BY AND THROUGH ITS EXECUTOR PHILIP DONATO ESTATE OF NAZARINE DONATO BY AND THROUGH ITS EXECUTOR ROBERT DONATO ESTATE OF DOMINIC DONATO BY AND THROUGH ITS EXECUTOR NOLA DONATO ESTATE OF MARY TUCKER BY AND THROUGH ITS EXECUTORS RICHARD AND STEPHEN TUCKER ALL AS BENEFICIARIES OF THE ESTATE OF ROSARIO DONATO v. AND ESTATE OF CATHERINE DONATO AS BENEFICIARIES OF THE ESTATE OF ROSARIO DONATO AND JOANNE ANDERSON AS ADMINISTRATOR OF THE ESTATE OF ROSARIO DONATO (2025)

INTRODUCTION

The is an action  ¹ under the Uniform partition of heirs property act (RPAPL § 993).²

STATEMENT OF FACTS

The subject parcel consists of 69.40 acres of lands, known as 1198 Normanskill Road in the Town of New Scotland, New York 12186, Assessment Parcel Number 62.-3-11 ("Premises").³

The premises was originally purchased by Joseph Donato, deceased on January 28, 1972, and has passed through the laws of intestate to his wife, Rosaria Donato. The premises was used as a farm stand for agricultural purposes and residential use.⁴ The parties are the grandchildren and great grandchildren and remaining beneficiaries of the Estate of Rosaria Donato.⁵ The plaintiffs have received a third-party purchase offer in the sum of $530.000 for the premises and are desirous of selling same.⁶ Joanne Anderson, as Administrator of the Rosaria Estate, has not consented to the sale.⁷

SERVICE/ANSWER/RESPONSIVE PLEADINGS

Plaintiff served the Summons and Complaint on September 3, 2024, by personal e-mail service pursuant to the Order of this Court dated August 16, 2024, and in accord with CPLR § 308 (5).⁸ Defendant's answer, or responsive pleading was due on or before October 3, 2024, in accord with CPLR R 320 (a).

On October 11, 2024, this Court conducted a conference via TEAMS, in which Plaintiff's representatives and counsel, as well as Joanne Anderson appeared. Since the parties did not reach a settlement agreement, the Court directed Joanne Anderson to file and Answer on or before November 18, 2024, and rescheduled the TEAMS conference on November 19, 2024.

On November 19, 2024, this Court conducted a conference via TEAMS, in which Plaintiff's representatives and counsel, as well as Joanne Anderson appeared. Since the parties did not reach a settlement agreement, the Court extended her time to file an Answer to December 2, 2024. To date, Defendant has failed to submit any response to the Complaint and is in default.

MOTION FOR A DEFAULT JUDGMENT

Where, as here, the case is not one in which the clerk can enter judgment, Plaintiff must apply to the court in accord with CPLR§ 3215 (a). On February 20, 2025, Plaintiff filed a Notice of Motion for a default judgment, returnable March 14, 2025.⁹ On February 21, 2025, Plaintiff served the moving papers on Joanne Anderson via e-mail.¹⁰ Notwithstanding the mode of service, since Defendant never appeared, an ex parte default application is appropriate. (CPLR 3215 (g) (1); Stoltz v. Playquest Theater Co., 257 AD2d 758 3d Dept. 1999]).

CPLR§ 3215 (f) provides, inter alia:

"Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316 of this chapter, and proof of the facts constituting the claim, the default and the amount due, including, if applicable, a statement that the interest rate for consumer debt pursuant to section five thousand four of this chapter applies, by affidavit made by the party, or where the state of New York is the plaintiff, by affidavit made by an attorney from the office of the attorney general who has or obtains knowledge of such facts through review of state records or otherwise. Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney." (Emphasis added)

Here, Plaintiff filed proof of service of the summons and complaint, proof of facts constituting the claim as set forth in the Tucker Affidavit, and proof of default. Upon defendant's default, said defendant is deemed to have admitted all the allegations in the verified complaint (see Cartessa Aesthetics, LLC v. Demko, 217 AD3d 821, 822 [2d Dept. 2023]).

CPLR§ 3215 (b) provides, inter alia:

(b) Procedure before court. The court, with or without a jury, may make an assessment or take an account or proof, or may direct a reference . . . "

Given the nature of this action, the Court will direct a reference.

