Deutsche Bank Nat'l Tr. Co. v. Marcucilli

Unpublished Opinion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...