McMorgan & Co. v. Harbour Point Racquet & Yatch Club, Inc. ( 1996 )

—In an action, inter alia, for foreclosure on a mortgage, the defendants Harbour Point Racquet and Yacht Club, Inc., Harbor Point Associates, and Kevin O’Keefe appeal from so much of an order of the Supreme Court, Nassau County (Molloy, J.), dated December 18, 1995, as granted the plaintiffs’ motion to confirm the report of a referee after a foreclosure sale, and denied their cross motion to set aside the foreclosure sale and to stay the entry and enforcement of a deficiency judgment pending determination of their outstanding counterclaims.

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

On the facts presented, exercise of the court’s equitable power to set aside a judicial sale on the grounds that "fraud, collusion, mistake, or exploitive overreaching casts suspicion on the fairness of the sale” (Crossland Mtge. Corp. v Frankel, 192 AD2d 571, 572; see also, Guardian Loan Co. v Early, 47 NY2d 515, 520-521; Long Is. Sav. Bank v Valiquette, 183 AD2d 877), was not warranted.

Because the amount, if any, of a deficiency judgment has not yet been determined, that portion of the appellants’ cross motion which was to stay entry and enforcement of such a judgment was premature. Miller, J. P., Ritter, Pizzuto and Santucci, JJ., concur.v