Opinion
Index 812549/2018 814858/2018
10-14-2020
ROBERT T. VAN DE MARK Plaintiff v. MBR CAPITAL PARTNERS, LLC, JAMES A. BERNARDONI A/K/A JAMES R. BERNARDONI Defendants TRACEY TAYLOR F/K/A TRACEY BERNARDONI Plaintiff v. ROBERT T. VAN DE MARK, MBR CAPITAL PARTNERS, LLC JAMES A. BERNARDONI A/K/A JAMES R. BERNARDONI Defendants
Unpublished Opinion
DECISION AND ORDER
DIANE Y. DEVLIN, J.S.C.
The following papers were read on Plaintiff VAN DE MARK'S motion to amend his judgment by confession Nunc Pro Tunc and Plaintiff TAYLOR'S cross motion to vacate the judgment.
Index: 812549/2018
Notice of Motion-Affirmation-Exhibits, Docket numbers 40-46
Answering Affirmation, Docket numbers 101-105
Replying Affirmation, Docket number 107
Index: 814858/2018
Notice of Motion-Affirmation-Exhibits, Docket numbers 100-106
Answering Affirmation-Exhibits, Docket numbers 107-116
Memorandum, Docket 119
A Confession of Judgment stemming from a Promissory Note was executed in 2007 between Plaintiff VAN DE MARK (812549/2018) and Defendant BERNARDONI with Defendant MBR PARTNERS as borrower and VAN DE MARK as lender. The amount to be repaid is $66,875 with interest of $16,875. Defendants failed to repay the amount and a Judgment by Confession was entered in 2009. Plaintiff VAN De MARK filed a motion for summary judgment in lieu of a complaint in 2018 for a renewal judgment, and Plaintiff TAYLOR in the related action filed a Complaint to vacate the lien and judgment and for injunctive relief; she also moved to intervene in the related action, which was granted previously.
Plaintiff VAN DE MARK files a motion for a Nunc Pro Tunc Order to amend his Judgment by Confession and Renewal Judgment entered January 5, 2009 and September 20, 2018 respectively. There was an omission of the 2007 Promissory Note and Consolidation that should have been attached to the initial instrument, which Plaintiff claims was the result of a clerical error.
Plaintiff TAYLOR (814858/2018) files a motion to vacate the judgment. The Complaint alleges that Defendant Bernardoni signed a Confession of Judgment the same day that Defendant MBR Capital Partners entered into a Promissory Note and Consolidation with Defendant Van De Mark and Defendant Barnardoni was a guarantor. In 2009 Defendant Van De Mark obtained a money judgment for the amount confessed in the amount of $66,890.00. Also in 2009 Plaintiff Taylor and Defendant Barnardoni commenced a divorce action, the result of which included Defendant Bernardoni's transfer of his interest in the marital property to his ex-wife-the Plaintiff herein-as a result of child support arrears. The marital home is the property for which the Confession of Judgment and lien attach.
Although the omission of the Promissory Note may have been a clerical error, the Court agrees with Plaintiff Taylor that the underlying Confession of Judgment and Promissory Note do not comply with CPLR 3218 (a). Cole-Hatchard v Nicholson. 73 A.D.3d 834 (2d Dept. 2010).
It is hereby ORDERED that Plaintiff Taylor's motion to vacate is GRANTED, and it is further
ORDERED that Plaintiff Van De Mark's motion for an order Nunc Pro Tunc is DENIED.