FILED: QUEENS COUNTY CLERK 12/20/2024 10:40 AM
`NYSCEF DOC. NO. 19
`
`INDEX NO. 716824/2024
`
`RECEIVED NYSCEF: 12/20/2024
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`
`
`Index No. 716824/2024
`
`AFFIRMATION IN
`SUPPORT OF MOTION
`FOR ORDER OF
`REFERENCE AND
`OTHER RELIEF
`
`
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`-----------------------------------------------------------------------X
`MASPETH FEDERAL SAVINGS AND LOAN
`
`
`ASSOCIATION,
`
`
`Plaintiff,
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`
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`
`
`
`
`-against-
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`
`
`
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`
`
`
`
`GGATTUSO, LLC, DIAMOND BACK ASSETS LLC,
`NYC ENVIRONMENTAL CONTROL BOARD, NYS
`DEPARTMENT OF TAXATION AND FINANCE, NYC
`DEPARTMENT OF FINANCE, and “John Doe 1”
`through “John Doe 10”, the names of the last 10
`defendants being fictitious, intending to designate
`tenants or persons in possession or persons who may have
`an interest in the mortgaged premises, the true names
`of the last 10 defendants being fictitious and unknown to
`plaintiff,
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`Defendants.
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`
`
`
`
`-----------------------------------------------------------------------X
`
`
`
`MARK L. CORTEGIANO, ESQ., an attorney duly admitted to practice law before the
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`courts of the State of New York, affirms under penalty of perjury:
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`1.
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`I am the attorney for Maspeth Federal Savings and Loan Association (“Plaintiff”).
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`As such I am familiar with the facts and circumstances in the above-captioned action and set forth
`
`herein.
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`2.
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`I submit this affirmation in support of Plaintiff’s application for an order pursuant
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`to CPLR § 3215 and RPAPL § 1321 appointing a referee, directing him/her to compute the amount
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`due to the plaintiff for principal and interest and to examine and report whether the mortgaged
`
`premises can be sold in parcels, amending the caption of this action, deeming all defendants to be
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`in default, and granting Plaintiff leave to enter an order of reference.
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`1
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`1 of 12
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`FILED: QUEENS COUNTY CLERK 12/20/2024 10:40 AM
`NYSCEF DOC. NO. 19
`
`INDEX NO. 716824/2024
`
`RECEIVED NYSCEF: 12/20/2024
`
`
`
`3.
`
`As is set forth in the annexed affidavit of Arlene Carcione, vice president of the
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`plaintiff bank, this is an action to foreclose the following mortgages on real property located in the
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`County of Queens, State of New York, which real property is known as and by 61-43 Madison
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`Street, Ridgewood, NY (the “Mortgaged Premises”):
`
`Mortgage dated July 31, 1997 made by CARMELO GATTUSO AND
`GRACE GATTUSO to GREENPOINT BANK in the principal sum of
`$290,500.00 and recorded in the Office of the Register of Queens County
`on October 17, 1997 in Reel 4699 Page 2102, which mortgage was assigned
`by written Assignment of Mortgage dated February 10, 1999 from
`GREENPOINT BANK, SUCCESSOR BY NAME CHANGE FROM THE
`GREEN POINT SAVINGS BANK to MASPETH FEDERAL SAVINGS
`AND LOAN ASSOCIATION and recorded in the Office of the Register of
`Queens County on April 22, 1999 in Reel 5201 Page 1848;
`
`Mortgage dated March 1, 1999 made by CARMELO GATTUSO AND
`GRACE GATTUSO to MASPETH FEDERAL SAVINGS AND LOAN
`ASSOCIATION in the principal sum of $12,773.68 and recorded in the
`Office of the Register of Queens County on April 22, 1999 in Reel 5201
`Page 1836, which mortgages were consolidated by written Consolidation
`and Extension Agreement dated March 1, 1999 between CARMELO
`GATTUSO AND GRACE GATTUSO and MASPETH FEDERAL
`SAVINGS AND LOAN ASSOCIATION and recorded in the Office of the
`Register of Queens County on April 22, 1999 in Reel 5201 Page 1842 to
`form a single lien of $290,000.00;
`
