Federal Home Loan Mtge. Corp. v Mcgibney

[*1] Federal Home Loan Mtge. Corp. v Mcgibney 2018 NY Slip Op 51989(U) Decided on October 11, 2018 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 11, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANTHONY MARANO, P.J., JERRY GARGUILO, JAMES V. BRANDS, JJ
2017-176 W C

Federal Home Loan Mortgage Corporation, Respondent,

against

James P. McGibney, Also Known as James McGibney, and Carole McGibney, Also Known as Carole M. McGibney, Appellants, and Maria Baudetti et al., Occupants.

Clair & Gjertsen, Esqs. (Ira S. Clair of counsel), for appellants. Fein, Such & Crane, LLP (Michael S. Hanusek and Lisa Brown of counsel), for respondent.

Appeal from an order of the Justice Court of the Town of Mount Pleasant, Westchester County (Robert J. Ponzini, J.), dated September 23, 2015. The order denied a motion by occupants James McGibney and Carole McGibney for summary judgment dismissing the petition in a summary proceeding brought pursuant to RPAPL 713 (5).

ORDERED that the order is affirmed, without costs.

In this summary proceeding by a purchaser in foreclosure (see RPAPL 713 [5]), occupants James McGibney & Carole McGibney (appellants) were served at the premises with a 10-day notice to quit with an attached certified copy of the referee's deed by conspicuous place service (see RPAPL 713 [5]; 735). After appellants moved for summary judgment dismissing the petition, the parties stipulated to all the facts and agreed that the only issue remaining was whether conspicuous-place service can satisfy the "exhibition" requirement of RPAPL 713 (5). The Justice Court held that the referee's deed had been properly "exhibited" to appellants and denied their motion.

The Appellate Term for the Second, Eleventh and Thirteenth Judicial Districts has recently held in Plotch v Dellis (60 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]) that service of a certified copy of a deed by means other than personal delivery satisfies the exhibition requirement of RPAPL 713 (5). For the reasons set forth in Plotch, we agree with the Justice Court's determination that the referee's deed was properly "exhibited" to appellants.

Accordingly, the order is affirmed.

MARANO, P.J., GARGUILO and BRANDS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2018