Preview
At an IAS Part ____ of the Supreme Court of
the State of New York held in and for the
County of Suffolk at the Courthouse, 210
Center Drive, Riverhead, New York, on the
_ day of , 201_
P R E S E N T :
HON. ROBERT F. QUINLAN,
JUSTICE.
_____________------ ----------- X
Wells Fargo Bank, N.A., as Trustee for the Holders of: Index No.: 034446/12
Bear Stearns Asset-Backed Securities I Trust 2007-AC5, :
Asset-Backed Certificates, Series 2007-AC5, :
ORDER
Plaintiff,
-agamst-
Kenneth J. Abruzzi, Arrow Financial Services LLC,
Swezey Fuel, Inc., 84 Lumber Company, LP, William
Long, Cypress Financial Recoveries LLC and "JOHN
#1"
DOE through "JOHN DOE #10", the last ten names
being fictitious and unknown to the plaintiff, the person or
parties intended being the persons or parties, if any,
having or claiming an interest in or lien upon the
mortgaged premises described in the Complaint,
Defendants.
X
Plaintiff Wells Fargo as Trustee for the Holders of Bear Stearns Asset-
Bank, N.A.,
Backed Securities I Trust 2007-ACS, Asset-Backed Certificates, Series 2007-AC5 ("Plaintiff")
having duly moved this Court for an order: (i)pursuant to CPLR 3212, granting summary
judgment in favor of Plaintiff and against Defendant, Kenneth J. Abruzzi, on the grounds that
there are no triable issues of fact in this proceeding, and that accordingly, upon the presentation
and the coming in of the Referee's Report, Plaintiff is entitled to all of the relief requested in its
Complaint, including judgment of foreclosure and sale, as a matter of law, (ii)dismissing, with
prejudice, each of Defendant's eleven affirmative defenses and six counterclaims as each is
without merit; (iii) amending the caption of this proceeding by directing that (a) Mark Healy be
substituted for "John Doe #1", (b) the names of the remaining John Doe defendants be deleted
from the caption; (iv) pursuant to CPLR § 3215, granting judgment on default against defendants
(" Financial" Fuel"
Arrow Financial Services LLC ("Arrow Financial"), Swezey Fuel Co. Inc. ("Swezey Fuel"), 84
Lumber"
Lumber Company LP ("84 Lumber"), William Long, Cypress Financial Recoveries LLC
(" Financial"
("Cypress Financial") and Mark Healy as each has failed to answer or otherwise move with
respect to the Complaint after being duly served, and the time in which to do so is now expired;
(v) pursuant to RPAPL § 1321(1), referring this action to some suitable person as a referee (the
"Referee"
"Referee") (a) to ascertain and compute the amount due Plaintiff for principal and interest under
the loan as set forth in the Complaint, and for any other amounts due and owing Plaintiff,
including any sums advanced by Plaintiff under the terms of the mortgage, (b) to examine and
report whether the mortgaged premises should be sold in a single parcel, and (c) to direct that
upon presentation and coming in of the Referee's Report, Plaintiff have the usual judgment of
foreclosure and sale; and (vi) for such other and further relief as this Court may deem just and
"Motion"
proper (the "Motion");
NOW, upon reading and filing of the Summons containing the RPAPL § 1320 Notice, the
information to Defendant specified in RPAPL § 1303, on colored paper, the Complaint, and
Notice of Pendency of Action, each filed in Suffolk County on November 8, 2012; the Notice of
Pendency of Action, filed on September 24, 2015; the Affidavits of Service evidencing service of
said pleadings upon all of the defendants in this action; the Affirmation of Regularity of Suzanne
M. Berger, Esq., dated February 10, 2016, the Affidavit of Lorena P. Diaz, AVP, Operations
Team Manager at Bank of America, N.A., servicer to Plaintiff when this action was commenced,
2
sworn to February 8, 2016, the Affidavit of A.J. Loll, Vice President at Nationstar Mortgage
LLC, current servicer for Plaintiff, sworn to January 29, 2016, the Affidavit of Mailing of
Bethany Lynn Laube, sworn to September 5, 2014, together with the exhibits accompanying
those affidavits, submitted on behalf of Plaintiff in support of the Motion, together with proof of
1
I
service thereof; the Affidavit of Kenneth J. Abruzzi in Opposition to Motion for Summary
Judgment, sworn to May 10, 201 6; the Reply Affirmation of Courtney J. Peterson in further
Support of Plaintiff's Motion for Summary Judgment and Related Relief, dated June 2, 2016,
from all of which itappears that this action was brought to foreclose upon a firstlien mortgage
affecting property located in Islip, County of Suffolk, State of New York; that the Notice of
Pendency of Action and Supplemental Notice of Pendency were herein filed more than 20 days
ago, and that since the filing of said notices, the Summons and Complaint herein have not been
amended (i)by adding new parties to the action, (ii)so as to affect premises not described in said
notices, or (iii) so as to extend the claim of Plaintiff against the mortgaged premises; and upon all
of the pleadings and papers heretofore filed herein, and the proceedings heretofore had herein;
and the Plaintiff having appeared herein in support of its Motion by itsattorneys, Bryan Cave
LLP, and Frenkel Lambert Weiss Weisman & Gordon, LLP having subsequently been
substituted as counsel of record for Plaintiff, and Defendant, Kenneth J. Abruzzi, having
appeared in opposition to the Motion, by his attorneys Devitt Spellman Barrett LLP, and no other
parties having appeared or submitted papers in connection with the Motion, and this Court
having rendered a decision from the bench on January 12, 2017, partially granting Plaintiff's
Motion;
NOW, upon the Motion of Bryan Cave LLP, attorneys for Plaintiff,
IT IS HEREBY STIPULATED AND ORDERED that:
3
1. Summary judgment should be entered in favor of Plaintiff and against Defendant
for allof the relief requested in Plaintiff's Complaint.
