Olsen v. Robaey
| Decision Date | 19 January 1965 |
| Citation | 45 Misc.2d 33,256 N.Y.S.2d 103 |
| Parties | Charles OLSEN, Plaintiff, v. Frances C. ROBAEY and Charles E. Robaey, Defendants. |
| Court | New York Supreme Court |
Benjamin S. Blair, Massapequa Park, for plaintiff.
Bernard H. Sachar, Hauppauge, for defendants.
A sale of the defendants' real property upon an execution, was noticed by the sheriff to be held on January 11, 1965. A stay of that sale was contained in the order to show cause on this motion to extend the date of the sale to enable the judgment debtors to complete a mortgage transaction by which they expect to raise sufficient money to satisfy the judgment and thus save their home.
The judgment creditor agreed to a postponement of the sale to February 11, 1965 but communicated the request therefor to the sheriff too late for the service, posting and advertising of the notice of postponement as required by CPLR 5236. The order to show cause containing the stay was then procured and it was served upon the sheriff. As a result the sale was not held on the appointed day.
Both parties argue that the posture of the case is the same as if a timely postponement of the sale was being effected; that the court may fix a new sale date and direct a single republication of the notice in addition to the service and positing required by CPLR 5236. The sheriff, however, takes the position that the sale, not properly postponed, has been cancelled and that a notice of a new sale date must be served, posted and published as fully as if no prior notice of sale had been advertised.
The debtors' attorney suggests that if there is any question as to the extent of publication of the re-notice, the court, under the broad powers granted to it by CPLR 5240, might fix a new sale date and direct the manner and extent of the notice thereof. This seems to accord with the legislative purpose in the enactment of CPLR 5236(a) which provides that the sale shall take place between the fifty-sixth and the sixty-third day after the first publication of the notice of sale 'unless the time is extended by order'. (Italics supplied.) At page 304 of the Third Preliminary Report of Advisory Comm. on Practice and Procedure, N.Y. Legislative Document No. 17 (1959), the Advisory Committee, in discussing the substitution of the eight week delay of sale for the former redemption provisions, said ...
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Guardian Loan Co., Inc. v. Early
...of the sale have been varied from those set forth in CPLR 5236 to safeguard the judgment debtor's interest (see, e. g., Olsen v. Robaey, 45 Misc.2d 33, 256 N.Y.S.2d 103). But while CPLR 5240 grants the courts broad discretionary power to alter the use of the procedures set forth in article ......
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