Broward Nat. Bank of Fort Lauderdale v. Starzec

• Decision Date: 21 May 1968
• Parties: BROWARD NATIONAL BANK OF FORT LAUDERDALE, as Ancillary Executor of the Estate of Mabel M. Witzleben, Deceased, Respondent, v. Matthew S. STARZEC et al., Appellants et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 112

290 N.Y.S.2d 112

30 A.D.2d 603

BROWARD NATIONAL BANK OF FORT LAUDERDALE, as Ancillary Executor of the Estate of Mabel M. Witzleben Deceased, Respondent, v. Matthew S. STARZEC et al., Appellants et al., Defendants.

Supreme Court, Appellate Division, Third Department.

May 21, 1968.

Miller & Mannix, John C. Mannix, Glens Falls, for respondent.

William W. Millington, Lake George, for appellants.

Before HERLIHY, J.P., and REYNOLDS, AULISI, STALEY and GABRIELLI, JJ.

REYNOLDS, Justice.

Appeal from an order of the Supreme Court, Warren County, which granted respondent's motion for a deficiency judgment of $52,791.76 against the appellants in a mortgage foreclosure action.

On November 30, 1966, respondent commenced an action to foreclose a mortgage dated the 18th day of January, 1962, in the principal sum of $75,000 held by it upon a certain parcel of property known as the Northwoods Dude Ranch located on Route 9--N between Lake George and Lake Luzerne in the Town of Lake Luzerne. This proceeding resulted in a judgment entitling respondent to $75,875.85. On September 8, 1967 a public sale of the premises was conducted and the property was sold to respondent, the highest bidder, for $25,000. Thereafter respondent made a motion to confirm the Referee's report of sale and for leave to enter a deficiency judgment in the amount of $52,791.76 against appellants Matthew and Carrie Starzec, and Avery and Laura Bullock. In support of said motion, respondent submitted the affidavit of Desmond P. Sullivan, an associate in the firm of Miller and Mannix, the attorneys for plaintiff in the foreclosure action. In that affidavit, Mr. Sullivan stated that the high bid of $25,000, received at the public sale, represented the reasonable market value of the premises. Submitted in opposition to said motion were an affidavit of appellant Carrie Starzec, who valued the premises at $90,000, and one from Richard Sehlmeyer, a local real estate broker, who valued the same at $87,000. Special Term, on the basis of these affidavits, ordered that judgment in the sum of $52,791.76 be entered against the defendants and the instant appeal from that order followed.

Appellants urged that the affidavit submitted by respondent was insufficient to establish the value of the premises as required by section 1371 of the Real Property Actions and Proceedings Law on the grounds that Sullivan's affidavit did not adequately indicate that he was qualified to render an opinion as to value and that, in any event, the mere submission of an unsupported affidavit from an attorney representing one of the parties is not sufficient to satisfy the statute. Additionally, it is argued that in view of the discrepancy between the affidavits a triable issue as...