| Bank of Smithtown v Pine Tree Devs., LLC |
| 2013 NY Slip Op 02704 [105 AD3d 983] |
| April 24, 2013 |
| Appellate Division, Second Department |
| Bank of Smithtown, Respondent, v Pine TreeDevelopments, LLC, et al., Appellants, et al., Defendant. |
—[*1] Jeffrey B. Hulse, Sound Beach, N.Y., for respondent.
In an action to foreclose a mortgage, the defendants Pine Tree Developments, LLC,Sarachel Developments, Ltd., and Patrick A. Curtis appeal, as limited by their brief, fromso much of (1) an amended order and judgment (one paper) of the Supreme Court,Suffolk County (Jones, Jr., J.), entered May 8, 2012, as granted those branches of theplaintiff's motion which were to confirm one of two reports of a referee, both datedOctober 12, 2011, and for leave to enter a deficiency judgment against them in theprincipal sum of $374,913.24, and is in favor of the plaintiff and against them in theprincipal sum of $374,913.24, and (2) an order of the same court dated October 10, 2012,as denied that branch of their motion which was to vacate the provision in the order andjudgment which was in favor of the plaintiff and against them in the principal sum of$374,913.24 and, upon renewal, adhered to the determinations in the amended order andjudgment entered May 8, 2012, granting those branches of the plaintiff's motion whichwere to confirm the subject referee's report and for leave to enter a deficiency judgmentagainst them in the principal sum of $374,913.24.
Ordered that the amended order and judgment and the order are affirmed insofar asappealed from, with one bill of costs.
In this mortgage foreclosure action, a judgment of foreclosure and sale was enteredwith respect to the two subject parcels of real property directing, inter alia, that they besold and that the proceeds be applied to pay off the underlying debt until the underlyingdebt was satisfied. The judgment of foreclosure further provided that if the proceeds ofthe sales were insufficient to satisfy the debt, the plaintiff was authorized to secure adeficiency judgment against the mortgage debtors pursuant to RPAPL 1371. After thetwo parcels were sold, a referee filed two reports of sale pursuant to RPAPL 1355, one asto each parcel of real property. Thereafter, the plaintiff moved to confirm the referee'stwo reports of sale and for leave to enter a deficiency judgment against the defendantsPine Tree Developments, LLC, Sarachel Developments, Ltd., and Patrick A. Curtis(hereinafter collectively the debtor defendants) in the principal sum of $374,913.24. Inan amended order and judgment entered May 8, 2012, the Supreme Court, among otherthings, granted those branches of the plaintiff's motion and awarded the plaintiff theprincipal sum of $374,913.24 against [*2]the debtordefendants.
On appeal, the defendants contend, among other things, that the Supreme Court erredin granting those branches of the plaintiff's motion which were to confirm one of the tworeports of sale and for leave to enter a deficiency judgment against them, alleging that theplaintiff submitted false statements and misstatements of fact to the court. Contrary to thedefendants' contentions, the Supreme Court properly granted the subject branches of theplaintiff's motion, as the alleged irregularities were not jurisdictional and did notprejudice a "substantial right of a party" (Key Bank of N.Y. v Van Dev. Corp.,210 AD2d 655, 655 [1994]; seeChase Manhattan Bank v Harris, 2 AD3d 999, 1000 [2003]; Key CorporateCapital v Lindo, 304 AD2d 620 [2003]; Amresco New England II v Denino,283 AD2d 599 [2001]; see alsoMortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983, 984 [2008]).
Moreover, upon renewal (see CPLR 2221 [e]), the Supreme Court properlyadhered to its determination granting the subject branches of the plaintiff's motion. Thenew facts offered by the defendants did not warrant a determination different from theinitial determination. Rivera, J.P., Dickerson, Leventhal and Hinds-Radix, JJ., concur.