AFFIRMATION/AFFIDAVIT OF SERVICE (Motion #002) - Affidavit of Service March 03, 2020 (2024)

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AFFIRMATION/AFFIDAVIT OF SERVICE (Motion #002) - Affidavit of Service March 03, 2020 (2)

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  • AFFIRMATION/AFFIDAVIT OF SERVICE (Motion #002) - Affidavit of Service March 03, 2020 (7)
  • AFFIRMATION/AFFIDAVIT OF SERVICE (Motion #002) - Affidavit of Service March 03, 2020 (8)
 

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FILED: SUFFOLK COUNTY CLERK 03/03/2020 04:40 PM INDEX NO. 602208/2018 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/03/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Wilmington Savings Fund Society, FSB, d/b/a Christiana AFFIDAVIT OF SERVICE Trust, not Individually but as Trustee for Pretium Mortgage, BY MAIL Acquisition Trust, Index No. 602208/2018 Plaintiff(s), -against- Francine Cashel a/k/a Francine Parziale Cashel; Countrywide Home Loans, Inc.; Park Tree Investments 15, LLC; Paul Fannon; Dawn Battaglia; Jaclyn Swiger; Stewart Title Insurance Company; Hilco Receivables LLC; Damon Devitt; Greenwich Investors XXVI LLC as assignee of Freemont; Commissioner of Social Services of Suffolk County; State of New York, Defendant(s). STATE OF NEW YORK COUNTY OF MONROE I, Kyle Janzso, being sworn, say: I am not a party to this action; I am over 18 years of age, I reside in Rochester, New York. On March 3, 2020, I served the within Notice of Motion, proposed Motion for Summary Judgment and Order of Reference with Supporting Affirmations and Exhibits on the following: Countrywide Home Loans, Inc. 4500 Park Granada Calabasas, CA 91302 Paul Fannon 6 Chelsea Lane Middle Island, NY 11953 Hitco Receivables LLC 5 Revere Drive Suite 206 Northbrook, IL 60062 Damon Devitt GVP Digital Media 3075 Veterans Memorial Highway, Suite 131 Ronkonkoma, NY 11779 17-068209 Affidavit of Service by Mail Page Iof 3 1 of 3 FILED: SUFFOLK COUNTY CLERK 03/03/2020 04:40 PM INDEX NO. 602208/2018 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/03/2020 Greenwich Investors XXVI LLC as assignee of Freemont William M. Daugherty, Officer 814 Aia N., Suite 101 Ponte Vedra Beach, FL 32082 State of New York 200 Old Country Road Mineola, NY 11501 Dawn Battaglia 41 Henry Street Sayville, NY 11782 Jaelyn Swiger 10800 Orwin Manor Drive Apt 106 Raleigh, NC 27617 Bruce A. Rothenberg, Esq. 80 Orville Drive Bohemia, NY 11716 the addresses designated for that purpose by depositing a true copy of same enclosed in a postpaid, pmperly addressed wrapper, in an official depository under, the exclusive care and custody of the United States Postal Service within the State of New York. And on: Amy E. Abbandondelo, Esq. Sherwood & Truitt Law Group, LLC 300 Garden City Plaza Suite 136 Garden City, NY 11530 John Vander Neut,Esq. CRAWFORD BRINGSLID & VANDER NEUT, LLP 900 South Avenue Suite 204 Staten Island, NY 10314 by electronically filing on the NYCEF system. 17-068209 AfHdavit of Service by Mail Page 2 of 3 2 of 3 FILED: SUFFOLK COUNTY CLERK 03/03/2020 04:40 PM INDEX NO. 602208/2018 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 03/03/2020 Please be advised that no other parties have answered, appeared or are otherwise entitled to notice of this application. Dated: March 3, 2020 yle Jan Forecl6 ure Assistant SHAPIRO, DICARO & BARAK, LLC Attorneys for Plaintiff 175 Mile Crossing Boulevard Rochester, New York 14624 Telephone: (585) 247-9000 Fax: (585) 247-7380 Sw me WA rn to before this 71 day of . 20 ~zo SHEfLA J. GOROCHOW , Notary Pubile.State ofNew York / No. Notary Pubhc / 01GO6393453 oualifiedin Monroe county Commission Expirea June 17, 20 *All the defendants have been served. 17-068209 Affidavit of Service by Mail Page 3of 3 3 of 3

