| Mortgage Elec. Registration Sys., Inc. v Schuh |
| 2008 NY Slip Op 01037 [48 AD3d 838] |
| February 7, 2008 |
| Appellate Division, Third Department |
| Mortgage Electronic Registration Systems, Inc., Respondent, vChristopher Schuh et al., Appellants, et al., Defendants. |
—[*1] Hiscock & Barclay, L.L.P., Buffalo (Charles C. Martorana of counsel), forrespondent.
Rose, J. Appeals (1) from an order of the Supreme Court (Ferradino, J.), entered October 5,2004 in Saratoga County, which, among other things, granted plaintiff's motion for summaryjudgment, (2) from a judgment of said court, entered January 21, 2005 in Saratoga County,directing the sale of certain real property owned by defendants Christopher Schuh and DianeSchuh, (3) from an order of said court, entered November 21, 2005 in Saratoga County, whichdenied said defendants' motion to vacate a default judgment entered against them, (4) from anorder of said court, entered August 25, 2006 in Saratoga County, which denied said defendants'motion for reconsideration, and (5) from that part of an amended order of said court, enteredJanuary 30, 2007 in Saratoga County, as modified by an order entered March 6, 2007 in SaratogaCounty, which ordered certain distributions to said defendants' creditors.
In 2004, plaintiff commenced this mortgage foreclosure action, alleging that, by anassignment to it as nominee, it was the holder of a note executed by defendants ChristopherSchuh and Diane Schuh (hereinafter collectively referred to as defendants) and a mortgageexecuted by Christopher Schuh, and that defendants were in default in paying on the note. Thesummons and complaint were received by defendants as a result of service made pursuant toCPLR 308 (2) at their residence, which is the property subject to the mortgage. In response,defendants sent plaintiff a "reply" that denied plaintiff's allegations. Treating the reply as ananswer, plaintiff moved for summary judgment, serving notice of the motion by mail to the street[*2]address of the mortgaged property. When defendants failed torespond, Supreme Court granted the motion and a judgment was entered on January 21, 2005.Defendants later moved to vacate their default on the grounds that they were not properly servedwith the motion for summary judgment and had defenses to plaintiff's claims. Supreme Courtdenied their motion. During the following 15 months, defendants made motions forreconsideration and stays of the foreclosure sale that were denied. Ultimately, defendants electedto redeem the property and received a discharge of mortgage. Defendants now appeal.[FN1]
Initially, we must dismiss the appeals from the order granting summary judgment and thejudgment of foreclosure and sale because they were entered upon defendants' default in failing tooppose plaintiff's motion and, thus, they are not appealable (see CPLR 5511; Jampolskaya v Victor Gomelsky, P.C.,36 AD3d 761, 762 [2007]; Friedman v Starwood Hotels & Resorts World Wide, Inc., 26 AD3d161, 162 [2006]; Farhadi-Jou v KeyBank of N.Y., 2 AD3d 1041, 1042 [2003]). Nor can defendants appeal from the orderentered August 25, 2006, which denied reconsideration of their motion to vacate. Because theyfailed to present any new facts or change in the law that would require a different determination,we view defendants' motion as one for reargument, rather than renewal, and no appeal may betaken from the denial of a motion to reargue (see e.g. Fitzgerald v Adirondack Tr. Lines, Inc., 23 AD3d 907, 909n [2005]). We do agree, however, that defendants' redemption of the property by paying theamount of the judgment does not terminate their right to appeal from the order denying theirmotion to vacate (see Matter of Seagroatt Floral Co. [Riccardi], 78 NY2d 439, 448 n[1991]; Matter of Raymond v Bolzar Bldrs., 3 AD2d 800, 800 [1957]).
Nonetheless, we are not persuaded by defendants' contention that plaintiff's motion was notproperly served and, thus, their motion to vacate should have been granted. Inasmuch asdefendants were self-represented when they served their reply, service of plaintiff's motion uponthem was governed by CPLR 2103 (c) and should have been made by mail to either an addressthey designated or their last known address (see CPLR 2103 [b] [2]). Althoughdefendants cite the post office box address on the certified mail return receipt card used to notifythem of plaintiff's receipt of their reply, no address was stated on the reply or otherwisedesignated in any writing for service of future papers. Nor is there anything to indicate thatplaintiff's counsel saw the address on the return receipt, which is ordinarily not seen by therecipient because it is removed and returned to the sender by postal service personnel. In theabsence of a designated address, service was to be made at defendants' "last known address"(CPLR 2103 [b] [2]; see Donohue v La Pierre, 99 AD2d 570, 570 [1984]). Plaintiff wasjustified in sending the motion papers to defendants' residence here, even if it was aware ofdefendants' post office box, particularly since that was the address designated in the mortgage forthe service of notice, and the summons and complaint had been successfully received bydefendants after service at that address.[FN2]Although defendants allege that they do not receive mail at their residence, they have [*3]provided no evidence that the postal service will not deliver mailaddressed to them there.
Given the presumption of service created by plaintiff's submission of an affidavit of serviceof its summary judgment motion, defendants' mere denial of receipt fails to constitute areasonable excuse for their default (seeSarva v Chakravorty, 14 AD3d 689, 690 [2005]). As Supreme Court noted, defendantsalso failed to allege a meritorious defense since they admit not making payments as required bythe mortgage and did no more than raise speculative and conclusory challenges to plaintiff'sstanding to prosecute the foreclosure action. Finally, as for defendants' challenge to the amountdue, we note that this would not have been a defense to the motion for summary judgment, butonly a factor to be reconciled in the referee's or court's calculation of the amount owed.Accordingly, we find that Supreme Court properly denied defendants' motion to vacate the ordergranting summary judgment.
We have considered defendants' remaining contentions, including its request that this Courtvacate the judgment of foreclosure and then deem the action to be moot due to their redemption,and find them to be without merit.
Mercure, J.P., Peters, Lahtinen and Kavanagh, JJ., concur. Ordered that the appeals from theorders entered October 5, 2004 and August 25, 2006, and the judgment entered January 21, 2005are dismissed, without costs. Ordered that the order entered November 21, 2005 and the amendedorder entered January 30, 2007, as modified by an order entered March 6, 2007, are affirmed,without costs.
Footnote 1: While we have taken judicialnotice of the amended complaint and its exhibits in defendants' federal action, we have notconsidered any of the materials contained in defendants' "supplemental addendum" that were notpart of the record before Supreme Court.
Footnote 2: While the mortgage misstatedthe town and zip code of the mortgaged premises, there is no dispute that the intent was todesignate the mortgaged premises and that plaintiff's motion papers were mailed to the actualaddress of the premises.