Ninth Federal Savings & Loan Ass'n v. Yelder

107 A.D.2d 799, 484 N.Y.S.2d 632, 1985 N.Y. App. Div. LEXIS 42719

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1985
• Status: Published

Opinion

— In an action to foreclose a mortgage, defendants appeal from so much of an order of the Supreme Court, Westchester County (Gurahian, J.), dated August 18, 1983, as upon granting reargument of their motion to vacate a judgment of foreclosure and to set aside the sale of property, adhered to the original determination denying the motion.

Order affirmed insofar as appealed from, without costs or disbursements.

Special Term correctly determined that defendants failed to raise an issue of fact as to service of the summons and complaint so as to warrant a hearing on their motion (see Green Point Sav. Bank v Taylor, 92 AD2d 910).

In addition, we note that defendants failed to set forth a meritorious defense to the foreclosure action (see Hurley v Reoux, 29 AD2d 789), and did not move to vacate their default until after the sale of the real property and delivery of the referee’s deed to the new owner, who was not made a party to the application to vacate the default judgment and set aside the sale. O’Connor, J. P., Weinstein, Lawrence and Eiber, JJ., concur.