New York Civil Practice Law and Rules (CPLR) § 5236 sets the ground rules for selling a debtor’s real property by execution—essentially a court-ordered sheriff’s auction. Because real estate is often the debtor’s most valuable asset, the statute establishes a clear hierarchy of claims and liens, imposes precise notice and timing requirements, and directs how the sale proceeds are distributed among competing creditors.
CPLR § 5236(b) blocks an execution sale only when the judgment is for the mortgage debt itself; otherwise the rest of § 5236’s sale rules still apply. In short, a mortgage lender cannot seize and sell your home through an execution sale because your equity of redemption ends at the foreclosure auction—New York offers no post-sale redemption period.[1] But if you break a settlement agreement with the lender, the lender may skip foreclosure and go straight to an execution sale.[2]
Judgment creditors other than the mortgage lender may still levy on the property, but any purchaser at that execution sale receives title subject to all senior interests—including (1) earlier-recorded mortgages and (2) a purchase-money mortgage, which the law automatically puts first in line when the seller finances the sale. Unless those superior liens are foreclosed in a separate action, they survive the auction unchanged.The statute is sectioned in the following format:
- Time of sale (at public auction);
- Sale of mortgage property;
- Notice of sale;
- Notice of postponement of sale;
- Effect of notice as against judgment creditors;
- Conveyance (proof of notice); and
- Disposition of proceeds of sale.
Time of Sale; Public Auction
The judgment debtor's real property interest, which has been levied upon under an execution delivered to the sheriff (or which was subject to the lien of the judgment at the time of such delivery), will be sold by the sheriff. The sale itself, which is conducted at a public auction, must take place between the fifty-sixth (56th) and the sixty-third (63rd) day after the first publication of the notice of sale.
The sale is pursuant to the execution at public auction at such time and place within the county where the real property is situated and as a unit or in such parcels, or combination thereof, as in the Sheriff's judgment will bring the highest price – unless the time is extended by order or the sale postponed by the sheriff. However, no sale may be made to that sheriff or to his deputy or undersheriff.
Note: If the property is situated in more than one county, it may be sold in a county in which any part is situated, unless the court orders otherwise.
Sale of Mortgaged Property
Real property mortgaged cannot be sold pursuant to an execution issued upon a judgment recovered for all or part of the mortgage debt.
Notice of Sale
A printed notice of the time and place of the sale containing a description of the property to be sold must be posted at least fifty-six (56) days before the sale in three public places in the town or city in which the property is located. The same three-public-place posting requirement applies if the sale will occur in a different town or city.
Service by the sheriff of a copy of said notice on the judgment debtor must be made as provided in section 308. A list must be furnished to the sheriff by the judgment creditor containing the following:
- name and address of the judgment debtor
- every judgment creditor whose judgment was a lien on the real property to be sold
- every person who had of record any interest in or lien on such property sixty (60) days prior to the day fixed for the sale
Each person on the list must be served by the sheriff with a copy of the notice by personal delivery or by registered or certified mail, return receipt requested, at least thirty (30) days prior to the day fixed for the sale.
The notice must be published once a week for four consecutive weeks. The first publication must occur between 56 and 63 days before the sale date. The following three publications must happen once within each of the three 14-day periods immediately after the first publication. The first period may be measured from any day between the fifty-sixth (56th) and sixty-third (63rd) days, preceding the time fixed for the sale in a newspaper published in the county in which the property is located. If there is none, an adjoining county publication will suffice.
While a minor notice defect will not invalidate the sale to an innocent third-party purchaser, the judgment creditor who failed to provide proper notice can be held liable for any damages caused to the party who was entitled to receive it.
Notice of Postponement of Sale
Any person may request that the sheriff notify him in the event that a scheduled sale is postponed. Such writing must contain the person's name and mailing address. If the sale is for any reason postponed, notice of the postponed date need be given only to:
- those whose requests, made as above provided, have been received by the sheriff at least five (5) days prior to the postponed date
- those who appeared at the time and place previously appointed for the sale
- the judgment debtor at his last known address
The notice must be in writing and served by personal delivery or by registered or certified mail, return receipt requested. It does not have to be posted or published unless the court specifies.
Effect of Notice as Against Judgment Creditors
A duly notified judgment creditor who fails to deliver an execution to the sheriff prior to the sale will have no further lien on the property and, except as against the judgment debtor, no further interest in the proceeds of the sale.
Conveyance; Proof of Notice
Within ten (10) days after the sale, the sheriff must execute and deliver to the purchaser proofs of publication, service and posting of the notice of sale, and a deed that conveys the right, title and interest sold. Proofs should be filed and recorded in the county clerk's office where the property is located.
Disposition of Proceeds of Sale
After deduction for and payment of fees, expenses and any taxes levied on the sale, transfer or delivery, the sheriff making a sale of real property pursuant to an execution must, unless the court otherwise directs:
- distribute the proceeds to the judgment creditors who have delivered executions against the judgment debtor to the sheriff before the sale, which executions have not been returned, in the order in which their judgments have priority, and
- pay over any excess to the judgment debtor
