Opinion
June 22, 1998
Appeal from the Supreme Court, Suffolk County (Berler, J.).
Ordered that the order dated June 25, 1997, is affirmed insofar as appealed from; and it is further,
Ordered that the appeal from the order dated September 25, 1997, is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the respondent is awarded one bill of costs.
According to RPAPL 1371 (2), notice of a motion for leave to enter a deficiency judgment "shall be served personally or in such other manner as the court may direct". We find that the service of notice of such a motion upon the secretary for the defendants' attorneys here was sufficient to satisfy the requirement set forth in RPAPL 1371 (2) (see, Columbus Realty Inv. Corp. v. Weng-Heng Tsiang, 226 A.D.2d 259; Roosevelt Sav. Bank v. Tsotsos, 215 A.D.2d 547; Sarasota, Inc. v. Homestead Acres, 249 A.D.2d 290). In opposition to the plaintiffs motion for a deficiency judgment, the defendants failed to contend that the plaintiffs motion was not made within the 90-day period set forth in RPAPL 1371 (2). As a result, the defendants could not raise the defense of untimeliness any time thereafter (see, Vittoria v. Mazel, Bracha, Hatzlocha, 217 A.D.2d 657). In any event, because the delivery date of the deed was October 28, 1996, and notice was received January 24, 1997, the 90-day requirement was satisfied. Consequently, we find that the plaintiff complied with the requirements of RPAPL 1371 (2).
In as much as the defendants' motion, denominated as one for renewal and reargument, was not based upon new evidence which was unavailable upon the original motion, the motion was actually one for reargument (see, Dellocono v. State of New York, 244 A.D.2d 521). Thus, the appeal from the order dated September 27, 1997, must be dismissed because no appeal lies from an order denying reargument (see, Mucciola v. City of New York, 177 A.D.2d 553).
The defendant's remaining contention is without merit.
Mangano, P. J., Bracken, Krausman and McGinity, JJ., concur.