Ordered that the first order dated February 3, 2009, is modified, on the law and the facts, by deleting the provision thereof granting that branch of the cross petition which was, in effect, to declare that nonparty Jacob Elberg defaulted on the terms of the auctioneer's memorandum of sale and substituting therefor a provision denying that branch of the cross petition; as so modified, the first order dated February 3, 2009, is affirmed insofar as appealed from, without costs...
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