Summary
In Amsterdam Savings Bank the Court of Appeals held that the combination of inexcusable delay of three months in bringing a motion to vacate a foreclosure sale and detriment to the other party by a substantial change in the bank's position, who had contracted to sell the property to third parties, required the application of the doctrine of laches (Amsterdam Savings Bank at 856-57).
Summary of this case from Chase Manhattan Mtge. Corp. v. JulianOpinion
Argued September 13, 1978
Decided October 19, 1978
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, OLIVER C. SUTTON, J.
Jerome D. Brownstein for intervenor-appellant.
Joel B. Hersch and Louis A. Brevetti for respondents.
MEMORANDUM.
Order of the Appellate Division affirmed, without costs. Submission by respondents of material outside the record and discussion in respondents' brief of such material have been disregarded. Because of the inclusion of the offending material costs are not awarded.
Intervenor-appellant was not, as respondent banks argue, just any member of the public, but a serious bidder who had made various commitments to effectuate its bid. In addition, as an alleged assignee it had an equitable ownership interest in the property resulting from a contract of sale made with mortgagor, defendant in this foreclosure proceeding (cf. Flickinger v Glass, 222 N.Y. 404, 409-410). Nevertheless, it is unnecessary to consider whether intervenor has standing to attack the foreclosure sale, because on any view its contentions must fail because of laches. The three-month delay in taking action after having learned within minutes of the irregularity in the foreclosure proceeding was inexcusable, and caused a substantial change in position by respondents, who had contracted to resell the property to third parties. This combination of inexcusable delay and detriment to other parties requires application of the doctrine of laches (see, e.g., Black v Black, 22 A.D.2d 673). While this is a matter generally left to the discretion of the courts below, which did not expressly pass on the laches question, in this case the record requires application of the laches doctrine as a matter of law.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed.