National Bank of Sussex County v. Betar
| Decision Date | 04 August 1994 |
| Citation | 615 N.Y.S.2d 523,207 A.D.2d 610 |
| Court | New York Supreme Court — Appellate Division |
| Parties | NATIONAL BANK OF SUSSEX COUNTY, Appellant, v. Adrienne BETAR et al., Respondents. |
Kelly, Gaus & Holub (Michael C. Gaus, of counsel), Newton, New Jersey, for appellant.
William A. Glass, Port Jervis, for respondents.
Before CARDONA, P.J., and MERCURE, CASEY, YESAWICH and PETERS, JJ.
Appeal (transferred to this court by order of the Appellate Division, Second Department) from that part of an order of the Supreme Court (Ingrassia, J.), entered July 28, 1992 in Orange County, which denied plaintiff's motion to enter a deficiency judgment.
In June 1991, plaintiff obtained a judgment of foreclosure and sale against defendants in the amount of $334,000, together with costs and interest foreclosing two mortgages executed by defendants. Plaintiff purchased the property at the Referee's sale on September 16, 1991 for the sum of $125,000. The Referee computed a deficiency due to plaintiff of $225,332. The Referee executed a deed to plaintiff dated September 30, 1991 which was recorded on November 14, 1991. Plaintiff's attorney received a copy of the deed on December 11, 1991 and received the original deed on January 13, 1992. On February 13, 1992, plaintiff moved for leave to enter a deficiency judgment. Defendants cross-moved for dismissal of the application alleging, inter alia, that it was untimely. Supreme Court granted plaintiff's motion only to the extent of confirming the Referee's report, denied plaintiff's motion for entry of a deficiency judgment and granted defendants' cross motion to dismiss the claim for a deficiency judgment. Plaintiff appeals.
RPAPL 1371(2) provides:
Simultaneously with the making of a motion for an order confirming the sale, provided such motion is 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, the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought or the attorney who shall have appeared for such party in such action. Such notice shall be served personally or in such other manner as the court may direct.
Both sides concede that delivery of the deed is the act which begins the 90-day period for service of a motion for a deficiency judgment. Plaintiff contends that delivery did not occur until it received the executed deed on January 13, 1992. To support that claim, plaintiff asserts that the inclusion of the phrase "proper deed of conveyance" contained in the above-quoted provision requires actual physical delivery of a deed executed by the grantor into the grantee's possession. Relying on the presumption that the date of the deed was the date of delivery, absent contrary proof (see, Ten Eyck v. Whitbeck, 156 N.Y. 341, 352, 50 N.E. 963), and on the Referee's sworn statement dated September 30, 1991 that the deed had been delivered on that date, defendants contend that delivery occurred on September 30, 1991. They argue that delivery occurred despite the Referee's physical retention of the deed because at that time he was acting as plaintiff's agent for the purpose of recording the deed.
We reject plaintiff's first contention that RPAPL 1371(2) must be interpreted to require actual physical delivery of a deed executed by the grantor into the grantee's possession. Nothing in Real Property Law § 244, which provides that a grant of real property takes effect upon delivery of the deed, or on decisional law supports such a narrow interpretation. So long as the grantor parts with his control over the deed with the intention to pass title, a deed may be delivered by words without acts or by acts without...
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