LEADER FEDERAL BANK FOR SAVINGS v. VAN TIENHOVEN (1999)

 Supreme Court erred in granting plaintiff's motion for a writ of assistance and in denying that part of the motion of Andrew Van Tienhoven and Betty Lou Van Tienhoven (defendants) seeking to set aside the foreclosure sale of property located on Clearview Drive in the Town of Clay. The letter sent by defendants' counsel to plaintiff after service of the summons and complaint constitutes a notice of appearance (see, Parrotta v. Wolgin, 245 A.D.2d 872, 873, 666 N.Y.S.2d 341;  Cohen v. Ryan, 34 A.D.2d 789, 311 N.Y.S.2d 644).   Thus, defendants were entitled to notice of the application for a default judgment (see, CPLR 3215[g][1] ) and the foreclosure sale (see, Aetna Life Ins. Co. v. Avalon Orchards, 103 A.D.2d 948, 949, 479 N.Y.S.2d 564;  see also, CPLR 2103[e] ).   Although the lack of notice of the application by itself does not warrant vacatur of that judgment (see, Fleet Fin. v. Nielsen, 234 A.D.2d 728, 729-730, 650 N.Y.S.2d 904;  see also, Fish v. Fish, 251 A.D.2d 942, 674 N.Y.S.2d 879), the lack of notice of the foreclosure sale deprived defendants of an opportunity to protect their interest in the property (see, Pol-Tek Indus. v. Panzarella, 227 A.D.2d 992, 643 N.Y.S.2d 289;  Aetna Life Ins. Co. v. Avalon Orchards, supra, at 949, 479 N.Y.S.2d 564;  CPLR 2003).   Defendants' remaining contention is raised for the first time on appeal, and thus we do not consider it.

Order unanimously reversed on the law with costs, plaintiff's motion denied, defendants' motion granted in part and foreclosure sale vacated.

MEMORANDUM: