Submitted - February 13, 2018
Nath, Orangeburg, NY, appellant pro se.
Lord LLP, New York, NY (R. James DeRose III, Casey B. Howard,
and Samantha Ingram of counsel), for respondent.
C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant Prem Nath
appeals from an order of the Supreme Court, Rockland County
(Gerald E. Loehr, J.), entered October 25, 2016. The order,
insofar as appealed from, denied that defendant's motion
to vacate a judgment of foreclosure and sale of the same
court (Alfred J. Weiner, J.) entered March 2, 2011, and to
set aside the foreclosure sale and referee's deed.
that the order is affirmed insofar as appealed from, with
protracted litigation related to a note and mortgage that
were executed by the defendant Prem Nath (hereinafter the
defendant) on September 4, 1998, and encumbering real
property located in Blauvelt, the plaintiff obtained a
judgment of foreclosure and sale entered March 2, 2011. The
defendant's motion, inter alia, to vacate the judgment of
foreclosure and sale was denied, and the defendant did not
appeal from that order. The defendant's second motion to
vacate the judgment of foreclosure sale also was denied
(see Chase Manhattan Bank v Nath, __ A.D.3d __
[Appellate Division Docket No. 2015-09937; decided
herewith]). The subject premises was sold at a public auction
on December 14, 2015. Thereafter, the defendant moved, for
the third time, to vacate the judgment of foreclosure and
sale, and to set aside the foreclosure sale and referee's
deed. In an order entered October 25, 2016, the Supreme
Court, inter alia, denied the defendant's motion. The
defendant appeals from so much of the order as denied his
motion, and we affirm the order insofar as appealed from.
agree with the Supreme Court's denial of that branch of
the defendant's motion which was to vacate the judgment
of foreclosure and sale. This branch of the defendant's
motion is premised on the same grounds raised by the
defendant in support of his first and second motions to
vacate the judgment of foreclosure and sale. Not only did the
defendant move for a third time based on the same grounds,
the defendant's arguments relating to these grounds were
virtually identical, and he failed to present any facts that
were not already presented on his previous motions. Thus, the
defendant was precluded from bringing this third motion to
vacate the judgment of foreclosure and sale (see EMC
Mtge. Corp. v Asturizaga, 150 A.D.3d 824, 825; HSBC
Bank USA, N.A. v Legros, 122 A.D.3d 799, 800;
Eastern Sav. Bank, FSB v Brown, 112 A.D.3d 668, 670;
Discover Bank v Qader, 105 A.D.3d 892).
may, in the exercise of its equitable powers, set aside a
foreclosure sale where there is evidence of fraud, collusion,
mistake, or misconduct (see Northern Blvd Corona, LLC v
Northern Blvd Prop., LLC, 157 A.D.3d 895, 896; U.S.
Bank N.A. v Testa, 140 A.D.3d 855, 856; Bank of N.Y.
Trust Co. v Gonzalez-Salinas, 89 A.D.3d 779, 779). In
order to provide a basis for setting aside a sale, the
evidence of fraud, collusion, mistake, or misconduct must
cast suspicion on the fairness of the sale (see Northern
Blvd Corona, LLC v Northern Blvd Prop., LLC, 157 A.D.3d
at 896; Clinton Hill Holding 1, LLC v Kathy & Tania,
Inc., 142 A.D.3d 631, 632). Here, the defendant failed
to establish fraud, collusion, mistake, or misconduct in
connection with the foreclosure sale that warranted setting
sale price did not warrant setting aside the foreclosure sale
and referee's deed (see Northern Blvd Corona, LLC v
Northern Blvd Prop., LLC, 157 A.D.3d at 896; U.S.
Bank N.A. v Testa, 140 A.D.3d at 856; Dime Sav. Bank
of N.Y, FSB v Zapala, 255 A.D.2d 547, 548; Provident
Savings Bank v Bordes, 244 A.D.2d 470; Bankers
Federal Sav. & Loan Assn. v House, 182 A.D.2d 602,
603). In most instances, the fair market value of a mortgaged
property will exceed the winning bid on that property at a
foreclosure sale (see Northern Blvd Corona, LLC v
Northern Blvd Prop., LLC, 157 A.D.3d at 896; Polish
Natl. Alliance of Brooklyn v White Eagle Hall Co., 98
A.D.2d 400, 407). Here, the defendant failed to submit
sufficient evidence as to the market value of the property
(see U.S. Bank N.A. v Testa, 140 A.D.3d at 856).
Even assuming that the value of the property was what the
defendant alleges, under the circumstances of this case, the
sale price was not so inadequate as to shock the court's
conscience (see Chiao v Poon, 128 A.D.3d 879, 880;
Dime Sav. Bank of N.Y. FSB v Zapala, 255 A.D.2d at
548; Polish Natl. Alliance of Brooklyn v White Eagle Hall
Co., 98 A.D.2d at 408; cf. Astoria Fed. Sav. &
Loan Assoc. v Hartridge, 58 A.D.3d 584, 585).
the defendant failed to show that a substantial right of his
was prejudiced by the alleged defects in the notice of the
foreclosure sale (see South Point, Inc. v Rana, 139
A.D.3d 936, 937; Wells Fargo Bank, N.A. v IPA Asset Mgt.
III, LLC, 111 A.D.3d 820; NYCTL 1999-1 Trust v NY
Pride Holdings, Inc., 34 A.D.3d 774; Arbor Natl.
Commercial Mtge. v Carmans Plaza, 305 A.D.2d 622, 623;
Key Corporate Capital v Lindo, 304 A.D.2d 620;
Amresco New EnglandII, L.P. v. Denino, 283 A.D.2d
we agree with the Supreme Court's denial of the
defendant's motion to vacate the judgment of foreclosure
and sale and set ...