulster County Clerk's
Office in Liber 1355 at page 265 may be discharged of record.
Dated: May 15, 2024 COOPERERVING& SAVAGE
LLP
Albany, NewYork
By:
Matthew E. Minniefidld, Esq.
Attorneys for Plaintiff
20 Corporate Woods Boulevard, Suite 501
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MICHAEL DEEMING VS AIDS HEALTHCARE FOUNDATION, ET AL.
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Case Number:
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Hearing Date:
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Dept:
17
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DEPARTMENT 17
TENTATIVE RULING
MICHAEL DEEMING
vs.
AIDS HEALTHCARE FOUNDATION,
et al.
Case No.:
23STCV30116
Hearing Date:
July 15, 2024
Defendants demurrer is OVERRULED. Defendants motion to strike is DENIED.
On 12/8/2023, Plaintiff Michael Deeming filed suit against AIDS Healthcare Foundation and Golden Hills Towers, LLC. On 4/23/2024, Plaintiff filed a first amended complaint (FAC) against the same parties, alleging: (1) negligence; (2) intentional infliction of emotional distress; (3) breach of the implied warranty of habitability; (4) tortious breach of the warranty of habitability; (5) private nuisance; (6) breach of covenant of quiet enjoyment; (7) violation of Civil Code section 1942.4; and (9) violation of the UCL.
Now, Defendant AIDs Healthcare Foundation (AHF or Defendant) demurs to Plaintiffs second, third, and fifth causes of action. Defendant also moves to strike portions of Plaintiffs FAC.
Factual Background
Plaintiff brings this action against his current landlord (AHF) and former landlord (Golden Hill Towers LLC).
Discussion
Defendant argues that Plaintiffs claims are insufficiently pled.
As to the second cause of action, the elements of a cause of action for intentional infliction of emotional distress (IIED) are (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendants extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress. (
Crouch v. Trinity Christian Center of Santa Ana, Inc.
(2019) 39 Cal.App.5th 994, 1007).
In the previous round of demurrer, the Court sustained Defendants demurrer to this claim writing:
Thus, while conclusory allegations of a failure to repair will not establish extreme and outrageous conduct, specific allegations that the landlord knowingly allowed uninhabitable conditions to continue will suffice under certain circumstances. However, similar facts are not alleged here. For instance, in the complaint, Plaintiff alleges At all relevant times, Defendants had actual and/or constructive notice of the following defects yet failed to take timely or reasonable steps to abate and/or remedy the defects which is
specific as to how Defendants knew about the issues. (Complaint ¶ 23.) Further in Newby, the court of found there was outrageous behavior when the evidence showed that after the plaintiff tenant organized opposition to rent increases, the landlord shouted at the tenant and insulted her, directed her to vacate the premises. The plaintiff was also told if she did not leave . . ., [w]e [will] handle this the way we do down South. (Id. at 921-922.) Again, here, Plaintiff was not threatened with bodily harm.
(4/3/2024 Minute Order.)
Now, Plaintiffs FAC includes allegations such as:
-
The Property was inspected by the Los Angeles Department of Public Health (LACDPH) on February 12, 2019, and again in October 12, 2021, during AFHs ownership and/or control and various violations were found including, but not limited to, cockroaches, torn carpet, trash/debris accumulation, holes in ceiling and walls and more. The LACDPH provided actual notice to Defendants of these various public health violations. Plaintiffs were on actual notice of their duty and obligation as landlord and their responsibility to provide habitable housing for its tenants yet knowingly allowed the uninhabitable conditions to continue harming their tenants and Plaintiff thereby. (FAC ¶ 30.)
-
On at least one occasion, in 2023, Plaintiff provided AFHs agents and/or employee, Ebony [last name unknown], a signed letter where Plaintiff describes the black mold that persisted for over a year, how the black mold was simply painted over three times in the course of nine months, and how it took three months for the mold to start showing up again. This letter also states that Apt. 510 lack adequate weatherproofing as the plastic window does not retain heat in the winter, defective locking mechanism on Plaintiffs door which he was told twice would be repaired but never was and Plaintiff had to pay and replace the lock himself, the bathroom light fixture was defective, inadequate water temperature, deteriorating carpeting, peeling paint, and the lack of addressing these issues over the years. (FAC ¶ 31.)
Accordingly, Plaintiff has now alleged specific facts which could show that Defendant knew about uninhabitable conditions and the harm it was causing, and failed to take steps to abate the issues.
Accepted as true at the pleading stage, these allegations are sufficient to state a claim for IIED.
As for the third cause of action, to state a claim for the breach of implied warranty of habitability, plaintiff must show the existence of a material defective condition affecting the premises' habitability, notice to the landlord of the condition within a reasonable time after the tenant's discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages. (
Erlach v. Sierra Asset Servicing, LLC
(2014) 226 Cal.App.4th 1281, 1297.)
Here, just as above, the Court sustained Defendants demurrer to this claim, on the grounds that [t]he allegations contain conclusory statements that do not present sufficient specific information regarding the defects, when and how they were reported to Defendants, and whether Defendants had an opportunity to remedy these conditions. (4/3/2024 Minute Order.) Now, as set forth above, Plaintiff has alleged specific facts to show how and when he put Defendant on notice as to various defects, and alleges they were not remedied in a reasonable time. (FAC ¶ 31.) Moreover, Plaintiff now alleges that Defendant failed to remedy conditions that were identified by the Los Angeles Department of Public Health (LACDPH) during inspections on 2/12/2019 and 10/12/2021. (FAC ¶ 30.) Accepted as true at the pleading stage, these allegations are sufficient to state a claim for breach of the warranty of habitability.
As for the fifth cause of action, Defendant argues that this claim is redundant because the new allegations were incorporated into both the negligence and nuisance claims making them duplicative of each other by relying on the same set of facts. (Demurrer, 2: 11-13.) However, this argument is not supported by any additional analysis beyond this assertion, nor is it accompanied by legal authority. (This failure to cite pertinent legal authority is enough reason to reject the argument);
Akins v. State of California
(1998) 61 Cal.App.4th 1, 50, 71 (contention waived by failure to cite legal authority).
Based on the foregoing, Defendants demurrer is overruled.
Motion to Strike
Defendant argues that Plaintiff cannot state a claim for punitive damages. However, as set forth above, the Court overruled Defendants demurrer as to the IIED and breach of implied warranty of habitability claims. Accordingly, Plaintiff has alleged sufficient facts that could show Defendant engaged in
despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294,
subd
. (c)(1).)
Based on the foregoing, Defendants motion to strike is denied.
It is so ordered.
Dated:
July
, 2024
Hon. Jon R. Takasugi
Judge of the Superior Court
Parties who intend to submit on this tentative must send an email to the court at
smcdept17@lacourt.org
by 4 p.m. the day prior as directed by the instructions provided on the court website at
www.lacourt.org
. If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative.
If all parties to a motion submit, the court will adopt this tentative as the final order.
If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar
.
For more information, please contact the court clerk at (213) 633-0517.
