Preview
FILED: SUFFOLK COUNTY CLERK 11/26/2018 12:12 PM INDEX NO. 612624/2018
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/26/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
-------------------------------------------------------------X Index No. 612624/2018
HUGHETTE CLARK,
Plaintiff, AFFIDAVIT IN SUPPORT
-against-
LUIGI COSENTINO, VINCENT COSENTINO,
GEORGE COSENTINO, DANIEL VIRGILIO,
and GERARD GLASS, ESQ.,
Defendants.
---------------------------------------------------------------X
STATE OF NEW YORK )
)ss:
COUNTY OF SUFFOLK )
LUIGI COSENTINO, after being duly sworn, states as follows under penalties of
perjury:
1. I am one of the Defendants in the above-entitled action.
2. I make this Affidavit in support the Motion of Defendant Luigi Cosentino,
Vincent Cosentino, and George Cosentino ("Cosentinos") For Summary Judgment
Dismissing the Complaint pursuant to CPLR §3212(b); and granting Summary Judgment on
Defendant Luigi Cosentino's Counterclaim to Compel the Sale of the Property Pursuant to the
Agreement, or alternatively, for Partition and Sale pursuant to CPLR §3212(b); for costs
pursuant to CPLR §8302 and §8303 to be paid out of Plaintiff's share of the sales proceeds, or
alternatively, pursuant to CPLR §3211(a)(7), dismissing the Complaint.
PRELIMINARY STATEMENT
3. In 2007, Luigi, Vincent and George Cosentino brought an action in the Suffolk
County Supreme Court against Daniel D. Virgilio ("Virgilio") for repayment of $350,000.00
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loaned to him. See Luigi COSENTINO, Vincent Cosentino and George Cosentino v. Daniel
D. Virgilio, Index No. 07-19970 ("2007 action"). Luigi, Vincent and George Cosentino, as
well as Virgilio, are Defendants in the case at bar.
4. On January 22, 2009, a judgment against Virgilio and in favor of the
Cosentinos was entered in the 2007 action for $350,000.00, plus interest ("Judgment").
D"
Attached as Exhibit is a copy of said Judgment.
5. On June 3, 2009, the Cosentinos, Virgilio and Plaintiff Hughette Clarke
("Plaintiff") entered into and signed an Agreement before a notary public. Attached as
"E"
Exhibit is a true and correct copy of said Agreemeñt. At the time, Virgilio and Plaintiff
were romantically involved and lived together.
6. Pursuant to the Agreement signed by Plaintiff and Virgilio before a notary
public, Plaintiff agreed to convey to me, Luigi Cosentino, one-half interest in her townhouse
located at 1705 Nicole Drive, Port Jefferson Station, New York, as security for the Judgment.
Exhibit "E", Par. 2.
7. Virgilio agreed that he would pay at least $500.00 a month towards the debt,
which he did from August, 2009 to December, 2015 and then again from January, 2017 to
October, 2017.
8. Pursuant to the Section 8 of the Agreement, if the installment payments were
not made, I was permitted to compel the sale of the townhouse.
9. Pursuant to the Agreement, on June 30, 2009, Plaintiff signed a Bargain and
Sale Deed transferring half of the towñhouse to me, Luigi Cosentino. This 2009 Deed was
"F"
acknowledged by Plaintiff before a notary public. Attached hereto as Exhibit is a copy
of said deed.
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10. Pursuant to the Agreement, Plaintiff and I signed a deed reconveying my
interest in the property back to the Plaintiff upon repayment of the Judgment ("Reconveyance
"M"
Deed"). Attached as Exhibit is a copy of the Reconveyance Deed.
11. As required by the Agreement, my attorney, Gerald J. Glass, Esq., held the
Reconveyance Deed in escrow pending the complete repayment of the Judgment.
