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FILED: KINGS COUNTY CLERK 07/03/2024 10:22 AM INDEX NO. 518140/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024
SUPREMECOURTOF THESTATEOFNEWYORK
KINGS COUNTY
GDGPROPERTYLLC,
Plaintiff,
VERIFIED COMPLAINT
-against-
Index. No.
JAMESJ. FRANZETTI, ESQ., FRANZETTI LAWOFFICES, P.C.,
and ORESTEJOSEPHCARDILLO, Individually, and as Executor/Administrator
of the ESTATEOFROSELIVOTI,
Defendants.
Plaintiff, GDGProperty LLC, by and through its attorneys Tully Rinckey PLLCas and for
its complaint against Defendants James J. Franzetti, Esq., Franzetti Law Offices, P.C., and
Defendant Cardillo Joseph Cardillo, individually and as Executor/Administrator of the Estate of
Rose Livoti, alleges as follows:
PRELIMINARY STATEMENT
1. Plaintiff GDGProperty LLC brings this action for breach of contract, breach of fiduciary
duty, unjust enrichment, negligent misrepresentation and fraudulent inducement, to
recover damages arising from the Defendants conduct in connection with a real estate
transaction, including but not limited to seeking specific performance and for other relief
related to Defendants wrongful conduct as alleged hereinbelow.
JURISDICTION& VENUE
2. Jurisdiction is proper in accordance with the rules, including monetary thresholds and
venue is proper in Kings County pursuant to CPLR507 and 503(a) as the county where
the real estate is located, and a substantial part of the events occurred.
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PARTIES
3. Plaintiff, GDGProperty LLC ("Plaintiff" or "GDG Property") is a New York limited
liability company located in Kings County with a principal place of business at 1721 East
14th
Street, Brooklyn, New York 11229, and is owned by Gauge Lee.
4. At all times hereinafter mentioned, Defendant James J. Franzetti, Esq. ("James Franzetti,
Esq.") is a natural person residing and was at all times an attorney licensed to practice
and duly admitted to practice law in the State of NewYork, and an attorney at Franzetti
Law Offices, P.C.
5. Defendant, Franzetti Law Offices, P.C. ("Franzetti Law Offices"), with a current
principal place of business at 18609 Union Tpke., Ste. 2, Flushing, NY 11366-1742 was
formed and duly organized to conduct the business in NewYork of the practice of law
and each and every member of the law firm was at all times an attorney licensed to
practice and duly admitted to practice law in the State of NewYork.
6. Defendants James Franzetti, Esq. and the Franzetti Law Offices and their agents and/or
employees sometimes Law."
are collectively referred to herein as "Franzetti
7. Defendant Oreste Joseph Cardillo, is a natural person with a last known address at 1770
64th
Street, Brooklyn, NY 11204 ("Defendant Cardillo") in Kings County, NewYork,
and was at all times acting in his own capacity and as Executor/Administrator of the
Estate of Rose Livoti.
8. Defendants Franzetti Law acted as escrowee/agents ("Escrow Agent") in connection with
a Residential Contract of Sale ("Residential Sale Contract") between Plaintiff, GDG
Property and Rose Livoti as Seller (deceased), that is the subject of this Complaint.
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9. The Residential Sale Contract involved the purchase of property by Plaintiff GDG
Property from Rose Livoti with James J. Franzetti, Esq. and the Franzetti Law Offices
acting as Escrow Agent.
FACTUALALLEGATIONS& THETERMSOFTHE RESIDENTIAL
SALE CONTRACT
10. Plaintiff as Purchaser and Rose Livoti as Seller, entered into a Residential Sale Contract
for Plaintiff's purchase of real estate located at 1762 W. 13* Street Brooklyn, NY 11223
("Premises") dated January 10, 2016, and executed by both parties on or about January
10, 2016 ("Residential Sale Contract"). A copy of the Residential Sale Contract with
attachments is Exhibit A with the pertinent provisions summarized hereinbelow.
11. The total purchase price for the Premises was $1,050,000.00.
12. Defendants Franzetti Law agreed to serve as the Escrow Agent in connection with the
Residential Sale Contract.
13. Plaintiff delivered the sum of One Hundred & Five Thousand Dollars ($105,000.00), to
Franzetti Law as Escrow Agent for the Downpayment to purchase the Premises
("$105,000 Downpayment") with the remaining balance of $945,000 to be paid at
Closing. Exh. A, ¶ 2(a), (d).
14. The $105,000 Downpayment by check dated January 5, 2016, check # 1011, was made
attorney"
payable to the "Franzetti Law Office P.C, as which notes the payment as a
"deposit 1762
W13" ("Check"). A copy of the Check is annexed as Exhibit B (with any
bank account detail redacted).
15. The Residential Sale Contract, provided that the "Seller's attorney ("Escrowee") hold the
415"
Downpayment in escrow in a segregated bank account at Citibank, N..A., Br. #. at
"22 West 32nd Street, NewYork, NY 10001, until Closing or sooner
termination"
and
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required Escrowee, to "pay over or apply the Downpayment in accordance with the
terms"
therein. See Exh. A, ¶ 6(a).
