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DEFENDANTS WERE NOT SERVED WITH NOTICE OF THE FORECLOSURE SALE; THEIR MOTION TO VACATE THE FORECLOSURE SALE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this foreclosure action were entitled to service of the notice of the foreclosure sale. Because the defendants were not served with the notice, their motion to vacate the foreclosure sale should have been granted:

“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” … , a court is authorized to set aside a judicial sale within one year thereafter, for failure to comply with the requirement as to notice, but only if a substantial right of a party was prejudiced by the defect.

Here, the defendants established that they were prejudiced by the lack of notice of the sale inasmuch as they were deprived of the opportunity to protect their interest in the subject property … . 38-12 Astoria Blvd., LLC v Ramos, 2022 NY Slip Op 01433, Second Dept 3-9-22

Practice Point: Defendants who have appeared in a foreclosure action are entitled to notice of the foreclosure sale. Here defendants were not served with the notice of sale. Their motion to vacate the foreclosure sale should have been granted.

 

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CAUSES OF ACTION ALLEGING BREACH OF FIDUCIARY DUTY DO NOT ACCRUE UNTIL THE FIDUCIARY... THE TENANT HARASSMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED; SUPREME...