Daffodil Purchasing Corp., Plaintiff-Intervenor-Respondent, v. SMZH

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Supreme Court, Appellate Division, First Department, New York.

AUBREY EQUITIES, INC., Plaintiff, Daffodil Purchasing Corp., Plaintiff-Intervenor-Respondent, v. Burton G. GOLDBERG, et al., Defendants-Appellants, SMZH 73rd Associates, et al., Defendants.

Decided: February 10, 1998

Before SULLIVAN, J.P., and MILONAS, MAZZARELLI and ANDRIAS, JJ. Jerome M. Lasky, for Plaintiff-Intervenor-Respondent. Lawrence G. Soicher, for Defendants-Appellants.

Order, Supreme Court, New York County (Walter Tolub, J.), entered December 20, 1996, which, inter alia, granted plaintiff-intervenor's motion to reargue and renew a prior order of the same court and Justice entered May 10, 1996, and upon such reargument and renewal, vacated, cancelled and set aside said order, and restored title to the premises to plaintiff-intervenor, unanimously affirmed, with costs.

 In this foreclosure action, the IAS court properly found that intervenor, as a good faith purchaser for value, is entitled to retain title to the premises purchased from the Referee prior to this Court's reversal of the judgment of foreclosure (212 A.D.2d 397, 622 N.Y.S.2d 276), and that appellants, notwithstanding intervenor's knowledge at the foreclosure sale that an appeal was pending, are relegated to an action for money damages on their underlying debt as they failed to seek a stay of enforcement of the foreclosure sale (CPLR 5523;  see, Da Silva v. Musso, 76 N.Y.2d 436, 560 N.Y.S.2d 109, 559 N.E.2d 1268;  see also, 13 Weinstein-Korn-Miller, N.Y. Civ. Prac., ¶ 6501.12).   We have considered appellants' remaining arguments and find them to be without merit.


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