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WAYN OUN PK BV INDEX NO. CV089756
NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/21/2024
At the Supreme Court of the State of New
York held in and for the County of Wayne,
at the Courthouse thereof, at 54 Broad
Street, Lyons, NY 14489, onthe 2€ day
of “y 202
HON. RICHARD HEALY, J.S.C.
GITSIT SOLUTIONS LLC, Index No. CV089756
Plaintiff JUDGMENT OF FORECLOSURE
-against- AND SALE
PAMELA J. MASSETTI A/K/A PAMELA MATTICE Mortgaged Premises
MASSETTI INDIVIDUALLY, AND AS SOLE HEIR 13 Ashley Street
AND DISTRIBUTEE TO THE ESTATE OF JOSEPH J. Lyons, NY 14489
BARNABA; UNKNOWN HEIRS TO THE ESTATE
OF JOSEPH J. BARNABA; NEW YORK STATE DE- Section: 70111
PARTMENT OF TAXATION AND FINANCE; Block: 16
UNITED STATES OF AMERICA (WESTERN DIS- Lot: 880336
TRICT) O/B/O INTERNAL REVENUE SERVICE,
Mortgage Servicer: GITSIT Solutions,
Defendants LLC
Mortgage Servicer Phone #: (888) 566-
3287
-X
ON the Summons, Verified Complaint and Noti ce of Pendency duly filed in the Wayne County
Clerk’s Office on June 26, 2023 and all proceedings thereon; and on reading and filing the Notice of
Motion dated April 11, 2024, Affirmation of Regularity of Juliana Thibaut, Esq. dated April 11, 2024,
with exhibits annexed thereto, showing that all of the Defendant(s) herein have been duly served within
this State with a copy of the Summons in this action, or have voluntarily appeared pro se or by their
respective attorneys, or after due diligent efforts to effectuate service having been unsuccessful and a
determination made that such service upon certain Defendant(s) cannot be effected; and on proof of
service upon and appearance, if any, by the Defendant(s) herein heretofore filed in this action; and stating
that more than the legally required number of days have elapsed since said Defendant(s) were so served;
and that all Defendant(s) herein have defaulted in pleading by failing to serve an answer to said
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Complaint except UNKNOWN HEIRS TO THE ESTATE OF JOSEPH J. BARNABA, nor has their time
to do so been extended; and
ON the Order of Reference granted February 1, 2024 and entered in the Wayne County Clerk’s
Office on February 1, 2024, appointing Eliza G. Heaton, Esq. as Referee in this action to ascertain and
compute the amount due Plaintiff for principal, interest and advances made pursuant to the Note and
Mortgage, and to examine the Plaintiff or its agent on oath as to allegations of the complaint, and to
examine and report whether the Mortgaged Premises should be sold in one or more parcels;
AND on reading and filing the oath and report of the aforesaid Referee sworn to and dated March
20, 2024, it appears that the sum of $144,121.14 was due the Plaintiff for principal, interest and advances
made pursuant to the Note and Mortgage, as of March 16, 2024, plus interest for every day thereafter, on
the date of said Report and that the Mortgaged Premises should be sold in one parcel;
AND this Court having initiated and held status conference(s) in accordance with the provisions
of Administrative Order 157/20 prior to the issuance of this Order,
NOW, on motion of Friedman Vartolo LLP, the attorneys for the Plaintiff, it is:
ORDERED, that the instant motion is granted; and it is further
ORDERED, ADJUDGED AND DECREED that the report of Eliza G. Heaton, Esq. dated
March 20, 2024 and filed with the Wayne County Clerk’s Office on April 10, 2024, be, and the same is
hereby, in all respects, ratified and confirmed; and it is further
ORDERED, ADJUDGED AND DECREED that by accepting this appointment the Referee
certifies that they are in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36),
including, but not limited to, section 36.2(c) (“Disqualification from appointment”), and section 36.2(d)
(“Limitations on appointments based upon compensation”); and it is further
ORDERED, ADJUDGED AND DECREED that the Mortgaged Premises 13 Ashley Street,
Lyons, NY 14489; a description of said Mortgaged Premises is annexed hereto and made a part hereof
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as ScheduleA (hereinafter “Mortgaged Premises”) as further described in the complaint in this action,
or
such part thereof as may be sufficient to discharge the mortgage debt under the Note and Mortgage, the
expenses of the sale and the costs of this action as provided by the Real Property Actions Proceeding
Law be sold, in one parcel, at public auction at
The Ho eta Rohe 4 Beal Sk Rogan AU /448G
by and
under the direction of Eliza G. Heaton, Esq., who is hereby appointed Referee for that purpose; that said
Referee give public notice of the time and place of such sale in accordance with the law, practice of this
Court and RPAPL §231 in Thane > 2 Wa Ss soo (Ons a and that the Plaintiffor any other
party to this action may become the purchaser at such sale; that in case the Plaintiff or its assignee shall
become the purchaser at the said sale, they shall not be required to make any deposit thereon; that said
Referee execute to the purchaser or purchasers on such sale a deed of the premises sold; that in the event
a party other than the Plaintiff or its assignee becomes the purchaser or purchasers at such sale they shall
be required to tender a deposit of 10% of the purchase price in certified funds and the closing of title
