Opinion
2017–08260 Index No. 52094/16
11-21-2018
T11 FUNDING, Respondent, v. Nancy M. TRAYNELIS, Appellant, et al., Defendants.
Barry Nesson Law, P.C., Scarsdale, NY, for appellant. Glenn Finley, Bronx, NY, for respondent.
Barry Nesson Law, P.C., Scarsdale, NY, for appellant.
Glenn Finley, Bronx, NY, for respondent.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, with costs.
The defendant Nancy M. Traynelis was the owner of a home located in Yonkers (hereinafter the premises). The premises was unencumbered, except for a tax lien held by the plaintiff. In February 2016, the plaintiff commenced this action to foreclose the tax lien against Traynelis, among others. The Supreme Court issued a judgment of foreclosure and sale dated December 8, 2016, which directed that the premises be sold at a public auction. On February 17, 2017, a referee conducted a foreclosure sale, and the plaintiff purchased the premises for $125,000. In April 2017, Traynelis moved, inter alia, to vacate the foreclosure sale. In an order dated June 23, 2017, the court denied Traynelis's motion. Traynelis appeals.
CPLR 2003 authorizes the court to set aside a judicial sale "for a failure to comply with the requirements of the civil practice law and rules as to the notice, time or manner of such sale, if a substantial right of a party was prejudiced by the defect" ( CPLR 2003 ; see Guardian Loan Co. v. Early, 47 N.Y.2d 515, 520, 419 N.Y.S.2d 56, 392 N.E.2d 1240 ). Here, Traynelis failed to establish that any alleged defects in the notice of sale, the terms of sale, and the publication of the notice of sale prejudiced a substantial right of a party (see South Point, Inc. v. Rana, 139 A.D.3d 936, 937, 30 N.Y.S.3d 565 ; Mortgage Elec. Registration Sys., Inc. v. Schotter, 50 A.D.3d 983, 984, 857 N.Y.S.2d 592 ; NYCTL 1999–1 Trust v. N.Y. Pride Holdings, Inc., 34 A.D.3d 774, 825 N.Y.S.2d 521 ; Key Corporate Capital v. Lindo, 304 A.D.2d 620, 757 N.Y.S.2d 476 ).
A court may, in the exercise of its equitable powers, set aside a foreclosure sale where there is evidence of fraud, collusion, mistake, or misconduct (see Northern Blvd Corona, LLC v. Northern Blvd Prop., LLC, 157 A.D.3d 895, 896, 69 N.Y.S.3d 866 ; 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 (see Northern Blvd Corona, LLC v. Northern Blvd Prop., LLC, 157 A.D.3d at 896, 69 N.Y.S.3d 866 ; Clinton Hill Holding 1, LLC v. Kathy & Tania, Inc., 142 A.D.3d 631, 632, 36 N.Y.S.3d 732 ). Here, Traynelis failed to establish fraud, collusion, mistake, or misconduct in connection with the foreclosure sale that warranted setting the sale aside (see Mortgage Elec. Registration Sys., Inc. v. Schotter, 50 A.D.3d at 984, 857 N.Y.S.2d 592 ).
Accordingly, we agree with the Supreme Court's denial of that branch of Traynelis's motion which was to vacate the foreclosure sale.
DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.