The following electronically filed documents have been read and considered on this motion: NYSEF Doc Nos. “51,” through “62″. DECISION & ORDER This is a residential foreclosure action commenced by Plaintiff to foreclose on Defendant Brian Jaronczyk’s residential mortgage. Defendant Jaronczyk, by his counsel, moves to cancel the eighth scheduled foreclosure sale; to stay the action pending Defendant’s short sale application; and to declare the judgment of foreclosure and sale stale. On October 29, 2024 the undersigned directed oral argument with regard to Defendant’s application for an Emergency Temporary Restraining Order. Defendant sought a short stay to allow the Plaintiff to consider him for a short sale or for some other loss mitigation option including cash for keys so that he may begin to restore his credit and negotiate an exit. After the conclusion of oral argument, the undersigned denied the Defendant’s application. However, in light of the fact that the Defendant was residing in a rehabilitation center at the time the stay was requested, the parties mutually agreed to temporarily prohibit access to the subject premises by a third party to afford the Defendant sufficient time to re-enter the premises. The temporary stay has since been lifted. As to the underlying relief sought, the Defendant maintains, inter alia, that the judgment of foreclosure and sale is no longer enforceable as it was entered on November 8, 2019 and Plaintiff failed to seek an extension of time to conduct the sale. Furthermore, Defendant maintains that the Plaintiff failed to conduct the sale within the statutory time provided in the final judgment, and that the execution of any foreclosure sale is not time-barred. (see RPAPL §1351(1). In response, Plaintiff maintains that the Notice of Sale, filed on September 16, 2024, does not violate RPAPL §1351(1) merely because it exceeds the ninety (90) days’ time-frame referenced in the statute. Plaintiff contends that the Defendant wholly ignores the fact that the delays in scheduling and holding a foreclosure auction and sale were entirely attributable to Defendant’s own dilatory conduct. In further support, and to provide the Court with a comprehensive understanding of the background of this matter, Plaintiff sets forth the procedural history of this matter, emphasizing the Defendant’s prior dilatory conduct. Plaintiff maintains that after the entry of Judgment of Foreclosure and Sale on October 21, 2019, Defendant filed several frivolous bankruptcy petitions, beginning with the second scheduled sale on July 28, 2022, which was stayed upon Defendant’s last-minute Chapter 7 Bankruptcy Petition filed on July 26, 2022. Then, the third scheduled sale on December 5, 2022, was also stayed upon Defendant’s last-minute Chapter 13 Bankruptcy Petition filed on December 1, 2022, which was also automatically dismissed on January 81, 2023. The fourth sale scheduled on April 4, 2023, was held, but since Hempstead Gardens Landscaping Corp. filed a last-minute Chapter 7 Bankruptcy Petition on March 31, 2023, the sale was vacated by this Court on April 29, 2023. Nonetheless, said Bankruptcy was also dismissed on June 13, 2023. The fifth scheduled sale on October 3, 2023, was again cancelled upon yet another last-minute Chapter 13 Bankruptcy Petition filed by Defendant on October 2, 2023, which again was also dismissed on October 18, 2023. Then, the sixth scheduled sale on January 9, 2024, was cancelled yet again by another last-minute Chapter 7 Bankruptcy Petition filed by Hempstead Gardens Landscaping Corp. on January 8, 2024, which was also dismissed on January 23, 2024. The seventh scheduled sale on July 15, 2024, was cancelled by Defendant’s fourth, last-minute Bankruptcy Petition (under Chapter 13) filed on the day of the sale, which was not only dismissed with prejudice, but Defendant was also barred from filing another petition under Chapter 13 for a period of 180 days without prior approval of the Bankruptcy Court. Plaintiff maintains that Defendant’s contention that the Judgment of Foreclosure and Sale should be deemed “stale” merely because the eighth sale was held more than one year after the entry of Judgment omits that the delays in conducting the foreclosure sale of the Mortgaged Premises were solely due to Defendant’s own dilatory tactics as well as other circumstances beyond Plaintiff’s control. Additionally, Plaintiff maintains that the foreclosure sale is proper and should not be canceled. Plaintiff states that the law is settled that a court may set aside a foreclosure sale “to relieve of oppressive or unfair conduct.” Harbor Financial Mortg. Corp. v. Hurry, 277 A.D.2d 693 (3d Dept. 2000) (citing Guardian Loan Co. v. Early, 47 N.Y.2d 515, 521 (1979)). However, “[i]n the absence of fraud, collusion or other irregularity, the foreclosure sale will not be set aside unless the inadequacy of the price is so great that it shocks the conscience of the court.” Harbor Financial Mortg. Corp. v. Hurry, supra. Plaintiff maintains, that there is no evidence of fraud, collusion, mistake, or unfair or oppressive conduct by Plaintiff that casts suspicion on the fairness of the sale. Based upon this record, Defendant’s application is hereby denied in its entirety. Any relief not specifically granted or addressed herein is hereby denied. This constitutes the decision and order of this court. Dated: January 21, 2025
