(dissenting in part and concurring in part). We are unable to agree with the majority that "plaintiffs status was redefined from that of an absolute owner in possession to that of a mortgagee in possession”. Since defendants never applied for, or acquired, a stay pending appeal, our subsequent reversal did not affect the title of the purchaser (see, Livingston v Bauchhens, 254 App Div 692). Consequently, during the period in question, plaintiff was obligated to pay the real property taxes while it was owner and the inclusion of said item in the deficiency judgment was erroneous. Additionally, it should be noted that since plaintiff remained the owner, title to any third-party purchasers is not affected.
We agree with the majority that the matter should be remitted for further proceedings, but for slightly different reasons. Since under our theory, our reversal of the first sale did not affect plaintiffs title (Livingston v Bauchhens, supra), we are not technically concerned with waste between the *302period of the first and second sale. Rather, we are only concerned here with whether a market value of $650,000, found by plaintiff’s appraiser and adopted by the court after the first sale was proper.* The court therein, without conducting a hearing, accepted plaintiff’s appraisal and rejected the valuation placed on the property by defendant Kent L. Aldershof. Defendant Aldershofs affidavit, however, created questions of fact and the court should have conducted a hearing to determine the value of the property at the time of the first sale (see, Broward Natl. Bank v Starzec, 30 AD2d 603; 21 NY Jur, Evidence, §§ 453-455, at 568-572 [1961]). As there was not a valid determination of value at the time of the first sale, the matter must be remitted for a hearing to determine the market value as of the time of the first sale (RPAPL 1371; see also, Livingston v Bauchhens, supra). Indeed, a review of the record reveals that defendants’ allegations of waste actually are a dispute with the court’s 1983 acceptance of plaintiff’s appraisal, establishing the value of the property at $650,000.
Mahoney, P. J., and Levine, J., concur with Yesawich Jr., J; Kane and Weiss, JJ., dissent in part and concur in part in an opinion by Kane, J.
Order reversed, on the law, without costs, and matter remitted to Supreme Court for further proceedings not inconsistent herewith.
It should be noted that although the property diminished in value to $335,000, plaintiff again paid $650,000 at the second sale. Accordingly, the $335,000 figure is irrelevant (RPAPL 1371 [2]).