McCormick 105 LLC v Avaras

Supreme Court, Rockland County

Decided on July 8, 2026

Index No. 036145/2017

John P. Collins, Jr., J.

The following papers were read and considered on Defendant CONNIE AVARAS' Order to Show Cause (Motion Seq. No. 14) for an Order (1) immediately staying the sale scheduled February 18, 2026 of the Premises known as 103 South Mountain Road, New City, New York and then permanently enjoining enforcement of Plaintiff's judgment against the property because of Plaintiff's failure to comply with Civil Practice Law and Rules § 5236; (2) denying the Plaintiff's use of the enforcement procedure of sale of the property, pursuant to Civil Practice Law and Rules § 5240, as inconsistent with the Decision and Order of the Hon. Hal B. Greenwald dated September 25, 2025 and; (3) such other and further relief as this Court deems just and proper:

PAPERS NUMBER

Order to Show Cause (Motion Seq. No. 14)/Affirmation of Benjamin M. Adams, Esq./Affirmation of Connie Avaras/Exhibits A-E/Affirmation of Derek S. Tarson, Esq. of Compliance with 22 NYCRR § 202.7(f) and 22 NYCRR § 202.8-e 1

Court Notice dated February 19, 2026 (NYSCEF Doc. No. 353) 2

Memorandum of Law in Support 3

Letter to Court dated February 20, 2026 from Jeffrey S. Greene, Esq. (NYSCEF Doc. No. 355) 4

Affirmation of Jeffrey S. Greene, Esq./Exhibits A-F 5

Supplemental Affirmation of Jeffrey S. Greene, Esq./Exhibit A 6

Affirmation of Benjamin Adams, Esq./Affirmation of Connie Avaras 7

Letter to Court dated April 13, 2026, from Jeffrey S. Greene, Esq./Exhibit A 8

I. INTRODUCTION

This is a post-judgment enforcement proceeding in which Plaintiff McCormick 105 LLC (hereinafter "Plaintiff" or "McCormick") seeks to execute upon a 2024 deficiency judgment against James P. Avaras by selling, at Sheriff's sale, real property that Mr. Avaras owned together with his wife, defendant Connie Avaras, as tenants by the entirety. Mr. Avaras died on May 2, 2024. The question presented — one which the record shows was left largely unresolved by this Court's predecessor on this case, the Hon. Hal B. Greenwald, J.S.C. (retired) — is whether, given the manner and timing in which Plaintiff attempted to levy upon the subject property, any interest of James P. Avaras survived his death against which Plaintiff's judgment may now be enforced, or whether Connie Avaras took the property in its entirety by operation of the common-law right of survivorship, leaving nothing for Plaintiff to reach.

For the reasons set forth below, the Court concludes that no interest of James P. Avaras survived his death that is subject to execution, that Connie Avaras is the sole owner in fee of the subject property, and that Plaintiff's contemplated Sheriff's sale must be permanently enjoined.

II. PROCEDURAL HISTORY

A. The Underlying Judgment and the Prior Article 78 Proceeding

On January 8, 2024, this Court (Thorsen, J.) entered an Order and Judgment awarding Plaintiff a deficiency judgment against James P. Avaras in the amount of $435,664.63, arising from the foreclosure sale of a separate parcel, 93 South Mountain Road, New City, New York, which had been the marital residence of Mr. and Mrs. Avaras. Plaintiff thereafter sought to enforce that deficiency judgment against a second parcel titled to Mr. and Mrs. Avaras "as husband and wife" — 103 South Mountain Road, New City, New York (the "Property") — which the couple had purchased in 2004.

On March 29, 2024, Plaintiff caused a property execution to be prepared, and on April 26, 2024 — six (6) days before Mr. Avaras's death on May 2, 2024 — the Rockland County Sheriff's Office purported to serve a Notice of Sale and Property Execution upon Mr. Avaras. As Mrs. Avaras's affirmation and the accompanying exhibits establish, and as Plaintiff's counsel does not meaningfully dispute, those instruments were riddled with fundamental errors: they identified the defendant as "Anthony Ray Perkins," a person with no connection whatsoever to this action; they misstated the street address of the Property as 115 South Mountain Road — a distinct parcel owned by an unrelated third party — rather than 103 South Mountain Road; they inverted the tax block and lot designations; they recited an incorrect Sheriff's case number; and the Property Execution failed to annex the Schedule A legal description that the instrument itself represented was attached. See NYSCEF Doc. No. 340 Affirmation of Connie Avaras, dated February 17, 2026 ["Avaras Aff."], ¶¶ 4—12.