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SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54Tentative RulingDefendants/Cross-Complainants James Brian Putler and Brian Pifferini’s (“Defendants”) motionfor summary judgment, or in the alternative, motion for summary adjudication, is ruled upon asfollows.Plaintiffs’ counsel is admonished for failing to comply with CRC Rule 3.1110(f)(4).The parties’ unopposed requests for judicial notice are granted for the limited scope whichjudicial notice is permitted.BackgroundThis is a boundary dispute between two neighbors. Plaintiffs/Cross-Defendants Michele andAaron Solomon (“Plaintiffs”) allege the following. In 1987, Plaintiffs purchased the real propertylocated at 2031 Maple Glen Road, Sacramento, California 95864 in the subdivision known asArden Oaks. At the time of the sale, 2031 Maple Glen was owned by the Williamses.Additionally, the Williamses also owned the adjacent property located at 2041 Maple Glen.Plaintiffs allege that the Williamses developed Arden Oaks. The two properties are divided by asplit rail fence that was installed when the properties were developed in 1950. The configurationof the fence creates an enclosed wedge-shaped area (“the Wedge”) measuring approximately1,571.11 square feet. With the current configuration, Plaintiffs have exclusive access to theWedge and have installed and maintained various improvements in the Wedge.Defendants are the current owners of 2041 Maple Glen. In 2020, Defendants notified Plaintiffsthat they had commissioned a survey that revealed that the fence was not the actual boundaryline. Defendants thus informed Plaintiffs that they intended to demolish the fence and erect anew fence along the boundary line that is consistent with their survey. The new fence woulddeprive Plaintiffs access to the Wedge.Defendants filed the instant motion for summary judgment on June 20, 2023. Plaintiffs opposedand moved for leave to file an amended complaint. The Court granted Plaintiffs’ motion, and onMarch 15, 2024, Plaintiffs filed a first amended complaint. On July 10, 2024, Defendants filed asecond amended notice of motion for summary judgment/adjudication. According toDefendants’ amended notice of motion, “Defendants are entitled to summary judgment as toPlaintiffs’ complaint because Plaintiffs are not entitled to a prescriptive easem*nt as a matter oflaw. Defendants are also entitled to summary judgment as [to] their cross-complaint becauseDefendants own a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt.”(Second Amended Notice 2:4-7.)Alternatively, Defendants argue they are entitled to summary adjudication as to the followingissues: Page 1 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54 Issue No. One - Plaintiffs’ first cause of action in their Complaint for declaratory relief fails because Plaintiffs are not entitled to a prescriptive easem*nt as a matter of law. Issue No. Two - Plaintiffs’ second cause of action in their Complaint for an injunction fails because Plaintiffs are not entitled to a prescriptive easem*nt as a matter of law. Issue No. Three – Defendants are entitled to summary adjudication as to their first cause of action to quiet title in their cross-complaint because Defendants own a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt. Issue No. Four – Defendants are entitled to summary adjudication as to their second cause of action for declaratory relief in their cross-complaint because Defendants own a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt.(Id. 2:9-18.)Since Defendants filed the instant motion on June 20, 2023, Plaintiffs have filed an amendedpleading. Accordingly, Plaintiff’s original complaint, at which the motion is directed, is nolonger operative. On this basis the motion for summary judgment as to Plaintiffs’ complaint isDENIED. The motion for summary adjudication as to issue nos. 1 and 2, also directed at claimsin Plaintiffs’ complaint, is likewise DENIED.The Court now addresses whether Defendants are entitled to summary judgment as to their cross-complaint, or in the alternative, summary adjudication as to issue nos. 3 or 4.Undisputed Material Facts [“UMF”]Defendants assert UMF nos. 1-6 in support of their motion as to issue nos. 3 and 4.Plaintiffs own the residential home at 2031 Maple Glen Road. (UMF 1.) Defendants own theresidential home at 2041 Maple Glen Road. (UMF 2.) The properties are adjacent to each otherand share a fence-line composed of “a split rail fence, a taller solid fence, brick column, and achain-link fence.” (UMF 3.) Defendants claim the fence-line is not on the legal boundary lineand encroaches on Defendants’ property. (UMF 4.) Plaintiffs dispute, arguing the fence reflectsthe legal boundary, and aerial photographs as far back as 1953 reflect the current fencing is in thesame location as the original fencing placed by the developers.Plaintiffs submit Additional Material Facts [“AMF”] nos. 1-22 in opposition.To the extent the parties’ responses to UMFs purport to assert objections to evidence, suchobjections are overruled because CRC Rule 3.1354(b) states that objections to evidence shall beset forth in a separate document and must inter alia quote or set forth the objectionable statement Page 2 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54or material.Legal StandardIn evaluating a motion for summary judgment and/or summary adjudication, the Court engagesin a three-step process.First, the Court identifies the issues framed by the pleadings. The pleadings define the scope ofthe issues on a motion for summary judgment. (FPI Dev. Inc. v. Nakashima (1991) 231Cal.App.3d 367, 381-382.) Because a motion for summary judgment is limited to the issuesraised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidencesubmitted in support of or in opposition to the motion must be addressed to the claims anddefenses raised in the pleadings. The court cannot consider an unpleaded issue in ruling on amotion for summary judgment. