Opinion
10-29-2014
FLUSHING SAVINGS BANK, FSB, respondent, v. COLMAR REALTY, LLC, et al., appellants, et al., defendants.
Richard E. Hershenson, New York, N.Y., for appellants. Berliner & Pilson, Great Neck, N.Y. (Richard J. Pilson of counsel), for respondent.
Richard E. Hershenson, New York, N.Y., for appellants.Berliner & Pilson, Great Neck, N.Y. (Richard J. Pilson of counsel), for respondent.
Opinion In an action to foreclose a mortgage, the defendants Colmar Realty, LLC, and Wanda Conti appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Strauss, J.), entered June 12, 2013, as denied that branch of their motion which was to vacate a foreclosure sale of the subject property and, thereupon, to set aside a referee's deed.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the appellants' motion which was to vacate a foreclosure sale of the subject property and, thereupon, to set aside a referee's deed. The plaintiff submitted affidavits of service which raised a presumption that the notice of sale was properly mailed and received by the appellants and their counsel (see Engel v. Lichterman, 62 N.Y.2d 943, 944–945, 479 N.Y.S.2d 188, 468 N.E.2d 26 ; Matter of Rodriguez v. Wing, 251 A.D.2d 335, 336, 673 N.Y.S.2d 734 ). Their mere denial of receipt of the notice of sale was insufficient to rebut the presumption of proper mailing and receipt, and failed to raise an issue of fact requiring a hearing (see Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55 ; Mei Yun Li v. Qing He Xu, 38 A.D.3d 731, 732, 832 N.Y.S.2d 290 ; Terlizzese v. Robinson's Custom Serv., Inc., 25 A.D.3d 547, 548, 806 N.Y.S.2d 418 ).
The appellants' remaining contention is without merit.
DICKERSON, J.P., LEVENTHAL, AUSTIN and HINDS–RADIX, JJ., concur.