Columbian Mutual Life Insurance v. Horizons of Schuyler, Inc.

Appellate Division of the Supreme Court of New York

Columbian Mutual Life Insurance v. Horizons of Schuyler, Inc.

229 A.D.2d 978, 645 N.Y.S.2d 258, 1996 N.Y. App. Div. LEXIS 9024

Appellate Division of the Supreme Court of the State of New York·Decided July 12, 1996·Published·Cited by 1 cases

Opinion

—Order unanimously affirmed without costs. Memorandum: Because the amount of the judg[979]*979ment of foreclosure and sale exceeds the amount paid for the property upon the sale, plaintiff is entitled to the proceeds remaining in the receiver’s account (see, RPAPL 1371 [4]; Albany Sav. Bank v Greller Assocs. [appeal No. 2], 178 AD2d 953, 954, lv denied 79 NY2d 757; Albany Sav. Bank v Thum Realty, 97 AD2d 891; Dime Sav. Bank v Anshel Realty Corp., 58 AD2d 881, 882). Defendants argue that the fair market value of the property exceeds the amount plaintiff paid for the property at the foreclosure sale and that plaintiff will receive a windfall if RPAPL 1371 (4) is applied literally. The language of RPAPL 1371 (4) is clear and unambiguous, however, and "[a]ny relief required to prevent a recurrence of this situation must come through a legislative amendment to” that subdivision (Dime Sav. Bank v Anshel Realty Corp., supra, at 882; cf., Hudson City Sav. Inst. v Drazen, 153 AD2d 91). (Appeal from Order of Supreme Court, Herkimer County, Tenney, J.—Foreclosure Sale.) Present—Green, J. P., Lawton, Fallon, Doerr and Boehm, JJ.

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—Order unanimously affirmed without costs. Memorandum: Because the amount of the judg[979]*979ment of foreclosure and sale exceeds the amount paid for the property upon the sale, plaintiff is entitled to the proceeds remaining in the receiver’s account (see, RPAPL 1371 [4]; Albany Sav. Bank v Greller Assocs. [appeal No. 2], 178 AD2d 953, 954, lv denied 79 NY2d 757; Albany Sav. Bank v Thum Realty, 97 AD2d 891; Dime Sav. Bank v Anshel Realty Corp., 58 AD2d 881, 882). Defendants argue that the fair market value of the property exceeds the amount plaintiff paid for the property at the foreclosure sale and that plaintiff will receive a windfall if RPAPL 1371 (4) is applied literally. The language of RPAPL 1371 (4) is clear and unambiguous, however, and "[a]ny relief required to prevent a recurrence of this situation must come through a legislative amendment to” that subdivision (Dime Sav. Bank v Anshel Realty Corp., supra, at 882; cf., Hudson City Sav. Inst. v Drazen, 153 AD2d 91). (Appeal from Order of Supreme Court, Herkimer County, Tenney, J.—Foreclosure Sale.) Present—Green, J. P., Lawton, Fallon, Doerr and Boehm, JJ.

Columbian Mutual Life Insurance v. Horizons of Schuyler, Inc., 229 A.D.2d 978, 645 N.Y.S.2d 258, 1996 N.Y. App. Div. LEXIS 9024 (N.Y. Ct. App. 1996).

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229 A.D.2d 978 (Columbian Mutual Life Insurance v. Horizons of Schuyler, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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