WILMINGTON SAVINGS FUND SOCIETY FSB v. OPPITZ (2023)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Robert J. Muller, J.), entered April 14, 2022 in Warren County, which denied defendant Randall Mack Oppitz's motion to set aside a foreclosure sale.

The facts are set forth in a prior appeal (198 A.D.3d 1198, 155 N.Y.S.3d 640 [3d Dept. 2021]).  Briefly, defendant Randall Mack Oppitz (hereinafter defendant) executed a note secured by a mortgage on real property located in Warren County.  During the foreclosure proceedings, the note and mortgage were assigned to plaintiff and a judgment of foreclosure and sale was eventually entered.  A sale was held in 2019, and the property was sold to plaintiff, as the sole bidder, for $100.  Defendant moved to vacate the 2019 foreclosure sale on the basis that the sale price shocked the conscience.  Supreme Court denied the motion.  Defendant appeals.

“[M]ere inadequacy of price does not establish sufficient grounds to vacate a sale” (Trustco Bank N.Y. v. Collins, 213 A.D.2d 819, 819, 623 N.Y.S.2d 642 [3d Dept. 1995];  see Mauer v. Butler, 55 A.D.2d 784, 784, 389 N.Y.S.2d 483 [3d Dept. 1976]).  Indeed, “[i]n the absence of fraud, collusion or other irregularity, the foreclosure sale will not be set aside unless the inadequacy of the sale price is so great that it shocks the conscience of the court” (Trustco Bank N.Y. v. Collins, 213 A.D.2d at 819, 623 N.Y.S.2d 642;  see Guardian Loan Co. v. Early, 47 N.Y.2d 515, 521, 419 N.Y.S.2d 56, 392 N.E.2d 1240 [1979]).  That said, defendant does not allege any fraud, collusion or other irregularity and instead attacks the adequacy of the sale price.

At first blush, it would seem that the $100 sale price was grossly inadequate (see Pisano v. Tupper, 188 A.D.2d 991, 992–993, 591 N.Y.S.2d 888 [3d Dept. 1992]).  However, “where the successful bid for a sum less than the amount due is made by a mortgagee who seeks no deficiency judgment, the law deems the bid to be the equivalent of the mortgage balance plus the sale expenses” (Polish Natl. Alliance of Brooklyn v. White Eagle Hall Co., 98 A.D.2d 400, 407, 470 N.Y.S.2d 642 [2d Dept. 1983]).  The record reflects that plaintiff was owed over $300,000 based upon the outstanding mortgage balance, interest and various fees and costs.  In view of this, and taking into account that plaintiff has not sought a deficiency judgment, Supreme Court correctly denied defendant's motion (see Emigrant Bank v. Nicolaou, 198 A.D.3d 725, 725–276, 155 N.Y.S.3d 426 [2d Dept. 2021];  NYCTL 1998–2 Trust v. McGill, 138 A.D.3d 1077, 1078, 30 N.Y.S.3d 308 [2d Dept. 2016];  Brown Bark I, L.P. v. Grant, 71 A.D.3d 1403, 1404, 897 N.Y.S.2d 815 [4th Dept. 2010];  Polish Natl. Alliance of Brooklyn v. White Eagle Hall Co., 98 A.D.2d at 410, 470 N.Y.S.2d 642).  Defendant's remaining contention was improperly raised for the first time in reply to plaintiff's opposition (see State of New York v. Konikov, 182 A.D.3d 750, 752, 122 N.Y.S.3d 719 [3d Dept. 2020], lv denied 36 N.Y.3d 906, 2021 WL 505606 [2021]).

ORDERED that the order is affirmed, with costs.

Aarons, J.

Garry, P.J., Clark and Ceresia, JJ., concur.