Notey v. Darien Construction Corp.

Appellate Division of the Supreme Court of New York

Notey v. Darien Construction Corp.

52 A.D.2d 873, 383 N.Y.S.2d 50, 1976 N.Y. App. Div. LEXIS 12703

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 10, 1976

StatusPublished

This text of 52 A.D.2d 873 (Notey v. Darien Construction Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Notey v. Darien Construction Corp., 52 A.D.2d 873, 383 N.Y.S.2d 50, 1976 N.Y. App. Div. LEXIS 12703 (N.Y. Ct. App. 1976).

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Opinion

In an action to foreclose a second mortgage, defendant Darien Construction Corp. appeals from an order of the Supreme Court, Nassau County, dated August 13, 1975, which denied its motion to vacate and set aside (1) a referee’s deed of sale, (2) a referee’s sale and (3) the deficiency judgment entered in the action. Order reversed, on the law and in the exercise of discretion in the interest of justice, without costs or [874]*874disbursements, the motion is treated as one to vacate and set aside the foreclosure sale, and for a resale upon terms, and, as such, is granted on condition that defendant furnish a bond with corporate surety, in the amount of $900, as security for the costs of the resale; otherwise, order affirmed, with $50 costs and disbursements. The said bond shall be furnished within 30 days of the order to be entered hereon. In the light of the irregularities affecting the foreclosure sale, and the apparent misunderstanding of opposing counsel as regards its postponement, the interests of justice militate in favor of a resale upon the conditions herein provided (cf. Fisher v Hersey, 78 NY 387; Wright v Caprarella, 205 App Div 559; Collins v Dunston, 59 App Div 626, revg Collins v McArthur, 32 Misc 538; Dickey v Goertner, 146 NYS 264). Hopkins, Acting P. J., Martuscello, Latham, Shapiro and Hawkins, JJ., concur.

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In an action to foreclose a second mortgage, defendant Darien Construction Corp. appeals from an order of the Supreme Court, Nassau County, dated August 13, 1975, which denied its motion to vacate and set aside (1) a referee’s deed of sale, (2) a referee’s sale and (3) the deficiency judgment entered in the action. Order reversed, on the law and in the exercise of discretion in the interest of justice, without costs or [874]*874disbursements, the motion is treated as one to vacate and set aside the foreclosure sale, and for a resale upon terms, and, as such, is granted on condition that defendant furnish a bond with corporate surety, in the amount of $900, as security for the costs of the resale; otherwise, order affirmed, with $50 costs and disbursements. The said bond shall be furnished within 30 days of the order to be entered hereon. In the light of the irregularities affecting the foreclosure sale, and the apparent misunderstanding of opposing counsel as regards its postponement, the interests of justice militate in favor of a resale upon the conditions herein provided (cf. Fisher v Hersey, 78 NY 387; Wright v Caprarella, 205 App Div 559; Collins v Dunston, 59 App Div 626, revg Collins v McArthur, 32 Misc 538; Dickey v Goertner, 146 NYS 264). Hopkins, Acting P. J., Martuscello, Latham, Shapiro and Hawkins, JJ., concur.

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Bluebook (online)

52 A.D.2d 873, 383 N.Y.S.2d 50, 1976 N.Y. App. Div. LEXIS 12703, Counsel Stack Legal Research, https://law.counselstack.com/opinion/notey-v-darien-construction-corp-nyappdiv-1976.

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