Ruling
KALE FREDHOLM, ET AL. VS R.E.C. DEVELOPMENT, INC.
Jul 10, 2024 |
22STCV09833
Case Number:
22STCV09833
Hearing Date:
July 10, 2024
Dept:
40
Superior Court of California
County of Los Angeles
Department 40
KALE FREDHOLM, an individual; MARIA FREDHOLM, individually and as Guardian Ad Litem for Minor PELESTENE FREDHOLM, an individual; ALICIA GILLILAND, individually and as Guardian Ad Litem for Minor RYAN NAEMARK, an individual; DANA GILLILAND, an individual; ANDREA CUTSHALL, individually and as Guardia Ad Litem for Minor MATTHEW ERICK CUTSHALL, an individual, and Minor JASON ALLEN CUTSHALL, an individual; ROSA MONTOYA, an individual; AMBER WASHINGTON, an individual; and ANGELA DADE, an individual,
Plaintiffs,
v.
R.E.C. DEVELOPMENT, INC., also known as Real Estate Connection; LAN, A LIMITED PARTNERSHIP; and DOES 1 through 50 inclusive,
Defendants.
Case No.:
22STCV09833
Hearing Date:
07/10/24
Trial Date:
07/16/24
[TENTATIVE] RULING RE:
Petitioner Guardian Ad Litem Maria Fredholms Expedited Petition to Approve Compromise of Pending Action for Minor of Person with a Disability.
T
he named Plaintiffs bring this breach of habitability suit against their landlords or former landlordsDefendants R.E.C. Development, Inc. and LANbased on allegations that the Defendants rented to the Plaintiffs four different rental units with numerous alternate uninhabitable conditions and that the Defendants faileddespite numerous complaints by the Plaintiffsto remediate these conditions in the Plaintiffs respective rental units, all located at 22307 Kent Avenue, Torrance, CA 90505 (Subject Premises). These conditions include(d): cockroach and rodent infestations; lack of adequate control of infestations; resulting health problems to tenants; water leaks and intrusion; toxic mold causing mold spores to float in the air and be inhaled by plaintiffs; holes and cracks in the ceilings and/or interior walls; damaged and deteriorated carpeting/flooring; inoperable heating; lack of air conditioning; lack of sanitary plumbing; lack of fixtures in bathrooms; inoperable stoves or ovens; broken kitchen cabinets; an unsanitary and unsafe pool; and extensive trash strewn across the common areas.
On May 21, 2024, Guardian Ad Litem Maria Fredholm filed with the Court an unopposed Expedited Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability (the Petition) in favor of Plaintiff Pelestene Fredholm. The Petition details a gross $50,000.00 Settlement between the Parties, with a distribution of gross distribution $45,100.00 to each Maria Fredholm and $4,900.00 for Pelestene Fredholm, and a final net settlement of $3,551.41 for Pelestene Fredholm.
Expedited Petition to Approve Compromise for Minor or Person with Disability: GRANTED
Legal Standard
: Under Code of Civil Procedure section 372, any settlement of a claim made by a minor or adult with a disability must be approved by the Court.
(See also Prob. Code § 3600, subd. (b) [a compromise or covenant for a disputed claim or damages, money, or other property of a minor or person who lacks legal capacity is valid only after it has been approved by the superior court].) ¿A petition for court approval of a compromise of a minor or disabled adults compromise or settlement of a pending action or proceeding to which this person is a party must be verified by the petitioner and must contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise, covenant, settlement, or disposition.
(Cal. Rules of Court, rule 7.950; see also Cal. Rules of Court, rules 7.951-52.)
The petition is generally submitted on a completed
Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability
(form MC-350).
(Cal. Rules of Court, rule 7.950.)
If the Court is satisfied that the settlement is in the best interest of the¿person, then the Court should approve the settlement.¿¿(See
Pearson v. Superior Ct.
¿(2012) 202 Cal.App.4th 1333, 1338.)¿¿¿¿
Procedural Requirements
: A review of the instant Petition shows that it meets the requirements of California Rules of Court, rules 7.950 to 7.955.
The Petitions satisfy California Rules of Court, rule 7.950.
Petitioner Maria Fredholm submits a verified Civil Form MC-350EX seeking a settlement between R.E.C. Development, Inc. also known as Real Estate Connection (R.E.C., Development, Inc.) and Pelestene Fredholm. (See Petition, p. 7 [Petitioner verification].)
Further, the Petition contains a full disclosure of all information that has any bearing upon the reasonableness of the compromise, covenant, settlement, or disposition, in satisfaction of California Rules of Court, rule 7.950.
The Petition details $50,000.00 in gross settlement funds to be distributed to the Fredholm family.
(Petition, ¶ 3.)
Plaintiff Maria Fredholm is set to receive the gross settlement of $45,100.00.
(Petition, Attach. 12.)
Pelestene Fredholm is set to receive a gross settlement of $4,900.00 and net compromise of $3,551.41.
(Petition, ¶ 17(f), Attach. 12; Attach. 19(b)(4).)
Additionally, $1,225.00 of the Pelestene Fredholms net settlement will be used to pay attorneys fees.
(Petition, ¶ 17(c), 14(a).) Moreover, the remaining $123.59 will be used to pay the expenses which include mediation and filing fees. (Petition 17(e), see also Ohn Decl. ¶ 8 [limiting its cost reimbursement request as to the Minor Plaintiff in the amount of $123.59].)
The Petition satisfies California Rules of Court, rule 7.951.
This requirement provides that where a petitioner that has been represented or assisted by an attorney in preparing the petition to compromise the claim or in any other respect with regard to the claim, the petition must disclose specific information, which the Petition contains as follows:
(1) The name, state bar number, law firm, if any, and business address of the attorney. (Ohn Decl. p.1) [Gerald S. Ohn, SBN 217382, The Law
Offices of Gerald S. Ohn, APC, 800 South Figueroa Street, Suite 750 Los Angeles, CA 90017].)
(2) Whether the attorney has received any attorneys fees or other compensation for services provided in connection with the claim giving rise to the petition or with the preparation of the Petition, and, if so, the amounts and the identity of the person who paid the fees or other compensation.
(Petition, ¶ 18(b) [has not nor expects to receive]).
(3) Whether the attorney became involved with the Petition, directly or indirectly, at the instance of any party against whom the claim is asserted or of any partys insurance carrier.
(N/A).
(4) Whether the attorney represents or is employed by any other party or any insurance carrier involved in the matter.
(Petition ¶ 18(a), Attach. 18(a) [is representing another party, i.e., all of the plaintiffs in this action which is the subject of this Petition]).
(5) If the attorney has not received any attorneys fees or other compensation for services provided in connection with the claim giving rise to the petition or with the preparation of the Petition, whether the attorney expects to receive any fees or other compensation for these services, and, if so, the amounts and the identity of the person who is expected to pay the fees or other compensation.
(Petition, ¶ 17(d), Ohn Decl. ¶ 8) [is not being compensated by another party]).)