Six days later, Mr. Avaras died. Some months afterward, Plaintiff commenced a special proceeding pursuant to Article 78 of the Civil Practice Law and Rules against the Rockland County Sheriff (Index No. 034324/2024), seeking to compel completion of the levy and sale, [*2]notwithstanding Mr. Avaras's death. That proceeding was resolved by a "so ordered" stipulation signed by the Hon. Sherri L. Eisenpress (retired) on October 9, 2024, which amended the caption of the enforcement papers to reflect that Mr. Avaras was deceased. See Index No. 034324/2024, NYSCEF Doc. No. 39.

B. The First Order to Show Cause and Justice Greenwald's Decision and Order

Mrs. Avaras, then represented by Joseph Churgin, Esq., moved by Order to Show Cause (Motion Seq. No. 12) on April 16, 2025, to stay and permanently enjoin the Sheriff's sale of the Property then scheduled for April 22, 2025. See NYSCEF Doc. Nos. 297-304. That motion was fully briefed and argued, and by Decision and Order dated September 25, 2025, and entered September 26, 2025 (the "Greenwald Decision"), Justice Greenwald denied the motion. See NYSCEF Doc. No. 321.

Relying on Oysterman's Bank & Trust Co. v Weeks, 35 AD2d 580 [2d Dept 1969], Justice Greenwald held that Civil Practice Law and Rules § 5208 did not stay enforcement merely because the judgment debtor died after the property execution had been served but before the Sheriff's sale occurred. The Greenwald Decision further ordered that "any sale of the real property at 103 South Mountain Road, New City, New York is subject to the rights of the defendant Connie Avaras, if any, as a tenant in common with the purchaser at any such sale." Notably, the Greenwald Decision did not determine — and by its own terms did not purport to determine — the substance or extent of whatever rights Mrs. Avaras might retain following such a sale, nor did it address the effect of New York's settled prohibition against involuntary partition of a tenancy by the entirety. No appeal was taken from the Greenwald Decision, and no timely motion to reargue was made.

C. The Amended Execution, the Renewed Sale, and the Instant Motion

Notwithstanding the numerous, fundamental defects in the execution documents served in April 2024 — including, most critically, that they named an entirely unrelated individual as defendant and misdescribed the Property itself — Plaintiff did not seek to correct those defects, or attempt any new levy, until well over a year after Mr. Avaras's death. On November 24, 2025, Plaintiff caused an Amended Property Execution to be prepared, and the Sheriff thereafter issued an Amended Notice of Sale dated December 19, 2025, purporting to correct the defendant's name, the street address, the block and lot designations, and the Sheriff's case number. A Sheriff's sale of the Property was then scheduled for February 18, 2026.

On February 17, 2026 — the eve of that scheduled sale — Mrs. Avaras, now represented by Benjamin M. Adams, Esq., of the Legal Aid Society of Rockland County, moved by emergency Order to Show Cause (Motion Seq. No. 14) for the relief presently under consideration. The Court signed the Order to Show Cause (Motion Seq. No. 14) with a temporary restraining order that same day, staying the sale. See NYSCEF Doc. No. 351).

On February 19, 2026, the Court, sua sponte, directed the parties to address the applicability of Sutton v Syla, 223 AD3d 764 [2d Dept 2024], to the question of whether the instantapplication should properly be characterized as one to reargue or to renew the Greenwald Decision. See NYSCEF Doc. No. 353. Oral argument was held before this Court on February 25, 2026.

At that argument, the Court — having inherited this matter following Justice Greenwald's retirement — expressed its view that long-settled New York authority governing tenancies by [*3]the entirety compelled a different analysis than the one reflected in the Greenwald Decision, and afforded Plaintiff's counsel a further opportunity to submit supplemental papers addressing, among other things, the effect of the November 2025 Amended Execution on the survivorship analysis. See NYSCEF Doc. No. 369. The Court further extended its temporary stay of the sale pending determination of the motion. See NYSCEF Doc. No. 369.

