220 West 42 Associates v. Ronbet Newmark Co.

53 A.D.2d 829, 385 N.Y.S.2d 304, 1976 N.Y. App. Div. LEXIS 13653

Opinion

Judgment, Supreme Court, New York County entered January 19, 1976, granting judgment of foreclosure and sale to the plaintiff, subject to existing mortgages and to the leasehold of the defendant, unanimously modified on the law to the extent of granting the judgment only subject to the existing mortgages and otherwise affirmed. Appellant shall recover of respondent Leo David Cohen $60 costs and disbursements of this appeal. Two-twenty West 42 Associates (Associates) purchased the premises in question in 1966, at which time Leo David Cohen was a tenant therein under a lease agreement due to expire in 1986. In 1968, Associates sold the premises to Ronbet Newmark Company (Ronbet). Ronbet took the premises subject to the existing mortgages and also executed a purchase-money mortgage with Associates as the mortgagee. Ronbet defaulted in payment and Associates instituted this foreclosure proceeding. Cohen’s position is that his leasehold should be held superior to those of Associates’ rights as a mortgagee. Trial Term granted foreclosure but found that Cohen’s leasehold was not to be extinguished by the foreclosure. We disagree. The lease agreement contained a clause which expressly subordinated the leasehold to any existing or future mortgages on the premises. The clause containing a covenant of quiet enjoyment was also explicitly subordinate to all mortgages on the premises. It is clear, therefore, that the lease in question is subordinate to the rights of the mortgagees, and we have modified the judgment accordingly. Concur—Markewich, J. P., Murphy, Lupiano, Capozzoli and Lane, JJ.