In Emigrant Bank v. Luigi Rosabianca, et. al, Index No. 850136/2014, Supreme Court, New York County, the parents of an infamous and now disbarred real estate lawyer, Luigi Rosabianca, (the “Parents”) defaulted in a civil action to foreclose on their residence, by failing to submit an Answer responding to a Complaint brought by our lender client. They were shown to have both constructive and actual notice of this pending litigation. ALBPC moved for a default judgment.
The Parents brought a motion to vacate their default, claiming that their son, Luigi Rosabianca, was engaging in a money laundering scheme and that he duped them into believing that he would defend their interests in the foreclosure action as their counsel. They claimed that they never consented to their son mortgaging their home through the powers of attorney used by him at the closing and that they were never made aware that he would use them for that purpose. Luigi Rosabianca was convicted on a plea of guilty to Grand Larceny in 2016 and was sentenced to prison for an apparently unrelated fraud scheme whereby he stole approximately $4.5M.
ALBPC’s opposition to the Parents motion was based on a strict legal analysis of whether they exited a reasonable excuse for their default in addition to a meritorious defense. Despite the extremely sympathetic situation portrayed by the Parents, ALBPC correctly convinced the Court to deny the Parents’ motion to serve a late Answer and to grant a default judgment against them.
Plaintiffs appealed from the trial Court decision to the Appellate Division, First Department. ALBPC attorneys responded by pointing out once again that the Parents did not meet the evidentiary threshold of a reasonable excuse and meritorious defense. Sympathetic as it may have sounded, their story was not enough. The Appellate Division held that the Parents had sufficient notice and time to respond but had failed to do so and that their defense based on impropriety in the powers of attorney was belied by their express signed, notarized grant of full powers to their son. The Appellate Division held in a point by point analysis that the Parents had not met their burden, with one judge dissenting.
The Parents have applied for leave to appeal to the Court of Appeals and ALBPC has opposed. We await a decision.
ALBPC was represented by Colin Kaufman and an attorney at the trial court level and by Jeffrey Metz on the appeal.