16. The Residential Sale Contract provided that Escrowee hold the Downpayment for the
benefit of the parties and paid to the party entitled to the Downpayment. Exh. A, ¶ 6(a).
17. The Residential Sale Contract provided that at the Closing, the Downpayment would be
paid to the Seller. Exh. A, ¶ 6(a).
18. If the Closing did not occur and either party gave Notice demanding payment, Escrowee
was to promptly give Notice to the other party of the demand, and if no objection within
10 business days after Notice, Escrowee "was authorized and directed to make payment
demand."
of the Downpayment to the party making the Exh. A, ¶ 6(a).
19. If there was an objection, the Escrowee "shall continue to hold such amount until
parties"
otherwise directed by Notice from the to the Contract "or final nonappealable
court."
judgment, order or decree of the Exh. A, ¶ 6(a).
20. Escrowee also had "the right at any time to deposit the Downpayment with the clerk of a
located"
court in the county in which the Premises are and "shall give Notice of such
deposit to Seller and Purchaser. Exh. A, ¶ 6(a).
21. Franzetti Law as Escrowee acknowledged receipt of the Downpayment by Check subject
to collection and Escrowee's agreement to the provisions. Exh. A, ¶ 6(d).
22. Escrowee would be liable to either party for any act or omission on its part, for "actions
disregard"
or omissions taken or suffered by Escrowee in bad faith or in willful "or
Escrowee."
involving gross negligence on the part of the Exh. A, ¶ 6(b).
23. The Residential Sale Contract which provided that "Escrowee or any member of its firm
shall be permitted to act as counsel for Seller in any dispute as to the disbursement of the
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Downpayment or any other dispute between the parties whether or not Escrowee is in
Escrowee."
possession of the Downpayment and continues to act as Exh. A, ¶ 6(e).
24. The Residential Sale Contract also provided that the "party whose attorney is Escrowee
shall be liable for loss of the Downpayment". Exh. A, ¶ 6(e).
25. The Closing was to be held "on or about February 10, 2015[sic], or upon reasonable
notice [by telephone or otherwise] by Purchaser, at the office of Purchaser's Lending
upon."
Institution or a location to be mutually agreed Exh. A, ¶ 17.
26. The Residential Sale Contract provided that if it was canceled pursuant to its terms, other
than as result of Purchaser default, Seller shall promptly refund or cause the Escrowee to
refund the Downpayment to Purchaser and, reimburse Purchaser the net cost of
examination of title, including any appropriate additional charges related thereto, and if
actually paid or incurred, for updating the existing survey of the Premises or the new
survey and the obligations. Exh. A, ¶ 23(c).
27. If Seller defaults, the "Purchaser shall have such remedies as Purchaser shall be entitled
performance."
to at law or in equity, including, but not limited to, specific Exh. A, ¶
25(b).
28. At the Closing, on February 23, 2016 at Purchaser's counsel's office, Seller did not
appear and/or alternatively proceed with the Closing.
29. Thereafter, upon information and belief, the parties to the Residential Sale Contract
rescheduled the Closing for March 1, 2026, but were informed on March 1, 2016 that
Rose Livoti by Defendant James Franzetti Esq., who requested that Gauge Lee be
informed not to travel to the City for the Closing.
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30. Before Rose Livoti died, Plaintiff and Rose Livoti signed the Residential Sale Contract
and all documentation including the Rider to transfer the Premises and as the fiduciary of
her Estate, Defendant Cardillo was required to sell the Premises or refuse to proceed and
Defendants Franzetti Law was required to inform Plaintiff, to allow Plaintiff to demand
return of the Downpayment or compel the Estate to proceed by judicial intervention.
31. On or about March 1, 2016, Rose Livoti, the Seller, died leaving a Last Will & Testament
(Will") in which Defendant Cardillo was the sole beneficiary of her residuary estate.
32. On or about October 2, 2017, a Petition for Probate was filed with the Surrogate's Court,
County of Kings ("Petition") seeking the probate of Rose Livoti's Will and for letters
testamentary to Defendant Cardillo as nominated Executor under the Will.
33. The proponent of the Petition was Defendant Cardillo.
34. The Will dated December 18, 2015 did not mention nor did it specifically devise the
Premises at 1762 W. 13th
Street Brooklyn, NY 11223 that was the subject of the
Residential Contract of Sale between Rose Livoti and GDGProperty.
35. Defendant Cardillo and several individuals (10) were identified as statutory distributees
in the Petition as persons interested in the Estate of Rose Livoti.
36. The Defendants Franzetti Law as Escrowee breached its duty as an independent agent
and a fiduciary by acting on behalf and for the benefit of the Seller's fiduciary and
beneficiary Defendant Cardillo, after the Seller died.
37. The Defendants Franzetti Law as Escrowee on behalf of Defendant Cardillo, and possibly
on behalf of other statutory distributees, or third parties, negligently and/or falsely
represented repeatedly that the Closing would proceed and continually asked Plaintiff for
deferral of the sale on the basis of these material misrepresentations.
