| Argent Mtge. Co., LLC v Leveau |
| 2007 NY Slip Op 10085 [46 AD3d 727] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Argent Mortgage Company, LLC, Respondent, v AlfonsoLeveau et al., Defendants. M2N Corp., Nonparty Appellant. |
—[*1] Eschen, Frenkel & Weisman, LLP, Bayshore, N.Y. (Joseph Battista of counsel), forrespondent.
In an action to foreclose a mortgage, nonparty M2N Corp., the successful bidder at a judicialsale of the subject premises, appeals from an order of the Supreme Court, Westchester County(Lefkowitz, J.), entered August 14, 2006, which granted those branches of the plaintiff's motionwhich were to declare it in default, to direct the referee to resell the subject premises unless itclosed by September 14, 2006, and to permit the plaintiff to retain as liquidated damages thedown payment it made in the event it failed to close by September 14, 2006.
Ordered that the order is affirmed, with costs.
The appellant was the successful bidder at a judicial sale of the subject property conductedpursuant to a judgment of foreclosure. Two of the defendants in the foreclosure action, AlfonsoLeveau and Robert Lagos, allegedly were not served with the summons and complaint bypersonal delivery (see CPLR 308 [1]). The appellant refused to close, contending that thepossibility that Leveau or Lagos, in the future, might seek to vacate the judgment of foreclosurepursuant to CPLR 317 necessarily rendered title to the subject premises unmarketable. TheSupreme Court disagreed, as do we. "A marketable title is 'a title free from reasonable doubt, butnot from every doubt' " (Gateway Dev. & Mfg. v Commercial Carriers, 296 AD2d 821,824 [2002], quoting Regan v Lanze, 40 NY2d 475, 482 [1976]; see VoorheesvilleRod & Gun Club v Tompkins Co., 82 NY2d 564, 571 [1993]). "Something more than a mereassertion of a right is essential to create an unmarketable or doubtful [*2]title" (Nasha Holding Corp. v Ridge Bldg. Corp., 221 AppDiv 238, 243 [1927]; see Gateway Dev. & Mfg. v Commercial Carriers, 296 AD2d at824).
In any event, pursuant to the referee's terms of sale, the appellant agreed to take the premisessubject to the "[r]ights of any defendants, pursuant to [CPLR 317]." Under the facts presented,the appellant improperly refused to close on the ground asserted (cf. Stathakis v Poon,295 AD2d 496 [2002]).
The appellant's remaining contentions are without merit. Crane, J.P., Fisher, Carni andMcCarthy, JJ., concur.