Pursuant to that leave, Defendant submitted a Memorandum of Law in Further Support dated February 20, 2026, addressing Sutton v. Syla; Plaintiff submitted a Supplemental Affirmation in Further Opposition dated March 27, 2026, annexing the transcript of the February 25, 2026, hearing; and Defendant submitted a further reply Affirmation of Benjamin M. Adams dated April 10, 2026. See NYSCEF Doc. Nos. 354-, 356-362, 368-369, 370-371. The motion is now fully submitted and is decided as follows.

III. DISCUSSION

A. Threshold Characterization of the Motion

Plaintiff urges that the instant motion, however captioned, is in substance an untimely motion to reargue the Greenwald Decision under Civil Practice Law and Rules § 2221(d), or, if properly viewed as a motion for leave to renew under Civil Practice Law and Rules § 2221(e), fails because the sole newly presented fact — the November 24, 2025 Amended Execution — is merely cumulative of defects already known to Mrs. Avaras at the time of the first motion and would not, in Plaintiff's view, change the prior determination. Plaintiff relies principally on Sutton v Syla, 223 AD3d 764 [2d Dept 2024], for the proposition that courts look to the substance rather than the label of a motion in determining whether it is one to reargue or renew.

The Court agrees that Sutton correctly states the general rule that courts are not bound by the label a party appends to a motion and may treat a purported motion to renew as one to reargue where it presents neither new facts nor a change in law. See Sutton, 223 AD3d at 765—66. The Court does not agree, however, that Sutton compels dismissal of the instant application as an untimely motion for reargument, for two independent reasons.

First, as Defendant correctly observes, the Greenwald Decision resolved only a narrow question — whether Civil Practice Law and Rules § 5208 operates to stay enforcement where the judgment debtor dies after service of a property execution but before a Sheriff's sale is completed. The Greenwald Decision expressly and deliberately left open the separate, and as it turns out dispositive, question of what rights, "if any," Mrs. Avaras would retain following a sale. A motion asking the Court to resolve an issue that a prior order left open is not a motion to reargue or renew that prior order at all; it seeks a determination the Court has not yet made.

Second, and independently, Defendant's application invokes Civil Practice Law and Rules § 5240, which authorizes a court, "at any time, on its own initiative or on motion of any interested person, and upon such notice as it may require, [to] make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure." Civil Practice Law and Rules § 5240. Relief under Civil Practice Law and Rules § 5240 does not depend upon satisfaction of the renewal criteria of Civil Practice Law and Rules § 2221(e); it is a distinct and broadly remedial grant of authority "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." Guardian Loan Co. v Early, 47 NY2d 515, 519 [1979]. Defendant's original order to show cause explicitly requested relief under Civil Practice Law and Rules § 5240 as an independent basis for enjoining the sale, and the Court accordingly need not resolve this motion solely by reference to the [*4]standards governing reargument or renewal.

That said, and out of an abundance of caution, the Court also finds that to whatever extent the motion must be treated as one for leave to renew, the criteria of Civil Practice Law and Rules § 2221(e) are satisfied. The November 24, 2025, Amended Execution did not exist, and by Plaintiff's own concession could not have been presented, at the time of the Greenwald Decision. See Supplemental Affirmation of Jeffrey S. Greene, Esq., dated March 27, 2026. NYSCEF Doc. Nos. 368-369 ["Greene Supp. Aff."], ¶ 9 ["It is conceded that this Amended Execution dated November 24, 2025 is a new occurrence that was not considered (and did not exist) at the time Judge Greenwald rendered the Court Decision and Order "].)

Contrary to Plaintiff's characterization, that new fact is not cumulative of the defects in the original, pre-death execution documents. It establishes, for the first time, that Plaintiff's only attempt to serve execution papers correctly identifying the Property and the correct defendant occurred more than eighteen (18) months after Mr. Avaras's death — a circumstance that, as discussed below, is dispositive of the tenancy-by-the-entirety analysis in a manner the pre-death defects standing alone were not. Renewal is warranted where the new fact "would change the prior determination," Civil Practice Law and Rules § 2221(e)(2), and, for the reasons set forth in Part III(C)—(E) below, it does so here.

