Continental Bank v. White

112 A.D.2d 912, 492 N.Y.S.2d 428, 1985 N.Y. App. Div. LEXIS 52126

Opinion

In a mortgage foreclosure action, the defendants White appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County (Kelly, J.), dated December 21, 1983, as denied that portion of their motion seeking to vacate the default judgment of foreclosure against defendant Mary White with respect to property held by the Whites as tenants by the entirety.

Order affirmed, insofar as appealed from, with costs.

Special Term acted properly in denying that portion of the appellants’ motion seeking vacatur of the default judgment of foreclosure against defendant Mary White with respect to property held by the appellants as tenants by the entirety. At the traverse hearing, the parties stipulated that Mary White had been properly served and had defaulted in pleading. It was also agreed that due to improper service on Noah White, the default judgment would be vacated against him and that Noah White would accept service and would be permitted to serve an answer in the foreclosure action. In view of the parties’ stipulation, there is no basis upon which to conclude that defendant Mary White is entitled to have the default judgment of foreclosure against her interest in the property vacated, particularly as it appears that her default was willful. Lazer, J. P., Bracken, Brown and Lawrence, JJ., concur.