Deutsche Bank National Trust Co. v. Zlotoff

Oct 12, 2010
Versions:77 A.D.3d 702
908 N.Y.S.2d 612

In an action to foreclose a mortgage, the defendants Jerry Zlotoff and Rhonda Zlotoff appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Kent, J.), entered November 23, 2009, as denied that branch of their motion which was to vacate the judgment of foreclosure and sale and remit the matter to the referee for a computation hearing.

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

Contrary to the contention of the defendants Jerry Zlotoff and Rhonda Zlotoff (hereinafter together the Zlotoffs), under the circumstances of this case, the referee was not required to conduct a hearing prior to the issuance of his report to the Supreme Court, Suffolk County (see Deutsche Bank Natl. Trust Co. v Jackson, 68 AD3d 805 [2009]).

Furthermore, the Zlotoffs had an opportunity to raise and submit proof as to all of the issues they now raise on this appeal to the Supreme Court. Thus, any error in failing to hold a hearing did not prejudice the Zlotoffs and does not require reversal (see Sears v First Pioneer Farm Credit, ACA, 46 AD3d 1282 [2007]; Jones v Jones, 30 AD3d 741 [2006]; Federal Deposit Ins. Corp. v 65 Lenox Rd. Owners Corp., 270 AD2d 303 [2000]; Adelman v Fremd, 234 AD2d 488 [1996]; Shultis v Woodstock Land Dev. Assoc., 195 AD2d 677 [1993]; cf. 243 W. 98th Condominium v Shapiro, 12 AD3d 591 [2004]).

The Zlotoffs’ remaining contentions are either without merit or improperly raised for the first time on appeal. Dillon, J.P., Florio, Roman and Sgroi, JJ., concur.