Opinion
2002-10911
Argued April 15, 2003.
May 12, 2003.
In an action to foreclose a mortgage, the defendants Alabert J. O'Brien, a/k/a Albert J. O'Brien and Douglas Alan O'Brien, as Trustee FBO Denis J. O'Brien Family, appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Underwood, J.), dated May 3, 2002, as denied their motion to strike a notice of claim to surplus money, dated September 10, 2001.
Lazer, Aptheker, Rosella Yedid, P.C., Melville, N.Y. (Zachary Murdock of counsel), for appellants.
Brown Raysman Millstein Felder Steiner, LLP, New York, N.Y. (John J. Gallagher and Rafael J. Droz of counsel), for respondents.
Before: DAVID S. RITTER, J.P., MYRIAM J. ALTMAN, GABRIEL M. KRAUSMAN, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
Since the report of sale had not been confirmed, the subject notice of claim to surplus money, dated September 10, 2001, was timely (see RPAPL 1361). Contrary to the appellants' contention, the claimant did not waive any and all claims to the surplus money.
RITTER, J.P., ALTMAN, KRAUSMAN and CRANE, JJ., concur.