UNIFORM PARTITION OF HEIRS PROPERTY ACT (RPAPL § 993)

The premises consists of "Heirs property" since the parties are all related, hold their interests as tenants in common, and the premises was used for residential or agricultural purposes (RPAPL § 993 (2) (e) and (3) (b)).

This Court conducted settlement conferences via TEAMS on October 11, 2024, and November 19, 2024, in accord with RPAPL § 993 (5) (a)). There was no proposal for a co-tenant buyout in accord with RPAPL § 993 (7), nor any request for a partition in kind pursuant to RPAPL § 993 (8) (a). Accordingly, the Court shall grant the petition to direct a partition by auction sale (RPAPL § 993 (8) (b) and 10).

While Plaintiffs received third party purchase offers, this Court has elected to appoint a referee to oversee and conduct the auction sale of the premises by auction (RPAPL § 993 (3) (c) and (10)).

CONCLUSION

For the reasons more fully stated above, Plaintiff's motion for a default judgment against defendant on is Granted, and it is further,

ORDERED, ADJUDGED, AND DECREED, that the premises located at 1198 Normanskill Road in the Town of New Scotland, New York 12186, Assessment Parcel Number 62.-3-11 ("Premises") be sold "as-is" at a public auction, with a minimum sales price of $530,000.00 in accord with this Decision, Order, and Interlocutory Judgment; and it is further,

ORDERED, that this action is hereby referred to Max Smelansky, Esq. with an office at 602 Central Avenue, Suite 102, Albany, New York 12206-1968; telephone number (518) 339-3743; e-mail MAX@SMELYANSKYLAW.COM, and he is hereby appointed Referee to conduct the public auction and sale of the premises in accord with RPAPL§ 933 (10), and the sale of the property shall be at public auction held on May 7, 2025 @ 10:00 a.m.in the rotunda of the Albany County Courthouse, 16 Eagle Street, Albany, New York 12207, and such sale shall be made to the highest bidder, and notice of such sale shall be given by the Referee in the Times Union, a newspaper published in the County of Albany where the property is located, and publication shall be made once in each week for four successive weeks preceding the original date fixed for the sale (i.e., the weeks of April 7, 2025, April 14, 2025, April 21, 2025, and April 28, 2025) and the terms of the sale annexed hereto shall be made known at the sale; and it is further,

ORDERED, ADJUDGED AND DECREED the minimum sales price at the public auction of the sale of the property located at 1198 Normanskill Road in the Town of New Scotland, New York 12186, Assessment Parcel Number 62.-3-11 ("Premises") shall be set at $530,000.00, as maybe sufficient to discharge the expenses of the sale, and the costs of the public auction, and shall be held on May 7, 2025 @ 10:00 a.m. in one parcel, at the by and under the direction of the Referee; and it is further,

ORDERED, ADJUDGED AND DECREED that by accepting this appointment the Referee certifies that he/she is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to § 36.2(c) ("Disqualifications from appointment"), and § 36.2(d) ("Limitations on appointments based upon compensation"); and, if the Referee is disqualified from receiving an appointment pursuant to the provisions of that Rule, the Referee shall immediately notify the Appointing Judge; and it is further,

ORDERED, ADJUDGED AND DECREED that the Referee is prohibited from accepting or retaining any funds for him/herself or paying funds to him/herself without compliance with Part 36 of the Rules of the Chief Administrative Judge; and it is further,

ORDERED, ADJUDGED AND DECREED that if the Referee does not conduct the sale on May 7, 2025 @ 10:00 a.m., in accordance with CPLR 2004, the time fixed for the sale may be extended by the Referee to conduct the sale as soon as reasonably practicable but not later than 90 days from the date thereof; and it is further,

ORDERED, ADJUDGED AND DECREED that the Referee shall accept the highest bid offered by a bidder who shall be identified upon the court record, and shall require that the successful bidder immediately execute Terms of Sale for the purchase of the property annexed hereto as Exhibit "A" and which shall be deemed a binding contract, and pay to the Referee, in cash or certified or bank check, ten percent (10%) of the sum bid; and it is further,

ORDERED, ADJUDGED AND DECREED that in the event the first successful bidder fails to execute the Terms of Sale immediately following the bidding upon the subject property and/or fails to immediately pay the ten percent (10%) deposit as required, the property shall be reoffered at the then ongoing public auction; and it is further,

