RAMNARAIN v. Sandra Baichu, nonparty-respondent. (2006)

In an action, inter alia, for the partition of real property, the defendant Chandradat Ramnarain appeals from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated October 1, 2004, as directed the return of the plaintiff's down payment on the sale of the property.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs.

The plaintiff was the high bidder at an auction for the sale of the real property that is the subject of this action, and made a down payment to the referee.   The Supreme Court, although finding the plaintiff in default of the terms of the sale and directing that the property be re-sold, directed the return of his down payment.   This was error (see Maxton Bldrs. v. Lo Galbo, 68 N.Y.2d 373, 378, 509 N.Y.S.2d 507, 502 N.E.2d 184;  New Colony Homes v. Long Is. Prop. Group, LLC, 21 A.D.3d 1072, 803 N.Y.S.2d 615).   However, in light of our determination in a related appeal reversing the order granting the appellant's cross motion, inter alia, to hold the plaintiff in default (see Ramnarain v. Ramnarain, 30 A.D.3d 394, 816 N.Y.S.2d 188 [decided herewith] ), forfeiture of the down payment is not appropriate.   However, if the down payment has already been returned, and the re-sale of the property has not been concluded, the plaintiff must provide a new down payment of $34,000 to the referee, the same amount of the returned down payment.