FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED: OUEENS COUNTY CLERK 09m2017 11:30 AM
`
`NYSCEF DOC. NO. 35
`NYSCEF DOC. NO. 35
`
`INDEX NO. 704565/2016
`INDEX NO- 704565/2016
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`STATE OF NEW YORK
`
`COUNTY OF QUEENS
`SUPREME COURT
`______________________________________________________________________X
`
`US. BANK NATIONAL ASSOCIATION, AS TRUSTEE,
`FOR RESIDENTIAL ASSET SECURITIES
`
`CORPORATION, HOME EQUITY MORTGAGE
`ASSET-BACKED PASS-THROUGH CERTIFICATES,
`SERIES 2005-EMX3,
`
`P1aintiff(s),
`
`-Against—
`
`AFFIRMATION IN
`OPPOSITION TO ORDER OF
`REFERENCE
`
`Index#: 704565 / 2016
`
`REGINA DICIERVO, ANTHONY DICIERVO A/K/A
`ANTHONY DICIERVO, JR., CACV OF COLORADO,
`LLC AND JOHN DOE,
`
`Defendant(s).
`______________________________________________________________________x
`
`PETER S. THOMAS, ESQ, an attorney duly licensed to practice law before the
`
`Courts of the State of New York, affirms the following under penalty of perjury:
`
`1.
`
`I am the attorney of record for defendant REGINA DICIERVO and, as
`
`such, I am fully familiar with the facts and circumstances of record surrounding this
`
`action and the pleadings and proceedings heretofore had herein and upon the affidavit
`
`of defendant REGINA DICIERVO attached hereto.
`
`2.
`
`From the outset
`
`it
`
`is important
`
`to note that
`
`the named defendant,
`
`ANTHONY DICIERVO, JR. died on January 9, 2012 after succumbing to his injuries
`
`from a motor vehicle accident on December 28, 2011. Mr. DICIERVO was the sole
`
`provider for the household. See Death Certificate of Anthony Diciervo, Ir. attached hereto as
`
`Exhibit ”A ”.
`
`3.
`
`On July 30, 2012, defendant REGINA DICIERVO was granted ”Letters of
`
`Limited Administration”. The restrictions and limitations being ”collection in excess of
`
`$774,000.00 and interest. . .must be authorized by the (Surrogate) Court”. See Answer and
`
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`

