Popular Financial Services, LLC v. Leacock

309 A.D.2d 912, 766 N.Y.S.2d 849

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 27, 2003
• Status: Published

Opinion

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated December 17, 2002, which granted those branches of the motion of the defendants Lorraine Leacock and Paul Leacock which were to vacate a judgment of foreclosure of the same court dated September 10, 2002, entered upon their failure to appear or answer the complaint, and to restore the action to the conference calendar.

Ordered that the order is reversed, on the law, with costs, and those branches of the motion of the defendants Lorraine Leacock and Paul Leacock which were to vacate the judgment of foreclosure and to restore the action to the conference calendar are denied.

The respondents are estopped from denying that they had title to the subject premises on the date they mortgaged it (see Tefft v Munson, 57 NY 97 [1874]). Accordingly, the Supreme Court erred in granting their motion to vacate the judgment of foreclosure and to restore the action to the Supreme Court’s conference calendar. Prudenti, P.J., Smith, Friedmann and H. Miller, JJ., concur.