`Mortgage dated May 8, 2008 made by GRACE GATTUSO to MASPETH
`FEDERAL SAVINGS AND LOAN ASSOCIATION in the principal sum
`of $313,180.47 and recorded in the Office of the Register of Queens County
`on May 19, 2008 in CRFN 20008000200833, which mortgages were
`consolidated by written Consolidation and Extension Agreement dated May
`8, 2008 between GRACE GATTUSO and MASPETH FEDERAL
`SAVINGS AND LOAN ASSOCIATION and recorded in the Office of the
`Register of Queens County on May 19, 2008 in CRFN 2008000200834 to
`form a single lien of $350,000.00, which mortgage was modified by written
`Extension and Modification Agreement dated February 14, 2014 between
`GRACE GATTUSO and MASPETH FEDERAL SAVINGS AND LOAN
`ASSOCIATION and recorded in the Office of the Register of Queens
`County on February 20, 2014 at CRFN 2014000062976;
`
`Mortgage dated February 24, 2021 made by GGATTUSO LLC to
`MASPETH FEDERAL SAVINGS AND LOAN ASSOCIATION in the
`principal sum of $687,003.35 which mortgages were consolidated by
`
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`2
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`2 of 12
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`

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`FILED: QUEENS COUNTY CLERK 12/20/2024 10:40 AM
`NYSCEF DOC. NO. 19
`
`INDEX NO. 716824/2024
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`RECEIVED NYSCEF: 12/20/2024
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`
`
`written Consolidation and Extension Agreement dated February 24, 2021
`between GGATTUSO LLC and MASPETH FEDERAL SAVINGS AND
`LOAN ASSOCIATION and recorded in the Office of the Register of
`Queens County on April 6, 2021 at CRFN 2021000124910 to form a single
`lien of $865,000.00. (Copies of the said mortgages, consolidation
`agreements, and instruments of assignment are annexed to the Affidavit of
`Arlene Carcione as Exhibit A).
`
`Plaintiff now moves for an order pursuant to CPLR § 3215 and RPAPL § 1321
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`4.
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`appointing a referee, directing him/her to compute the amount due to the plaintiff for principal and
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`interest and to examine and report whether the mortgaged premises can be sold in parcels,
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`amending the caption of this action, deeming all defendants to be in default, and granting Plaintiff
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`leave to enter an order of reference.
`
`I.
`
`CONFERENCE
`SETTLEMENT
`FORECLOSURE
`THE
`REQUIREMENTS SET FORTH IN CPLR § 3408 ARE NOT
`APPLICABLE
`
`
`5.
`
`The instant action does not meet the requirements for a mandatory settlement
`
`conference pursuant to CPLR § 3408 because this action does not involve a home loan as defined
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`in RPAPL § 1304 and the defendant is not a resident of the property subject to foreclosure.
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`6.
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`CPLR § 3408(a)(1) states in relevant part that in any residential foreclosure action
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`involving a home loan as defined in RPAPL § 1304, in which the defendant is a resident of the
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`property subject to foreclosure, the court shall hold a mandatory settlement conference.
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`7.
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`RPAPL § 1304 defines a home loan as a loan in which “(i) the borrower is a natural
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`person…”. See RPAPL § 1304(6)(a)(1)(i).
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`8.
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`Here, the borrower is not a natural person. The borrower in this case is
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`GGATTUSO, LLC. Therefore, this case does not involve a home loan as defined by RPAPL §
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`1304 and the CPLR § 3408 settlement conference is not required.
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`3
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`3 of 12
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`

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`FILED: QUEENS COUNTY CLERK 12/20/2024 10:40 AM
`NYSCEF DOC. NO. 19
`
`INDEX NO. 716824/2024
`
`RECEIVED NYSCEF: 12/20/2024
`
`
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`9.