The Court further rejects Plaintiff's contention that the doctrines of law of the case or res judicata bar consideration of the merits. Both doctrines apply only to issues "necessarily resolved on the merits in a prior decision." U.S. Bank N.A. v Moss, 186 AD3d 1753, 1753 [2d Dept 2020]. As already noted, the Greenwald Decision did not resolve the question of what interest, if any, survived to Mrs. Avaras or to a hypothetical purchaser; it expressly reserved that question. Neither law of the case nor res judicata can bar a court from deciding an issue that a prior order left open.

B. Connie Avaras Is Not a "Legal Stranger" to This Enforcement Proceeding

Plaintiff argues that Mrs. Avaras lacks standing to invoke Civil Practice Law and Rules § 5236 because she is neither the judgment debtor, the judgment creditor, nor a third-party purchaser, and is therefore a "legal stranger" to the statute. The argument is without merit. Civil Practice Law and Rules § 5236(c) requires that notice of a Sheriff's sale of real property be given to "every person who had of record any interest" in the property forty-five (45) days prior to the sale. Mrs. Avaras is, and at all relevant times has been, a titled owner of record of the Property, having taken title with her late husband explicitly "as husband and wife." As the Fourth Department recognized in Central Trust Co. v Garvin, 55 AD2d 850, 850 [4th Dept 1976], a co-tenant spouse's survivorship interest, evidenced by the deed, is "clearly an interest 'of record' within the scope of Civil Practice Law and Rules § 5236 (subd [c]), thus entitling her to statutory notice." Mrs. Avaras is not a stranger to this proceeding; she is the very person the statute is designed to protect, and as discussed below, she is now the Property's sole record owner.

C. The Tenancy by the Entirety and the Effect of James Avaras's Death

The dispositive issue in this case is one of long-settled New York property law. A conveyance to a husband and wife, absent express language to the contrary, creates a tenancy by the entirety. See V.R.W., Inc. v Klein, 68 NY2d 560, 564 [1986]. The deed to the Property, dated May 6, 2004, conveyed title to James P. Avaras and Connie K. Avaras, husband and wife, and no party disputes that the Property was, and until Mr. Avaras's death remained, held in tenancy by [*5]the entirety.

It is equally settled that a tenancy by the entirety cannot be severed, converted, or partitioned by the unilateral act of one spouse or by the unilateral action of that spouse's individual creditor. See Matter of Sklar v Gestetner, 190 AD3d 750, 752 [2d Dept 2021] (noting "the absolute bar to involuntary partition" of entireties property, "including the forcing of partition by a third- party mortgagor or creditor"). A creditor of one spouse may reach only that spouse's own interest in the property — an interest that is itself subject to, and diminished by, the other spouse's coextensive right of survivorship. See Lawriw v Rochester, 14 AD2d 13, 15 [4th Dept 1961].

Should that spouse convey, mortgage, or have levied upon his interest during his lifetime, the grantee, mortgagee, or execution purchaser steps into the debtor spouse's shoes and becomes a tenant in common with the non-debtor spouse — but, as the Lawriw court explained, that purchaser "may ultimately obtain the whole fee, if his grantor survives, but his interest in the property may be completely extinguished, if the other spouse survives." Id.; accord Hiles v Fisher, 144 NY 306, 316 [1895].

The corollary of this rule — and the one dispositive here — is this: where the debtor spouse dies before a valid execution sale of his interest has been completed, that is, before a purchaser has actually stepped into his shoes as tenant in common, there is nothing left, at the moment of death, for any subsequent sale to convey. The debtor spouse's interest does not pass to his estate to be sold at a later date; it is extinguished instantly and automatically by the surviving spouse's right of survivorship, a right the surviving tenant possessed from the moment of the original conveyance rather than one that comes into being at death. See Klein, 68 NY2d at 564; See also Sklar, 190 AD3d at 752. A creditor's failure to complete its levy during the debtor spouse's lifetime is not a mere procedural misstep correctable after the fact; it is the loss of the only interest the creditor was ever entitled to reach.

This is, at bottom, the principle this Court articulated at oral argument on February 25, 2026, and it is a principle both counsel ultimately confirmed at that hearing. Mr. Adams correctly summarized the governing rule: had a sale of James Avaras's interest been validly completed before his death, the successful bidder would have simply stepped into James's shoes and would have held tenancy by the entirety with Connie until the moment James died, at which point that interest would have been extinguished. (Tr. at 12—13.) The corollary — which necessarily follows, and which this Court now holds — is that where no such sale was ever validly completed before death, there is no interest left for any buyer to step into at all.

