NYCTL 2016-A Trust v. Eckford-Greenpoint, LLC

212 A.D.3d 731

179 N.Y.S.3d 917 (Mem)

NYCTL 2016-A TRUST, et al., plaintiffs-respondents,

v.ECKFORD-GREENPOINT, LLC, appellant, et al., defendants;

55 Eckford 1875 DNB, LLC, et al., intervenor-respondents.

2019–10028, 2020–03309

Index No. 504384/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 3, 2022

January 18, 2023

Alice A. Nicholson (Mischel & Horn, P.C., New York, NY [Scott T. Horn ], of counsel), for appellant.

Bronster, LLP, New York, NY (Adam P. Briskin of counsel), for plaintiffs—respondents.

COLLEEN D. DUFFY, J.P., FRANCESCA E. CONNOLLY, JOSEPH A. ZAYAS, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to foreclose a tax lien, the defendant Eckford–Greenpoint, LLC, appeals from (1) an order of Supreme Court, Kings County (Noach Dear, J.), dated July 10, 2019, and (2) an order of the same court dated February 3, 2020. The order dated July 10, 2019, insofar as appealed from, denied that defendant's motion pursuant to CPLR 5015(a)(1) to vacate a judgment of foreclosure and sale of the same court dated March 20, 2018, to stay the closing of the foreclosure sale of the subject property, and for leave to file a late answer. The order dated February 3, 2020, insofar as appealed from, denied those branches of that defendant's separate motions which were to vacate the judgment of foreclosure and sale and to set aside the foreclosure sale of the subject property.

ORDERED that the orders dated July 10, 2019, and February 3, 2020, are affirmed insofar as appealed from, with one bill of costs.

The plaintiffs commenced this action to foreclose a tax lien encumbering a parcel of real property located in Brooklyn. The defendant Eckford–Greenpoint, LLC (hereinafter the defendant), did not appear in the action, and the plaintiffs moved for a judgment of foreclosure and sale. The Supreme Court granted the plaintiffs’ motion and, upon the defendant's default, issued a judgment of foreclosure and sale dated March 20, 2018.

The defendant then moved pursuant to CPLR 5015(a)(1) to vacate the judgment of foreclosure and sale, to stay the closing of the foreclosure sale of the subject property, and for leave to file a late answer, on the ground of excusable default. In an order dated July 10, 2019, the Supreme Court, inter alia, denied the defendant's motion.

Thereafter, the defendant moved to set aside the foreclosure sale of the subject property, and to vacate the judgment of foreclosure and sale on the ground that the judgment of foreclosure and sale was jurisdictionally defective, or, in the alternative, in the interest of justice. In a separate motion, the defendant moved, inter alia, for the same relief. In an order dated February 3, 2020, the Supreme Court, among other things, denied those branches of the defendant's separate motions. The defendant appeals from the orders dated July 10, 2019, and February 3, 2020.

The defendant's contention that the judgment of foreclosure and sale is jurisdictionally defective because it directed the notice of the foreclosure sale to be published in a weekly newspaper and not a daily newspaper, as required by RPAPL 231, is without merit. "The failure to give proper notice of a sale, as required by RPAPL 231, is a mere irregularity and not a jurisdictional defect" ( Key Corporate Capital , Inc . v. Lindo, 304 A.D.2d 620, 620, 757 N.Y.S.2d 476 ; see Mortgage Elec. Registration Sys., Inc. v. Schotter, 50 A.D.3d 983, 984, 857 N.Y.S.2d 592 ; Amresco New England II v. Denino, 283 A.D.2d 599, 600, 725 N.Y.S.2d 78 ; Marine Midland Bank v. Landsdowne Mgt. Assoc., Inc. , 193 A.D.2d 1091, 598 N.Y.S.2d 630 ). Consequently, "[a]bsent a showing that a substantial right of a party was prejudiced, the failure to give proper notice will not require that a sale be vacated" ( Amresco New England II v. Denino, 283 A.D.2d at 599, 725 N.Y.S.2d 78 ; see RPAPL 231[6] ; NYCTL 1999–1 Trust v. N.Y. Pride Holdings, Inc., 34 A.D.3d 774, 825 N.Y.S.2d 521 ; NYCTL 1998–2 Trust v. Avila, 29 A.D.3d 965, 966, 815 N.Y.S.2d 725 ). Here, the defendant failed to establish that it was prejudiced by the alleged defect in the notice of the foreclosure sale (see Wells Fargo Bank, N.A. v. Ramphal, 172 A.D.3d 1280, 1282, 98 N.Y.S.3d 850 ; Chase Manhattan Bank v. Nath, 162 A.D.3d 978, 980, 80 N.Y.S.3d 377 ).

Moreover, those branches of the defendant's motions which were to set aside the foreclosure sale of the subject property based on the defect in the notice of the sale were untimely. Pursuant to RPAPL 231(6), a motion to set aside a sale for failure to comply with the notice provisions of this statute must occur within one year of the sale. Here, the sale occurred on May 31, 2018, and the defendant did not move to set aside the foreclosure sale on this ground until August 20, 2019, and August 23, 2019. Accordingly, the Supreme Court properly denied those branches of the defendant's motions which were to vacate the judgment of foreclosure and sale and to set aside the foreclosure sale of the subject property on this ground.

Contrary to the defendant's contention, the Supreme Court...