ORDERED, ADJUDGED AND DECREED that the Referee shall then deposit the down payment and proceeds of sale, as necessary, in in his/her own name as Referee, in accordance with CPLR R 2609; and it is further,

ORDERED, ADJUDGED AND DECREED that after the property is sold the Referee shall execute a deed to the purchaser at the closing of title which shall be held no later than thirty (30) days after the date of the auction sale, TIME OF THE ESSENCE, unless otherwise stipulated by all parties to the sale; and it is further,

ORDERED, ADJUDGED,AND DECREED that the Referee, on receiving the proceeds upon the closing to the sale of the premises, shall forthwith pay therefrom, in accordance with their priority according to law, all taxes, assessments, sewer rents, or water rates, which are, or may become, liens on the property at the time of sale, with such interest or penalties which may have lawfully accrued thereon to the date of payment; and it is further,

ORDERED, ADJUDGED,AND DECREED, that the Referee then deposit the balance of said proceeds of sale in her/his own name as Referee in the Referee's IOLA account, and shall thereafter make the following payments in order: FIRST: The Referee's fee for preparing the Notice of Sale, the costs of preparing and publishing the Notice of Sale in accord with RPAPL § 231, and conducting the closing, shall be in the sum of $ 1,500.00, plus publication costs, and shall be paid to the Referee at closing from the Sale Proceeds, and in the event a sale was canceled or postponed, Referee shall be entitled to an additional sum of $ 350.00 for each adjournment or cancellation, unless the Referee caused the delay. The foregoing notwithstanding, in the event the Referee performs more than 10 hours of legal work, the Referee may submit an application for additional fees at the rate of $155.00/hour to the Court; SECOND: All taxes, assessments and water rates that are liens upon the property (adjusted at closing in accord with custom in Albany County) and monies necessary to redeem the property from any sales for unpaid taxes, assessments, or water rates that have not apparently become absolute, and the mortgage lien encumbering the property. Purchaser shall be responsible for interest and penalties due on any real property taxes accruing after the sale. The Referee shall not be held responsible for the payment of penalties or fees pursuant to this appointment. The Purchaser shall hold the Referee harmless from any such penalties or fees assessed; THIRD: The expenses of the sale and the advertising expenses as shown on the bills presented and certified by said Referee to be correct, duplicate copies of which shall be annexed to the report of sale; and FOURTH: The Referee shall then pay the net sales proceeds to the parties as follows, to wit: 1/6 each, shall be paid to the following parties:

1. ESTATE OF LOUIS DONATO, by and through its executor, Philip m. donato; and

2. ESTATE OF NAZARINE DONATO, BY AND THROUGH ITS EXECUTOR, ROBERT L. DONATO; and

3. ESTATE OF dominic DONATO, by and through its executor, NOLA DONATO; and

4. ESTATE OF MARY TUCKER, by and through its executors, RICHARD AND STEPHEN TUCKER; and

5. ESTATE OF MARY DONATO, as beneficiary of the ESTATE OF ROSARIO DONATO, and JOANNE M. ANDERSON, as administrator of the ESTATE OF ROSARIO DONATO; and

6. ESTATE OF CATHERINE DONATO, as beneficiary of the ESTATE OF ROSARIO DONATO, and JOANNE M. ANDERSON, as administrator of the Estate of Rosario Donato; and it is further,

ORDERED, ADJUDGED AND DECREED that all expenses of recording the Referee's deed, including real property transfer tax, which is not a lien upon the property at the time of sale, shall be paid by the purchaser, not by the Referee from sale proceeds; and that any transfer tax shall be paid in accordance with Tax Law § 1404; and it is further,

ORDERED, ADJUDGED, AND DECREED that the property is to be sold in one parcel in "as is" and "where-is" physical order, condition, and location, subject to any state of facts that an inspection of the property would disclose; any state of facts that an accurate survey of the property would show; any covenants, restrictions, declarations, reservations, easements, right of way, and public utility agreements of record, if any; any building and zoning ordinances of the municipality in which the mortgaged property is located and possible violations of same; any rights of tenants or persons in possession of the subject property (except that if Plaintiff is not the successful bidder at the public auction, Plaintiff shall vacate the premises prior to closing); prior liens of record, if any; and it is further

ORDERED, ADJUDGED AND DECREED that the purchaser be let into possession of the property on production of the Referee's Deed or upon personal service of the Referee's deed in accordance with CPLR § 308; and it is further,

ORDERED, ADJUDGED AND DECREED that within thirty days after completing the sale and executing the proper conveyance to the purchaser, unless the time is extended by the court, the Referee shall file with the clerk his report under oath of the disposition of the proceeds of the sale pursuant to RPAPL 925, containing a description of the property sold, the name of the purchaser, the sales price, and the detailed disposition of the proceeds, all subject to confirmation by the Court; and it is further,

ORDERED ADJUDGED AND DECREED that if the purchaser or purchasers at said sale default(s) upon the bid and/or the terms of sale the Referee may place the property for resale without prior application to the Court.

