82 Misc. 2d 107 | N.Y. Sup. Ct. | 1975
The within motion to vacate the stay heretofore granted herein is disposed of as follows.
Heretofore and by order dated September 17, 1974, this court stayed Grid Realty Corp., the successful bidder at a Sheriff’s sale, from transferring or encumbering the premises so conveyed to it and further enjoined the attorney for the judgment creditor from disposing of the net proceeds realized therefrom. On consent, the restrictive terms of that order were continued by the judgment entered declaring Frederick Bachner to be a conservatee. Prior to the Sheriff’s sale title to the realty in issue was vested in Frederick Bachner. The purpose of the stay was to afford his conservator time to inquire into the circumstances surrounding the sale and if appropriate to institute such proceedings as might be necessary to preserve the rights and interests of his ward. No such proceeding has been brought although the conservator, by opposing affidavit, seeks affirmative relief. Historically, it appears that Gertrude Bachner obtained a judgment against
It has recently been held that relief from a sheriffs deed upon the authority of CPLR 5240 is properly the subject of a motion within the action wherein judgment was rendered (Levine v Berlin, 46 AD2d 902). As hereinbefore noted, a motion to vacate that judgment was brought on and denied. Further, the regularity of all prior proceedings remains undisputed. Factually, what then remains is a sale carried out according to law which unfortunately failed to realize the judgment debtor’s full equity. The claim that a valid judgment sale resulted in the payment of less than fair market value does not provide legal cause to invalidate the proceedings. (Levine v Berlin, supra; see, also, Concord Landscapers v Pincus, 41 AD2d 759.) The authority relied upon by the conservator (Wandschneider v Bekeny, 75 Misc 2d 32) is not to the contrary. There, the court exercised its equitable jurisdiction where the purchaser at the sheriffs sale was the holder of the judgment, a circumstance where a judgment debtor may be "entitled to a credit against the judgment for the
The further motion by Grid Realty Corp. to remove the conservatee from possession is denied upon it appearing that the conservatee is no longer in possession thereof.