Citicorp Mortg. Inc. v. Strong

• Decision Date: 16 May 1996
• Citation: 227 A.D.2d 818,642 N.Y.S.2d 423
• Parties: CITICORP MORTGAGE INC., Respondent, v. Steven B. STRONG, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 423

642 N.Y.S.2d 423

227 A.D.2d 818

CITICORP MORTGAGE INC., Respondent, v. Steven B. STRONG, Appellant.

Supreme Court, Appellate Division,

Third Department.

May 16, 1996.

Ganz & Wolkenbreit (Robert E. Ganz, of counsel), Albany, for appellant.

Martin, Martin & Woodard (David M. Capriotti, of counsel), Syracuse, for respondent.

Before MIKOLL, J.P., and MERCURE, WHITE, CASEY and SPAIN, JJ.

SPAIN, Justice.

Appeal from an order of the Supreme Court (Harris, J.), entered July 31, 1995 in Albany County, which, inter alia, granted plaintiff's motion for a deficiency judgment in a foreclosure action.

In June 1992, plaintiff commenced an action to foreclose on property owned by defendant located in the City of Albany. After issue was joined, defendant moved to consolidate the action with two other real property actions pending between the parties. Plaintiff opposed the motion and cross-moved for an order granting summary judgment and, pursuant to RPAPL 1321, appointment of a Referee. The cross motion was granted by decision dated July 20, 1993, which was reduced to an order dated November 22, 1993 and subsequently entered May 31, 1994. Defendant's counsel asserts that he did not receive the order with notice of entry until October 17, 1994. Significantly, defendant did not appeal from that order.

Supreme Court, by decision and order dated August 5, 1994, issued an amended order of reference substituting the previously appointed Referee with a new Referee due to a conflict of interest. Although the amended order appointing the new Referee was apparently not entered until December 29, 1994, the new Referee executed a report of amount due dated August 18, 1994. Upon plaintiff's ex parte application, Supreme Court granted a judgment of foreclosure and sale dated September 28, 1994, which was entered on November 14, 1994 and served on defendant on December 14, 1994. Significantly, defendant did not appeal from the judgment of foreclosure and sale.

A foreclosure sale was held on February 2, 1995 at which plaintiff purchased the property for $51,200; defendant and his counsel attended the foreclosure sale and, that same day, the Referee delivered a deed to plaintiff. The Referee's report of sale, dated March 24, 1995, was filed April 26, 1995. Plaintiff served defendant and his counsel by substituted service on May 1, 1995 with a motion for confirmation of the sale and for leave to enter a deficiency judgment; defendant and his counsel also received copies of the motion papers, which were mailed on May 2, 1995. It is undisputed that the affidavits of service concerning the motion were not filed with the County Clerk until May 25, 1995, which is beyond the 20-day time period for filing set forth in CPLR 308(2). Defendant opposed the motion alleging, inter alia, that the 90-day period in which to seek leave to enter a deficiency judgment had expired due to defective service and that numerous deficiencies and irregularities in the foreclosure action warranted denial of plaintiff's motion. Supreme Court determined, inter alia, that plaintiff's motion for a deficiency judgment was timely interposed and scheduled a hearing to resolve questions of fact concerning the fair market value of the property as of the date of the foreclosure sale. Defendant appeals from the order granting plaintiff's motion for a deficiency judgment.

We affirm. Initially, we reject defendant's contentions that numerous deficiencies and irregularities in the underlying foreclosure action, including, inter alia, defendant's lack of notice of the Referee's hearing to compute the sum due, the Referee's failure to hold a hearing within 20 days of the order of reference and the lengthy delay between plaintiff's motion for summary judgment and the Referee's report of the amount due, require that the foreclosure sale be set aside. "A judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and all matters of defense which were or might have been litigated in the foreclosure action are concluded * * * " (Gray v. Bankers Trust Co. of Albany, 82 A.D.2d 168, 170-171, 442 N.Y.S.2d 610, lv. denied 58 N.Y.2d 604, 459 N.Y.S.2d 1026, 445 N.E.2d 654 [citation omitted]; see, Cherico v. Bank of N.Y., 211 A.D.2d 961, 963, 621 N.Y.S.2d 235, appeal dismissed 85 N.Y.2d 901, 627 N.Y.S.2d 316, 650 N.E.2d 1317; Ogdensburg Sav. & Loan Assn. v. Moore, 100 A.D.2d 679, 473 N.Y.S.2d 877). To the extent that an aggrieved party takes issue with either the judgment of foreclosure and sale or any prejudgment intermediate orders, the remedy is an appeal from the judgment of foreclosure and sale (see, Cherico v. Bank of N.Y., supra; Gildston v. Terilli, 146 A.D.2d 738, 739, 537 N.Y.S.2d 224). Defendant's failure to timely appeal from either the order granting summary judgment or the judgment of foreclosure and sale serves to preclude our review of the issues raised at this time, despite the fact that the inordinate delay between the order granting plaintiff summary judgment and the execution of the Referee's report of amount due may have prejudiced defendant (see, Lixfield v. Cornwell Dev. Corp., 105 A.D.2d 694, 481 N.Y.S.2d 134; Costa v. Patalino, 88 A.D.2d 690, 450 N.Y.S.2d 895). Our review is therefore limited to whether the motion for a deficiency judgment was timely made and whether the foreclosure sale should be set aside on equitable grounds.

RPAPL 1371(2) requires that a motion for a deficiency judgment be made within 90 days after the date of the consummation of the sale. The consummation of the sale takes place upon "the...