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`Additionally, this property does not meet the definition of a “home loan” under
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`RPAPL § 1304(6)(a)(1)(iii), which states that the loan must be secured by a mortgage on real estate
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`improved by a one-to-four family dwelling. Here, the mortgaged premises are an 8-family
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`apartment building. See Exhibit A, NYC DOB Building Overview. Therefore, again, this case does
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`not involve a home loan as defined by RPAPL § 1304 and the CPLR § 3408 settlement conference
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`is not required.
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`II.
`
`THE 90-DAY NOTICE REQUIREMENT SET FORTH IN RPAPL § 1304
`AND THE FILING REQUIREMENT OF RPAPL § 1306 ARE NOT
`APPLICABLE
`
`10.
`
`RPAPL § 1304 provides that “with regard to a home loan,” a lender shall send a
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`notice to a borrower 90 days before commencing legal action providing the information set forth
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`in the statute. Here, that notice was not required because the underlying obligation in this case is
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`not a “home loan” as defined by the statute.
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`11.
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`As was discussed supra, RPAPL § 1304 defines a home loan as a loan in which
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`“the borrower is a natural person.” See RPAPL § 1304(6)(a)(1)(i). Here, the borrower is
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`GGATTUSO LLC, and therefore, the RPAPL § 1304 notice was not required.
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`12.
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`Additionally, the mortgaged premises in this action are an 8-family apartment
`
`building. See Exhibit A, NYC DOB Building Overview. Therefore, this property does not meet
`
`the definition of a “home loan” under RPAPL § 1304(6)(a)(1)(iii), which states that the loan must
`
`be secured by a mortgage on real estate improved by a one-to-four family dwelling. Therefore,
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`again, the RPAPL § 1304 notice was not required.
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`13.
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`RPAPL § 1306 provides that within three business days of the mailing of the notice
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`required by RPAPL § 1304, certain information concerning both the borrower and the loan must
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`be filed with the superintendent of financial services.
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`
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`4
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`4 of 12
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`

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`FILED: QUEENS COUNTY CLERK 12/20/2024 10:40 AM
`NYSCEF DOC. NO. 19
`
`INDEX NO. 716824/2024
`
`RECEIVED NYSCEF: 12/20/2024
`
`
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`14.
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`Here, Plaintiff was not required to send the RPAPL § 1304 notice because the loan
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`at issue is not a home loan as defined by RPAPL § 1304. Therefore, Plaintiff was not required to
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`file the RPAPL § 1306 information with the superintendent of financial services.
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`III. NOTICES REQUIRED BY RPAPL §§ 1320 AND 1303 WERE NOT
`REQUIRED
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`15.
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`RPAPL § 1320 provides that in an action to foreclose a mortgage upon residential
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`property containing not more than three units, the summons shall contain a notice informing the
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`homeowner that, inter alia, they are in danger of losing their home, and failing to answer the
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`complaint could result in a default judgment against them. See RPAPL § 1320.
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`16.
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`Here, the mortgaged premises are an apartment building containing 8 units. See
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`Exhibit A, DOB Building Overview. Therefore, the notice required by RPAPL § 1320 was not
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`required.
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`17.
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`RPAPL § 1303 requires that the plaintiff in a mortgage foreclosure action involving
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`an owner-occupied one-to-four family dwelling, shall cause to be delivered to the mortgagor
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`together with the summons and complaint, a notice printed on colored paper in the form set forth
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`in said section captioned “HELP FOR HOMEOWNERS IN FORECLOSURE.”
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`18.
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`Here, the mortgaged premises are not a one-to-four family dwelling nor are they
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`owner occupied. The mortgaged premises is an eight-unit apartment building that is owned by
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`GGATTUSO LLC and is therefore not owner-occupied. See Exhibit A, NYC DOB Building
`
`Overview. Therefore, the RPAPL § 1303 notice was not required.
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`5
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`5 of 12
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`

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`FILED: QUEENS COUNTY CLERK 12/20/2024 10:40 AM
`NYSCEF DOC. NO. 19
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`INDEX NO. 716824/2024
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`RECEIVED NYSCEF: 12/20/2024
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`
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`IV.
`
`PLAINTIFF IS ENTITLED TO LEAVE TO ENTER A DEFAULT
`JUDGMENT AGAINST ALL DEFENDANTS UNDER CPLR 3215 AND AN
`ORDER OF REFERENCE UNDER RPAPL 1321
`
`19.
