| Manufacturers & Traders Trust Co. v Foy |
| 2010 NY Slip Op 09229 [79 AD3d 825] |
| December 14, 2010 |
| Appellate Division, Second Department |
| Manufacturers & Traders Trust Co., Respondent, v LawrenceB. Foy et al., Respondent, et al., Defendants. Mohamad Kezadri et al., NonpartyAppellants. |
—[*1] Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino of counsel), forplaintiff-respondent.
In an action to foreclose a mortgage, nonparties Mohamad Kezadri and Keith Alfieri, thesuccessful bidders at a judicial sale of the property foreclosed upon, appeal from an order of theSupreme Court, Kings County (Dabiri, J.), dated February 20, 2009, which denied their motion, ineffect, to set aside the sale and direct the referee to return their deposit.
Ordered that the order is affirmed, with costs.
A court has the inherent equitable power to ensure that a sale conducted pursuant to a judgment offoreclosure "is not made the instrument of injustice" (Guardian Loan Co. v Early, 47 NY2d515, 520 [1979]; see Golden Age Mtge.Corp. v Argonne Enters., LLC, 68 AD3d 925 [2009]; Alkaifi v Celestial Church of Christ Calvary Parish, 24 AD3d 476[2005]), and, in the exercise of its equitable powers, it may set aside a foreclosure sale where "fraud,collusion, mistake, or misconduct casts suspicion on the fairness of the sale" (Alkaifi v CelestialChurch of Christ Calvary Parish, 24 AD3d at 477; see Cicorelli v Hickey's Carting, Inc., 66 AD3d 626 [2009];Wayman v Zmyewski, 218 AD2d 843, 844 [1995]).
Contrary to the appellants' contention, the delay in closing title after they successfully bid for thesubject property at a September 2004 foreclosure sale does not provide an equitable basis for settingaside the subject sale and directing the referee to return their deposit. The appellants' conductdemonstrates that they acquiesced in delaying closing until the mortgagor Jeirlynn Foy's prior challengeto the validity of the sale was resolved. In this regard, we note that the appellants submitted papers inopposition to Jeirlynn Foy's March 2005 motion to vacate the sale, and thereafter submitted a brief inopposition to Jeirlynn Foy's appeal from the order which denied her motion (see Manufacturers & Traders Trust Co. vFoy, 43 AD3d 1005 [2007]). Moreover, the appellants raised no objection to the delay inclosing until more than one year after the prior appeal had been decided, and all potential issuesregarding the marketability of title had been resolved (cf. Rice v Barrett, 99 NY 403 [1885]).Furthermore, the appellants did not allege any conduct which cast suspicion on the fairness of theforeclosure sale (cf. Alkaifi v Celestial Churchof Christ Calvary Parish, 24 AD3d 476 [2005]), or provides a basis for setting aside the salein order to relieve them of oppressive or unfair conduct (see [*2]Guardian Loan Co. v Early, 47 NY2d at 520-521; Golden Age Mtge. Corp. v Argonne Enters.,LLC, 68 AD3d 925 [2009]; Harbor Fin. Mtge. Corp. v Hurry, 277 AD2d 693[2000]). Mastro, J.P., Dillon, Eng and Chambers, JJ., concur.