| Eastern Sav. Bank, FSB v Brown |
| 2013 NY Slip Op 08228 [112 AD3d 668] |
| December 11, 2013 |
| Appellate Division, Second Department |
| Eastern Savings Bank, FSB,Respondent, v Cleveland Brown, Appellant, et al,Defendants. |
—[*1] Kriss & Feuerstein LLP, New York, N.Y. (Jerold C. Feuerstein and Kristine L.Grinberg of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Cleveland Brown appeals from(1) an order of the Supreme Court, Queens County (Kitzes, J.), entered December 19,2011, which denied his motion, inter alia, to vacate an order of the same court enteredJune 30, 2009, granting the plaintiff's unopposed motion for summary judgment on thecomplaint and a judgment of foreclosure and sale of the same court entered September30, 2010, (2) a decision of the same court dated May 7, 2012, and (3) an order andjudgment (one paper) of the same court entered July 24, 2012, which granted theplaintiff's motion to confirm a referee's report of the sale, to fix the fair market value ofthe subject property at the time of the sale at the sum of $550,000, and for leave to entera deficiency judgment in the principal sum of $611,198.69, denied his cross motion, interalia, to vacate the foreclosure sale, and is in favor of the plaintiff and against him in thetotal sum of $648,317.49.
Ordered that the appeal from the decision is dismissed, without costs ordisbursements, as no appeal lies from a decision (see Schicchi v J.A. Green Constr.Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the order entered December 19, 2011, is affirmed, without costs ordisbursements; and it is further,
Ordered that the order and judgment is modified, on the law, by deleting (1) theprovisions thereof granting those branches of the plaintiff's motion which were to fix thefair market value of the subject property at the time of the sale at the sum of $550,000and for leave to enter a deficiency judgment in the principal sum of $611,198.69, and (2)the third, fourth, and fifth decretal paragraphs thereof, which, inter alia, awarded theplaintiff a deficiency judgment in the total sum of $648,317.49; as so modified, the orderand judgment is affirmed, without costs or disbursements, and the matter is remitted tothe Supreme Court, Queens County, for further proceedings consistent herewith.[*2]
In this mortgage foreclosure action, the plaintiffmoved for summary judgment on the complaint, and the defendant Cleveland Brown(hereinafter the appellant) defaulted on the motion. In an order entered June 30, 2009, theSupreme Court granted the plaintiff's motion. The appellant moved to vacate his default,and his motion was denied in an order entered May 10, 2010, from which no appeal wastaken. On September 30, 2010, the Supreme Court, upon the order entered June 30,2009, entered a judgment of foreclosure and sale. The appellant made several subsequentmotions to vacate his default, to vacate the order entered June 30, 2009, and to vacate thejudgment of foreclosure and sale, all of which were denied. In the order appealed from,entered December 19, 2011, the Supreme Court properly denied yet another motion bythe appellant to vacate the order entered June 30, 2009, and the default judgment offoreclosure and sale, since the motion was premised on grounds asserted in his priormotions to vacate his default that had been previously denied by the court in orders fromwhich he took no appeal (seeViva Dev. Corp. v United Humanitarian Relief Fund, 108 AD3d 619, 620[2013]; Discover Bank vQader, 105 AD3d 892, 892 [2013]; JMP Pizza, LLC v 34th St. Pizza, LLC, 104 AD3d 648,648 [2013]; 47 Thames Realty,LLC v Robinson, 85 AD3d 851, 852 [2011]; Robert Marini Bldr. v Rao,263 AD2d 846, 848 [1999]), or premised on grounds that were apparent at the time thatthe appellant made the prior motions, but had not been asserted in those prior motions(see Lambert v Schreiber,95 AD3d 1282, 1283 [2012]). Accordingly, the order entered December 19, 2011,must be affirmed.
However, those branches of the plaintiff's motion which were to fix the fair marketvalue of the subject property at the time of the sale at the sum of $550,000, and for leaveto enter a deficiency judgment in the principal sum of $611,198.69, should not have beengranted, since the plaintiff failed to establish that it was entitled to that relief. RPAPL1371 (2) permits a mortgage lender to enter a deficiency judgment for the amount owed"less the market value as determined by the court or the sale price of the propertywhichever shall be the higher." "The mortgagee has the initial burden to make a primafacie showing of the fair market value of the property as of the foreclosure sale date" (Flushing Sav. Bank, FSB vBitar, 106 AD3d 690, 691 [2013] [internal quotation marks omitted]). Anaffidavit by a "licensed real estate appraiser setting forth his [or her] opinion as to the fairmarket value of the premises on the date of the foreclosure sale, and stating in conclusoryfashion that his [or her] opinion was based upon his [or her] personal inspection of thesubject premises, examination of the neighborhood, a review of sales and rentals ofcomparable properties, and general economic trends and expenses data," withoutdescribing the subject premises or appending evidence of comparable sales and marketdate, is not sufficient (id.). In the instant case, the plaintiff relied upon such aconclusory affidavit, two exterior photographs of the front and side of the subjectpremises, and information purportedly indicating the average sale price of properties inthe relevant zip code area, without explaining how those average prices related to theappraiser's conclusion that the fair market value of the subject property on the date of theforeclosure sale was $550,000. The plaintiff's submission was, thus, insufficient to meetits burden of establishing that it was entitled to a deficiency judgment.
The appellant's remaining contentions either are without merit or need not beaddressed in light of our determination.
Accordingly, the matter must be remitted to the Supreme Court, Queens County, forfurther proceedings on those branches of the plaintiff's motion which were to fix the fairmarket value of the subject property at the time of the sale and for leave to enter adeficiency judgment against the appellant, which proceedings shall include thesubmission by the plaintiff of proof in admissible form describing the subject premisesand comparable sales and market data. Angiolillo, J.P., Dickerson, Austin andHinds-Radix, JJ., concur.