2. The Court's January 12, 2017 bench decision granting that portion of Plaintiff's
Motion requesting dismissal of each of Defendant's six counterclaims and Defendant's third,
fourth, sixth, ninth, tenth and eleventh affirmative defenses is confirmed, and Defendant's six
counterclaims and third, fourth, sixth, ninth, tenth and eleventh affirmative defenses are
dismissed with prejudice,
3. Defendant's remaining first,second, fifth,seventh and eighth affirmative defenses
I
asserted in his Answer are dismissed with prejudice.
4. The Court's January 12, 2017 bench decision granting that portion of Plaintiff's
Motion requesting that the caption of this proceeding be amended to substitute Mark Healy for
#1" "' #[2]'
"JOHN DOE and delete JOHN DOE through 'JOHN DOE #10', the last ten names !
being fictitious and unknown to the plaintiff, the person or parties intended being the persons or
!
parties, if any, having or claiming an interest in or lien upon the mortgage premises described in
Complaint,"
the is confirmed.
5. The caption shall henceforth read as follows:
I
4
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
-------- ---------- ------- x
Wells Fargo Bank, N.A., as Trustee for the Holders of: Index No.: 034446/12
,034446/12
Bear Stearns Asset-Backed Securities I Trust 2007-AC5, :
Asset-Backed Certificates, Series 2007-AC5, :
. Hon. David T. Reilly
Plaintiff,
-against-
Kenneth J. Abruzzi, Arrow Financial Services LLC,
Swezey Fuel Co. Inc., 84 Lumber Company LP, William
Long, Cypress Financial Recoveries LLC and Mark .
Healy,
Defendants.
.
----------------- --------- x
6. The Court's January 12, 2017 bench decision granting that portion of Plaintiff's
I
I
Motion requesting entry of default judgment against the nonanswering defendants Mark Healy,
Arrow Financial, Swezey Fuel, 84 Lumber, William Long and Cypress Financial, as each has
failed to answer or otherwise respond to the Complaint, after being duly served, and the time in
which to do so has passed, is confirmed.
7.
shall be appointed as Referee, to compute the amount due Plaintiff as sought in Plaintiff s
Complaint herein, including without limitation any and all sums for principal, interest, water and
sewer rents, taxes, insurance premiums, and for any other charges and liens upon the subject
premises, including, without limitation, any such charges or liens arising by virtue of any
payment or advance made by Plaintiff or the original mortgagee pursuant to the terms of the
subject mortgage or pursuant to the order of any Court, with interest on said sums from the dates
attorneys'
of the respective payments and advances thereof, and a sum in respect of reasonable
5
fees and expenses incurred by Plaintiff in connection with the collection of the indebtedness due
upon the subject mortgage and the foreclosure of said mortgage; and to examine and report
whether the mortgaged premises should be sold in a single parcel; and that the said Referee make
his or her report to the Court with all convenient speed.
8, By accepting this appointment, the Referee certifies that the Referee is in
compliance with 22 NYCRR Part 36, including but not limited to, § 36.2(c) ("Disqualifications
compensation"
from appointment") and § 36.2(d) ("Limitations on appointments based upon compensation").
FRENKEL LAMBERT WEISS WEISMAN DEVITT SPELLMAN BARRETT, LLP
& GORDON, LLP
, ti.~.4.RC.»N,@u <%Ui +<~,:
Iichelle D, Maccagnano Theodore D. Sklar -
j
Main Office - 53 Gibson Street i 50 Route Suite 314
111,
Bay Shore, NY 11706 Smithtown, NY 11787
T: (631) 969-3100 Tel: (631) 724-8833
F: (631) 982-4509 Fax: (631) 724-8010
Attorneys for Plaintiff Attorneys for Defendant Kenneth J Abruzzi
Dated: Williamsville, New York Dated: Smithtown, New York
March 28, 2018 March _, 2018
E N T E R :
1
(
J.S.C.
