First Nationwide Bank v. Pegasus Agency, Inc.

Appellate Division of the Supreme Court of New York

First Nationwide Bank v. Pegasus Agency, Inc.

253 A.D.2d 536, 676 N.Y.S.2d 512, 1998 N.Y. App. Div. LEXIS 9224

Appellate Division of the Supreme Court of the State of New York·Decided August 31, 1998·Published·Cited by 5 cases

Opinion

—In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Donovan, J.), dated September 15, 1997, as denied that branch of its motion which was for leave to enter a deficiency judgment against the defendants.

Ordered that the order is affirmed insofar as appealed from, with costs.

The record establishes that neither the defendants nor their attorneys were served with the notice of motion for leave to enter a deficiency judgment in accordance with the provisions of RPAPL 1371 (2), and there is no proof that they received actual notice of the motion within the 90-day period as defined in this statute. This constitutes “a complete bar to the entry of a deficiency judgment” (see, Mortgagee Affiliates Corp. v Jerder Realty Servs., 62 AD2d 591, 594, affd 47 NY2d 796; Gateway State Bank v Puma, 229 AD2d 373; cf., Bianco v Coles, 131 AD2d 10). O’Brien, J. P., Santucci, Joy and Friedmann, JJ., concur.

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—In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Donovan, J.), dated September 15, 1997, as denied that branch of its motion which was for leave to enter a deficiency judgment against the defendants.

Ordered that the order is affirmed insofar as appealed from, with costs.

The record establishes that neither the defendants nor their attorneys were served with the notice of motion for leave to enter a deficiency judgment in accordance with the provisions of RPAPL 1371 (2), and there is no proof that they received actual notice of the motion within the 90-day period as defined in this statute. This constitutes “a complete bar to the entry of a deficiency judgment” (see, Mortgagee Affiliates Corp. v Jerder Realty Servs., 62 AD2d 591, 594, affd 47 NY2d 796; Gateway State Bank v Puma, 229 AD2d 373; cf., Bianco v Coles, 131 AD2d 10). O’Brien, J. P., Santucci, Joy and Friedmann, JJ., concur.

First Nationwide Bank v. Pegasus Agency, Inc., 253 A.D.2d 536, 676 N.Y.S.2d 512, 1998 N.Y. App. Div. LEXIS 9224 (N.Y. Ct. App. 1998).

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Opinion

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