ROSLYN SAVINGS BANK v. Michael W. Dempsey, et al., Appellants.

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

ROSLYN SAVINGS BANK, Respondent, v. MOHRING & DEMPSEY CORP., et al., Defendants, Michael W. Dempsey, et al., Appellants.

Decided: August 17, 1998

ROSENBLATT, J.P., RITTER, COPERTINO and FLORIO, JJ. Barry V. Pittman, Bay Shore, N.Y., for appellant Michael W. Dempsey. Payne, Wood & Littlejohn, Melville, N.Y. (John P. McEntee and Mark A. Cuthbertson of counsel), for respondent.

In an action to foreclose a mortgage, the defendants Michael W. Dempsey and Richard Mohring, Jr., separately appeal from so much of an order and judgment (one paper) of the Supreme Court, Suffolk County (D'Emilio, J.), entered August 4, 1997, as was in favor of the plaintiff and against them in the sum of $303,327.58.

ORDERED that the appeal by defendant Richard Mohring, Jr., is dismissed for failure to perfect the same in accordance with the rules of this court (see, 22 NYCRR 670.8[e] );  and it is further,

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

ORDERED that the plaintiff is awarded one bill of costs.

Contrary to the contention of the defendant Michael W. Dempsey, the motion for a deficiency judgment, made on June 19, 1995, was timely as to him (see, RPAPL 1371[2];  CPLR 2211).   The record sufficiently establishes that the deed was delivered to the plaintiff's assignee, its wholly-owned subsidiary, on or about April 27, 1995, and the defendant Dempsey has failed to proffer evidence showing the existence of a factual question (see, Manhattan Life Ins. Co. v. Continental Ins. Cos., 33 N.Y.2d 370, 353 N.Y.S.2d 161, 308 N.E.2d 682;  Atlantic Bank of N.Y. v. Weiss, 234 A.D.2d 240, 651 N.Y.S.2d 73;  cf., National Bank of Sussex County v. Betar, 207 A.D.2d 610, 615 N.Y.S.2d 523).

The defendant Dempsey's remaining contentions are without merit.


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