Board of Managers of Shorehaven Condominium v. Pina

— Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered October 19, 2011, which, insofar as appealed from, denied the motion of nonparty Amit Louzon seeking, inter alia, to direct the return of his deposit paid at a foreclosure auction, unanimously affirmed, without costs. The court properly denied Louzon’s motion, since he did not perform at the scheduled closing, thereby defaulting under the clear terms of sale that he had agreed to. Under these clear terms, plaintiff made no representations or warranties with respect to the marketability and insurability of title, or to existing mortgages on the property, and Louzon was required to pay the balance of the purchase price on the closing date or forfeit his deposit. Although, on the same date as the closing, the court signed defendants’ order to show cause directing that the closing be stayed, the record demonstrates that service of that order to show cause was not effectuated until after the closing had taken place. Thus, the closing had not been stayed and Louzon remained obligated to perform (see Lenders Capital LLC v Ranu Realty Corp., 99 AD3d 566 [1st Dept 2012]). Concur — Acosta, J.P., Saxe, Renwick, Richter and Clark, JJ.