Guardian Federal Savings & Loan Ass'n v. Horse-Hawk Holding Corp.

Nov 5, 1979
Versions:72 A.D.2d 737
421 N.Y.S.2d 244
1979 N.Y. App. Div. LEXIS 13948

In an action to foreclose a mortgage on certain real property, defendant Horse-Hawk Holding Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County, dated May 7, 1979, as, upon deeming its motion to be in the nature of оne for leave to reargue a prior motion to set aside the foreclosure sаle and granting reargument thereof, adhered to its original determination denying appellant’s motion to set aside the sale. Order affirmed insofar as appealed from, with $50 costs and disbursements. Appellant raises two points on this appeal. First, the claim is made that notices of the dates of sale and adjourned sale were improperly published, in that the newspaper they were published in did not have a large enough circulation (apprоximately 4,000 issues) and in that notice of the adjourned sale was only published one time. Section 231 (subd 2, par [a]) of ‍​​​‌‌​​​​‌​‌​‌‌​​​​​‌​‌​​‌​‌​‌‌‌​‌​‌​​​​​​​​​​‌​‍the Real Property Actions and Proceedings Law only requires that noticе of the time and place of sale be published "in a newspaper published in the county in which the property is located”. No requirement as to size or circulation of the nеwspaper is stated, and therefore we hold that publication in this case was sufficient sinсe the newspaper was in fact published in the county where the property is located. As to the requirement providing for the number of times a notice of adjourned sale must be published, we note that subdivision 3 of section 231 pertains to the situation where the officer appointed to make the sale does not appear at the time and place of sale. This subdivision states that in such case, and where the adjournment does not exceed four weeks, the publication of only one notice of adjourned sale will suffice. Apрellant urges the court to rule in accord with the decision in Salvo Realty Corp. v Rosenkrantz (34 AD2d 1021), where the sale was adjourned for reasons other than the referee’s failure to appear and where the аdjournment was for a period of nine weeks. The court there held ‍​​​‌‌​​​​‌​‌​‌‌​​​​​‌​‌​​‌​‌​‌‌‌​‌​‌​​​​​​​​​​‌​‍that the case did not fall under the subdivision exception, and that four successive publications would be required. The case at bar is distinguishable from Salvo, since in the instant case we are dealing with an adjournment ‍​​​‌‌​​​​‌​‌​‌‌​​​​​‌​‌​​‌​‌​‌‌‌​‌​‌​​​​​​​​​​‌​‍of lеss than four weeks. Subsequent to the Salvo decision, it was held that in any case where an adjourned sale is set to occur within four weeks of the original date of sale, one ‍​​​‌‌​​​​‌​‌​‌‌​​​​​‌​‌​​‌​‌​‌‌‌​‌​‌​​​​​​​​​​‌​‍publication оf notice according to the provisions of section 231 of the Real Property Actions and Proceedings Law will suffice (Southold Sav. Bank v Gilligan, 76 Mise 2d 30). We so hold today, recogniz*738ing that "further classification of required advertising predicatеd on ‍​​​‌‌​​​​‌​‌​‌‌​​​​​‌​‌​​‌​‌​‌‌‌​‌​‌​​​​​​​​​​‌​‍the causes of short adjournments can find no justification” (see Southold Sav. Bank v Gilligan, supra, p 33). Thus the single publicatiоn of the postponed date in this case was sufficient. We note that the appellаnt caused the adjournment of the original date of sale by obtaining a temporary court stay, subsequently vacated. Appellant’s second point is based on the alleged insufficiеncy of the purchase price paid by the respondent at the foreclosure sale. The property in this case apparently was worth approximately $600,-000 (as estаblished by a subsequent sale by the respondent to third parties). Respondent bid and paid only $1,000 to acquire the property. At first blush, such a price might well shock the conscience of the court and require that the sale be set aside. However, it is appropriate to take into account the extent of indebtedness due the respondent by appellant at the time of sale. In this case that indebtedness was approximately $585,000. When viewed in this light, it is clear that the true difference, if any, in purchase price was only $14,000—certainly not sufficient to require a setting aside of the sale. Moreover, it must be recognized that at this time the rights of third parties —the purchasers from the respondent—are involved, and it is well settled that those rights must not be dealt with lightly. As the Court of Appeals recently stated: "To permit these sales to be set aside merely because a beneficial price has not been obtained * * * would discourage participation by third parties at judicial sales, for the title acquired at the salе would never be free from the spectre of judicial invalidation.” (Guardian Loan Co. v Early, 47 NY2d 515, 520.) Accordingly, we affirm the denial by Special Term of appellant’s motion to set aside the sale. Mollen, P. J., Hopkins, O’Connor and Margétt, JJ., concur.