Downey Sav. & Loan Assn., F.A.

v Trujillo (2011 NY Slip Op 51517(U))

http://www.nycourts.gov/reporter/3dseries/2011/2011_51517.htm

[*1]
Downey Sav. & Loan Assn., F.A. v Trujillo 2011 NY Slip Op 51517(U) Decided on August 12, 2011 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 12, 2011 Supreme Court, Kings County

Downey Savings and Loan Association, F.A., Plaintiff, against Dario Trujillo, et. al., Defendants.

22268/08

Plaintiff Nicholas E. Perciballi, Esq. Druckman Law Group, PLLC Westbury Jericho NY Arthur M. Schack, J.

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Plaintiff's counsel, in this foreclosure action, engaged in possible sanctionable conduct by affirming "under the penalties of perjury" to a false statement. In her January 7, 2011 affirmation, required by Administrative Order (AO) 548/10 of October 20, 2010, plaintiff's counsel, Margaret E. Carucci, Esq., of DRUCKMAN LAW GROUP PLLC (DRUCKMAN), was required to confirm the accuracy of the subject foreclosure papers, documents and notarizations. Ms. Carucci stated that she confirmed the accuracy by communicating, on December 24, 2010, with Tammy Denson, an "Officer of Downey Savings and Loan." While Ms. Carucci might have communicated with Tammy Denson on Christmas Eve 2010, plaintiff DOWNEY SAVINGS AND LOAN ASSOCIATION, F.A. (DOWNEY) ceased to exist on November 21, 2008. (See Federal Deposit Insurance Company Press Release 124-2008 of November 21, 2008). [*2]DOWNEY, on December 24, 2010, resided with the Ghost of Christmas Past. Tammy Denson, until November 21, 2008 may have been employed by DOWNEY, but is now employed by DOWNEY's successor in interest, U.S. BANK NATIONAL ASSOCIATION (US BANK). This Court, as will be explained, gave DRUCKMAN an opportunity to correct their AO 548/10 affirmation, in my May 9, 2010 order, but DRUCKMAN failed to do so. Therefore, because DRUCKMAN violated AO548/10 with a false affirmation and my subsequent May 9, 2010 order, the instant foreclosure action, for procedural reasons, is dismissed with prejudice. Ms. Carucci affirmed "under the penalties of perjury" that she communicated on Christmas Eve 2010 with an officer of a defunct financial institution. This is a deceptive trick and fraud upon the Court. It cannot be tolerated. This Christmas Eve conduct, in the words of Ebenezer Scrooge, is "Bah, humbug!" Conduct is frivolous if it "asserts material factual statements that are false," an apt definition for "humbuggery." Therefore, Margaret E. Carucci, Esq. and DRUCKMAN LAW GROUP PLLC, will be given an opportunity to be heard why this Court should not sanction them for making a "frivolous motion," pursuant to 22 NYCRR 130-1.1.

Background Plaintiff DOWNEY commenced this foreclosure action for the premises located at 70 Somers Street, Brooklyn, New York (Block 1542, Lot 21, County of Kings), on July 31, 2008, by filing the summons, complaint and notice of pendency with the Kings County Clerk's Office. Defendant DARIO TRUJILLO (TRUJILLO) never answered. I issued an order of reference for the subject premises on July 15, 2010. Then, plaintiff DOWNEY's counsel, DRUCKMAN, filed with the Kings County Clerk's Office, on January 26, 2011, a motion for a judgment of
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foreclosure and sale. At the May 9, 2011 oral arguments, on the motion for a judgment of foreclosure and sale, I discovered that the subject TRUJILLO mortgage and note had been assigned to U.S. BANK NATIONAL ASSOCIATION (US BANK) by the Federal Deposit Insurance Company (FDIC) as Receiver for DOWNEY. The FDIC seized DOWNEY's assets on November 21, 2008 and assigned them to US BANK. Svetlana Kaplun, Esq., of DRUCKMAN, in her January 21, 2011 affirmation in support of the motion for a judgment of foreclosure and sale, stated, in 13: The mortgage at issue has been assigned to US BANK NATIONAL ASSOCIATION, AS SUCCESSOR IN INTEREST TO THE FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR DOWNEY SAVING AND LOAN ASSOCIATION, F.A. Accordingly, it is respectfully requested that name of plaintiff be amended to US BANK NATIONAL ASSOCIATION, AS SUCCESSOR IN INTEREST TO THE FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR DOWNEY SAVING AND LOAN ASSOCIATION, F.A. A copy of the assignment is attached hereto and made a part hereof. An executed copy of the April 20, 2009 assignment and assumption of interests and obligations from assignor FDIC as Receiver for DOWNEY to assignee US BANK was attached to the motion. Also attached to the motion was the January 7, 2011 affirmation of Ms. Carucci, as per AO 548/10. According to the October 20, 2010 Office of Court Administration's press release [*3]about the filing requirements of AO 548/10: The New York State court system has instituted a new filing requirement in residential foreclosure cases to protect the integrity of the foreclosure process and prevent wrongful foreclosures. Chief Judge Jonathan Lippman today announced that plaintiff's counsel in

