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Ufp Atlantic Division, LLC v. Route 299 Retail Center, LLC

United States District Court, N.D. New York

December 17, 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.

RICHARD A. MITCHELL, ESQ., MICHAEL W. DEYO, ESQ., ISEMAN, CUNNINGHAM, REISTER & HYDE, LLP, 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.

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

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

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

AMENDED 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. On October 4, 2013 Plaintiff filed a 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. In a Memorandum-Decision and Order dated July 2, 2014, the Court (1) granted Plaintiff's motion to confirm the Referee's Report of Sale, (2) stayed Plaintiff's motion for leave to file a deficiency judgment, and (3) ordered Plaintiff to submit evidence establishing the fair market value of the property within thirty days of the Court's Memorandum-Decision and Order. See Dkt. No. 110. On August 1, 2014, Plaintiff submitted its affirmation in further support of its motion to confirm the Report of Sale and for leave to enter deficiency judgment, in compliance with the Court's Memorandum-Decision and Order. See Dkt. No. 115.

Currently before the Court is Plaintiff's motion for leave to enter deficiency judgment. See Dkt. Nos. 105-3 and 115.

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 ...


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