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38. Defendants Franzetti Law continually made misrepresentations, including on behalf of
Defendant Cardillo, about the status of the Estate as ongoing to stall the Closing up until
in or about June 21, 2022.
39. Plaintiff discovered much later that the Estate was actually disposed as of October 16,
2018, and even after the Estate was disposed and settled as of October 16, 2018,
Defendants Franzetti Law continued to make grossly negligent and/or false
representations up to June 2022 to delay the sale of the Premises, on the pretext that the
statutory distributees were settling their differences in the Estate.
40. Defendant James Franzetti, Esq. claimed for instance on July 11, 2017, that "Technically
there is no contract as the seller is dead. However, the executor wants your buyer to have
this house if/when he is appointed", followed by a warning that the Estate may end up in
the hands of the Public Administrator in which case the executor will have no authority
whatsoever.
41. On September 27, 2017, Defendant James Franzetti, Esq. also advised that the "executor
nominated within the will, Oreste Cardillo, would love to consummate this transaction
client,"
and I am holding the escrow of your but referred to many issues locating relatives
and that the probate proceeding had not begun.
42. Thereafter on or about June 7, 2018, Defendant James Franzetti, Esq. claimed the "deal
life"
has come to and requested Plaintiffs counsel to call him to discuss.
43. Upon information and belief, by at least August 2018, Defendant James Franzetti, Esq.
started negotiating on behalf of Defendant Cardillo.
44. Plaintiff was advised in early August 2018 that in order to buy the Premises that he would
need to increase the amount of money for the purchase price.
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45. By email dated August 6, 2018, Defendant James Franzetti, Esq. claimed that all
lawyers"
"relatives had and that "they have questioned the purchase price and asked for
appraisal"
an and wanted to increase it by $200,000 and he suggested "agreeing to
this"
something higher re: price to avoid and that he should have the Estate wrapped up
soon "as the family members have agreed to a split of the proceeds".
46. On May 9, 2019, although the Estate was already disposed in 2018, Defendant James
Franzetti, Esq. claimed of a "settlement agreement in process close to execution for
executor"
submission to the judge so that my client will be the and that "50% of the
estate will go to my client the other 50% will be divided among the statutory
distributees".
47. On October 21, 2019, although the Estate was already disposed in 2018, Defendant James
Franzetti, Esq. communicated that the "Estate settled as between all family members
50/50 with executor. Stipulation of settlement entered into and awaiting execution and
filing. Should close within 60 days".
48. Thereafter, nothing was heard despite several communications from Plaintiff until on or
about August 7, 2020 in which Plaintiff was advised by counsel that he was informed by
Defendants, they had a stipulation of settlement but 2 of the heirs were holding out and
that they were serving citations on them but will need at least three more months to get
letters testamentary.
49. Thereafter on or about December 6, 2021, Plaintiffs attorneys had followed up with
Defendants Franzetti Law and were informed that the estate litigation was pretty much
settled except for 1 heir and that they expected to close by end of winter or early spring.
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50. Thereafter after numerous communications from Plaintiff, Defendant James Franzetti,
Esq. sent an email dated June 20, 2022, that closing was still "pending resolution of the
respond"
estate in the estate attorney is cc'd to and the last email from Defendants
Franzetti Law on June 21, 2022 claimed the relatives were still fighting over the estate.
51. Thereafter nothing further was heard for many months. As a result, Plaintiff retained new
counsel who upon information and belief, tried to follow up and investigate but did not
hear anything further and could not find a filing for the Estate with the Surrogate's Court.
52. Upon information and belief, Defendants Franzetti Law, along with Defendant Cardillo,
concocted a scheme by which they would make the Plaintiff believe the sale of the
Premises would close following disposition of the Estate, so that Plaintiff would not take
any action to seek return of the Downpayment or compel the sale, and to give Defendants
time to put their scheme in motion to encumber, assign and/or transfer the Premises and
transfer the Downpayment.
53. Defendant Cardillo never had any intent to proceed with the Closing under the
Residential Sale Contract and Defendants Franzetti Law knew of Defendant Cardillo's
intentions and concealed it from Plaintiff notwithstanding that as Escrowee, Franzetti
Law owed a fiduciary duty to Plaintiff and acted as Plaintiff's agent.
54. Upon information and belief, during this period, Defendants Franzetti Law released and
delivered the funds representing the Downpayment without notice to Plaintiff and
delivered the Premises, to Defendant Cardillo or to other third parties.
55. After discovering in the year 2024, that the Estate actually closed in 2018, upon further
investigation, Plaintiff also discovered from the County records a recorded satisfaction
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and full discharge of mortgage on the Premises that Rose took out during her life in the
amount of about $50,000.00 on or about February 4, 2021.
56. Plaintiff eventually learned there was an ongoing business and confidential relationship
between all Defendants after a search of the County records showed that Defendants
Franzetti Law were involved in and recorded a sale by Defendant Cardillo of a
Condominium Unit in October 2015 and involved in a separate real estate transaction for
a different Unit recorded in September 2014.
