Opinion
Index No. 135656/2017 Motion Sequence Nos. 003 009
05-16-2023
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2006-4 NOVASTAR HOME EQUITY LOAN ASSET BACKED CERTIFICATES, SERIES 2006-4, Plaintiff, v. DARLEAN MARCUCILLI, LVNV FUNDING LLC BOARD OF DIRECTORS OF STARBUCK HOMEOWNERS ASSOCIATION, INC., Defendants.
Unpublished Opinion
Present: HON. DESMOND A. GREEN, JUDGE.
DECISION AND ORDER
HON. DESMOND GREEN, J.S.C.
The following papers numbered 1-18 were fully submitted.
Papers Numbered
Plaintiff's notice of motion to confirm the referee's report and for a judgment of foreclosure and sale, affirmation of Deana Chelli, Esq., (003)(dated January 24, 2019) (Exhibits Annexed) ....................................................................1
Affidavit of Darlean Marcucilli, defendant Pro Se, in opposition (003) (dated May 22, 2019) ....................................................................2
Reply affirmation of Franklin K. Chiu, Esq. in further support of motion (003) (dated June 12, 2019) ....................................................................3
Affidavit of Darlean Marcucilli, defendant Pro Se, in support of her motion to dismiss complaint and proposed order to show cause (004)(dated October 10, 2019) (Exhibits Annexed) ....................................................................4
Affirmation of Franklin K. Chiu, Esq. in opposition to motion to dismiss (004) (dated October 22, 2019) (Exhibits Annexed) ....................................................................5
Affidavit of Darlean Marcucilli, defendant Pro Se, in further opposition to motion for judgment of foreclosure and sale and in further support of her motion to dismiss and order to show cause (003, 004) (dated January 27, 2020) (Exhibits Annexed)------------------------------------------------------------------------------------- 6
Affidavit of Darlean Marcucilli, defendant Pro Se, in reply and further support of her motion to dismiss and order to show cause (004) (dated January 25, 2022, 2022) (Exhibits Annexed) ....................................................................7
Affidavit of Darlean Marcucilli, defendant Pro Se, in support of her motion to dismiss the complaint (005) (dated April 27,2022) (Exhibits Annexed)....................................................................8
Affirmation of Jamie C. Krapf, Esq. in opposition to defendant's motion to dismiss (005) (dated May 13, 2022) (Exhibits Annexed)....................................................................9
Notice of motion of Islandwide Building Corp, to intervene (Affirmation of Allyn J. Crawford, Esq., dated June 21,2022) (006) (Exhibits Annexed)....................................................................10
Affidavit of Darlean Marcucilli, defendant Pro Se, in support of her motion to dismiss the complaint (007) (dated June 24, 2022) (Exhibits Annexed)....................................................................11
Affidavit of Darlean Marcucilli, defendant Pro Se, in opposition to motion to intervene (006) (dated September 6, 2022) (Exhibits Annexed)....................................................................12
Affidavit of Darlean Marcucilli, defendant Pro Se, in support of her motion to dismiss the complaint (008) (dated September 8, 2022) Exhibits Annexed)....................................................................13
Affirmation of Allyn J. Crawford, Esq., dated September 15,2022, in reply and further support of motion to intervene (006) (Exhibits Annexed)....................................................................14
Affirmation of Allyn J. Crawford, Esq., dated October 28, 2022, in support of request of intervenor for order to show cause and temporary restraining order (009) (Exhibits Annexed)....................................................................15
Affirmation of Nicholas Moccia, Esq., dated November 17, 2022, for defendant in opposition to motion to intervene and for temporary restraining order (006, 009) (Exhibits Annexed)....................................................................16
Affirmation of Nicholas Moccia, Esq., dated January 4, 2023, in further opposition to motion to intervene and for temporary restraining order (006, 009) (Exhibits Annexed) ....................................................................17
Affirmation of Allyn J. Crawford, Esq., dated January 26, 2023, in reply and further support of motion to intervene and for temporary restraining order....................................................................18
The court rules as follows: Defendant Marcucilli's motions to dismiss (004, 005, 007, 008) are denied; proposed intervenor's motion for leave to intervene is granted (006); proposed intervenor Islandwide Building Corp.'s motion for a temporary restraining order and preliminary injunction is granted (009); and plaintiffs motion to confirm the referee report and for a judgment of foreclosure and sale is held in abeyance as noted below (003).
PROCEDURAL HISTORY
This action for residential foreclosure was commenced with the filing of a summons and complaint on October 25, 2017. Darlean Marcucilli, ("defendant") then Pro Se, filed an answer with affirmative defenses on January 31, 2018. On September 6, 2018, plaintiff moved for summary judgment (001), with defendant moving to dismiss the complaint on November 13, 2018 (002). After oral argument, on November 28, 2018, the court granted plaintiffs motion for summary judgment (001) and denied defendant's motion to dismiss (002), with the court signing the order of reference (001) December 13,2018.
On January 31, 2019, plaintiff moved to confirm the referee report and for a judgment of foreclosure and sale (003), which defendant Pro Se opposes. On October 10, 2019, defendant Pro Se moved to dismiss the complaint and submitted an order to show cause (004), which plaintiff opposes. On April 26, 2022, defendant Pro Se filed an additional motion to dismiss the complaint (005), which plaintiff opposes. On June 21, 2022, proposed intervenor Islandwide Building Corp, ("intervenor" or "Islandwide") moved for leave to intervene in the action and to file and serve pleadings (006), which defendant Pro Se opposes. On June 22, 2022, defendant Pro Se filed an additional motion to dismiss the complaint (007), which proposed intervenor opposes. On September 8, 2022, defendant Pro Se filed a further motion to dismiss the complaint (008), which proposed intervenor opposes. On September 15, 2022, proposed intervenor filed a motion requesting a temporary restraining order. On November 10, 2022, defense counsel appeared for defendant and thereafter filed opposition to proposed intervenor's motions (006, 009). Plaintiff has not filed any written position regarding motion 006-009.
FACTS
While defendant has raised a wide array of issues, the underlying facts are largely without serious dispute. On or about September 22, 2000, intervenor purchased property in Staten Island with the designation Block: 631, Lot 183. At the time of acquisition by Islandwide, the property had a street frontage of approximately 56.5', a depth of approximately 128.64' and a rear property boundary of approximately 61'. Thereafter, Islandwide appears to have filed to subdivide the property into three parcels:
Building Address
Block
Lot
Lot width (feet)
71 Starbuck Street
631
183
21.24
73 Starbuck Street
631
182
14
77 Starbuck Street
631
18
21.23 (Front) 27.66 (Rear)
Islandwide then undertook the construction of three one-family dwellings that were attached to each other. At some point in December of 2003, seemingly prior to the completion of construction, Darlean Marcucilli and her husband John Marcucilli executed a contract purchase agreement to purchase a to-be-erected "1 family dwelling" from Islandwide (the "2003 contract"). Per the 2003 contract, the property to be purchased was known as "73 Starbuck Avenue, Staten Island" with a designation of block 631, lot 182. By deed dated April 16, 2004, Islandwide transferred ownership of 73 Starbuck Street to the Marcucilli's (the "2004 deed"). Per the 2004 deed, the property transferred was tax block 631, lot 182. However, the metes and bounds description attached as Schedule A to the 2004 deed reflected the combined dimensions of lots 181, 182 and 183. To finance the acquisition of the property, on April 16, 2004, the Marciculli's borrowed the sum of $342,000 from Option One Mortgage Corporation (the "2004 note"). That same date, as collateral for said loan, the Marciculli's granted a mortgage to Option One Mortgage Corporation in the property designated as 73 Starbuck Street, Staten Island, block 0631, lot 182 (the "2004 mortgage"). The metes and bounds description in Schedule A of the 2004 mortgage reflected a property with a width of only 14', matching the depiction of lot 182 on the Department of Finance tax maps.