D. No Valid Levy Was Completed on the Property Prior to Mr. Avaras's Death

The Court turns, then, to whether Plaintiff completed a valid levy upon the Property — as opposed to some other, unrelated parcel — before Mr. Avaras's death on May 2, 2024. It did not.

The Notice of Sale and Property Execution served upon Mr. Avaras on April 26, 2024, did not, on their face, purport to execute against the Property at all. It named "Anthony Ray Perkins" a person entirely unconnected to this litigation — as the judgment debtor. They identified the premises to be sold as 115 South Mountain Road, a distinct parcel owned by an unrelated third party, rather than 103 South Mountain Road. It inverted the correct block and lot designations, recited an incorrect Sheriff's case number, and failed to annex the Schedule A legal description that the instrument itself represented was attached. See Avaras Aff. ¶¶ 4—12 NYSCEF Doc. No. 340; Affirmation of Benjamin Adams, dated February 17, 2026, ¶¶ 4—5, [*6]NYSCEF Doc. No. 339.

Civil Practice Law and Rules § 5236(c) requires that a notice of sale of real property "contain[] a description of the property to be sold." A notice that misidentifies both the defendant and the parcel is not a mere irregularity in an otherwise adequate description; it fails to describe the property to be sold at all. Where every material element of a property description — the defendant's name, the street address, the block, and the lot — is incorrect, the notice cannot be said to have fixed the creditor's rights against the actual Property, 103 South Mountain Road, at any time prior to Mr. Avaras's death. The purported levy of April 26, 2024, was, as to this Property, a nullity.

Plaintiff argues that these errors were mere ministerial irregularities, correctable pursuant to Civil Practice Law and Rules § 2001, and points to authority holding that non-jurisdictional defects in enforcement papers do not necessarily void a sale as against a bona fide purchaser without notice. See Civil Practice Law and Rules § 5236(c); See also Gersten-Hillman Agency, Inc. v Lichtenstein & Friedman Realty Corp., 182 AD2d 1041 [3d Dept 1992]. That principle, however, protects completed sales against collateral attack after the fact; it has no application here, where no sale has yet occurred, where the errors were not minor typographical slips but included the identification of a wholly unrelated named defendant and a wholly unrelated parcel, and where most critically — the intervening death of the tenant by the entirety had already worked a substantive change in title by operation of law before Plaintiff ever attempted a correction. Civil Practice Law and Rules § 2001 permits correction of defects in a pending proceeding; it does not permit a party to reach back in time, after a debtor's death has already extinguished the debtor's interest and treat a subsequently corrected instrument as though it had validly issued before that extinguishment occurred.

E. The November 2025 Amended Execution and December 2025 Notice of Sale Are Nullities as to the Property

Plaintiff did not attempt to correct the defects described above until November 24, 2025, when it caused the Amended Property Execution to be prepared, and December 19, 2025, when the Sheriff issued the corresponding Amended Notice of Sale. Both instruments post-date Mr. Avaras's death by more than eighteen (18) months.

For the reasons set forth in Parts III(C)—(D), above, this timing is dispositive. By the time Plaintiff attempted to serve execution papers correctly identifying the Property and the correct defendant, James P. Avaras's interest in the Property — never validly levied upon during his lifetime — had already been extinguished by his death and Mrs. Avaras's correlative right of survivorship. There was, as of November 24, 2025, no interest of James P. Avaras remaining in the Property against which any execution, however correctly captioned, could attach. The Amended Property Execution and Amended Notice of Sale are accordingly nullities as applied to the Property, and any Sheriff's sale conducted pursuant to them would convey no interest whatsoever to a purchaser.

This conclusion is reinforced, rather than undermined, by Plaintiff's own submissions. Plaintiff's counsel twice acknowledges that the Greenwald Decision did not alter the underlying deed, did not reform title from tenants by the entirety to tenants in common, and did not extinguish Mrs. Avaras's right of survivorship. See Greene Supp. Aff. ¶¶ 34, 41, NYSCEF Doc. 368. Plaintiff cannot simultaneously maintain that Mrs. Avaras's survivorship rights remain fully intact and that a sale of "James Avaras's interest" may nonetheless proceed to a purchaser who [*7]would take subject to those rights, because, as explained above, where the debtor spouse's interest was never validly levied upon before death, survivorship does not merely encumber the interest sold — it extinguishes the interest before there is anything left to sell. Plaintiff's counsel's own characterization, at oral argument, of the post-death enforcement mechanism as a "legal fiction" (Tr. at 7) is, on this record, an unintentionally apt description of what a post-death sale of entireties property would in fact be.

