Summary
In Greenwood the Referee, after the award of the property to the highest bidder, reopened the bidding while still at the sale when the representative of Plaintiff protested the award of the property to the highest bidder because he mistakenly stopped bidding under the belief he was the highest bidder (Greenwood at 862).
Summary of this case from Chase Manhattan Mtge. Corp. v. JulianOpinion
March 30, 1992
Appeal from the Supreme Court, Orange County (Green, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, the motion is granted, the sale to the respondents is set aside, and the sale to the appellant is reinstated, without prejudice to the respondents to seek relief therefrom.
At the foreclosure sale, the Referee awarded the property to the appellant as the highest bidder. However, the plaintiffs' representative protested, claiming that he mistakenly stopped bidding because he believed he had the last and highest bid. The Referee then took it upon himself to reopen the bidding. The property was ultimately purchased by the plaintiffs' representative. Upon the appellant's motion to set the sale aside, the Supreme Court confirmed the Referee's exercise of discretion in reopening the bidding. We reverse.
Although a Referee has the discretion to do that which is reasonable and within the authority conferred in the judgment of foreclosure in order to ensure a successful sale (see, Glenville 110 Corp. v Tortora, 137 A.D.2d 654; E.Q.C. Co. v Plainview Country Club, 23 A.D.2d 769), the authority and discretion to set aside a judicial sale under circumstances such as these is entrusted to the courts (see, Guardian Loan Co. v Early, 47 N.Y.2d 515; Fisher v Hersey, 78 N.Y. 387; Glenville 110 Corp. v Tortora, supra; Polish Natl. Alliance v White Eagle Hall Co., 98 A.D.2d 400). Thus, in the present case, the Referee acted without jurisdiction when he reopened the bidding, and the sale to the plaintiffs cannot stand (see generally, Mullins v Franz, 162 App. Div. 316; cf., Feder Corp. v Bozkurtian, 48 A.D.2d 701). The sale to the appellant must be reinstated, however, without prejudice to the plaintiffs to apply in the Supreme Court for relief therefrom.
We have considered the parties' remaining contentions and find them to be without merit (see, Brown v Frost, 10 Paige Ch 243; Hudson City Sav. Inst. v Burton, 99 A.D.2d 871; Andrews v O'Mahoney, 112 N.Y. 567; Lane v Chantilly Corp., 251 N.Y. 435). Sullivan, J.P., Rosenblatt, Miller and Santucci, JJ., concur.