PII Sam, LLC v Koutsagelos

PII Sam, LLC v Koutsagelos 2014 NY Slip Op 05416 Decided on July 23, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 23, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
LEONARD B. AUSTIN
SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY, JJ.
2012-09903
(Index No. 4713/08)

[*1]PII Sam, LLC, respondent,

v

Mary Koutsagelos, appellant, et al., defendants.

Shaw & Binder, P.C., New York, N.Y. (Stuart F. Shaw and Daniel S. LoPresti of counsel), for appellant.

Deutsch & Schneider, LLP, Glendale, N.Y. (William J. Fielding of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Mary Koutsagelos appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), entered August 10, 2012, which denied her motion to set aside the foreclosure sale of the subject property.

ORDERED that the order is affirmed, with costs.

A court may exercise its inherent equitable power to ensure that a foreclosure sale conducted pursuant to a judgment of foreclosure "is not made the instrument of injustice" (Guardian Loan Co. v Early, 47 NY2d 515, 520; see Golden Age Mtge. Corp. v Argonne Enters., LLC, 68 AD3d 925, 926; Alkaifi v Celestial Church of Christ Calvary Parish, 24 AD3d 476, 477) and, therefore, may set aside a foreclosure sale " where fraud, collusion, mistake, or misconduct casts suspicion on the fairness of the sale'" (Alkaifi v Celestial Church of Christ Calvary Parish, 24 AD3d at 477, quoting Fleet Fin. v Gillerson, 277 AD2d 279, 280). Here, the appellant's submissions, including her unsworn statement submitted in reply to the plaintiff's opposition to her motion to set aside the foreclosure sale, failed to cast suspicion on the fairness of the sale. Accordingly, the Supreme Court correctly denied the appellant's motion to set aside the foreclosure sale.

CHAMBERS, J.P., AUSTIN, HINDS-RADIX and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court