(6) The terms of any agreement between the petitioner and the attorney.
(Petition, Attach. 14(a) [Redacted Attorney-Client Retainer Agreement].)
The Guardian Ad Litem Petitioner and Plaintiff satisfy California Rules of Court, rule 7.952.
The Petition states that $3,551.41 be paid or delivered to a parent of the minor on the terms and under the conditions specified in Probate Code sections 3401-3402, without bond. The name of the parent is MARIA FREDHOLM and her current address is P.O. Box 1783 Lynwood, CA 90262. Thus, a separate check in the amount of $3,551.41 shall be issued to Petitioner and parent MARIA FREDHOLM. (Petition Attach. 19b(4).)
The Petition need not satisfy California Rules of Court, rule 7.954.
This rule provides the requirements for requesting the withdrawal of funds already deposited in favor of a minor or person with a disability pursuant to a prior compromise, which is not the case here.
(See Petition generally.)
The Petition satisfies California Rules of Court, rule 7.955.
This rule requires that the Court determine whether the attorneys fees charged of a minor or a person with a disability are reasonable.
Here, the Petition contains a Declaration from Gerald S. Ohn, Esq.the attorney who represents the Plaintiffsindicating that Pelestene Fredholm will be paying 25% of their $4,900.00 gross settlementi.e., $1,225.00toward Mr. Ohns legal services.
(Petition, Attach. 14(a).)
The Court finds that a 25% recovery for the type of action at bar is reasonable.
Substantive Requirements
: The Court finds that the settlement is in the best interests of Pelestene Fredholm.
(See
Pearson
,
supra
, 202 Cal.App.4th at p. 1338.)
Pelestene Fredholm will receive $4,900.00 of which $1,348.59 will be used for attorneys fees and costs. The remainding $3,551.41 will be paid or delivered to a parent of the minor on the terms and under the conditions specified in Probate Code sections 3401-3402, without bond. Thus, a separate check in the amount of $3,551.41 shall be issued to Petitioner and parent MARIA FREDHOLM. (Petition Attach. 19b(4).) The remaining $45,100.00 of the Settlement will be distributed to her parent, Maria Fredholm is in the best position to care for her children and can use the remaining proceeds of the Settlement to further the economic welfare and physical wellbeing of Pelestene Fredholm.
Conclusion
: Accordingly, the Expedited Petition for Approval of Compromise is GRANTED.
Conclusion
Guardian Ad Litem Maria Fredholms Petition for Approval of Compromise for Minor or Adult with Disability on behalf of Pelestene Fredholm is GRANTED because the Petition meets all requirements set forth in California Rules of Court rules 7.590 to 7.595 and the Court is satisfied that the Settlement is in the best interests of Plaintiff Pelestene Fredholm.
Ruling
OYEKUNLE JEGEDE VS 90018 COLLECTION LLC, ET AL.
Jul 15, 2024 |
24STCV07725
Case Number:
24STCV07725
Hearing Date:
July 15, 2024
Dept:
71
Superior Court of California
County of Los Angeles
DEPARTMENT 71
TENTATIVE RULING
OYEKUNLE JEGEDE
,
vs.
90018 COLLECTION LLC, et al.
Case No.:
24STCV07725
Hearing Date:
July 15, 2024
Moving Defendant
90018 Collection LLC
s
demurrer to
pro per
Plaintiff Oyekunle Jegedes complaint is sustained
with
20 days leave to amend.
Defendant 90018 Collection LLCs motion to strike portions of Plaintiffs complaint is denied as moot.
Defendant 90018 Collection LLC (90018 Collection) (Moving Defendant) demurs to the Complaint and each cause of action in
pro per
Plaintiff
Oyekunle J
egede
s (Jegede) (Plaintiff) complaint (Complaint) on the grounds Plaintiffs Complaint and each cause of action fails to state facts on which relief may be granted and is uncertain.
(Notice of Demurrer, pgs. 1-3; C.C.P. §§430.10(e), (f).)
Moving Defendant also filed a motion to strike portions of Plaintiffs Complaint.
(Notice of MTS, pgs. 1-3; C.C.P. §436(b).)
Meet and Confer
Before filing a demurrer, the demurring party must meet and confer
in person, by telephone, or by video conference
with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer.
(C.C.P. §430.41(a), emphasis added.)
The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.
(C.C.P. §430.41(a)(3).)
Moving Defendants counsel submitted a meet and confer declaration stating that she met and conferred with Plaintiff telephonically on May 21, 2024.
(
See
Decl. of Windler ¶2.)
Moving Defendants counsel declares she explained to Plaintiff the defects in the complaint and the parties were not able to come to an agreement on the pleadings.
(
See
Decl. of Windler ¶2.)
Accordingly, the Court will consider Moving Defendants demurrer.
Background
Plaintiff filed the operative Complaint on March 27, 2024, against Defendant and Non-moving Defendants Winston Cenac, Trustee of the Island Boy Trust (Cenac), Shelby Ring (Ring), the Law Offices of Rebecca Hufford-Cohen (Law Offices), and On Time (On Time) (collectively, Defendants) alleging four causes of action: (1) illegal eviction; (2) illegal theft; (3) discrimination; and (4) fraud.
Plaintiff alleges that on November 9, 2023, he was a tenant at
238 1⁄2 Market Street, Venice, CA 90291
, and was subjected to an eviction by Moving Defendant.
(Complaint ¶1.)
Plaintiff alleges
on November 28, 2021, property valued at over $150,000.00 was removed without his consent, and this occurred two weeks after the alleged eviction.
(Complaint ¶1.)
Plaintiff alleges he fulfilled all payments by July 24, 2023, as outlined in a stipulation agreement with Cenac.
(Complaint ¶2.)
Plaintiff alleges Cenac filed an ex parte that alleged non-payment and included a misleading hearing notice that led to an erroneous judgment.
(Complaint ¶2.)
Plaintiff alleges he uncovered the use of Moving Defendants improper use of documentation for the eviction.
(Complaint ¶3.)
Plaintiff alleges
a conspiracy involving Cenac, Law Office, and On Time.
(Complaint ¶3.)
Plaintiff alleges
On Time participated in the enforcement of the eviction and the confiscation of Plaintiffs property.
(Complaint ¶3.)
Plaintiff alleges
that following the eviction, Moving Defendant and Jason Pennington, Ring, and On Time initiated major reconstruction without permits from the Los Angeles Housing Authority and displaced Plaintiff and violated the health rights of tenants.
(Complaint ¶4.)
Moving Defendant filed the instant demurrer and accompanying motion to strike on May 21, 2024.
Plaintiff filed his oppositions on July 5, 2024.
Moving Defendant filed its replies on July 8, 2024.
A.
Demurrer
Summary of Demurrer
Moving Defendant demurs to Plaintiffs Complaint on the grounds that the entire Complaint and each cause of action alleged therein fails to state facts on which relief may be granted and is uncertain.
(Notice of Demurrer, pgs. 2-3; C.C.P. §§430.10(e), (f).)