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papersfiled in response to a defendant’s motion for summary judgment or summary adjudication maynot create issues outside the pleadings and are not a substitute for an amendment to thepleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334,1342.)Next, the Court must determine whether the moving party has met its burden. A defendantmoving for summary judgment bears the burden of persuasion that one or more elements of theplaintiff’s cause of action cannot be established, or that there is a complete defense to the causeof action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [quoting Code Civ. Proc.,§ 437c, subd. (p)(2)].)Once the moving party has met its initial burden, the burden shifts to the opposing party to showthat a material factual issue exists as to the cause of action alleged or affirmative defenseclaimed. (Code Civ. Proc., § 437c, subd. (p); see, generally, Bush v. Parents without Partners(1993) 17 Cal.App.4th 322, 326-327.)Finally, in ruling on the motion, the Court must consider the evidence and inferences reasonablydrawn therefrom in the light most favorable to the opposing party. (Aguilar, supra, at 843.)Summary judgment is properly granted only if the moving party’s evidence establishes that thereis no issue of material fact to be tried. (Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374.)DiscussionIssues No. 3 and 4Defendants contend they are entitled to summary adjudication as to their first cause ofaction to quiet title in their cross-complaint because they own the Wedge and Plaintiffsdo not have a prescriptive easem*nt. Page 3 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54The first cause of action in the Cross-Complaint is premised on the following allegations: The area between the legal boundary and portions of a fence separating the properties forms a wedge. Fencing encloses the wedge area of the Property as though it is part of Cross-Defendants' property, thereby preventing Cross- Complainants access to that portion of their Property. On or around June 30, 2021, Cross-Complainants informed Cross-Defendants of their intent to tear down the fencing that separates their properties and erect a new fence along the legal boundary line between the properties. Cross-Defendants now contend that they have a prescriptive easem*nt over the wedge area.(Cross-Complaint ¶¶ 10-12.)A motion for summary judgment or adjudication is framed by the pleadings. Thepleadings define the scope of the issues on a motion for summary judgment or summaryadjudication. (FPI Dev. Inc., supra, at 381-382.) Because a motion for summaryjudgment or summary adjudication is limited to the issues raised by the pleadings (seeLewis, supra, at 694), all evidence submitted in support of or in opposition to the motionmust be addressed to the claims and defenses raised in the pleadings. Since Defendantsfiled the instant motion, Plaintiffs have filed an amended complaint, no longer asserting aprescriptive easem*nt theory. Because the motion for adjudication is directed at a claimthat is no longer being asserted, it must be DENIED.Similarly, Defendants contend they are entitled to summary adjudication as to theirsecond cause of action for declaratory relief in their cross-complaint because Defendantsown a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt.The second cause of action in the Cross-Complaint is premised on the followingallegations: An actual controversy has arisen and now exists between Cross-Complainants and Cross-Defendants concerning their respective rights to the wedge area of the Property. Cross-Complainants assert that Cross-Defendants have no right to the wedge area of the Property. Cross-Defendants assert that they have a prescriptive easem*nt over the wedge area of the Property.(Cross-Complaint ¶ 17.)Again, the Cross-Complaint is premised on allegations Plaintiff is no longer asserting.Accordingly, the summary adjudication is DENIED.DispositionThe motion for summary judgment/adjudication is DENIED in its entirety, without prejudice, for Page 4 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54the foregoing reasons.The Court need not rule on Defendants’ objections to evidence as they were not material to theCourt’s disposition of the motion. (Code Civ. Proc. §437c(q).)The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 orfurther notice is required.NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely eithertelephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.pdf. Page 5 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearingor at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided. Page 6 of 6