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`On or about August 15, 2024, Plaintiff filed the summons and verified complaint
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`in this action with the Clerk of Queens County. See NYSCEF Docket No. 1; NYSCEF Docket No.
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`2.
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`20.
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`As of the date of this motion, none of the defendants have filed an answer in this
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`action.
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`21.
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`The Second Department has held that “on a motion for leave to enter a default
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`judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the
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`summons and complaint, proof of the facts constituting the claim, and proof of the defaulting
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`party’s default in answering or appearing.” See U.S. Bank Nat. Ass’n v. Poku, 118 A.D.3d 981 (2d
`
`Dep’t 2014).
`
`22.
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`Upon information and belief, all of the defendants are of sound mind, none of the
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`defendants are infants or absentees and none of them are in the armed forces of the United States
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`of America.
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`23.
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`Each of the defendants has been duly served with the summons and complaint in
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`this action, as shown by the affidavits of service thereof, which have been previously filed with
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`this Court.
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`24.
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`Defendant GGATTUSO LLC was duly served with the summons and complaint in
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`this action, as shown by the affidavit of service thereof. See NYSCEF Docket No. 5.
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`25.
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`Defendant GGATTUSO LLC has defaulted in answering the summons and
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`complaint. The time within which said defendant must appear, answer, or make any motion with
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`respect to the complaint has expired and the time to appear, answer, or so move has not been
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`
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`6
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`6 of 12
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`

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`FILED: QUEENS COUNTY CLERK 12/20/2024 10:40 AM
`NYSCEF DOC. NO. 19
`
`INDEX NO. 716824/2024
`
`RECEIVED NYSCEF: 12/20/2024
`
`
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`extended by stipulation, order of the court, or otherwise. Defendant GGATTUSO LLC has been
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`made party to this application.
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`26.
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`Defendant DIAMOND BACK ASSETS LLC was duly served with the summons
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`and complaint in this action, as shown by the affidavit of service thereof. See NYSCEF Docket
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`No. 6.
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`27.
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`Defendant DIAMOND BACK ASSETS LLC has defaulted in answering the
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`summons and complaint. The time within which said defendant must appear, answer, or make any
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`motion with respect to the complaint has expired and the time to appear, answer, or so move has
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`not been extended by stipulation, order of the court, or otherwise. Defendant DIAMOND BACK
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`ASSETS LLC has been made party to this application.
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`28.
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`Defendant NYS DEPARTMENT OF TAXATION AND FINANCE was duly
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`served with the summons and complaint in this action, as shown by the affidavit of service thereof.
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`See NYSCEF Docket No. 7.
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`29.
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`Defendant NYS DEPARTMENT OF TAXATION AND FINANCE has defaulted
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`in answering the summons and complaint. The time within which said defendant must appear,
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`answer, or make any motion with respect to the complaint has expired and the time to appear,
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`answer, or so move has not been extended by stipulation, order of the court, or otherwise.
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`Defendant NYS DEPARTMENT OF TAXATION AND FINANCE has been made party to this
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`application.
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`30.
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`Defendant NYC ENVIRONMENTAL CONTROL BOARD was duly served with
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`the summons and complaint in this action, as shown by the affidavit of service thereof. See
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`NYSCEF Docket No. 17.
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`7
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`7 of 12
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`

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`FILED: QUEENS COUNTY CLERK 12/20/2024 10:40 AM
`NYSCEF DOC. NO. 19
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`INDEX NO. 716824/2024
`
`RECEIVED NYSCEF: 12/20/2024
`
`
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`31.
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`Defendant NYC ENVIRONMENTAL CONTROL BOARD has defaulted in
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`answering the summons and complaint. The time within which said defendant must appear,
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`answer, or make any motion with respect to the complaint has expired and the time to appear,
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`answer, or make any motion with respect to the complaint has not been extended by stipulation,
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`order of the court, or otherwise. Defendant NYC ENVIRONMENTAL CONTROL BOARD has
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`been made party to this application.