6
Preview
At an IAS Part ____ of the Supreme Court of the State of New York held in and for the County of Suffolk at the Courthouse, 210 Center Drive, Riverhead, New York, on the _ day of , 201_ P R E S E N T : HON. ROBERT F. QUINLAN, JUSTICE. _____________------ ----------- X Wells Fargo Bank, N.A., as Trustee for the Holders of: Index No.: 034446/12 Bear Stearns Asset-Backed Securities I Trust 2007-AC5, : Asset-Backed Certificates, Series 2007-AC5, : ORDER Plaintiff, -agamst- Kenneth J. Abruzzi, Arrow Financial Services LLC, Swezey Fuel, Inc., 84 Lumber Company, LP, William Long, Cypress Financial Recoveries LLC and "JOHN #1" DOE through "JOHN DOE #10", the last ten names being fictitious and unknown to the plaintiff, the person or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the Complaint, Defendants. X Plaintiff Wells Fargo as Trustee for the Holders of Bear Stearns Asset- Bank, N.A., Backed Securities I Trust 2007-ACS, Asset-Backed Certificates, Series 2007-AC5 ("Plaintiff") having duly moved this Court for an order: (i)pursuant to CPLR 3212, granting summary judgment in favor of Plaintiff and against Defendant, Kenneth J. Abruzzi, on the grounds that there are no triable issues of fact in this proceeding, and that accordingly, upon the presentation and the coming in of the Referee's Report, Plaintiff is entitled to all of the relief requested in its Complaint, including judgment of foreclosure and sale, as a matter of law, (ii)dismissing, with prejudice, each of Defendant's eleven affirmative defenses and six counterclaims as each is without merit; (iii) amending the caption of this proceeding by directing that (a) Mark Healy be substituted for "John Doe #1", (b) the names of the remaining John Doe defendants be deleted from the caption; (iv) pursuant to CPLR § 3215, granting judgment on default against defendants (" Financial" Fuel" Arrow Financial Services LLC ("Arrow Financial"), Swezey Fuel Co. Inc. ("Swezey Fuel"), 84 Lumber" Lumber Company LP ("84 Lumber"), William Long, Cypress Financial Recoveries LLC (" Financial" ("Cypress Financial") and Mark Healy as each has failed to answer or otherwise move with respect to the Complaint after being duly served, and the time in which to do so is now expired; (v) pursuant to RPAPL § 1321(1), referring this action to some suitable person as a referee (the "Referee" "Referee") (a) to ascertain and compute the amount due Plaintiff for principal and interest under the loan as set forth in the Complaint, and for any other amounts due and owing Plaintiff, including any sums advanced by Plaintiff under the terms of the mortgage, (b) to examine and report whether the mortgaged premises should be sold in a single parcel, and (c) to direct that upon presentation and coming in of the Referee's Report, Plaintiff have the usual judgment of foreclosure and sale; and (vi) for such other and further relief as this Court may deem just and "Motion" proper (the "Motion"); NOW, upon reading and filing of the Summons containing the RPAPL § 1320 Notice, the information to Defendant specified in RPAPL § 1303, on colored paper, the Complaint, and Notice of Pendency of Action, each filed in Suffolk County on November 8, 2012; the Notice of Pendency of Action, filed on September 24, 2015; the Affidavits of Service evidencing service of said pleadings upon all of the defendants in this action; the Affirmation of Regularity of Suzanne M. Berger, Esq., dated February 10, 2016, the Affidavit of Lorena P. Diaz, AVP, Operations Team Manager at Bank of America, N.A., servicer to Plaintiff when this action was commenced, 2 sworn to February 8, 2016, the Affidavit of A.J. Loll, Vice President at Nationstar Mortgage LLC, current servicer for Plaintiff, sworn to January 29, 2016, the Affidavit of Mailing of Bethany Lynn Laube, sworn to September 5, 2014, together with the exhibits accompanying those affidavits, submitted on behalf of Plaintiff in support of the Motion, together with proof of 1 I service thereof; the Affidavit of Kenneth J. Abruzzi in Opposition to Motion for Summary Judgment, sworn to May 10, 201 6; the Reply Affirmation of Courtney J. Peterson in further Support of Plaintiff's Motion for Summary Judgment and Related Relief, dated June 2, 2016, from all of which itappears that this action was brought to foreclose upon a firstlien mortgage affecting property located in Islip, County of Suffolk, State of New York; that the Notice of Pendency of Action and Supplemental Notice of Pendency were herein filed more than 20 days ago, and that since the filing of said notices, the Summons and Complaint herein have not been amended (i)by adding new parties to the action, (ii)so as to affect premises not described in said notices, or (iii) so as