Mortgage Elec. Registration Sys., Inc. v Horkan
2009 NY Slip Op 09441 [68 AD3d 948]
December 15, 2009
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 10, 2010

Mortgage Electronic Registration Systems, Inc., Respondent,
Rosalie Horkan et al., Defendants. IPA Asset Management II, LLC, Nonparty Appellant.

[*1] Michael C. Manniello, P.C., Westbury, N.Y. , for nonparty appellant.

Berkman, Henoch, Peterson & Peddy, P.C., Garden City, N.Y. (Jonathan M. Cohen, Ronald M. Terenzi, Cara M. Goldstein, and Alan Waintraub of counsel), for respondent.

In an action to foreclose a mortgage, nonparty IPA Asset Management II, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated May 6, 2008, as granted that branch of the plaintiff's motion which was to direct the referee to execute a referee's deed and all other requisite transfer documents to transfer title of the subject premises to Countrywide Home Loans, Inc., as the ultimate assignee of the plaintiff.

Ordered that the order is affirmed insofar as appealed from, with costs.

Following a foreclosure auction conducted on March 26, 2007 the highest bidder at the auction defaulted by failing to appear for a scheduled closing. The plaintiff, who was the second highest bidder at the auction, moved, inter alia, for an order directing the transfer of title of the subject premises to Countrywide Home Loans, Inc., as the plaintiff's ultimate assignee. Under the unique circumstances of this case, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion. A foreclosure action is equitable in nature and triggers the equitable powers of the court (see Notey v Darien Constr. Corp., 41 NY2d 1055, 1055-1056 [1977]). "Once equity is invoked, the court's power is as broad as equity and justice require" (Norstar Bank v Morabito, 201 AD2d 545, 546 [1994]).

The parties' remaining contentions are without merit. Prudenti, P.J., Skelos, Covello and Austin, JJ., concur.