Opinion
2018–12616 Index No. 16111/09
11-03-2021
EMIGRANT FUNDING CORPORATION, respondent, v. Persio NUNEZ, etc., appellant, et al., defendants.
Persio Nunez, Corona, NY, appellant pro se. Borchert & LaSpina, P.C., Whitestone, NY (Jason Sackoor of counsel), for respondent.
Persio Nunez, Corona, NY, appellant pro se.
Borchert & LaSpina, P.C., Whitestone, NY (Jason Sackoor of counsel), for respondent.
REINALDO E. RIVERA, J.P., ANGELA G. IANNACCI, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Persio Nunez appeals from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered August 2, 2018. The order denied that defendant's motion to vacate a referee's deed in foreclosure dated May 11, 2016.
ORDERED that the order is affirmed, with costs.
RPAPL 231(6) provides, in relevant part, 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." Moreover, "[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" ( Clinton Hill Holding 1, LLC v. Kathy & Tania, Inc., 142 A.D.3d 631, 632, 36 N.Y.S.3d 732 ; see U.S. Bank N.A. v. Testa, 140 A.D.3d 855, 856, 33 N.Y.S.3d 387 ). "In order to provide a basis for setting aside a sale, the evidence of fraud, collusion, mistake, or misconduct must cast suspicion on the fairness of the sale" ( Clinton Hill Holding 1, LLC v. Kathy & Tania, Inc., 142 A.D.3d at 632, 36 N.Y.S.3d 732 ; see Emigrant Mtge. Co., Inc. v. Hartman, 173 A.D.3d 975, 976, 104 N.Y.S.3d 667 ). "[B]elated and unsubstantiated claims are insufficient to establish the existence of fraud, collusion, mistake, or misconduct" ( Clinton Hill Holding 1, LLC v. Kathy & Tania, Inc., 142 A.D.3d at 632–633, 36 N.Y.S.3d 732 ).
Here, the defendant Persio Nunez (hereinafter the defendant) belatedly moved to vacate the referee's deed dated May 11, 2016, more than two years after the foreclosure sale, and offered nothing more than unsubstantiated claims that he was not served with notice of this action or the foreclosure sale (see RPAPL 231[6] ; Clinton Hill Holding 1, LLC v. Kathy & Tania, Inc., 142 A.D.3d at 633, 36 N.Y.S.3d 732 ; Home Fed. Sav. Bank v. Versace, 272 A.D.2d 576, 577, 709 N.Y.S.2d 409 ). Accordingly, the Supreme Court properly denied the defendant's motion to vacate the referee's deed.
The parties’ remaining contentions either are improperly raised for the first time on appeal or need not be reached in light of our determination.
RIVERA, J.P., IANNACCI, FORD and DOWLING, JJ., concur.