Bank of New York v. Goodfriend

247 A.D.2d 420, 668 N.Y.S.2d 100, 1998 N.Y. App. Div. LEXIS 1016

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 9, 1998
• Status: Published

Opinion

In a mortgage foreclosure action, the defendant Irwin Goodfriend appeals from an order of the Supreme Court, Orange County (Bellantoni, J.), dated October 1, 1996, which (1) granted the plaintiff’s motion to (a) vacate a prior order of the same court dated April 18, 1996, which, upon the plaintiff’s default in opposing the motion, granted the appellant’s motion, inter alia, to disaffirm the Referee’s report, and (b) deny the appellant’s motion, and (2) vacated a resettled order of the same court dated May 24, 1996.

Ordered that the order is affirmed, with costs.

The plaintiffs submissions establish conclusively that the foreclosure sale generated no surplus money within the definition of RPAPL 1354 (4) (see, Evergreen Bank v D & P Justin’s, 152 AD2d 898). The appellant’s prior motion, in effect, sought to recover that which does not exist, i.e., surplus money. The Supreme Court thus properly concluded that that prior motion, which was improperly served, and of which the plaintiff had not received any notice, was wholly without merit. The Supreme Court was thus correct in vacating its prior orders and in denying the prior motion.

Bracken, J. P., Pizzuto, Altman and Krausman, JJ., concur.