Summary
reversing trial court's order granting plaintiff's post-sale motion to amend a foreclosure judgment to permit a deficiency judgment against a guarantor who was omitted from the judgment where the plaintiff had named multiple guarantors as defendants in the action, but the judgment provided for a deficiency against only one of them
Summary of this case from Letchworth Realty, LLC v. LLHC Realty, LLCOpinion
December 15, 1997
Appeal from the Supreme Court, Suffolk County (Gerard, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, and that branch of the plaintiff's motion which was for leave to amend the judgment of foreclosure and sale nunc pro tunc to permit the adjudication of liability against the appellants for any deficiency is denied.
In the instant action to foreclose on a mortgage, the complaint named several defendants, including, inter alia, the mortgagor, Strathmore Five Realty Co., Ltd. (hereinafter Strathmore), and two individual guarantors, the appellants Howard Fuller and Cole Hayes. The complaint, in its prayer for relief, sought a deficiency judgment only against Strathmore. The Supreme Court subsequently signed a judgment of foreclosure and sale which provided for a deficiency judgment only against Strathmore. The sale of the mortgaged property resulted in a deficiency. Thereafter, the plaintiff moved, inter alia, for leave to amend the judgment of foreclosure and sale nunc pro tunc to permit an adjudication of liability against Fuller and Hayes for any deficiency. The Supreme Court granted that branch of the motion. We reverse.
Neither the complaint's prayer for relief nor the judgment of foreclosure of sale sought a deficiency judgment against the appellants. Accordingly, the appellants properly assumed that the plaintiff waived its right to seek a deficiency judgment against them, electing instead to be paid from the sale of the premises or, if any deficiency existed, by Strathmore. Under these circumstances, it would be inequitable and unjust to permit the amendment ( see generally, Folser v. Brown, 266 App. Div. 954; Irving Trust Co. v. Seltzer, 265 App. Div. 696; CPLR 5019 [a]).
The three cases relied on by the Supreme Court in support of its holding allowing the amendment are distinguishable from the case at bar. Two of those cases involved mortgage foreclosure actions where the complaints' prayers for relief did seek deficiency judgments against the affected defendants ( see, Poughkeepsie Sav. Bank v. Maplewood Land Dev. Co., 210 A.D.2d 606; Security Pac. Mtge. Real Estate Servs. v. Herald Ctr., 731 F. Supp. 605, 609). In the third case, the amendment was to correct a minor error of draftmanship in the language of the judgment of foreclosure and sale ( see, The Pines At Setauket v. Retirement Mgt. Group, 223 A.D.2d 539).
Mangano, P.J., Santucci, Joy and Lerner, JJ., concur.