shall be had thirty days after such sale unless otherwise stipulated by all parties to the sale and if such
closing is required, and the Referee seeks and is awarded additional fees for said closing, those fees shall
be paid by purchaser; and it is further
ORDERED, ADJUDGED AND DECREED, that should the Referee be unable to conduct the
sale at the location due to social distancing restrictions, the sale shall occur outside of the building as
close to the main building as practicable, and that the Referee must enforce any requirements currently
in effect at the time of sale regarding social distancing and face coverings and the terms of sale for the
auction must include these requirements; and it is further
ORDERED, ADJUDGED AND DECREED, that Plaintiff may assign its interests and rights
under the instant Judgment to a third party of its choosing by filing an Assignment of Cause of Action
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with the County Clerk and providing a copy to the Referee appointed within the instant order; and it is
further
ORDERED, ADJUDGED AND DECREED, that if the Referee does not conduct the sale within
90 days of the date of the judgment, in accordance with CPLR 2004, the time fixed by RPAPL §1351(1)
is extended for the Referee to conduct the sale as soon as reasonably practicable; and it is further
ORDERED, ADJUDGED AND DECREED, that said Referee on receiving the proceeds of the
sale, shall forthwith pay therefrom, in accordance with their priority according to law, the taxes,
assessments, sewer rents or water rates which are or may become liens on the premises at the time of sale
with such interest or penalties which may have lawfully accrued thereon to the date of payment; and it is
further,
ORDERED, ADJUDGED AND DECREED, that Plaintiff or any other party that may become
the purchaser or purchasers at such sale shall pay all transfer taxes and recording expenses, any and all
maintenance fees and assessments, taxes, water rates, and any fees associated with the transfer of title
for the Mortgaged Premises accrued from the sale date forward are the obligation of the purchaser, and
that in the event a party, other than Plaintiff, becomes the purchaser or purchasers at such sale, the closing
of title shall be had thirty days after such sale unless otherwise stipulated by all parties to the sale,
including Plaintiff and that failure of the purchaser(s) to close within thirty days may result in forfeiture
of any deposit tendered by purchaser(s), in lieu of closing, and that Plaintiff reserves the right to sell to
the next highest bidder at said sale; that any purchaser, other than Plaintiff, shall pay interest on the
purchase price from the date of sale to the date of delivery of the deed; that in case Plaintiff shall become
the purchaser at the said sale, it shall not be required to make any deposit thereon; and it is further
ORDERED, ADJUDGED AND DECREED, that said Referee then deposit the balance of said
proceeds of sale in his/her own name as Referee in All. ‘ Th, oh accats at » and shall
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thereafter make the following payments and his/her checks drawn for that purpose shall be paid by said
depository;
FIRST: That statutory fees of the Referee pursuant to CPLR §8003(b) which shall not
exceed the sum of $750.00 unless the sale price (the amount of the accepted bid) exceeds $50,000.00 In
the event the sale price exceeds fifty thousand dollars and additional compensation (including
commissions) in excess of $750.00 is sought pursuant to CPLR §8003(b) and if no surplus monies are
produced by the sale, the parties may present a stipulation, signed by the Referee and all parties appearing,
agreeing to a stated sum, to be so-ordered by the Court. Where surplus monies will be available following
the distribution of sums as provided herein, or where the parties are unable to agree to the Referee’s
proper compensation under CPLR §8003(b), application shall be made to this Court on notice to all
parties known to be entitled to claim against any surplus monies, including the defaulting owner of equity
of redemption. Such application shall be promptly submitted to the Court within five days of the transfer
of deed and prior to filing the Report of Sale. The five-day period for payment of surplus money into
Court as set forth in RPAPL §1354(4), and the thirty-day period set forth in RPAPL §1355 for the filing
of the Report of Sale shall be deemed extended pending the decision of the Court regarding such
application.
In the event the scheduled sale is cancelled or postponed, pursuant to CPLR §8003(a), Plaintiff
shall compensate the Referee the sum of $250.00 for each adjournment or cancellation unless the Referee
has requested the delay. Such compensation may be recouped from the proceeds of sale as a cost to
Plaintiff. This order shall constitute the necessary prior authorization for compensation as set forth herein.
No compensation in excess of $750.00, including compensation authorized pursuant to CPLR
§8003(a) for computation of the sum due to Plaintiff, may be accepted by the Referee without Court
approval and compliance with the filing provision of Section 36.4 of the Rules of the Chief Judge.