`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED: OUEENS COUNTY CLERK 09m2017 11:30 AM
`
`NYSCEF DOC. NO. 35
`NYSCEF DOC. NO. 35
`
`INDEX NO. 704565/2016
`INDEX NO- 704565/2016
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`
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`
`
`R«.C«.IV«.D \IYSCEF: 09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`
`
`Afi‘irmative Defenses containing Limited Letters of Administration attached hereto as Exhibit
`
`”B ”. A ”payoff letter” was requested to determine the total amount due and said payoff
`
`letter was provided and dated July 24, 2017. See ”Payofi‘ Letter” attached hereto as Exhibit
`
`””.C
`
`4.
`
`A review of defendant REGINA DICIERVO’S affidavit, attached herein,
`
`reveals her intention to utilize the proceeds from a wrongful death lawsuit on behalf of
`
`her husband to satisfy and payoff the actual amount owed on her residential property.
`
`REGINA DICIERVO’s share of the settlement is currently being held in an escrow
`
`account, pursuant to an Order by the Queens County Surrogate. The amount held
`
`exceeds the amount claimed in the instant matter.
`
`5.
`
`I am currently informed by defendant, REGINA DICIERVO’s Estate
`
`Attorney, that a motion has been made to the Queens County Surrogate to allow partial
`
`release of her settlement money to satisfy the actual amount owed on the mortgage and
`
`allow her to keep her home for herself and three (3) children. The motion before the
`
`Queens County Surrogate is returnable on September 7, 2017.
`
`6.
`
`A further review of defendant REGINA DICIERVO’S affidavit reveals the
`
`fact that neither her deceased husband nor herself were properly served with process in
`
`the instant matter. According to her affidavit she and her 3 children were out of the
`
`State of New York at the time the Summons and Complaint were allegedly served. This
`
`allegation requires a traverse hearing at the very least to determine proper service.
`
`7.
`
`As service of process was not proper an Answer could not be served
`
`timely as defendant REGINA DICIERVO was never served. Once the lawsuit was
`
`brought to her attention she promptly retained counsel and an Answer was submitted.
`
`Plaintiffs do not dispute that an Answer was submitted, but claim it was 16 days late.
`
`Had service been made properly an Answer would have been served timely.
`
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`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED:
`OUEENS COUNTY CLERK 09m2017 11:30 AM
`NYSCI
`3F DOC. NO. 35
`NYSCEF DOC. NO. 35
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`INDEX NO. 704565/2016
`INDEX NO- 704565/2016
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`R«.C«.IV«.D \IYSCEF: 09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`
`
`Defendant REGINA DICIERVO’s default, if any, was not willful, deliberate or in bad
`
`faith. With respect to a meritorious defense she further claims that plaintiff lacks
`
`standing to bring the within action as her mortgage was with Wells Fargo, NA. and not
`
`the named plaintiffs herein.
`
`8.
`
`"It is well settled, however, that Where ’there is a sworn denial of service
`
`by the defendant, the affidavit of service is rebutted and the plaintiff must establish
`
`jurisdiction by a preponderance of the evidence at a hearing. (Frankel V. Schilling, 149
`
`A.D.2d 657 (2... Dept 1989]; citing Skyline Agency[ Inc. v. Ambrose Coppotelli, Inc.,
`
`supra.) Where, as here, ”there is a sworn denial that delivery to the defendant was
`
`accomplished,
`
`the affidavit of service is rebutted and the plaintiff must establish
`
`jurisdiction by a preponderance of the evidence at a hearing.” (Toyota Motor Credit
`
`Corp. v. Hardware Lam, 93 A.D.3d 713 (2“ Dept 2012) quoting Bankers Trust Co. of
`
`California N.A. v. Tsoukas 303 A.D.2d 343 [2003].) Defendant REGINA DICIERVO
`
`clearly sets forth that she was never served thereby creating an issue of fact for a
`
`traverse hearing as to defendant REGINA DICIERVO.
`
`9.
`
`The court has the duty to exercise its inherent discretion and to deny the
`
`plaintiff’s application herein as there are clearly not sufficient facts to grant the
`
`application. Issues with service of process as well as a change in circumstances in the
`
`ability to pay the outstanding mortgage once an Order by the Surrogate releases
`
`settlement proceeds are facts that should not be ignored. Further settlement discussions
`
`and negotiations should continue without fear of foreclosure.
`
`10.
`
`The purpose of the conference is to hold settlement discussions pertaining
`
`to the relative rights and obligations of the parties under the mortgage loan documents,
`
`including, but not limited to determining whether the parties can reach a mutually
`
`agreeable resolution to help the defendant avoid losing his or her home, and evaluating
`
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`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED: OUEENS COUNTY CLERK 09m2017 11:30 AM
`
`NYSCEF DOC. NO. 35
`NYSCEF DOC. NO. 35
`
`INDEX NO. 704565/2016
`INDEX NO- 704565/2016
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`
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`
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`R«.C«.IV«.D \IYSCEF: 09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`
`
`the potential for a resolution in which payment schedules or amounts may be modified
`
`or other workout options may be agreed to, and for whatever other purposes the court
`
`deems appropriate. CPLR §3408(a). Motions must be held in abeyance while the
`
`settlement conferences are being held. 22 NYCRR §202.12-a(c)(7).
`
`WHEREFORE, defendant REGINA DICIERVO hereby requests that the Court
`
`grant it the following relief:
`
`1.
`
`2.
`
`dismiss Plaintiff’s Complaint as to REGINA DICIERVO with prejudice;
`
`deny Plaintiff’s application for an Order of Reference and allow a CPLR
`
`§3408 settlement conference to be held;
`
`3.
`
`award defendant REGINA DICIERVO’S attorneys' fees to the full extent
`
`permitted by law; and
`
`4.
`
`grant defendant REGINA DICERVO such other and further relief as the
`
`Court may deemjust and proper.
`
`Dated: Forest Hills, New York
`
`August 31, 2017
`
`REGI A DICIERVO
`
`108-1 Queens Boulevard, 6* Flr.
`Forest Hills, NY 11375
`718-896-7200
`
`TO: WOODS OVIATT GILMAN, LLP
`Victoria E. Munian, Esq.
`Attorneys for Plaintiff
