Leader Federal Bank for Savings v. Van Tienhoven

262 A.D.2d 1078, 692 N.Y.S.2d 258, 1999 N.Y. App. Div. LEXIS 7344

Opinion

—Order unanimously reversed on the law with costs, plaintiffs motion denied, defendants’ motion granted in. part and foreclosure sale vacated. Memorandum: Supreme Court erred in granting plaintiffs motion for a writ of assistance and in denying that part of the motion of Andrew Van Tienhoven and Betty Lou Van Tienhoven (defendants) seeking to set aside the foreclosure sale of property located on Clear-view Drive in the Town of Clay. The letter sent by defendants’ counsel to plaintiff after service of the summons and complaint constitutes a notice of appearance (see, Parrotta v Wolgin, 245 AD2d 872, 873; Cohen v Ryan, 34 AD2d 789). Thus, defendants were entitled to notice of the application for a default judgment (see, CPLR 3215 [g] [1]) and the foreclosure sale (see, Aetna Life Ins. Co. v Avalon Orchards, 103 AD2d 948, 949; see also, CPLR 2103 [e]). Although the lack of notice of the application by itself does not warrant vacatur of that judgment (see, Fleet Fin. v Nielsen, 234 AD2d 728, 729-730; see also, Fish v Fish, 251 AD2d 942), the lack of notice of the foreclosure sale deprived defendants of an opportunity to protect their interest in the property (see, Pol-Tek Indus. v Panzarella, 227 AD2d 992; Aetna Life Ins. Co. v Avalon Orchards, supra, at 949; CPLR 2003). Defendants’ remaining contention is raised for the first time on appeal, and thus we do not consider it. (Appeal from Order of Supreme Court, Onondaga County, Nicholson, J. — Foreclosure.) Present — Lawton, J. P., Wisner, Hurlbutt and Scudder, JJ.