Opinion
Submitted March 29, 1977
Decided May 3, 1977
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, PAUL KELLY, J.
Alan Manning Miller for appellant.
Arnold J. Hauptman for respondent.
MEMORANDUM. Order affirmed, with costs. An action to foreclose a mortgage is, of course, in equity (Jamaica Sav. Bank v M.S. Investing Co., 274 N.Y. 215, 219). A court of equity has broad power to control the execution of its own judgments, and, at least when only the rights of the parties to the action are involved, an order granting a resale rests within the discretion of the courts below, especially when a number of conceded irregularities occurred (Fisher v Hersey, 78 N.Y. 387, 388-389; see Emigrant Ind. Sav. Bank v Van Bokkelen, 269 N.Y. 110, 115). Moreover, subdivision 6 of section 231 of Real Property Actions and Proceedings Law now explicitly recognizes discretionary power of a court to set aside a foreclosure sale whenever there has been a failure to comply with the statutory notice provisions, and a substantial right of a party has been prejudiced. Since it is concluded that there was no abuse of discretion as a matter of law, the order is not subject to this court's review, and must be affirmed.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed.