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Golden Age Mortgage Corp. v. Argonne Enterprises

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 15, 2009

GOLDEN AGE MORTGAGE CORPORATION, RESPONDENT,
v.
ARGONNE ENTERPRISES, LLC, ET AL., APPELLANTS, ET AL., DEFENDANTS.

In an action to foreclose three mortgages, the defendants Argonne Enterprises, LLC, Anastasia Gianopoulos, a/k/a Ann Gianopoulos, and Anastasia Gianopoulos, a/k/a Stacy Gianopoulos, appeal, as limited by their brief, from so much of an order of the Supreme Court, Putnam County (O'Rourke, J.), dated February 17, 2009, as denied their motion, inter alia, to vacate a judgment of foreclosure and sale of the same court dated August 5, 2008, and to vacate and set aside the foreclosure sales held pursuant thereto on October 8, 2008.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., DANIEL D. ANGIOLILLO, PLUMMER E. LOTT and SANDRA L. SGROI, JJ.

(Index No. 1822/06)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

Pursuant to CPLR 2003, "[a]t any time within one year after a sale made pursuant to a judgment or order, but not thereafter, the court, upon such terms as may be just, may set the sale aside for a failure to comply with the requirements of the civil practice law and rules as to the notice, time or manner of such sale, if a substantial right of a party was prejudiced by the defect" (see Guardian Loan Co. v Early, 47 NY2d 515, 520; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983, 984). Moreover, "[a] court has the inherent equitable power to ensure that a sale conducted pursuant to a judgment of foreclosure is not made the instrument of injustice'" (Alkaifi v Celestial Church of Christ Calvary Parish, 24 AD3d 476, 477, quoting Guardian Loan Co. v Early, 47 NY2d at 520). Nonetheless, under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in declining to vacate a judgment of foreclosure and sale dated August 5, 2008, and in declining to vacate and set aside the foreclosure sales.

In light of our determination, we need not reach the plaintiff's remaining contention.

FISHER, J.P., ANGIOLILLO, LOTT and SGROI, JJ., concur.

20091215

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