`700 Crossroads Building
`2 State Street
`
`Rochester, NY 14614
`855-227-5072
`
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`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED: OUEENS COUNTY CLERK 09m2017 11:30 AM
`
`NYSCEF DOC. NO. 35
`NYSCEF DOC. NO. 35
`
`INDEX NO. 704565/2016
`INDEX NO- 704565/2016
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`
`
`STATE OF NEW YORK
`
`COUNTY OF QUEENS
`SUPREME COURT
`______________________________________________________________________X
`
`US. BANK NATIONAL ASSOCIATION, AS TRUSTEE,
`FOR RESIDENTIAL ASSET SECURITIES
`CORPORATION, HOME EQUITY MORTGAGE
`ASSET-BACKED PASS-THROUGH CERTIFICATES,
`SERIES 2005-EMX3,
`
`Plaintiff(s),
`
`-Against—
`
`AFFIDAVIT
`
`Index#: 704565/ 2016
`
`REGINA DICIERVO, ANTHONY DICIERVO A/K/A
`ANTHONY DICIERVO, JR., CACV OF COLORADO,
`LLC AND JOHN DOE,
`
`Defendant(s).
`______________________________________________________________________X
`
`ss.:
`
`) )
`
`)
`
`STATE OF NEW YORK
`
`COUNTY OF QUEENS
`
`REGINA DICIERVO, being duly sworn, deposes and states under penalty of
`
`perjury:
`
`1.
`
`2.
`
`3.
`
`4.
`
`I reside at 215 Beach 124* Street, Rockaway Beach, NY 11694.
`
`That I am named as a defendant in the above captioned action.
`
`I reside with my 3 children, one of which has special needs.
`
`That I submit this affidavit in opposition to the plaintiffs motion for an
`
`Order of Reference
`
`5.
`
`On December 7, 2004, my husband and I signed a mortgage against the
`
`property in the amount of $550,000.00 with the lender as Mortgage Lenders Network
`
`USA, Inc..
`
`6.
`
`On June 22, 2005, my husband, Anthony Diciervo, Jr., alone signed a
`
`”Note” against the property in the amount of $639,000.00 with the lender as Mortgage
`
`Lenders Network USA, Inc..
`
`7.
`
`On December 1, 2010, my husband and I entered into a Loan Modification
`
`Agreement with Wells Fargo Bank, NA.
`
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`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED : OUEENS COUNTY CLERK 0
`NYSCEF DOC. NO. 35
`9E32017 11.30 AM
`
`NYSCEF DOC. NO. 35
`
`INDEX NO. 704565/2016
`a
`INDLX NO. 704565/2016
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`
`
`
`
`RfiCnIVsD VYSCEF: 09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`I have no knowledge of the named plaintiffs in this action.
`8.
`My husband was the sole financial provider in the household and he paid
`9.
`the mortgage regularly until his untimely death. I have not been employed outside the
`home, as Ihave been taking care of my family and raising our children.
`10.
`On December 28, 2011, my husband, Anthony Diciervo, Jr. was involved
`in a motor vehicle accident and subsequently died from his injuries on January 9, 2012.
`11.
`A wrongful death lawsuit was commenced in Queens County and on
`February 9, 2016 a jury verdict of $13,500,000.00 was awarded in the case. The case was
`settled pursuant to an agreement between the parties for $10,000,000.00. My share is
`currently being held in escrow pursuant to a court Order.
`12.
`My attorney explained to me that the Surrogate Court must grant an
`Order allowing my share of the money to be disbursed. To date the Surrogate Court has
`not yet issued that Order. My attorney further informs me that me share of the
`settlement will far exceed the amount allegedly owed on the outstanding mortgage.
`13.
`My desire is to keep my home and continue to reside With my children
`at 215 Beach 124”h Street, Rockaway Beach, NY. My intention is to use a portion of the
`money from the lawsuit to satisfy the outstanding mortgage and pay the house off in
`full.
`
`My attorney has requested a ”payoff letter” which was only recently
`14.
`provided and dated July 24, 2017. This ”payoff” amount is listed at $900,521.97 as of
`August 18, 2017. At this point in time I dispute that amount and believe that amount is
`not accurate.
`My attorney has informed me that the plaintiff herein has claimed
`15.
`service of the Summons and Complaint was made on my deceased husband, and me on
`April 28, 2016 at 8:24 PM. This is not true as clearly my husband died on January 9,
`2012 and I was in Florida with my children on April 28, 2016. I was not served with the
`action as the plaintiff claims. I did not give permission or authority to anyone to accept
`service of process on my behalf.
`16.
`Once I learned of the lawsuit brought by the plaintiff I informed my
`attorney and he filed an Answer with multiple defenses including lack of standing and
`improper service. I have a reasonable excuse for the delay in Answering and likelihood
`of success on the merits, not to mention the ability to pay once my settlement proceeds
`are released.
`I do not want to lose my house and wish to negotiate a settlement of the
`17.
`outstanding debt once the Surrogate Court releases my share of the abovementioned
`wrongful death lawsuit settlement.
`18.
`I respectfully request that this court deny the plaintiff’s application for
`an Order of Reference and allow further settlement discussions and negotiations to
`proceed as I intend to pay the actual amount owed on the property once my money is
`released.
`
`
`
`NO nv puauc. srArE dsz
`NO. 01 016227237NEW YORK
`Qualified in Nassau Coun
`Commission Expires Aug. 3?, 2016
`
`Sworn to before me this .30, Jam/$7020 l7
`
` " y. 2N.
`
`REGINA DICIERVO
`
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`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED:
`OUEENS COUNTY CLERK 09m2017 11:30 AM
`NYSC 3F DOC. NO.
`35
`NYSCEF DOC. NO. 35
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`IND
`EX NO.
`704565/2016
`INDEX NO. 704565/2016
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` VYSC
`
` *uIV‘ D
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`3F:
`09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`EXHIBIT “A”
`
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`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED: OUEENS COUNTY CLERK 09m2017 11:30 AM
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`NYSCEF DOC. NO. 35
`NYSCEF DOC. NO. 35
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`704565/2016
`INDEX NO. 704565/2016
`
`INDEX NO-
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`R<.C«.IV«.D \IYSCEF:
`09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
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`8of25
`8 of 25
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`

