CPLR 2003

Mooring Capital Fund, LLC v Bronx Miracle Gospel Tabernacle, Inc., 119 AD3d 490 [1st Dept. 2014]

In the order on appeal, Bronx Miracle's fourth motion was granted. Citing CPLR 2003, the motion court (Aarons, J.), reasoned that a discrepancy between the foreclosure Referee's testimony that the property was sold on October 18, 2010 and the Memorandum of Sale on which the date of July 15, 2010 is typewritten was sufficient to set aside the sale, pursuant to the court's equitable powers to prevent fraud, collusion, mistake or misconduct.

We reverse, and deny the motion. CPLR 2003 provides as follows: "At any time within one year after a sale made pursuant to a judgment or order, but not thereafter, the court, upon such terms as may be just, may set the sale aside for a failure to comply with the requirements of the civil practice law and rules as to the notice, time or manner of such sale, if a substantial right of a party was prejudiced by the defect."

Bronx Miracle's motion was made outside the one-year statutory time limit. Even if it had been timely, we would deny it. The typographical error in the Memorandum of Sale, which was executed following the sale, appears to have been a scrivener's error and does not constitute the kind of irregularity contemplated by CPLR 2003. In addition, Bronx Miracle's claimed prejudice resulting from the unconscionably low sale price is unrelated to the scrivener's error, and the alleged inadequacy of the sale price alone "does not furnish sufficient grounds for vacating a sale" (Guardian Loan Co. v Early, 47 NY2d 515, 521 [1979]).