F. Connie Avaras Was Not Served with the Amended Execution

The Court further notes, as an independent and alternative ground for the relief granted herein, that Mrs. Avaras was not served with the November 24, 2025, Amended Execution or the December 19, 2025 Amended Notice of Sale, notwithstanding her status as a person of record with an interest in the Property entitled to notice under Civil Practice Law and Rules § 5236(c). See Avaras Aff. ¶ 15, NYSCEF Doc. No. 340. Plaintiff does not dispute this failure of service; it argues only that Mrs. Avaras was not entitled to such notice in the first instance — an argument the Court has already rejected in Part III(B), above.

G. Remaining Arguments

The Court has considered Plaintiff's remaining arguments and finds them unpersuasive or unnecessary to the disposition of this motion. Plaintiff's reliance on V.R.W., Inc. v. Klein and Matter of Sklar v. Gestetner for the proposition that a creditor may execute upon a debtor spouse's interest during his lifetime is entirely correct as a general matter, but neither case, nor any other authority cited by Plaintiff, supports the proposition that a creditor may complete such an execution after the debtor spouse has died and his interest has already been extinguished by survivorship. Plaintiff's argument that the question of Mrs. Avaras's rights following a hypothetical future sale is not "ripe" is academic in light of the Court's holding that no valid sale of any interest of James P. Avaras can now occur; there is no future contingency left to await.

H. The Deficiency Judgment's Amount and Interest Rate Are Not Properly Raised on This Motion

Mrs. Avaras's affirmation devotes several paragraphs to the argument that the underlying deficiency judgment itself was improperly calculated — first, that the Broker Price Opinion of $865,430 relied upon by Justice Thorsen in fixing the deficiency was "grossly deflated," as demonstrated by the fact that Plaintiff subsequently listed the foreclosed property at 93 South Mountain Road for $1,700,000, sold it in September 2023 for $1,175,000, and saw it resold shortly thereafter for over $1,500,000; and second, that the deficiency judgment's interest was calculated at a rate of 9% rather than what the affirmation characterizes as "the statutory rate of 2%," citing an affidavit of a Mr. Tarson filed at NYSCEF Doc. No. 274. See Avaras Aff. ¶¶ 30—33, NYSCEF Doc. No. 340. Plaintiff responds that Real Property Actions and Proceedings Law § 1371 measures fair market value as of the time of the foreclosure sale, not by reference to a later resale price; that the $1,175,000 figure was a gross sale price rather than Plaintiff's net recovery after cleanup costs, marketing expenses, brokerage commissions, and payment of delinquent real estate taxes; and that Mrs. Avaras cites no authority for the proposition that the underlying note has been satisfied. See Greene Aff. in Opp., NYSCEF Doc. No. 356, ¶ 36.

The Court declines to adjudicate either contention on this motion, for several reasons.

First, and most fundamentally, the deficiency judgment Mrs. Avaras seeks to attack was entered by Justice Thorsen on January 8, 2024, in a proceeding in which the Legal Aid Society — Mrs. Avaras's own present counsel — appeared and opposed the relief Plaintiff sought. See Greene Aff. in Opp. ¶ 35, referencing NYSCEF Doc. Nos. 274—275. That judgment has never been appealed, and no motion addressed to that judgment — whether under Civil Practice Law and Rules § 5015 to vacate, under Civil Practice Law and Rules § 5019(a) to correct a clerical or ministerial error, or otherwise — is presently before this Court. A challenge to the valuation methodology or interest calculation underlying a final money judgment must be directed, in the first instance, to that judgment itself, before the justice who rendered it or, if that justice is unavailable, before a successor on a properly noticed motion. It cannot be raised for the first time, as a subsidiary argument, in an application seeking to enjoin an entirely separate Sheriff's sale on the distinct legal theory of tenancy by the entirety and survivorship. See generally Civil Practice Law and Rules § 5015(a); Civil Practice Law and Rules § 5019(a).

