Oneida Nat. Bank & Trust Co. of Central New York v. Unczur

• Citation: 37 A.D.2d 480,326 N.Y.S.2d 458
• Parties: The ONEIDA NATIONAL BANK AND TRUST COMPANY OF CENTRAL NEW YORK, Appellant, v. Valentina UNCZUR, Respondent. Eugene Peterpaul and Dominick Bravo, Appellants.
• Decision Date: 02 December 1971
• Court: New York Supreme Court Appellate Division

Page 458

326 N.Y.S.2d 458

37 A.D.2d 480

The ONEIDA NATIONAL BANK AND TRUST COMPANY OF CENTRAL NEW

YORK, Appellant, v. Valentina UNCZUR, Respondent.

Eugene Peterpaul and Dominick Bravo, Appellants.

Supreme Court, Appellate Division, Fourth Department.

Dec. 2, 1971.

[37 A.D.2d 481] Cook & Ringrose, Rome, for appellant Oneida National Bank (Frank S. Cook, Rome, of counsel).

Francis P. Valone, Rome, for appellants Peterpaul and Bravo.

John B. Cosgrove, Clinton, for respondent.

Richard Frye, County Atty., Utica.

Before [37 A.D.2d 484] MARSH, J.P., and WITMER, GABRIELLI, MOULE and CARDAMONE, JJ.

OPINION

WITMER, Justice.

The Oneida National Bank and Trust Company of Central N.Y. (Bank) and Eugene Peterpaul and Dominick Bravo appeal from an order of Special Term vacating a default judgment in the sum of $594.43 entered by the Bank against respondent Valentina V. Unczur on March 17, 1967 and also vacating and setting aside the sheriff's deed of respondent's real property conveying her home to appellants Peterpaul and Bravo in November 1968 under an execution issued by the Bank for the sale of the property to satisfy the judgment.

Two or three days after the purchasers received and recorded the deed to respondent's property which they purchased upon the execution sale, their attorney notified respondent thereof and requested that she vacate the premises. Upon receiving such notice respondent immediately instituted this proceeding by order to show cause for an order to vacate and set aside both the default judgment and the execution sale thereunder. Upon that application Special Term entered the order from which the Bank and the purchasers appeal.

It appears that on May 3, 1965 respondent had borrowed money from the Bank to enable her to purchase an automobile, and she gave to the Bank as evidency of the debt a retail installment note in the amount of $1,131.92, providing for monthly payments. On August 18, 1966 at the instance of a health officer of the City of Rome, New York, respondent was admitted to the Marcy State Hospital, an institution for the mentally ill. Six days later the Bank instituted suit against respondent for the balance due on the note, alleging that she had paid $707.40 thereon and still owed $424.52, plus 25 per cent thereof or $106.03 for attorney's fees in bringing the action to collect it, as provided in the note, making a balance owing of $530.62. Respondent was served with a summons and complaint in the hospital without compliance by the Bank or the hospital authorities with the rules and regulations applicable with respect to service of papers upon patients in mental hospitals (14 NYCRR 15.0 and 22.1, established under Mental Hygiene Law, § 12, subd. 4), which provide that service of a summons and complaint upon such a patient shall not be permitted except upon order of a Judge of a court of record. The Bank knew that respondent was served in the hospital, and under date of October 26, 1966 it received acknowledgment of such service from an Assistant State Attorney General who wrote, 'I assume a guardian ad litem will be appointed by the Court if it deems such action is necessary'. On November 25, 1966 respondent was released from the hospital, but she continued as an out-patient thereof until January 31, 1968 when she was discharged.

Upon this application it appears without contradiction that throughout the time respondent was in Marcy State Hospital she was virtually in a stupor and unable to grasp her business affairs. Without bringing this situation to the attention of the Court as suggested by the Assistant Attorney General, the Bank on March 17, 1967 entered a default judgment against respondent in the sum of $594.43.

Thereafter, apparently in connection with an effort to collect the judgment, the Bank's attorneys notified the Attorney General on April 25, 1967 of the entry of the judgment, and his office replied in May that the Department of Mental Hygiene would not apply for an appointment of a committee for respondent since she had been placed on convalescent care as of March 13, 1967.

Respondent's sister attempted without success to have the Bank make a loan on respondent's property so that it could be made income-producing. In her affidavit in support of this application she states that had she known that the Bank contemplated executing upon this property to satisfy the judgment she would have paid the judgment; and that she believes that she had made that known to the Bank. The Bank had not denied this. Nevertheless, the Bank thereafter issued an execution under the judgment, and respondent's property was sold as above stated.

The sale price was $850, sufficient to satisfy the judgment. An affidavit by a real estate broker attached to the moving papers states that the fair...