MARINE MIDLAND BANK v. RASHID

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

MARINE MIDLAND BANK f/k//a Marine Midland Bank, N.A., respondent, v. Abdul RASHID, appellant.

Decided: March 29, 1999

SONDRA MILLER, J.P., DAVID S. RITTER, WILLIAM C. THOMPSON and DANIEL W. JOY, JJ. Fred W. Schaeffer, Poughkeepsie, N.Y., for appellant. McCabe & Mack, LLP, Poughkeepsie, N.Y. (Richard R. DuVall of counsel), for respondent.

In an action to foreclose a mortgage on two parcels of real property, the defendant appeals from (1) an order of the Supreme Court, Dutchess County (Beisner, J.), dated February 27, 1998, which, upon the plaintiff's motion to fix the amount of the deficiency existing after the sale of the first parcel, inter alia, ordered a valuation hearing to aid in the determination of the motion, and (2) an order and judgment (one paper) of the same court, dated May 28, 1998, which, after the valuation hearing, fixed the amount of the deficiency existing after the sale of the first parcel and directed the sale of the second parcel.

ORDERED that the appeal from the order is dismissed as no appeal lies as of right from an order directing a hearing to aid in the disposition of the motion (see, CPLR 5701;  Bagdy v. Progresso Foods, Corp., 86 A.D.2d 589, 446 N.Y.S.2d 137), and leave has not been granted;  and it is further,

ORDERED that the order and judgment is affirmed;  and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

Since the defendant had actual notice of the plaintiff's motion, and the plaintiff substantially complied with the service requirements of RPAPL 1371(2), the trial court properly fixed the amount of the deficiency existing after the sale of the first parcel and directed the sale of the remaining parcel (see, Sarasota, Inc. v. Homestead Acres at Greenport, 249 A.D.2d 290, 670 N.Y.S.2d 878).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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