| Federal Natl. Mtge. Assn. v Isaiah |
| 2011 NY Slip Op 52049(U) [33 Misc 3d 1222(A)] |
| Decided on November 15, 2011 |
| Supreme Court, Queens County |
| Markey, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Federal National
Mortgage Association
against Thomas Isaiah, HELEN ISAIAH, EUGENE ISAIAH, "JOHN DOE' and "JANE DOE," said names being fictitious, parties intended being possible tenants or occupants of premises |
This foreclosure action proceeded to a Judgment of Foreclosure and Sale on August 14, 1985, then to a public sale. The Referee filed a Report of Sale on April 1, 1986. The plaintiff was paid in full on the underlying outstanding obligation. The Referee then deposited the sum of $14,675.23 in the Office of the Clerk of Queens County. The Commissioner of Finance transferred these funds to the New York State Comptroller.
The Claimants, Thomas Isaiah and Helen Isaiah, who claim that, on or about January 15, 1980, they became co-owners of the subject premises, known as 144-43 167th Street, Springfield Gardens, in Queens County, New York, pursuant to a deed, filed a Notice of Claim on June 6, 2011. No other notices of claim have been filed. The claimants, upon the foregoing papers, now move for an order of distribution.
The deed indicates that the property was owned by the claimants, Thomas Isaiah and Helen Isaiah and the defendant Eugene Isaiah. Eugene Isaiah was a named defendant in this action. Under Abandoned Property Law section 1406(2), in claims for abandoned property, all parties to the proceeding must be served. See, Greenpoint Bank v Criscione, 23 Misc 3d 1106(A), 2009 WL 940113, 2009 NY Slip Op 50604(U) [Sup Ct Kings County 2009]; NYCTL 1996-1 Trust v Nuthree Inc., 18 Misc 3d 603 [Sup Ct Bronx County 2007].
RPAPL 1361 requires, furthermore, that, in applications for surplus money, notice must be given to the owner of equity of redemption or any party who has appeared in the action. See, e.g., Conte v Venuti, 231 App Div 735 [2nd Dept. 1930]; Wachovia Equity Servicing LLC v Rodriguez, 32 Misc 3d 1245(A), 2011 WL 4375063, 2011 NY Slip Op 51711(U) [Sup Ct Bronx County 2011]; Wells Fargo Bank Minnesota NA v Davis, 8 Misc 3d 561 [Sup Ct Kings County 2005]; see also, Raynor v Selmes, 52 NY 579, 7 Sickels 579 [1873]. Here, the affidavit of service indicates that the defendant Eugene Isaiah was not served with this motion, nor was he served with the claimants' Notice of Claim. Therefore, the motion is denied as notice was not given to all necessary parties.
Accordingly, the motion is denied without prejudice to renew upon proper service on all necessary parties.
The foregoing constitutes the decision, order, and opinion of the Court.
______________________________Hon. Charles J. Markey
Justice, Supreme Court, Queens County
[*2]
Dated: Long Island City, New York
November 15, 2011