First Nationwide Bank, Inc. v. Felberman

236 A.D.2d 361, 654 N.Y.S.2d 328, 1997 N.Y. App. Div. LEXIS 1035

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1997
• Status: Published

Opinion

—In an action to foreclose a mortgage, the defendant Leah Felberman appeals from an order of the Supreme Court, Rockland County (Meehan, J.), entered January 17, 1996, which denied her motion to set aside a foreclosure sale. Justice Rosenblatt has been substituted for the late Justice Hart (see, 22 NYCRR 670.1 [c]).

Ordered that the order is affirmed, with costs; and it is further,

Ordered that counsel for the respective parties are directed to submit affirmations to this Court on or before March 4,1997, on the issue of the imposition of appropriate sanctions, if any, pursuant to 22 NYCRR 130-1.1 (c), against the appellant and/or her attorney.

To the extent the appellant contends that the foreclosure sale was conducted in violation of her due process rights and the automatic stay provisions of the United States Bankruptcy Code (see, 11 USC § 362), she is collaterally estopped from re-litigating those issues which were previously decided against her in the United States Bankruptcy Court (see, Kaufman v Eli Lilly & Co., 65 NY2d 449, 455).

Further, there is no merit to her contention that the notice of the foreclosure sale was defective. Notice was properly published and posted in accordance with RPAPL 231 (2) (a) and (b) and the judgment of foreclosure and sale.

The appellant’s remaining contention is unpreserved for appellate review.

Finally, the conduct of the appellant and her attorney raise the possibility that they may be subject to sanctions pursuant to 22 NYCRR 130-1.1 (c). Rosenblatt, J. P., Altman, Goldstein and McGinity, JJ., concur.