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

Jordan WAND, et al., etc., appellants, v. Leland Stuart BECK, et al., respondents.

Decided: June 28, 1999

GUY JAMES MANGANO, P.J., THOMAS R. SULLIVAN, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ. Nelson & Greif, Baldwin, N.Y. (Steven D. Greif of counsel), for appellants. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Lewis A. Bartell and Jason A. Newfield of counsel), for respondents.

In an action to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Davis, J.), dated January 20, 1998, which denied the motion of the plaintiffs' decedent for summary judgment and granted the defendants' cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The appellants' decedent held a second mortgage on property sold at auction in a foreclosure sale.   While represented by the defendants, the appellants' decedent obtained a deficiency judgment against the mortgagors upon their default.   The mortgagors' subsequent motion to vacate the default was granted on the ground that they had not been personally served as required by statute (see, RPAPL 1371[2] ).   The appellants' decedent was thereafter precluded from commencing a new action as the statutory 90-day limit had passed.

 The Supreme Court properly granted summary judgment to the defendants as the appellants' decedent would not have been successful in the underlying action (see, Volpe v. Canfield, 237 A.D.2d 282, 283, 654 N.Y.S.2d 160).  Contrary to the appellants' contentions, the Supreme Court correctly relied on the only relevant appraisal of the property at the time of the foreclosure auction and the alleged malpractice.   Accordingly, there was no triable issue of fact as to the fair and reasonable market value of the mortgaged premises at the time of the sale (see, LeVine v. Flynn, 252 A.D.2d 543, 675 N.Y.S.2d 883;  Columbus Realty Inv. Corp. v. Gray, 240 A.D.2d 529, 530, 658 N.Y.S.2d 685;  Ogdensburg Sav. & Loan Assn. v. Moore, 100 A.D.2d 679, 473 N.Y.S.2d 877;  Broward Nat. Bank of Fort Lauderdale v. Starzec, 30 A.D.2d 603, 290 N.Y.S.2d 112).   Because the appraisal amount exceeded the amount owed on the property, the appellants' decedent would not have been entitled to a deficiency judgment (see, Guaranty Trust Co. of N.Y. v. Kingscote Realty Corp., 260 A.D. 1011, 23 N.Y.S.2d 882, affd. 288 N.Y. 573, 42 N.E.2d 24).

In light of the foregoing, the appellants' remaining contention is academic.


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