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foreclosure actions will be required to file an affirmation certifying that counsel has taken reasonable steps including inquiry to banks and lenders and careful review of the papers filed in the case to verify the accuracy of documents filed in support of residential foreclosures. The new filing requirement was introduced by the Chief Judge in response to recent disclosures by major mortgage lenders of significant insufficiencies including widespread deficiencies in notarization and "robosigning" of supporting documents in residential foreclosure filings in courts nationwide. The new requirement is effective immediately and was created with the approval of the Presiding Justices of all four Judicial Departments. Chief Judge Lippman said, "We cannot allow the courts in New York State to stand by idly and be party to what we now know is a deeply flawed process, especially when that process involves basic human needs such as a family home during this period of economic crisis. This new filing requirement will play a vital role in ensuring that the documents judges rely on will be thoroughly examined, accurate, and error-free before any judge is asked to take the drastic step of foreclosure." [Emphasis added] (See Gretchen Morgenson and Andrew Martin, Big Legal Clash on Foreclosure is Taking Shape, New York Times, Oct. 21, 2010; Andrew

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Keshner, New Court Rules Says Attorneys Must Verify Foreclosure Papers, NYLJ, Oct. 21, 2010). Ms. Carucci, in her January 7, 2011 AO 548/10 affirmation, affirmed "under the penalties of perjury": 2. On December 24, 2010, I communicated with the following representative or representatives of Plaintiff, who informed me that he/she/they (a) personally reviewed plaintiff's documents and records [*4] relating to this case for factual accuracy; and (b) confirmed the factual accuracy and allegations set forth in the Complaint and any supporting affirmations filed with the Court, as well as the accuracy of the notarizations contained in the supporting documents filed therewith. NameTitle Tammy DensonOfficer of Downey Savings and Loan 949-798-6052 3. Based upon my communication with Tammy Denson, as well as upon my inspection and reasonable inquiry under the circumstances, I affirm that, to the best of my knowledge, information, and belief, the Summons and Complaint, and other papers filed or submitted to the Court in this matter contain no false statements of fact or law . . . 4. I am aware of my obligations under New York Rules of

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Professional Conduct (22 NYCRR Part 1200) and 22 NYCRR Part 130. [Emphasis added] The Court is concerned that Ms. Carucci affirmed to a falsehood, namely, that Ms. Denson is an Officer of defunct DOWNEY. In the presence of Svetlana Kaplun, Esq., who appeared on behalf of plaintiff's counsel, DRUCKMAN, I called the above-listed telephone number for Tammy Denson. Ms. Denson did not answer the phone, but a voice mail message stated that she was an officer of US BANK, not DOWNEY. Therefore, I denied the motion for a judgment of foreclosure and sale, and issued, at the May 9, 2011 oral arguments, the following short-form order: Plaintiff's motion for a judgment of foreclosure and sale is denied without prejudice to renew within sixty (60) days of this decision and order. Plaintiff's counsel claims to represent plaintiff Downey, a defunct financial institution. Further it appears that Margaret E. Carucci, Esq., an attorney for plaintiff possibly filed a false affirmation with the Court. Ms. Carucci affirms under penalty of perjury that a Tammy Denson is an officer of plaintiff Downey S & L, which did not exist on 12/24/10, when she signed a sworn statement as an "officer." The Court called Ms. Denson in the presence of Svetlana Kaplun, Esq. today and Ms. Denson, in her voice mail, stated she is [*5] a loan official of US Bank, not Downey S & L. Plaintiff has 60 days to file an affirmation from an officer with the officer's title with US Bank, if it is the true owner of the subject mortgage and note, as well as a renewed motion for a

