Bank One National Ass'n v. Osorio

In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Schulman, J.), entered May 12, 2008, as granted the motion of Andres Ramos, inter alia, for reimbursement of costs and expenses [736] incurred in connection with his purchase of the mortgaged property, and is in favor of Andres Ramos and against it in the sum of $70,262.04. Ordered that the order and judgment is affirmed insofar as appealed from, with costs. The plaintiff bank commenced this action to foreclose a mortgage on certain real property. A judgment of foreclosure and sale was granted on default, and the subject property was sold at auction. However, the judgment of foreclosure and sale was vacated and the sale set aside based on the plaintiffs failure to serve a necessary party (see Bank One Natl. Assn. v Osorio, 26 AD3d 452 [2006]). The successful bidder at the sale, Andres Ramos, sought, inter alia, the return of his purchase money and reimbursement of costs and expenses. The plaintiff now appeals from so much of the order and judgment as awarded Ramos the sum of $70,262.04 for reimbursement of costs and expenses. We affirm the order insofar as appealed from. Contrary to the plaintiffs contention on appeal, the Supreme Court properly awarded Ramos reimbursement of costs and expenses after the judgment of foreclosure and sale was vacated and the sale set aside (see Toole v Toole, 112 NY 333 [1889]; cf. Lauder v Meserole, 148 App Div 739 [1912]; Baldwin-Bellmore Fed. Sav. & Loan Assn. v Stellato, 55 Misc 2d 1043 [1968]; 7 Warren’s Weed, New York Real Property § 75.36 [5th ed]; RPAPL 231 [6]; CPLR 2003). The plaintiffs remaining contentions are either not properly before this Court, improperly raised for the first time in its reply brief, or without merit. Rivera, J.P., Co vello, Dickerson and Chambers, JJ., concur.