Opinion
2012-12-26
SHAW FUNDING, L.P., appellant, v. Percy M. SAMUEL, et al., defendants, Melissa Vina John, et al., respondents.
Irwin Popkin, Melville, N.Y., for appellant. Clair & Gjertsen, Scarsdale, N.Y. (Ira S. Clair of counsel), for respondents.
Irwin Popkin, Melville, N.Y., for appellant. Clair & Gjertsen, Scarsdale, N.Y. (Ira S. Clair of counsel), for respondents.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered November 28, 2011, which, after a hearing to determine the validity of service of process, granted that branch of the motion of the defendants Melissa Vina John and Jessica Carla John which was to vacate a deficiency judgment entered February 22, 2011, based upon lack of personal jurisdiction.
*897ORDERED that the order is affirmed, with costs.
The resolution of credibility issues by the hearing court is entitled to deference on appeal, and will be upheld if supported by evidence in the record ( see generally Gass v. Gass, 42 A.D.3d 393, 840 N.Y.S.2d 58;Ahrens v. Chisena, 40 A.D.3d 787, 836 N.Y.S.2d 278;Lattingtown Harbor Prop. Owners Ass'n, Inc. v. Agostino, 34 A.D.3d 536, 825 N.Y.S.2d 86). The hearing record in this case supports the court's conclusion that the plaintiff did not effectuate service of the motion for a deficiency judgment upon the respondents ( seeRPAPL 1371[2]; First Nationwide Bank v. Pegasus Agency, 253 A.D.2d 536, 676 N.Y.S.2d 512), and we discern no basis to disturb that determination.
The plaintiff's remaining contentions are without merit.