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judgment of foreclosure and sale. Then, I received a letter, dated July 8, 2011 (the 60-day deadline for the affirmation from an officer of US BANK and the renewed motion), from Nicholas E. Perciballi, Esq. of DRUCKMAN, about the instant action. Mr. Perciballi stated "[t]his office represents the Plaintiff . . . Please advised that Margaret E. Carucci, Esq. is no longer employed with this firm. With regard to your Short From Order dated May 9, 2011, we respectfully request an additional 60 days so that we may work with our client to produce the documents needed to comply with your Order [sic]." The Court has no idea why DRUCKMAN waited until the last possible day to send me the July 8, 2011-letter. The termination of Ms. Carucci's employment is not an acceptable excuse for delay. I gave DRUCKMAN, on May 9, 2011, sixty days to file a correct AO 548/10 affirmation. It is a waste of judicial resources to grant plaintiff "an additional 60 days so that we may work with our client to produce the documents needed to comply with your Order." Court orders are not issued to be flouted. Moreover, according to the Office of Court Administration's Attorney Registry, Margaret E. Carucci, Esq., still lists her business address as DRUCKMAN LAW GROUP PLLC, in Westbury, New York. If she is no longer employed by DRUCKMAN, she might be in violation of 22 NYCRR 118.1 (f). This requires an attorney who changes the business address in his or her registration to "file an amended statement within 30 days of such change."

Dismissal of the instant action Plaintiff's counsel, Mr. Perciballi, in his July 8, 2011-letter, did not present a reasonable excuse for the Court to grant a sixty-day extension to produce the documents required in my May 9, 2011 order. The Court does not work for US BANK and cannot wait for the multibillion dollar financial behemoth US BANK, to "produce the documents need to comply with" my May 9, 2011 order. The failure of plaintiff's counsel, DRUCKMAN LAW GROUP PLLC to comply with two court orders, Chief Administrative Judge Pfau's October 20, 2010 AO 548/10 and my May 9, 2011 order, demonstrates delinquent conduct by DRUCKMAN LAW GROUP PLLC. This mandates, for procedural reasons, the dismissal with prejudice of the instant action. Failure to comply with court-ordered time frames must be taken seriously and not ignored. There are consequences for ignoring court orders. The Court of Appeals, in Gibbs v St. Barnabas Hosp. (16 NY3d 74, 81 [2010]), instructed: As this Court has repeatedly emphasized, our court system is

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dependent on all parties engaged in litigation abiding by the rules of proper practice (see e.g. Brill v City of New York, 2 NY3d 748 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]). The failure to comply with deadlines not only impairs the efficient functioning of the courts and [*6] the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well. For these reasons, it is important to adhere to the position we declared a decade ago that "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity [Emphasis added]." (Kihl, 94 NY2d at 123). "Litigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not

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and will not be tolerated (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 748 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]) [Emphasis added]." (Andrea v Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C., 5 NY3d 514, 521 [2005]). "As we made clear in Brill, and underscore here, statutory time frames like court-order time frames (see Kihl v Pfeffer, 94 NY2d 118 [1999]) are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts, are taken up with deadlines that are simply ignored [Emphasis added]." (Miceli, 3 NY3d at 726-726). Further, the dismissal of the instant foreclosure action requires the cancellation of the notice of pendency. CPLR 6501 provides that the filing of a notice of pendency against a property is to give constructive notice to any purchaser of real property or encumbrancer against real property of an action that "would affect the title to, or the possession, use or enjoyment of real property, except in a summary proceeding brought to recover the possession of real property." The Court of Appeals, in 5308 Realty Corp. v O & Y Equity Corp. (64 NY2d 313, 319 [1984]), commented that "[t]he purpose of the doctrine was to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit," and, at 320, that "the statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review." [*7] CPLR 6514 (a) provides for the mandatory cancellation of a notice of pendency by: The Court,upon motion of any person aggrieved and upon such notice as it may require, shall direct any county clerk to cancel a notice of pendency, if service of a summons has not been completed within the time limited by section 6512; or if the action has been settled, discontinued or abated; or if the time to appeal from a final judgment against the plaintiff has expired; or if enforcement of a

