Majority
p. 1055Anton Notey, Appellant, v Darien Construction Corp., Respondent, et al., Defendants. Submitted March 29, 1977; decided May 3, 1977
Alan Manning Miller for appellant.
Arnold J. Hauptman for respondent.
Memorandum. Order affirmed, with costs. An action to foreclose a mortgage is, of course, in equity (Jamaica Sav. Bank v M. S. Investing Co., 274 NY 215 , 219). A court of equity has broad power to control the execution of its own
p. 1056
judgments, and, at least when only the rights of the parties to the action are involved, an order granting a resale rests within the discretion of the courts below, especially when a number of conceded irregularities occurred (Fisher v Hersey, 78 NY 387 , 388-389; see Emigrant Ind. Sav. Bank v Van Bokkelen, 269 NY 110 , 115). Moreover, subdivision 6 of section 231 of Real Property Actions and Proceedings Law now explicitly recognizes discretionary power of a court to set aside a foreclosure sale whenever there has been a failure to comply with the statutory notice provisions, and a substantial right of a party has been prejudiced. Since it is concluded that there was no abuse of discretion as a matter of law, the order is not subject to this court’s review, and must be affirmed.
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.
Order affirmed.
Cases cited
- Jamaica Savings Bank v. M. S. Investing Co. 274 NY 215 at 219 p. 1055
- Fisher v. Hersey 78 NY 387 at 388-389 p. 1056
- Emigrant Industrial Savings Bank v. Van Bokkelen 269 NY 110 at 115 p. 1056