On July 13, 2006, John Marcucilli refinanced the original debt, borrowing $384,000 from Novastar Mortgage, Inc. (the "2006 note"). Defendant Darlean Marcucilli did not execute the 2006 note. As security for the loan, that same day both John Marcucilli and Darlean Marcuilli granted a mortgage to Novastar Mortgage, Inc. (the "2006 mortgage"). The 2006 mortgage listed the property address as 73 Starbuck Street. The 2006 mortgage was recorded with the Richmond County Clerk as against block 631, lot 182, with the "property type" listed as "Dwelling Only - 1 Family". However, the 2006 mortgage did not include a block and lot designation and the metes and bounds description therein reflected the combined dimensions of lots 181, 182 and 183.
John Marcucilli passed away on December 25, 2012. By operation of law, title to 73 Starbuck Street passed to defendant Darlean Marcucilli. Plaintiff claims that defendant defaulted under the 2006 note by failing to make payments starting on July 1, 2016. On August 15, 2016, plaintiff sent defendant a 30-day notice of default. On July 24, 2017, plaintiff sent defendant a 90-day notice. On October 25, 2017, plaintiff commenced the instant foreclosure action.
On January 30, 2018, defendant, acting pro se, served her answer upon plaintiff. In her answer, defendant raised defenses of lack of standing, lack of foreclosure causes of action, lack of service of summons and complaint, failure to comply with RPAPL §§1304 and 1306, failure to comply with certificate of merit requirement, failure to name estate of John Marcucilli, and that defendant did not sign the 2006 note. The case was conferenced in the foreclosure conference part with defendant appearing and participating. However, no settlement could be reached and the matter was released to the residential foreclosure part on June 27, 2018.
On September 6, 2018, plaintiff moved for summary judgment and an order of reference (001). On November 1, 2018, defendant filed a motion to dismiss the complaint (002) and opposition to plaintiffs motion for summary judgment. Defendant's motion referred the court to her answer to the complaint and argued that she had not signed the 2006 note, that the estate of John Marcucilli is not a named party, that the signatures of her husband and her were inconsistent on select documents, that she was wrongfully denied a loan modification, and that she had not missed a payment. By decision and order dated November 28, 2018, the court granted plaintiffs motion for summary judgment and order of reference (001) and denied defendant's motion to dismiss the complaint (002). The court signed an order of reference, dated December 13, 2018, which, inter alia, referred the matter to referee Steven Calcagno, Esq. to ascertain the amounts due. On February 6, 2019, defendant filed a notice of appeal of the decision granting summary judgment (001). However, it appears that the appeal was never perfected.
On January 7, 2019, Referee Calcagno issued his report of amounts due. On January 31, 2019, plaintiff filed its motion to confirm the referee's report and for a judgment of foreclosure and sale (003). Defendant filed opposition to plaintiffs motion, arguing that she never signed the 2006 note and that her husband's estate was not named as a party. She also referenced an affirmation submitted to the Appellate Division by plaintiff that included an adjustable-rate rider that was purportedly executed by both defendant and her husband on July 13, 2006, the same day that the 2006 note was executed by John Marcucilli. On October 10, 2019, defendant filed a proposed order to show cause and related motion to dismiss the complaint (004). In her motion, defendant argues that when the court granted summary judgment (001) on November 28, 2019, numerous documents of hers were not properly filed and I or considered by the court.