12. Virgilio made periodic payments on the debt until October, 2017
13. On or about July 31, 2017, Plaintiff sent me a check in the amount of $500.00
towards the payment on the Judgment (attached hereto as Exhibit "K"). Included with that
signed."
check was a note asking that I "send a copy of legal papers Exhibit "N". This is an
admission that the Plaintiff was well aware that she had signed legal papers regarding the
debt; i.e.the Agreement and the 2009 Deed.
14. Plaintiff's note continued, "Also listdebt, amotmt paid thus far, and balance
remaining."
Exhibit "N".
15. On or about September 1, 2017, I received by firstclass mail a letter from
Plaintiff dated August 30, 2017, attached hereto as Exhibit "G". In this letter,Plaintiff stated
Virgilio."
that she "no longer [has] the same relationship to Danny She inquired, "Danny has
you."
not yet settled his debt to This indicates that the Plaintiff was well aware of the debt, as
well as the obligations under the Agreement.
debt?"
16. Plaintiff also if she was "obligated to pay his [Danny Virgilio's]
Exhibit "G".
17. Plaintiff also asked me to have my "lawyer send copies to me of the relevant
documents,"
indicating that the Plaintiff was well aware of the Agreement and 2009 and 2009
Deed that outlined the obligations of the repayment of Virgilio's judgment. Exhibit "G".
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18. Plaintiff also asked, "how can your name be removed from my property tax
papers?"
bills and any other legal Exhibit "G". Through this statement, Plaintiff admitted
that she had been receiving property tax bills and other legal documents on which my name
appeared as a co-owner of the property.
19. On or about October 2, 2017, I received a check from Plaintiff in the amount of
$1,000.00 towards the payment on the Judgment, attached hereto as Exhibit "K".
20. On or about July 26, 2018, I caused a letter to be sent to Virgilio, notifying him
of his default, demanding that he cure his default ("default letter"), or I would enforce Section
8 of the Agreemeñt - which was signed Virgilio and the Plaintiff before a public.
by notary
"O"
Attached hereto as Exhibit is a copy of the default letter sent.
21. Plaintiff and Virgilio failed to resume payment pursuant to the Agreement.
22. These documents demonstrate that the Plaintiff signed the Agreement and the
2009 Deed, and that her claims of fraud and forgery are not only time-barred, but they are
false.
23. I am entitled to enforcement of Section 8 of the Agreemcat, compelling the
sale of the property. The Agreement -- signed Plaintiff before a public --
by notary explicitly
states that "in the event of non-payment of any installment, COSENTINO may through LOU
[Louis Cosentino] move as a tenant in comñion of the townhouse to compel the sale of said
premises with an equal distribution of the proceeds between COSENTINO and HUGHETTE
COSENTINO."
CLARKE to the extent of the outstanding balance owed to Plaintiff agreed
to this when she signed the Agreement before a notary public on June 30, 2009. Exhibit "E".
24. Alternatively, I am entitled to partition and sale of the property pursuant to law.
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25. The property cannot be partitioned beesüse itis a two-bedroom, one-family
homeowners'
townhouse. The association and zoning laws which govern the property do not
permit the townhouse to be split.
26. There is no way that Plaintiff and I could live in the towñhouse together and
use the property. We are not related and have no relationship.
27. brothers and I have waited since 2007 - 11 years -- to be repaid over
My
$400,000.00 owed to us. We are being deeply prejudiced by not having the use of these funds
to which we are entitled, especially since Plaintiff agreed that the property could be
partitioned and sold if thedebt was not repaid pursuant to the Agreemeñt.
28. I request this Court grant Summary Judgment Dismissing the Complaint, and
grant Summary Judgment on my Counterclaim for partition and sale, as well as costs pursuant
to CPLR §8302 and §8303.
