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Dime Savings Bank of New York v. Zapala

Appellate Division of the Supreme Court of New York, Second Department
Nov 30, 1998
255 A.D.2d 547 (N.Y. App. Div. 1998)

Summary

stating that absent evidence of fraud, collusion, mistake, or misconduct, "the mere inadequacy of price is an insufficient reason to set aside a sale unless the price is so inadequate as to shock the court's conscience"

Summary of this case from Merchs. Bank v. Furey

Opinion

November 30, 1998

Appeal from the Supreme Court, Suffolk County (Berler, J.).


Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the motion to set aside the foreclosure sale is denied unconditionally.

The plaintiff Dime Savings Bank of New York, FSB (hereinafter the Dime) adjourned a February 25, 1997, mortgage foreclosure sale at the request of the defendants Carl W. Zapala and Catherine Anne Zapala, who were seeking to obtain alternate financing from First Alliance Mortgage Company (hereinafter First Alliance). The sale had been postponed on three prior occasions to give the Zapalas an opportunity to satisfy their debt. In connection with the February 25, 1997, adjournment, the Dime forwarded a postponement agreement to the Zapalas for their signature. There is no proof that an executed agreement was returned to the Dime prior to the rescheduled sale on March 24, 1997, when the property was sold to the purchaser, the intervenor-appellant, Arnold Bottalico. On or about March 31, 1997, the Zapalas obtained a loan from First Alliance and the proceeds were forwarded to the Dime. The Dime, however, returned the check to the Zapalas.

The Zapalas then moved to set aside the foreclosure sale. The Supreme Court, in effect, granted the motion on condition that the Zapalas satisfy the mortgage and reimburse Bottalico for certain costs and expenses.

In the exercise of its equitable powers, a court may set aside a foreclosure sale where there is evidence of fraud, collusion, mistake, or misconduct. Absent such conduct, the mere inadequacy of price is an insufficient reason to set aside a sale unless the price is so inadequate as to shock the court's conscience ( see, Guardian Loan Co. v. Early, 47 N.Y.2d 515, 520-521; Provident Sav. Bank v. Bordes, 244 A.D.2d 470).

The Zapalas failed to demonstrate that any such mistake or misconduct occurred. At best, they have shown some miscommunication between themselves and First Alliance, not between themselves and the Dime. A unilateral mistake, however, is not a basis for vacating a foreclosure sale ( see, Federal Natl. Mtge. Assn. v. New York Fin. Mtge. Co., 222 A.D.2d 647; Crossland Mtge. Corp. v. Frankel, 192 A.D.2d 571). Further, the sale price in this case was not so unconscionably low as to shock the conscience of the court ( see, Bankers Fed. Sav. Loan Assn. v. House, 182 A.D.2d 602; Polish Natl. Alliance v. White Eagle Hall Co., 98 A.D.2d 400, 408).

Rosenblatt, J. P., Santucci, Altman and Friedmann, JJ., concur.


Summaries of

Dime Savings Bank of New York v. Zapala

Appellate Division of the Supreme Court of New York, Second Department
Nov 30, 1998
255 A.D.2d 547 (N.Y. App. Div. 1998)

stating that absent evidence of fraud, collusion, mistake, or misconduct, "the mere inadequacy of price is an insufficient reason to set aside a sale unless the price is so inadequate as to shock the court's conscience"

Summary of this case from Merchs. Bank v. Furey

In Dime Sav. Bank of New York v. Zapala, 255 A.D.2d 547, 680 N.Y.S.2d 665 [2d Dept.1998], the appellant was unsuccessful in upsetting the sale due to what was claimed to be the mis-communication he had with the lender who was to have furnished the funds necessary to pay off the foreclosing lender.

Summary of this case from Hudson City Sav. Bank v. Woodard
Case details for

Dime Savings Bank of New York v. Zapala

Case Details

Full title:DIME SAVINGS BANK OF NEW YORK, FSB, Plaintiff, v. CARL W. ZAPALA et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 30, 1998

Citations

255 A.D.2d 547 (N.Y. App. Div. 1998)
680 N.Y.S.2d 665

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