Legal Standard
[A] demurrer tests the legal sufficiency of the allegations in a complaint. (
Lewis v. Safeway, Inc.
(2015) 235 Cal.App.4th 385, 388.)
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.
(
See Donabedian v. Mercury Insurance Co.
(2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].)
For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law.
(
Aubry v. Tri-City Hospital District
(1992) 2 Cal.4th 962, 967.)
Failure to State a Claim
Illegal Eviction (1st COA)
California recognizes the tort of wrongful eviction.
(
See Barkett v. Brucato
(1953) 122 Cal.App.2d 264, 275.)
An essential element of a wrongful eviction claim is that the tenant has vacated the premises. [Citations.] (
Ginsberg v. Gamson
(2012) 205 Cal.App.4th 873, 900.)
The elements of a cause of action in tort for wrongful eviction are (1) the tenant has property rights and privileges with regard to the use or enjoyment that has been interfered with; (2) there has been a substantial invasion of those rights or privileges; (3)
the conduct of the landlord is the legal cause of the invasion of the tenants rights or privileges
; and (4) the
invasion is intentional and unreasonable, or
unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct
.
(
Tooke v. Allen
(1948) 85 Cal.App.2d 230, 237.)
Plaintiff fails to allege Moving Defendant is the landlord of 238 1⁄2 Market Street, Venice, CA 90291, factual allegations that Moving Defendant substantially invaded his rights as a tenant, that Moving Defendants as the landlord is the legal cause of the invasion of the tenants rights or privileges, and that Moving Defendants invasion was intentional and unreasonable, or
unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct.
Accordingly, Moving Defendants demurrer to Plaintiffs 1st cause of action is sustained
with
20 days leave to amend.
Illegal Theft (2nd COA)
Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiffs ownership or right to possession of the property; (2) the defendants conversion by a wrongful act or disposition of property rights; and (3) damages.
(
Lee v. Hanley
(2015) 61 Cal.4th 1225, 1240 [191 Cal.Rptr.3d 536, 354 P.3d 334].)
To prove a cause of action for conversion, the plaintiff must show the defendant acted intentionally to wrongfully dispose of the property of another.
(
Duke v. Superior Court
(2017) 18 Cal.App.5th 490, 508.)
[C]onversion is a strict liability tort. It does not require bad faith, knowledge, or even negligence; it requires only that the defendant have intentionally done the act depriving the plaintiff of his or her rightful possession. (
Voris v. Lampert
(2019) 7 Cal.5th 1141, 1158.)
Plaintiff fails to identify the property valued at over $150,000.00 that was removed without his consent.
(
See
Complaint ¶1.)
Accordingly, Moving Defendants demurrer to Plaintiffs 2nd cause of action is sustained
with
20 days leave to amend.
Discrimination (3rd COA)
The elements of the cause of action for housing discrimination are: (1) Plaintiff was a member of a protected class; (2) applied for and was qualified for a housing accommodation; (3) was denied a housing accommodation; and (4) circumstantial evidence of discriminatory motive, such as similarly situated individuals applied for and obtained housing.
(
Department of Fair Employment and Housing v. Superior Court
(2002)
99 Cal.App.4th 896, 902
.)
Plaintiff fails to allege the protected class he belongs to for which Moving Defendant based its impermissible decision to deny Plaintiffs application for a housing accommodation.
Plaintiff fails to allege he applied for and was qualified for a housing accommodation.
Plaintiff fails to allege circumstantial evidence of a discriminatory motive.
Further, Plaintiff fails to allege he filed a complaint with the Department of Fair Employment and Housing (DFEH) against Moving Defendant prior to filing the instant action.
(
See
Govt. Code §12980(h).)
Accordingly, Moving Defendants demurrer to the 3rd cause of action is sustained
with
20 days leave to amend.
Fraud (4th COA)
A complaint for fraud must allege the following elements: (1)
a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages
. (
Service by Medallion, Inc. v. Clorox Co.
(1996) 44 Cal.App.4th 1807, 1816 [combining misrepresentation and scienter as a single element].)
Fraud actions are subject to strict requirements of particularity in pleading.
(
Committee on Childrens Television, Inc. v. General Foods Corp.
(1983) 35 Cal.3d 197, 216.)
Fraud must be pleaded with specificity rather than with general and conclusory allegations.
(
Small v. Fritz Companies, Inc.
(2003) 30 Cal.4th 167, 184.)
The specificity requirement means a plaintiff must
allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made
.
(
Lazar v. Superior Court
(1996) 12 Cal.4th 631, 645;
West v. JPMorgan Chase Bank, N.A.
(2013) 214 Cal.App.4th 780, 793.)
Plaintiff fails to allege a knowingly false representation by the defendant, an intent to deceive or induce reliance, and justifiable reliance by the plaintiff.
Further, Plaintiff fails to allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made.
Accordingly, Moving Defendants demurrer to the 4th cause of action is sustained
with
20 days leave to amend.
B.
Motion to Strike
In light of the Courts ruling on Moving Defendants demurrer, Moving Defendants motion to strike is denied as moot.
Conclusion
Moving Defendants demurrer to Plaintiffs Complaint is sustained
with
20 days leave to amend as to the 1st, 2nd, 3rd, and 4th causes of action.
Moving Defendants motion to strike is denied as moot.
Moving Party to give notice.
Dated:
July _____, 2024
Hon. Daniel M. Crowley
Judge of the Superior Court
Ruling
TIFFANY FABER (GUARDIAN AD LITEM), ET AL. VS 2018-1 IH BORROWER LP, A DELAWARE LIMITED PARTNERSHIP,, ET AL.
Jul 11, 2024 |
23NWCV02916
Case Number:
23NWCV02916
Hearing Date:
July 11, 2024
Dept:
C
FABER v. 2018-1 IH BORROWER LP
CASE NO.:
23NWCV02916
HEARING:
07/11/24
#5
I.
Defendants 2018-1 IH BORROWER LP and INVITATION HOMES REALTY CALIFORNIA, INC.s Demurrer to Plaintiffs; Complaint is
OVERRULED
.
II.
Defendants 2018-1 IH BORROWER LP and INVITATION HOMES REALTY CALIFORNIA, INC.s Motion to Strike Portions of Plaintiffs; Complaint is
DENIED
.
Opposing Party to give notice.
This action was filed by Plaintiffs TIFFANY FABER; KAREEM KELLY; SARAI HILL; SHILOH HARRIS; and ELIJAHALI KELLY (collectively Plaintiffs) on September 14, 2023 concerning their tenancy at the Subject Property. (Complaint ¶13.)
Plaintiffs allege that [t]hroughout Plaintiffs tenancies, the Subject Property lacked basic characteristics necessary for human habitation& and would be considered a substandard unit as described in Heath & Safety Code §17920.3. (Complaint ¶14.)
