Opinion
2013-10-9
PUTNAM COUNTY SAVINGS BANK, appellant, v. Allan FISHEL, defendant, Sonja Fishel, respondent.
Daniels, Porco and Lusardi, LLP, Carmel, N.Y. (Robert C. Lusardi of counsel), for appellant. David E. Sonn, Earlville, N.Y., for respondent.
Daniels, Porco and Lusardi, LLP, Carmel, N.Y. (Robert C. Lusardi of counsel), for appellant. David E. Sonn, Earlville, N.Y., for respondent.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Jamieson, J.), dated December 12, 2012, as denied, on the ground of improper service, that branch of its motion which was for leave to enter a deficiency judgment against the defendant Sonja Fishel.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Rockland County, for a determination on the merits of that branch of the plaintiff's motion which was for leave to enter a deficiency judgment against the defendant Sonja Fishel.
As the plaintiff correctly contends, any objections to alleged improprieties in its service of the papers constituting its motion for a deficiency judgment upon the defendant Sonja Fishel were waived when Fishel opposed the motion on the merits without contesting the validity of the service ( see Matter of Grasso, 24 A.D.3d 765, 767, 810 N.Y.S.2d 201;McGowan v. Hoffmeister, 15 A.D.3d 297, 792 N.Y.S.2d 381;Yihye v. Blumenberg, 260 A.D.2d 371, 371–372, 687 N.Y.S.2d 703;Matter of Kareca Lashawn J. v. County of Westchester, 142 A.D.2d 729, 730, 531 N.Y.S.2d 308). Therefore, the Supreme Court should not have sua sponte raised the issue of the propriety of service and denied the motion on the ground of improper service ( see Dupps v. Betancourt, 99 A.D.3d 855, 856, 952 N.Y.S.2d 585;Matter of Grasso, 24 A.D.3d at 766, 810 N.Y.S.2d 201;Yihye v. Blumenberg, 260 A.D.2d at 371–372, 687 N.Y.S.2d 703).
In any event, since the plaintiff substantially complied with the service requirements, and Fishel received actual and timely notice of the motion as a result, the service was sufficient ( see Sarasota, Inc. v. Homestead Acres at Greenport, 249 A.D.2d 290, 290–291, 670 N.Y.S.2d 878;Columbus Realty Inv. Corp. v. Weng–Heng Tsiang, 226 A.D.2d 259, 641 N.Y.S.2d 265;Heritage Sav. Bank v. Grabowski, 70 A.D.2d 989, 990, 417 N.Y.S.2d 802).
Accordingly, the Supreme Court should have made a determination on the merits of that branch of the plaintiff's motion which was for leave to enter a deficiency judgment against Fishel.