Second, even were the Court to reach the substance of Mrs. Avaras's valuation argument, it would not, on this record, warrant relief. Real Property Actions and Proceedings Law § 1371(2) measures the propriety of a deficiency judgment against the fair and reasonable market value of the mortgaged premises as of the time of the foreclosure sale, or the nearest date as of which market value can reasonably be ascertained — not against a subsequent arm's-length resale occurring months or years later. A later, higher resale price may reflect any number of intervening factors, including appreciation, improvement, or a shift in market conditions, and does not, without more, establish that an earlier valuation was fraudulent, mistaken, or otherwise infirm. Nor does the bare recitation of a gross resale figure establish anything about the seller's net recovery once transaction costs, carrying costs, and delinquent taxes are considered, as Plaintiff correctly observes. Mrs. Avaras's affirmation offers no appraisal, expert affidavit, or other competent evidence undermining the Broker Price Opinion that was before Justice Thorsen and that he evidently credited over Legal Aid's opposition in January 2024; it offers only a comparison to later sale prices, which is not competent proof of value as of the operative date under Real Property Actions and Proceedings Law § 1371.

Third, as to the asserted 2% interest rate, the record before this Court on the instant motion does not include the Tarson affidavit on which Mrs. Avaras relies (NYSCEF Doc. No. 274), and the affirmation does not otherwise identify the statutory or contractual source of the 2% figure it invokes. Absent that showing, and absent any indication that Justice Thorsen was not presented with, or did not consider, whatever interest-rate argument Legal Aid may have raised in its 2024 opposition, this Court has no adequate basis on this record to disturb the interest calculation embodied in a final, unappealed judgment of a court of coordinate jurisdiction.

Finally, and in any event, the amount of and interest rate applicable to the underlying deficiency judgment are academic to the disposition of this motion. The Court has determined that no interest of James P. Avaras in the Property survived his death and that Connie Avaras owns the Property outright, free of Plaintiff's judgment lien. That conclusion does not depend in any way on the dollar amount of Plaintiff's judgment or the rate at which interest has accrued upon it; it would be unchanged whether the judgment was fixed at one dollar or at $1,000,000. Nothing in this Decision and Order should be read to validate, ratify, or otherwise pass upon the correctness of the January 8, 2024 Order and Judgment or the deficiency amount or interest rate it fixed, and nothing herein precludes Mrs. Avaras from pursuing, if she is so advised, an [*8]appropriate application directed to that judgment before a court of competent jurisdiction. No such application, however, is presently before this Court, and none is decided today.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that no interest of James P. Avaras in the premises known as 103 South Mountain Road, New City, New York survived his death on May 2, 2024, and that Connie Avaras is and remains the sole owner in fee of that property, free of any lien or interest of Plaintiff McCormick 105 LLC arising from the January 8, 2024 deficiency judgment against James P. Avaras

Accordingly, it is hereby

ORDERED that Defendant Connie Avaras's motion (Mot. Seq. No. 14) is GRANTED in its entirety; and it is further

ORDERED that Plaintiff McCormick 105 LLC, its agents, attorneys, and assigns, and the Office of the Sheriff of the County of Rockland, are permanently enjoined from conducting any Sheriff's sale of the premises known as 103 South Mountain Road, New City, New York, pursuant to the property execution dated March 29, 2024, the Notice of Sale dated April 26, 2024, the Amended Property Execution dated November 24, 2025, the Amended Notice of Sale dated December 19, 2025, or any instrument amendatory or derivative thereof; and it is further

ORDERED that the aforesaid property execution, Notice of Sale, Amended Property Execution, and Amended Notice of Sale are declared null and void as against the premises known as 103 South Mountain Road, New City, New York; and it is further

ORDERED that, to the extent the Decision and Order of the Hon. Hal B. Greenwald, J.S.C., (retired) dated September 25, 2025, reserved the question of what rights, if any, Connie Avaras would hold following a Sheriff's sale of the Property, that reserved question is hereby resolved as set forth in this Decision and Order; and it is further

ORDERED that the temporary restraining order heretofore entered in this action is hereby made permanent as set forth above.

This constitutes the Decision and Order of the Court as to Motion Seq. No. 14.

Dated: July 8, 2026

New City, New York

HON. JOHN P. COLLINS, JR., J.S.C