| Cicero v Aspen Hills II, LLC |
| 2011 NY Slip Op 05153 [85 AD3d 1411] |
| June 16, 2011 |
| Appellate Division, Third Department |
| Luigi Cicero, Appellant, v Aspen Hills II, LLC, et al.,Respondents, et al., Defendants. |
—[*1] Bosman & Associates, P.L.L.C., Albany (T. Padric Moore of counsel), for Aspen Hills II,LLC and others, respondents.
Spain, J. Appeal from an order of the Supreme Court (Giardino, J.), entered July 26, 2010 inFulton County, which, among other things, denied plaintiff's motion for a deficiency judgmentagainst certain defendants.
In 2005, defendants Aspen Hills II, LLC, Robert A. Bosman, Judith E. Janco, Kevin C.Thompson and J. Whitney Thompson (hereinafter collectively referred to as defendants)borrowed $480,000 from plaintiff in order to develop property owned by Aspen Hills located inthe Town of Johnstown, Fulton County. The loan was secured by a mortgage on Aspen Hills'property. In July 2008, after defendants failed to make required payments, plaintiff commenced aforeclosure action and, ultimately, was awarded a judgment of foreclosure and sale. The amountdue on the mortgage was calculated at $258,727.02 by the appointed referee. At the ensuingOctober 2009 foreclosure sale, plaintiff, the sole bidder, purchased the property for $105,000. OnMarch 25, 2010, plaintiff moved for confirmation of the referee's report and for a deficiencyjudgment against defendants in the amount of $120,695.91 plus interest.[FN*]Supreme [*2]Court granted the motion to confirm, but denied themotion for a deficiency judgment on the ground that the motion was not timely. Plaintiff appeals.
We affirm. Pursuant to the RPAPL, "the mortgagee in a mortgage foreclosure action [may]recover a deficiency judgment for the difference between the amount of indebtedness on themortgage and either the auction price at the foreclosure sale or the fair market value of theproperty, whichever is higher" (BTC Mtge. Invs. Trust 1997-SI v Altamont Farms, 284AD2d 849, 849-850 [2001]; see RPAPL 1371 [2]). The statute requires, however, that amotion for a deficiency judgment be made "within ninety days after the date of theconsummation of the sale by the delivery of the proper deed of conveyance to the purchaser"(RPAPL 1371 [2]). The 90-day period is a provision in the nature of a statute of limitations, thus"[f]ailure by plaintiff to serve notice within the 90-day period is a complete bar to the entry of adeficiency judgment" (Amsterdam Sav. Bank v Amsterdam Pharm. Dev. Corp., 106AD2d 797, 797 [1984]). Here, no dispute exists that the appointed referee delivered the deed toplaintiff on November 23, 2009, or that there was any deficiency in the deed itself. Plaintiff wasrequired, therefore, to file the motion by February 21, 2010—90 days from delivery of thedeed—and, accordingly, Supreme Court properly held that plaintiff's March 25, 2010motion was untimely (see Citicorp Mtge. v Strong, 227 AD2d 818, 820-821 [1996];National Bank of Sussex County v Betar, 207 AD2d 610, 612 [1994]).
Plaintiff asserts, instead, that the 90-day period did not begin to run until the expert'sappraisals of the mortgaged properties were delivered to plaintiff on January 13, 2010.Specifically, because the deed could not be recorded in New York State until two tax forms werecompleted—the TP-584 and the RP-5217—which could not be executed until thefair market value was derived from the appraisals, plaintiff argues that consummation of the sale,and the commencement of the 90-day period, did not occur until the appraisals were delivered.We disagree. Both our statutory and common laws dictate that transfer of real property occurs atthe delivery of a properly executed deed, rather than when the deed is recorded (see RealProperty Law § 244; Manhattan Life Ins. Co. v Continental Ins. Cos., 33 NY2d370, 372 [1974]; Janian v Barnes, 284 AD2d 717, 718 [2001]). Plaintiff's attempt to readthe clear reference to "delivery of the proper deed of conveyance" in RPAPL 1371 (2) to requiresomething more than the delivery of the properly executed deed to commence the limitationsperiod is not persuasive (see Citicorp Mtge. v Strong, 227 AD2d at 820-821; SavingsBank of Utica v 561-575 Delaware Ave., 201 AD2d 946, 946 [1994]; Crossland Sav. vPatton, 182 AD2d 496 [1992], lv denied 80 NY2d 755 [1992]).
Mercure, J.P., Kavanagh, Stein and Garry, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: The deficiency was calculatedby reducing the judgment amount plus interest, fees and tax liens ($283,695.91) by thereasonable market value of the property based upon expert appraisals ($163,000).