| Flushing Sav. Bank, FSB v Bitar |
| 2013 NY Slip Op 03059 [106 AD3d 690] |
| May 1, 2013 |
| Appellate Division, Second Department |
| Flushing Savings Bank, FSB, Appellant, v PierreBitar, Also Known as Pierre M. Bitar, Respondent, et al.,Defendants. |
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In an action to foreclose a mortgage, the plaintiff appeals from so much of an orderof the Supreme Court, Kings County (Hinds-Radix, J.), dated March 22, 2012, as deniedthat branch of its motion which was pursuant to RPAPL 1371 (2) for leave to enter adeficiency judgment against the defendant Pierre Bitar, also known as Pierre M. Bitar.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
The plaintiff mortgagee, upon obtaining a judgment of foreclosure, purchased thesubject premises at the foreclosure sale and subsequently moved for leave to enter adeficiency judgment against the mortgagor. "RPAPL 1371 (2) permits the mortgagee in amortgage foreclosure action to recover a deficiency judgment for the difference betweenthe amount of indebtedness on the mortgage and either the auction price at theforeclosure sale or the fair market value of the property, whichever is higher" (BTCMtge. Invs. Trust 1997-SI v Altamont Farms, 284 AD2d 849, 849-850 [2001];see Columbus Realty Inv. Corp. v Gray, 240 AD2d 529, 530 [1997]; MarineMidland Bank v Harrigan Enters., 118 AD2d 1035, 1037 [1986]). "The mortgageehas the initial burden to make a prima facie showing of the fair market value of theproperty as of the foreclosure sale date" (BTC Mtge. Invs. Trust 1997-SI v AltamontFarms, 284 AD2d at 850), and whether the mortgagee meets that initial burdenpresents "a factual question for the court to resolve based on the entire record"(Marine Midland Bank v Harrigan Enters., 118 AD2d at 1037).
Here, the plaintiff submitted only a four-paragraph affidavit of a licensed real estateappraiser setting forth his opinion as to the fair market value of the premises on the dateof the foreclosure sale, and stating in conclusory fashion that his opinion was based uponhis personal inspection of the subject premises, examination of the neighborhood, areview of sales and rentals of comparable properties, and general economic trends andexpense data. However, the appraiser did not describe the subject premises or the resultsof his inspection and failed to append any of the evidence of comparable sales andmarket data upon which he relied in arriving at his opinion. Nor did the plaintiff submitan actual appraisal report. The Supreme Court was entitled to reject the opinion of theplaintiff's appraiser as without probative value in light of the lack of evidentiary [*2]foundation set forth in his affidavit (see generally Diazv New York Downtown Hosp., 99 NY2d 542, 544 [2002]; BTC Mtge. Invs.Trust 1997-SI v Altamont Farms, 284 AD2d at 850; Adirondack Trust Co. vFarone, 282 AD2d 910, 912-913 [2001]). Especially here, in light of the largediscrepancy between the appraised value and the relatively low sale price at theforeclosure sale, the Supreme Court properly declined to accept the appraiser's opinionon its face without evidentiary support.
The plaintiff's remaining contentions are without merit.
Accordingly, in light of the plaintiff's failure to make a prima facie showing as to thevalue of the subject premises, the Supreme Court properly denied that branch of theplaintiff's motion which was pursuant to RPAPL 1371 (2) for leave to enter a deficiencyjudgment. Skelos, J.P., Angiolillo, Roman and Miller, JJ., concur.