Opinion
May 10, 1976
In an action to foreclose a second mortgage, defendant Darien Construction Corp. appeals from an order of the Supreme Court, Nassau County, dated August 13, 1975, which denied its motion to vacate and set aside (1) a referee's deed of sale, (2) a referee's sale and (3) the deficiency judgment entered in the action. Order reversed, on the law and in the exercise of discretion in the interest of justice, without costs or disbursements, the motion is treated as one to vacate and set aside the foreclosure sale, and for a resale upon terms, and, as such, is granted on condition that defendant furnish a bond with corporate surety, in the amount of $900, as security for the costs of the resale; otherwise, order affirmed, with $50 costs and disbursements. The said bond shall be furnished within 30 days of the order to be entered hereon. In the light of the irregularities affecting the foreclosure sale, and the apparent misunderstanding of opposing counsel as regards its postponement, the interests of justice militate in favor of a resale upon the conditions herein provided (cf. Fisher v Hersey, 78 N.Y. 387; Wright v Caprarella, 205 App. Div. 559; Collins v Dunston, 59 App. Div. 626, revg Collins v McArthur, 32 Misc. 538; Dickey v Goertner, 146 N.Y.S 264). Hopkins, Acting P.J., Martuscello, Latham, Shapiro and Hawkins, JJ., concur.