201 Brook Realty Corp. v. Merrill Associates

192 A.D.2d 302, 595 N.Y.S.2d 460, 1993 N.Y. App. Div. LEXIS 3310

Opinion

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered August 12, 1992, which granted plaintiff’s motion to discontinue this foreclosure action without prejudice, unanimously affirmed, with costs.

Sufficient "special circumstances” were demonstrated to warrant the discontinuance of this foreclosure action on a second mortgage in favor of an action at law on the underlying debt, namely, the extreme unlikelihood that foreclosure will satisfy the debt owing to plaintiff in view of the amount of the first mortgage, which is also in default, as well as the fire that occurred at the subject premises (see, Manufacturers Hanover Trust Co. v 400 Garden City Assocs., 150 Misc 2d 247; Stein v Nellen Dev. Corp., 123 Misc 2d 268). Concur — Murphy, P. J., Carro, Ellerin, Kupferman and Asch, JJ.