CITIBANK v. Erica Winzelberg, et al., Appellants. (1998)

In an action to foreclose a mortgage upon real property, the defendants Erica Winzelberg, Martin Ungar, and Suzy Menczer appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County (Barasch, J.), dated February 18, 1997, as (a) granted the plaintiff's motion to serve the defendants Milly Stefansky, Eli Stefansky, and Martin Ungar by publication, and (b) denied the cross motion of the defendants Erica Winzelberg and Suzy Menczer for the appointment of a lip-reading interpreter for Suzy Menczer, and (2) from an order of the same court, dated June 5, 1997, which denied the motion of the defendants Martin Ungar, Erica Winzelberg, and Suzy Menczer, inter alia, to dismiss the action insofar as asserted against them and to vacate the order dated February 18, 1997.

ORDERED that the appeal from so much of the order dated February 18, 1997, as granted the plaintiff's motion to serve the defendants Milly Stefansky and Eli Stefansky by publication is dismissed, without costs or disbursements, as the appellants are not aggrieved thereby;  and it is further,

ORDERED that the appeal by Martin Ungar from so much of the order dated February 18, 1997, as denied the cross motion of the defendants Erica Winzelberg and Suzy Menczer is dismissed, without costs or disbursements, as he is not aggrieved thereby;  and it is further,

ORDERED that the order dated February 18, 1997, is affirmed insofar as reviewed, without costs or disbursements, and it is further,

ORDERED that the order dated June 5, 1997, is affirmed, without costs or disbursements.

Contrary to the appellants' contention, the court properly granted the plaintiff leave to serve Martin Ungar by publication inasmuch as the plaintiff sufficiently demonstrated that service could not be made by another prescribed method with due diligence (see, CPLR 315).

The appellants' remaining contentions are without merit.

MEMORANDUM BY THE COURT.