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