The Complaint asserts the following causes of action:
(1)
Breach of Covenant/Covenant of Quiet Enjoyment/Warranty of Habitability;
(2)
Tortious Breach of the Implied Warranty of Habitability;
(3)
Negligence;
(4)
Violation of Unfair Business Practices; and
(5)
IIED
Defendants 2018-1 IH BORROWER LP and INVITATION HOMES REALTY CALIFORNIA, INC. (collectively Defendants) generally demur to the fifth cause of action for IIED.
Demurrer
The elements of a cause of action for intentional infliction of emotional distress are: (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress. (
Wong v. Jing
(2010) 189 Cal.App.4th 1354, 1376.) The conduct alleged must be so extreme and outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. (
Coleman v. Republic Indemnity Ins. Co
. (2005) 132 Cal.App.4th 403, 416.)
Here, the Complaint alleges that Plaintiffs constantly and consistently complained to the Defendants& about& slum-housing and untenable conditions including: inadequate plumbing; inadequate ventilation; dampness and mold; health and safety code violations; unsanitary conditions; and the failure to maintain the premises in a good and safe condition. (Complaint ¶15.) Plaintiffs further allege that [d]ue to the untenable conditions at the Subject Property which Defendants have allowed to persist unabated, Plaintiffs have developed serious health issues&. Plaintiffs have all suffered from, and continue to suffer from severe emotional distress. (Id. ¶21.)
The Complaint alleges that Defendants acted with reckless disregard of the probability of causing emotional distress, and have caused Plaintiffs severe emotional distress. These allegations are sufficient to support claims for IIED at this stage in the litigation. The demurrer to the fifth cause of action is OVERRULED.
Motion to Strike
Defendants move to strike Plaintiffs prayer for punitive damages.
A motion to strike lies either when (1) there is irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP §436.)
Punitive damages must be pled with specificity. Plaintiff must allege specific facts showing that the defendants conduct was oppressive, fraudulent, or malicious. (
Smith v. Sup. Ct
. (1992) 10 Cal.App.4th 1033, 1041-42.) For corporations, the advance knowledge and conscious disregard, authorization, ratification, or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Cal. Civ. Code §3294(b).)
In a personal injury action the notion of conscious disregard of the safety of others logically may be substituted for that of disregard of the rights of others& [C]onscious disregard of safety as an appropriate description of the animus malus which may justify an exemplary damage award when nondeliberate injury is alleged. (
G.D. Searle & Co. v. Sup. Ct
. (1975) 49 Cal.App.3d 22, 29.)
Here, Plaintiff adequately alleges that Defendants were aware of but failed to cure severe mold infestations and plumbing leaks for years, which caused physical harm to Plaintiffs. (See Complaint ¶¶17-22.) The motion to strike punitive damages is DENIED. The Complaint pleads sufficient facts to support a recovery of punitive damages at this stage in a litigation.
Ruling
In the Matter of: Inspection of: Assessor's Parcel Nos. 045-190-075 and 045-190-076 (23570 Geer Ave., Hilmar CA 95324)
Jul 10, 2024 |
23CV-02212
23CV-02212 In the Matter of Inspection of Assessor’s Parcel 045-190-075 & 045-190-
Mandatory Settlement Conference
Appearance required. Remote appearances are permitted. Parties who wish to appear
remotely must contact the clerk of the court at (209) 725-4111 to arrange for a remote
appearance.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MERCED
Limited Civil Calendar
Judge Pro Tem Peter MacLaren
Courtroom 9
627 W. 21st Street, Merced
Wednesday, July 10, 2024
10:00 a.m.
The following tentative rulings shall become the ruling of the court unless a party gives
notice of intention to appear as follows:
1. You must call (209) 725-4111 to notify the court of your intent to appear.
2. You must give notice to all other parties before 4:00 p.m. of your intent to appear.
Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will
result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance
provider) of your intent to appear does not satisfy the requirement of notifying the court.
IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing
transcript must make their own arrangements.
Case No. Title / Description
Ruling
Jensen vs. Wells Fargo Realty Services Inc
Jul 12, 2024 |
22CV-0200623
JENSEN VS. WELLS FARGO REALTY SERVICES INC
Case Number: 22CV-0200623
This matter is on calendar for review regarding status of the case. Defendant has been defaulted
in this case. A default prove-up hearing has not occurred. At the prior hearing on April 8, 2024,
Plaintiff’s Counsel appeared to inform the Court she was speaking with a bond company and to
request a continuance. The matter was continued to today but no status report has been filed. An
appearance is necessary on today’s calendar to discuss the status of the case and, if
appropriate, to re-set this mater for a default prove-up hearing.
Document
Van Duser Bros. Realty, Sean Van Duser v. T. J. Dippel Realty, Llc, Todd Dippel, John Does 1 Through 100, The Last 100 Names Being Fictitious And Intended To Designate All Persons Or Business Entities Having Or Claiming To Have Any Interest In The Premises Affected, Including Lienholders, Tenants Or Occupants, If Any, The Identity Of Same Being Unknown To Plaintiff
Jul 10, 2024 |
Real Property - Mortgage Foreclosure - Commercial |
Real Property - Mortgage Foreclosure - Commercial |
EF2024-1816
Document
Van Duser Bros. Realty, Sean Van Duser v. T. J. Dippel Realty, Llc, Todd Dippel, John Does 1 Through 100, The Last 100 Names Being Fictitious And Intended To Designate All Persons Or Business Entities Having Or Claiming To Have Any Interest In The Premises Affected, Including Lienholders, Tenants Or Occupants, If Any, The Identity Of Same Being Unknown To Plaintiff
Jul 10, 2024 |
Real Property - Mortgage Foreclosure - Commercial |
Real Property - Mortgage Foreclosure - Commercial |
EF2024-1816
Document
Van Duser Bros. Realty, Sean Van Duser v. T. J. Dippel Realty, Llc, Todd Dippel, John Does 1 Through 100, The Last 100 Names Being Fictitious And Intended To Designate All Persons Or Business Entities Having Or Claiming To Have Any Interest In The Premises Affected, Including Lienholders, Tenants Or Occupants, If Any, The Identity Of Same Being Unknown To Plaintiff
Jul 10, 2024 |
Real Property - Mortgage Foreclosure - Commercial |
Real Property - Mortgage Foreclosure - Commercial |
EF2024-1816
Document
M&T Bank v. Roseann Daw , Ulster County Commissioner of Finance as Limited Administrator of the Estate of Lois Buttenheim, Sarah Hvozda, Esq., As Guardian Ad Litem Of The Unknown Heirs Of The Estate Of Lois Buttenheim, New York State Department Of Taxation And Finance, John Doe #1 Through #6, And Jane Doe #1 Through #6, The Last Twelve Names Being Fictitious, It Being The Intention Of Plaintiff To Designate Any And All Occupants, Tenants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or Lien Upon the premises being foreclosed herein
Jul 08, 2024 |
Real Property - Mortgage Foreclosure - Residential |
Real Property - Mortgage Foreclosure - Residential |
EF2024-1787
Document
Van Duser Bros. Realty, Sean Van Duser v. T. J. Dippel Realty, Llc, Todd Dippel, John Does 1 Through 100, The Last 100 Names Being Fictitious And Intended To Designate All Persons Or Business Entities Having Or Claiming To Have Any Interest In The Premises Affected, Including Lienholders, Tenants Or Occupants, If Any, The Identity Of Same Being Unknown To Plaintiff
