Shaw Funding, L.P. v Samuel

Shaw Funding, L.P. v Samuel 2012 NY Slip Op 09042 Decided on December 26, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 26, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
SANDRA L. SGROI
ROBERT J. MILLER, JJ.
2011-11945
(Index No. 19012/08)

[*1]Shaw Funding, L.P., appellant,

v

Percy M. Samuel, et al., defendants, Melissa Vina John, et al., respondents. Irwin Popkin, Melville, N.Y., for appellant. Clair & Gjertsen, Scarsdale, N.Y. (Ira S. Clair of counsel), for respondents.




DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered November 28, 2011, which, after a hearing to determine the validity of service of process, granted that branch of the motion of the defendants Melissa Vina John and Jessica Carla John which was to vacate a deficiency judgment entered February 22, 2011, based upon lack of personal jurisdiction.

ORDERED that the order is affirmed, with costs.

The resolution of credibility issues by the hearing court is entitled to deference on appeal, and will be upheld if supported by evidence in the record (see generally Gass v Gass, 42 AD3d 393; Ahrens v Chisena, 40 AD3d 787; Lattingtown Harbor Prop. Owners v Agostino, 34 AD3d 536). The hearing record in this case supports the court's conclusion that the plaintiff did not effectuate service of the motion for a deficiency judgment upon the respondents (see RPAPL 1371[2]; First Nationwide Bank v Pegasus Agency, 253 AD2d 536), and we discern no basis to disturb that determination.

The plaintiff's remaining contentions are without merit.
DILLON, J.P., CHAMBERS, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court