On April 27, 2022, defendant filed another motion to dismiss the complaint (005). In the motion, defendant attaches a copy of a satisfaction of mortgage from Option One Mortgage Corporation, dated August 12, 2006 (the "2006 mortgage satisfaction"). The 2006 mortgage satisfaction discharged the "Mortgage dated 04/16/2004, made by JOHN MARCUCILLI AND DARLEAN MARCUCILLI... in the principal sum of $342,000.00". The document listed the "Property Address" as "73 Starbuck St.", block 631, lot 182. Defendant appears to argue that the 2006 mortgage satisfaction ended any security interest in 73 Starbuck Street in favor of plaintiff or its predecessors). In her motion, defendant argues that she purchased all three buildings, 71, 73 and 77 Starbuck Street, and that plaintiff has illegally possessed the buildings at 71 and 77 Starbuck Street for 17 years. In opposing this motion to dismiss, in addition to noting the confusion between plaintiff and the original developer, plaintiff notes that the instant foreclosure action is predicated upon the 2006 mortgage and that the court had previously denied defendant's motion to dismiss (001) and struck her answer (002).
In Motion 005, defendant seems to confuse the plaintiff in this action, Deutsche Bank, with the original developer of the overall parcel, Islandwide, who is the proposed intervenor and claims ownership to both 71 and 77 Starbuck Street.
On June 17, 2022, Islandwide filed a motion for leave to intervene in the current action and to serve responsive pleadings (006). In its motion, Islandwide included an affidavit from Robert McErlean ("McErlean"), president of Islandwide. Islandwide contends that it built three attached one-family homes known as 71, 73 and 77 Starbuck Street, sold 73 Starbuck Street to defendant and her husband and retained ownership of the remaining two properties. Islandwide contends that two documents, the 2004 deed and the 2006 mortgage, erroneously attribute a larger perimeter to 73 Starbuck Street. Islandwide ultimately seeks to correct said documents as they potentially impact upon clear title for the adjacent properties.
On June 22, 2022, defendant filed a further motion to dismiss the complaint (007). In this motion to dismiss, defendant seems to be speaking towards the motion to intervene (006), but is arguing that she was sold all three one-family homes back in 2004. She also filed a separate document opposing the motion to intervene (006), claiming that, inter alia, in 2003-2004 McErlean acted improperly in attempting to not move forward with the sale to defendant due to her race. She further alleges in her opposition that Islandwide has been illegally renting out one of the abutting houses for 17 years. Islandwide is opposing her motion and disputes her claims.
On September 6, 2022, defendant filed an additional motion to dismiss the complaint (008). This motion reiterated many of the complaints of purported misdeeds by Islandwide and McErlean in 2003-2004 as well as her contentions that she has been treated unfairly by Islandwide, plaintiff and the court. Islandwide filed opposition to this motion as well.
On September 15, 2022, Islandwide filed a request for a temporary restraining order (009) requesting that defendant be restrained from interfering with Islandwide's access to 71 and 77 Starbuck Street, including Islandwide's control and management of said properties. Islandwide further requested that defendant be restrained from exercising any control or ownership over said properties. Finally, Islandwide requested that defendant be restrained from harassing any current, prospective or future tenants of said properties. As part of its supporting papers, Islandwide included a copy of a 90-day notice to terminate tenancy sent to the occupants of 77 Starbuck Street by an attorney on behalf of defendant. In said notice, defendant identifies herself as "owner" of 77 Starbuck Street.
On November 10, 2022, counsel formally appeared on behalf of defendant, submitting further papers in support of her motions to dismiss and opposing Islandwide's motion to intervene (006). Defense counsel emphasized the position that Islandwide's motion is time-barred. On November 18, 2022, counsels for Islandwide and defendant appeared before the court. While the court did not render a final decision regarding the numerous open motions, the court did sign the restraining order proposed by Islandwide. Plaintiff did not participate in the November 18, 2022 argument and has not expressed any position in writing regarding motions 006, 007, 008 and 009.
DISCUSSION
The court presently has before it plaintiffs motion for judgment of foreclosure and sale (003), Islandwide's motions to intervene (006) and for a restraining order (009) and defendant's various motions to dismiss (004, 005, 007, 008). While not chronologically the first motion filed, the claims Islandwide seeks to assert within this action bear on plaintiffs motion as well as certain of defendant's motions. Therefore, the court shall address the claims of Islandwide first.