`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED:
`OUEENS COUNTY CLERK 09m2017 11:30 AM
`NYSC 3F DOC. NO.
`35
`NYSCEF DOC. NO. 35
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`IND
`EX NO.
`704565/2016
`INDEX NO. 704565/2016
`
` VYSC
`
` *uIV‘ D
`
`
`3F:
`09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`EXHIBIT “B”
`
`
`
`9 of 25
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`

`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED: OUEENS COUNTY CLERK 09m2017 11:30 AM
`
`NYSCEF DOC. NO. 35
`NYSCEF DOC. NO. 35
`
`INDEX NO. 704565/2016
`INDEX NO- 704565/2016
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`
`
`STATE OF NEW YORK
`
`COUNTY OF QUEENS
`SUPREME COURT
`__......_._...-___..______________._..__......mmmmmmmmx
`
`U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE,
`FOR RESIDENTIAL ASSET SECURITIES
`
`CORPORATION, HOME EQUITY MORTGAGE
`ASSET-BACKED PASS-THROUGH CERTIFICATES,
`SERIES 2005-EMX3,
`
`Plaintiff(s),
`
`~Against-
`
`A N S W E R and
`
`W
`
`Index#: 704565/ 2016
`
`REGINA DICIERVO, ANTHONY DICIERVO A/K/A
`ANTHONY DICIERVO, IR., CACV OF COLORADO,
`LLC AND JOHN DOE,
`
`Defendant(s).
`........._._______________________________x
`
`ANSWERING THE COMPLAINT OF PLAINTIFF
`
`Defendant, REGINA DICIERVO, as and for her Answer to the Plaintiff's
`Summons with Foreclosure Complaint, by her attorney, PETER S. THOMAS, P.C.,
`allege upon information and belief, as follows:
`
`1.
`
`2.
`
`PS”
`
`5.
`
`6.
`
`7.
`
`8.
`
`Denies knowledge or information sufficient to form a belief as to the
`allegations contained in paragraph 1 of the Complaint.
`Denies the allegations contained in paragraph 2 of the Complaint, except
`admits that REGINA DICIERVO is a natural person residing at 215 Beach
`124“ Street, Rockaway Park, NY 11694.
`Denies the allegations contained in paragraph 3 of the Complaint.
`Denies knowledge and information sufficient to form a belief as to the
`allegations contained in paragraph 4 of the Complaint, except refers to
`the documents referenced therein for the true and complete contents
`thereof.
`
`Denies knowledge or information sufficient to form a belief as to the
`allegations contained in paragraph 5 of the Complaint Denies.
`Denies knowledge and information sufficient to form a belief as to the
`allegations contained in paragraph 6 of the Complaint, except refers to
`the documents referenced therein for the true and complete contents
`thereof.
`
`Denies knowledge and information sufficient to form a belief as to the
`allegations contained in paragraph 7 of the Complaint, except refers to
`Itihie documents referenced therein for the true and complete contents
`Denies knowledge and information sufficient to form a belief as to the
`allegations contained in paragraph 8 of the Complaint.
`
`ereof.
`
`10 of 25
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`

