At DCM Part 21 of the Supreme Court of the State of New York, held in and for the County of Richmond at the Courthouse, located at 18 Richmond Terrace, Staten Island, City and State of New York on the day of April 2017 Present: Hon. Orla ndo M arrazzo, Jr. Robert L. Lobaito and Linda J. Bruno - a g a i n s t - P l a i n t i f f s, Index No. 150123/2017 ORDER Dennis Lobaito and Joseph Lobaito D e f e n d a n t s. This matter having been brought to the Court on the motion of the Plaintiffs for an Order for: (1) the appointment of a Referee or the referral of the mater to a Judicial Hearing Officer to: (a) ascertain the rights and interest of the parties having an interest in the real property sought to be partitioned; (b) ascertain whether or not the said property, or any part thereof, is so circumstanced as to require a sale; (c) take proof of the plaintiff s title and interest in the said property and of the other matters set forth in the complaint; (d) take account of the rents, if any collected and distributed; (e) take account of the expenses and costs paid to maintain and upkeep the premises and the parties who paid those expenses and costs; (f) take account of contributions made by the parties toward the purchase, maintenance, upkeep and of the property; (g) take account of the improvements made to the premises and the parties contribution toward said improvements; (h) ascertain the interest of creditors, if any, and of the parties hereto in the proceeds thereof; (i) and to report thereon; (2) for Judgment pursuant to RPAPL \\LG-NAS\JWZData\JWZ Files\JWZ\LoBaito\Motion\Draft Order 07Apr17.docx
915 in favor of the plaintiff directing that partition be made between the parties according to their respective rights, shares and interests and if so found, the designation of the party to sell the property at public auction or to make the partition of the subject property as directed; (3) for an Order striking or dismissing the Counterclaim and First Affirmative Defense of the Defendant Dennis Lobaito; (4) for an Order compelling Defendants to contribute toward the costs, expenses, maintenance and upkeep of the real property pending the resolution of this action; and (5) for such other and further relief as the Court may deem just and proper; Now, upon the reading of the Summons and Complaint, with attached Exhibits, and the Notice of Pendency filed on January 13, 2017, the Affidavits of Service filed on January 23, 2017, the Answer with Counterclaim filed on behalf of the Defendant Dennis Lobaito filed on February 5, 2017, the Affidavit of Service of the Answer and Counterclaim filed on February 7, 2015, the Answer of Defendant Joseph Lobaito filed on February 8, 2017, the Reply to Counterclaims filed by Plaintiffs on February 25, 2017; the Notice of Motion and Motion of the Plaintiffs, with attached Exhibits, filed on February 25, 2017, the Amended Notice of Motion and Affirmation of Service, filed on February 27, 2017; the Affidavit in Opposition to the Motion, with attached Exhibit, filed on behalf of Dennis Lobaito on March 28, 2017, and the Affidavit in Reply filed by the Plaintiff, Robert Lobaito on March 31, 2017; and the matter having been heard by the Court at which time the Plaintiffs having appeared by their attorney John Wm. Zaccone, and the Defendant Dennis Lobaito having appeared by his attorney Michael King; and the Defendant Joseph Lobaito having appeared pro se; 2
And upon the arguments made, and all the papers and proceeding had in this matter to date, and for good cause shown it is hereby: IT IS on this day of April, 2017, Ordered and Adjudged that an Interlocutory Judgment be entered in favor of the Plaintiffs pursuant to RPAPL 915 that partition be made between the parties according to their respective rights, shares and interests; and it is further Ordered that that this action be referred to as Referee / Judicial Hearing Officer to: (a) ascertain the rights and interest of the parties having an interest in the real property sought to be partitioned; (b) take proof of the plaintiff s title and interest in the said property and of the other matters set forth in the complaint; (c) take account of the rents, if any collected and distributed; (d) take account of the expenses and costs paid to maintain and upkeep the premises and the parties who paid those expenses and costs; (e) take account of contributions made by the parties toward the purchase, maintenance, upkeep and of the property; (f) take account of the improvements made to the premises and the parties contribution toward said improvements; (g) ascertain the interest of creditors, if any, and of the parties hereto in the proceeds thereof; (h) and to report thereon; and it is further Ordered that that is hereby appointed as Real Estate Broker too list and sell the subject property located in the County of Richmond, City, Borough of Staten Island and State of New York 3
described on the Official Tax Maps for the City of New York as Block 3046, Lot 220, Borough of Staten Island, City of New York, commonly known as 108 Windermere Road, Staten Island, New York; and it is further Ordered the compensation for said Real Estate Broker shall be determined and paid upon application to this Court by the Real Estate Broker and pursuant to a separate Order of this Court; and it is further Ordered that the parties shall cooperate in any application for and the procurement of liability and casualty insurance on the above noted subject property; and it is further Ordered that the parties shall cooperate in the maintenance of the subject property; and it is further Ordered that the expense of maintenance, insurance repairs, and other necessary costs actually incurred during the pendency of this action shall be borne by the parties and that any party to this action expending actual funds for the reasonable costs insurance, maintenance and expenses incurred during this action shall be entitled to reimbursement for same, as determined by the Referee, from the proceeds of sale of the property; and it is further, Ordered that is hereby appointed Referee to enter into a contract to sell the subject property at such time as the above noted Real Estate Broker shall present a bona fide purchaser for the property at market value and reasonable terms - subject to the review of this Court upon 4
application by Order to Show Cause, of any of the parties to this action within ten days of notice of the proposed contract; and it is further Ordered that the Referee designated immediately above is hereby authorized to sell the subject property pursuant to the terms of the contract of sale entered into by the Referee and to pay such reasonable, necessary and customary expenses of closing, including but not limited to transfer taxes, title costs and fees, recording costs, approved real estate broker commissions, and such expenses for insurance and maintenance incurred by the parties during this action as may be proven to the satisfaction of and authorized by the Referee, and it is further Ordered that the balance of the proceeds, after payment of the above expenses, shall be held by the Referee, in escrow, until the further Order of this Court, and it is further Ordered that copies of this Court's Order shall be served upon the Plaintiffs and Defendants in this action, or their respective Counsel no later than ten (10) days from the date hereof. E N T E R Hon. Orlando Marrazzo, Jr. Justice, Supreme Court 5