| Mortgage Elec. Registration Sys., Inc. v Schotter |
| 2008 NY Slip Op 03608 [50 AD3d 983] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Mortgage Electronic Registration Systems, Inc.,Respondent, v Anthony J. Schotter, Appellant, et al., Defendants. Esphir Popilevsky etal., Nonparty Respondents. |
—[*1] Berkman, Henoch, Peterson & Peddy, P.C., Garden City, N.Y. (Lisa M. Confusione andHenry P. DiStefano of counsel), for plaintiff-respondent. Sanford Solny, New York, N.Y., for nonparty respondents.
In an action to foreclose a mortgage, the defendant mortgagor, Anthony J. Schotter, appealsfrom an order of the Supreme Court, Richmond County (McMahon, J.), dated December 18,2006, which denied his motion, inter alia, to vacate a judgment of foreclosure and sale of thesame court (Mega, J.), dated May 24, 2006, entered upon his default in answering the complaint,and to set aside the foreclosure sale.
Ordered that the order is affirmed, with costs.
The motion of the defendant Anthony J. Schotter (hereinafter the defendant) to vacate thejudgment of foreclosure and sale was properly denied. The affidavit of the process serverconstituted prima facie evidence of proper service pursuant to CPLR 308 (4) (see Wells Fargo Bank, N.A. v McGloster,48 AD3d 457 [2008]; Simonds v Grobman, 277 AD2d 369 [2000]), and thedefendant's conclusory allegations were insufficient to rebut the presumption of proper service(see Francis v Francis, 48 AD3d512 [2008]; Silverman v Deutsch, 283 AD2d 478, 479 [2001]; Simmons FirstNatl. Bank v Mandracchia, 248 AD2d 375 [1998]).[*2]
The Supreme Court properly denied that branch of thedefendant's motion which was to vacate the judgment pursuant to CPLR 5015 (a) (3). Contrary tothe defendant's contentions, there is no evidence that the mortgage servicer, the plaintiff, or theplaintiff's counsel represented to the defendant that he need not defend the foreclosure action, orin any manner agreed to stay the proceedings while he attempted to resolve his financialdifficulties. As such, the defendant failed to show that the judgment was obtained by means ofextrinsic fraud (see Matter of Fickling v Fickling, 210 AD2d 223, 223-224 [1994]; cf.Tonawanda School Empls. Fed. Credit Union v Zack, 242 AD2d 894, 894-895 [1997];Shaw v Shaw, 97 AD2d 403 [1983]).
The Supreme Court properly declined to set aside the foreclosure sale conducted onSeptember 27, 2006. CPLR 2003 authorizes the court to set aside a judicial sale "for a failure tocomply with the requirements of the civil practice law and rules as to the notice, time or mannerof such sale, if a substantial right of a party was prejudiced by the defect" (CPLR 2003; seeGuardian Loan Co. v Early, 47 NY2d 515, 520 [1979]). In addition to the authority grantedby statute, a court, "in the exercise of its equitable powers, has the discretion to set aside ajudicial sale where fraud, collusion, mistake, or misconduct casts suspicion on the fairness of thesale" (Alkaifi v Celestial Church ofChrist Calvary Parish, 24 AD3d 476, 477 [2005]; see Bankers Fed. Sav. & LoanAssn. v House, 182 AD2d 602, 603 [1992]).
Publication of the notice of foreclosure sale in the New York Law Journal, rather than in alocal Richmond County newspaper, was "a mere irregularity," not "a jurisdictional defect"(Key Corporate Capital v Lindo, 304 AD2d 620 [2003]; see DeRosa v Chase Manhattan Mtge.Corp., 10 AD3d 317, 321-322 [2004]; Amresco New England II v Denino, 283AD2d 599, 599-600 [2001]; OCI Mtge. Corp. v Bubeck, 250 AD2d 581 [1998];Marine Midland Bank v Landsdowne Mgt. Assoc., 193 AD2d 1091, 1092 [1993];CME Group v Cellini, 173 Misc 2d 404, 407-408 [1997]). Consequently, "[a]bsent ashowing that a substantial right of a party was prejudiced," this defect does not require that thesale be vacated (Amresco New England II v Denino, 283 AD2d at 599; see DeRosav Chase Manhattan Mtge. Corp., 10 AD3d at 321-322; OCI Mtge. Corp. v Bubeck,250 AD2d at 581; CME Group Ltd. v Cellini, 173 Misc 2d at 407-408; cf. KeyCorporate Capital v Lindo, 304 AD2d at 620). The defendant failed to make such a showing.There was evidence that a number of independent individuals were present at the auction andactively bid on the property. In the face of this undisputed evidence, the defendant "provided noevidence to support his contention that any prospective bidders were prevented from attendingthe sale due to lack of proper notice" (Amresco New England II v Denino, 283 AD2d at600).
Although the notice of sale omitted reference to one of the two lots being sold, itincorporated the judgment by reference, to which a correct description of the property wasappended (see Stein v Cula Capital Corp., 260 AD2d 569, 569-570 [1999]). Moreover,both lots were listed in the notice of pendency and the property was correctly identified by thestreet address included in the notice of sale. Accordingly, potential purchasers could not havebeen misled by the error (see Stein v Cula Capital Corp., 260 AD2d at 569-570;Chemical Bank v Gardner, 233 AD2d 606, 607 [1996]; Hanover Funding Co. v KeriAssoc., 180 AD2d 945, 946 [1992]).
Even assuming, as assessed by the defendant's mortgage broker, that the total value of bothlots was $450,000, where there was no evidence of "fraud, collusion, mistake, or misconduct,"the sale price realized at the auction was not "so inadequate as to shock the court's conscience,"and thus, did not warrant setting aside the sale (Bankers Fed. Sav. & Loan Assn. v House,182 AD2d 602, 603 [1992]; seeNYCTL 1999-1 Trust v NY Pride Holdings, Inc., 34 AD3d 774 [2006]; [*3]Provident Sav. Bank v Bordes, 244 AD2d 470 [1997];Harbert Offset Corp. v Bowery Sav. Bank, 174 AD2d 650, 651 [1991]; FederalDeposit Ins. Corp. v Forte, 144 AD2d 627, 631-632 [1988]; Frank Buttermark Plumbing& Heating Corp. v Sagarese, 119 AD2d 540 [1986]; Polish Natl. Alliance of Brooklyn vWhite Eagle Hall Co., 98 AD2d 400, 407-408 [1983]).
The defendant's remaining contentions are without merit. Ritter, J.P., Covello, Angiolillo andMcCarthy, JJ., concur.