Motion to Intervene (006)(007)(009)
Although defendant refers to her motion 007 as a motion to dismiss, the contents therein are essentially her arguments in opposition to Islandwide's motion to intervene. Therefore, the court shall address it within the context of Islandwide's motions.
Islandwide seeks leave to intervene in the action and serve responsive pleadings herein.
(a) Intervention as of right. Upon timely motion, any person shall be permitted to intervene in any action:
2. when the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment;CPLR 1012
Upon timely motion, any person may be permitted to intervene in any action when a statute of the state confers a right to intervene in the discretion of the court, or when the person's claim or defense and the main action have a common question of law or fact. In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party.CPLR 1013
Leave to intervene must be granted when the intervening party may be bound by the judgment. CPLR 1012. Leave to intervene may be granted when the "main action ha[s] a common question of law or fact". (CPLR 1013; see Matter of Global Cos. LLC v New York State Dept, of Envtl. Conservation, 155 A.D.3d 93, 95 [3rd Dept 2017]; Borst v International Paper Co., 121 A.D.3d 1343, 1346 [3rd Dept 2014].) While such applications must be made "timely", the decision to grant leave is fact specific in the discretion of the trial court, (see CPLR 1013; Matter of Global Cos. LLC v New York State Dept, of Envtl. Conservation, 155 A.D.3d at 95; Borst v International Paper Co., 121 A.D.3d at 1346 [3rd Dept 2014].)
The facts as alleged by Islandwide are that it is the true and sole owner to 71 and 77 Starbuck Street. However, the metes and bounds description on the 2004 deed and 2006 mortgage would indicate that defendant is the owner and that she granted plaintiff a mortgage therein. While Islandwide and defendant significantly dispute the true ownership, it is without question that, as presently constituted, the foreclosure action seeks a court order to auction property that may exceed that which is owned by the mortgagor. While it is obvious that the interests of defendant and Islandwide are in conflict, it is also clear that plaintiff does not "adequately represent" the interests of Islandwide, satisfying the mandatory intervention criteria of CPLR 1012.
The claim of Islandwide, as to their ownership of 71 and 77 Starbuck Street, is a "common question of law or fact" as presented in the foreclosure action as the court needs to ensure that any mortgage to be foreclosed initially emanates from a clear ownership right of the mortgagor. While defendant argues that Islandwide's request is untimely, there is no quantitative time requirement within the statute. Rather, considerations of timeliness revolve around the facts of the matter and impact upon parties in the action. The instant foreclosure action was filed in 2017, with unsuccessful settlement conferences having occurred thereafter. Plaintiff was then granted summary judgment and defendant had her first motion to dismiss denied. Islandwide's motion to intervene was then made while the current request for a judgment of foreclosure and sale was pending. Defendant has presented no indication how she is in any manner harmed by the instant filing that would differ, if the filing were to have been made at an earlier stage in this litigation. Neither of the court's decisions on motion 001 and 002 are materially impacted by the instant request. Furthermore, defendant cannot claim surprise that Islandwide is asserting their current claims as it has held itself out as owner of 71 and 77 Starbuck Street for 18 years. Therefore, Islandwide satisfies the criteria for discretionary leave to intervene under CPLR 1013 as well.
Defendant also asserts that Islandwide's underlying claims, to reform the 2004 deed and 2006 mortgage, are time barred. A cause of action to reform an instrument on the grounds of mistake is generally subject to a six-year statute of limitations that presumably commences at the moment of the occurrence of the mistake. (CPLR 213(6); see also Lopez v Lopez, 133 A.D.3d 722, 723 [2nd Dept 2014]). However, there is an exception where a party is in possession under color of title, in which instance the statute does not commence running until notice is given that a different party is asserting an adverse right pursuant to the disputed instrument, (see Lopez v Lopez, 133 A.D.3d at 724; Pulver v. Dougherty, 58 A.D.3d 978, 979 [3rd Dept 2009]). The record before the court is that Islandwide has acted as landlord for one of the disputed properties and used the other as storage for the approximately 18 years since defendant became an owner, minimally of at least 73 Starbuck Street, per the 2004 deed. The first instance in which defendant directly asserted a claim to either 71 or 77 Starbuck Street, as against Islandwide, was the service of the 90-day notice, which occurred after Islandwide made the present motion to intervene. Defendant's argument that Islandwide had notice of the claim by the service of the summons and complaint upon an attorney who represented Islandwide is unavailing. The service upon said attorney was as the registered agent for a wholly different entity and the court will not impute formal notice upon legally distinct entities merely due to their sharing common counsel. More importantly, the instant action was commenced in 2017 with the motion to intervene filed in 2022, such that the statute of limitations would not have run under any interpretation.
