Icolari v Kelly

Supreme Court, Richmond County

Decided on March 31, 2026

Index No. 152215/2025

Ronald Castorina, Jr., J.

I. Statement Pursuant to CPLR 2219 [a]

The following e-filed documents listed on NYSCEF numbered 4-18 were read and considered on Plaintiff's motion (Motion Sequence No. 001) for, inter alia, a default judgment [*2]pursuant to CPLR § 3215, the appointment of a referee pursuant to CPLR § 4301 et seq. and RPAPL § 901, and related relief:

(1) Notice of Motion, dated December 29, 2025;

(2) Affirmation in Support of Meryl L. Wenig, Esq., dated December 16, 2025, together with exhibits annexed thereto;

(3) Affirmation of Plaintiff Ellen Icolari, dated December 10, 2025;

(4) Affidavits of Service;

(5) Affirmation in Opposition of Defendant Iris Kelly, filed March 4, 2026;

(6) Reply Affirmation of Meryl L. Wenig, Esq., dated March 9, 2026; and

(7) All prior pleadings and proceedings herein.

II. Findings of Fact

This action arises out of a dispute between co-owners of cooperative shares appurtenant to a single residential dwelling unit, namely Apartment XX located at Redacted Avenue, Staten Island, New York (the "Premises"), and seeks relief in the nature of partition, accounting, and judicial sale.

The record establishes that on or about August 9, 2007, Plaintiff, her then-husband Daniel Icolari (now deceased), and Defendant Iris Kelly jointly acquired 120 shares in the cooperative corporation associated with the Premises, together with a proprietary lease conferring exclusive occupancy rights. (NY St Cts Filing [NYSCEF] Doc No. 5 at ¶4). The acquisition of said shares and leasehold interest was financed through a mortgage obligation presently held by Wells Fargo Bank, N.A., as well as a home equity line of credit secured by the Premises. (see id at ¶6).

The parties' arrangement, as reflected in the record, contemplated a division of financial responsibility whereby Plaintiff and her husband would satisfy the mortgage and home equity obligations, while Defendant would be responsible for the ongoing maintenance charges payable to the cooperative corporation. (see id at ¶5; 7).

Following the death of Daniel Icolari in January 2018, Plaintiff succeeded to his ownership interest and thereby became a fifty percent (50%) shareholder of the cooperative shares appurtenant to the Premises. (see id at ¶8). Plaintiff thereafter satisfied the home equity line of credit in full in or about 2022 and has continued to make all mortgage payments associated with the Premises. (see id at ¶9).

Notwithstanding the foregoing, the record reflects that Defendant has failed to satisfy her agreed-upon obligation to pay monthly maintenance charges, resulting in arrears and additional financial burdens associated with the Premises. (see id at ¶10; 12). As of July 3, 2025, advances in the amount of $37,446.31 had been made in connection with the mortgage obligations, further evidencing the financial deterioration attendant to the parties' dispute. (see id at ¶11).

With respect to service, the affidavits submitted demonstrate that Defendant was duly served with the summons and complaint pursuant to CPLR § 308, with service completed on October 16, 2025 (NY St Cts Filing [NYSCEF] Doc No. 2), and that additional mailing was effectuated in accordance with CPLR § 3215 [g] (NY St Cts Filing [NYSCEF] Doc No. 3). Defendant failed to interpose a timely answer or otherwise appear in the action within the statutory period.

Thereafter, Defendant submitted a pro se affirmation in opposition, filed March 5, 2026, in which she opposes the relief sought and disputes Plaintiff's claims. (NY St Cts Filing [NYSCEF] Doc No. 14) The Court has carefully reviewed said submission and accords it the liberal construction afforded pro se litigants. However, the submission is informal, conclusory in nature, [*3]and devoid of evidentiary proof or legal argument sufficient to raise a triable issue or establish a cognizable defense.

Plaintiff, in reply, maintains that Defendant has failed to demonstrate either a reasonable excuse for her default or a meritorious defense, and that the motion should be granted in all respects. (NY St Cts Filing [NYSCEF] Doc No. 17).