57. Upon information and belief, by acting on behalf of Defendant Cardillo, Defendants
Franzetti Law benefited from the transactions complained of herein, if not directly than
indirectly, by, being paid for their services, maintaining good relations and goodwill with
Defendant Cardillo and/or by maintaining the expectation of unrealized future business
dealings with him.
58. Defendants Franzetti Law failed to keep an accounting of the funds held in Escrow.
59. Upon information and belief, Defendant Cardillo absconded with and holds the Premises
out as his own.
60. As Escrowee under the Residential Sale Contract, Franzetti Law acted as an agent on
behalf of both parties, which would include Plaintiff, and was required to disclose
truthful information when acting in a fiduciary capacity.
61. Upon information and belief, the Escrowee had a conflict of interest because Defendant
Cardillo, the nominated Executor of the Estate and the Escrowee had a past relationship
in which the Escrowee performed work related to real estate transactions on behalf of
Defendant Cardillo.
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62. Defendant Cardillo as the nominated Executor and/or administrator of the Estate stepped
into the shoes of decedent Rose Livoti, as fiduciary and was required in the same capacity
to sell the Premises under the Residential Sale Contract which Rose Livoti entered before
she died.
63. The wrongs alleged herein are continuing wrongs, including, but not limited to, the fact
that Defendants made false and material misrepresentations to Plaintiff for a lengthy
period of time that the Closing for the sale of the Premises would occur after the Estate
was settled, and took possession of the Downpayment, failed to account for it, and
transferred the Premises to Defendant Cardillo or other third party(ies).
Defendants'
64. liability is joint and several liability.
CAUSESOFACTION
FIRST CAUSEOFACTIONFORBREACH & FORSPECIFIC
OFCONTRACT
PERFORMANCE
AGAINST ALL DEFENDANTS
65. Plaintiff repeats, reiterates and realleges each of the foregoing allegations as if set forth in
full herein.
66. Franzetti Law at all times acted as Escrow Agents.
67. Defendant Cardillo at all times after the passing of Rose Livoti acted as fiduciary of her
Estate.
68. Defendant Cardillo was the sole beneficiary of the Will of Rose Livoti.
69. The Residential Sale Contract and all documents pertaining to same, including the Rider,
were executed by both parties to the contract and the Closing was pending.
70. After the Seller Rose Livoti died, the Plaintiff as Purchasers remained in steady contact
with Defendants in order to effectuate the purchase of the Premises, and informed the
Defendants as Escrow Agent, that they wanted to proceed with the sale.
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71. Defendants, as the Escrow Agents, conveyed this information to Defendant Cardillo as
Executor/Administrator and beneficiary of the Estate.
72. From that date on, all Defendants engaged in a scheme to mislead the Plaintiff and make
it virtually impossible for Plaintiff to close the sale of the Premises by making repeated
promises and excuses for delaying the closing of the sale.
73. All Defendants deliberately misled Plaintiff into agreeing to continually extend the time
of the Closing so that Defendants could later claim that the Plaintiff as Purchaser, failed
to timely close on the sale of the subject Premises and as a pretext to retain the Premises
to transfer it to Defendant Cardillo and/or other distributees as part of the Estate and to
retain and/or transfer the Downpayment.
74. At all times, Plaintiff believed that Defendants Franzetti Law were representing,
Plaintiff'
preserving and protecting Plaintiff's interests, and the reason behind agreement
to the Defendants repeated requests for extensions of time for the Closing to proceed on
behalf of Defendant Cardillo.
75. As a result of Defendants Franzetti Law's wrongful conduct, by breaching their duties as
Escrow Agent and Defendant Cardillo as fiduciary of the Estate, Plaintiff was denied the
ability to purchase the Premises and the Downpayment.
76. But for the actions by Defendants, Plaintiff would have filed an action to compel the sale
and/or recovered the Downpayment if Plaintiff decided not to proceed.
77. As a result, Plaintiff incurred loss of the costs and expenses associated with the appraisal
and other expenses as part of their obligations, including legal fees, and was unable to
fund another purchase of comparable property.
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78. To purchase comparable property in late 2024 costs more to perform due diligence, and
the price back in 2016 is not comparable.
79. Plaintiff incurred damages from loss of use and benefit of owning the Premises, and loss
of the Downpayment.
80. Defendants Franzetti Law as Escrow Agent who also represented the Seller, Rose Livoti,
are liable to Plaintiff . Exh. A, ¶ 6(b), 6(f).
