U.S. Bank National Association v. Hickey

• Decision Date: 08 July 2008
• Docket Number: No. 2008-01128,No. 2008-01016.,2008-01016.,2008-01128
• Citation: 2008 NY Slip Op 6204,862 N.Y.S.2d 87,53 A.D.3d 544
• Parties: U.S. BANK NATIONAL ASSOCIATION, Plaintiff, v. EUGENE HICKEY et al., Respondents, et al., Defendants. 165 S. 15TH STREET CORP., Nonparty Appellant.
• Court: New York Supreme Court — Appellate Division

53 A.D.3d 544

862 N.Y.S.2d 87

2008 NY Slip Op 6204

U.S. BANK NATIONAL ASSOCIATION, Plaintiff, v. EUGENE HICKEY et al., Respondents, et al., Defendants 165 S. 15TH STREET CORP., Nonparty Appellant.

No. 2008-01016.

No. 2008-01128

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided July 8, 2008.

In an action to foreclose a mortgage, nonparty 165 S. 15th Street Corp., the purchaser of the subject premises after a foreclosure sale, appeals from (1) an order of the Supreme Court, Suffolk County (Baisley, J.), dated December 19, 2007, which granted the motion of the defendants Eugene Hickey and Ellen Hickey to vacate the foreclosure sale of the subject premises, and for a preliminary injunction enjoining and restraining it, its assignees and agents from commencing any proceedings to remove them from the subject premises pending further order of the court, and (2) an order of the same court dated January 30, 2008, which granted the ex parte motion of the defendants Eugene Hickey and Ellen Hickey, inter alia, to deem null and void a referee's deed dated May 21, 2007.

Ordered that the appeal from the order dated January 30, 2008 is dismissed, as no appeal lies from an order issued ex parte (see CPLR 5701 [a] [2]; Household Fin. Realty Corp. of N.Y. v Winn, 19 AD3d 545 [2005]); and it is further,

Ordered that the order dated December 19, 2007 is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondents.

The posting, publication, and purported prior service by the plaintiff mortgagee of notice of an adjourned foreclosure sale date violated the temporary restraining order contained in a show cause order dated October 24, 2006, which enjoined the plaintiff from "taking any ... action or proceeding to enforce the Judgment of Foreclosure and Sale against the Defendants" (Matter of Scarab Equities Corp. [684 Owners Corp.], 170 AD2d 409 [1991]). Given the apparent ability of the respondents to refinance the property and to pay off the plaintiff's mortgage in full, the evidence establishes that the respondents were prejudiced by the lack of proper notice of the sale (see RPAPL 231 [6]; Lajos v Erps, 176 AD2d 703, 704 [1991]).

We agree with the Supreme Court that the foreclosure sale price was unconscionably low (see Pisano v Tupper, 188 AD2d 991 [1992]; cf. Polish Natl. Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d 400, 407 [1983]).

Contrary to the contention of the nonparty appe...