Cadlerock Joint Venture, L.P. v. McHugh

5 A.D.3d 295, 773 N.Y.S.2d 538, 2004 N.Y. App. Div. LEXIS 3456

Opinion

Order, Supreme Court, Bronx County (Howard Silver, J.), entered December 16, 2002, which, in a mortgage foreclosure action, granted defendants’ motion to vacate the deficiency judgment entered against them, unanimously affirmed, without costs.

Although the order on appeal states that the IAS court found that plaintiffs service of its motion for a deficiency judgment was “defective,” the clear import of the IAS court’s decision, made after a traverse hearing, is that neither defendant obtained any kind of notice of such motion within the 90-day period, commencing with delivery of the referee’s deed, for making such a motion (RPAPL 1371 [2]; see Arbor Natl. Commercial Mtge. v Carmans Plaza, 305 AD2d 622, 622-623 [2003]). Upon review of the record, we too find insufficient evidence to establish that either defendant obtained actual notice of the motion within the 90-day period. Such failure of service is a complete bar to the entry of a deficiency judgment (id. at 623; D’Ambra v Haynor, 293 AD2d 858 [2002]; compare Columbus Realty Inv. Corp. v Weng-Heng Tsiang, 226 AD2d 259 [1996]). Concur—Buckley, P.J., Nardelli, Saxe and Marlow, JJ.