| TD Bank, N.A. v Talia Props., Inc. |
| 2013 NY Slip Op 07026 [110 AD3d 1057] |
| October 30, 2013 |
| Appellate Division, Second Department |
| TD Bank, N.A., Successor by Merger to Commerce Bank,N.A., Appellant, v Talia Properties, Inc., et al., Defendants, and Keith Leonard,Respondent. |
—[*1]
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated April 23,2012, as denied that branch of its motion which was for leave to enter a deficiencyjudgment pursuant to RPAPL 1371 against the defendant Keith Leonard.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,that branch of the plaintiff's motion which was for leave to enter a deficiency judgmentpursuant to RPAPL 1371 against the defendant Keith Leonard is granted, and the matteris remitted to the Supreme Court, Suffolk County, for the entry of an appropriatejudgment against Keith Leonard.
The plaintiff commenced this action to foreclose on a mortgage secured by realproperty located in Suffolk County, naming, among others, Talia Properties, Inc.(hereinafter Talia), Active Voice and Data Specialists, Inc. (hereinafter Active Voice),and Keith Leonard as defendants. Upon their default, a judgment of foreclosure and salewas entered, which also determined that the plaintiff had a right to seek a deficiencyjudgment against Talia, Active Voice, and Leonard. The subject real property was sold atauction for the sum $266,500, and the referee noted in his report that a deficiency of$401,263.94 remained. The plaintiff moved for leave to enter a deficiency judgmentagainst Talia, Active Voice, and Leonard. The Supreme Court granted leave to enter adeficiency judgment against Talia and Active Voice in the amount of $282,763.94,representing the difference between the amount owed and the $385,000 market value ofthe property. However, without explanation, the Supreme Court denied that branch of theplaintiff's motion which was for leave to enter a deficiency judgment against Leonard.
" '[A] judgment of foreclosure and sale entered against a defendant is final as to allquestions at issue between the parties, and all matters of defense which were or mighthave been litigated in the foreclosure action are concluded' " (NAB Asset Venture IV, LLP vOrangeburg Equities, 19 AD3d 565, 565 [2005], quoting Green Point Sav.Bank v Clarke, 220 AD2d 384, 385 [1995]). As reflected by the judgment offoreclosure and sale, the issue of Leonard's personal liability for the deficiency after thesale of the property has already been finally adjudicated, making it res judicata (NABAsset Venture IV, LLP v Orangeburg Equities, 19 AD3d at 565; Bank of N.Y. vRoute 312 Dev. Corp., 185 AD2d 582, 584 [1992]; Ogdensburg Sav. & LoanAssn. v Moore, 100 AD2d 679 [1984]). Thus, to the extent that the Supreme Courtdenied leave to enter a deficiency judgment on the ground that Leonard's personalliability had not been established, that determination was erroneous. The [*2]plaintiff otherwise established its entitlement to the entry ofa deficiency judgment against Leonard by showing its compliance with the requirementsof RPAPL 1371, including the timely making of a motion for a deficiency judgment,personal service upon Leonard of the papers constituting the motion, and theestablishment of the fair and reasonable value of the subject real property (see LongIs. Sav. Bank v Yaloz, 289 AD2d 380 [2001]; BTC Mtge. Invs. Trust 1997-SI vAltamont Farms, 284 AD2d 849 [2001]; Bianco v Coles, 131 AD2d 10[1987]).
Accordingly, that branch of the plaintiff's motion which was for leave to enter adeficiency judgment against Leonard should have been granted, and we remit the matterto the Supreme Court, Suffolk County, for the entry of an appropriate judgment againsthim. Rivera, J.P., Balkin, Chambers and Sgroi, JJ., concur.