Motions for Judgment of Foreclosure and Sale / Dismissal (003)(004)(005)(007)(008)
Plaintiff has moved to confirm the referee report and for a judgment of foreclosure and sale (003). Defendant has opposed plaintiff's motion and filed multiple additional motions to dismiss the complaint (004, 005, 007, 008). Certain issues raised in opposition to plaintiffs motion are replicated, at least in part, in defendant's motions.
Proper Parties
In opposing the motion for a judgment of foreclosure and sale (003) and in portions of her most recent motion to dismiss (008), defendant highlights that John Marcucilli signed the 2006 note, defendant did not sign the 2006 note and the estate of John Marcucilli is not a named party in this action. Therefore, defendant contends that the foreclosure action cannot be enforced as against her. Additionally, she contends that the estate of John Marcucilli is a necessary party.
First, the court notes that these arguments were made in opposition to the motion for summary judgment (001) and defendant's original motion to dismiss (002), with the court ruling against defendant. Defendant cannot simply restate the same argument upon which the court has already ruled.
Additionally, defendant's claims are patently incorrect. In taking title to the property in 2004 as "husband and wife" John and Darlean Marcucilli took title as tenants by the entirety. Upon the death of John as the co-tenant, title automatically passed to Darlean as the surviving spouse / co-tenant (see EPTL §6-2.2; HSBC Bank USA, N.A. v. Scivoletti, 212 A.D.3d 600, 602 [2nd Dept. 2023]; U.S. Bank N.A. v Auteri, 191 A.D.3d 729, 730 [2nd Dept. 2021]). At the point of death, the entire fee was owned by defendant with John's estate having no property interest (see U.S. Bank N.A. v Auteri, 191 A.D.3d at 730). John's estate is not a necessary party to the action, with plaintiff merely forgoing any right to collect a money / deficiency judgment from his estate. (Id.) While defendant does not appear to have executed the 2006 note, she did execute the 2006 mortgage. At the time of the modification, both of the then property owners, John and Darlean Marcucilli, executed the 2006 mortgage, making the document an enforceable security instrument. Defendant's failure to sign the 2006 note merely removes any personal liability she may have for said debt, preventing plaintiff from seeking a deficiency judgment from her should any auction fail to fully satisfy any potential judgment (see Kawai Am. Corp. v. Hilton, 205 A.D.2d 1021, 1022 [3rd Dept. 1994]).
Reargument
In motion 004, defendant seeks to dismiss the complaint arguing that certain pages she submitted were not considered by the court and that, in striking her answer, the court somehow took away "rights" that she had. In response to plaintiff's contentions that defendant is reasserting arguments from motions 001 and 002, defendant argues that by asserting claims while utilizing an order to show cause, she is arguing something "new and important".
In reviewing defendant's papers for motion 004 there are no material facts or related documents that were unavailable to the court in rendering its decisions on motions 001 and 002. To the extent that defendant feels that the court overlooked or otherwise incorrectly ruled on her earlier arguments, her time to seek leave to reargue had expired long prior to the filing of the instant motion, (see CPLR 2221(d)). Similarly, while defendant filed a notice of appeal, she does not appear to have perfected such an appeal. Most importantly, the papers filed by defendant in support of her motion largely argue for the opportunity to be heard, without actually referencing the substantive issues upon which she is basing her request to dismiss the complaint.
