Opinion
Decided June 11, 1996
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Joseph Gerace, J.
Hiscock Barclay, L.L.P., Buffalo (Drew V. Tidwell and Sandra S. O'Loughlin of counsel), for appellant.
James A. Huber, Williamsville, for respondents.
David L. Glass, New York City, for New York Bankers Association, amicus curiae.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
In 1987, petitioner Key Bank made a loan to Robert J. Bradley, the owner of property, which included a skilled nursing facility leased to respondent Manor Oak Skilled Nursing Facilities, Inc. and managed by respondent Becker. The loan was secured by a note and mortgages on the leased property. As additional security for the loan, Bradley assigned the rents and leases to the Bank. In the assignment, the owner also appointed it as his lawful attorney with full power to use all measures necessary to enforce the assignment.
Bradley defaulted on the loan in October 1990. Subsequently, Key Bank sought, by way of summary proceeding pursuant to RPAPL 721, a judgment awarding it possession of the property, rent and fair rental value for the use and occupancy of the premises, and real property taxes. The courts below determined, among other things, that the Bank was not a party authorized to maintain the summary proceeding. This Court granted it leave to appeal from that portion of the Appellate Division order affirming the denial of its standing to bring a summary eviction proceeding pursuant to RPAPL article 7.
The courts below correctly determined that, on these facts, petitioner does not have standing to bring a summary proceeding pursuant to RPAPL article 7. Petitioner, as assignee and attorney-in-fact, does not have standing to bring the proceeding under the plain language of RPAPL 721 as amended in 1977.
Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur; Chief Judge KAYE taking no part.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, in a memorandum.