SECOND: The expenses of sale and the advertising expenses as shown on the bills
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presented and certified by said Referee to be correct, copies of which shall be annexed to the Report of
Sale and the NYC Transfer Tax, pursuant to 19 RCNY 23-03(d)(2), if applicable, payable within 30 days
of delivery of deed pursuant to 19 RCNY 23-08(a). The Referee shall not be held responsible for the
payment of penalties or fees pursuant to this appointment. Purchaser and any title company hired by the
Purchaser shall be responsible for any penalties or fees incurred as a result of late payment of the tax as
required pursuant to City Administrative Code 19 RCNY 23-08(a) which requires payment within 30
days. The Purchaser shall hold the Referee harmless from any such penalties as a result of late payment
of these taxes.
THIRD: Pursuant to Real Property Actions and Proceedings Law 1354, in
accordance with their priority according to law, taxes, assessments, sewer rents, water rates and any
charges placed upon the property by a city agency which have priority over the foreclosed Mortgage,
which are liens on the premises at the time of sale with such interest or penalties which may have lawfully
accrued thereon the date of payment.
FOURTH: Said Referee shall also pay to the Plaintiff or Plaintiff’s attorney, the sum of
$2,704.01 to be determined by the Clerk and adjudged to the Plaintiff for costs and disbursements in this
action or as taxed by the Clerk on the Costs of Plaintiff and inserted therein, with interest thereon from
the date hereof; and also the sum of $144,121.14, the said amount so reported due as aforesaid, together
with contractual interest thereon from March 16, 2024, the date interest was calculated to in said report
to the date of entry of this Order, and thereafter the statutory post-judgment date to the date of transfer
of title, or so much thereof as the purchase money of the Mortgaged Premises will pay of the same,
together with reasonable attorney’s fees in the sum of $5,650.00 as provided for in paragraph 20 of the
Mortgage, together with any advances as provided for in the Note and Mortgage which plaintiff has made
for taxes, insurance, principal and interest and any other charges due to prior mortgages or to maintain
the premises pending consummation of this foreclosure sale, not previously included in the computation,
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upon presentation to the Referee of receipts for said expenditures, all together with interest thereon
pursuant to the Note and Mortgage as above provided. Copies of such receipts shall be annexed to the
Referee’s Report of Sale pursuant to RPAPL §1355; and it is further
ORDERED, ADJUDGED AND DECREED that in case the Plaintiff or Plaintiff’s assignee be
purchaser of said Mortgaged Premises at said sale, or in the event that the rights of the purchaser at said
sale and the terms of sale under the judgment shall be assigned to and be acquired by the Plaintiff or
Plaintiff’s assignee, and a valid assignment thereof filed with said Referee, said Referee shall not require
the Plaintiff or its assignee to pay in cash the entire amount bid at said sale, but shall execute and deliver
to the Plaintiff or its assignee, a deed or deeds of the premises sold upon the payment to said Referee of
the amount specified above in items marked “FIRST,” “SECOND” and “THIRD,” if such expenses
were paid by the Referee, or in lieu of the payment of said last mentioned amounts, upon filing with said
Referee receipts of the proper municipal authorities showing payment thereof. The balance of the amount
of the bid, after deducting the aforesaid amounts paid to the Referee for compensation and expenses,
taxes, assessments, sewer rents and water rents, and priority liens of a city agency, shall be allowed to
the plaintiff and applied by said Referee upon the amounts due to the plaintiff specified in item marked
“FOURTH.” If upon so applying the balance of the amount bid, there shall be a surplus over and above
the said amounts due to the Plaintiff or its assignee, the Plaintiff or its assignee shall pay to said Referee,
upon delivery to Plaintiff or its assignee of said Referee’s deed, the amount of the surplus [which will be
applied by the Referee upon motion made pursuant to RPAPL §1351(3) and proof satisfactory to the
Referee of the sums due thereon, to any subordinate mortgage duly recorded against the property,
pursuant to RPAPL §1354(3), which payments shall be reported in the Referee’s Report of Sale.] Any
surplus remaining after all payments as herein provided shall be deposited into Court in accordance with
RPAPL §1354(4) and the Referee shall immediately give notice of such surplus to the owner of the
mortgaged premises as identified by Plaintiff at the time of the sale; and it is further
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ORDERED, ADJUDGED AND DECREED that said Referee shall take the receipt of the
Plaintiff’s or the attorneys for the Plaintiff for the amounts paid as directed in item “FOURTH,” and file
it with his/her Report of Sale; that he/she deposit surplus monies, if any, with the Wayne County Clerk
within five days after the same shall be received unless such period is deemed to be extended by the
filing of an application for additional compensation as set forth herein, to the credit of this action, to be
