Apple Bank for Savings v. Georgatos

In this action to foreclose a mortgage, the summons and *460complaint were served upon the appellants in August of 1994. The appellants did not appear or answer. The respondent moved for summary judgment, the motion was granted without opposition, and a Referee was appointed to compute the amount due to the respondent. Subsequently, an order and judgment (one paper) of foreclosure and sale dated September 7, 1995, was entered. The appellants moved, inter alia, to vacate the order and judgment of foreclosure and sale.

The Supreme Court initially responded to the appellants’ motion by setting the matter down for a hearing on the propriety of service upon them. The court, however, conditioned the hearing on the payment of $6,000 by the appellants to the plaintiff on or before November 17, 1995. After the appellants failed to make payment in accordance with the court’s ruling, the Supreme Court cancelled the hearing, denied the motion to vacate the order and judgment of foreclosure and sale, and lifted the stay of the foreclosure sale.

Under these circumstances, where the appellants submitted a sworn denial that they had been served with process pursuant to CPLR 308 (2), they were entitled to a hearing on the propriety of service without any conditions being imposed thereon (see, Dime Sav. Bank v Steinman, 206 AD2d 404; Copeland v Gross, 39 Misc 2d 619). O’Brien, J. P., Ritter, Pizzuto and Altman, JJ., concur.