- October 20, 2017
Holihan & Associates, PC, Richmond Hill, NY (Nazareth
Markarian of counsel), for appellants.
& Feuerstein LLP, New York, NY (Jerold C. Feuerstein,
Michael J. Bonneville, and Tiffany L. Henry of counsel), for
& Loeb LLP, New York, NY (Jon Hollis, David M. Satnick,
and Helen Gavaris of counsel), for nonparty-respondents.
WILLIAM F. MASTRO, J.P. SHERI S. ROMAN ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendants Northern Blvd
Property, LLC, and Yourik Atakhanian appeal from (1) a
deficiency judgment and order confirming a referee's
report of sale (one paper) of the Supreme Court, Queens
County (D. Hart, J.), entered January 12, 2016, upon their
failure to answer the complaint, and (2) an order of the same
court entered March 8, 2016, which denied their motion, inter
alia, to vacate a referee's deed in foreclosure dated
December 31, 2014.
that the appeal from the deficiency judgment and order
confirming the referee's report of sale is dismissed, as
no appeal lies from an order or judgment entered upon the
default of the appealing party (see CPLR 5511); and it is
further, ORDERED that the order is affirmed, and it is
further, ORDERED that one bill of costs is awarded to
respondents appearing separately and filing separate briefs.
may exercise its inherent equitable power to ensure that a
foreclosure sale conducted pursuant to a judgment of
foreclosure "is not made the instrument of
injustice'' (Guardian Loan Co. v Early, 47
N.Y.2d 515, 520; see PIISam, LLC v Koutsagelos, 119
A.D.3d 846; Golden Age Mtge. Corp. v Argonne Enters.,
LLC, 68 A.D.3d 925; 3-30 Bergman on New York Mortgage
Foreclosures § 30.06) and, therefore, may set aside a
foreclosure sale "'where fraud, collusion, mistake,
or misconduct casts suspicion on the fairness of the
sale'" (Alkaifi v Celestial Church of Christ
Calvary Parish, 24 A.D.3d 476, 477, quoting Fleet
Fin. v Gillerson, 277 A.D.2d 279, 280; see Bank of
N.Y. v Segui, 91 A.D.3d 689). Absent such conduct, the
mere inadequacy of price is an insufficient reason to set
aside a sale unless the price is so inadequate as to shock
the court's conscience (see Dime Sav. Bank of N.Y. v
Zapala, 255 A.D.2d 547; Polish Natl. Alliance of
Brooklyn v White Eagle Hall Co., 98 A.D.2d 400).
"[I]n most instances, " the fair market value of a
mortgaged property "will exceed the winning bid" on
that property at a foreclosure sale (Polish Natl.
Alliance of Brooklyn v White Eagle Hall Co., 98 A.D.2d
at 407; see U.S. BankN.A. v Testa, 140 A.D.3d 855).
the appellants moved, inter alia, to vacate the referee's
deed, arguing that it should be set aside because the
defendant Yourik Atakhanian overheard the successful bidders
conspiring to rig the bidding at the public auction. The
appellants' evidence, however, was improperly submitted
for the first time in reply to the plaintiff's opposition
to their motion (see Constantine v Premier Cab
Corp., 295 A.D.2d 303).
to the appellants' contention, the delay in closing title
does not provide an equitable basis to set aside the sale
(see Bank of N.Y. v Segui, 91 A.D.3d 689), and their
conduct demonstrates that they contributed to the delay
(see id. at 690-691).
evidence in the form of a letter of intent submitted by the
appellants to support their claim that the property had a
value of $15 million was likewise improperly submitted for
the first time in their reply papers. The appellants failed
to cast suspicion on the fairness of the sale (see PII
Sam, LLC v Koutsagelos, 119 A.D.3d at 846), and the sale
price of $10.3 million was not so inadequate as to shock the