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Finance Of America Reverse Llc v. Brian Joseph Dineen, As Trustee, Or His Successors In Trust, Under The Daniel J. Dineen Protection Trust, Dated May 9, 2017, United States Of America Acting On Behalf Of The Secretary Of Housing And Urban Development, New York State Department Of Taxation And Finance, United States Of American Acting On Behalf Of The Department Of Treasury - Internal Revenue Service, John Doe #1 Through John Doe #10, Said Names Being Fictitious And Unknown To Plaintiff, Intended To Be Possible Tenants Or Occupants Of The Premises, Or Corporations, Persons, Or Other Entities Having Or Claiming A Lien Upon The Mortgaged Premises

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AFFIRMATION/AFFIDAVIT OF SERVICE (Motion #002) - Affidavit of Service March 03, 2020 (2024)

FAQs

How to write an answer to a motion? ›

When you respond to a motion, be clear and direct about your legal position. Begin with an introduction that summarizes the nature of the motion and states your position. Develop key points to answer every argument your opponent made. Then, present your arguments in a logical sequence.

What is the affirmation of service in NY? ›

The affirmation of service identifies: • What is served • On whom • On what date –and– • By what means For a full listing of key content covering fundamental civil litigation tasks throughout a New York court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (NY).

What is the word count for 202.8 B? ›

22 CRR-NY 202.8bNY-CRR

(1) affidavits, affirmations, briefs and memoranda of law in chief shall be limited to 7,000 words each; (2) reply affidavits, affirmations, and memoranda shall be no more than 4,200 words and shall not contain any arguments that do not respond or relate to those made in the memoranda in chief.

How long does a Judge have to answer a motion in NY? ›

Decisions. If the motion or OSC can't be settled, the Judge will make a decision. Sometimes, the Judge makes a decision right away. If not, the Judge has 60 days by law to decide the motion.

What is the answer to the question what is motion? ›

Motion is a change in position of an object over time. Motion is described in terms of displacement, distance, velocity, acceleration, time and speed.

How do you write an affirmative defense in an answer? ›

Affirmative defense—Examples

On [Date], after making the contract and the alleged breach, and before this action was commenced, defendant paid to the plaintiff the sum of [specify amount], which was accepted by the plaintiff in full satisfaction and discharge of the damages claimed in the petition.

What is the new affirmation rule in NY? ›

A law signed by Governor Hochul in October 2023, with an effective date of January 1, 2024, amended the CPLR to allow affirmations from any person. This brings New York civil practice more in line with federal court practice, where un-notarized declarations have been in use for decades under 28 U.S.C. § 1746.

What is an affirmation service? ›

The Affirmation Service makes a statement of the relationship between minister and congregation, blesses him into service among us, and celebrates his arrival on the ministerial team at First Church.

What does affirmation mean in court? ›

(b) Affirmation. An affirmation is a solemn and formal declaration or asseveration in the nature of an oath that a statement, or series of statements, is true. When an oath is required or authorized by law, an affirmation in lieu thereof may be taken by any person having conscientious scruples against taking an oath.

What does a 100 word count look like? ›

100 words usually consist of 0.2 pages single-spaced and 0.4 pages double-spaced. In order to silently read 100 words, it would typically take 25 seconds, while delivering a speech of similar length would take 33 seconds. 100 words would also typically consist of 1 - 1 paragraphs and 5 - 7 sentences.

What words are counted in word count? ›

Generally speaking, the word count will include the following:
  • All titles or headings that form part of the actual text.
  • All words that form the essay (the main body of text).
  • All words forming the titles for figures, tables and boxes, are included but this does not include boxes or tables or figures themselves.
Apr 12, 2024

What is the longest word count? ›

1. methionylthreonylthreonylglutaminylalanyl…isoleucine. You'll notice there's an ellipsis here, and that's because this word, in total, is 189,819 letters long, and it's the chemical name for the largest known protein, titin.

What happens if someone doesn't respond to a motion? ›

If a motion is filed against you and you do not file a written opposition with the court, the judge could grant the other side's motion automatically. That means the other side could get whatever she is asking for in the motion. It also might mean you lose the case, depending on the motion that was filed.

What is the difference between notice of motion and motion? ›

The motion must be supported by evidence. The motion must include a separate "Notice of Motion" which includes a brief summary of the nature of the motion, the deadline for filing a response, and if there is a hearing, the date, time, and location of the hearing.

What is the purpose of a motion for summary judgment? ›

Either side (and sometimes both sides) may bring a motion for summary judgment arguing that they are entitled to a judgment in their favor without a trial. Unless the parties agree that there is no genuine dispute about material facts in the case, the court must determine whether there are any such disputed facts.

How do you write an opposition to a motion? ›

Declaration Opposing the Motion

It must either be typed on pleading paper or written or typed on Judicial Council Form MC-030, present facts within your (or some other declarant's) personal knowledge and be signed by you (or the other declarant) under penalty of perjury.

How to write a written response to the court? ›

On a separate page or pages, write a short and plain statement of the answer to the allegations in the complaint. Number the paragraphs. The answer should correspond to each paragraph in the complaint, with paragraph 1 of the answer corresponding to paragraph 1 of the complaint, etc.

Do you respond or reply to a motion? ›

A Response will address the Motion and provide the party's position on the points raised in the Motion. This can include a rebuttal to issues of fact or law raised in the Motion. A Reply will address the points raised in the Response and provide the party's position on the points raised in the Response.

How to write a response to a motion for summary judgment? ›

It should contain a strong legal argument, with references to the facts as well as to legal authorities such as case opinions and statutes. When supporting your argument with facts, make sure every fact you rely upon is supported by admissible evidence.

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