III. Conclusions of Law

A party seeking a default judgment pursuant to CPLR § 3215 must establish proper service of process, proof of the facts constituting the claim, and proof of the default (see CPLR § 3215 [f]; Karalis v New Dimensions HR, Inc., 105 AD3d 707 [2d Dept 2013]). Upon such showing, the burden shifts to the defendant to demonstrate both a reasonable excuse for the default and a potentially meritorious defense (see Giovanelli v Rivera, 23 AD3d 616 [2d Dept 2005]; Landaverde v Wroth, 260 AD2d 448 [2d Dept 1999]).

The Court finds that Plaintiff has satisfied each of these statutory prerequisites. Proper service has been established in accordance with CPLR § 308, the facts constituting the claim have been set forth in detailed and verified form, and Defendant's failure to timely answer constitutes a default within the meaning of CPLR § 3215 [a].

The Court has considered Defendant's opposition. While courts are mindful of the need to afford pro se litigants a measure of leniency, such consideration does not relieve a party of the obligation to demonstrate both a reasonable excuse for default and a potentially meritorious defense. Defendant's submission fails in both respects. No explanation is offered for the failure to answer, and the submission does not set forth facts which, if proven, would constitute a viable defense. Conclusory assertions and generalized denials are insufficient to defeat a properly supported motion (see Woodson v Mendon Leasing Corp., 100 NY2d 62 [2003]; HSBC Bank USA, N.A. v Smart, 155 AD3d 843 [2d Dept 2017]).

Accordingly, Defendant has failed to meet the dual burden required to avoid the consequences of default, and Plaintiff is entitled to the entry of a default judgment.

Turning to the nature of the relief sought, the Court notes that although denominated as an action for partition pursuant to RPAPL § 901, the subject interest consists of cooperative shares and a proprietary lease. While such interests may be the subject of partition relief (see Graffeo v Paciello, 46 AD3d 613 [2d Dept 2007]), partition in kind is not feasible where the property consists of a single residential dwelling unit incapable of physical division. In such circumstances, the only practicable and equitable remedy is a judicial sale and distribution of proceeds (see RPAPL § 915; Ripp v Ripp, 38 AD2d 65 [2d Dept 1971]).

The Court therefore determines that the appointment of a referee is warranted to ascertain the respective rights and interests of the parties, conduct an accounting, and effectuate a sale of the cooperative shares and proprietary lease, subject to the supervision of this Court.

With respect to compensation, the Court adheres to CPLR § 8003 [a], which provides that a referee shall be entitled to a statutory fee and such additional compensation as the Court may fix. The Court will require that any additional compensation be fixed upon submission of an affirmation of services and paid from the proceeds of sale, thereby ensuring both fairness and judicial oversight, while avoiding any impropriety associated with contingent compensation.

The Court further finds it appropriate to appoint a licensed real estate broker pursuant to Part 36 of the Rules of the Chief Judge. In light of prevailing market conditions and the seasonal [*4]advantages attendant to the spring real estate market, the Court deems it prudent to authorize the immediate marketing of the Premises, while requiring prompt reporting to the Court and reserving approval of any ultimate sale.

IV. Conclusion and Decretal Paragraphs

Accordingly, it is

ORDERED, that Plaintiff's motion is granted in its entirety; and it is further

ORDERED, that the default of Defendant Iris Kelly is hereby fixed and determined; and it is further

ORDERED, that Plaintiff is awarded a default judgment against Defendant on the claims set forth in the Summons and Complaint; and it is further

ORDERED, that MICHAEL V. GERVASI, ESQ., of Scamardella, Gervasi & Kasegrande, P.C., located at 1010 Forest Avenue, Staten Island, NY 10310-2415; Tel: 718-442-0900; Email: mgervasi@statenlaw.net, is hereby appointed Referee pursuant to CPLR § 4301 et seq. (the "Referee"); and it is further

