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Holt v. Holt

Appellate Division of the Supreme Court of New York, Second Department
Jun 21, 1999
262 A.D.2d 530 (N.Y. App. Div. 1999)

Opinion

Submitted April 7, 1999

June 21, 1999

In an action to set aside a conveyance of real property and a mortgage upon that property, the defendants Champion Mortgage Co., Inc., and Champion Mortgage Servicing Corp., appeal from an order of the Supreme Court, Queens County (Kitzes, J.), dated March 6, 1998, which denied their motion to strike the plaintiff's note of issue for an inquest against defaulting defendant Robert Maurice Holt.

Solomon Siris, LLP, Garden City, N.Y. (Stuart Siris of counsel), for appellants.

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ.


DECISION ORDER

ORDERED that the order is affirmed, without costs or disbursements.

CPLR 3215(a) requires that when a default judgment is taken against fewer than all of the defendants, the action is severed as against the remaining defendants ( see, Frolish v. Ryder Truck Rental, 63 A.D.2d 799). The judgment obtained by the plaintiff as against the defaulting defendant is not entitled to collateral estoppel effect against the nondefaulting defendants who would otherwise be denied a full and fair opportunity to litigate issues of liability ( see, Woodson v. Mendon Leasing Corp., 259 A.D.2d 304 [1st Dept., Mar. 9, 1999]; Frolish v. Ryder Truck Rental, supra). Thus, in the instant case, the Supreme Court properly denied the appellants' motion which sought, in effect, to preclude the plaintiff from obtaining a default judgment against the nonappearing defendant. Notwithstanding the default judgment obtained by the plaintiff against one of the parties who allegedly perpetrated the fraud that induced the plaintiff to convey the subject property, the plaintiff must still meet his burden of proving, over the appellants' defense, that their mortgage should be set aside as a consequence of the alleged fraud ( see, S.D.I. Corp., v. Fireman's Fund Ins. Cos., 208 A.D.2d 706; Firedoor Corp. of Am. v. Merlin Indus., 86 A.D.2d 577).


Summaries of

Holt v. Holt

Appellate Division of the Supreme Court of New York, Second Department
Jun 21, 1999
262 A.D.2d 530 (N.Y. App. Div. 1999)
Case details for

Holt v. Holt

Case Details

Full title:EDGAR L. HOLT, respondent, v. ROBERT MAURICE HOLT, et al., defendants…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 21, 1999

Citations

262 A.D.2d 530 (N.Y. App. Div. 1999)
692 N.Y.S.2d 451

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