This memorandum constitutes the decision, order, and judgment of the Court.¹¹

Dated: March 19, 2025

Albany, New York

PETER A. LYNCH, J.S.C.

PAPERS CONSIDERED:

All e-filed pleadings, with exhibits.

NYSCEF Doc. Nos. 1-20.

TERMS OF SALE

The real property located at 1198 Normanskill Road in the Town of New Scotland, New York 12186, Assessment Parcel Number 62.-3-11 ("Premises") will be sold under the direction of Max Smelyansky, Esq., ("the Referee") pursuant to the Decision, Order and Interlocutory Judgment of even date and the following terms:

FIRST: The highest bidder ("Purchaser") acknowledges that these Terms of Sale are a binding contract, and that Purchaser has read these terms and consents to each one, as indicated by Purchaser's signature on the Memorandum of Sale. Purchaser will, at the time and place of public auction, sign the memorandum of sale annexed to the end of these Terms of Sale, unless Plaintiff is the Purchaser in which case a signature is not required.

SECOND: Purchaser shall pay a ten percent (10%) deposit of the amount of the highest bid ("purchase price") in cash or certified or bank check to the Referee at the time and place of public auction sale, for which a receipt will be given. Full credit will be given for any amount in excess of ten percent (10%).

THIRD: The Referee shall accept a written bid from Plaintiff or Plaintiff's attorney or agent as if Plaintiff appeared in person.

FOURTH: The balance of the purchase price must be paid to the Referee at THE SMELYANSKY LAW FIRM, 602 CENTRAL AVE STE 102 ALBANY, NY 12206-1968 or other location of the Referee's choice, at the closing scheduled to take place on June 9, 2025 @ 10:00 a.m., when the Referee's Deed will be ready. TIME IS OF THE ESSENCE with respect to the closing date. The failure of Purchaser to pay the balance of the purchase price will be a material default of these Terms of Sale, with no further notice being required from the Referee or Plaintiff's counsel, subjecting Purchaser to forfeiture of the deposit as liquidated damages and resale of the premises as specified in paragraph ELEVENTH. The failure of Purchaser's title insurance vendor or lender to be ready to close in accordance with these Terms of Sale is not a valid reason to adjourn the closing date and constitutes a default. Purchaser agrees to provide Plaintiff with a title examination not more than 14 days conduct of the public auction, and if not provided Purchaser waives any objections to title.

FIFTH: An adjournment of the closing date stated in paragraph FOURTH, for any reason including but not limited to title clearance, litigation or any of the items listed in Paragraph EIGHTH, shall be at the sole discretion of the Referee, and must be in writing. In the event an adjournment is granted, it will be for no more than thirty (30) days. It is the sole responsibility of the Purchaser to request an adjournment from the Referee. Time is of the essence with respect to any adjourned date and Referee's consent to adjourn the closing date shall not constitute a waiver of the time of the essence requirement hereunder.

SIXTH: The Referee is not required to send any further notice to the Purchaser of the closing date; and if the Purchaser neglects to appear at the date and place specified in paragraphs FOURTH or FIFTH and to pay the balance of the purchase price and receive the deed, the Purchaser will be in material default of these terms.

SEVENTH: The Referee shall pay out of the sale proceeds only those items required by this Decision, Order and Interlocutory Judgment. All taxes, assessments, water rates, charges of any kind by a homeowners or condominium association, and other municipal liens which become liens after the sale, including transfer tax, which is not a lien as of the time of sale, are the sole responsibility of the Purchaser. The Purchaser shall be liable for any interest or penalty due on any taxes, assessments, water rates, and other municipal liens accruing after the sale. The Purchaser shall also be liable for charges of any kind by a homeowners or condominium association that accrue after the sale. If the Plaintiff advanced monies for any taxes, assessments, water charges, municipal liens, sewer rents, insurance or charges by a homeowners or condominium association covering a period which is after the sale date, Referee agrees to adjust and reimburse Plaintiff for such advances. All expenses of closing and recording the Referee's deed, including, but not limited to, title insurance, transfer taxes, deed recordation costs, or similar fees, and preparation fees for transfer documents and closing fees demanded by the Referee shall be paid by the Purchaser, not by the Plaintiff or the Referee from sale proceeds. The obligation to pay transfer tax is hereby shifted to and shall be paid by the Purchaser in accordance with Tax Law § 1404(b)(1).

