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Federal National Mortgage Association v. Chiusano

Supreme Court, Suffolk County

May 8, 2018

Federal National Mortgage Association, Plaintiff,
v.
Michael Chiusano; JOSE ALVAREZ; SAUL CANALES; CAPITAL ONE BANK; DR. HOWARD LEEMAN DDS, PC; FIDEL GARCIA; JOHN HARRINGTON; DAVID REYES; EDGAR REYES; JOSE REYES, Defendants.

          ROSICKI, ROSICKI & ASSOCIATES, P.C. Attorneys for Plaintiff

          LAW OFFICES OF CHRISTOPHER THOMPSON Christopher Thompson, Esq. Attorney for Defendant-Michael Chiusano

          Hon. Robert F. Quinlan, J.S.C.

         Upon the following papers numbered 1 to 77 read on this motion for judgment of foreclosure and sale: Notice of Motion and supporting papers 1-27; Notice of Cross Motion and supporting papers 28-67; Affirmations and supporting papers in opposition and reply 68-77; Other; it is

         ORDERED that this motion by plaintiff Federal National Mortgage Association for an order pursuant to RPAPL § 1351 granting a judgment of foreclosure, approving plaintiff's request for attorney's fees and associated relief is granted as set forth below; and it is further, ORDERED that defendant Michael Chiusano's cross-motion to renew (CPLR 2221 [e]) his prior cross-motion (Mot. Seq. #002) made pursuant to CPLR § 3212 seeking summary judgment dismissing the action; and if dismissal was not granted, pursuant to CPLR §§ 317 and 5015 (a) seeking to vacate his default in answering or alternatively, pursuant to CPLR 3012 (d) to compel acceptance of his late answer is denied; and it is further

         ORDERED that plaintiff Federal National Mortgage Association's proposed order of judgment of foreclosure and sale, as modified by the court, is signed contemporaneously with this order; and it is further

         ORDERED that plaintiff shall serve the notice of the foreclosure sale and any adjournments upon the Supreme Court Calendar Clerk; and it is further

         ORDERED that the referee complete and file the Suffolk County Foreclosure Action Surplus Monies form with the Supreme Court Calendar Clerk and the Suffolk County Clerk within thirty (30) days of the foreclosure sale; and it is further

         ORDERED that the referee submit proof of deposit of any surplus monies with the County Comptroller with the Supreme Court Calendar Clerk and the Suffolk County Clerk within thirty (30) days of the closing of title; and it is further

         ORDERED that the referee may make an application for additional fees, by letter to the court, as a result of any adjournments of the sale, providing proof of compliance with 22 NYCRR Part 36 including the filing of USC Forms 872 and 875; and it is further

         ORDERED that pursuant to RPAPL § 1351(1) the mortgaged premises is to be sold under the direction of the referee within ninety (90) days of the date of this order.

         This is an action to foreclose a mortgage on residential real property located at 73 West 22nd Street, Huntington Station, Suffolk County, New York ("the property") given by defendant Michael Chiusano ("defendant") to plaintiff Federal National Mortgage Association's ("plaintiff") predecessor in interest on November 30, 2007 to secure a note given the same date by defendant to that predecessor in interest. Upon defendant's default in payment under the terms of the mortgage and note, another predecessor in interest to plaintiff, Citimortgage, Inc. ("Citimortgage") commenced this action on September 10, 2013 by filing a summons, complaint and notice of pendency with the Suffolk County Clerk ("Clerk"). Affidavits of service upon all defendants were filed with the Clerk. No defendant timely appeared or filed an answer.

         Upon the default in answering of defendants, plaintiff filed a motion for appointment of a referee pursuant to RPAPL§ 1321 returnable November 13, 2014 (Mot. Seq. #001). Defendant cross-moved (Mot. Seq. #002) pursuant to CPLR § 3212 seeking summary judgment dismissing the action, and if that was not granted for an order pursuant to CPLR §§ 317 and 5015 (a) vacating his default in answering; or alternatively, pursuant to CPLR 3012 (d) to compel acceptance of his late answer, as well as opposing plaintiff's motion. Both motions were marked submitted before the Hon. Thomas F. Whelan, Justice of this court on November 3, 2014. By AO # 19-16, dated April 12, 2016, District Administrative Judge C. Randall Hinrichs transferred the action and motions to this part, after which the motions were scheduled for oral argument on October 24, 2016 and adjourned to November 28, 2016. Oral argument of the motions was held on November 28, 2016, and in a decision on the record the court denied defendant's cross-motion and granted plaintiff's motion.

         Subsequently, plaintiff filed a motion pursuant to RPAPL § 1351 seeking a judgment of foreclosure and sale (Mot. Seq. #003) which was withdrawn by letter dated March 27, 2017. Plaintiff then filed this motion seeking a judgment of foreclosure and sale (Mot. # 004) and defendant filed his cross-motion seeking to ...


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