`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED:
`OUEENS COUNTY CLERK 09m2017 11:30 AM
`NYSC 3F DOC. NO.
`35
`NYSCEF DOC. NO. 35
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`INDEX NO. 704565/2016
`INDEX N0-
`
`
`
`
`
`RfiCfiIVfiD VYSCEF:
`09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`
`
`Denies knowledge and information sufficient to form a belief as to the
`allegations contained in paragraph 9 of the Complaint, except refers to
`the documents referenced therein for the true and complete contents
`thereof.
`
`Denies knowledge and information sufficient to form a belief as to the
`allegations contained in paragraph 10 of the Complaint.
`Denies knowledge and information sufficient to form a belief as to the
`allegations contained in paragraph 11 of the Complaint, except refers to
`the documents referenced therein for the true and complete contents
`thereof.
`
`ereof.
`
`Denies knowledge and information sufficient to form a belief as to the
`allegations contained in paragraph 12 of the Complaint, except refers to
`3118 documents referenced therein for the true and complete contents
`Denies knowledge and information sufficient to form a belief as to the
`allegations contained in paragraph 13 of the Complaint.
`Denies the allegations contained in paragraph 14 of the Complaint.
`Denies the allegations contained in paragraph 15 of the Complaint.
`Denies knowledge and information sufficient to form a belief as to the
`allegations contained in paragraph 16 of the Complaint.
`Denies knowledge and information sufficient to form a belief as to the
`allegations contained in paragraph 17 of the Complaint.
`Denies knowledge and information sufficient to form a belief as to the
`allegations contained in paragraph 18 of the Complaint.
`Denies knowledge and information sufficient to form a belief as to the
`allegations contained in paragraph 19 of the Complaint.
`Denies knowledge and information sufficient to form a belief as to the
`allegations contained in paragraph 20 of the Complaint, except refers to
`3e documents referenced therein for the true and complete contents
`ereof.
`Denies each and every allegation referenced in the clause beginning
`with "WHEREFO " and specifically Denies that Plainfiff is entitled to
`any relief whatsoever.
`
`10.
`
`11.
`
`12.
`
`13.
`
`14.
`15.
`16.
`
`17.
`
`18.
`
`19.
`
`20.
`
`21.
`
`1
`be granted
`
`FIRST AFFIRMATIVE DEFENSE:
`Plaintiffs' complaint fails to state a cause of action upon which relief can
`and should be dismissed.
`
`2.
`
`SECOND AFFIRMATIVE DEFENSE
`Plaintiff has failed to join and include in this action all identifiable and
`indispensable parties without whom, in equity and fairness, this action should not
`proceed.
`
`THIRD AFFIRMATIVE DEFENSE
`Upon information and belief, plaintiff has no standing to bring this claim
`as not privity exists between the parties.
`
`3.
`
`FOURTH AFFIRMATIVE DEFENSE:
`
`ll of 25
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`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED:
`OUEENS COUNTY CLERK 09m2017 11:30 AM
`
`NYSCEF DOC. NO. 35
`NYSCEF DOC. NO. 35
`
`704565/2016
`INDEX NO. 704565/2016
`INDEX N0-
`
`
`
`
`
`R*.C*.IV*.D \IYSCEF:
`09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`
`
`4.
`Complaint.
`
`Plaintiff lacks standing to assert the causes of action alleged in the
`
`FIFTH AFFIRMATIVE DEFENSE:
`Plaintiff s claims are barred by Plaintiff 5 failure of performance.
`
`5.
`
`SIXTH AFFIRMATIVE DEFENSE:
`The answering defendant alleges that Plaintiffs’ damages, if any, were
`6.
`proximately caused by an unforeseeable, unanticipated,
`independent,
`intervening
`and/or superseding event beyond the control, and unrelated to any conduct of the
`answering defendant.
`
`SEVENTH AFFIRMATIVE DEFENSE:
`Upon information and belief, service of process was not in conformity
`7.
`with the CPLR, therefore this Court does not have jurisdiction over the defendant
`herein.
`
`8.
`process.
`
`EIGHTH AFFIRMATIVE DEFENSE:
`The Court lacks jurisdiction over defendant due to improper service of
`
`NINTH AFFIRMATIVE DEFENSE:
`Plaintiff 3 claims are barred by failure of consideration.
`
`9.
`
`TENTH AFFIRMATIVE DEFENSE:
`The alleged writings upon which Plaintiff 3 claims are based are too
`10.
`uncertain and ambiguous in their terms to be enforceable.
`
`ELEVENTH AFFIRMATIVE DEFENSE:
`Plaintiffs claims are barred by the doctrines of accord and satisfaction,
`11.
`election, lack of mutuality of obligation, failure of a condition subsequent, failure of a
`condition precedent, novation, and mistake.
`
`TWELFI'H AFFIRMATIVE DEFENSE:
`Plaintiff 5 claims are barred by the parol evidence rule.
`
`'I'HIRTEENTH AFFIRMATIVE DEFENSE:
`Plaintiff s claims are barred by the assumption of risk.
`
`FOURTEENTH AFFIRMATIVE DEFENSE:
`Plaintiff 8 claims are barred by the doctrine of unconscionability.
`
`12.
`
`13.
`
`14.
`
`15.
`common law.
`
`FIFTEENTH AFFIRMATIVE DEFENSE:
`Plaintiff s claims are barred by facts showing illegality by statute or
`
`SIXTEENTH AFFIRMATIVE DEFENSE:
`Plaintiff 3 claims are barred by the original document rule.
`
`16.
`
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`

