Citibank, N.A. v. Demadet
| Decision Date | 14 October 1997 |
| Parties | CITIBANK, N.A., Appellant, v. Jacqueline A. DEMADET a/k/a Jacqueline Demadet, et al., Respondents, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Martin, Martin & Woodard, LLP, Syracuse (Melissa Corrado and Nancy Cifone, of counsel), for appellant.
Christopher K. Sowers, P.C., Brooklyn, for respondents.
Before ROSENBLATT, J.P., and O'BRIEN, THOMPSON, FRIEDMANN and GOLDSTEIN, JJ.
MEMORANDUM BY THE COURT.
In an action to foreclose a mortgage, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Golden, J.), dated September 3, 1996, as denied its application for leave to enter a deficiency judgment against the defendants Jacqueline A. Demadet, a/k/a Jacqueline Demadet, and Philippe Demadet.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff's application which was for leave to enter a deficiency judgment against the defendants Jacqueline A. Demadet, a/k/a Jacqueline Demadet, and Philippe Demadet is granted, and the matter is remitted to Supreme Court, Kings County, for calculation of the amount of the deficiency and entry of an appropriate judgment.
In June 1990 the plaintiff, Citibank, N.A. (hereinafter Citibank), loaned $150,000 to the respondents Jacqueline A. Demadet, a/k/a Jacqueline Demadet, and Philippe Demadet (hereinafter the Demadets). The loan was secured by a mortgage on certain real property (hereinafter the mortgaged premises). Citibank commenced the instant action, inter alia, to foreclose the mortgage after the Demadets defaulted on payment of the loan.
Citibank obtained a judgment of foreclosure and sale with respect to the mortgaged premises, and on February 17, 1995, the mortgaged premises was sold for less than the amount of Citibank's judgment. The referee's deed was delivered to Citibank on February 17, 1995.
By a notice of motion dated May 15, 1995, Citibank applied, inter alia, for leave to enter a deficiency judgment against the Demadets. Citibank served the notice of motion and supporting papers upon the Demadets by "nail and mail" service pursuant to CPLR 308(4) on May 18, 1995, the final day of the 90-day period within which such service could be made (see, RPAPL 1371[2] ). In opposition to Citibank's application, the Demadets claimed that Citibank had not personally served them with the notice of motion for leave to enter a deficiency judgment as required by RPAPL 1371(2).
The Supreme Court denied that branch of Citibank's application which was for leave to enter a deficiency judgment against the Demadets. It reasoned that because service pursuant to CPLR 308(4) is not deemed completed until 10 days after filing of the affidavit...
To continue reading
Request your trial
-
Greene Major Holdings, LLC v. Trailside at Hunter, LLC
...judgment is sought." Such service, in turn, may be accomplished consistent with the provisions of CPLR 308 (see Citibank v. Demadet, 243 A.D.2d 532, 533, 674 N.Y.S.2d 48 [1997] ). To that end, CPLR 308(4) provides that where personal service under either CPLR 308(1) or (2)"cannot be made wi......
-
Bank of Am., N.A. v. Rolf
...service’ of notice of an application for leave to enter a deficiency judgment, as required by RPAPL 1371(2)" ( Citibank v. Demadet, 243 A.D.2d 532, 533, 674 N.Y.S.2d 48 ; see Greene Major Holdings, LLC v. Trailside at Hunter, LLC, 148 A.D.3d 1317, 1320, 49 N.Y.S.3d 769 ; Long Is. Sav. Bank ......
-
Discover Bank v. Shields
...governed by CPLR § 308, and subdivision (4)"affix and mail" can satisfy the requirements of RPAPL § 1371(2). (See Citibank, N.A. v. Demadet, 243 A.D.2d 532, 533 [2d Dept 1997] ["Since CPLR 308 categorizes [affix and mail] as personal service, it is a permissible means of ‘personal service’ ......
-
Kavakos v. McCall
...as Representative of New York State, Local Employees' Retirement System NO. 978 Court of Appeals of New York October 15, 1998 --- A.D.2d ----, 674 N.Y.S.2d 48. ...