Wells Fargo Bank, N.A. v Ramphal |
2019 NY Slip Op 04025 [172 AD3d 1280] |
May 22, 2019 |
Appellate Division, Second Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
Wells Fargo Bank, N.A., Respondent, v Bindoomatie Ramphal et al., Appellants, et al., Defendants. |
Stephen David Fink, Forest Hills, NY, for appellants.
Cohn & Roth, Mineola, NY (Edward C. Klein of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Bindoomatie Ramphal, Somal Singh, and Radjkoemar Jhakry appeal from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered June 8, 2016. The order denied those defendants' motion, in effect, to set aside a foreclosure sale and to enjoin the transfer of the subject property.
Ordered that the order is affirmed, with costs.
In 2013, the plaintiff commenced this residential mortgage foreclosure action against, among others, the defendants Bindoomatie Ramphal, Somal Singh, and Radjkoemar Jhakry (hereinafter collectively the defendants). On December 7, 2015, upon the defendants' default in answering the complaint, the Supreme Court entered a judgment of foreclosure and sale in favor of the plaintiff, inter alia, directing the sale of the subject property. The property was subsequently sold to a third-party purchaser at public auction. Thereafter, the defendants moved, in effect, to set aside the foreclosure sale and to enjoin the transfer of the property on the ground that they never received the notice of sale. In an order entered June 8, 2016, the Supreme Court denied the defendants' motion, and the defendants appeal.
Parties to an action involving the sale of real property pursuant to a judgment, who have
appeared in the action and have not waived service, are entitled to have served upon them,
pursuant to CPLR 2103, all papers in the action, including a notice of sale (see Pol-Tek Indus.
v Panzarella, 227 AD2d 992 [1996]; Rudolph de Winter & Larry M. Loeb, Practice
Commentaries, McKinney's Cons Laws of NY, Book 49
Here, the plaintiff's submissions in opposition to the defendants' motion constituted prima facie evidence of proper service of the notice of sale (see Rolling Acres Developers, LLC v Montinat, 166 AD3d 696 [2018]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763, 764 [2012]), and the defendants' bare and unsubstantiated denials of service were insufficient to rebut the plaintiff's showing (see U.S. Bank, N.A. v Arias, 85 AD3d 1014, 1015 [2011]; Scarano v Scarano, 63 AD3d 716, 716 [2009]; see also Citibank, N.A. v Conti-Scheurer, 172 AD3d 17 [2d Dept 2019]). In any event, the defendants failed to establish that they were prejudiced by any defect in service of the notice of sale (see Bank of N.Y. v Agenor, 305 AD2d 438 [2003]; see also RPAPL 231 [6]; CPLR 2003).
Accordingly, we agree with the Supreme Court's determination to deny the defendants' motion, in effect, to set aside the foreclosure sale and to enjoin the transfer of the property. Leventhal, J.P., Barros, Connolly and Iannacci, JJ., concur.