Opinion
07-20-2016
JP MORGAN CHASE, N.A., plaintiff, v. Michael S. RAJENDRAN, respondent, et al., defendants; Louis Zazzarino, nonparty-appellant.
Marco E. Fava, Scarsdale, N.Y., for nonparty-appellant. Clair & Gjertsen, White Plains, N.Y. (Ira S. Clair of counsel), for respondent.
Marco E. Fava, Scarsdale, N.Y., for nonparty-appellant.
Clair & Gjertsen, White Plains, N.Y. (Ira S. Clair of counsel), for respondent.
In an action to foreclose a mortgage, nonparty Louis Zazzarino appeals from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), entered November 20, 2015, as, upon reargument, adhered to a prior determination made in an order of the same court entered March 31, 2015, granting the motion of the defendant Michael S. Rajendran to set aside a foreclosure sale dated October 24, 2015, and directed a new auction.
ORDERED that the order entered November 20, 2015, is affirmed insofar as appealed from, with costs.
“In 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” (Astoria Fed. Sav. & Loan Assoc. v. Hartridge 58 A.D.3d 584, 585, 869 N.Y.S.2d 921 ; see Guardian Loan Co. v. Early, 47 N.Y.2d 515, 521, 419 N.Y.S.2d 56, 392 N.E.2d 1240 ; Chiao v. Poon, 128 A.D.3d 879, 880, 11 N.Y.S.3d 87 ). In addition, a court always retains “the inherent equitable power to ensure that a sale conducted pursuant to a judgment of foreclosure ‘is not made the instrument of injustice’ ” (Alkaifi v. Celestial Church of Christ Calvary Parish, 24 A.D.3d 476, 477, 808 N.Y.S.2d 230, quoting Guardian Loan Co. v. Early, 47 N.Y.2d at 520, 419 N.Y.S.2d 56, 392 N.E.2d 1240 ).
Here, in support of his motion, the defendant-mortgagor, Michael S. Rajendran, demonstrated that the Referee committed a mistake at the foreclosure sale by re-opening the bidding and selling the property to the appellant after having accepted a prior bid from another bidder and executing sale documents with that prior bidder. Under such circumstances, the Supreme Court properly adhered to its prior determination granting Rajendran's motion to set aside the foreclosure sale dated October 24, 2015, and directed a new auction (see Guardian Loan Co. v. Early, 47 N.Y.2d 515, 419 N.Y.S.2d 56, 392 N.E.2d 1240 ; Greenwood Packing Profit Sharing Plan Trust v. Fournier, 181 A.D.2d 861, 581 N.Y.S.2d 413 ; see also United States Trust Co. v. Simon, 228 A.D.2d 580, 644 N.Y.S.2d 633 ; Dime Sav. Bank of N.Y. v. Palazini, 198 A.D.2d 746, 747, 604 N.Y.S.2d 301 ; cf. Manufacturers & Traders Trust Co. v. Foy, 79 A.D.3d 825, 914 N.Y.S.2d 185 ; Crossland Mtge. Corp. v. Frankel, 192 A.D.2d 571, 596 N.Y.S.2d 130 ).
LEVENTHAL, J.P., ROMAN, SGROI and LaSALLE, JJ., concur.