Opinion
2019–11396 Index No. 54984/14
03-09-2022
KEYBANK NATIONAL ASSOCIATION, etc., plaintiff-respondent, v. Anthony VENZIANO, etc., appellant, et al., defendants; Emilio DiMatteo, nonparty-respondent.
Fishman Decea & Feldman, Armonk, NY (Thomas B. Decea of counsel), for appellant. Shapiro, DiCaro & Barak, LLC, Rochester, NY (Ellis Oster of counsel), for plaintiff-respondent. Geist Schwarz & Jellinek, PLLC, White Plains, NY (Matthew D. Schwarz of counsel), for nonparty-respondent.
Fishman Decea & Feldman, Armonk, NY (Thomas B. Decea of counsel), for appellant.
Shapiro, DiCaro & Barak, LLC, Rochester, NY (Ellis Oster of counsel), for plaintiff-respondent.
Geist Schwarz & Jellinek, PLLC, White Plains, NY (Matthew D. Schwarz of counsel), for nonparty-respondent.
VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, REINALDO E. RIVERA, WILLIAM G. FORD, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Anthony Veneziano appeals from an order of the Supreme Court, Westchester County (Charles D. Wood), dated September 4, 2019. The order, insofar as appealed from, denied those branches of that defendant's motion which were to set aside a foreclosure sale and direct that a new sale be conducted.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiff commenced this action against the defendant Anthony Venziano (hereinafter the defendant), among others, to foreclose a mortgage on real property. The plaintiff subsequently obtained a judgment of foreclosure and sale, and the property was sold at a foreclosure auction.
The defendant thereafter moved, inter alia, to set aside the foreclosure sale and direct that a new sale be conducted. By order dated September 4, 2019, the Supreme Court denied those branches of the motion. The defendant appeals.
"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 Nationstar Mtge., LLC v. Crute, 187 A.D.3d 1028, 1030, 134 N.Y.S.3d 440 ). "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" ( Nationstar Mtge., LLC v. Crute, 187 A.D.3d at 1030, 134 N.Y.S.3d 440 ; see Clinton Hill Holding 1, LLC v. Kathy & Tania, Inc., 142 A.D.3d 631, 632, 36 N.Y.S.3d 732 ). "Absent such conduct, the mere inadequacy of price is an insufficient reason to set aside a sale unless the price is so inadequate as to shock the court's conscience" ( Dime Sav. Bank of N.Y. v. Zapala, 255 A.D.2d 547, 548, 680 N.Y.S.2d 665 ; see U.S. Bank N.A. v. Testa, 140 A.D.3d 855, 856, 33 N.Y.S.3d 387 ).
Here, the defendant failed to present evidence of fraud, collusion, mistake, or misconduct casting suspicion on the fairness of the foreclosure sale (see Nationstar Mtge., LLC v. Crute, 187 A.D.3d at 1030, 134 N.Y.S.3d 440 ; U.S. Bank N.A. v. Testa, 140 A.D.3d at 856, 33 N.Y.S.3d 387 ). Moreover, the defendant failed to demonstrate that the sale price was so inadequate as to shock the court's conscience (see Chase Manhattan Bank v. Nath, 162 A.D.3d 978, 980, 80 N.Y.S.3d 377 ; U.S. Bank N.A. v. Testa, 140 A.D.3d at 856–857, 33 N.Y.S.3d 387 ).
The defendant's remaining contentions are without merit.
Accordingly, the Supreme Court properly denied those branches of the defendant's motion which were to set aside the foreclosure sale and direct that a new sale be conducted.
BRATHWAITE NELSON, J.P., IANNACCI, RIVERA and FORD, JJ., concur.