Olympia Mtge. Corp. v Ramirez

2004 NYSlipOp 06031

July 12, 2004

Appellate Division, Second Department

As corrected through Wednesday, September 22, 2004

Olympia Mortgage Corp., Respondent, v Fernando Ramirez et al., Appellants.

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In an action to foreclose a mortgage, the defendants Fernando Ramirez and Jose Rodriguez appeal from an order of the Supreme Court, Suffolk County (McNulty, J.), dated January 24, 2003, which denied their motion to vacate and set aside the foreclosure sale.

Ordered that the order is affirmed, with costs.

There is no merit to the appellants' contention that their execution of the forbearance agreement with the plaintiff constituted an appearance in this action to foreclose a mortgage (see Polish Natl. Alliance of Brooklyn, U.S.A. v White Eagle Hall Co., 98 AD2d 400, 403 [1983]). Since the appellants defaulted in appearing and the forbearance agreement did not entitle them to notice of the sale, the plaintiff's failure to serve them with notice of the sale after their default provided no basis for granting their motion to vacate and set aside the foreclosure sale (see Bank of N.Y. v Agenor, 305 AD2d 438 [2003]; Galasso v 592 Pac. St. Realty Corp., 304 AD2d 789 [2003]; Colombi v RWL Constr. Corp., 278 AD2d 191 [2000]). Smith, J.P., Krausman, Crane and Spolzino, JJ., concur.