withdrawn only on Order of this Court, signed by a Justice of the Court; that said Referee shall make
his/her report of such sale under oath showing the disposition of the proceeds of the sale and accompanied
by the vouchers of the persons to whom payments were made, and shall file it with the Wayne County
Clerk within thirty days after completing the sale and executing the proper conveyance to the purchaser
or within thirty days of the decision of the court with respect to any application for additional
compensation; and it is further
ORDERED, ADJUDGED AND DECREED that if the proceeds of such sale be insufficient to
pay the amount reported due to the Plaintiff or its assignee with interest and costs as aforesaid, the
Plaintiff or its assignee shall recover from the Defendant(s), Joseph Barnaba and Judith Barnaba, the
whole deficiency or so much thereof the Court may determine to be just and equitable of the residue of
the mortgage debt remaining unsatisfied after the sale of the Mortgaged Premises and the application of
the proceeds thereof, provided a motion for a deficiency judgment shall be made within 90 days of the
delivery of the deed by the Referee, and the amount thereof is determined and awarded by an order of
this Court as provided for in said action ; and it is further
ORDERED, ADJUDGED AND DECREED, that the purchasers at such sale be let into
possession upon service of the Referee’s deed or deeds; and it is further
ORDERED, ADJUDGED AND DECREED, that each and all of the Defendant(s) in this action
and all persons claiming under them, or any of either of them, after the filing of such notice of pendency
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of this action, be and they are hereby forever barred and foreclosed of all right, claim, lien, title, interest
and equity of redemption in said Mortgaged Premises and each and every part thereof: and it is further
ORDERED, ADJUDGED AND DECREED, that said premises is to be sold in one parcel in
“as is” physical order and condition, subject to any state of facts that an inspection of the premises would
disclose; any state of facts that an accurate survey of the premises would show, and covenants, restrictions,
declarations, reservations, easements, rights of way and public utility agreement of record, if any; any
building and zoning ordinances of the municipality in which the Mortgaged Premises is located and
possible violations of same; any rights of tenants or persons in possession of the subject premises; prior
lien(s) of record, if any, except those liens addressed in §1354 of the Real Property Actions and
Proceeding Law; any equity of redemption of the UNITED STATES OF AMERICA to redeem the
premises within 120 days from date of sale; any right pursuant to CPLR 317, 2003 and 5015 or any
appeal of the underlying action or additional litigation brought by any defendant or its successor or
assignee contesting the validity of this foreclosure; and it is further
ORDERED, that in the absence of the Referee, the Court may designate a Substitute Referee
forthwith; and it is further
ORDERED, that the Referee appointed herein is subject to the requirements of 36.2(c) of the
Chief Judge, and if the Referee is disqualified from receiving an appointment pursuant to the provisions
of that Rule, the Referee shall notify the Appointing Judge forthwith; and it is further
ORDERED, that a copy of this Judgment with Notice of Entry shall be served upon the
designated Referee, the owner of the equity of redemption, as of the date of this Order, any tenants named
in this action and any other party entitled to notice within twenty days of entry and no less than thirty
(30) days prior to sale.
Dated: May 21,2024 1teaY
HON. Oe HEALY, J.S.C.
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SCHEDULE A—LEGAL DESCRIPTION
All that tract or parcel of land. locatedin the Town of Lyons. County of Wayne and
State of New York, bounded and described as follows:
Begin part of the premises shown on a survey completed by Honan D. Gay. L.S..
on August 17. 1982 known as Job No. 82-1157 to which reference is made thereto.
Commencing at a point in the center line of Ashley Street as shown on said survey:
said point being South 14 degrees 48 minutes 40 seconds West 161.15
feet from the
Northwest comer of premises reserved by the Grantor herein and said Northwest
comer of the premises reserved by the Grantor herein and said Northwest comer
also being the Southwest comer of land now or formerly owned by Lucy Mignone
(reference Liber 496 of Deeds at Page 584) and. further said Northwest and
Southwest comer located 401+ feet. as measured along the centerline of Ashley
Street. from the intersection of the centerline of Ashely Street and the centerline of
Leach Road:
Thence South 73 degrees 56 minutes East 16.50 feet to an iron pipe set:
Thence continuing South 73 degrees 56 minutes East. 2.18 feet for a total of
308.68 feet to an iron pipe set:
Thence South 12 degrees 18 minutes West. 124.41 feet to an iron pipe set:
Thence North 73 degrees 56 minutes West 297.63 feet to an existing iron pipe:
Thence continuing 16.50 feet farther
for a total distance of 314.13 feet to a pointin
the centerline of said Ashley Street:
Thence North 14 degrees 48 minutes 40 seconds East along the centerline of said
Ashley Street 124.18 feet to the point or place of beginning.
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