Fried v. Granite Management Corp. , 689 N.Y.S.2d 824 ( 1999 )

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted defendant’s motion for summary judgment dismissing the amended complaint. Plaintiff contends that the Referee’s sale of the mortgaged property to defendant, the second-highest bidder, upon the default by plaintiff, the highest bidder, was improper because that term of sale was not authorized by the judgment of foreclosure. That contention is rendered moot by Supreme Court’s order confirming and ratifying the sale. In any event, plaintiff expressly agreed to the terms of the sale (see, March v Marasco, 165 App Div 348, 350) and executed, as part of the subsequent contract of sale, a full release of any and all claims arising out of the foreclosure sale (see, Goldberg v Manufacturers Life Ins. Co., 242 AD2d 175, 180-181, lv dismissed in part and denied in part 92 NY2d 1000; DeQuatro v Zhen Yu Li, 211 AD2d 609). The contention of plaintiff that he is entitled to relief from his default on the subsequent contract of sale and to an abatement in the purchase price under it is belied by that contract, which provides that there shall be no abatement. (Appeal from Order of Supreme Court, Oneida County, Buckley, J. — Summary Judgment.) Present— Denman, P. J., Green, Pine, Hayes and Hurlbutt, JJ.