FAILED TO PROPERLY CHALLENGE SERVICE OF NOTICE OF SALE
Claiming they were denied a right to redeem, as no “notice of sale” had been served upon them, the defendants brought a motion to vacate a foreclosure sale. And after the Kings County Supreme Court denied that motion, an appeal ensued.
On its review, the Appellate Division, Second Department, noted that a court may set aside a foreclosure sale within one year if there was a “failure to comply with the requirements of the civil practice law and rules as to the notice, time or manner of such sale, if a substantial right of a party was prejudiced by the defect.” But it didn’t think that relief in defendants’ favor was warranted in this instance.
Not only did the plaintiff’s papers provide “prima facie evidence” that the notice had been “properly served,” but the defendants failed to competently rebut that showing. Their “bare and unsubstantiated denials of receipt” were found to be insufficient, and they failed to show how they were “prejudiced” by any service-related defect.
As a result, the underlying determination was left undisturbed.
Looks like the AD2 sure foreclosed that.
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DECISION