| U.S. Bank, N.A. v Bernhardt |
| 2011 NY Slip Op 07415 [88 AD3d 871] |
| October 18, 2011 |
| Appellate Division, Second Department |
| U.S. Bank, N.A., as Trustee, Respondent, v DeborahBernhardt, Appellant, et al., Defendants. GFRE, Inc.,Intervenor-Respondent. |
—[*1] Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Jordan J. Manfro of counsel), forplaintiff-respondent.
In an action to foreclose a mortgage, the defendant Deborah Bernhardt appeals, as limited byher brief, from so much of an order of the Supreme Court, Richmond County (Giacobbe, J.),dated August 18, 2010, as denied that branch of her motion which was to set aside a foreclosuresale of the subject property.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Deborah Bernhardt which was to set aside a foreclosuresale of the subject property is granted.
After a hearing on the issue of the propriety of the service of process, the Supreme Courtdetermined that, due to improper service, personal jurisdiction over the defendant DeborahBernhardt, the owner of the foreclosed-upon property, had not been acquired. Thus, the SupremeCourt granted that branch of Bernhardt's motion which was to vacate the judgment of foreclosureand sale that had been entered upon her default in answering or appearing. However, relyingupon its purported equitable powers, the Supreme Court denied that branch of Bernhardt's motionwhich was to set aside the foreclosure sale. This was error.
A court is without power to render a judgment against a party over whom the court lacksjurisdiction. A judgment rendered without jurisdiction is void. Further, when a deed is issued inexecution upon such a void judgment, that deed is similarly void (see Hirsch v Syrota's AutoWreckers, 211 AD2d 621, 622 [1995]; Berlin v Sordillo, 179 AD2d 717, 719 [1992];McMullen v Arnone, 79 AD2d 496, 499 [1981]; 3-30 Bergman on New York MortgageForeclosures § 30.06 [2011]). Consequently, once the Supreme Court concluded thatpersonal jurisdiction over Bernhardt was lacking, it should have granted that branch ofBernhardt's motion which was to set aside the foreclosure sale (see Bank One Natl. Assn. v Osorio, 26AD3d 452, 453 [2006]; Federal Home Loan Mtge. Corp. v MacPherson, 277 AD2d418, 419 [2000]; Ralph C. Sutro Co. v Valenzuela, 113 AD2d 793 [1985]; Horvath vGrid Realty Corp., 64 AD2d 691 [1978]).
In light of our determination, Bernhardt's remaining contention has been rendered [*2]academic. Skelos, J.P., Chambers, Sgroi and Miller, JJ., concur.[Prior Case History: 28 Misc 3d 1234(A), 2010 NY Slip Op 51593(U).]