Vanderbilt Realty Corp. v. Gordon

134 A.D.2d 586, 521 N.Y.S.2d 489, 1987 N.Y. App. Div. LEXIS 50794

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1987
• Status: Published

Opinion

In a foreclosure action, the defendant Gordon appeals from an order of the Supreme Court, Kings County (I. Aronin, J.), entered September 15, 1986, which denied his application to vacate the foreclosure sale.

Ordered that the order is affirmed, with costs.

The Supreme Court, Kings County, properly rejected the claim of the defendant Gordon that the foreclosure sale was invalid on the ground that Gordon filed a bankruptcy petition at approximately the same time that the sale commenced. The closing on the property was delayed until after the Bankruptcy Court dismissed the petition, with prejudice. Moreover, when Gordon failed to abide by the court-ordered payment schedule, the Bankruptcy Court specifically approved the transfer of title to the purchaser. Gordon had and declined an opportunity to appeal the Bankruptcy Court’s orders in a proper forum, and he may not do so here. Furthermore, because Gordon had a full and fair opportunity to litigate the same issue in the Bankruptcy Court, the application is precluded by the doctrine of collateral estoppel (see, Matter of Van Wormer v Leversee, 87 AD2d 942, 943).

Moreover, the purchaser at the foreclosure sale was an indispensable party to the application and was not named or served (see, CPLR 1001 [a]). Thus, denial of the application on this additional ground was appropriate.

We have considered Gordon’s remaining claims and find them to be without merit. Brown, J. P., Eiber, Kunzeman and Spatt, JJ., concur.