| First Union National Bank v Williams |
| 2007 NY Slip Op 08342 [45 AD3d 1029] |
| November 8, 2007 |
| Appellate Division, Third Department |
| First Union National Bank, as Trustee, Respondent, v Richard E.Williams et al., Defendants. Property Partners, LLC, Appellants. |
—[*1] O'Melveny & Myers, L.L.P., New York City (Yosef Rothstein of counsel), forrespondent.
Mugglin, J. Appeal from an order of the Supreme Court (Ceresia, Jr., J.), entered July 10,2006 in Rensselaer County, which, among other things, upon renewal, vacated the foreclosuresale held on the residence of defendants Richard E. Williams and Nancy J. Williams.
A foreclosure sale of the home of defendants Richard E. Williams and Nancy J. Williams(hereinafter collectively referred to as defendants) was scheduled to take place on September 12,2005. Defendants negotiated a repayment agreement with plaintiff, and plaintiff unsuccessfullyattempted to contact the referee to cancel the sale. Unaware of these events, the referee sold theproperty to Property Partners, LLC (hereinafter Partners) for $81,000. When plaintiff learned thatthe foreclosure sale had occurred, it first sought Partners' consent to vacate it. When Partnersrefused, plaintiff moved in Supreme Court to vacate it, claiming that the sale was made as aresult of a mistake which cast doubt on the fairness of the transaction. Following SupremeCourt's denial of the motion, plaintiff sought renewal and reargument of the vacatur motion,claiming that Partners had failed to tender the balance of the purchase price within 30 days of thesale and that equitable grounds existed warranting vacatur of the sale. Supreme Court grantedrenewal and vacated the sale on the ground that Partners defaulted in performance and onequitable grounds. Partners now appeals.[*2]
As an initial matter, we reject Partners' contention thatSupreme Court erred in granting plaintiff's motion to renew. The motion was supported by theaffidavit of Nancy Williams, who alleged the terms and conditions of the repayment agreementwith plaintiff and defendants' reliance upon plaintiff's representation that the foreclosure salewould therefore be cancelled. Subsequently, Supreme Court authorized plaintiff to supplementits motion to renew by offering evidence concerning the valuation of the property and thatPartners had defaulted by failing to tender the balance of the purchase price. We find no merit toPartners' complaints since the original motion to renew was made before expiration of the periodin which Partners was to perform the contract of sale and the evidence of market value cameprincipally from Partners' own papers. It is well settled that " '[a] motion to renew must be basedupon newly discovered evidence which existed at the time the prior motion was made, but wasunknown to the party seeking renewal, along with a justifiable excuse as to why the newinformation was not previously submitted' " (Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [2007],quoting Wahl v Grippen, 305 AD2d 707, 707 [2003]; see CPLR 2221 [e];Cippitelli v County of Schenectady, 307 AD2d 658, 658 [2003]). Plaintiff's explanationthat an affidavit of defendants was not previously submitted since they believed defendantswould join in the motion to vacate the sale was reasonable and provided an ample basis uponwhich Supreme Court could exercise its discretion. Moreover, we generally decline to disturb thedecision to grant or deny a motion to renew absent an abuse of the trial court's discretion (see De Cicco v Longendyke, 37 AD3d934, 935 [2007]; Matter of Hunter vNew York State Bd. of Elections, 32 AD3d 662, 663 [2006]; Heim v Tri-Lakes Ford Mercury, Inc.,25 AD3d 901, 904 [2006], lv denied and dismissed 6 NY3d 886 [2006]; Rizzo v St. Lawrence Univ., 24 AD3d983, 984 [2005]). Here, we find no abuse of discretion with respect to allowing evidenceconcerning Partners' default or evidence of the value of the property.
Turning to the substantive argument, we agree with Supreme Court that the existence ofequitable grounds and Partners' default provide ample basis for vacating the sale to Partners. It isundisputed that Partners failed to tender performance to complete the purchase of the property inaccordance with the terms of the foreclosure sale. Partners' present claim, that the referee refusedto convey the property as a result of the pending vacatur motion, does not operate to relievePartners of its duty to tender performance or to demand that a closing be scheduled (see Lower v Village of Watkins Glen,17 AD3d 829, 831 [2005]). Additionally, evidence of defendants' reliance upon plaintiff'scancellation of the foreclosure sale and evidence that the actual value of defendants' property wasin excess of $200,000, which would result in a significant loss to defendants and a windfall toPartners, provides a sufficient equitable basis to support Supreme Court's exercise of discretionto vacate the sale (see Harbor Fin. Mtge. Corp. v Hurry, 277 AD2d 693, 694 [2000]).Thus, we find no basis upon which to disturb Supreme Court's determination (see Albany, FSB v Dashnaw, 37 AD3d932, 934 [2007]).
Crew III, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, withcosts.