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final judgment against the plaintiff has not been stayed pursuant to section 551. [emphasis added] The plain meaning of the word "abated," as used in CPLR 6514 (a) is the ending of an action. "Abatement" is defined as "the act of eliminating or nullifying." (Black's Law Dictionary 3 [7th ed 1999]). "An action which has been abated is dead, and any further enforcement of the cause of action requires the bringing of a new action, provided that a cause of action remains (2A Carmody-Wait 2d 11.1)." (Nastasi v Nastasi, 26 AD3d 32, 40 [2d Dept 2005]). Further, Nastasi at 36, held that the "[c]ancellation of a notice of pendency can be granted in the exercise of the inherent power of the court where its filing fails to comply with CPLR 6501 (see 5303 Realty Corp. v O & Y Equity Corp., supra at 320-321; Rose v Montt Assets, 250 AD2d 451, 451-452 [1d Dept 1998]; Siegel, NY Prac 336 [4th ed])." Thus, the dismissal of the instant complaint must result in the mandatory cancellation of plaintiff's notice of pendency against the subject property "in the exercise of the inherent power of the court."

Possible frivolous conduct by plaintiff's counsel Ms. Carucci affirmed "under the penalties of perjury," on January 7, 2011, to the factual accuracy of the foreclosure papers by communicating with a representative of the defunct plaintiff DOWNEY. The filing of the motion for a judgment of foreclosure and sale by plaintiff's counsel, with Ms. Carucci's false statement, appears to be frivolous. 22 NYCRR 130-1.1 (a) states that "the Court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart." Further, it states in 22 NYCRR 130-1.1 (b), that "sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated." 22 NYCRR 130-1.1 (c) states that: For purposes of this part, conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

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(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. It is clear that Ms. Carucci's January 7, 2011 affirmation "asserts material factual statements that are false." Further, Ms. Carucci's January 7, 2011 affirmation, with its false statement, may be a cause for sanctions. Several years before the drafting and implementation of the Part 130 Rules for costs and sanctions, the Court of Appeals (A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 6 [*8][1986]) observed that "frivolous litigation is so serious a problem affecting the proper administration of justice, the courts may proscribe such conduct and impose sanctions in this exercise of their rule-making powers, in the absence of legislation to the contrary (see NY Const, art VI, 30, Judiciary Law 211 [1] [b] )." Part 130 Rules were subsequently created, effective January 1, 1989, to give the courts an additional remedy to deal with frivolous conduct. These stand beside Appellate Division disciplinary case law against attorneys for abuse of process or malicious prosecution. The Court, in Gordon v Marrone (202 AD2d 104, 110 [2d Dept 1994], lv denied 84 NY2d 813 [1995]), instructed that: Conduct is frivolous and can be sanctioned under the court rule if "it is completely without merit . . . and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; or . . . it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (22 NYCRR 130-1.1[c] [1], [2] . . . ).

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In Levy v Carol Management Corporation (260 AD2d 27, 33 [1st Dept 1999]), the Court stated that in determining if sanctions are appropriate the Court must look at the broad pattern of conduct by the offending attorneys or parties. Further, "22 NYCRR 130-1.1 allows us to exercise our discretion to impose costs and sanctions on an errant party . . ." Levy at 34, held that "[s]anctions are retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large." The Court, in Kernisan, M.D. v Taylor (171 AD2d 869 [2d Dept 1991]), noted that the intent of the Part 130 Rules "is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics (cf. Minister, Elders & Deacons of Refm. Prot. Church of City of New York v 198 Broadway, 76 NY2d 411; see Steiner v Bonhamer, 146 Misc 2d 10) [Emphasis added]." The instant action, with DRUCKMAN asserting false statements, is "a waste of judicial resources." This conduct, as noted in Levy, must be deterred. In Weinstock v Weinstock (253 AD2d 873 [2d Dept 1998]) the Court ordered the maximum sanction of $10,000.00 for an attorney who pursued an appeal "completely without merit," and holding, at 874, that "[w]e therefore award the maximum authorized amount as a sanction for this conduct (see, 22 NYCRR 130-1.1) calling to mind that frivolous litigation causes a substantial waste of judicial resources to the detriment of those litigants who come to the Court with real grievances [Emphasis added]." Citing Weinstock, the Appellate Division, Second Department, in Bernadette Panzella, P.C. v De Santis (36 AD3d 734 [2d Dept 2007]) affirmed a Supreme Court, Richmond County $2,500.00 sanction, at 736, as "appropriate in view of the plaintiff's waste of judicial resources [Emphasis added]." In Navin v Mosquera (30 AD3d 883 [3d Dept 2006]) the Court instructed that when considering if specific conduct is sanctionable as frivolous, "courts are required to examine whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] should have been apparent' (22 NYCRR 130-1.1 [c])." The Court, in Sakow ex rel. Columbia Bagel, Inc. v Columbia Bagel, Inc. (6 Misc 3d 939, 943 [Sup Ct, New York County 2004]), held that "[i]n assessing whether to award sanctions, the Court must [*9]consider whether the attorney adhered to the standards of a reasonable attorney (Principe v Assay Partners, 154 Misc 2d 702 [Sup Ct, NY County 1992])."

