| Wells Fargo Bank, N.A. v IPA Asset Mgt. III, LLC |
| 2013 NY Slip Op 07725 [111 AD3d 820] |
| November 20, 2013 |
| Appellate Division, Second Department |
| Wells Fargo Bank, N.A., Appellant, v IPA AssetManagement III, LLC, et al., Defendants, and Josef C. Mangiaracina, et al., Respondents.(And a Third-Party Action.) |
—[*1] Matthew K. Tannenbaum, Farmingdale, N.Y., for respondents.
In an action, inter alia, to set aside certain transfers of real property, the plaintiffappeals, as limited by its brief, from so much of an order of the Supreme Court, SuffolkCounty (Martin, J.), dated September 28, 2011, as denied its motion to set aside asheriff's sale held on December 15, 2009, and granted those branches of the cross motionof the defendants Josef C. Mangiaracina and DLJ Equities, LLC, which were, in effect,for summary judgment dismissing so much of the amended complaint as sought to setaside the sheriff's sale, and to cancel the notice of pendency.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied the plaintiff's motion to set aside a sheriff's saleheld on December 15, 2009. Pursuant to CPLR 2003, a court may set aside a judicial sale"for a failure to comply with the requirements of the [CPLR] as to the notice, time ormanner of such sale, if a substantial right of a party was prejudiced by the defect."Additionally, a court has the discretion to exercise its equitable powers "to set aside ajudicial sale where fraud, collusion, mistake, or misconduct casts suspicion on thefairness of the sale" (Fleet Fin. v Gillerson, 277 AD2d 279, 280 [2000]; seeGuardian Loan Co. v Early, 47 NY2d 515, 520-521 [1979]; Bank of N.Y. v Segui, 91AD3d 689, 690 [2012]). "Absent such conduct, the mere inadequacy of price is aninsufficient reason to set aside a sale unless the price is so inadequate as to shock thecourt's conscience" (Dime Sav. Bank of N.Y. v Zapala, 255 AD2d 547, 548[1998]; see Provident Sav. Bank v Bordes, 244 AD2d 470, 470 [1997]).
Contrary to the plaintiff's contentions, the Supreme Court properly determined thatthe notice requirements of CPLR 5236 (c) were satisfied. In this regard, the defendantsJosef C. Mangiaracina and DLJ Equities, LLC (hereinafter together the DLJ defendants)submitted the Sheriff's proof of service of the notice of sale, and the signed certified mailreceipt returned to the Sheriff, which raised a presumption that the notice of sale wasproperly mailed and received by the plaintiff (see Dune Deck Owners Corp. v JJ & P Assoc. Corp., 71 AD3d1075, 1077 [2010]; NewYork & [*2]Presbyt. Hosp. v Allstate Ins. Co., 29AD3d 547, 547 [2006]). The affidavit submitted by the plaintiff was insufficient torebut the presumption of proper mailing and receipt (see Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d981, 982 [2007]; Mei YunLi v Qing He Xu, 38 AD3d 731, 732 [2007]; Matter of Fodor v MBNA Am.Bank, N.A., 34 AD3d 473, 474 [2006]).
The plaintiff also failed to demonstrate any mistake or any irregularity which wouldcast suspicion on the fairness of the sheriff's sale (see Matter of Ziede v Mei Ling Chow, 94 AD3d 771, 772[2012]; Dime Sav. Bank of N.Y. v Zapala, 255 AD2d at 548). Further, the priceat the sheriff's sale was not so low as to shock the conscience of the court (see DimeSav. Bank of N.Y. v Zapala, 255 AD2d at 548; Crossland Mtge. Corp. vFrankel, 192 AD2d 571, 572 [1993]; Polish Natl. Alliance of Brooklyn v WhiteEagle Hall Co., 98 AD2d 400, 408 [1983]).
The Supreme Court also properly granted that branch of the DLJ defendants' crossmotion which was, in effect, for summary judgment dismissing so much of the amendedcomplaint as sought to set aside the sheriff's sale. The DLJ defendants established theirprima facie entitlement to judgment as a matter of law by submitting, inter alia, evidencethat an underlying judgment, which led to the commencement of enforcementproceedings and sheriff's sale of the subject property, remained outstanding and was avalid lien against the subject property (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]). In opposition, the plaintiff failed to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Theplaintiff's contentions, that the underlying judgment was satisfied prior to the sheriff'ssale and that it may not have been properly obtained, were conclusory andunsubstantiated. Consequently, they were insufficient to raise a triable issue of fact (see Baron Assoc., LLC v GarciaGroup Enters., Inc., 96 AD3d 793, 794 [2012]; Quest Commercial, LLC vRovner, 35 AD3d 576, 576-577 [2006]; Wolf v Citibank, N.A., 34 AD3d 574, 575 [2006]).
As the Supreme Court properly granted summary judgment dismissing so much ofthe amended complaint as sought to vacate the sheriff's sale, title to, the possession of, orthe use or enjoyment of the subject property is no longer at issue. Accordingly, theSupreme Court properly granted that branch of the DLJ defendants' cross motion whichwas to cancel the notice of pendency (see CPLR 6514 [a]; Freidus vSardelli, 192 AD2d 578, 580 [1993]).
The plaintiff's remaining contention, raised for the first time on appeal, is notproperly before this Court (seeBuck Realty of Long Is., Inc. v Elliott, 106 AD3d 768 [2013]). Dillon, J.P.,Angiolillo, Leventhal and Lott, JJ., concur.