Federal Home Loan Mortgage Corp. v. Grant

—In an action to foreclose on a mortgage, the defendants Thomas L. Grant and Diane Grant appeal from an order of the Supreme Court, Suf [657] folk County (Cannavo, J.), dated December 21, 1994, which denied their motion, inter alia, to vacate the Referee’s report dated October 4, 1994, which determined that the respondent, secondary mortgagee Marine Midland Bank, had first priority to certain surplus moneys, and confirmed the report. Ordered that the order is affirmed, with costs. As a party to the foreclosure action, the respondent, secondary mortgagee Marine Midland Bank, was not required to file a notice of claim to the surplus moneys in order to preserve its right to satisfaction of its lien from the surplus proceeds of the foreclosure sale (see, RPAPL 1361 [2]). We find no merit to the appellants’ contention that Marine Midland Bank’s notice of appearance, which was filed subsequent to the judgment of foreclosure, had no legal effect (see, Irving Trust Co. v Seltzer, 265 App Div 696; Freilicher v CRF Gen. Contrs. Corp., 225 NYS2d 811). The Supreme Court therefore properly confirmed the Referee’s report giving Marine Midland Bank first priority over the surplus moneys. Sullivan, J. P., Pizzuto, Goldstein and Florio, JJ., concur.