Decided on April 16, 2010
Supreme Court, Suffolk County

Emigrant Mortgage Co. Inc., Plaintiff

against

Anthony J. Corcione and Jane Corcione, Defendants.

2009-28917

Joshua Deutsch, Esq.
Deutsch & Schneider L.L.P.
Attorneys for Plaintiff
79-37 Myrtle Avenue
Glendale, New York 11385
Sean C. Serpe, Esq.

Serpe & Associates, P.C.
Attorneys for Defendants
450 Seventh Avenue
New York, New York 10123

Jeffrey Arlen Spinner, J.

Upon reviewing the totality of the circumstances herein, this Court is driven to the inescapable conclusion that Plaintiff has, by way of calculation and pre-meditation (as evidenced by the terms of its carefully crafted Agreement), created a scenario whereby it is a virtual certainty that Defendants will ultimately be irreparably damaged and further, by way of the Agreement, has gone to extraordinary lengths in an attempt to insulate itself from liability while [*6]at the same time ensuring that it will not sustain any pecuniary loss and that all cost will be borne by Defendants. In short, the conduct of Plaintiff in this matter has been over-reaching, shocking, willful and unconscionable, is wholly devoid of even so much as a scintilla of good faith and cannot be countenanced by this Court.

In those rare instances where the conduct of a party is unconscionable, shocking or egregious, a Court of equity is vested with the power to award exemplary damages. Exemplary damages may lie in a situation where it is necessary to both effectuate punishment as well as to deter the offending party from engaging in such reprehensible conduct in the future. Such an award may also be made to address, as so ably enunciated by our Court of Appeals in Home Insurance Co. v. American Home Products Corp. 75 NY2d 196, 550 NE2d 930, 551 NYS2d 481 (1989) “…gross misbehavior for the good of the public…on the ground of public policy”. Indeed, exemplary damages are intended to have a deterrent effect upon conduct which is unconscionable, egregious, deliberate and inequitable, I.H.P. Corp. v. 210 Central Park South Corp. 12 NY2d 329, 189 NE2d 812, 239 NYS2d 547 (1963).

Under the unique circumstances of this matter, the Court determines that Plaintiff be forever barred and prohibited from collecting any of the claimed interest accrued on the loan between the date of default and March 1, 2010, that Plaintiff be barred and prohibited from recovering any claimed legal fees and expenses as well as any and all claimed advances to date and further that Plaintiff’s debt be determined at this time to be no more than the principal balance of $ 301,721.58. The Court also determines that the imposition of exemplary damages upon Plaintiff is equitable, necessary and appropriate, both in light of Plaintiff’s shockingly inequitable, bad faith conduct as well as to serve as an appropriate deterrent to any future outrageous, improper and wrongful activities.

The Court hereby fixes the amount of exemplary damages in the sum of $ 100,000.00, recoverable by Defendants from Plaintiff.

For all of the foregoing reasons, it is, therefore [*7]

ORDERED, ADJUDGED and DECREED that Plaintiff’s application for summary judgment and appointment of a Referee is denied; and it is further

ORDERED , ADJUDGED and DECREED that Plaintiff, its successors, assigns and others are forever barred, foreclosed and prohibited from demanding, collecting or attempting to collect, directly or indirectly, any and all of the sums in this proceeding delineated as interest, default interest, attorney’s fees, legal fees, costs, disbursements, advances or any sums other than the principal balance, that may have accrued from May 1, 2008 up to the date of this Order; and it is further

ORDERED, ADJUDGED and DECREED that Defendants ANTHONY J. CORCIONE and JANE CORCIONE residing at 66 Circle Drive, East Northport, New York 11731 recover judgment against Plaintiff EMIGRANT MORTGAGE COMPANY INC. with an office located at 5 East 42nd Street, New York, New York 10017 in the principal sum of $ 100,000.00 representing exemplary damages, and that Defendants have execution therefor. The Clerk of Suffolk County is directed to enter judgment accordingly.

This shall constitute the Decision, Judgment and Order of the Court.

Dated: April 16, 2010

Riverhead, New York

ENTER:

______________________________________

JEFFREY ARLEN SPINNER, J.S.C.

Read the entire order below…

4closureFraud

Emigrant Mortgage Co. Inc. Plaintiff Against Anthony J. Corcione and Jane Corcione Defendants