Jul 10, 2024 |
Real Property - Mortgage Foreclosure - Commercial |
Real Property - Mortgage Foreclosure - Commercial |
EF2024-1816
Document
Van Duser Bros. Realty, Sean Van Duser v. T. J. Dippel Realty, Llc, Todd Dippel, John Does 1 Through 100, The Last 100 Names Being Fictitious And Intended To Designate All Persons Or Business Entities Having Or Claiming To Have Any Interest In The Premises Affected, Including Lienholders, Tenants Or Occupants, If Any, The Identity Of Same Being Unknown To Plaintiff
Jul 10, 2024 |
Real Property - Mortgage Foreclosure - Commercial |
Real Property - Mortgage Foreclosure - Commercial |
EF2024-1816
Preview
FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024 SUPREMECOURT STATEOFNEWYORK COUNTYOFULSTER CITIZENS BANK,N.A., Plaintiff, SMONS -against- Index No. Filed: SUSANGAFFNEYa/lda SUSANM. GAFFNEY; SANTANDER BANK, N.A. s/b/m to The Savings and Loan Association of Newburgh, NewYork; and "JOHN DOE#1" through "JOHN DOE#12", the last twelve names being fictitious and unknown to Plaintiffs, 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, Defendants. NOTICE UNDER FAIR DEBTCOLLECTIONSPRACTICESACT THIS LAWFIRM IS ATTEMPTINGTOCOLLECTA DEBTAND ANYINFORMATIONOBTAINEDWILL BE USEDFORTHATPURPOSE. WEARENOTATTEMPTINGTOCOLLECTMONEYFROMANYPERSON WHOHASRECEIVEDA DISCHARGEOFTHIS DEBTUNDER UNITED STATESBANKRUPTCYLAWS. TOTHEABOVE-NAMED DEFENDANTS: YOUAREHEREBYSUMMONED and required to serve upon Plaintiffs attorneys an answer to the complaint in this action within twenty (20) days after the service of this summons, exclusive of the day of service, or within thirty (30) days complete if the after service is summons is not personally served upon you within the State ofNew York. The United States, if designated a Defendant on this action, may appear or answer within sixty (60) days of service. In case of your failure to answer, judgment will be taken against you for the relief demandedin the complaint. The basis of the venue designated is that the mortgaged property is located in Ulster County. NOTICE YOUAREIN DANGEROF LOSING YOURHOME 1 of 16 FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024 If you do not respond to this summonsand complaint by serving a copy of the answer on the attorney for the mortgage company who filed this foreclosure proceeding against you and filing the answer with the court, judgment may be entered and you can lose your home. a default Speak to an attorney or go to the court where your case is pending for further information on how to answer the summonsand protect your property. Sending a payment to your mortgage company will not stop this foreclosure action. YOUMUSTRESPONDBY SERVINGA COPYOFTHEANSWER ONTHE ATTORNEYFORTHE PLAINTIFF (MORTGAGE COMPANY)ANDFILING THE ANSWER WITHTHE COURT. DATED: May 15, 2024 COOPERERVING& SAVAGELLP Albany, NewYork By: atthew E. M field, Esq. Attorneys for Plaintiff Woods Boulevard, 20 Corporate Suite 501 Albany, NewYork 12211 (518) 449-3900 2 of 16 FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024 NOTICE OF OBJECTOFACTIONANDRELIEF SOUGHT THEOBJECTof the above entitled action is to foreclose a mortgage to secure $25,000.00 and interest recorded in the office of the Clerk of the County of Ulster on January 22, 2008, in Book MVolume 8658 at page 159 as Instrument No. 2008-00001393 covering premises described as follows: 19 FELLICELO DRIVE, TOWN COUNTY OFMARLBOROUGH, OFULSTER,STATEOFNEWYORK. The relief sought in the within action is: (1) a final judgment directing the sale of the premises described above to satisfy the debt secured by the mortgage described above; and (2) for a deficiency judgment against one of the makers/guarantors of the note(s) or mortgage(s) herein. TOTHEDEFENDANT SUSANGAFFNEYa/k/a SUSANM. GAFFNEY:The Plaintiff makes personal claims against you in this action. Dated: May 15, 2024 Albany, NewYork COOPERERVING& SAVAGELLP BY: atthew E. Minnig ield, Esq. Attorneys for Plaintiff Woods Boulevard, 20 Corporate Suite 501 Albany, New York 12211 (518) 449-3900 3 of 16 FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024 Help for Homeowners in Foreclosure NewYork State Law requires that we send you this notice about the foreclosure process. Please read it carefully. Summonsand Complaint You are in danger your home. If you fail to respond to the summonsand of losing complaint in this foreclosure action, you may lose your home. Please read the summons and complaint carefully. You should immediately contact an attorney or your local legal aid office to obtain advice on how to protect yourself. Sources of Information and Assistance The State encourages you to become informed about your options in foreclosure. In addition to seeking assistance from an attorney or legal aid office, there are government agencies and non-profit organizations that you may contact for information about possible options, including trying to work with your lender during this process. To locate near you, you may call the toll-free an entity helpline maintained by the New York Department of Financial Services at 1-800-342-3736 or visit the Department's website at www.dfs.ny.gov. Rights and Obligations YOUARENOTREQUIREDTOLEAVEYOURHOME AT THIS TIME. You have the right your home during the foreclosure to stay in process. You are not required to leave your home unless and until your property is sold at auction pursuant to a judgment of foreclosure and sale. Regardless of whether you choose to remain in your home, YOUAREREQUIREDTO TAKECAREOFYOURPROPERTYand pay property taxes in accordance with state and local law. Foreclosure Rescue Scams "save" your home. Be careful of people who approach you with offers There are to individuals who watch for notices of foreclosure action in order to unfairly profit from a homeowner's distress. You should be extremely careful about any such promises and any suggestions that you pay them a fee or sign over your deed. State law requires anyone offering such services for profit to enter into a contract which fully describes the services they will perform and fees they will charge, and which prohibits them from taking any money from you until they have completed all such promised services. Notice required by Real Property Actions and Proceedings Law Section 1303. 202902 REE1/2017 4 of 16 FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024 SUPREMECOURT STATEOFNEWYORK COUNTYOFULSTER CITIZENS BANK,N.A., Plaintiff FOREGOSM ' COMPLAINT -against- Index No. SUSANGAFFNEYa/k/a SUSANM. GAFFNEY; Fikd· SANTANDER BANK,N.A. s/b/m to The Savings and Loan Association of Newburgh, NewYork; and "JOHN DOE#1" through "JOHN DOE#12", the last twelve names being fictitious and unknown to Plaintiffs, the persons or parties being the tenants, occupants, persons or intended corporations, having or claiming an interest in or if any, lien upon the premises described in the complaint, Defendants. NOTICE UNDERFAIR DEBTCOLLECTIONSPRACTICESACT THIS LAWFIRM IS ATTEMPTINGTOCOLLECTA DEBTAND ANYINFORMATIONOBTAINEDWILL BE USEDFORTHATPURPOSE. WEARENOTATTEMPTINGTOCOLLECTMONEY FROMANYPERSON WHOHASRECEIVEDA DISCHARGEOFTHIS DEBTUNDER UNITED STATESBANKRUPTCY LAWS. Plaintiff, complaining of Defendants by ERVING& SAVAGE COOPER LLP, its attorneys, alleges: AS ANDFORA FIRST CAUSEOFACTION 1. At all times mentioned herein, Plaintiff CITIZENS BANK,N.A., was and still is a national bank organized and existing by and through the Comptroller of the Currency of the United States of America, with its principal office in the City of Providence and County of Providence and State of Rhode Island and is formerly known as RBSCitizens, N.A. The name Citizens Bank, N.A. became effective April 16, 2014. 5 of 16 FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024 2. Upon information and belief, any Defendants denominated as a corporation in the above captioned action is a NewYork corporation. If any such Defendant is a foreign corporation, the basis of jurisdiction is said Defendant is authorized to conduct business within the State of NewYork by the Secretary of State or Defendant's de facto transaction of business within the State of NewYork. 3. Upon information and belief, Defendant SUSANGAFFNEYa/k/a SUSANM. GAFFNEYwas and still is a resident of the County of Ulster, State of New York. Title of record is vested in SUSANGAFFNEYa/k/a SUSANM. GAFFNEYand Albert J. Perkowski III, as to a life estate pur autre vie Fay C. Perkowski a/k/a Fay Christina Perkowski. However, the said Fay C. Perkowski a/k/a Fay Christina Perkowski died on November 29, 2009, extinguishing Albert J. Perkowski's life estate pur autre vie in the subject mortgaged premises, leaving SUSAN GAFFNEYa/k/a SUSANM. GAFFNEYas the owner in fee of the within mortgaged premises. 4. Upon information and belief, no party to this action is an infant, incompetent or absentee. 5. The subject mortgaged premises which are the object of this action are situate, lying and being in the County of Ulster and State of NewYork. 6. On or about January 7, 2008, SUSANGAFFNEYa/k/a SUSANM. GAFFNEY, for the purpose of evidencing her obligation to RBSCitizens, N.A. for the payment of $25,000.00 loaned by RBSCitizens, N.A. to said Defendant and the performance of certain obligations therein set forth and incorporated herein by reference for value received, duly executed a certain Secondary Mortgage Loan HomeEquity Line of Credit Agreement (the "Note") by which she obligated herself, her heirs, personal representatives, successors and assigns, and each and every one of them, jointly and severally, for the payment and performance 6 of 16 FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024 of said Note all as more fully appears in said Note, and in the terms, covenants and conditions thereof. 7. As collateral security for the payment and performance of said Obligation, SUSANGAFFNEYa/k/a SUSANM. GAFFNEYexecuted, acknowledged and delivered to RBSCitizens, N.A., a Credit Line Mortgage, wherein and whereby said Defendant granted, sold and mortgaged to RBSCitizens, N.A., its successors and assigns, the following described premises ("Mortgaged Premises"): **See Schedule "A" Attached** SUBJECTto any and all enforceable covenants, easements and restrictions of record, under the terms, covenants and conditions more fully set forth in the Mortgage. 8. Said Mortgage was duly recorded (and the mortgage tax due thereon was duly paid) in the Ulster County Clerk's Office on January 22, 2008, in Book MVolume 8658 at page 159 as Instrument No. 2008-00001393. 9. Plaintiff is the owner and holder of the subject mortgage and note, or has been delegated authority to commence the mortgage foreclosure action by the owner of the note and mortgage and has complied with all the provisions of Banking Law Section 595-a, and any rules and regulations promulgated there under, Banking Law Sections 6-1 and 6-m and RPAPL Section 1304, including without limitation, the delivery of the 90 day Notice required by RPAPL § 1304. 10. Plaintiff has heretofore complied with the electronic filing provisions of RPAPL Section 1306. 11. Defendant SUSANGAFFNEYa/k/a SUSANM. GAFFNEYhas failed and neglected to comply with the terms, covenants and conditions of said Agreement by omitting and 7 of 16 FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024 failing to pay items of principal and interest, and in particular, Defendant has failed and neglected to make the payment of principal and interest due on August 11, 2023, and on the eleventh day of each subsequent month. Accordingly, the Plaintiff has previously elected and hereby elects to call due the entire balance presently secured by said Note. 12. There is due and owing to the Plaintiff upon above Note as of May 15, 2024: Principal $15,823.52 Interest from 08/11/23 to and including 05/15/24 1,138.43 Escrow Advance 18,365.18 Total-Fees 50.50 Late Charges 108.98 Recoverable Balance 715.00 Total $36,201.61 13. No other action or proceeding has been commenced or maintained or is now pending at law or otherwise for the foreclosure of said mortgage or for recovery of the said sum secured by said Note or any part thereof. 14. The aforesaid Mortgage contained a provision in paragraph 28 thereof, that in the event Plaintiff was required to enforce said Note, it was agreed that Plaintiff may add all reasonable legal fees, costs, allowances and disbursements to the amount owed to Plaintiff, together with interest. Plaintiff claims reasonable attorney's fees, costs, allowances and disbursements in a sum to be fixed by the Court upon timely application for same. 15. Plaintiff shall not be deemed to have waived, altered released or changed the election to accelerate hereinbefore made, or any or all of the defaults mentioned herein by reason of any payment made by or on behalf of the Defendant after the commencement of this action, and such election shall continue and remain effective. 8 of 16 FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024 16. Plaintiff requests that in the event that this action will proceed to judgment of foreclosure and sale, said premises should be sold subject to the following: (a) Any state of facts that an inspection of the premises would disclose; (b) Any state of facts that an accurate survey of the premises would show; (c) Covenants, restrictions, easements and public utility agreements of record, if any; (d) Building and zoning ordinances of the municipality in which the mortgaged premises are located and possible violations of the same; (e) Any rights of tenants or persons in possession of the subject premises; (f) Any equity of redemption of the United States of America to redeem the premises within 120 days from date of sale; (g) Any equity of redemption of the Federal Deposit Insurance Corporation as a consequence of the receivership of a Defendant in this action, if any; (h) Prior mortgage liens of record, if any, and any advances and arrears thereunder, if any; and (i) Prior lien(s) of record, if any. 17. In the event the Plaintiff possesses any other lien(s) against said mortgaged premises either by way of judgment, junior mortgage or otherwise, Plaintiff requests that such other lien(s) shall not be merged in Plaintiff s cause(s) of action set forth in this complaint, but the Plaintiff shall be permitted to enforce said other lien(s) and/or seek determination of priority thereof in any independent action(s) or proceeding(s), including, without limitation, any surplus money proceedings. 18, Plaintiff believes that during the pendency of this action, in order to protect the security of the within Note, it may be compelled to make advances on its own account or to prior 9 of 16 FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024 mortgagees, if any, for installments of principal and interest, taxes, assessments, water rates, and/or fire insurance premiums that are or may become due under said prior mortgage or to the receiver of taxes, or to the fire insurance company, and to make advances to preserve and/or secure the mortgaged premises which advances are to be included in the balance due to Plaintiff, plus interest, as provided for in the within mortgage foreclosed and deemed further secured thereby. 