TD Bank, N.A. v. Talia Props., Inc.

• Decision Date: 30 October 2013
• Citation: 2013 N.Y. Slip Op. 07026,973 N.Y.S.2d 789,110 A.D.3d 1057
• Parties: TD BANK, N.A., etc., appellant, v. TALIA PROPERTIES, INC., et al., defendants, Keith Leonard, respondent.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 1057
973 N.Y.S.2d 789
2013 N.Y. Slip Op. 07026

TD BANK, N.A., etc., appellant,
v.
TALIA PROPERTIES, INC., et al., defendants,
Keith Leonard, respondent.

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

Oct. 30, 2013.

[973 N.Y.S.2d 790]

Ostrowitz & Ostrowitz, New York, N.Y. (Jennifer M. Marcus of counsel), for appellant.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.

In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated April 23, 2012, as denied that branch of its motion which was for leave to enter a deficiency judgment pursuant to RPAPL 1371 against the defendant Keith Leonard.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff's motion which was for leave to enter a deficiency judgment pursuant to RPAPL 1371 against the defendant Keith Leonard is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an appropriate judgment against Keith Leonard.

The plaintiff commenced this action to foreclose on a mortgage secured by real property located in Suffolk County, naming, among others, Talia Properties, Inc. (hereinafter Talia), Active Voice and Data Specialists, Inc. (hereinafter Active Voice), and Keith Leonard as defendants. Upon their default, a judgment of foreclosure and sale was entered, which also determined that the plaintiff had a right to seek a deficiency judgment against Talia, Active Voice, and Leonard. The subject real property was sold at auction for the sum $266,500, and the referee noted in his report that a deficiency of $401,263.94 remained. The plaintiff moved for leave to enter a deficiency judgment against Talia, Active Voice, and Leonard. The Supreme Court granted leave to enter a deficiency judgment against Talia and Active Voice in the amount of $282,763.94, representing the difference between the amount owed and the $385,000 market value of the property. However, without explanation, the Supreme Court denied that branch of the plaintiff's motion which was for leave to enter a deficiency judgment against Leonard.

“ ‘[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’ ” ( NAB...