Island Holding, LLC v. O'Brien

—In an action to foreclose a mortgage, the defendants Alabert J. O’Brien, also known as Albert J. O’Brien and Douglas Alan O’Brien, as trustee FBO Denis J. O’Brien Family, appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Underwood, J.), dated May 3, 2002, as denied their motion to strike a notice of claim to surplus money, dated September 10, 2001.

*464Ordered that the order is affirmed insofar as appealed from, with costs.

Since the report of sale had not been confirmed, the subject notice of claim to surplus money, dated September 10, 2001, was timely (see RPAPL 1361 [1]). Contrary to the appellants’ contention, the claimant did not waive any and all claims to the surplus money. Ritter, J.P., Altman, Krausman and Crane, JJ., concur.