ORDERED, that the Referee shall ascertain and report the respective rights, shares, and interests of the parties in and to the cooperative shares and proprietary lease appurtenant to Apartment XX at Redacted Avenue, Staten Island, New York; and it is further

ORDERED, that the Referee shall take and state an account of all rents, profits, income, maintenance charges, mortgage payments, carrying charges, expenses, and any other financial obligations associated with the Premises, and shall compute all credits, debits, contributions, and adjustments as between the parties; and it is further

ORDERED, that the Referee is directed to sell the cooperative shares and proprietary lease appurtenant to the Premises, at public or private sale, upon such terms and conditions as the Referee deems just and proper, subject to the requirements of the cooperative corporation and further order of this Court; and it is further

ORDERED, that TRACI CANGIANO of Berkshire Hathaway Home Services Cangiano Estates 3888 Amboy Rd, Staten Island, NY 10308-2406; Tel: (917) 468-7991 Email: aplace2live3888@gmail.com, is hereby appointed as real estate broker pursuant to Part 36 of the Rules of the Chief Judge (the "Broker"), to market the Premises under the supervision of the Referee; and it is further

ORDERED, that the Broker's commission shall not exceed four percent (4%) of the gross sales price and shall be payable from the proceeds of sale, subject to approval of this Court; and it is further

ORDERED, that the Referee, in consultation with the Broker, shall, within thirty (30) days of entry of this Order, submit to the Court a written report setting forth the proposed listing price, marketing strategy, and proposed terms and conditions of sale; and it is further

ORDERED, that in order to avoid delay and to take advantage of prevailing market conditions, the Referee is authorized to proceed forthwith with the listing and marketing of the Premises upon retention of the Broker, without awaiting further order of the Court, provided that the aforesaid report is timely submitted; and it is further

ORDERED, that no contract of sale shall be executed and no transfer of the cooperative shares and proprietary lease shall be consummated without further order of this Court approving the terms of sale; and it is further

ORDERED, that all proceeds of sale shall be deposited by the Referee into an attorney trust account maintained in accordance with the Interest on Lawyer Account (IOLA) Fund of the State of New York, and shall be held therein subject to further order of this Court; and it is further

ORDERED, that the Referee shall not disburse any funds except upon further order of this Court; and it is further

ORDERED, that the Referee shall be entitled to a fee of $350.00 pursuant to CPLR § 8003 [a]; and it is further

ORDERED, that the Referee shall be entitled to such additional compensation as this Court may fix upon submission of an affirmation of services, which compensation shall be reasonable and commensurate with the services rendered; and it is further

ORDERED, that any such additional compensation, as approved by the Court, shall be paid from the proceeds of sale, if any, or otherwise as the Court directs; and it is further

ORDERED, that no distribution of proceeds shall be made to any party until the Referee's compensation has been fixed and satisfied, unless otherwise directed by this Court; and it is further

ORDERED, that the Referee is authorized to apply to the Court for interim compensation if warranted by the nature and extent of services rendered; and it is further

ORDERED, that all parties to this action, and all persons claiming by, through, or under them, including any occupants of the Premises, shall fully cooperate with the Referee and the Broker in the performance of their duties, including providing reasonable access to the Premises, complying with all reasonable requests, and executing any documents necessary to effectuate the sale, including compliance with any requirements of the cooperative corporation; and it is further

ORDERED, that in the event of non-cooperation, the Referee may apply to this Court for such further relief as may be just and proper; and it is further

ORDERED, that the Referee and the Broker shall comply with Part 36 of the Rules of the Chief Judge and shall not accept or retain any funds except in compliance therewith; and it is further

ORDERED, that Plaintiff shall forward all necessary papers to the Referee and the Broker within thirty (30) days of entry of this Order; and it is further

ORDERED, that Plaintiff shall serve a copy of this Decision, Order, and Order of Reference and Sale with notice of entry upon Defendant, the Referee, and the Broker within twenty (20) days of entry.

This constitutes the Decision, Order, and Order of Reference and Sale of the Court.

Dated: March 31, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT