405 44th Street Realty Co. v. 168 Fortune Realty, Inc.

Jan 10, 2005
Versions:14 A.D.3d 481
788 N.Y.S.2d 404
2005 N.Y. App. Div. LEXIS 164

In an action to foreclose a mortgage, nonparty Naftoli Weber, an unsuccessful bidder at a foreclosure sale, appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated April 1, 2003, which denied his motion, inter alia, to vacate an order of the same court dated August 1, 2002, directing that the foreclosure sale be conducted pursuant to certain terms of sale, and to set aside the foreclosure sale, and granted the plaintiff‘s cross motion to confirm the referee‘s report of sale. Motion by the intervenor Sunset Gardens Housing Corporation, inter alia, to dismiss the appeal as academic. By decision and order on motion of this Court dated September 9, 2004, that branch of the motion which was to dismiss the appeal as academic was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is,

Ordered that the motion is granted; and it is further,

Ordered that the appeal is dismissed as academic, without costs or disbursements.

The subject property was sold to the intervenor, a good-faith purchaser for value, during the pendency of the appeal. Since any determination by this Court will not affect the rights of the parties and the matter does not otherwise warrant invoking an exception to the mootness doctrine, the appeal is academic (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; NYCTL 1998-2 Trust v Equitable Funding Corp., 301 AD2d 506 [2003]). Florio, J.P., Adams, Cozier and Mastro, JJ., concur.