81. The actions and omissions by Defendants, and their agents and employees, are the
proximate
Preview
FILED: KINGS COUNTY CLERK 07/03/2024 10:22 AM INDEX NO. 518140/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 SUPREMECOURTOF THESTATEOFNEWYORK KINGS COUNTY GDGPROPERTYLLC, Plaintiff, VERIFIED COMPLAINT -against- Index. No. JAMESJ. FRANZETTI, ESQ., FRANZETTI LAWOFFICES, P.C., and ORESTEJOSEPHCARDILLO, Individually, and as Executor/Administrator of the ESTATEOFROSELIVOTI, Defendants. Plaintiff, GDGProperty LLC, by and through its attorneys Tully Rinckey PLLCas and for its complaint against Defendants James J. Franzetti, Esq., Franzetti Law Offices, P.C., and Defendant Cardillo Joseph Cardillo, individually and as Executor/Administrator of the Estate of Rose Livoti, alleges as follows: PRELIMINARY STATEMENT 1. Plaintiff GDGProperty LLC brings this action for breach of contract, breach of fiduciary duty, unjust enrichment, negligent misrepresentation and fraudulent inducement, to recover damages arising from the Defendants conduct in connection with a real estate transaction, including but not limited to seeking specific performance and for other relief related to Defendants wrongful conduct as alleged hereinbelow. JURISDICTION& VENUE 2. Jurisdiction is proper in accordance with the rules, including monetary thresholds and venue is proper in Kings County pursuant to CPLR507 and 503(a) as the county where the real estate is located, and a substantial part of the events occurred. 1 of 27 FILED: KINGS COUNTY CLERK 07/03/2024 10:22 AM INDEX NO. 518140/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 PARTIES 3. Plaintiff, GDGProperty LLC ("Plaintiff" or "GDG Property") is a New York limited liability company located in Kings County with a principal place of business at 1721 East 14th Street, Brooklyn, New York 11229, and is owned by Gauge Lee. 4. At all times hereinafter mentioned, Defendant James J. Franzetti, Esq. ("James Franzetti, Esq.") is a natural person residing and was at all times an attorney licensed to practice and duly admitted to practice law in the State of NewYork, and an attorney at Franzetti Law Offices, P.C. 5. Defendant, Franzetti Law Offices, P.C. ("Franzetti Law Offices"), with a current principal place of business at 18609 Union Tpke., Ste. 2, Flushing, NY 11366-1742 was formed and duly organized to conduct the business in NewYork of the practice of law and each and every member of the law firm was at all times an attorney licensed to practice and duly admitted to practice law in the State of NewYork. 6. Defendants James Franzetti, Esq. and the Franzetti Law Offices and their agents and/or employees sometimes Law." are collectively referred to herein as "Franzetti 7. Defendant Oreste Joseph Cardillo, is a natural person with a last known address at 1770 64th Street, Brooklyn, NY 11204 ("Defendant Cardillo") in Kings County, NewYork, and was at all times acting in his own capacity and as Executor/Administrator of the Estate of Rose Livoti. 8. Defendants Franzetti Law acted as escrowee/agents ("Escrow Agent") in connection with a Residential Contract of Sale ("Residential Sale Contract") between Plaintiff, GDG Property and Rose Livoti as Seller (deceased), that is the subject of this Complaint. 2 2 of 27 FILED: KINGS COUNTY CLERK 07/03/2024 10:22 AM INDEX NO. 518140/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 9. The Residential Sale Contract involved the purchase of property by Plaintiff GDG Property from Rose Livoti with James J. Franzetti, Esq. and the Franzetti Law Offices acting as Escrow Agent. FACTUALALLEGATIONS& THETERMSOFTHE RESIDENTIAL SALE CONTRACT 10. Plaintiff as Purchaser and Rose Livoti as Seller, entered into a Residential Sale Contract for Plaintiff's purchase of real estate located at 1762 W. 13* Street Brooklyn, NY 11223 ("Premises") dated January 10, 2016, and executed by both parties on or about January 10, 2016 ("Residential Sale Contract"). A copy of the Residential Sale Contract with attachments is Exhibit A with the pertinent provisions summarized hereinbelow. 11. The total purchase price for the Premises was $1,050,000.00. 12. Defendants Franzetti Law agreed to serve as the Escrow Agent in connection with the Residential Sale Contract. 13. Plaintiff delivered the sum of One Hundred & Five Thousand Dollars ($105,000.00), to Franzetti Law as Escrow Agent for the Downpayment to purchase the Premises ("$105,000 Downpayment") with the remaining balance of $945,000 to be paid at Closing. Exh. A, ¶ 2(a), (d). 14. The $105,000 Downpayment by check dated January 5, 2016, check # 1011, was made attorney" payable to the "Franzetti Law Office P.C, as which notes the payment as a "deposit 1762 W13" ("Check"). A copy of the Check is annexed as Exhibit B (with any bank account detail redacted). 15. The Residential Sale Contract, provided that the "Seller's attorney ("Escrowee") hold the 415" Downpayment in escrow in a segregated bank account at Citibank, N..A., Br. #. at "22 West 32nd Street, NewYork, NY 10001, until Closing or sooner termination" and 3 3 of 27 FILED: KINGS COUNTY CLERK 07/03/2024 10:22 AM INDEX NO. 518140/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 required Escrowee, to "pay over or apply the Downpayment in accordance with the terms" therein. See Exh. A, ¶ 6(a). 16. The Residential Sale Contract provided that Escrowee hold the Downpayment for the benefit of the parties and paid to the party entitled to the Downpayment. Exh. A, ¶ 6(a). 17. The Residential Sale Contract provided that at the Closing, the Downpayment would be paid to the Seller. Exh. A, ¶ 6(a). 