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Division v. Route 299 Retail Center, LLC

United States District Court, N.D. New York

July 2, 2014

UFP ATLANTIC DIVISION, LLC a Michigan limited liability company, Plaintiff,
v.
ROUTE 299 RETAIL CENTER, LLC. a New York limited liability company, MICHAEL BARNETT, an individual, DENISE BARNETT, an individual, HIGHLAND SQUARE DEVELOPMENT, LLC, P. SALA & SONS CONSTRUCTION, INC., TECTONIC ENGINEERING & SURVEYING CONSULTANTS, P.C., CREIGHTON MANNING ENGINEERING LLP, JOHN DOES 1-10 said names being fictitious and unknown to Plaintiff, The persons or parties intended being any and all tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the Amended Complaint, Defendants.

ISEMAN, CUNNINGHAM, REISTER & HYDE, LLP RICHARD A. MITCHELL, ESQ., MICHAEL W. DEYO, ESQ., Albany, New York, Attorneys for Plaintiff.

ROUTE 299 RETAIL CENTER, LLC, Defendant pro se.

MICHAEL BARNETT, Hopewell Junction, New York, Defendant pro se.

DENISE BARNETT, Fishkill, New York, Defendant pro se.

HIGHLAND SQUARE DEVELOPMENT LLC, Defendant pro se.

CORBALLY, GARTLAND, AND RAPPLEYEA, LLP, WILLIAM W. FRAME, ESQ., Poughkeepsie, New York, Attorneys for Defendant P. Sala & Sons Construction, Inc.

MILBER MAKRIS PLOUSADIS SEIDEN, LLP, PATRICK F. PALLADINO, ESQ., Woodbury, New York, Attorneys for Defendant Tectonic Engineering & Surveying Consultants, P.C.

DRIVER GREENE, LLP, JOHN D. HOGGAN, JR., ESQ., Albany, New York, Attorneys for Defendant Creighton Manning Engineering, LLP

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

Plaintiff brought this action pursuant to New York Real Property Actions and Proceedings Law ("RPAPL") section 1301 et seq, seeking to foreclose on a mortgage and obtain judgment on a separate promissory note. See Dkt. No. 39 at ¶ 1. Currently before the Court is Plaintiff's motion to confirm the Referee's Report of Sale, and for leave to enter a deficiency judgment against Defendants Route 299 Retail Center, LLC ("Route 299"), Michael and Denise Barnett, and Highland Square Development, LLC ("Highland"). See Dkt. No. 105-3.

II. BACKGROUND

This action was commenced on June 17, 2011 to recover a debt owed by Defendants Route 299, Michael Barnett, and Denise Barnett under a mortgage note. See Dkt. No. 1-2. On March 1, 2012, Plaintiff filed an amended complaint, which converted this action into one seeking to foreclose on a mortgage owned by Plaintiff. See Dkt. No. 39. The mortgage encumbers certain real property owned by Highland, which is commonly known as 50-70 State Route 299, Town of Lloyd, County of Ulster, New York. See id. at ¶ 18. The mortgage also encumbers real property owned by Route 299, which is commonly known as 20-40 State Route 299, Town of Lloyd, County of Ulster, New York (together, the "Mortgaged Property"). See id. at ¶ 20. In its amended complaint, Plaintiff also added M&C of Dutchess, LLC, [1] P. Sala and Sons Construction, Inc., Tectonic Engineering and Surveying Consultants, P.C., Creighton Manning Engineering, LLP, and unknown parties referred to as "John Doe" Defendants because each of these entities may claim to have an interest in the Mortgaged Property. See id. at ¶¶ 7-12.

On or around December 16, 2010, Highland and Route 299 executed and delivered to Plaintiff a promissory note in the principle amount of $5, 000, 000.00. See id. at ¶ 25; Dkt. No. 39-6 at 35-39.[2] Pursuant to the note, Highland and Route 299 are each jointly and severally liable for all amounts due under the note. See Dkt. No. 39 at ¶ 26. To secure payment of the note, Highland and Route 299 executed and delivered to Plaintiff a mortgage in the principle amount of $5, 000, 000.00. See id. at ¶ 27; Dkt. No. 39-6 at 42-51. To further secure payment of the note, Route 299, Highland, Michael Barnett, and Denise Barnett assigned to Plaintiff a life insurance policy covering the life of Michael Barnett as collateral. See Dkt. No. 39 at ¶ 32; Dkt. No. ...


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