LENDERS CAPITAL LLC v. Viktoriya Zavelina, Intervenor–Appellant.

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LENDERS CAPITAL LLC, Plaintiff, v. RANU REALTY CORP., et al., Defendants–Respondents, New York State Department of Taxation & Finance, et al., Defendants, Viktoriya Zavelina, Intervenor–Appellant.

Decided: October 16, 2012

TOM, J.P., MAZZARELLI, ANDRIAS, DeGRASSE, ROMÁN, JJ. Stern & Stern, Brooklyn (Pamela Smith of counsel), for intervenor-appellant.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered April 6, 2011, which, in this mortgage foreclosure action, to the extent appealed from, granted the motion of defendants Ranu Realty Corp. and Azizur Rahman to vacate the foreclosure sale, and denied intervenor-appellant's cross motion to direct the referee to complete the sale, unanimously reversed, on the law and facts, defendants' motion denied and intervenor's cross motion granted, without costs.

The motion court erred in finding that a stay was in effect at the time of the foreclosure sale and that the sale was a nullity. Even assuming that, about two hours before the sale took place, the referee's office had been served with the order to show cause staying the sale, the record demonstrates that defendants failed to comply strictly with the methods of service provided for in the order to show cause and failed to present proof of service on the return date of the motion (see Kue Mee Realty Corp. v. Louie, 295 A.D.2d 263, 743 N.Y.S.2d 863 [1st Dept.2002] ).