61 West 62nd Ownersv.Harkness Apt. Owners

Appellate Division of the Supreme Court of New York, First DepartmentMar 29, 1994
202 A.D.2d 345 (N.Y. App. Div. 1994)
202 A.D.2d 345609 N.Y.S.2d 226

March 29, 1994

Appeal from the Supreme Court, New York County (Burton Sherman, J.).

Appellant's argument that as a mortgagee out of possession it cannot be held liable to pay arrears for use and occupancy or post a bond to secure the tenant's other obligations was not raised in the IAS Court and may not be considered for the first time on appeal (Lichtman v. Grossbard, 73 N.Y.2d 792). It was not an abuse of discretion for the court to condition the granting of appellant's motion to reargue, which, in effect, sought injunctive relief against Harklease's ejectment, upon the payment of use and occupancy and the posting of a bond (see, Standard Fashion Co. v. Siegel-Cooper Co., 157 N.Y. 60, 67; Matter of Niagara Recycling v. Town of Niagara, 83 A.D.2d 316, 324; 7A Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 6301.13). A party claiming a security interest in a lease must, as a condition for asserting its rights in the litigation, comply with the court's directions to maintain the status quo or lose its interest in the property (see, 313 W. 57 Rest. Corp. v. 313 W. 57th Assocs., 186 A.D.2d 466, 194 A.D.2d 477, 198 A.D.2d 159). The order and judgment of December 1, 1992 properly ejected Harklease after appellant failed to comply with the order of August 21, 1992 subject to appellant's "rights, if any", which would have included the opportunity, as mortgagee, to demand a new lease upon payment of all sums due.

Concur — Murphy, P.J., Sullivan, Carro, Rosenberger and Asch, JJ.