IG SENT
Sworn to before me on the
_d_ day of November 2018
Notary Publi
BROOKE ANTHONY
Notary Public, State of New York
No.02AN6152412
Qualified in Suffolk County
Commission Expires September 11,201,
''
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Preview
FILED: SUFFOLK COUNTY CLERK 11/26/2018 12:12 PM INDEX NO. 612624/2018 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/26/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------------------------------------------------------X Index No. 612624/2018 HUGHETTE CLARK, Plaintiff, AFFIDAVIT IN SUPPORT -against- LUIGI COSENTINO, VINCENT COSENTINO, GEORGE COSENTINO, DANIEL VIRGILIO, and GERARD GLASS, ESQ., Defendants. ---------------------------------------------------------------X STATE OF NEW YORK ) )ss: COUNTY OF SUFFOLK ) LUIGI COSENTINO, after being duly sworn, states as follows under penalties of perjury: 1. I am one of the Defendants in the above-entitled action. 2. I make this Affidavit in support the Motion of Defendant Luigi Cosentino, Vincent Cosentino, and George Cosentino ("Cosentinos") For Summary Judgment Dismissing the Complaint pursuant to CPLR §3212(b); and granting Summary Judgment on Defendant Luigi Cosentino's Counterclaim to Compel the Sale of the Property Pursuant to the Agreement, or alternatively, for Partition and Sale pursuant to CPLR §3212(b); for costs pursuant to CPLR §8302 and §8303 to be paid out of Plaintiff's share of the sales proceeds, or alternatively, pursuant to CPLR §3211(a)(7), dismissing the Complaint. PRELIMINARY STATEMENT 3. In 2007, Luigi, Vincent and George Cosentino brought an action in the Suffolk County Supreme Court against Daniel D. Virgilio ("Virgilio") for repayment of $350,000.00 1 1 of 5 FILED: SUFFOLK COUNTY CLERK 11/26/2018 12:12 PM INDEX NO. 612624/2018 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/26/2018 loaned to him. See Luigi COSENTINO, Vincent Cosentino and George Cosentino v. Daniel D. Virgilio, Index No. 07-19970 ("2007 action"). Luigi, Vincent and George Cosentino, as well as Virgilio, are Defendants in the case at bar. 4. On January 22, 2009, a judgment against Virgilio and in favor of the Cosentinos was entered in the 2007 action for $350,000.00, plus interest ("Judgment"). D" Attached as Exhibit is a copy of said Judgment. 5. On June 3, 2009, the Cosentinos, Virgilio and Plaintiff Hughette Clarke ("Plaintiff") entered into and signed an Agreement before a notary public. Attached as "E" Exhibit is a true and correct copy of said Agreemeñt. At the time, Virgilio and Plaintiff were romantically involved and lived together. 6. Pursuant to the Agreement signed by Plaintiff and Virgilio before a notary public, Plaintiff agreed to convey to me, Luigi Cosentino, one-half interest in her townhouse located at 1705 Nicole Drive, Port Jefferson Station, New York, as security for the Judgment. Exhibit "E", Par. 2. 7. Virgilio agreed that he would pay at least $500.00 a month towards the debt, which he did from August, 2009 to December, 2015 and then again from January, 2017 to October, 2017. 8. Pursuant to the Section 8 of the Agreement, if the installment payments were not made, I was permitted to compel the sale of the townhouse. 9. Pursuant to the Agreement, on June 30, 2009, Plaintiff signed a Bargain and Sale Deed transferring half of the towñhouse to me, Luigi Cosentino. This 2009 Deed was "F" acknowledged by Plaintiff before a notary public. Attached hereto as Exhibit is a copy of said deed. 2 2 of 5 FILED: SUFFOLK COUNTY CLERK 11/26/2018 12:12 PM INDEX NO. 612624/2018 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/26/2018 10. Pursuant to the Agreement, Plaintiff and I signed a deed reconveying my interest in the property back to the Plaintiff upon repayment of the Judgment ("Reconveyance "M" Deed"). Attached as Exhibit is a copy of the Reconveyance Deed. 11. As required by the Agreement, my attorney, Gerald J. Glass, Esq., held the Reconveyance Deed in escrow pending the complete repayment of the Judgment. 12. Virgilio made periodic payments on the debt until October, 2017 13. On or about July 31, 2017, Plaintiff sent me a check in the amount of $500.00 towards the payment on the Judgment (attached hereto as Exhibit "K"). Included with that signed." check was a note asking that I "send a copy of legal papers Exhibit "N". This is an admission that the Plaintiff was well aware that she had signed legal papers regarding the debt; i.e.the Agreement and the 2009 Deed. 14. Plaintiff's note continued, "Also listdebt, amotmt paid thus far, and balance remaining." Exhibit "N". 15. On or about September 1, 2017, I received by firstclass mail a letter from Plaintiff dated August 30, 2017, attached hereto as Exhibit "G". In this letter,Plaintiff stated Virgilio." that she "no longer [has] the same relationship to Danny She inquired, "Danny has you." not yet settled his debt to This indicates that the Plaintiff was well aware of the debt, as well as the obligations under the Agreement. debt?" 16. Plaintiff also if she was "obligated to pay his [Danny Virgilio's] Exhibit "G". 17. Plaintiff also asked me to have my "lawyer send copies to me of the relevant documents," indicating that the Plaintiff was well aware of the Agreement and 2009 and 2009 Deed that outlined the obligations of the repayment of Virgilio's judgment. Exhibit "G". 3 3 of 5 FILED: SUFFOLK COUNTY CLERK 11/26/2018 12:12 PM INDEX NO. 612624/2018 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/26/2018 18. Plaintiff also asked, "how can your name be removed from my property tax papers?" bills and any other legal Exhibit "G". Through this statement, Plaintiff admitted that she had been receiving property tax bills and other legal documents on which my name appeared as a co-owner of the property. 19. On or about October 2, 2017, I received a check from Plaintiff in the amount of $1,000.00 towards the payment on the Judgment, attached hereto as Exhibit "K". 20. On or about July 26, 2018, I caused a letter to be sent to Virgilio, notifying him of his default, demanding that he cure his default ("default letter"), or I would enforce Section 8 of the Agreemeñt - which was signed Virgilio and the Plaintiff before a public. by notary "O" Attached hereto as Exhibit is a copy of the default letter sent. 21. Plaintiff and Virgilio failed to resume payment pursuant to the Agreement. 22. These documents demonstrate that the Plaintiff signed the Agreement and the 2009 Deed, and that her claims of fraud and forgery are not only time-barred, but they are false. 23. I am entitled to enforcement of Section 8 of the Agreemcat, compelling the sale of the property. The Agreement -- signed Plaintiff before a public -- by notary explicitly states that "in the event of non-payment of any installment, COSENTINO may through LOU [Louis Cosentino] move as a tenant in comñion of the townhouse to compel the sale of said premises with an equal distribution of the proceeds between COSENTINO and HUGHETTE COSENTINO." CLARKE to the extent of the outstanding balance owed to Plaintiff agreed to this when she signed the Agreement before a notary public on June 30, 2009. Exhibit "E". 24. Alternatively, I am entitled to partition and sale of the property pursuant to law. 4 4 of 5 FILED: SUFFOLK COUNTY CLERK 11/26/2018 12:12 PM INDEX NO. 612624/2018 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/26/2018 25. The property cannot be partitioned beesüse itis a two-bedroom, one-family homeowners' townhouse. The association and zoning laws which govern the property do not permit the townhouse to be split. 26. There is no way that Plaintiff and I could live in the towñhouse together and use the property. We are not related and have no relationship. 27. brothers and I have waited since 2007 - 11 years -- to be repaid over My $400,000.00 owed to us. We are being deeply prejudiced by not having the use of these funds to which we are entitled, especially since Plaintiff agreed that the property could be partitioned and sold if thedebt was not repaid pursuant to the Agreemeñt. 28. I request this Court grant Summary Judgment Dismissing the Complaint, and grant Summary Judgment on my Counterclaim for partition and sale, as well as costs pursuant to CPLR §8302 and §8303. IG SENT Sworn to before me on the _d_ day of November 2018 Notary Publi BROOKE ANTHONY Notary Public, State of New York No.02AN6152412 Qualified in Suffolk County Commission Expires September 11,201, '' 5 5 of 5