*Show Me the Money! Or at a Minimum, Show it to the Sheriff to Stop the Auction.

I always love to cite to old cases. The Court of Appeals in Rondack Constr. Servs., Inc. v Kaatsbaan Intl. Dance Ctr., Inc. got to do just that with a case from 1875, when it unanimously held on December 15, 2009 that “a judgment debtor’s tender to the sheriff before its property is auctioned at a judicial sale automatically discharges the execution lien, terminating the sheriff’s authority to sell the property.” In doing so, the Court reaffirmed Tiffany v St. John 65 NY 314 (1875)

In Rondack the plaintiff, prior to an auction of the plaintiff’s property to satisfy a judgment, offered the sheriff “an amount sufficient to satisfy the judgment, together with interest, poundage and other related fees.” but it was declined by the Sheriff and the auction proceeded.

“In Tiffany, the sheriff levied on a judgment debtor’s boat pursuant to an execution and proceeded to sell it at a public auction. Before bidding began, the judgment debtor tendered to the sheriff an amount sufficient to satisfy the judgment and all associated costs. The sheriff refused the tender and sold the boat to the highest bidder. Analogizing to the common-law equity of redemption in the mortgage foreclosure context, this Court held more than a century ago that, under these circumstances, the tender was the equivalent of payment and had the “instantaneous effect” of discharging the lien created by the execution (65 NY at 318). Consequently, the sheriff lost the authority to sell the property, resulting in an improper conveyance.

A property owner who desires to tender the appropriate amount before the actual sale is free to do so without the need to move under CPLR 5240. Stated differently, property owners possess a common-law right under Tiffany to redeem their property before sale without judicial intervention.

Here, as in Tiffany, Kaatsbaan timely tendered an amount sufficient to satisfy the judgment and all fees and expenses. Kaatsbaan’s tender extinguished the lien and foreclosed the sale of the property. The Appellate Division therefore properly granted Kaatsbaan’s motion to set aside the sale and compel the Sheriff to accept its check in full satisfaction of the judgment.”

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