EIGHTH: The Purchaser agrees that this sale is subject to the following, which are neither valid exceptions to clear or insurable title nor valid reasons to adjourn the closing absent plaintiff's consent: (a). Rights of the public and others in and to any part of the premises that lies within the bounds of any street, alley, or highway; restrictions and easements of record; (b). Any state of facts that an accurate survey might disclose, including reapportionment of tax lots or changes to the section, block, and lot after the filing of this action. (c) Any building and zoning regulations, restrictions, ordinances, orders, requirements, and amendments thereto of the municipality, state, or federal government, or any agency, bureau, commission, or department with jurisdiction over the premises, and any violations or notices of violations issued by same, including, but not limited to code violations. (d) Any Hazardous Materials in the premises including, but not limited to, flammable explosives, radioactive materials, hazardous wastes, asbestos or any material containing asbestos and toxic substances; (e) Any covenants, easements, rights of way, declarations, reservations, and restrictions of record.

NINTH: The premises are being sold in "as is" and "where-is" condition, defined as the physical condition and state of title of the premises on the day of sale, notwithstanding the condition of the premises on the day of closing. Failure or inability of purchaser to inspect the premises prior to sale does not constitute grounds for return of the bid deposit. Purchaser assumes all risk of loss or damage to the premises from the date of sale until the date of closing and thereafter. Neither the Referee nor the Plaintiff have made any representations regarding the physical condition, state of title, rents, leases, expenses, operation or any other matter affecting or relating to the premises, and the Purchaser hereby expressly acknowledges that no representations have been made. There is no obligation or legal right to provide the Purchaser access to the premises.

TENTH: If Purchaser is unable to obtain title insurance or a clear abstract of title, excluding the matters contained in Paragraph EIGHTH which the Purchaser agrees are not valid exceptions to clear or marketable title, then Purchaser agrees to allow Plaintiff or its counsel, at their sole discretion, to arrange for a title insurance policy, if possible, subject to customary exceptions. Purchaser agrees to pay for the cost of a title insurance policy under this Paragraph. Purchaser waives the right to collect from Plaintiff any costs, fees, and/or premiums previously incurred by Purchaser for any abstract or title policy ordered with respect to the subject premises. If a title defect is identified which renders title uninsurable, Purchaser hereby agrees to allow Plaintiff, at its sole discretion, the opportunity to cure said defect regardless of whether or not the time to cure the defect exceeds the Time of the Essence closing date. If Plaintiff chooses to cure the title defect, the Purchaser's rights and obligations under these Terms of Sale shall not change and the Purchaser is responsible for all additional taxes, assessments, and water rates that accrue between the sale and closing. If Plaintiff chooses to cure the title defect, Purchaser hereby agrees to close upon resolution.

ELEVENTH: If the Purchaser fails to comply with any of the above terms, then the Purchaser is in default and the premises shall be resold by the Referee. In the event of Purchaser's default and a resale, Purchaser's deposit shall be forfeit to Plaintiff as liquidated damages because it is impossible to accurately determine the damages incurred by Plaintiff. Upon default, Purchaser expressly authorizes the Referee to deliver the forfeit deposit to Plaintiff, and same monies shall be paid by Plaintiff toward the existing mortgage. Plaintiff is not required to obtain a court order for the Referee to resell the premises or to forfeit Purchaser's deposit to the Plaintiff. Such forfeiture shall not be a waiver of any rights Plaintiff has to seek and obtain additional damages.