to extend the claim of Plaintiff against the mortgaged premises; and upon all of the pleadings and papers heretofore filed herein, and the proceedings heretofore had herein; and the Plaintiff having appeared herein in support of its Motion by itsattorneys, Bryan Cave LLP, and Frenkel Lambert Weiss Weisman & Gordon, LLP having subsequently been substituted as counsel of record for Plaintiff, and Defendant, Kenneth J. Abruzzi, having appeared in opposition to the Motion, by his attorneys Devitt Spellman Barrett LLP, and no other parties having appeared or submitted papers in connection with the Motion, and this Court having rendered a decision from the bench on January 12, 2017, partially granting Plaintiff's Motion; NOW, upon the Motion of Bryan Cave LLP, attorneys for Plaintiff, IT IS HEREBY STIPULATED AND ORDERED that: 3 1. Summary judgment should be entered in favor of Plaintiff and against Defendant for allof the relief requested in Plaintiff's Complaint. 2. The Court's January 12, 2017 bench decision granting that portion of Plaintiff's Motion requesting dismissal of each of Defendant's six counterclaims and Defendant's third, fourth, sixth, ninth, tenth and eleventh affirmative defenses is confirmed, and Defendant's six counterclaims and third, fourth, sixth, ninth, tenth and eleventh affirmative defenses are dismissed with prejudice, 3. Defendant's remaining first,second, fifth,seventh and eighth affirmative defenses I asserted in his Answer are dismissed with prejudice. 4. The Court's January 12, 2017 bench decision granting that portion of Plaintiff's Motion requesting that the caption of this proceeding be amended to substitute Mark Healy for #1" "' #[2]' "JOHN DOE and delete JOHN DOE through 'JOHN DOE #10', the last ten names ! being fictitious and unknown to the plaintiff, the person or parties intended being the persons or ! parties, if any, having or claiming an interest in or lien upon the mortgage premises described in Complaint," the is confirmed. 5. The caption shall henceforth read as follows: I 4 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------- ---------- ------- x Wells Fargo Bank, N.A., as Trustee for the Holders of: Index No.: 034446/12 ,034446/12 Bear Stearns Asset-Backed Securities I Trust 2007-AC5, : Asset-Backed Certificates, Series 2007-AC5, : . Hon. David T. Reilly Plaintiff, -against- Kenneth J. Abruzzi, Arrow Financial Services LLC, Swezey Fuel Co. Inc., 84 Lumber Company LP, William Long, Cypress Financial Recoveries LLC and Mark . Healy, Defendants. . ----------------- --------- x 6. The Court's January 12, 2017 bench decision granting that portion of Plaintiff's I I Motion requesting entry of default judgment against the nonanswering defendants Mark Healy, Arrow Financial, Swezey Fuel, 84 Lumber, William Long and Cypress Financial, as each has failed to answer or otherwise respond to the Complaint, after being duly served, and the time in which to do so has passed, is confirmed. 7. shall be appointed as Referee, to compute the amount due Plaintiff as sought in Plaintiff s Complaint herein, including without limitation any and all sums for principal, interest, water and sewer rents, taxes, insurance premiums, and for any other charges and liens upon the subject premises, including, without limitation, any such charges or liens arising by virtue of any payment or advance made by Plaintiff or the original mortgagee pursuant to the terms of the subject mortgage or pursuant to the order of any Court, with interest on said sums from the dates attorneys' of the respective payments and advances thereof, and a sum in respect of reasonable 5 fees and expenses incurred by Plaintiff in connection with the collection of the indebtedness due upon the subject mortgage and the foreclosure of said mortgage; and to examine and report whether the mortgaged premises should be sold in a single parcel; and that the said Referee make his or her report to the Court with all convenient speed. 8, By accepting this appointment, the Referee certifies that the Referee is in compliance with 22 NYCRR Part 36, including but not limited to, § 36.2(c) ("Disqualifications compensation" from appointment") and § 36.2(d) ("Limitations on appointments based upon compensation"). FRENKEL LAMBERT WEISS WEISMAN DEVITT SPELLMAN BARRETT, LLP & GORDON, LLP , ti.~.4.RC.»N,@u <%Ui +<~,: Iichelle D, Maccagnano Theodore D. Sklar - j Main Office - 53 Gibson Street i 50 Route Suite 314 111, Bay Shore, NY 11706 Smithtown, NY 11787 T: (631) 969-3100 Tel: (631) 724-8833 F: (631) 982-4509 Fax: (631) 724-8010 Attorneys for Plaintiff Attorneys for Defendant Kenneth J Abruzzi Dated: Williamsville, New York Dated: Smithtown, New York March 28, 2018 March _, 2018 E N T E R : 1 ( J.S.C. 6