50 EAST 126TH STREET REALTY LLC v. 50 (2023)

Order, Supreme Court, New York County (Francis A. Kahn, II, J.), entered August 19, 2021, which denied the motion of defendants Gisele Brouillette Allard and 50 East 126th Street, Inc. to vacate a foreclosure sale, unanimously affirmed, without costs.  Order, same court and Justice, entered August 25, 2021, which granted plaintiff's motion to direct the foreclosure Referee to deliver the deed to the property in accordance with the terms of the related judgment of foreclosure and sale, unanimously affirmed, without costs.

Defendants’ motion to vacate the foreclosure sale was time-barred.  Under RPAPL 231(6), defendants were obliged to make an application to set aside the foreclosure sale within one year after the sale.  However, even taking into consideration the effect of the Governor's Executive Order suspending certain statutory time limits during the COVID–19 pandemic (9 NYCRR 8.202.8), 393 days passed from the foreclosure sale until defendant's motion was filed — well outside the limitations period set by RPAPL 231(6).  Likewise, the motion was time-barred under CPLR 2003 insofar as it sought to vacate the sale under RPAPL 1351(1) (see Wells Fargo Bank, N.A. v. Malik, 203 A.D.3d 1110, 1113, 166 N.Y.S.3d 38 [2d Dept. 2022]).

Were we to consider the merits of the motion, we would find that Allard failed to make a showing of substantial prejudice, as is required under RPAPL 231(6) to vacate a judicial sale on the ground of lack of notice (see CPLR 2003;  Wells Fargo Bank, N.A., 203 A.D.3d at 1113, 166 N.Y.S.3d 38).  Furthermore, Allard has not proffered any nonspeculative evidence of fraud, mistake, exploitative overreaching, or collusion sufficient to justify vacatur of the sale (U.S. Bank N.A. v. Martinez, 162 A.D.3d 528, 529, 79 N.Y.S.3d 144 [1st Dept. 2018]).  We also note that a judgment of foreclosure and sale is final and constitutes an adjudication of all relevant issues (see Sakala v. Bank of N.Y. Mellon, 172 A.D.3d 640, 101 N.Y.S.3d 322 [1st Dept. 2019];  Dulberg v. Ebenhart, 68 A.D.2d 323, 327, 417 N.Y.S.2d 71 [1st Dept. 1979]).  In any event, the property was sold in accordance with the judgment of foreclosure and sale more than three years ago, and Allard's rights in the property have therefore been foreclosed (id.)