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"Nothing could more aptly be described as conduct completely without merit in . . . fact' than the giving of sworn testimony or providing an affidavit, knowing the same to be false, on a material issue." (Sanders v Copley, 194 AD2d 85, 88 [1d Dept 1993]). The Court, in Joan 2000, Ltd. v Deco Constr. Corp. (66 AD3d 841, 842 [2d Dept 2009]), instructed that "[c]onduct is frivolous it . . . asserts material factual statements that are false."In Curcio v J.P. Hogan Coring & Sawing Corp. (303 AD2d 357 [2d Dept 2003]), plaintiff's counsel falsely claimed that the parties orally stipulated to a settlement of an employee discrimination case. The Curcio Court, at 358, held that "the conduct of [plaintiff's counsel] was frivolous because it was without merit in law and involved the assertion of misleading factual statement to the Clerk of the Supreme Court (see 22 NYCRR 130-1.1 [c] [1], [3])." (See Gordon v Marrone, supra; In re Ernestine R., 61 AD3d 874 [2d Dept 2009]; Glenn v Annunziata, 53 AD3d 565 [2d Dept 2008]; Miller v Dugan, 27 AD3d 429 [2d Dept 2006]; Greene v Doral Conference Center Associates, 18 AD3d 429 [2d Dept 2005]; Ofman v Campos, 12 AD3d 581 [2d Dept 2004]; Intercontinental Bank Limited v Micale & Rivera, LLP, 300 AD2d 207 [1d Dept 2002]; Tyree Bros. Environmental Services, Inc. v Ferguson Propeller, Inc., 247 AD2d 376 [2d Dept 1998]). Therefore, the Court will examine the conduct of Margaret E. Carucci, Esq. and DRUCKMAN LAW GROUP PLLC in a hearing, pursuant to 22 NYCRR 130-1.1, to: determine if Margaret E. Carucci, Esq. and DRUCKMAN LAW GROUP PLLC engaged in frivolous conduct; and, allow Margaret E. Carucci, Esq. and DRUCKMAN LAW GROUP PLLC a reasonable opportunity to be heard.

Conclusion

Accordingly, it is ORDERED, that the instant complaint, Index No. 22268/08, is dismissed with prejudice; and it is further ORDERED, that the Notice of Pendency filed with the Kings County Clerk on July 31, 2008, by plaintiff, DOWNEY SAVINGS AND LOAN ASSOCIATION, F.A., in an action to foreclose a mortgage for real property located at 70 Somers Street,

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Brooklyn, New York (Block 1542, Lot 21, County of Kings), is cancelled and discharged; and it is further ORDERED, that it appearing that Margaret E. Carucci, Esq. and DRUCKMAN LAW GROUP PLLC engaged in "frivolous conduct," as defined in the Rules of the Chief Administrator, 22 NYCRR 130-1 (c), and that pursuant to the Rules of the Chief Administrator, 22 NYCRR 130.1.1 (d), "[a]n award of costs or the imposition of sanctions may be made . . . upon the court's own initiative, after a reasonable opportunity to be heard," this Court will conduct a hearing affording Margaret E. Carucci, Esq. and DRUCKMAN LAW GROUP PLLC "a reasonable opportunity to be heard" before me in Part 27, on Monday, September 12, 2011, at 2:30 P.M., in Room 479, 360 Adams Street, Brooklyn, NY 11201; and it is further ORDERED, that Ronald David Bratt, Esq., my Principal Law Clerk, is directed to serve this order by first-class mail, upon: Margaret E. Carucci, Esq., Druckman Law Group PLLC, 242 Drexel Avenue, Suite 2, Westbury, NY 11590; and, DRUCKMAN LAW GROUP PLLC, 242 Drexel Avenue, Suite 2, Westbury, NY 11590. [*10] This constitutes the Decision and Order of the Court. ENTER ___________________________ HON. ARTHUR M. SCHACK J.S.C.

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