18. If the Closing did not occur and either party gave Notice demanding payment, Escrowee was to promptly give Notice to the other party of the demand, and if no objection within 10 business days after Notice, Escrowee "was authorized and directed to make payment demand." of the Downpayment to the party making the Exh. A, ¶ 6(a). 19. If there was an objection, the Escrowee "shall continue to hold such amount until parties" otherwise directed by Notice from the to the Contract "or final nonappealable court." judgment, order or decree of the Exh. A, ¶ 6(a). 20. Escrowee also had "the right at any time to deposit the Downpayment with the clerk of a located" court in the county in which the Premises are and "shall give Notice of such deposit to Seller and Purchaser. Exh. A, ¶ 6(a). 21. Franzetti Law as Escrowee acknowledged receipt of the Downpayment by Check subject to collection and Escrowee's agreement to the provisions. Exh. A, ¶ 6(d). 22. Escrowee would be liable to either party for any act or omission on its part, for "actions disregard" or omissions taken or suffered by Escrowee in bad faith or in willful "or Escrowee." involving gross negligence on the part of the Exh. A, ¶ 6(b). 23. The Residential Sale Contract which provided that "Escrowee or any member of its firm shall be permitted to act as counsel for Seller in any dispute as to the disbursement of the 4 4 of 27 FILED: KINGS COUNTY CLERK 07/03/2024 10:22 AM INDEX NO. 518140/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 Downpayment or any other dispute between the parties whether or not Escrowee is in Escrowee." possession of the Downpayment and continues to act as Exh. A, ¶ 6(e). 24. The Residential Sale Contract also provided that the "party whose attorney is Escrowee shall be liable for loss of the Downpayment". Exh. A, ¶ 6(e). 25. The Closing was to be held "on or about February 10, 2015[sic], or upon reasonable notice [by telephone or otherwise] by Purchaser, at the office of Purchaser's Lending upon." Institution or a location to be mutually agreed Exh. A, ¶ 17. 26. The Residential Sale Contract provided that if it was canceled pursuant to its terms, other than as result of Purchaser default, Seller shall promptly refund or cause the Escrowee to refund the Downpayment to Purchaser and, reimburse Purchaser the net cost of examination of title, including any appropriate additional charges related thereto, and if actually paid or incurred, for updating the existing survey of the Premises or the new survey and the obligations. Exh. A, ¶ 23(c). 27. If Seller defaults, the "Purchaser shall have such remedies as Purchaser shall be entitled performance." to at law or in equity, including, but not limited to, specific Exh. A, ¶ 25(b). 28. At the Closing, on February 23, 2016 at Purchaser's counsel's office, Seller did not appear and/or alternatively proceed with the Closing. 29. Thereafter, upon information and belief, the parties to the Residential Sale Contract rescheduled the Closing for March 1, 2026, but were informed on March 1, 2016 that Rose Livoti by Defendant James Franzetti Esq., who requested that Gauge Lee be informed not to travel to the City for the Closing. 5 5 of 27 FILED: KINGS COUNTY CLERK 07/03/2024 10:22 AM INDEX NO. 518140/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 30. Before Rose Livoti died, Plaintiff and Rose Livoti signed the Residential Sale Contract and all documentation including the Rider to transfer the Premises and as the fiduciary of her Estate, Defendant Cardillo was required to sell the Premises or refuse to proceed and Defendants Franzetti Law was required to inform Plaintiff, to allow Plaintiff to demand return of the Downpayment or compel the Estate to proceed by judicial intervention. 31. On or about March 1, 2016, Rose Livoti, the Seller, died leaving a Last Will & Testament (Will") in which Defendant Cardillo was the sole beneficiary of her residuary estate. 32. On or about October 2, 2017, a Petition for Probate was filed with the Surrogate's Court, County of Kings ("Petition") seeking the probate of Rose Livoti's Will and for letters testamentary to Defendant Cardillo as nominated Executor under the Will. 33. The proponent of the Petition was Defendant Cardillo. 34. The Will dated December 18, 2015 did not mention nor did it specifically devise the Premises at 1762 W. 13th Street Brooklyn, NY 11223 that was the subject of the Residential Contract of Sale between Rose Livoti and GDGProperty. 35. Defendant Cardillo and several individuals (10) were identified as statutory distributees in the Petition as persons interested in the Estate of Rose Livoti. 36. The Defendants Franzetti Law as Escrowee breached its duty as an independent agent and a fiduciary by acting on behalf and for the benefit of the Seller's fiduciary and beneficiary Defendant Cardillo, after the Seller died. 37. The Defendants Franzetti Law as Escrowee on behalf of Defendant Cardillo, and possibly on behalf of other statutory distributees, or third parties, negligently and/or falsely represented repeatedly that the Closing would proceed and continually asked Plaintiff for deferral of the sale on the basis of these material misrepresentations. 6 6 of 27 FILED: KINGS COUNTY CLERK 07/03/2024 10:22 AM INDEX NO. 518140/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 38. Defendants Franzetti Law continually made misrepresentations, including on behalf of Defendant Cardillo, about the status of the Estate as ongoing to stall the Closing up until in or about June 21, 2022. 