GOLDEN CITY COMMERCIAL BANK v. HAWK PROPERTIES CORP (1997)

Judgment, Supreme Court, New York County (Carol Huff, J.), entered September 27, 1996, which, in a mortgage foreclosure action, confirmed the Referee's report of sale, and awarded plaintiffs a deficiency judgment in the amount of $1,288,448.70, plus interest from May 3, 1995, unanimously modified, on the law and the facts, to reduce the deficiency judgment to $777,649.77, plus interest from May 3, 1995, and otherwise affirmed, without costs.

 Contrary to defendants' claim, the standard of reasonable market value embodied in RPAPL 1371(2), not that of commercial reasonableness embodied in UCC 9-504, applies herein, since there is no evidence that the mortgage was pledged as security for a separate independent loan, and the debt sued upon is the mortgage debt (see, Stochastic Decisions v. Wagner, 2d Cir., 34 F.3d 75, 80, citing FDIC v. Forte, 94 A.D.2d 59, 463 N.Y.S.2d 844, and Commercial Trading Co. v. Freidus, 114 A.D.2d 292, 295, 499 N.Y.S.2d 43;  see also, FDIC v. Forte, 144 A.D.2d 627, 535 N.Y.S.2d 75).   No hearing was warranted on the issue of market value since defendants' submission of an attorney's affidavit was insufficient to controvert plaintiff's appraisal of the property (see, RPAPL § 1371[2];  Union Natl. Bank v. Johnson, 209 A.D.2d 775, 617 N.Y.S.2d 993, lv denied 85 N.Y.2d 802, 624 N.Y.S.2d 373, 648 N.E.2d 793;  Evergreen Bank v. D & P Justin's Inc., 152 A.D.2d 898, 544 N.Y.S.2d 244, lv denied 75 N.Y.2d 701, 551 N.Y.S.2d 905, 551 N.E.2d 106), and there is no evidentiary support for defendants' claims of fraud or other misconduct warranting a de novo determination of value as of the date of the sale (see, Ishaq v. Batra, 212 A.D.2d 509, 624 N.Y.S.2d 836;  Westbury Fed. Sav. & Loan Assn. v. Quinton Enter., 88 A.D.2d 950, 451 N.Y.S.2d 188).

 The amount of the deficiency judgment was properly reduced by the $15,000 bid amount retained by plaintiffs when the first bidder defaulted, and the interest of $534.23 that accrued on that amount.   The IAS court erred, however, in basing the deficiency judgment on the $435,000 amount bid at the second sale, rather than on the appraised value of $678,000 (see, RPAPL 1371 [2] ).

 The interest award of $535,597.78 representing interest calculated at the rate of 24% for the 680-day period between the date of the Referee's computation for the judgment of foreclosure and the date of sale should be reduced by one-half, to $267,798.89.   The assignment of the mortgage by plaintiff Golden City Commercial Bank to plaintiff 5th Avenue Park View Ltd. prior to the judgment of foreclosure and sale, created approximately one year of motion practice for which, in equity, defendants should not be held accountable (compare, Griffo v. Swartz, 61 Misc.2d 504, 306 N.Y.S.2d 64).

 The Referee's fee of $2000 was not excessive (see, CPLR 8003 [b];  compare, East Riv. Sav. Bank v. Steingart, 160 A.D.2d 345, 553 N.Y.S.2d 414, appeal dismissed 76 N.Y.2d 876, 560 N.Y.S.2d 986, 561 N.E.2d 886).

We have considered defendants' remaining claims and find them to be without merit.

MEMORANDUM DECISION.