Yasuda Bank and Trust Co. (U.S.A.) v. Oree

• Decision Date: 12 November 1996
• Citation: 650 N.Y.S.2d 590,233 A.D.2d 391
• Parties: YASUDA BANK AND TRUST COMPANY (U.S.A.), Respondent, v. Carrie OREE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 590

650 N.Y.S.2d 590

233 A.D.2d 391

YASUDA BANK AND TRUST COMPANY (U.S.A.), Respondent, v. Carrie OREE, Appellant.

Supreme Court of New York, Appellate Division Second Department.

Nov. 12, 1996.

Joseph F. DeFelice, Kew Gardens, for appellant.

Adam E. Mikolay, Westbury (Andrew C. Morganstern, of counsel), for respondent.

In an action to foreclose a mortgage, the defendant appeals from (1) a decision of the Supreme Court, Queens County (Levine, J.), dated October 18, 1995, which found that she had been validly served with the summons and complaint, and (2) an order of the same court, dated November 21, 1995, which, inter alia, granted the plaintiff's motion for summary judgment.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718); and it is further,

ORDERED that the order is affirmed; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

We find unpersuasive the defendant's contention that the Supreme Court erred in determining that she was validly served with the summons and complaint and that she therefore was subject to the jurisdiction of the court. While there was conflicting hearing testimony regarding whether process was personally delivered to the defendant, it is well settled that the factual findings and credibility determinations of the hearing court are entitled to great deference on appeal and will not be disturbed unless they are against the weight of the credible evidence (see, McCray v. Petrini, 212 A.D.2d 676, 622 N.Y.S.2d 815; Billings v. Southside Hosp., 122 A.D.2d 101, 504 N.Y.S.2d 1019). On the record before us, we discern no basis upon which to disturb the hearing court's determination that the defendant was in fact served (see, City of New York v. Bergman, 210 A.D.2d 369, 620 N.Y.S.2d 118; Fosella Bldrs. & Gen. Contrs. v. Silver, 208 A.D.2d 525, 617 N.Y.S.2d 59).

The plaintiff demonstrated its entitlement to judgment as a matter of law through the production of the mortgage and unpaid note, and the defendant offered only unsubstantiated and conclusory allegations of fraud which failed to raise triable issues of fact (see, North Fork Bank v. Hamptons Mist Management Corp., 225 A.D.2d 596, 639 N.Y.S.2d 451; Home Sav. Bank v. Schorr Bros. Dev. Corp., 213 A.D.2d 512, 624 N.Y.S.2d 53; LBV Props. v. Greenport Dev. Co., 188 A.D.2d 588, 591 N.Y.S.2d 70). Accordingly, the Supreme Court...