Cicero v. Aspen Hills Ii Llc

• Decision Date: 16 June 2011
• Citation: 926 N.Y.S.2d 680,2011 N.Y. Slip Op. 05153,85 A.D.3d 1411
• Parties: Luigi CICERO, Appellant,v.ASPEN HILLS II, LLC, et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1411

926 N.Y.S.2d 680

2011 N.Y. Slip Op. 05153

Luigi CICERO, Appellant,

v.ASPEN HILLS II, LLC, et al., Respondents, et al., Defendants.

Supreme Court, Appellate Division, Third Department, New York.

June 16, 2011.

DeGraff, Foy & Kunz, L.L.P., Albany (Andrew B. Amerling of counsel), for appellant.Bosman & Associates, P.L.L.C., Albany (T. Padric Moore of counsel), for Aspen Hills II, LLC and others, respondents.Before: MERCURE, J.P., SPAIN, KAVANAGH, STEIN and GARRY, JJ.SPAIN, J.

Appeal from an order of the Supreme Court (Giardino, J.), entered July 26, 2010 in Fulton County, which, among other things, denied plaintiff's motion for a deficiency judgment against certain defendants.

In 2005, defendants Aspen Hills II, LLC, Robert A. Bosman, Judith E. Janco, Kevin C. Thompson and J. Whitney Thompson (hereinafter collectively referred to as defendants) borrowed $480,000 from plaintiff in order to develop property owned by Aspen Hills located in the Town of Johnstown, Fulton County. The loan was secured by a mortgage on Aspen Hills' property. In July 2008, after defendants failed to make required payments, plaintiff commenced a foreclosure action and, ultimately, was awarded a judgment of foreclosure and sale. The amount due on the mortgage was calculated at $258,727.02 by the appointed referee. At the ensuing October 2009 foreclosure sale, plaintiff, the sole bidder, purchased the property for $105,000. On March 25, 2010, plaintiff moved for confirmation of the referee's report and for a deficiency judgment against defendants in the amount of $120,695.91 plus interest.¹ Supreme Court granted the motion to confirm, but denied the motion for a deficiency judgment on the ground that the motion was not timely. Plaintiff appeals.

We affirm. Pursuant to the RPAPL, “the mortgagee in a mortgage foreclosure action [may] recover a deficiency judgment for the difference between the amount of indebtedness on the mortgage and either the auction price at the foreclosure sale or the fair market value of the property, whichever is higher” ( BTC Mtge. Invs. Trust 1997–SI v. Altamont Farms, 284 A.D.2d 849, 849–850, 727 N.Y.S.2d 513 [2001]; see RPAPL 1371[2] ). The statute requires, however, that a motion for a deficiency judgment be made “within ninety days after the date of the consummation of the sale by the delivery of the proper deed of conveyance to the purchaser” (RPAPL 1371 [2] ). The 90–day period is a provision in the nature of a statute of limitations, thus “[f]ailure by plaintiff to serve notice within the 90–day period is a complete bar to the entry of a deficiency judgment” ( Amsterdam Sav. Bank v. Amsterdam Pharm. Dev. Corp., 106 A.D.2d 797, 797, 484 N.Y.S.2d 217 [1984] ). Here, no dispute exists that the appointed referee delivered the deed to plaintiff on November 23, 2009, or that there was any deficiency in the deed itself. Plaintiff was required, therefore, to file the motion by February 21, 2010—90 days from delivery of the deed—and, accordingly, Supreme Court properly held that plaintiff's March 25, 2010 motion was untimely ( see Citicorp Mtge. v. Strong, 227 A.D.2d 818, 820–821, 642 N.Y.S.2d 423 [1996]; National Bank of Sussex County v. Betar, 207 A.D.2d 610, 612, 615 N.Y.S.2d 523 [1994] ).

Plaintiff asserts, instead, that the 90–day period did not begin to run until the expert's appraisals of the mortgaged properties were delivered to plaintiff on January 13, 2010. Specifically, because the deed could not be recorded in New York State until...