Flushing Savings Bank, FSB v. Colmar Realty, LLC

121 A.D.3d 1040, 994 N.Y.S.2d 311

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 2014
• Docket: 2013-07201
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendants Colmar Realty, LLC, and Wanda Conti appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Strauss, J.), entered June 12, 2013, as denied that branch of their motion which was to vacate a foreclosure sale of the subject property and, thereupon, to set aside a referee’s deed.

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

The Supreme Court properly denied that branch of the appel lants’ motion which was to vacate a foreclosure sale of the subject property and, thereupon, to set aside a referee’s deed. The plaintiff submitted affidavits of service which raised a presumption that the notice of sale was properly mailed and received by the appellants and their counsel (see Engel v Lichterman, 62 NY2d 943, 944-945 [1984]; Matter of Rodriguez v Wing, 251 AD2d 335, 336 [1998]). Their mere denial of receipt of the notice of sale was insufficient to rebut the presumption of proper mailing and receipt, and failed to raise an issue of fact requiring a hearing (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]; Mei Yun Li v Qing He Xu, 38 AD3d 731, 732 [2007]; Terlizzese v Robinson’s Custom Serv., Inc., 25 AD3d 547, 548 [2006]).

The appellants’ remaining contention is without merit.

Dickerson, J.E, Leventhal, Austin and Hinds-Radix, JJ., concur.