Shaw Funding, L.P. v Samuel
2012 NY Slip Op 09042 [101 AD3d 1100]
December 26, 2012
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 6, 2013


Shaw Funding, L.P., Appellant,
v
Percy M. Samuel et al., Defendants, and Melissa Vina John et al., Respondents.

[*1] Irwin Popkin, Melville, N.Y., for appellant.

Clair & Gjertsen, Scarsdale, N.Y. (Ira S. Clair of counsel), for respondents.

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered November 28, 2011, which, after a hearing to determine the validity of service of process, granted that branch of the motion of the defendants Melissa Vina John and Jessica Carla John which was to vacate a deficiency judgment entered February 22, 2011, based upon lack of personal jurisdiction.

Ordered that the order is affirmed, with costs.

The resolution of credibility issues by the hearing court is entitled to deference on appeal, and will be upheld if supported by evidence in the record (see generally Gass v Gass, 42 AD3d 393 [2007]; Ahrens v Chisena, 40 AD3d 787 [2007]; Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536 [2006]). The hearing record in this case supports the court's conclusion that the plaintiff did not effectuate service of the motion for a deficiency judgment upon the respondents (see RPAPL 1371 [2]; First Nationwide Bank v Pegasus Agency, 253 AD2d 536 [1998]), and we discern no basis to disturb that determination.

The plaintiff's remaining contentions are without merit. Dillon, J.P., Chambers, Sgroi and Miller, JJ., concur.