Bozewicz v. Nash Metalware Co.

269 A.D.2d 553, 703 N.Y.S.2d 754, 2000 N.Y. App. Div. LEXIS 2196

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 2000
• Status: Published

Opinion

—In an action to foreclose a mortgage, the defendants Nash Metalware Co., Inc. and Stephanie Eisenberg appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County (Barasch, J.), dated September 17, 1998, as, after a hearing, granted that branch of the cross motion of the receiver which was to approve a five-year extension of a lease of the mortgaged premises, (2), as limited by their brief, from so much of an order of the same court, dated December 3, 1998, as denied that branch of their motion which was to cancel the lease, and (3) from an order of the same court, also dated December 3, 1998, which denied their motion for access to the leased premises.

Ordered that the order dated September 17, 1998, is reversed insofar as appealed from, as a matter of discretion, and that branch of the cross motion of the receiver which was to approve a five-year extension of a lease of the mortgaged premises is denied; and it is further,

Ordered that the appeals from the orders dated December 3, 1998, are dismissed as academic in light of the determination of the appeal from the order dated September 17, 1998; and it is further,

Ordered that the appellants are awarded one bill of costs.

The Supreme Court improvidently exercised its discretion in authorizing the receiver to enter into a five-year extension of a lease of the mortgaged premises (see, Weeks v Weeks, 106 NY 626). The evidence did not demonstrate that it was beneficial to extend the lease for five years and the lease extension damaged the mortgagor’s reversionary interest (see, Trajam Realty Corp. v Hirschfeld, 87 AD2d 468, affd 59 NY2d 613).

In light of our determination, the remaining appeals are dismissed as academic. O’Brien, J. P., Friedmann, Florio and Schmidt, JJ., concur.