Dime Savings Bank v. Glavey

214 A.D.2d 419, 625 N.Y.S.2d 181, 1995 N.Y. App. Div. LEXIS 4373

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 18, 1995
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Edward Lehner, J.), entered March 8, 1994, which confirmed the Referee’s report, granted plaintiff a judgment of foreclosure and sale, and denied defendant’s cross-motion to disqualify and remove the Referee, unanimously affirmed, without costs.

Defendant failed timely to make her monthly mortgage payments and was in arrears for several months when plaintiff notified her of the default and plaintiffs election to accelerate all payments pursuant to the mortgage agreement. Any tender of monthly mortgage payments in less than the full amount then due attempted by defendant after acceleration and after the foreclosure action was initiated was rightfully rejected by plaintiff (see, Dime Sav. Bank v Dooley, 84 AD2d 804).

Under the circumstances, substituted service (CPLR 308 [2]) in this foreclosure action was properly made upon the doorman of the premises covered by the mortgage, since defendant represented her address to be said premises and since there is insufficient evidence to demonstrate that plaintiff knew that defendant resided elsewhere.

Defendant waived her claim that the Referee was biased since she did not move the court for such relief until weeks after the hearing occurred and only after plaintiff moved to have the referee’s report confirmed and for entry of a judgment of foreclosure and sale. (Fisher v Fisher, 223 App Div 19, 21, affd, 250 NY 313.)

We have considered defendant’s other claims and find them to be meritless. Concur—Sullivan, J. P., Rosenberger, Wallach, Asch and Williams, JJ.