BANK v. Rafael Badalov, et al., Intervenors–Respondents. (2018)

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered September 8, 2016, which, to the extent appealed from as limited by the briefs, denied, after a hearing, plaintiff's motion to set aside a mortgage foreclosure sale, and order, same court and Justice, entered on or about July 13, 2017, insofar as it denied its second motion to renew its motion to set aside the sale pursuant to RPAPL 231(6), unanimously affirmed, with costs.

This appeal is not moot, since the relief plaintiff seeks is at least theoretically available (Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] ).

The appeal from the July 13, 2017 order, which denied renewal, is properly before this Court (CPLR 5701[a][2][viii] ).  The motion court's determination is supported by a fair interpretation of the evidence and will not be disturbed on appeal (AGCO Corp. v. Northrop Grumman Space & Mission Sys. Corp., 61 A.D.3d 562, 563–564, 878 N.Y.S.2d 20 [1st Dept. 2009] ).  Moreover, the court's credibility determinations are entitled to deference by this Court and are supported by the record herein (see Watts v. State of New York, 25 A.D.3d 324, 809 N.Y.S.2d 5 [1st Dept. 2006] ).

A court may exercise its equitable powers to set aside a foreclosure sale where there is evidence of fraud, mistake, exploitative overreaching, or collusion.  However, the mere inadequacy of price is an insufficient ground to set aside a sale, unless the price is so inadequate as to shock the court's conscience (see Guardian Loan Co. v. Early, 47 N.Y.2d 515, 521, 419 N.Y.S.2d 56, 392 N.E.2d 1240 [1979]; NYCTL 2005–A Trust v. Rosenberger Boat Livery, Inc., 96 A.D.3d 425, 426, 947 N.Y.S.2d 2 [1st Dept. 2012]; Thornton v. Citibank, 226 A.D.2d 162, 163, 640 N.Y.S.2d 110 [1st Dept. 1996], lv denied 89 N.Y.2d 805, 653 N.Y.S.2d 918, 676 N.E.2d 500 [1996] ).  A unilateral mistake does not justify vacating a foreclosure sale (Dime Sav. Bank of N.Y. v. Zapala, 255 A.D.2d 547, 548, 680 N.Y.S.2d 665 [2d Dept. 1998] ).

Here, plaintiff did not establish fraud, collusion, exploitative overreaching, or mutual mistake in support of its motions to vacate the sale.  At most, the record demonstrates plaintiff's unilateral mistake in failing to make a bid higher than respondents' bid.  Moreover, even if the sale price was lower than plaintiff's claimed upset price, it was not fundamentally unfair and was not so inadequate as to shock this Court's conscience (see South Point, Inc. v. Rana, 139 A.D.3d 936, 936–937, 30 N.Y.S.3d 565 [2d Dept. 2016]; Guardian Loan Co., 47 N.Y.2d at 521, 419 N.Y.S.2d 56, 392 N.E.2d 1240; Thornton, 226 A.D.2d at 163, 640 N.Y.S.2d 110; see also DeRosa v. Chase Manhattan Mtge. Corp., 10 A.D.3d 317, 322, 782 N.Y.S.2d 5 [1st Dept. 2004] ).

Plaintiff's claim, even if regarded as timely made, that the sale should have been vacated because the notice of sale was published in only one paper by plaintiff, in violation of the trial court's order, is without merit since it failed to allege that a substantial right of any party was prejudiced (RPAPL 231[6] ).