`

`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED: OUEENS COUNTY CLERK 09m2017 11:30 AM
`
`NYSCEF DOC. NO. 35
`NYSCEF DOC. NO. 35
`
`INDEX NO. 704565/2016
`INDEX NO- 704565/2016
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`SEVENTEENTH AFFIRMATIVE DEFENSE:
`Plaintiff 5 claims are barred by the parol evidence rule.
`
`EIGHTI'EENTH AFFIRMATIVE DEFENSE:
`Plaintiff 3 claims are barred by the dochine of contra proferentem.
`
`17.
`
`18.
`
`NINETEENTH AFFIRMATIVE DEFENSE:
`Plaintiff 5 claims are barred because Plaintiff consented to, authorized,
`19.
`approved, acquiesced to, and/ or ratified the actions about which it now complains.
`
`TWEN’I‘IETH AFFIRMATIVE DEFENSE:
`Plaintiff has failed to mitigate damages, if any.
`
`20.
`
`TWENTY-FIRST AFFIRMATIVE DEFENSE:
`Plaintiffs claims are barred by its bad faith, misrepresentations, fraud
`21.
`and / or unclean hands.
`
`TWENTY-SECOND AFFIRMATIVE DEFENSE:
`Plaintiffs claims are barred by the doctrines of estoppel, waiver, release,
`22.
`ratification, discharge and laches.
`
`TWENTY-THIRD AFFIRMATIVE DEFENSE:
`Plaintiffs claims are barred under the statute of frauds.
`
`23.
`
`RESERVA
`
`N FR G
`
`S
`
`1.
`
`Defendant REGINA DICIERVO hereby gives notice
`
`that she
`
`intends to rely on any additional affirmative defenses that become available or
`
`apparent during discovery and thus reserves the right to amend her Answer to
`
`assert such additional defenses.
`
`WHEREFORE, REGINA DICIERVO hereby requests that the Court grant it the
`following relief:
`
`(i)
`
`dismiss Plaintiff’s Complaint as to REGINA DICIERVO with
`
`prejudice;
`
`(ii)
`
`(iii)
`
`tsift/yard REGINA DICIERVO her costs and disbursements incurred in
`
`'s suit;
`
`award REGINA DICIERVO’s attomeys' fees to the full extent
`permitted by law; and
`
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`

`

`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED: OUEENS COUNTY CLERK 09m2017 11:30 AM
`
`NYSCEF DOC. NO. 35
`NYSCEF DOC. NO. 35
`
`INDEX NO. 704565/2016
`INDEX NO- 704565/2016
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`
`
`grant REGINA DICERVO such other and further relief as the Court may deem just and
`proper.
`
`
`
`Yours, e .
`
`PETE S. THOMAS, P.C..
`Atto ey for Defendant
`REG A DICIERVO
`
`108-18 Queens Boulevard, 6m Flr.
`Forest Hills, NY 11375
`718-896-7200
`
`Dated: Forest Hills, New York
`June 29, 2016
`
`TO: WOODS OVIA'IT GILMAN, LLP
`Victoria E. Munian, Esq.
`Attorneys for Plaintiff
`700 Crossroads Building
`2 State Street
`
`Rochester, NY 14614
`855-227-5072
`
`
`
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`

`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED: OUEENS COUNTY CLERK 09m2017 11:30 AM
`
`NYSCEF DOC. NO. 35
`NYSCEF DOC. NO. 35
`
`INDEX NO. 704565/2016
`INDEX NO- 704565/2016
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`AFFIDAVIT OF SERVICE BY MAIL
`
`) )
`
`)
`
`STATE OF NEW YORK
`
`COUNTY OF QUEENS
`
`PETER S. THOMAS, being duly sworn, deposes and says that I am not a party to
`
`this action, US. BANK NATIONAL ASSOCIATION et. al vs. REGINA DICIERVO
`et. al and thatI am over the age of eighteen years and that I reside in Queens, New
`York.
`
`On July 1, 2016, I served the within ANSWER and AFFIRMATIVE DEFENSES
`by depositing true copies thereof, enclosed in a post-paid wrapper, in an official
`depository under the exclusive care and custody of the United States Postal Service
`within New York State, to the persons, law firms and / or entities at the addresses listed
`below:
`
`TO: WOODS OVIA'IT GILMAN, LLP
`Victoria E. Munian, Esq.
`Attorneys for Plaintiff
`700 Crossroads Building
`2 State Street
`
`Rochester, NY 14614
`855-227-5072
`
`
`
`No
`
`y Public
`
`0L
`
`PETER . THOMAS
`
`3Q """""" - ( o
`e
`sums
`a
`
`f $.90meyou: '2) "o
`
`S NOTARY PUBLIC}
`
`15 of 25
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`

