Summary
In Greenpoint, this Court, in reliance upon Allerwan, held that the claim of a second mortgagee, who had been named as a defendant in the first mortgagee's action to foreclose the mortgage, to surplus money was time-barred, because it moved to obtain the surplus funds more than six years after the mortgagor defaulted on the second mortgage.
Summary of this case from Nyctl 1997-1 Tr. v. StellOpinion
2001-08364
Argued May 3, 2002.
August 26, 2002.
In an action to foreclose a mortgage, the defendant Cheryle Kijik appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Seidell, J.), dated August 3, 2001, as, in effect, confirmed the report of a Referee, granted the motion of the defendant Marine Midland N.A. pursuant to RPAPL 1361, and directed that the surplus money from the sale of the property be distributed to that defendant.
Patrick Lanigan, Coram, N.Y., for appellant.
Richard A. Klass, Brooklyn, N.Y., for respondent.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, the Referee's report is rejected, and the Treasurer of Suffolk County is directed to distribute the remaining surplus money to the appellant.
In 1992 the appellant defaulted in payment on both her first mortgage, held by the plaintiff, and her second mortgage, held by the respondent Marine Midland N.A. The plaintiff commenced this action to foreclose its mortgage, naming the appellant and the respondent, among others, as defendants. After foreclosure and sale of the property, a surplus was realized, and that money was deposited with the Treasurer of Suffolk County in July 1995. In August 2000 the respondent moved pursuant to RPAPL 1361 to obtain the surplus money since its lien exceeded the amount of the surplus funds. The appellant, who also asserted a claim to the surplus money as the owner of the equity of redemption, opposed the motion, contending that the respondent's claim was time-barred. After a reference, the Supreme Court granted the motion. We reverse.
In Allerwan Co. v. Hermann ( 262 N.Y. 625), the Court of Appeals held that a second mortgagee's claim to surplus money was time-barred under the then-existing statute of limitations governing an action on a bond or mortgage. Similarly here, because the respondent moved to obtain the surplus money more than six years after the appellant defaulted on the second mortgage (see CPLR 213), its claim is time-barred (see Allerwan Co. v. Hermann, supra; but see Dime Sav. Bank of N.Y. v. Boklan, 1989 WL 35946[ED NY]).
ALTMAN, J.P., S. MILLER, McGINITY and SCHMIDT, JJ., concur.