39. Plaintiff discovered much later that the Estate was actually disposed as of October 16, 2018, and even after the Estate was disposed and settled as of October 16, 2018, Defendants Franzetti Law continued to make grossly negligent and/or false representations up to June 2022 to delay the sale of the Premises, on the pretext that the statutory distributees were settling their differences in the Estate. 40. Defendant James Franzetti, Esq. claimed for instance on July 11, 2017, that "Technically there is no contract as the seller is dead. However, the executor wants your buyer to have this house if/when he is appointed", followed by a warning that the Estate may end up in the hands of the Public Administrator in which case the executor will have no authority whatsoever. 41. On September 27, 2017, Defendant James Franzetti, Esq. also advised that the "executor nominated within the will, Oreste Cardillo, would love to consummate this transaction client," and I am holding the escrow of your but referred to many issues locating relatives and that the probate proceeding had not begun. 42. Thereafter on or about June 7, 2018, Defendant James Franzetti, Esq. claimed the "deal life" has come to and requested Plaintiffs counsel to call him to discuss. 43. Upon information and belief, by at least August 2018, Defendant James Franzetti, Esq. started negotiating on behalf of Defendant Cardillo. 44. Plaintiff was advised in early August 2018 that in order to buy the Premises that he would need to increase the amount of money for the purchase price. 7 7 of 27 FILED: KINGS COUNTY CLERK 07/03/2024 10:22 AM INDEX NO. 518140/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 45. By email dated August 6, 2018, Defendant James Franzetti, Esq. claimed that all lawyers" "relatives had and that "they have questioned the purchase price and asked for appraisal" an and wanted to increase it by $200,000 and he suggested "agreeing to this" something higher re: price to avoid and that he should have the Estate wrapped up soon "as the family members have agreed to a split of the proceeds". 46. On May 9, 2019, although the Estate was already disposed in 2018, Defendant James Franzetti, Esq. claimed of a "settlement agreement in process close to execution for executor" submission to the judge so that my client will be the and that "50% of the estate will go to my client the other 50% will be divided among the statutory distributees". 47. On October 21, 2019, although the Estate was already disposed in 2018, Defendant James Franzetti, Esq. communicated that the "Estate settled as between all family members 50/50 with executor. Stipulation of settlement entered into and awaiting execution and filing. Should close within 60 days". 48. Thereafter, nothing was heard despite several communications from Plaintiff until on or about August 7, 2020 in which Plaintiff was advised by counsel that he was informed by Defendants, they had a stipulation of settlement but 2 of the heirs were holding out and that they were serving citations on them but will need at least three more months to get letters testamentary. 49. Thereafter on or about December 6, 2021, Plaintiffs attorneys had followed up with Defendants Franzetti Law and were informed that the estate litigation was pretty much settled except for 1 heir and that they expected to close by end of winter or early spring. 8 8 of 27 FILED: KINGS COUNTY CLERK 07/03/2024 10:22 AM INDEX NO. 518140/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 50. Thereafter after numerous communications from Plaintiff, Defendant James Franzetti, Esq. sent an email dated June 20, 2022, that closing was still "pending resolution of the respond" estate in the estate attorney is cc'd to and the last email from Defendants Franzetti Law on June 21, 2022 claimed the relatives were still fighting over the estate. 51. Thereafter nothing further was heard for many months. As a result, Plaintiff retained new counsel who upon information and belief, tried to follow up and investigate but did not hear anything further and could not find a filing for the Estate with the Surrogate's Court. 52. Upon information and belief, Defendants Franzetti Law, along with Defendant Cardillo, concocted a scheme by which they would make the Plaintiff believe the sale of the Premises would close following disposition of the Estate, so that Plaintiff would not take any action to seek return of the Downpayment or compel the sale, and to give Defendants time to put their scheme in motion to encumber, assign and/or transfer the Premises and transfer the Downpayment. 53. Defendant Cardillo never had any intent to proceed with the Closing under the Residential Sale Contract and Defendants Franzetti Law knew of Defendant Cardillo's intentions and concealed it from Plaintiff notwithstanding that as Escrowee, Franzetti Law owed a fiduciary duty to Plaintiff and acted as Plaintiff's agent. 54. Upon information and belief, during this period, Defendants Franzetti Law released and delivered the funds representing the Downpayment without notice to Plaintiff and delivered the Premises, to Defendant Cardillo or to other third parties. 55. After discovering in the year 2024, that the Estate actually closed in 2018, upon further investigation, Plaintiff also discovered from the County records a recorded satisfaction 9 9 of 27 FILED: KINGS COUNTY CLERK 07/03/2024 10:22 AM INDEX NO. 518140/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 and full discharge of mortgage on the Premises that Rose took out during her life in the amount of about $50,000.00 on or about February 4, 2021. 