| Bank of N.Y. v Segui |
| 2012 NY Slip Op 00316 [91 AD3d 689] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Bank of New York, Respondent, v Margarita Segui,Respondent, et al., Defendants. Chaim Streicher, NonpartyAppellant. |
—[*1] Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Owen M. Robinson of counsel), forplaintiff-respondent.
In an action to foreclose a mortgage, Chaim Streicher appeals from an order of the SupremeCourt, Kings County (Rothenberg, J.), dated September 24, 2010, which denied his cross motionto set aside the foreclosure sale of the subject property and direct the referee to return his deposit.
Ordered that the order is affirmed, with costs.
" 'A marketable title is a title free from reasonable doubt, but not from everydoubt. . . . [A] purchaser ought not to be compelled to take property, the possessionor title of which he [or she] may be obliged to defend by litigation. He [or she] should have a titlethat will enable him [or her] to hold his [or her] land free from probable claim by another, andone which, if he [or she] wishes to sell, would be reasonably free from any doubt which wouldinterfere with its market value' " (Barrera v Chambers, 38 AD3d 699, 700 [2007], quotingVoorheesville Rod & Gun Club v Tompkins Co., 82 NY2d 564, 571 [1993]; see Labav Carey, 29 NY2d 302, 311 [1971]; Cerf v Diener, 210 NY 156, 161 [1914];Patten of N.Y. Corp. v Geoffrion, 193 AD2d 1007, 1009 [1993]; DeJong vMandelbaum, 122 AD2d 772, 774 [1986]). Moreover, "[s]omething more than a mereassertion of a right is essential to create an unmarketable or doubtful title" (Nasha HoldingCorp. v Ridge Bldg. Corp., 221 App Div 238, 243 [1927]; see Argent Mtge. Co., LLC v Leveau,46 AD3d 727 [2007]).
Here, even accepting the appellant's unsubstantiated assertions regarding the subjectproperty's decreased market value since an August 2005 foreclosure sale, at which he was thesuccessful bidder, contrary to his contention, a property's decreased market value does not rendertitle unmarketable (cf. Laba v Carey, 29 NY2d at 311; Barrera v Chambers, 38AD3d at 700; Patten of N.Y. Corp. v Geoffrion, 193 AD2d at 1009; DeJong vMandelbaum, 122 AD2d at 774). Moreover, under the circumstances, the mortgagor'snumerous unsuccessful motions to vacate the judgment of foreclosure and sale pursuant to whichthe foreclosure sale was conducted do not constitute reasonable doubt sufficient to affect themarketability of title (see Argent Mtge.Co., LLC v Leveau, 46 AD3d 727 [2007]).
A court may exercise its inherent equitable power to ensure that a foreclosure sale conductedpursuant to a judgment of foreclosure "is not made the instrument of injustice" (GuardianLoan Co. v Early, 47 NY2d 515, 520 [1979]; see Golden Age Mtge. Corp. v ArgonneEnters., LLC, 68 [*2]AD3d 925 [2009]; Alkaifi v Celestial Church of ChristCalvary Parish, 24 AD3d 476, 477 [2005]) and, therefore, may set aside a foreclosuresale where " 'fraud, collusion, mistake, or misconduct casts suspicion on the fairness of the sale' "(Alkaifi v Celestial Church of Christ Calvary Parish, 24 AD3d at 477, quoting FleetFin. v Gillerson, 277 AD2d 279, 280 [2000]).
Contrary to the appellant's contention, the delay in closing title after his successful bid for thesubject property at the August 2005 foreclosure sale does not provide an equitable basis to setaside the subject sale and direct the referee to return his deposit (see Manufacturers & Traders Trust Co. vFoy, 79 AD3d 825 [2010]). Further, the appellant's conduct demonstrates that heacquiesced in the delayed closing. While the appellant may not have anticipated the length of thedelay, he does not dispute that he was aware when he bid on the subject property of themortgagor's pending motion to vacate the judgment of foreclosure and sale, and he intervened inthis action in 2007 (id. at 826). Moreover, the record does not indicate that the appellantattempted to close title after this Court affirmed the denial of the mortgagor's motion to vacatethe judgment of foreclosure and sale (see Bank of N.Y. v Segui, 42 AD3d 555 [2007]), or after this Courtaffirmed the denial of the mortgagor's motion to renew her motion to vacate the judgment offoreclosure and sale (Bank of N.Y. vSegui, 68 AD3d 908 [2009]; see Manufacturers & Traders Trust Co. v Foy, 79AD3d at 826).
The appellant makes no allegation that the sale itself was tainted by fraud, collusion, mistake,or other misconduct (see Alkaifi v Celestial Church of Christ Calvary Parish, 24 AD3d at477; Fleet Fin. v Gillerson, 277 AD2d at 280). Moreover, the fact that the appellant maynow be overpaying for the property does not provide an equitable basis to void the sale (seeGuardian Loan Co. v Early, 47 NY2d 515, 521 [1979]; Manufacturers & Traders Trust Co. v Foy, 79 AD3d 825 [2010]).
Accordingly, the Supreme Court properly denied the appellant's cross motion to set aside theforeclosure sale of the subject property and direct the referee to return his deposit. Mastro, A.P.J.,Hall, Sgroi and Cohen, JJ., concur.