American Business Credit, Inc. v. Sanabria

Appellate Division of the Supreme Court of New York

American Business Credit, Inc. v. Sanabria

19 A.D.3d 624, 799 N.Y.S.2d 77, 2005 N.Y. App. Div. LEXIS 7335

Appellate Division of the Supreme Court of the State of New York·Decided June 27, 2005·Published

Opinion

In an action to foreclose a mortgage, the defendant Israel Sanabria appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated May 21, 2004, as denied, without a hearing, those branches of his motion which were to vacate a referee’s deed and judgment of foreclosure, and to dismiss the action.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellant’s contention, his equity of redemption in the subject property was not preserved by a stay (see RPAPL 1341 [2]; EMC Mtge. Corp. v Bobb, 296 AD2d 476, 478 [2002]; Green Point Sav. Bank v Oppenheim, 237 AD2d 409, 410 [1997]). Further, the Supreme Court properly denied, without a hearing, those branches of his motion which were, inter alia, to vacate the underlying judgment of foreclosure on the ground of lack of proper service of process. The appellant’s conclusory denial of receipt was insufficient to raise an issue of fact in opposition to the plaintiffs prima facie evidence of proper service (see Dolec Consultants v Lancer Litho Packaging Corp., 245 AD2d 415 [1997]; Manhattan Sav. Bank v Kohen, 231 AD2d 499, 500 [1996]; Sando Realty Corp. v Aris, 209 AD2d 682 [1994]).

The appellant’s remaining contentions are without merit. Ritter, J.E, Goldstein, Luciano and Lifson, JJ., concur.

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In an action to foreclose a mortgage, the defendant Israel Sanabria appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated May 21, 2004, as denied, without a hearing, those branches of his motion which were to vacate a referee’s deed and judgment of foreclosure, and to dismiss the action.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellant’s contention, his equity of redemption in the subject property was not preserved by a stay (see RPAPL 1341 [2]; EMC Mtge. Corp. v Bobb, 296 AD2d 476, 478 [2002]; Green Point Sav. Bank v Oppenheim, 237 AD2d 409, 410 [1997]). Further, the Supreme Court properly denied, without a hearing, those branches of his motion which were, inter alia, to vacate the underlying judgment of foreclosure on the ground of lack of proper service of process. The appellant’s conclusory denial of receipt was insufficient to raise an issue of fact in opposition to the plaintiffs prima facie evidence of proper service (see Dolec Consultants v Lancer Litho Packaging Corp., 245 AD2d 415 [1997]; Manhattan Sav. Bank v Kohen, 231 AD2d 499, 500 [1996]; Sando Realty Corp. v Aris, 209 AD2d 682 [1994]).

The appellant’s remaining contentions are without merit. Ritter, J.E, Goldstein, Luciano and Lifson, JJ., concur.

American Business Credit, Inc. v. Sanabria, 19 A.D.3d 624, 799 N.Y.S.2d 77, 2005 N.Y. App. Div. LEXIS 7335 (N.Y. Ct. App. 2005).

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19 A.D.3d 624 (American Business Credit, Inc. v. Sanabria) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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