`

`INDEX NO. 704565/2016
`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED:
`OUEENS COUNTY CLERK ogm— INDEX NO. 704565/2016
`
`NYSC“
`
`
`
`
`.LF DOC. NO. 35
`RECEIVED \IYSCEF: 09/01/2017
`NYSCEF DOC. NO. 35
`RECEIVED NYSCEF: 09/01/2017
`
`
`
`STATE OF NEW YORK
`SUPREME COURT
`COUNTY OF QUEENS
`Index# 704565/2016
`---------------_-_-_--__.-__...-----------------..--..---------------_-_------------x
`
`US. BANK NATIONAL ASSOCIATION, AS TRUSTEE,
`FOR RESIDENTIAL ASSET SECURITIES
`
`CORPORATION, HOME EQUITY MORTGAGE
`ASSET-BACKED PASS-THROUGH CERTIFICATES,
`
`SERIES 2005-EMX3,
`
`Plaintiffs,
`
`-against-
`
`REGINA DICIERVO, ANTHONY DICIERVO A/K/A
`ANTHONY DICIERVO, IR., CACV OF COLORADO,
`LLC AND JOHN DOE,
`
`Defendants.
`...................................................................................x
`
`X---------------------------------------------------------------------------------X
`
`ANSWER WITH AFFIRMATIVE DEFENSES
`
`X-------------------------------------------------------------------------------X
`
`PETER S. THOMAS. P.C.
`Attorney for Defendant REGINA DICIERVO
`108-18 Queens Boulevard, 6'- Flr.
`Forest Hills, New York 11375
`718-896-7200
`
`containedin the above-referenced documents are not frivolous.
`
`ATTORNEY CERTIFICATION:
`The undersigned, an Attorney admitted to practice1n the Courts of Ne
`
`certifies that, upon information, belief and reasonablemquiry, the cony
`
`
`
`
`
`PETER S. T OMAS, ESQ.
`
`16 of 25
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`

`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED:
`OUEENS COUNTY CLERK 09m2017 11:30 AM
`NYSC 3F DOC. NO.
`35
`NYSCEF DOC. NO. 35
`
`IND
`EX NO.
`704565/2016
`INDEX NO. 704565/2016
`
`
`
`
` 3F:
`
`
`.D VYSC
`RfiCfiIV‘
`09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`
`
`OFFICE or CHEF MEDICAL EXAMINER
`CITY OF NEW YORK
`
`REPORT OF AUTOPSY
`
`
`
`FINAL DIAGNOSES
`
`I.
`
`BLUNT FORCE TRAUMA TO HEAD
`A. CONTUSION HEMATOMA. RIGHT PARIETAL LOBE (SEE
`NEUROPATHOLOGY REPORT)
`1. WEAKNESS. LEFT SIDE OF BODY (ANAMNESTIC)
`2. DEEP VEIN THROWOSIS. LEFT LEG
`3. PULMONARY THROMBOEIBOUSM
`
`II. OBESITY (BODY MASS INDEX = 48.7 KG/M')
`
`*m
`
`W:
`‘
`
`PULMONARY THROHBOEMBOLISM DUE TO
`VENOUS Tmouaoms OF LEFT LEG DUE TO
`RIGHT PARIEI‘AL GON'I'USION HENATOMA DUE
`TO BLUNT FORCE TRAUMA TO HEAD
`
`WW: 0mm
`
`W ACCIDENT (DRIVER OF VEHICLE THAT WAS
`STRUGK FRO” BEHIND BY TRUCK)
`
`
`THIS IS A TRUE COPY
`
`Office of Chief Medical Examiner
`
`This record cannot be released without
`
`Rim consent flow the Ofice of Chief
`
`
`. edlcal Examiner, New York Ci
`. N.Y.
`
`
`
`
`
`
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`

`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED: OUEENS COUNTY CLERK 09m2017 11:30 AM
`
`NYSCEF DOC. NO. 35
`NYSCEF DOC. NO. 35
`
`704565/2016
`INDEX NO. 704565/2016
`
`INDEX NO-
`
`
`
`
`R<.C«.IV«.D \IYSCEF:
`09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`;
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`
`18 of 25
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`
`

