Opinion
2020-07403 Index No. 26348/13
08-02-2023
WILMINGTON SAVINGS FUND SOCIETY, FSB, etc., respondent, v. Carolyn BROCKETT, appellant, et al., defendants.
Ronald D. Weiss, P.C., Melville, NY, for appellant. Gross Polowy, LLC, Westbury, NY (Stephen J. Vargas of counsel), for respondent.
Ronald D. Weiss, P.C., Melville, NY, for appellant.
Gross Polowy, LLC, Westbury, NY (Stephen J. Vargas of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, LARA J. GENOVESI, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an efendant Carolyn Braction to foreclose a mortgage, the dockett appeals from an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated August 20, 2020. The order denied the motion of the defendants Carolyn Brockett and Cassell Brockett to set aside the foreclosure sale of the subject property.
ORDERED that the order is affirmed, with costs.
The plaintiff's predecessor in interest commenced this action against the defendants Carolyn Brockett and Cassell Brockett (hereinafter together the defendants), among others, to foreclose a mortgage on a property located in East Northport. The defendants failed to interpose an answer or otherwise appear in the action. Thereafter, the Supreme Court granted the plaintiff's motion, inter alia, for leave to enter a default judgment and for an order of reference. On June 1, 2018, the court entered an order and judgment of foreclosure and sale, inter alia, directing the sale of the property.
On March 12, 2020, the property was sold at a public auction. In June 2020, the defendants moved to set aside the foreclosure sale of the property. In an order dated August 20, 2020, the Supreme Court denied the motion. Carolyn appeals.
CPLR 2003 authorizes the court to set aside a judicial sale within one year "for a failure to comply with the requirements of the civil practice law and rules as to the notice, time or manner of such sale, if a substantial right of a party was prejudiced by the defect" ( Guardian Loan Co. v. Early, 47 N.Y.2d 515, 520, 419 N.Y.S.2d 56, 392 N.E.2d 1240 [internal quotation marks omitted]; see U.S. Bank Trust, N.A. v. Caputo, 204 A.D.3d 725, 726, 163 N.Y.S.3d 860 ). Similarly, RPAPL 231(6) provides that "[a]t any time within one year after the sale, but not thereafter, the court, upon such terms as may be just, may set the sale aside for failure to comply with the provisions of this section as to the notice, time or manner of such sale if a substantial right of a party was prejudiced by the defect" (see U.S. Bank Trust, N.A. v. Caputo, 204 A.D.3d at 726–727, 163 N.Y.S.3d 860 ; Wells Fargo Bank, N.A. v. Ramphal, 172 A.D.3d 1280, 1281, 98 N.Y.S.3d 850 ). Furthermore, "[i]n the exercise of its equitable powers, a court has the discretion to set aside a foreclosure sale where there is evidence of fraud, collusion, mistake, or misconduct" ( Wells Fargo Bank, N.A. v. Ramphal, 172 A.D.3d at 1281, 98 N.Y.S.3d 850 [internal quotation marks omitted]; see U.S. Bank Trust, N.A. v. Caputo, 204 A.D.3d at 726–727, 163 N.Y.S.3d 860 ).
Here, the defendants failed to establish that any alleged defect in the sale of the property prejudiced a substantial right of a party (see MTGLQ Invs., L.P. v. Goddard, 203 A.D.3d 819, 820, 160 N.Y.S.3d 907 ; Wells Fargo Bank, N.A. v. Ramphal, 172 A.D.3d at 1282, 98 N.Y.S.3d 850 ). Furthermore, the defendants failed to demonstrate that the sale of the property was the product of fraud, collusion, mistake, or misconduct (see Wells Fargo Bank, N.A. v. Ramphal, 172 A.D.3d at 1282, 98 N.Y.S.3d 850 ).
Accordingly, the Supreme Court properly denied the defendants’ motion to set aside the foreclosure sale of the property.
The parties’ remaining contentions are without merit.
CONNOLLY, J.P., IANNACCI, GENOVESI and TAYLOR, JJ., concur.