19. Each of the Defendants named in the within captioned action have, or claim to have, some interest in the mortgaged premises, as more fully set forth below, which such interest is subsequent, subordinate and junior to the lien of Plaintiff s mortgage. #1" #12" tenants or sub- 20. Defendants "John Doe through "John Doe are possible tenants in possession of the premises whose true name is now unknown to Plaintiff who have, or claim to have, a leasehold or other possessory interest in the premises, which said interest if any, is subject to the lien held by Plaintiff. 21. Plaintiff has no adequate remedy at law. AS ANDFORA SECOND CAUSEOFACTION 22. Plaintiff repeats and realleges with the same force and effect as if fully set forth at "1" "21" length herein the allegations stated and contained in Paragraphs through above. 23. By mutual mistake of Plaintiff and Defendant and by scrivener's error, the schedule "A" description attached to the subject mortgage fails to recite the legal property description: "ALL THATCERTAINPIECE, PARCEL, ORLOT OFLAND, situate, lying and being in the Town of Marlborough, County of Ulster and State of New York, more particularly described as follows: BEG1NNING at a point on the southwesterly line of lands of now or 48° 30' 20" East 290.51 and South 48° formerly Hester & Abiah, said point being distant feet 10 of 16 FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024 10' 20" East 294.20 measured along said division from the intersection of said feet, line, division line with the southeasterly line of Lattintown Road and running Thence along said South 47° 55' 20" East 239.61 feet to a point; Thence leaving and running division line, said line over and through lands of Felicello Realty Corp., along the northerly line of Lot No. 4 as shown 25' on a certain map entitled Felicello Estates, South 71° 40 West 305.21 feet to a point on the northeasterly line of a proposed road, Felicello Drive; Thence along the northeasterly line of said proposed road, Felicello Drive, on a curve convex to the northeast having a radius of 175.00 feet and a length northwesterly 91.49 feet to a point; Thence leaving said line and running over and through lands of aforesaid Felicello Realty Corp., along the southerly line of Lot No. 2 as shown 29' 40" on a certain map entitled Felicello Estates, North 41° East 243.58 feet to the point of beginning" paragraph as recited in the deed chain. The Exhibit A description annexed to the mortgage does clearly contain the correct tax parcel number. 24. Plaintiff has no adequate remedy at law unless the subject mortgage description be reformed so that the description of said subject mortgaged premises reads as shown on Schedule "A" annexed hereto. AS ANDFORA THIRD CAUSEOFACTION 25. Plaintiff repeats and realleges with the same force and effect as if fully set forth at "1" "24" length herein the allegations stated and contained in Paragraphs through above. 26. On or about July 31, 1972, Albert J. Perkowski and Fay C. Perkowski, his wife, entered into a mortgage transaction with The Savings and Loan Association of Newburgh, New York for a mortgage on the subject mortgaged premises in the amount of $20,000.00 which was recorded in the Ulster County Clerk's Office on August 22, 1972 in Liber 1044 at page 197. 11 of 16 FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024 27. Said mortgage was modified by a Consolidation, Extension, and Modification Agreement dated May21, 1976, increasing the principal balance to $26,200.00 and including a term of 20 years. Said mortgage was recorded on May 25, 1976, in the Ulster County Clerk's Office in Liber 1355 at page 265. 28. Upon information and belief, said mortgage was paid in full and a discharge of mortgage was never filed. 29. Defendant SANTANDER BANK,N.A. is the successor by merger to The Savings and Loan Association of Newburgh, New York. 30. The above mortgage was due and owing more than 20 years ago and, as such, should be considered an ancient mortgage and should be discharged of record pursuant to RPAPL1931. WHEREFORE, Plaintiff demandsjudgment against the Defendants as follows: ONTHEFIRST CAUSEOFACTION a. Adjudging and decreeing the amounts due the Plaintiff on the Obligation including principal, interest, expenses, and any amounts advanced by Plaintiff for taxes, water rents, insurance premiums or other costs or expenses pursuant to said Mortgage; b. That the Defendants and all persons claiming by, through or under them or either of them, subsequent to the commencementof this action and the filing of a notice pendency hereof, be barred and forever foreclosed of and from all estate, right, title, interest, claim, lien and equity of redemption of, in and to the Mortgaged Premises, and each and every part and parcel thereof; c. That the Mortgaged Premises be ordered to be sold, according to law; 12 of 16 FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024 d. That out of the monies arising from the sale thereof, the Plaintiff may be paid the amount adjudged to be due on said Note as herein above set forth, with interest to the time of such payment and the expenses of such sale, together with the Plaintiff s expenses, and the costs, allowances and disbursements of this action, and any monies advanced and paid pursuant to the terms and provisions of said Note or to protect the lien of said Mortgage, together with taxes, water and sewer charges, insurance premiums, and all other charges and liens thereon to be paid, with interest upon those amounts from the dates of the respective payments and advances thereon, so far as the amount of such monies properly applicable thereto will pay the same; e. That a receiver be appointed forthwith to collect the rents and profits of the Mortgaged Premises during the pendency action with the usual powers and duties; f. That any judgment or other liens of the Plaintiff arising subsequent to said Note be foreclosed herein and be deemedtransferred to any surplus monies arising from the sale of the Mortgaged Premises with the same priority which such liens had with respect to the Mortgaged Premises, specifically reserving to the Plaintiff its right to share in such surplus monies in accordance with the priority of such liens, all as though Plaintiff were named herein as a party Defendant; g. That the Court award Plaintiff reasonable attorney fees, costs, allowances and disbursements; h. That Defendant SUSANGAFFNEYa/k/a SUSANM. GAFFNEYbe adjudged to pay any deficiency that may remain after the applying of all of the said monies so applicable thereto; and 13 of 16 FILED: ULSTER COUNTY CLERK 05/15/2024 02:57 PM INDEX NO. EF2024-1290 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2024 i. Awarding Plaintiff such other and further relief as to the Court may seemjust and proper. ONTHESECONDCAUSEOFACTION j. To reform the description made a part of the mortgage to contain the language Schedule "A" herein. set forth in ONTHETHIRD CAUSEOFACTION k. That the mortgage recorded on May 25, 1976, in the Ulster County Clerk's Office in Liber 1355 at page 265 may be discharged of record. Dated: May 15, 2024 COOPERERVING& SAVAGE LLP Albany, NewYork By: Matthew E. Minniefidld, Esq. Attorneys for Plaintiff 20 Corporate Woods Boulevard, Suite 501