CORPUEL v. Nancy Galasso, Nonparty Appellant. (1999)

In an action to recover the proceeds of a promissory note, the defendant Peter Galasso and nonparty Nancy Galasso appeal from an order of the Supreme Court, Westchester County (Coppola, J.) entered February 19, 1998, which denied their motion to, in effect, set aside a judicial sale.

ORDERED that the order is affirmed, with costs.

 Relief pursuant to CPLR 5240 is unavailable once an execution sale has been held and the deed has been delivered to the purchaser (see, Guardian Loan Co. v. Early, 47 N.Y.2d 515, 419 N.Y.S.2d 56, 392 N.E.2d 1240;  Roosevelt Hardware v. Green, 72 A.D.2d 261, 424 N.Y.S.2d 276;  Levine v. Berlin, 46 A.D.2d 902, 362 N.Y.S.2d 186;  54 N.Y. Jur 2d Enforcement and Execution of Judgments, § 425).   While the court retains the inherent power to set aside a sale, such relief is not warranted based only on proof that the price obtained at the judicial sale might have been less than the fair market value of the property in question (see, Guardian Loan Co. v. Early, supra;  Chemical Bank v. Kupperstock, 248 A.D.2d 145, 670 N.Y.S.2d 66;  Provident Sav. Bank v. Bordes, 244 A.D.2d 470, 664 N.Y.S.2d 103;   Mauer v. Butler, 55 A.D.2d 784, 389 N.Y.S.2d 483;  Annotation, Inadequacy of Price as Basis for Setting Aside Execution or Sheriff's Sale-Modern Cases, 5 A.L.R.4th 798;  54 N.Y. Jur 2d Enforcement and Execution of Judgments, § 229).   In this case, Peter Galasso and Nancy Galasso failed even to show that the price obtained at the auction was inadequate.   The interest sold was Peter Galasso's one-half interest in the property, and none of the appraisals relied upon by the Galassos included proof, in evidentiary form, of the value of that interest as of the date of the sale.   We also note that, however the Galassos may choose to describe the nature of their application, it was, in effect, one to set aside, in whole or in part, the judicial sale under review.

The Galassos' remaining contention is without merit.

MEMORANDUM BY THE COURT.