Opinion
December 29, 1993
Appeal from the Supreme Court, Erie County, Stathacos, J.H.O.
Present — Callahan, J.P., Green, Balio, Fallon and Boehm, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly declined to exercise its equitable power to set aside the foreclosure sale. The "Terms of Sale" did not provide that time was of the essence, and they expressly authorized the Referee to extend or adjourn the closing date. Thus, the Referee did not act improperly by permitting adjournments of the closing date (see, Associates Fin. Servs. v Davis, 133 A.D.2d 601, lv denied 72 N.Y.2d 802). Absent fraud, collusion or other irregularity, a foreclosure sale will not be set aside solely upon inadequacy of the sale price unless the inadequacy is so great that it shocks the conscience of the court (Glenville 110 Corp. v Tortora, 137 A.D.2d 654, 655, lv denied 72 N.Y.2d 806). The sale price was over 50% of the highest appraised value. The mortgagee bank's conduct in entering into an agreement with a prospective bidder for the financing of a bid at the sale does not indicate fraud or collusion, especially where the mortgagee was endeavoring to protect its interest by ensuring that there would be a bidder at the sale (cf., Polish Natl. Alliance v White Eagle Hall Co., 98 A.D.2d 400, 410). Under the circumstances, defendants failed to establish fraud, collusion or other irregularity sufficient to warrant exercise of the court's equitable powers.