ADHY Advisors LLC v. 530 West 152nd Street LLC

82 A.D.3d 619, 918 N.Y.2d 721

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 2011
• Status: Published

Opinion

Although the mortgage agreement at issue contains a provision which specifically authorizes the appointment of a receiver upon application by the mortgagee in any action to foreclose (see Real Property Law § 254 [10]), it is well settled that “[a]n action to foreclose a mortgage is an action in equity” (Jamaica Sav. Bank v M. S. Inv. Co., 274 NY 215, 219 [1937]). Thus, a court of equity, in its discretion and under appropriate circumstances, may deny such an application (see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889, 889-890 [2010]; Clinton Capital Corp. v One Tiffany Place Developers, 112 AD2d 911, 912 [1985]; Mancuso v Kambourelis, 72 AD2d 636, 637 [1979], appeal dismissed 48 NY2d 1027 [1980]; W. I. M. Corp. v Cipulo, 216 App Div 46 [1926]). Based upon the circumstances presented here, we find that the motion court properly exercised its discretion in declining to appoint a receiver. Concur — Mazzarelli, J.E, Saxe, Friedman, Acosta and Freedman, JJ.