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`32.
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`Defendant NYC DEPARTMENT OF FINANCE was duly served with the
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`summons and complaint in this action, as shown by the affidavit of service thereof. See NYSCEF
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`Docket No. 16.
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`33.
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`Defendant NYC DEPARTMENT OF FINANCE has defaulted in answering the
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`summons and complaint. The time within which said defendant must appear, answer, or make any
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`motion with respect to the complaint has expired and the time to appear, answer, or make any
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`motion with respect to the complaint has not been extended by stipulation, order of the court, or
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`otherwise. Defendant NYC DEPARTMENT OF FINANCE has been made party to this
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`application.
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`34.
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`Defendant JOHN DOE #1 was duly served with the summons and complaint in this
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`action, as shown by the affidavit of service thereof. See NYSCEF Docket No. 8.
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`35.
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`Defendant JOHN DOE #1 has defaulted in answering the summons and complaint.
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`The time within which said defendant must appear, answer, or make any motion with respect to
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`the complaint has expired and the time to appear, answer, or so move has not been extended by
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`stipulation, order of the court, or otherwise. Defendant JOHN DOE #1 has been made party to this
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`application.
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`8
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`8 of 12
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`

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`FILED: QUEENS COUNTY CLERK 12/20/2024 10:40 AM
`NYSCEF DOC. NO. 19
`
`INDEX NO. 716824/2024
`
`RECEIVED NYSCEF: 12/20/2024
`
`
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`36.
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`Defendant JOHN DOE #2 was duly served with the summons and complaint in this
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`action, as shown by the affidavit of service thereof. See NYSCEF Docket No. 9.
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`37.
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`Defendant JOHN DOE #2 has defaulted in answering the summons and complaint.
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`The time within which said defendant must appear, answer, or make any motion with respect to
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`the complaint has expired and the time to appear, answer, or so move has not been extended by
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`stipulation, order of the court, or otherwise. Defendant JOHN DOE #2 has been made party to this
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`application.
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`38.
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`Defendant JOHN DOE #3 was duly served with the summons and complaint in this
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`action, as shown by the affidavit of service thereof. See NYSCEF Docket No. 10.
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`39.
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`Defendant JOHN DOE #3 has defaulted in answering the summons and complaint.
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`The time within which said defendant must appear, answer, or make any motion with respect to
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`the complaint has expired and the time to appear, answer, or so move has not been extended by
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`stipulation, order of the court, or otherwise. Defendant JOHN DOE #3 has been made party to this
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`application.
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`40.
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`Defendant JOHN DOE #4 was duly served with the summons and complaint in this
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`action, as shown by the affidavit of service thereof. See NYSCEF Docket No. 11.
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`41.
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`Defendant JOHN DOE #4 has defaulted in answering the summons and complaint.
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`The time within which said defendant must appear, answer, or make any motion with respect to
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`the complaint has expired and the time to appear, answer, or so move has not been extended by
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`stipulation, order of the court, or otherwise. Defendant JOHN DOE #4 has been made party to this
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`application.
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`42.
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`Defendant JOHN DOE #5 was duly served with the summons and complaint in this
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`action, as shown by the affidavit of service thereof. See NYSCEF Docket No. 12.
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`9
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`9 of 12
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`FILED: QUEENS COUNTY CLERK 12/20/2024 10:40 AM
`NYSCEF DOC. NO. 19
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`INDEX NO. 716824/2024
`
`RECEIVED NYSCEF: 12/20/2024
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`43.
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`Defendant JOHN DOE #5 has defaulted in answering the summons and complaint.
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`The time within which said defendant must appear, answer, or make any motion with respect to
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`the complaint has expired and the time to appear, answer, or so move has not been extended by
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`stipulation, order of the court, or otherwise. Defendant JOHN DOE #5 has been made party to this
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`application.
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`44.
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`Defendant JOHN DOE #6 was duly served with the summons and complaint in this
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`action, as shown by the affidavit of service thereof. See NYSCEF Docket No. 13.
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`45.
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`Defendant JOHN DOE #6 has defaulted in answering the summons and complaint.
