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WMC Mortgage Corp. v. Dick

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 15, 2009

WMC MORTGAGE CORP., PLAINTIFF,
v.
RUDOLPH DICK, ET AL., DEFENDANTS, MARC ORINGER, APPELLANT; ROSEMARY CHUKWURA, ET AL., NONPARTY-RESPONDENTS.

In an action to foreclose a mortgage, the defendant Marc Oringer appeals, as limited by his brief, (1) from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated November 24, 2008, as denied his motion to vacate a referee's report dated July 14, 2008, and to direct a hearing as to the distribution of surplus money, and (2) from so much of an order of the same court dated December 4, 2008, as granted those branches of the nonparties' motion which were to confirm the referee's report and to distribute portions of the surplus money to the referee and to Rosemary Chukwura.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON and JOHN M. LEVENTHAL, JJ.

(Index No. 10078/00)

DECISION & ORDER

ORDERED that the orders are reversed insofar as appealed from, on the law, with one bill of costs to the appellant payable by Rosemary Chukwura, the appellant's motion is granted, and those branches of the nonparties' motion which were to confirm the referee's report and to distribute portions of the surplus money to the referee and to Rosemary Chukwura are denied.

A person who has appeared in a foreclosure action or who has filed a claim for surplus money is entitled to notice of the appointment of a referee to determine the distribution of the surplus (see RPAPL 1361[2], [3]). Here, the appellant had appeared in the foreclosure action and had filed a claim for a portion of the surplus, and thus was entitled to notice of the appointment of a referee and of the referee's report. Inasmuch as the appellant was not given the notice to which he was entitled, his motion to vacate the report and to direct a hearing should have been granted, and those branches of the claimants' motion which were to confirm the referee's report and to distribute portions of the surplus money to the referee and to Rosemary Chukwura should have been denied (see Lakeridge Dev. Corp. v Skyline Devs., 201 AD2d 959).

FISHER, J.P., ANGIOLILLO, DICKERSON and LEVENTHAL, JJ., concur.

20091215

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