Opinion
Index 2015-61460
05-03-2022
Carrington Mortgage Services, LLC, Plaintiff, v. Glenn Fiore A/K/A Glenn T. Fiore, Junko Fiore, Empire Portfolios, Inc., Midland Funding LLC A/S/I/I to a Chase Account, "John Doe," said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, Defendants.
For Plaintiff: Shapiro, DiCaro & Barak For Defendants Fiore: Pro se
For Plaintiff: Shapiro, DiCaro & Barak
For Defendants Fiore: Pro se
Robert J. Muller, J.
By Memorandum and Order entered on October 21, 2021, the Appellate Division, Third Department remitted this matter for a determination as to whether defendants Glenn Fiore and Junko Fiore (hereinafter defendants) were entitled to proceed as poor persons under CPLR 1101 "as of the date of the June 2016 settlement conference" (198 A.D.3d 1106, 1109 [2021]) and, if so, "whether [they] would have been eligible for the assignment of counsel based upon their financial circumstances" (id. at 1108); and
This Court having observed that after the initial settlement conference on June 16, 2015, the next conference was held on July 12, 2016 - not in June 2016 - and having thus interpreted the Memorandum and Order as directing a determination as to whether defendants were entitled to proceed as poor persons and eligible for the assignment of counsel as of July 12, 2016; and
This Court having invited defendants to submit evidence with respect to the issues outlined, and these issues having regularly come on to be heard on the submission of papers only; and
This Court having considered the affidavit of Glenn T. Fiore with exhibits attached thereto, sworn to January 21, 2022, contending that "[t]he issue is moot [since I] wouldn't qualify [as a poor person] because my income exceeded the U.S. income guidelines for a poor family of two" and "a homeowner is not entitled to a lawyer in a foreclosure action"; the correspondence of Austin T. Shufelt, Esq., dated February 21, 2022, stating that "[d]efendant Fiore attests that he is not entitled to poor person status under CPLR 1101 based on, inter alia, his income exceeding the relevant threshold[, and p]laintiff has no information that might contradict [his] representations"; and the correspondence of Junko Fiore, dated April 15, 2022, advising that she "concur[s] with [her] husband."
Now, after due deliberation, this Court finds that defendants were not entitled to proceed as poor persons under CPLR 1101 as of the July 12, 2016 settlement conference, nor were they entitled to the assignment of counsel at that time.
Accordingly, it is hereby
ORDERED that the motion to proceed as a poor person under CPLR 1101 which defendants were deemed to have made at the July 12, 2016 settlement conference is denied; and it is further
ORDERED that defendants were not entitled to the assignment of counsel at the July 12, 2016 settlement conference.
The original of this Decision and Order has been filed by the Court together with the submissions enumerated above. Plaintiff is hereby directed to promptly obtain a filed copy of this Decision and Order for service with notice of entry upon defendants in accordance with CPLR 5513.