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`The time within which said defendant must appear, answer, or make any motion with respect to
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`the complaint has expired and the time to appear, answer, or so move has not been extended by
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`stipulation, order of the court, or otherwise. Defendant JOHN DOE #6 has been made party to this
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`application.
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`46.
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`Defendant JOHN DOE #7 was duly served with the summons and complaint in this
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`action, as shown by the affidavit of service thereof. See NYSCEF Docket No. 14.
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`47.
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`Defendant JOHN DOE #7 has defaulted in answering the summons and complaint.
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`The time within which said defendant must appear, answer, or make any motion with respect to
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`the complaint has expired and the time to appear, answer, or so move has not been extended by
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`stipulation, order of the court, or otherwise. Defendant JOHN DOE #7 has been made party to this
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`application.
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`48.
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`Defendant JOHN DOE #8 was duly served with the summons and complaint in this
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`action, as shown by the affidavit of service thereof. See NYSCEF Docket No. 15.
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`49.
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`Defendant JOHN DOE #8 has defaulted in answering the summons and complaint.
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`The time within which said defendant must appear, answer, or make any motion with respect to
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`10
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`10 of 12
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`

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`FILED: QUEENS COUNTY CLERK 12/20/2024 10:40 AM
`NYSCEF DOC. NO. 19
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`INDEX NO. 716824/2024
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`RECEIVED NYSCEF: 12/20/2024
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`
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`the complaint has expired and the time to appear, answer, or so move has not been extended by
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`stipulation, order of the court, or otherwise. Defendant JOHN DOE #8 has been made party to this
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`application.
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`50.
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`Under RPAPL § 1321, where defendants fail to answer, upon plaintiff’s motion,
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`“the court shall ascertain and determine the amount due, or direct a referee to compute the amount
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`due to the plaintiff and to such of the defendants as are prior incumbrances of the mortgaged
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`premises, and to examine and report whether the mortgaged premises can be sold in parcels and,
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`if the whole amount secured by the mortgage has not become due, to report the amount thereafter
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`to become due.”
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`51.
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`As all defendants have failed to answer within the time limit allowed, this Court
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`should issue an order of reference under RPAPL 1321.
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`52.
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`Additionally, as defendants sued herein as JOHN DOE were served as tenants of
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`the premises, the caption should now read:
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`Plaintiff,
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`
`
`
`
`-against-
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`----------------------------------------------------------------------X
`MASPETH FEDERAL SAVINGS AND LOAN
`ASSOCIATION,
`
`
`
`
`
`GGATTUSO, LLC, DIAMOND BACK ASSETS LLC,
`NYC ENVIRONMENTAL CONTROL BOARD, NYS
`DEPARTMENT OF TAXATION AND FINANCE,
`NYC DEPARTMENT OF FINANCE, and JOHN DOE
`1-8, the names “JOHN DOE 1-8” being fictitious, the true
`names of said defendants being unknown to plaintiff,
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`Defendants.
`
`
`
`
`
`----------------------------------------------------------------------X
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`11
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`11 of 12
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`

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`FILED: QUEENS COUNTY CLERK 12/20/2024 10:40 AM
`NYSCEF DOC. NO. 19
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`INDEX NO. 716824/2024
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`RECEIVED NYSCEF: 12/20/2024
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`
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`53.
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`The proceedings herein have been regular and in accordance with the rules and
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`practice of this Court.
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`WHEREFORE, affirmant respectfully prays for an order, in the form annexed hereto: (1)
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`appointing a referee to compute the amount due to plaintiff for principal and interest upon the bond
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`and mortgage set forth in the complaint, and to examine and report whether the mortgaged
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`premises can be sold in parcels; (2) deeming all defendants to be in default; (3) amending the
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`caption of this case; and (4) granting such other and further relief as may appear just and proper.
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`Dated: Middle Village, NY
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`December 19, 2024
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`/s/ Mark L. Cortegiano
`Mark L. Cortegiano, Esq.
`65-12 69th Place
`Middle Village, NY 11379
`(718) 894-9500
`derek@cortegianolaw.com
`
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