Crossland Savings, FSB v. Friedman

216 A.D.2d 351, 628 N.Y.S.2d 528, 1995 N.Y. App. Div. LEXIS 6251

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 1995
• Status: Published

Opinion

In an action to foreclose a mortgage, Morris Friedman, a/k/a Peter Friedman, and Miriam Friedman appeal from an order of the Supreme Court, Kings County (Huttner, J.), dated January 13, 1994, which, upon renewal and reargument, granted the plaintiff’s motion for leave to enter a deficiency judgment against them.

Ordered that the order is affirmed, with costs.

Contrary to the appellants’ contention, the plaintiff was not required to personally serve them with notice of the adjourned date of the foreclosure sale since the appellants failed to serve an answer to the complaint or a notice of appearance, or make a motion which would have had the effect of extending their time to answer (see, CPLR 320). Moreover, the appellants’ unsuccessful settlement negotiations did not constitute an appearance (see, R.L.C. Investors v Zabski, 109 AD2d 1053; Simkins v Gruenspan, 118 Misc 2d 107, 109).

As the appellants failed to raise the estoppel argument before the Supreme Court, that argument has not been preserved for appellate review (see, CPLR 5501). Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.