Astoria Federal Savings & Loan Ass'n v. Sogar Realty Corp.

116 A.D.2d 545, 497 N.Y.S.2d 398, 1986 N.Y. App. Div. LEXIS 51394

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 13, 1986
• Status: Published

Opinion

— In a mortgage foreclosure action, the defendant Sogar Realty Corp. appeals from an order of the Supreme Court, Queens County (Hyman, J.), dated August 27, 1985, which denied its motion, inter alia, to stay the sale of the property in question pursuant to a judgment of foreclosure and sale, and to compel an assignment of the first mortgage upon the premises.

Order affirmed, with costs.

We reject appellant’s contention that the holder of the first mortgage upon property owned by appellant is required to execute an assignment of the mortgage by Real Property Law § 275. Appellant has never tendered or paid the full amount of principal and interest due on the mortgage, nor has appellant ever presented an assignment of the mortgage to the first mortgagee, as required by the statute. Moreover, since the first mortgagee also holds the second mortgage on the premises, she comes within the statutory exemption for mortgagees who also hold a "junior or subsequent mortgage” (Real Property Law § 275). Finally, we find no basis in the record for appellant’s contentions that it would be inequitable for the mortgagee to invoke the statutory exemption. Lazer, J. P., Bracken, Niehoff and Kooper, JJ., concur.