I. The lower court erred in denying defendant's motion to vacate the sale where it complied with the requirements set forth in RPAPL 1341 (2). ( Green Point Sav. Bank v Oppenheim, 237 AD2d 409; NYCTL 1996-1 Trust v LFJ Realty Corp., 307 AD2d 957; Citibank v Press Realty Corp., 139 Misc 2d 558; First Fed. Sav. Loan Assn. of Port Washington v Smith, 83 AD2d 601; Belsid Holding Corp. v Dahm, 12 AD2d 499; United Capital Corp. v 183 Lorraine St. Assoc., 251 AD2d 400; Finance Inv. Co. [Bermuda] v Gossweiler, 145 AD2d 463; Norwest Mtge., Inc. v Brown, 35 AD3d 682; Glenbriar Co. v Lipsman, 5 NY3d 388; EMC Mtge. Corp. v Bobb, 296 AD2d 476.) II.

Where a defendant "fail[s] to make a payment into court and to make a motion to stay the sale of the property as required by RPAPL 1341 (2), [the defendant's] right to redemption expire[s]" ( NYCTL 1996-1 Trust, 307 AD2d at 958; see also EMC Mtge. Corp. v Bobb, 296 AD2d 476, 478 ["Ordinarily, a stay of proceedings in foreclosure to preserve the mortgagor's right to redeem must occur before the foreclosure sale"]; Green Point Sav. Bank v Oppenheim, 237 AD2d 409, 410 [finding that foreclosure sale "properly went ahead . . . and was not rendered null and void" where defendant tendered payment at the "eleventh hour, and failed to move to stay the sale (pursuant to RPAPL 1341)"], lv denied 90 NY2d 806). "RPAPL 1341 is mandatory in nature, and does not allow for a discretionary interpretation or application" ( Green Point Sav. Bank, 237 AD2d at 410).

Lido Realty, LLC, (hereinafter, Lido) the foreclosure purchaser's lender [of $350,000.00 principal], interposed opposition papers to Mr. Reid's motion on the principal ground that ". . . he failed to comply with the unconditional requirements of RPAPL 1341 that he make payment into court and obtain a stay prior to the sale." (Citing NYCTL 1996-1, et al. v. LFJ Realty corp., 307 AD2d 957, 763 NYS2d 836 [2nd Dept., 2003]; NYCTL 1996-1, et al. v. Thompson, Supreme Court, Kings County, J. Lewis, 4/7/04 NYLJ p. 22; col. 1; EMC Mortgage Corp. v. Bobb, 296 AD2d 476, 745 NYS2d 204 [2nd Dept. 2002]; Green point Savings Bank v. Oppenheim, 237 AD2d 409, 655 NYS2d 560 [2nd Dept.]). Lido also points to the fact that ". . . granting [Mr.] Dennis Reid's motion will unjustly enrich him.

( see also 78 NY Jur 2d, Mortgages and Deeds of Trust § 412 ["Upon a redemption, whether before or pending foreclosure, the mortgagee is ordinarily entitled to receive the whole unpaid principal of the debt secured by the mortgage, with interest, and the costs of the action"]). Where a defendant "fail[s] to make a payment into court and to make a motion to stay the sale of the property as required by RPAPL § 1341, [the defendant's] right to redemption expire[s]" ( NYCTL 1996-1 Trust, 307 AD2d at 958; see also EMC Mortgage Corp. v. Bobb, 296 AD2d 476 ["Ordinarily, a stay of proceedings in foreclosure to preserve the mortgagor's right to redeem must occur before the foreclosure sale"]; Green Point Savings Bank v. Oppenheim, 237 AD2d 409 [finding that foreclosure sale "properly went ahead and was not rendered null and void" where defendant tendered payment at the "eleventh hour, and failed to move to stay the sale (pursuant to RPAPL § 1341"]). "RPAPL § 1341 is mandatory in nature and does not allow for a discretionary interpretation or application" ( Green Point Savings Bank, 237 AD2d at 410).

Decided September 11, 1997 Appeal from 2d Dept: 237 A.D.2d 409 MOTIONS FOR LEAVE TO APPEAL

In a foreclosure action where the defendant pays into court the amount due for principal, interest and costs of the action, together with the expenses of the proceeding to sell, the court is required to dismiss the complaint and stay all proceedings on the judgment (RPAPL 1341), without regard to discretionary interpretation or application ( Gabriel v 351 St. Nicholas Equities, 168 AD2d 338, 339). However, a stay of proceedings under this statute is not self-executing; it requires a motion ( see Green Point Sav. Bank v Oppenheim, 237 AD2d 409, 410, lv denied 90 NY2d 806). Jackson Avenue Realty failed to make such a motion, and its deposit of the amount demanded by plaintiffs did not qualify as an undertaking since it was not reviewed or fixed by the court (CPLR 5519 [a] [4], [6]).

Here, it is not disputed that the defaulting mortgagor failed to redeem before the foreclosure sale ( see Ameriquest Mtge. Co. v Bellon, 29 AD3d 612; NYCTL 1996-1 Trust v LFJ Realty Corp., supra; EMC Mtge. Corp. v Bobb, 296 AD2d 476). Further, the plaintiff did not demonstrate fraud, collusion, mistake, or misconduct ( see NYCTL 1996-1 Trust v LFJ Realty Corp., supra; Green Point Sav. Bank v Oppenheim, 237 AD2d 409; cf. Ameriquest Mtge. Co. v Bellon, supra; EMC Mtge. Corp v Bobb, supra). The plaintiff argues that vacatur of the sale is nonetheless warranted based upon the terms of sale.

Ordered that the order is affirmed insofar as appealed from, with costs. Contrary to the appellant's contention, his equity of redemption in the subject property was not preserved by a stay ( see RPAPL 1341; EMC Mtge. Corp. v. Bobb, 296 AD2d 476, 478; Green Point Sav. Bank v. Oppenheim, 237 AD2d 409, 410). Further, the Supreme Court properly denied, without a hearing, those branches of his motion which were, inter alia, to vacate the underlying judgment of foreclosure on the ground of lack of proper service of process.

In any event, regardless of the motion's characterization, the Supreme Court erred in permitting Faithway to redeem the property after the foreclosure sale took place. We agree with the appellant that, having failed to deposit the necessary funds into court before the foreclosure sale, Faithway forfeited its right to redeem the property ( see RPAPL 1341; NYCTL 1996-1 Trust v. LFJ Realty Corp., 307 AD2d 957; Green Point Sav. Bank v. Oppenheim, 237 AD2d 409).

"It is well settled that the owner of the equity of redemption has a right to redeem at any time before an actual sale under a judgment of foreclosure" (United Capital Corp. v. 183 Lorraine St. Assoc., 251 A.D.2d 400; see Belsid Holding Corp. v. Dahm, 12 A.D.2d 499, 500). However, since LFJ failed to make a payment into court and to make a motion to stay the sale of the property as required by RPAPL 1341(2), LFJ's right to redemption expired (see EMC Mtge. Corp. v. Bobb, 296 A.D.2d 476, 478; Green Point Sav. Bank v. Oppenheim, 237 A.D.2d 409, 410). Contrary to the Supreme Court's determination, the "mistake" present in this case was not sufficient to warrant the vacatur of the sale.