In re the Mortgages of Grasso

Appellate Division of the Supreme Court of New York

In re the Mortgages of Grasso

168 A.D.2d 713, 563 N.Y.S.2d 569, 1990 N.Y. App. Div. LEXIS 14812

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 6, 1990

StatusPublished

Cited by1 cases

This text of 168 A.D.2d 713 (In re the Mortgages of Grasso) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Mortgages of Grasso, 168 A.D.2d 713, 563 N.Y.S.2d 569, 1990 N.Y. App. Div. LEXIS 14812 (N.Y. Ct. App. 1990).

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Opinion

Appeal from an order of the Supreme Court (Doran, J.), entered January 30, 1990 in Schenectady County, which, upon reargument, adhered to its original decision denying respondent’s motion to dismiss the petition.

Supreme Court did not err when, upon reargument, it adhered to its original decision denying respondent’s motion to dismiss for failure to timely serve respondent personally with the petition. Pursuant to statute, Supreme Court, upon presentation of a petition to discharge an ancient mortgage, must order all interested persons to appear, and such order "shall be published in such newspaper * * * as the court shall direct” (RPAPL 1931 [4] [emphasis supplied]). While personal service is also available, it is not required (RPAPL 1931 [4]; see also, Matter of Schwartz, 21 Misc 2d 845 [citing to Real Property Law former § 340, the predecessor to RPAPL 1931]). Finally, since respondent failed to set forth evidence in any affidavits to rebut the presumption of payment set forth in the petition, as is required by statute (RPAPL 1931 [5]), Supreme Court properly discharged the mortgage, which was due over 20 years ago (see, Matter of Schwartz, supra, at 846).

Order affirmed, with costs. Mahoney, P. J., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

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Appeal from an order of the Supreme Court (Doran, J.), entered January 30, 1990 in Schenectady County, which, upon reargument, adhered to its original decision denying respondent’s motion to dismiss the petition.

Supreme Court did not err when, upon reargument, it adhered to its original decision denying respondent’s motion to dismiss for failure to timely serve respondent personally with the petition. Pursuant to statute, Supreme Court, upon presentation of a petition to discharge an ancient mortgage, must order all interested persons to appear, and such order "shall be published in such newspaper * * * as the court shall direct” (RPAPL 1931 [4] [emphasis supplied]). While personal service is also available, it is not required (RPAPL 1931 [4]; see also, Matter of Schwartz, 21 Misc 2d 845 [citing to Real Property Law former § 340, the predecessor to RPAPL 1931]). Finally, since respondent failed to set forth evidence in any affidavits to rebut the presumption of payment set forth in the petition, as is required by statute (RPAPL 1931 [5]), Supreme Court properly discharged the mortgage, which was due over 20 years ago (see, Matter of Schwartz, supra, at 846).

Order affirmed, with costs. Mahoney, P. J., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

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168 A.D.2d 713, 563 N.Y.S.2d 569, 1990 N.Y. App. Div. LEXIS 14812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-mortgages-of-grasso-nyappdiv-1990.

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