Opinion
June 17, 1991
Appeal from the Supreme Court, Suffolk County (Gerard, J.).
Ordered that the judgment is affirmed, with one bill of costs.
Harbert Offset Corp. argues that as a result of improper service of process, no personal jurisdiction was acquired over it; therefore, the judgment of foreclosure and sale entered upon its default in appearing and the subsequent sale was invalid. Service of process on a corporate defendant by serving the summons and complaint on the Secretary of State under the provisions of Business Corporation Law § 306, is valid service. A defendant who has been validly served under Business Corporation Law § 306, and against whom a valid judgment has been entered by default may move under either CPLR 317 or 5015, or both, to open the default judgment by demonstrating, inter alia, that it has a meritorious defense (see, McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C317:1, at 475), and that it did not receive actual notice of the commencement of the action. In reviewing the affidavits and affirmations submitted in support of the appellant's motion, we find that they fail to sufficiently demonstrate a meritorious defense (see, e.g., European Am. Bank v Harper, 163 A.D.2d 458; Solomon Abrahams, P.C. v Peddlers Pond Holding Corp., 125 A.D.2d 355; Bank Leumi Trust Co. v John Malesky, Inc., 108 A.D.2d 1089, 1090).
The appellant's second point is based on the alleged insufficiency of the purchase price paid at the foreclosure sale. It is well settled that, a court, in the exercise of its equitable powers, has the discretion to set aside a judicial sale where fraud, collusion, mistake or misconduct casts suspicion on the fairness of the sale (see, Guardian Loan Co. v Early, 47 N.Y.2d 515, 521; Glenville 110 Corp. v Tortora, 137 A.D.2d 654, 655; Polish Natl. Alliance v White Eagle Hall Co., 98 A.D.2d 400, 407). In the instant case, we find that no such acts occurred justifying interference with this sale. It is equally well established that in the absence of this type of conduct, the mere inadequacy of the price alone is an insufficient reason to vacate an otherwise apparently fair judicial sale unless the price is so inadequate as to shock the court's conscience (see, Glenville 110 Corp. v Tortora, supra; Zisser v Noah Indus. Mar. Ship Repair, 129 A.D.2d 795, 796; Buttermark Plumbing Heating Corp. v Sagarese, 119 A.D.2d 540; Polish Natl. Alliance v White Eagle Hall, Co., supra). The sale in the instant action was properly advertised and there is no evidence of any irregularity that would have inhibited the attendance of other prospective bidders. Further, the sale price at the foreclosure auction was not so unconscionably low as to warrant vacatur of the sale.
We have examined the appellant's remaining contention and find it to be without merit. Thompson, J.P., Kunzeman, Miller and O'Brien, JJ., concur.