TWELFTH: In the event the closing is stayed by court order the sale and these Terms of Sale may be rescinded by Plaintiff at its sole discretion without further order of court and purchaser's damages shall be limited to the return of purchaser's bid deposit. If the sale is not rescinded, then the Purchaser's rights and obligations under these Terms of Sale shall not change and the Purchaser is responsible for all additional taxes, assessments, and water rates that accrue between the auction sale and closing. In the event a bankruptcy petition is filed, prior to the scheduled foreclosure sale, by any party with an interest in the subject premises, which bankruptcy filing stays the foreclosure sale of the subject premises, the down payment tendered by the Purchaser at the sale, shall be refunded by the Referee and the sale deemed null and void. The Purchaser shall have no further rights or recourse, against Plaintiff or the Referee, other than the return of the down payment. In the event a bankruptcy petition is filed by any party with an interest in the subject premises subsequent to the scheduled sale but prior to closing, Plaintiff may, at Plaintiff's option, make an application to the bankruptcy court within a reasonable time to confirm the sale. In the event the bankruptcy court confirms the sale, a closing shall take place within 30 days of the confirmation. In the event the bankruptcy court does not confirm the sale, the down payment tendered by the Purchaser at the sale shall be refunded by the referee and the sale deemed null and void. The Purchaser shall have no further rights or recourse, against Purchaser or the Referee, other than the return of the down payment. In the event of a mistake, defect or irregularity in the proceedings or sale, or failure to comply with the requirements of the CPLR, RPAPL or RPL, Purchaser hereby agrees that Plaintiff, at its sole discretion, may rescind the sale and these Terms of Sale shall be deemed null and void as if they never occurred, and the Referee shall promptly refund the deposit to Purchaser, without recourse against Referee. In the event the sale is set aside for any reason, Purchaser shall be entitled only to a return of the deposit paid. Purchaser shall have no further recourse against the Referee, Plaintiff its successors and assigns.

THIRTEENTH: Neither the Referee nor Plaintiff shall be liable for or bound by any verbal or written statements, representations, promises, or guaranty, real estate broker's commissions or information pertaining to the premises furnished by any third party, real estate broker, agent or their employee. Neither the Referee nor the Plaintiff is liable for any express or implied warranties, guaranties, promises or statements of any kind relating in any manner to the premises. All understandings and agreements heretofore had between the parties are merged in these Terms of Sale, which fully and completely express their agreement. These Terms of Sale cannot be changed, terminated, or waived orally. These Terms of Sale shall be binding on the Purchaser(s) and any heirs, successors and assigns thereof.

FOURTEENTH: The provisions of this Agreement are severable. If any portion, provision, or part of this Agreement is held, determined, or adjudicated to be invalid, unenforceable or void for any reason whatsoever, each such portion, provision or part shall be severed from the remaining portions, provisions or parts of this Agreement and shall not affect the validity or enforceability of any remaining portions, provisions or parts.

MEMORANDUM OF SALE

The undersigned acknowledge that _____________________________________________________________, with an address of ____________________________________________________, phone number

of _________________________ and e-mail of _____________________________, is the highest and successful bidder at the public auction held this date relative to the sale of the premises located at 1198 Normanskill Road in the Town of New Scotland, New York 12186, Assessment Parcel Number 62.-3-11 ("Premises"), that the bid amount was in the sum of $__________________________________, and accepted by the Referee, and the Purchaser has delivered a certified check in the sum of $_________________________(10% of the Bid price), payable to the Referee and the Referee acknowledges receipt of same. The closing of the sale shall take place in accord with the Terms of Sale.

Date: May 7, 2025

_______________________________

Max Smelyansky, Referee

_______________________________

Purchaser

FOOTNOTES

1.   The party in interest is the Estate of Rosario Donato.

2.   NYSCEF Doc. No. 2 — Complaint; See also, NYSCEF Doc. No. 19 — Tucker Affidavit.

3.   NYSCEF Doc. No. 2 — Complaint ¶ 2; NYSCEF Doc. No. 19 — Tucker Affidavit ¶ 27.

4.   NYSCEF Doc. No. 19 — Tucker Affidavit ¶ 27.

5.   NYSCEF Doc. No. 19 — Tucker Affidavit ¶ 7, 19.

6.   NYSCEF Doc. No. 19 — Tucker Affidavit ¶ 27.

7.   NYSCEF Doc. No. 19 — Tucker Affidavit ¶ 28.

8.   NYSCEF Doc. No. 12 and 13.

9.   NYSCEF Doc. No. 17.

10.   NYSCEF Doc. No. 20.

11.   Plaintiff is required to comply with the provisions of CPLR 2220.

Peter A. Lynch, J.