O'Brien v Chase Home Fin., LLC

O'Brien v Chase Home Fin., LLC 2007 NY Slip Op 06066 [42 AD3d 344] July 12, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 12, 2007

Declan O'Brien, Appellant,
v
Chase Home Finance, LLC, et al., Respondents.

—[*1] Robert P. Johnson, Great Neck, for appellant.

Pittoni, Bonchonsky & Zaino, LLP, Garden City (Stephen E. Zaino of counsel), for Chase Home Finance, LLC, respondent.

Alexander T. Singer, Brooklyn, for Adam Plotch, respondent.

Order, Supreme Court, New York County (Faviola A. Soto, J.), entered March 28, 2006, which denied plaintiff's motion to vacate and annul a nonjudicial sale of his cooperative apartment and to enjoin and restrain defendants from closing on the sale and from effectuating any transfer of the stock and proprietary lease during the pendency of this action and sua sponte dismissed the complaint, unanimously reversed, on the law, with costs, and the matter remanded for further proceedings.

The motion court erred in dismissing the complaint in the absence of any request for such relief (see Taskiran v Murphy, 8 AD3d 360, 361 [2004]). Moreover, in this action to annul the nonjudicial sale of plaintiff's cooperative apartment, the record establishes that there are issues of fact as to whether the sale was conducted in a commercially reasonable manner pursuant to UCC 9-610 (a), whether there was collusion between the mortgagee Chase and the buyer, whether the purchase price was so inadequate as to shock the conscience, and whether Chase's rejection of plaintiff's tender of the funds that he had been advised would cure his default provides him with an equitable defense to such default. Concur—Andrias, J.P., Saxe, Marlow and Williams, JJ.