`

`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED: OUEENS COUNTY CLERK 09m2017 11:30 AM
`NYSC
`3F DOC. NO. 35
`NYSCEF DOC. NO. 35
`
`INDEX NO. 704565/2016
`INDEX NO- 704565/2016
`
`
`
`
`
`RfiCfiIVfiD VYSCEF:
`09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`
`
`On the Date Written Below LETTERS are Granted by the Surrogate's Court, State of New York as follows:
`
`.
`
`Name of Decadent:
`
`Anthony DiCiervo Jr
`
`Domicile of Decadent: Queens
`
`Fiduciary Appointed:
`Mailing Address
`
`Regina DiCiervo
`215 Beach 124th Street
`Rockaway Park NY 11694
`
`File #: 2012-1277
`
`.
`
`Date of Deatthanuary 9, 2012
`
`Letters Issued:
`
`LETTERS OF LIMITED ADMINISTRATION
`
`THESE LETTERS HOWEVER BEING ISSUED ARE SUBJECT TO THE
`Limitations:
`RESTRICTIONS AND LIMITATIONS CONTAINED IN THE DECREE. The Decree entered July 30, 2012
`authorizes the collection of $774,000.00 and interest. Any collection in excess of this amount must be
`authorized by further Order of this Court.
`'
`
`THESE LETTERS. granted pursuant to a decree entered by the'court, authorize and empower the
`above-named fiduciary or fiduciaries to perform all acts requisite to the proper administration and
`disposition of the estate/trust of the Decedent in accordance with the decree and the laws of New York
`State, subject to the limitations and restrictions. if any. as set forth above.
`
`Dated: July 30, 2012
`
`the seal of the Queens
`'IN TESTIMONY WHEREOF,
`County Surrogate's Court has been affixed.
`
`WITNESS, Hon Peter J Kelly, Judge of the Queens
`County Surrogate's Court.
`
`0:47me
`
`
`
`Margaret Gribbon, Chief Clerk
`
`These Letters are Not Valid Without the Raised Seal ofthe Queens County Surrogatefs Court
`
`Attorney:
`Scott G Kaufman
`Crowley & Kaufman P C
`84-56 Grand Avenue
`Elmhurst NY 11373
`
`19 of 25
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`

`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED:
`OUEENS COUNTY CLERK 09m2017 11:30 AM
`NYSC 3F DOC. NO.
`35
`NYSCEF DOC. NO. 35
`
`IND
`EX NO.
`704565/2016
`INDEX NO. 704565/2016
`
` VYSC
`
` *uIV‘ D
`
`
`3F:
`09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`EXHIBIT “C”
`
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`

`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED: OUEENS COUNTY CLERK 09m2017 11:30 AM
`
`NYSCEF DOC. NO. 35
`NYSCEF DOC. NO. 35
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`INDEX NO. 704565/2016
`INDEX NO- 704565/2016
`
`
`
`
`
`R<.C«.IV«.D \lYSCEF: 09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`2 State Street, Rochester, New York 14614
`P 585.987.2800
`F 585.454.3968
`
` 700 Crossroads Building
`
`
`WD Q Q 5
`L) I e x
`
`
`G I
`l M A N
`
`ammm
`woodaovialbcom
`
`Writer's Direct Dial Number: 585-362-4508
`wmersommumsas-ameas
`Email: muNanOwoodsoviattcan
`
`1900 Main Place Tower
`Buffalo, New York 14202
`P 716.248.3200
`F 7163545100
`
`July 24, 2017
`
`ELEM
`
`Peter S. Thomas
`Peter S. Thomas, P.C.
`108-18 Queens Blvd., 6th Floor
`Forest Hills, NY 1 1375
`queenstnals@gmail.com
`
`Re:
`
`Account No.:
`Good Through:
`
`.6881
`August 18, 2017
`
`Dear Mr. Thomas:
`
`Pursuanttoyourrequestaflachedisanesfimateofdtesumdueontheabove—referenced
`account. The total amount due must be in the form ofa CERTIFIED CHECK made payable to
`'Wells Fargo Bank, N.A.' and must be received by the above referenced 'Good Through' date.
`prior to 5:00 pm. Please include the above loan number on your check reference. Payment must
`be delivered to:
`
`Woods Oviatt Gilman LLP
`Attn. Foreclosure Department
`700 Crossroads Building
`2 State Street
`Rochester, NY 14614
`
`Acceptance of funds is subject to verification by our client. Please note that unless
`otherwise stayed by law, we are proueding with the Enclosure action and fees and costs
`or advances by the mortgagee may be due in addltion to the sum quoted above. The above
`quotedsums,plusanyadditionalfees,costs.expenses,oranearswillneedtobepaidpriortothe
`
`
`
`
`
`
`-- “'u .-.'g- cancellatinofanylegalaction. , 1 A . ,,
`
`
`mwsm
`
`The art of representing people'
`
`21 of 25
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`

`FILED: QUEENS COUNTY CLERK 09/01/2017 11:30 AM
`FILED: OUEENS COUNTY CLERK 09m2017 11:30 AM
`
`NYSCEF DOC. NO. 35
`NYSCEF DOC. NO. 35
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`INDEX NO. 704565/2016
`INDEX NO- 704565/2016
`
`
`
`
`
`R<.C«.IV«.D \lYSCEF: 09/01/2017
`RECEIVED NYSCEF: 09/01/2017
`
`Please note that this letter is sent to you without prejudice to any foreclosure proceedings.
`-
`nor shall same constitute or