In this tax foreclosure action non-party, Daniel Amicucci, moves to set aside the foreclosure sale held in this action on June 24, 2013 in which certain real property located at 900 Midland Avenue, No.3B, Yonkers, New York was auctioned to the plaintiff. Mr. Amicucci attended the foreclosure auction but was not the successful bidder.

Mr. Amicucci filed a motion to set aside the sale and the Court (Connolly, J.) by decision and order dated December 4, 2013 referred the matter for a hearing with regard to three issues:

A hearing was conducted by the Court on March 19, 2014. Post hearing briefs were requested and have been submitted by both parties.

After a review of the trial testimony as well as the arguments made by counsel in their post trial submissions, the Court makes the following ruling.

At the hearing, movant Daniel Amicucci, testified that he saw the notice of sale in the newspaper and arrived at the time and place for sale, the Westchester County Courthouse lobby, with two bank checks totaling $70,000 payable to his order which he intended to endorse over to the referee in connection with his bid. The auctioneer was Kenneth L. Bunting, Esq. the referee appointed by the Court (Tolbert, J.) to conduct the auction. Mr. Amicucci testified that prior to the auction he read the notice of sale which did not indicate that the bank checks tendered by the successful bidder had to be made payable directly to the referee. Notably, the notice of sale indicated that the property would be "[s]old pursuant to the terms of the sale and filed judgment of foreclosure."

At auction, Mr. Amicucci was the highest bidder. When he attempted to endorse his bank checks over to the referee, the referee rejected the tender asserting that he would not accept double endorsed checks. The referee informed Mr. Amicucci that he had to obtain bank checks payable to his order if he wanted his bid to be considered. At trial, Mr. Amicucci testified that, contrary to the applicable law, the referee did not give him adequate time to leave the Courthouse to obtain the appropriate bank checks.

It was also at trial that Amicucci raised for the first time a claim that Midland Manor Condominium where the unit is located was a necessary party to the foreclosure because it was owed common charges at the time of sale. Therefore, Amicucci's claim was that plaintiff's failure to name the condominium association renders the sale void.

Kenneth Bunting, the court appointed referee in this matter, also testified at the hearing. Mr. Bunting testified that he has been a practicing attorney for over 26 years and during that time has received over 100 referee appointments.

Mr. Bunting testified that it is customary for a plaintiff to send him the terms of sale prior to the sale date and that, if anyone wanted to know the specific terms of sale prior to the auction, they simply needed to telephone him and he would tell them what the terms were. Further, if anyone wanted to know what type of checks he required at the closing, he would advise them of that in the event they called him before the sale date.

Mr. Bunting also testified that when Mr. Amicucci offered to double endorse his checks, he advised Mr. Amicucci that his bank would not accept those checks; therefore, he would not accept them. Mr. Bunting claims that he informed Mr. Amicucci, if he so desired, he could leave the auction to obtain checks in the correct form. According to Mr. Bunting, rather than taking advantage of the offer Mr. Amicucci argued with him before eventually leaving the Courthouse without telling him whether he intended to take advantage of the offer and return with appropriate checks.

Plaintiff's principle, Louis Zazzarino, also testified at the hearing. Mr. Zazzarino testified that on the morning of the sale he added language to the terms of sale requiring that checks be made payable directly to the referee. He also amended the terms of sale to indicate that the sale would also be subject to the interest of three prior lien holders. He did not specifically list the condominium as a prior lien holder. The plaintiff was the low bidder at the sale obtaining the property for the sum of $10,000. However, the evidence established that title was taken by plaintiff subject to the prior liens listed in the terms of sale which liens total approximately $200,000.

"It is well settled that a court, in the exercise of its equitable powers, has the discretion to set aside a judicial sale where fraud, collusion, mistake, or misconduct casts suspicion on the fairness of the sale" (Provident Sav. Bank v Bordes, 244 AD2d 470, 664 N.Y.S.2d 103 [2nd Dept 1997]; seel also Guardian Loan Co. v Early, 47 NY2d 515, 521 [1979]; Bankers Fed. Sav. & Loan Assn. v House, 182 AD2d 602 [2nd Dept 1992]).

RPAPL § 1311 Necessary Parties, provides in relevant part:

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Thus, to the extent Midland Manor Condominium has a common charge lien against the property, it was a necessary party to this action.

However, the fact that the Midland Manor Condominium was a necessary party to this foreclosure action does not make them indispensable parties whose absence mandates dismissal of the action (see CPLR 1001[b]). Rather, the absence of a necessary party in a mortgage foreclosure action simply leaves that party's rights unaffected by the judgment of foreclosure and sale (see6820 Ridge Realty LLC v. Goldman, 263 AD2d 22, 26 [2nd Dept 1999]; Polish Natl. Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d 400, 470 N.Y.S.2d 642 [2nd Dept 1983]).