Home Savings of America, F. A. v. Freidman

In an action to foreclose a mortgage, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Roncallo, J.), dated September 11, 1992, as awarded the pro se defendants $2,500 in damages and/or attorneys’ fees. Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the award of $2,500 is vacated. The pro se defendants-respondents were tenants of the property that became the subject of the instant foreclosure action. The plaintiff was therefore obliged to join them as necessary parties in order to cut off their interest in the mortgaged premises (see, RPAPL 1311 [1]; Polish Natl. Alliance v White Eagle Hall Co., 98 AD2d 400, 404; Flushing Sav. Bank v CCN Realty Corp., 73 AD2d 945; Empire Sav. Bank v Towers Co., 54 AD2d 574). When they failed to answer the complaint, which had been personally served upon them, the plaintiff entered a default judgment against them. This judgment was subsequently vacated, after it was learned that they had moved out of their apartment on the premises. The award of $2,500 to them was therefore error. Copertino, J. P., Santucci, Friedmann and Goldstein, JJ., concur.