56. Plaintiff eventually learned there was an ongoing business and confidential relationship between all Defendants after a search of the County records showed that Defendants Franzetti Law were involved in and recorded a sale by Defendant Cardillo of a Condominium Unit in October 2015 and involved in a separate real estate transaction for a different Unit recorded in September 2014. 57. Upon information and belief, by acting on behalf of Defendant Cardillo, Defendants Franzetti Law benefited from the transactions complained of herein, if not directly than indirectly, by, being paid for their services, maintaining good relations and goodwill with Defendant Cardillo and/or by maintaining the expectation of unrealized future business dealings with him. 58. Defendants Franzetti Law failed to keep an accounting of the funds held in Escrow. 59. Upon information and belief, Defendant Cardillo absconded with and holds the Premises out as his own. 60. As Escrowee under the Residential Sale Contract, Franzetti Law acted as an agent on behalf of both parties, which would include Plaintiff, and was required to disclose truthful information when acting in a fiduciary capacity. 61. Upon information and belief, the Escrowee had a conflict of interest because Defendant Cardillo, the nominated Executor of the Estate and the Escrowee had a past relationship in which the Escrowee performed work related to real estate transactions on behalf of Defendant Cardillo. 10 10 of 27 FILED: KINGS COUNTY CLERK 07/03/2024 10:22 AM INDEX NO. 518140/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 62. Defendant Cardillo as the nominated Executor and/or administrator of the Estate stepped into the shoes of decedent Rose Livoti, as fiduciary and was required in the same capacity to sell the Premises under the Residential Sale Contract which Rose Livoti entered before she died. 63. The wrongs alleged herein are continuing wrongs, including, but not limited to, the fact that Defendants made false and material misrepresentations to Plaintiff for a lengthy period of time that the Closing for the sale of the Premises would occur after the Estate was settled, and took possession of the Downpayment, failed to account for it, and transferred the Premises to Defendant Cardillo or other third party(ies). Defendants' 64. liability is joint and several liability. CAUSESOFACTION FIRST CAUSEOFACTIONFORBREACH & FORSPECIFIC OFCONTRACT PERFORMANCE AGAINST ALL DEFENDANTS 65. Plaintiff repeats, reiterates and realleges each of the foregoing allegations as if set forth in full herein. 66. Franzetti Law at all times acted as Escrow Agents. 67. Defendant Cardillo at all times after the passing of Rose Livoti acted as fiduciary of her Estate. 68. Defendant Cardillo was the sole beneficiary of the Will of Rose Livoti. 69. The Residential Sale Contract and all documents pertaining to same, including the Rider, were executed by both parties to the contract and the Closing was pending. 70. After the Seller Rose Livoti died, the Plaintiff as Purchasers remained in steady contact with Defendants in order to effectuate the purchase of the Premises, and informed the Defendants as Escrow Agent, that they wanted to proceed with the sale. 11 11 of 27 FILED: KINGS COUNTY CLERK 07/03/2024 10:22 AM INDEX NO. 518140/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 71. Defendants, as the Escrow Agents, conveyed this information to Defendant Cardillo as Executor/Administrator and beneficiary of the Estate. 72. From that date on, all Defendants engaged in a scheme to mislead the Plaintiff and make it virtually impossible for Plaintiff to close the sale of the Premises by making repeated promises and excuses for delaying the closing of the sale. 73. All Defendants deliberately misled Plaintiff into agreeing to continually extend the time of the Closing so that Defendants could later claim that the Plaintiff as Purchaser, failed to timely close on the sale of the subject Premises and as a pretext to retain the Premises to transfer it to Defendant Cardillo and/or other distributees as part of the Estate and to retain and/or transfer the Downpayment. 74. At all times, Plaintiff believed that Defendants Franzetti Law were representing, Plaintiff' preserving and protecting Plaintiff's interests, and the reason behind agreement to the Defendants repeated requests for extensions of time for the Closing to proceed on behalf of Defendant Cardillo. 75. As a result of Defendants Franzetti Law's wrongful conduct, by breaching their duties as Escrow Agent and Defendant Cardillo as fiduciary of the Estate, Plaintiff was denied the ability to purchase the Premises and the Downpayment. 76. But for the actions by Defendants, Plaintiff would have filed an action to compel the sale and/or recovered the Downpayment if Plaintiff decided not to proceed. 77. As a result, Plaintiff incurred loss of the costs and expenses associated with the appraisal and other expenses as part of their obligations, including legal fees, and was unable to fund another purchase of comparable property. 12 12 of 27 FILED: KINGS COUNTY CLERK 07/03/2024 10:22 AM INDEX NO. 518140/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/03/2024 78. To purchase comparable property in late 2024 costs more to perform due diligence, and the price back in 2016 is not comparable. 79. Plaintiff incurred damages from loss of use and benefit of owning the Premises, and loss of the Downpayment. 80. Defendants Franzetti Law as Escrow Agent who also represented the Seller, Rose Livoti, are liable to Plaintiff . Exh. A, ¶ 6(b), 6(f). 81. The actions and omissions by Defendants, and their agents and employees, are the proximate