| JP Morgan Chase, N.A. v Rajendran |
| 2016 NY Slip Op 05555 |
| Decided on July 20, 2016 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on July 20, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
SHERI S. ROMAN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.
2015-12586
(Index No. 30576/10)
v
Michael S. Rajendran, respondent, et al., defendants; Louis Zazzarino, nonparty- appellant.
Marco E. Fava, Scarsdale, NY, for nonparty-appellant.
Clair & Gjertsen, White Plains, NY (Ira S. Clair of counsel), for respondent.
DECISION & ORDER
In an action to foreclose a mortgage, nonparty Louis Zazzarino appeals from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), entered November 20, 2015, as, upon reargument, adhered to a prior determination made in an order of the same court entered March 31, 2015, granting the motion of the defendant Michael S. Rajendran to set aside a foreclosure sale dated October 24, 2015, and directed a new auction.
ORDERED that the order entered November 20, 2015, is affirmed insofar as appealed from, with costs.
"In the exercise of its equitable powers, a court has the discretion to set aside a foreclosure sale where there is evidence of fraud, collusion, mistake, or misconduct" (Astoria Fed. Sav. & Loan Assoc. v Hartridge 58 AD3d 584, 585; see Guardian Loan Co. v Early, 47 NY2d 515, 521; Chiao v Poon, 128 AD3d 879, 880). In addition, a court always retains "the inherent equitable power to ensure that a sale conducted pursuant to a judgment of foreclosure is not made the instrument of injustice'" (Alkaifi v Celestial Church of Christ Calvary Parish, 24 AD3d 476, 477, quoting Guardian Loan Co. v Early, 47 NY2d at 520).
Here, in support of his motion, the defendant-mortgagor, Michael S. Rajendran, demonstrated that the Referee committed a mistake at the foreclosure sale by re-opening the bidding and selling the property to the appellant after having accepted a prior bid from another bidder and executing sale documents with that prior bidder. Under such circumstances, the Supreme Court properly adhered to its prior determination granting Rajendran's motion to set aside the foreclosure sale dated October 24, 2015, and directed a new auction (see Guardian Loan Co. v Early, 47 NY2d 515; Greenwood Packing Profit Sharing Plan Trust v Fournier, 181 AD2d 861; see also United States Trust Co. v Simon, 228 AD2d 580; Dime Sav. Bank of N.Y. v Palazini, 198 AD2d 746, 747; cf. Manufacturers & Traders Trust Co. v Foy, 79 AD3d 825; Crossland Mtge. Corp. v Frankel, 192 AD2d 571).
LEVENTHAL, J.P., ROMAN, SGROI and LASALLE, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court