        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

676
CA 14-02139
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.


BRANDYWINE PAVERS, LLC, PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

PAT J. BOMBARD, ERMA C. JERVA, DENISE M.
THURSTON, DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS,
--------------------------------------------
DAVID P. MARTIN, COURT APPOINTED RECEIVER,
RESPONDENT.


HINMAN, HOWARD & KATTELL, LLP, BINGHAMTON (LINDA B. JOHNSON OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

DENISE M. THURSTON, DEFENDANT-RESPONDENT PRO SE.


     Appeal from an order of the Supreme Court, Onondaga County (Brian
F. DeJoseph, J.), entered February 10, 2014 in a foreclosure action.
The order, insofar as appealed from, granted the application of
defendant Denise M. Thurston for an order directing that a portion of
an appeal undertaking, posted on behalf of defendant Pat J. Bombard,
be paid to her.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the application is
denied, and the proceeds of the undertaking are ordered to be paid to
plaintiff.

     Memorandum: Plaintiff commenced this action to foreclose on
property owned by defendant Pat J. Bombard. Bombard appealed from an
amended judgment of foreclosure and sale (amended judgment) and
obtained a stay of all proceedings to enforce the amended judgment,
including any sale of the property, upon the posting of an undertaking
in the amount of $120,000. Defendant Denise M. Thurston, who obtained
several judgments against Bombard for unpaid child support, issued
restraining notices on the undertaking posted by Bombard. After we
affirmed the amended judgment (see Brandywine Pavers, LLC v Bombard,
108 AD3d 1209), almost $95,000 of the undertaking was applied to
unpaid real estate taxes upon the property pursuant to a “stipulation
and order.” The remaining amount was released to plaintiff to hold in
escrow. The property was purchased by plaintiff for less than the
amount owing to plaintiff. Thurston thereafter made an application
for an order directing that a portion of the proceeds of the
undertaking be paid to her, and Supreme Court granted that relief,
                                 -2-                           676
                                                         CA 14-02139

ordering plaintiff to pay Thurston approximately $12,000, representing
the outstanding amount of her judgments against Bombard, and further
ordering that plaintiff could retain the balance of the proceeds of
the undertaking. Plaintiff now appeals from that part of the order
directing it to pay a portion of the proceeds of the undertaking to
Thurston, and we reverse the order to that extent.

     The undertaking posted by Bombard for the stay of the amended
judgment was pursuant to CPLR 5519 (a) (6), which provides in relevant
part that “if the judgment or order directs the sale of mortgaged
property and the payment of any deficiency, the undertaking shall also
provide that the appellant or moving party shall pay any such
deficiency.” Here, the amended judgment provided that Bombard was
required to pay any deficiency, and we therefore conclude that
plaintiff established its entitlement to the undertaking once it
showed that there was a deficiency. The fact that Thurston filed
restraining notices against the undertaking did not give her priority
over plaintiff (see Aspen Indus. v Marine Midland Bank, 52 NY2d 575,
579-580; Matter of Kitson & Kitson v City of Yonkers, 10 AD3d 21, 25).




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
