CITIBANK v. Samuel Stern, intervenor-respondent. (2005)

In an action to foreclose a mortgage, the defendant appeals from an order of the Supreme Court, Kings County (Barros, J.), dated September 8, 2004, which, after a hearing, denied his motion, inter alia, to vacate the foreclosure sale.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant failed to adduce any proof that at the time this foreclosure action was commenced, or when the property was ultimately sold in 2002 pursuant to a judgment of foreclosure, he was known, or should have been known, to be an incompetent incapable of protecting his own interests.   Moreover, it is undisputed that the purchaser at the foreclosure sale, the intervenor-respondent, Samuel Stern, was a bona fide purchaser for a fair and valid consideration.   Finally, contrary to his contention, the defendant failed to show that the equities indisputably favor him.   Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's motion to vacate the foreclosure sale (see Guardian Loan Co. v. Early, 47 N.Y.2d 515, 521-522, 419 N.Y.S.2d 56, 392 N.E.2d 1240;  Mutual Life Ins. Co. of N.Y. v. Hunt, 79 N.Y. 541, 545-546;  Hut v. Fraser, 12 A.D.2d 641, 210 N.Y.S.2d 775, 776;  see also Bank of N.Y. v. Sheik, 279 A.D.2d 440, 719 N.Y.S.2d 259;  cf. Covey v. Town of Somers, 351 U.S. 141, 145-147, 76 S.Ct. 724, 100 L.Ed. 1021;  Blum v. Stone, 127 A.D.2d 549, 551-553, 511 N.Y.S.2d 638;  Barone v. Cox, 51 A.D.2d 115, 117-118, 379 N.Y.S.2d 881).

In light of this determination, we need not reach the parties' remaining contentions.