## Facts

- Tax lien holders brought a foreclosure action in Supreme Court, Bronx County against Rosenberger Boat Livery, Inc., the property owner, and others.
- The court appointed a referee to compute amounts due and conduct the foreclosure sale (Nov. 13, 2008).
- The court entered a judgment of foreclosure and ordered sale (June 17, 2010).
- A foreclosure auction occurred, and a third-party bidder purchased the property (Oct. 25, 2010).
- Rosenberger, a shareholder, and the corporation’s temporary receiver moved to vacate the referee appointment, foreclosure judgment, and sale, citing party-joinder and procedural defects.
- The trial court denied vacatur (Oct. 27, 2011), and the movants appealed.

## Issues

1. Whether a temporary receiver for the corporate owner was a necessary party whose nonjoinder required vacatur of the foreclosure judgment and sale.
2. Whether documents submitted as affidavits were invalid because the notarial language referred to “execution” rather than a conventional sworn jurat.
3. Whether publication of the notice of sale complied with RPAPL § 231(2)(a) for property located in a New York City county.
4. Whether the completed foreclosure sale should be set aside in equity based on alleged irregularities, including asserted price disparity.

## Decision

- The Appellate Division, First Department, unanimously affirmed the order denying vacatur.
- The receiver was not a necessary party because title to the property remained with the corporation.
- The challenged submissions were acceptable as affidavits where the documents stated the affiant was duly sworn and no inaccuracies were identified.
- Publication was sufficient because notice appeared in at least one qualifying newspaper, and RPAPL § 231(2)(a) requires only one newspaper in New York City counties.
- The movants did not satisfy the equitable standard to set aside a foreclosure sale, which requires both price disparity and an additional equitable ground such as fraud or mistake.

## Legal Principles

- Appointment of a receiver does not transfer title from the property owner; a receiver is not necessarily a required party in foreclosure when title remains with the owner.
- Technical defects in a notary’s phrasing do not invalidate an affidavit where the document reflects it was sworn and the challenger shows no prejudice or inaccuracy.
- For property in a county within New York City, RPAPL § 231(2)(a) permits notice of sale by publication in a single qualifying newspaper.
- A foreclosure sale will not be set aside absent proof of both substantial price disparity and an independent equitable basis (e.g., fraud, mistake, or overreaching).

## Conclusion

The appellate court upheld the tax lien foreclosure judgment and completed sale, rejecting challenges based on nonjoinder of a temporary receiver, claimed affidavit defects, publication objections, and an insufficient equitable showing to unwind the sale.


NYCTL 2005-A Tr. v. Rosenberger Boat Livery, Inc., 947 N.Y.S.2d 2 (App. Div. 1st Dep’t 2012)