EAST COAST PROPERTIES v. Tamir Sapir, Nonparty-Appellant.

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Supreme Court, Appellate Division, Second Department, New York.

EAST COAST PROPERTIES, Plaintiff, v. Leonides Vidolla GALANG, et al., Respondents, et al., Defendants, Tamir Sapir, Nonparty-Appellant.

Decided: September 08, 2003

A. GAIL PRUDENTI, P.J., DAVID S. RITTER, LEO F. McGINITY and BARRY A. COZIER, JJ. Brian M. Levy, New York, NY, for nonparty-appellant. Howard Stern, White Plains, NY, (Annette G. Hasapidis of counsel), for respondents.

In an action to foreclose a mortgage, Tamir Sapir appeals from an order of the Supreme Court, Queens County (Schmidt, J.), dated March 27, 2002, which denied his motion to be substituted as the plaintiff in place of East Coast Properties, to confirm a referee's report of sale, and to direct the entry of a deficiency judgment in his favor and against the defendants Leonides Vidolla Galang and Adoracion C. Galang.

ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, Tamir Sapir is substituted as the plaintiff herein, the referee's report of sale is confirmed, and the matter is remitted to the Supreme Court, Queens County, for the entry of a deficiency judgment in favor of Tamir Sapir against the defendants Leonides Vidolla Galang and Adoracion C. Galang in the principal sum of $777,818.74.

 The Supreme Court improvidently exercised its discretion in denying that branch of the motion of Tamir Sapir (hereinafter the appellant) which was to be substituted as the plaintiff in this action.   The plaintiff, East Coast Properties, assigned its interest in the subject premises to the appellant, and the defendants Leonides Vidolla Galang and Adoracion C. Galang (hereinafter the defendants) did not oppose the appellant's substitution request (see CPLR 1018;  Medallion Auto v. Sanders, 272 A.D.2d 85, 707 N.Y.S.2d 322).   The Supreme Court also improvidently exercised its discretion in denying that branch of the appellant's motion which was to confirm the referee's report of sale in the absence of any allegation that the sale of the premises was improperly conducted (see United Capital Corp. v. 183 Lorraine St. Assocs., 267 A.D.2d 454, 700 N.Y.S.2d 756).

 In addition, the Supreme Court erred in refusing to direct the entry of a deficiency judgment in favor of the appellant against the defendants.   The appellant presented an appraisal evaluating the market value of the premises on the date of the sale.   In opposition, the defendants submitted an unsigned appraisal that addressed the value of the premises several years later.   The defendants failed to raise an issue of fact requiring a hearing (see RPAPL 1371 [2];  Wand v. Beck, 262 A.D.2d 634, 693 N.Y.S.2d 615;  cf.  TPZ Corp. v. Block 7589 Corp., 233 A.D.2d 496, 650 N.Y.S.2d 299).

The defendants correctly contend, however, that the appellant miscalculated the amount of the deficiency judgment to which he is entitled.   The evidence establishes that the appellant is entitled to a deficiency judgment in the principal sum of $777,818.74.

The parties' remaining contentions are without merit.

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