Pre-Foreclosure Notice
In addition to any contractually required notices, New York requires an express notification to owner-occupied homes in advance of the filing of a court action seeking foreclosure.
1. Notwithstanding any other provision of law, with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers at the property address and any other address of record, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type ...
2. The notices required by this section shall be sent by such lender, assignee (including purchasing investor) or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage. The notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice.
The required text of the notice is detailed, including the verbiage and the minimum required font. The CPLR-mandated notice is remedial in nature, intended to help borrowers work out a default, hopefully prior to the commencement of a foreclosure court action. (see Bank of America, N.A. v. Kessler, 2023 N.Y. LEXIS 162, 3 [2023].) While there is a prohibition against the inclusion of distinct documents such as a monthly loan statement, there is no bright-line standard that prohibits any language not expressly included within the four comers of the status. (Id.) Since express disclosures and verbiage may be required by federal or other laws, the adherence to an unyielding bright-line standard would not only conflict with the remedial intention of New York's statute, but potentially be hostile to equally important consumer and homeowner protection laws. (Id.)
Defendant raised compliance with RPAPL §1304 within her answer, but failed to discuss it in her opposition to summary judgment (001) or in her original motion to dismiss (002). Defense counsel now argues that the notice plaintiff provided is deficient for deviations from the statutory requirements. Defendant argues that inclusion of a disclosure that counsel is sending this letter as an attempt to collect a debt (the "mini-Miranda" as defense counsel terms it) violates "separate envelope" requirement of the statute. As noted by the Court of Appeals in its recent decision, RPAPL §1304 requires certain express language and related limitations but does not contain a blanket prohibition against the inclusion of any additional words or phrases. (see Bank of America, N.A. v. Kessler, 2023 N.Y. LEXIS 162 [2023].) The complained of phrase, warning that the attorneys are seeking to collect a debt, is standard for entities engaged in collecting debt and could not, logically, be separated into a distinct mailing. Likewise, while defense counsel complains that the notice was sent on behalf of plaintiff's attorneys, this is not a deviation from the requirement that the notice be sent by the "lender", "assignee" or "servicer". Defendant submits no authority that a letter sent by an attorney for a corporate entity somehow violates a duty placed upon said corporation.
Property Dispute
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Solis v. Aguilar, 206 A.D.3d 684, 686 [2nd Dept 2022]; see Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986].) Unlike defendant's other arguments, discussed above, which are without merit and have largely been litigated previously, the issues surrounding property ownership have not been fully adjudicated. However, defendant's requests for summary judgment / dismissal based thereupon are improper at this time as there are significant material issues of fact to be decided. Defendant references the language in the 2004 deed and 2006 mortgage in support of her contention that she is the true owner of all three houses. On the other hand. Islandwide presents significant evidence that it is the true owner of 71 and 77 Starbuck, including the 2004 mortgage, Department of Finance records and defendant's lack of any claims to the larger parcel until during the latter parts of this litigation. The court notes that defendant's submissions themselves are at times contradictory as to whether she is truly contending that she was to be the owner of all three homes. In light of such material conflicts, the grant of dismissal would be premature at this stage.
Accordingly, it is hereby:
ORDERED, that the motions of defendant Darlean Marcucilli to dismiss the complaint, (004, 005, 007, 008) are denied; and it is further
ORDERED, that the motion of Islandwide Building Corp, to intervene and file an answer, counter claims and cross claims (006) is granted; and it is further
ORDERED, that the order signed by this court restraining defendant from interfering with 71 and 77 Starbuck Street (009) remains in effect; and it is further
ORDERED, that plaintiff's motion to confirm the referee report and for a judgment of foreclosure and sale (003) is held in abeyance pending a determination of the ownership rights of 71 and 77 Starbuck Street; and it is further
ORDERED, that the parties appear before this court for a conference on FRIDAY, JUNE 16, 2023.